Cheating

An article in today's (August 19, 2011) Chronicle
of Higher Learning reports an experiment done at
Duke University. Two students in a class of 500
sent email to everyone in the course. It purported
to have a link to a question from a previous exam
that would help in the current exam. They then
counted how many people opened the link. More than
half had clicked on the link. There is no
way to determine if clicking was done out
of curiosity or to actually cheat.

The apparent willingness to cheat raises the issue
of whether this reflects a lack of ethical values
that can be factored in to the reasons for criminal
acts. Crime rates have actually been reported as
lower recently which on the surface appears to be
an anomaly. The expectation in a poor economy with
unemployment rates high is that there would be more
crime.

One explanation is that potential victims have little
or nothing worth taking. Another might be that high
unemployment means more people are about and would see
the criminal which would lead to faster apprehension.

Obviously when dealing with why a person does or does
not do something, we can only speculate or rely upon
what we are told.

Do you have an explanation? Could it be tested?

Totally unrelated to the criminal question, is
another that came to my mind when I read the article.

I was bothered by a class with so many students and
the limited opportunities for class discussions. Yes,
professors can still ask questions and students will
answer either verbally or with clickers, but only a
few students will actually speak up.

When you personally are in lecture hall classes, do
you believe that you are gaining as much from the
course as when you are in a small seminar-type setting?
Do you find yourself physically present but mentally
far away or even half asleep?

Would an online course have equally or more benefit
than a 500 person lecture hall course? Why or why not?

Solitary on Death Row

This article from the Texas Observer discusses

the effect of solitary confinement on death row

inmates.

Solitary can drive an inmate into a mental state

of insanity and the Supreme Court has said that

you cannot execute someone who is insane if they

do not understand that they are going to be

executed.

In Japan the condemned do not know when they

will be executed and each day wait to learn in the

morning if it is going to happen that day. Unlike in

the US, a Japanese prisoner is required to sit in a

specific manner all the time. There is also no

communication with another person. CNN did a

report on Japanese death row inmates that can

be read at

http://articles.cnn.com/2009-09-10/world/japan.executions_1_death-row-amnesty-international-mental-illness?_s=PM:WORLD

Our Super Max prisons use the same total isolation

concept for inmates. You can read about SuperMax

prisons, especially the one in Colorado, at

www.supermaxed.com/Federal-SM-Page.htm

For additional information go to bing.com and

type in SuperMax prison. Bing.com is an excellent

search engine and I personally prefer it over

Google. But any of the many search engines will

provide you with information.

Have a Happy Thanksgiving.

Budget Cuts Have High Criminal Justice Impact

The federal government is not alone in dealing with

budget woes. Unlike the federal government, however,

many states have a state constitutional requirement that

the budget be balanced.

To deal with inadequate amounts of revenue, states are

looking to make cuts in all programs. Some of the current

proposals are going to directly impact the criminal justice

system.

One proposal which appears to be getting wider support than

in the past involves sentencing guidelines and practices. Because

states like West Virginia literally have no room in the regional jails,

legislators are considering alternatives to jail time for low level

offenses.

One of the many complaints heard about having sentencing guidelines

is that the judges have no discretion to tailor a punishment to the

individual offender. Legislators feared making any changes

because an opponent would label them as "soft on crime." Budget

woes and voter concerns about the economy and deficits is making

it more likely that guidelines will soon be changed.

Research has shown that some alternatives work well and do not involve

the costs of incarceration. The odds are that more of these will be

considered in the months to come and be more acceptable to the

public.

What do you think of changes made because of the budget deficit?

Criminalize or Legalize

A number of states will be asking voters on Tuesday to
consider whether or not to legalize marijuana for medical
reasons. There does not appear to be any consensus on
whether or not this is good public policy.

One problem is that what relief, if any, relies on anecdotal

evidence. Scientific evidence requires facts that can be tested

by others with the same results; obviously this is a weakness

when one depends on anecdotal evidence. But allowing for

this weakness, it appears that those who are taking a wide variety

of chemotherapy drugs do report getting relief from the nausea

when they are allowed to use marijuana.

The problem, or a major one, lies in the inability to have any

meaningful way of controlling the writing of prescriptions

for those who want it for any other purpose beyond

just control of nausea after chemotherapy.

The recent conviction of Howard K. Smith associated with his

obtaining drugs for her is a good example of prescription abuse.

The wall between government and patient/doctor privilege

must be high enough to be unscalable.

Another factor is that if it is a prescription then insurance

will be asked to pay for it or part of its costs. With talk of

government involvement in health care costs, the partisan

arguments may get hostile and raises another issue that

will be highly divisive at a time when

unity is needed to face our economic woes.

If marijuana is legal, then states can tax it and thus raise revenue

much as is done with lottery tickets and alcohol. This is opposed

forcefully by many conservatives for religious and moralistic

reasons. Many point to the results in the growth of crime families

when alcohol was first prohibited and then legalized.

Studies will need to look at results in California where it is legal

in many areas. In fact courts are being asked to decide whether

states have the constitutional right to legalize something that

is contrary to federal governmental policy.

It is important that information be made available that

shows both sides of the argument as well as the underlying

research to establish the argument. Since this is becoming

a major issue on the ballot box, and in some states, is being

raised as a possible constitutional amendment. Each of us must

begin to think about our position and the research that we

have looked to in reaching the position. For some

it is, and will always be, a question of religion or our interpretation

of morality. For others it will be a question of research results.

Where do you personally stand?

Prosecutorial Misconduct

Innocent people spend years in jail and there
is nothing done to prosecutors when it is shown
that they prosecuted an innocent person KNOWINGLY.

An article in USA today brings attention to the
large number of cases that have come to light.

An off-Broadway play called the Exonerated called
attention to the problem a few years ago. A Chicago
newspaper ran a series of articles when the governor
pardoned a large number of inmates who were found to
be innocent.

The Innocence Project which involves journalism students
as well as law school students does a great deal of
searching for proof of wrongful convictions.

The main thing is to realize that it can happen to you,
a middle class person who has never had so much as a
parking ticket. Proving innocence is difficult to do.
How can you prove you were somewhere (maybe at home)
alone at a specific time? Do you keep every receipt you
ever get to have time stamps available (no one I know
does)?

Read this article and realize that these things happen
and the worst part is that nothing happens to the
prosecutor when misconduct is proved. But the innocent person
becomes an ex-felon for life unless the case generates
enough media or political attention to end in a pardon.

Assisted Suicide

Switzerland has recently revised its policy about
assisted suicides and Great Britain stopped prosecuting
those who went to another country to help someone commit
suicide.

Three of the United States allow assisted suicide -- Oregon,
Washington, and Montana. I have not seen any published
numbers to indicate whether or not many take advantage of it
or not.

It raises a host of issues involving end of life that became
part of a national debate when a young woman, Terri Schiavo, who
was in a long term coma and never expected to recover, had her
husband and family fighting over whether to pull the plug to the
artificial machinery that was keeping her alive. It was even
litigated and a topic of discussion in Congress. She eventually
was transferred to a nursing home and without life
support finally died after a few weeks.

Sciavo's case also revived the use of medical directives and
medical power of attorney forms. Today anyone who is hospitalized
is asked about whether they want resuscitation used if needed.

Because there are so many ethical and religious aspects to discussions
of issues such as assisted suicide, consensus will probably never
be attainable. But predetermining our wishes on quality of life
and steps to take if we are comatose and in a vegetative
state is something each of us owes to family members
who should not be required to make decisions without
any indication of the person's desires.

About the only time this is an area of discussion, especially
with younger persons, occurs when the news reports on a traffic
accident victim who is in a coma. Then some younger folk may
state something to the effect of
wanting or not wanting life support continued indefinitely.

There have been cases of spouses who were fulfilling the wishes of the
other and faced charges and in some cases were sent to prison on charges
of homicide.

In 2007 Dr. Jack Kevorkian, a retired pathologist, was released
from prison after 8 years. He became known as Dr. Death because
of his assistance to those who wished to end their lies and were
chronically ill with no chance of recovery. He did not do anything
himself to end a life but did provide the means for the individual
who wished to die.

A case involving Elizabeth Bouvier involved her refusal to be force
fed; she went to court claiming her right to make medical decisions
based on her own standard of the quality of life. By the time all
the appeals ended, she decided she wished to live.

Don't take Presumption as a given

Two Americans are in jail in Juarez after being
accused of drug trafficking. They have been found
guilty and sentenced to 5 years in prison.

BUT their claim, supported by three witnesses, is
that the military planted the drugs in their truck.
One witness was killed before the trial and the
other two disappeared.One cannot overlook the fact
that the vast majority of prisoners, worldwide, claim
innocence.

However we also know of cases where years
later prisoners are released and then exonerated because
they were innocent all along and should never have been
sent to jail/prison for a crime they did not commit.

Recently a New York man was released after 27 years when
in fact he was innocent all along. How do you compensate
for taking so many years and life experiences away from
someone? How do you compensate for the horrors endured
while locked up?

A most interesting aspect of this story from Juarez
is the fact that in Mexico an accused is presumed to
be guilty and has the burden of proving innocence. Consider
the handicap of trying to gather evidence to prove
a government agency planted evidence against you or
tortured you or in anyway infringed upon your basic civil rights.

In our country and in many western nations, the presumption
is that an accused is innocent until proven guilty. Proving
innocence when unjustly accused is difficult enough without
the added problem of having the burden of proof.

Americans tend to take our Bill of Rights for granted and do
not stop to realize that any one of us could be falsely accused
because of mistaken identity or any of a litany of hard to
imagine occurrences. Go to
and read about a woman who spent 9 years in prison for a crime she
had nothing to do with.

The show Sixty Minutes, which has the resources, were able to prove her
innocence as well as that of another gentleman, also prosecuted by
the Dallas District Attorney's Office. It would be nice to think
that these two are a rarity but unfortunately every state has some
who should never have been sent to prison. Even after being shown
to be innocent, the stigma of the accusation follow one for life.

Budget cuts and Effect on Death Penalty Defendants

An article published in the Pittsburgh Post Gazette as well as the New York Times
details a Georgia Supreme Court ruling involving a death penalty defendant.

Georgia has a severe budget crisis and the state ran out of money to pay the attorneys for Jamie R. Weis who is facing the death penalty. The prosecutor recommended that two overworked public defenders, who he specifically named, should take over the Weis defense.

When Mr. Weis objected, the issue went before the Georgia State Supreme Court. In a 5-4 decision, the Court ruled that Mr. Reis should accept the public defenders to help solve the state's budget crunch.

The public defenders made three motions that asked the court to remove them from the case because they had neither the time nor experience to provide a death penalty defendant with an adequate defense. In addition there is no money to pay for any type of investigation which would be a severe handicap for any appointed counsel. Nor is there money for any expert witnesses.

Normally prosecutors have no role to play in the selection of defense counsel. In addition once counsel is on record for a defendant, it takes exceptional reasons for any changes to be allowed by the court.

"Two states, Georgia and Louisiana, take a less sporting attitude, saying poor defendants may be forced to switch lawyers long after the case is under way and must take whomever the state can afford at the time." (New York Times article).

The famous United States Supreme Court decision in Gideon v. Wainwright established the right of defendants to adequate counsel. The current United States Supreme Court is being asked to grant certiorari to hear this case.

As states continue to deal with budget deficits, more and more criminal justice
participants will face difficulties.

Privacy carried too far

Anything carried to the extreme usually has unexpected consequences and this is a good example. Privacy laws to protect juvenile should be limited to status offenses and not to serious acts of delinquency. The public has the right to some protection and in this case, providing the video would probably prevent future assaults by the offender. D.C. Juvenile Detention Officials Won't Provide Videos To Police ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Police who responded to a disturbance Sunday at Washington, D.C.'s juvenile detention center made what should have been a routine request: to view surveillance videos to determine responsibility for the assault of a staff member and other possible crimes. Instead, they ended up in court because the city's confidentiality laws for juvenile offenders precluded release -- even to the police -- of this material. How much more absurd does the situation have to get before the D.C. Council does something about rules that show more regard for those who break the law than those who need its protection, asks the Washington Post in an editorial. A worker at the center had his jaw broken and three other staff members were injuired in the hour-long melee. It appears the incident started when a group of youths objected to the end of a basketball game and refused to return to their housing units. The police investigation was momentarily stymied when the Department of Youth Rehabilitation Services cited a confidentiality statute in refusing to make information available. There are good reasons for protecting the privacy of youths who commit crimes; mainly, so they can have the chance of rebuilding their lives without the lifelong stigma of their youthful offenses. But Washington's laws are overly broad and unusually strict, making it a crime for anyone to release any information about a juvenile case. Attorney General Peter Nickles, who is reviewing the juvenile justice system, said he's increasingly convinced that strict confidentiality laws harm public safety by shrouding the system in such secrecy that public confidence is undermined. Washington Post

Connecting Prisoners and their children

This topic is mentioned in the text.

Prisons Work To Reconnect Inmate Fathers With Their Children

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

More than 1.7 million children have a parent in U.S. prisons, says USA Today, citing the U.S. Bureau of Justice Statistics. The number of children with a father in prison grew by 77 percent from 1991 through mid-2007. And those children are two to three more times likely to wind up behind bars themselves, says Christopher Wildeman, a University of Michigan sociologist who has studied the effects of imprisoned parents.

To combat that trend, Louisiana's Angola prison and other institutions across the U.S. sponsor two programs aimed at reconnecting prison dads with their children: Returning Hearts, a day-long carnival-like celebration where inmates spend eight hours with their kids, and Malachi Dads, a year-long training session that uses Bible passages to help improve inmates' parenting skills. Inmates must show good behavior to participate, says Angola Warden Burl Cain. Once they feel reconnected to their family, their attitudes improve, he says. Around 2,500 inmates have participated in Returning Hearts since it began in 2005. Malachi, which started in 2007, currently has 119 men. "The ones who were problematic before are not problematic anymore," Cain says. "Prison didn't straighten them out; their kids straightened them out."

USA Today

Supreme Court has a new Miranda decision

In the past the Supreme Court required that a
suspect must clearly and unequivocally
state the desire to have a lawyer. The Court
has now gone a step further.

The Court has now held that if a suspect wishes
to remain silent (the first of the Miranda Rules),
the suspect must clearly state that he/or she
is invoking the constitutional right to remain silent.

Somehow the idea that one must speak in order
to remain silent is strange to write or even talk about.
But the Court has over the years endorsed Miranda
while requiring that a suspect articulate any
rights that are to be invoked.

Once a right is invoked by articulation, there
is no longer any question that police must
stop all interrogation and not ask any
further questions, no matter how much
time has passed.

The suspect could still contact the police
and inform them that he/she no longer
wishes to invoke silence, but without this
articulation, interrogation could not be
used as evidence, nor anything said ever
used in any manner to make a case
against the suspect.

The bottom line is that anyone who wishes
to utilize a right must clearly state the intention.

Good News - crime is going down

The preliminary UCR for 2009 shows a decrease in all types of violent crime. This raises some interesting questions. Unemployment is high and new graduates are facing a dearth of job openings. So one wonders about the relationship of employment and crime.

Community policing is now widespread in the US; could this be a factor in the decrease? Does more unemployment mean more eyes are on the look-out, ready to intervene if they see situations that could escalate into violence?

There is no lessening of gang membership so how does gang membership relate to violent crime? The data raises more questions than it answers.

Here are some more top line numbers from the report:

• All four categories of violent crime declined overall compared to 2008: robbery, 8.1 percent; murder, 7.2 percent; aggravated assault, 4.2 percent; and forcible rape, 3.1 percent. Violent crime declined 4.0 percent in metropolitan counties and 3.0 percent in nonmetropolitan counties.

• The largest decrease in murders—7.5 percent—was in cities with populations ranging from 500,000 to 999,999. The only increases in murders were found in cities of 25,000 to 49,999 (up 5.3 percent) and nonmetropolitan counties (up 1.8 percent).

• All overall categories of property crime also decreased when compared to 2008. Motor vehicle theft was down 17.2 percent; larceny-theft, 4.2 percent; and burglaries, 1.7 percent. Motor vehicle theft, which experienced the largest decrease in a single property crime category by far, fell significantly in all four regions of the country—down 18.5 percent in the Midwest, down 17.5 percent in both the Northeast and the West, and down 16.3 percent in the South.
  
• Arson declined across the board, with reported decreases across all population groups and all four regions of the country—11.6 percent in the West, 10.6 percent in the South, 9.2 percent in the Midwest, and 8.6 percent in the Northeast.

The 2009 crime statistics are preliminary; the final report will be issued this fall. Past full-year reports: 2008 | 2007 | 2006 | 2005 | More - More About the Uniform Crime Reports (Statistics) - Frequently Asked Questions

The report also contains individual 2008 and 2009 figures for all eight crimes—murder, forcible rape, robbery, aggravated assault, burglary, larceny-theft, and arson—by cities with populations of 100,000 or more.

Court rules on juveniles and life without parole

The United States Supreme Court has ruled that giving a juvenile a sentence of life without the possibility of parole for any non-homicide violates the 8th Amendment.

While it is possible that Graham the youngster in the case will probably be sentenced to 40 years, knowing that he has the possibility of gaining parole makes a tremendous difference to an inmate.

Young people tend to act on impulse and most of their crimes (non gang related) lack premeditation. Thus the Court recognizes that there is a difference in the sentence that a youth should receive from that given to one who is past the age of majority.

It is interesting to note that Florida is the state that most often used life without parole as a sentence for youth who commit heinous crimes. Hopefully juries and
sentencing judges will begin to consider the immaturity of the offender in determining the punishment. Substantial punishment is reasonable but consideration about a person's redemption must also be a factor.

Trusting Police is hard in some areas

March 19, 2010

Linked to Police Misconduct, 185 Drug Cases Are Dropped

By THE ASSOCIATED PRESS

CAMDEN, N.J. (AP) — Charges have been dropped or convictions vacated in 185 drug cases in one of the nation’s most crime-ridden cities, because information gathered in a criminal investigation of five police officers suggested that evidence could have been tainted, a prosecutor announced Friday.

One of the officers, who resigned, pleaded guilty in federal court Friday to conspiring with other officers to deprive other people of their civil rights.

The former officer, Kevin Parry, admitted that he planted drugs on suspects, conducted illegal searches, threatened to bring additional charges against suspects who refused to cooperate, stole drugs and money from suspects, and paid informants — many of them prostitutes — with drugs in exchange for information.

Friday’s announcement and Mr. Parry’s plea were the first information about the situation to emerge since the investigation began in November.

At least four of the police officers were suspended then. The Camden County prosecutor, Warren Faulk, would not say whether the fifth had been removed from duty.

The prosecutor’s office reviewed more than 400 cases over the last five years in which one of those five was the arresting or investigating officer, Mr. Faulk said. They seemed to not have behaved inappropriately in some cases, like domestic violence calls, Mr. Faulk said.

But in 185 cases involving more than 180 suspects, Mr. Faulk said, there was reason to drop charges or vacate convictions. It was not clear how many people were released because of the investigation, but 81 of them had received prison or jail sentences.

Yvonne Smith Segars, who heads the state’s public defender’s office, called the developments “unprecedented.”

Horrific Doesn'Even Begin to Discribe this

Horrifying acts' common thread: troubled kids

• Photos

Related Content

• Taunting texts triggered brutal attack on Deerfield Beach girl

By JAMES H. BURNETT III

jburnett@MiamiHerald.com

`Kids will be kids'' used to mean a child got caught with his hand in the cookie jar, or in some other acceptably immature, playful, or maybe thick-headed, but relatively harmless, behavior.

Thursday afternoon, 15-year-old Wayne Treacy stood before a Broward County judge to answer for allegedly beating and stomping with steel-toed boots a female classmate at Deerfield Beach Middle School.

The Broward Sheriff's Office says Treacy, who was arrested on an attempted-murder charge following the Wednesday afternoon attack, continued to stomp and kick Josie Lou Ratley in the head after she had fallen to the ground.

Ratley, a 15-year-old eighth-grader, remained hospitalized late Thursday in extremely critical condition.

According to BSO, Ratley and Treacy exchanged heated text messages prior to the assault, including a taunt she allegedly sent him about his older brother's suicide in October.

Circuit Judge Elijah Williams ordered Treacy held in juvenile detention for 21 days while the Broward state attorney's office decides whether to charge him as a juvenile or an adult.

BROTHER'S SUICIDE

Treacy clearly has problems. That's not a dig at him. Not to excuse his actions Wednesday, but his mother Donna Powers and stepfather Carey Smith say Treacy's brother committed suicide in October, the day before Treacy's birthday. And Treacy, then 14, found the body.

Perhaps more troubling, though, is how common kid-on-kid assaults are becoming -- not simple, old-fashioned fist fights, but assaults.

Michael Brewer, 15, was a student at Deerfield Beach Middle School five months ago, when several classmates surrounded him near his home, doused him with rubbing alcohol, and set him on fire because he allegedly reported them to police for attempting to steal his father's bicycle, and because he supposedly owed one of them $40 for a video-game purchase.

In December, Avion Lawson, 17, was sentenced to 30 years in prison for participating in a brutal West Palm Beach gang rape when he was just 14, and beating up the victim's young son, who was present during the attack.

Another of Lawson's three codefendants was legally a minor -- 17-year-old Jakaris Taylor, who received a life sentence in October for his part in the rape and beating.

`TROUBLED'

What's the common denominator with all these kids? There are probably several. One that jumps out at me is that in at least 30 newspaper reports during the past two years, in which either South Florida journalists or law-enforcement officials, or both, referred to them all as ``troubled.''

I've used ``troubling'' in this column. Hard to describe these teenagers or these scenarios any other way, without explanations from the assailants and shining a giant, glaring spotlight on parental culpability.

But lest we dismiss this behavior as a fluke -- especially in light of January reports that overall aggravated assaults in Miami-Dade and Broward counties were down by as much as 15 percent in 2009 from 2008 and 2007 rates -- consider a 2006 study in Britain about the prevalence of serious crimes committed by children:

That country's Youth Justice Board concluded in 2006 that there was cause to celebrate, because crimes committed by children ages 13 to 17 had fallen in the prior year. However, crimes committed by 10 to 12-year-olds rose 6 percent.

It's 2010. Like more than 70 percent of the juveniles arrested and/or charged with committing violent crimes in South Florida over the past two years, those 10-12-year-olds leading the rise in child crime in the UK are 14 to 16 now.

Read more: http://www.miamiherald.com/2010/03/18/1536780/horrifying-acts-common-thread.html#ixzz0if7BKIaq

Update related to New Postings

I will be having open heart surgery in the relatively near future. I am not sure
how long it will be until I am once again feeling up to searching for new
articles to post on this blog.

But with the help of my doctors and the Lord, I expect to be back at it in a month or so.

I will be home until Tuesday, March 23, so I may post one or two until then.

C.L. Segal

Sexting

Appeals Court Rejects Prosecution Threat In "Sexting" Case

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

In the the first case to challenge the constitutionality of prosecuting teens for "sexting," the U.S. Court of Appeals for the Third Circuit in Philadelphia upheld an injunction that barred a Pennsylvania prosecutor from bringing child pornography charges against girls who refused to attend a class he had designed to educate youths about the dangers of sexting, the Legal Intelligencer reports.

A unanimous three-judge panel concluded there was no probable cause to bring any charges against the girls who had appeared in various states of undress in photos shared among a group of teens. Missing from the prosecutor's case, the court said, was critical evidence about who exactly had transmitted the images. As a result, the court said, any decision to prosecute the teens after they refused to take the class would therefore be retaliation against them for asserting their First Amendment rights. The panel found that former Wyoming County District Attorney George Skumanick Jr. had violated the rights of parents by usurping their roles. "An individual district attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," wrote Judge Thomas Ambro.

Legal Intelligencer

Prison Populations Getting Smaller

March 16, 2010

Report Finds States Holding Fewer Prisoners

By JOHN SCHWARTZ

State prison populations, which have grown for nearly four decades, have begun to dip, according to a new report, largely because of recent efforts to keep parolees out of prison and reduce prison time for nonviolent offenders.

State prisons held 1,403,091 people as of Jan. 1, nearly 6 percent fewer than a year before, the report said. Prison populations have fallen in 27 states in that period, while they have risen in 23.

“It’s too early to tell whether this is a tap of the brakes or a shift into reverse,” said Adam Gelb, the director of the public safety performance project of the Pew Center on the States in Washington, which produced the report. Still, Mr. Gelb said, seeing the state prison numbers dip for the first time since 1972 “took us a little bit by surprise,” he said.

In the same period, the population in federal prisons increased by nearly 7 percent.

The results broaden the conclusions in a report issued this month by the Sentencing Project, a research and advocacy group in Washington that looked at efforts to reduce the prison populations in Kansas, Michigan, New Jersey and New York. That report found that all four states had achieved reductions, with New York reaching a 20 percent reduction and New Jersey 19 percent over a decade.

Marc Mauer, the executive director of that group, said the reduction was actually overdue, since crime rates have declined for some 15 years. “That’s the puzzling piece — why did this take so long?” he asked. The lag, he said, was partly the result of longer sentences and partly because of tough standards in many states for revoking parole.

The Pew report noted that while the squeeze on state and local budgets had contributed to efforts to reduce prison populations, “financial pressures alone do not explain the decline.” At least part of the fall-off resulted from changes like California’s decision to reduce the number of low-risk people on parole returning to prison because of technical violations, and Texas’ decision to step up its residential and community-based treatment programs.

“If you had to single out the most common reform that we’re seeing,” Mr. Gelb said, “it’s various strategies to hold parole violators accountable, short of jamming them back into a $25,000-a-year, taxpayer-funded prison cell.”

Releases of prisoners, however, have been controversial. Crime Victims United of California, a nonprofit group, sued the state last month over its efforts to reduce the number of inmates in its prisons, claiming that releases driven by overcrowding would violate a 2008 voter initiative.

The new report does not deal with the prisoner levels in local jails. A 2009 report by the Pew center that did count local jail inmates concluded that 1 in 100 adults in the United States lives behind bars.

The new report concluded that whatever the long-term trends, with 1.6 million people in state and federal prisons and an estimated 700,000 in local jails, “the United States will continue to lead the world in incarceration for the foreseeable future.”

Indigents not getting best defense says article

Decision could be influential in other states as well

March 15, 2010

Key New York Suit Calls Public Defender Programs Inadequate

By WILLIAM GLABERSON

A class-action suit to be argued next week in New York’s highest court has become a test of a national strategy by civil liberties groups to challenge what they say are failed public defender programs in many states.

Because an estimated 80 percent of felony defendants in large states are too poor to hire their own lawyers, and because the case is being watched around the nation, the case has the potential to alter the shape of the criminal justice system.

Filed by the New York Civil Liberties Union, the lawsuit is a broad challenge to a patchwork system that has been described by decades of studies and commissions as dysfunctional, underfinanced and “in crisis,” with often poorly trained and poorly supervised lawyers handling huge caseloads. It says indigent clients have been failed by their appointed lawyers all around the state.

“The eyes of the nation will be on New York as it decides this crucial issue,” a brief filed by the National Association of Criminal Defense Lawyers argues.

As the system works now, defendants who are unhappy with their appointed lawyers can generally make those claims only after they are convicted. The court then reviews each appeal case by case. But the civil liberties lawyers argue that a broad review is necessary because the arrangement has not addressed systemic failings that unconstitutionally leave tens of thousands of defendants without meaningful representation in every part of the state.

The state has fought hard against the suit, which was first filed in 2007, arguing that if New York’s highest court, the Court of Appeals, allows it to proceed — and a court later uses the case to order the state to upgrade the public defender system — it would be a judicial invasion of the authority of the Legislature and the governor. Such improvements, some lawyers say, could cost hundreds of millions of dollars.

In one filing, the state argues that by appointing lawyers it fulfills its constitutional obligations. “It cannot be seriously contended that plaintiffs have been denied the right to counsel,” the state says. The state’s defender system includes Legal Aid Societies, private lawyers who are appointed by the courts, and local public defender offices.

Next Tuesday, the Court of Appeals is to consider whether the suit can proceed. A half-dozen friend-of-the-court briefs portray the scheduled argument as a critical step in defining the meaning of a landmark decision of the United States Supreme Court in 1963. The decision, Gideon v. Wainwright, declared that the Constitution required states to provide lawyers for indigent defendants.

In recent years, there have been cases similar to the New York one in states like Connecticut, Indiana, Minnesota, Montana and Washington, with settlements, lower court decisions and inconsistent rulings. The Michigan Supreme Court is to hear a challenge to its public defender program next month.

The New York class-action suit was filed in the name of a Rochester woman, Kimberly Hurell-Harring, and 19 other people who were facing criminal charges in five counties: Onondaga, Ontario, Schuyler, Suffolk and Washington. The question before the Court of Appeals is whether the class action presents an issue that the courts can consider.

Ms. Hurell-Harring claimed that an upstate public defender did little for her but pressure her to plead guilty after a felony arrest for trying to sneak marijuana to her husband, who was in prison. Others among the named plaintiffs said that lawyers provided for them were overwhelmed with cases and failed to investigate or make basic legal arguments.

“I was just a number, a docket number,” said Edward Kaminski, a retired auto mechanic who faced larceny charges in 2007 and dealt with a series of lawyers from the Legal Aid Society in Suffolk County on Long Island.

Louis E. Mazzola, a senior lawyer at the Suffolk Legal Aid Society, said lawyers there disagreed with the way their work was described in the suit. But he said budget pressures “drive everything we do.”

“From a client’s point of view,” Mr. Mazzola added, “it’s not a great system.”

The civil liberties case has placed New York officials in the awkward position of defending a $400 million locally financed system that a 2006 commission said did not provide effective representation to “a large portion of those entitled to it.”

Law enforcement officials are divided over the case, with arguments on each side filed by groups of former and current New York prosecutors. Some prosecutors say the case overstates the problems with public defender programs. In some areas, the system is “working well and protecting every right,” said Kathleen B. Hogan, the president of the State District Attorneys Association.

Ms. Hogan, the Warren County district attorney, said that allowing a sweeping challenge would bring chaos by encouraging thousands of defendants to claim their lawyers were inadequate and their convictions should be overturned.

But Corey Stoughton of the Civil Liberties Union, the lead lawyer in the case, said defense programs were chronically starved of money for decades because officials in every branch of government never made the adequate representation of indigents a political priority.

Because of the poor quality of representation, innocent people are convicted and defendants routinely face pressure to plead guilty, Ms. Stoughton said.

“The case-by-case method fails,” she said. “The political method fails. For decades, the State of New York has been on notice that the public defense system is in crisis and fails to meet basic constitutional responsibilities.”

She said the case was a priority of the state’s Civil Liberties Union that could go on for years.

Gov. David A. Paterson has recognized there are problems in the current system and has proposed legislation that would create an Office of Indigent Defense to evaluate the system. The bill would also provide a modest $7 million increase in state subsidies.

Last year, the Legislature passed a law intended to limit defenders’ caseloads in New York City, where on average Legal Aid lawyers each handle more than 700 cases a year. But it is not clear that adequate financing will be provided.

The society’s attorney in chief, Steven Banks, said the suit could be important in the city in providing a meaningful way to force the government to meet what he said were the requirements of the Gideon v. Wainwright decision.

Mr. Banks said the Hurell-Harring case raised a clear question for the courts — “whether Gideon and the right to counsel has meaning or not.”

Around the country, some lawyers have said they detect a concerted strategy by civil liberties lawyers to challenge public defender systems. If so, that may be due largely to the efforts of Robin L. Dahlberg, a senior staff attorney at the American Civil Liberties Union in New York. Ms. Dahlberg has been working on the issue since the mid-1990s, developing what she described as a model for such cases.

“There is a recognition among national groups,” she said in an interview, “that where all other efforts to reform a system have failed, litigation may be the only alternative.”

Should Iraqi and Afghanistan vets get reduced sentences

How do you feel about giving vets of the Iraqi and Afghanistan wars a break when they commit a crime?

March 15, 2010

Defendants Fresh From War Find Service Counts in Court

By JOHN SCHWARTZ

CHARLESTON, W.Va. — When Judge Robert C. Chambers handed down Timothy Oldani’s federal sentence for selling stolen military equipment on eBay, he gave the former Marine a break.

In Iraq, Mr. Oldani had performed the jangling work of detonating improvised explosive devices and had seen six of his fellow Marines burned alive in an armored vehicle. He left the service with traumatic brain injury and post-traumatic stress syndrome that, the judge concluded, had clouded his judgment. Under federal sentencing guidelines, the prison term could have been nearly five years; Judge Chambers decided on just five months, with three years of supervised release and treatment.

Many veterans like Mr. Oldani have returned from Afghanistan and Iraq burdened by post-traumatic stress, drug dependency and other problems. As veterans find themselves skirmishing with the law, judges are increasingly finding ways to provide them with a measure of leniency.

“More and more courts are noticing and asserting, in a variety of ways, that there seems to be some relevance to military service, or history of wartime service, to our country,” said Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing.

At the federal level, judges are bucking guidelines that focus more on the nature of the crime than on the qualities of the person who committed it. States, too, are forming special courts to ensure that veterans in court receive the treatment their service entitles them to.

While veterans are not considered to be more likely to be arrested than the rest of the population, estimates released by the Bureau of Justice Statistics in 2008 found 229,000 veterans in local jails and state and federal prisons, with 400,000 on probation and 75,000 on parole.

There are about 1 million veterans of the two current wars in the Veterans Affairs system so far, said Jim McGuire, a health care administrator at the agency. He cited statistics suggesting that 27 percent of active-duty veterans returning to civilian life “were at risk for mental health problems” including post-traumatic stress syndrome.

Judges have recognized that many of those returning from war are carrying a heavy burden of damage that might not be physically visible. As one federal district judge in Denver, John L. Kane, wrote in an order giving a defendant probation instead of a prison sentence, the soldier “returned from the war, but never really came home.”

The judges’ decisions are part of a broader fight over sentencing, and over once-rigid federal guidelines that tend to punish the crime while giving little weight to the specific circumstances of the defendant. The guidelines explicitly state that “good works” like military service “are not ordinarily relevant” in determining whether to give sentences below the recommended range.

The Supreme Court, however, in a series of cases, has declared that the federal sentencing guidelines are advisory, not mandatory. The United States Sentencing Commission is considering proposals that would allow military service or other evidence of “prior good works” to be considered as mitigating factors in sentencing decisions.

The Supreme Court seemed to signal greater consideration for military service in a decision in November throwing out the death penalty for a Korean War veteran who was convicted in 1987 of murdering his former girlfriend and her boyfriend. Calling for a new sentencing hearing, the justices wrote that lawyers for the defendant, George Porter Jr., should have presented evidence of “the intense stress and emotional toll that combat took” on Mr. Porter, who suffered from “dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”

In Mr. Oldani’s case, his lawyer, Christian M. Capece, an assistant federal public defender in Charleston, said something about Mr. Oldani struck him at their first meeting. When Mr. Capece mentioned that he, too, had served in the Marines, he expected the usual warm response: Where did you serve? Did you see combat? Instead, Mr. Capece said, “there was nothing from him.”

Mr. Oldani spoke with what clinicians call flat affect — an absence of emotion or change in tone — and to Mr. Capece, it seemed clear that “this kid was really messed up by his experiences out there.”

Mr. Oldani, 25, pleaded guilty last year to selling night vision equipment stolen from a base in Georgia by his brother, and prosecutors wrote in their sentencing memorandum that he “committed a serious crime and he merits serious punishment.” Judge Chambers, however, citing the evidence of the effects of the war on Mr. Oldani, concluded that “the personal characteristics of the defendant warrant a sentence lower than the guideline range.”

Judge Kane faced a similar choice when he opted for the sentence of probation for John Brownfield Jr., a former Air Force firefighter from Cañon City, Colo., who admitted accepting a bribe for smuggling tobacco into a prison while working as a corrections officer. In a 30-page sentencing memorandum, the judge cited Mr. Brownfield’s experiences in Iraq and Afghanistan, which included dealing with gravely wounded soldiers and civilians, and wrote that with so many members of the military returning with serious mental health issues, “we are now, in a manner of speaking, charting unknown waters.”

At the state level, special courts to deal with the problems of veterans are being formed across the nation, modeled on the special courts to deal with drug and mental health issues. Twenty-one veterans courts are in operation, said West Huddleston, the chief executive officer of the National Association of Drug Court Professionals.

The first such court, in Buffalo, has handled about 130 cases, said Judge Robert T. Russell Jr., who created it in 2008.

New York kicked off a statewide program last year; Judge Judy Harris Kluger, chief of policy and planning for the state court system, said veterans “may have a unique set of issues that we try to help them with.”

Mr. Huddleston praised court programs that connect veterans with treatment, but added, “We should not be mitigating an offender’s case or disposition just because they are a veteran,” which he suggested “doesn’t make sense from a constitutional perspective.”

Professor Berman agreed that automatic deference to veterans could raise issues of equal protection, but “nobody is yet really talking about military service as a get-out-of-jail-free card.”

In fact, some of the new court programs have been carefully devised to avoid the appearance of blanket leniency. “People were concerned veterans were going to get an unfair advantage,” said Jack B. Zimmermann, a military law specialist who helped Texas shape a new pilot program. Defendants enter the Texas program, Mr. Zimmermann noted, only if the judge and prosecutor agree.

“These men and women have served their country and have been injured,” he said. “We as a society have an obligation to treat them.”