Amnesty to Adjudicate Old Warrants Works

Do you think this might be a good idea to expand to

other places? What effect would you predict the

combination of the sure, swift, punishment for

probation violators and this type of amnesty might

have for society?

New York Times

November 6, 2009

A Fresh Start for Some Under Threat of Arrest

By NATE SCHWEBER

NEWARK — Outside the Bethel Baptist Church on Market Street, men and women formed a line that stretched around the block, waiting for a chance at absolution.

But it was not a matter of the soul that concerned them on Thursday; their issues were more temporal: All had warrants seeking their arrest, and they were turning themselves in beneath a cloak of leniency.

Under a program called Fugitive Safe Surrender, which promises favorable consideration — though not amnesty — for those with open warrants for nonviolent crimes, nearly 1,000 people surrendered on Wednesday and Thursday, the first two days of the four-day program here.

Once in the church, people sat on chairs in rows in a basement gym, snacking on peanut butter sandwiches donated by a synagogue, while teams of officers consulted computers for warrants that in some cases were more than 20 years old.

After the computer check, the fugitives walked one block to a community center, where their cases were adjudicated in makeshift courtrooms.

Sitting at a table in the community center, Michael Brown, 43, explained to a judge why he had decided to settle a warrant for his arrest for failure to pay child support.

“I can’t get a driver’s license because of this warrant, and I drive a truck for a living,” said Mr. Brown, a father of two who lives in Newark and owes more than $25,000 in back child support. “I can’t pay if I can’t work.”

Judge Thomas P. Zampino of New Jersey Superior Court characterized Mr. Brown’s rationale as “very fair.” He lifted the warrant, but scheduled another court date in January for Mr. Brown to set up a payment plan.

Fugitive Safe Surrender, which is administered by the United States Marshals Service, was introduced in New Jersey last year in Camden. In just a few days, 2,245 people turned themselves in, clearing 7,000 warrants from the books. Organizers noted that during the Camden event, more people turned themselves in each day as word about the program spread. Officials in Newark expect the same thing to happen this year during the program, which runs through Saturday.

Theodore J. Romankow, the Union County prosecutor, said the program gives people a second chance.

“We’re talking about people who are not involved in violent crimes, people who have made mistakes and are trying to repair them,” he said. “This is more rewarding for everyone than bringing them in handcuffs.”

Latoya McQueen, 34, brought along her son Nazir Thomas, 4, while she dealt with a 12-year-old warrant for a traffic violation. She, too, wanted to get her license back so she could stop bumming rides to her job as a nursing assistant two counties away.

“That is the glory I’m looking forward to at the end of this day,” she said.

Others, like Roland Richards, hoped to refinance debts. Mr. Richards, who owes $34,000 in back child support payments, said that in 2001 his outstanding warrants landed him in jail for nine days after a routine traffic stop. The stint cost him his job as a maintenance worker on Wall Street. Because criminal background checks show that he is a fugitive, he has struggled to hold down steady work.

“It’s been 25 years of madness,” said Mr. Richards. “I’m trying to clean my life up.”

So far, officials have noticed that a higher proportion of men who owe child support are turning themselves in this year compared with last year, said James T. Plousis, the United States marshal for New Jersey.

He said that the program cost $100,000, which he estimated as a fifth of the cost of law enforcement tracking down each person with a nonviolent felony warrant. Mr. Plousis added that the program has the benefit of potentially keeping officers out of harm’s way; of 133 police officers killed in the line of duty in the United States last year, Mr. Plousis said, 10 died serving warrants for nonviolent offenses.

Florencio Rivera, 34, of Newark, was overjoyed at successfully reducing a $1,500 tab — owed for two parking tickets, an open alcohol container citation, and a ticket for driving an unregistered vehicle — to 1 percent of what he owed. When he emerged from the courtroom, he raved into his cellphone, imploring his friends to also turn themselves in.

“Could you believe after all my tickets it got cut to just $15?” he said. “Only problem is, I don’t have $15 right now.”

Copyright 2009 The New York Times Company

Another young killer

This was copied from the Findlaw blog (http://blogs.findlaw.com/blotter/2009/11/teen-admits-to-kiling-boy-put-in-dryer.htm)

Teen Killed Boy and Put Him in Dryer, He Says

By Kamika Dunlap on November 5, 2009 10:05 AM | No TrackBacks

A 14-year-old boy from Central Valley California faces charges as an adult for killing 4-year-old Alex Christopher Mercado and stuffing him in a dryer.

The Associated Press reports that Raul Renato Castro told investigators he drowned Alex Christopher Mercado, his 4-year-old neighbor, in a bathtub then hid the murdered boy in a dryer because the child was going to reveal the teen molested him, according to an affidavit released when he appeared in court Wednesday.

Castro faces a first-degree murder and four special allegations associated with that charge -- that it was committed along with child molestation, sodomy, kidnapping and in order to silence a witness. he also faces separate felony charges of kidnapping, sodomy and child molestation.

According to the affidavit, Castro told police he enticed the boy into his house across the street and sodomized him. The document also says Castro killed him after the boy fell and hit his head, started crying and threatened to tell his mother.

That's when Castro panicked and drowned the boy in the bathtub, the affidavit says.

District Attorney Elizabeth A. Egan said in a statement Tuesday that her department was charging Castro as an adult, using a California law that gives prosecutors the discretion to try offenders as young as 14 as adults.

Egan's office referred to the law in the case of 15-year-old Bethany Clark of Fresno. Prosecutors say she lured her friend to a remote area, where he was carjacked and killed by two men.

Clark was charged in 2007 with murder in connection with the death of the victim. This year, she was sentenced to nine years in prison after she pleaded guilty to carjacking and testified against the two men who killed the victim. The two men were also convicted.

Under California law, a youth offender cannot face the death penalty or life in prison without parole.

However, Castro if convicted, could face up to 47 years to life in prison.

The law says suspects 14 and older can be charged and tried as adults.

About 20 percent of murders in California are committed by youth between the ages of 11 and 17.

Raul Renato Castro's mother said in a phone interview she hasn't slept or eaten well since the murdered boy was discovered dead in the dryer of her home.

"It's like one big nightmare," said Elsa Castro.

"I'll never understand why he did it," she said. "He's a good boy who has never been in trouble."

Copied from http://blogs.findlaw.com/blotter/2009/11/teen-admits-to-kiling-boy-put-in-dryer.htm

Should California revisit their law when there is a juvenile sex offender and young child victim?

Pre-Trial Prosecutorial Immunity and Subpar Defense

November 5, 2009

Justices, in Aftermath of 2 Murder Cases, Hear Claims of a Process Gone Wrong

By ADAM LIPTAK

WASHINGTON — The Supreme Court heard arguments Wednesday in two cases involving claims that the criminal justice system had gone badly awry.

In one, Iowa prosecutors are accused of fabricating evidence that sent two innocent men to life imprisonment for murder. In the other, an Alabama prisoner attributed his death sentence to an appointed defense lawyer’s failure to present evidence at the sentencing phase of his trial.

In the Iowa case, Curtis W. McGhee Jr. and Terry J. Harrington, having spent 25 years in prison, were freed after the Iowa Supreme Court’s determination in 2003 that the main witness against them was “a liar and a perjurer.”

The two men then sued Joseph Hrvol and David Richter, prosecutors in Pottawattamie County, accusing them of coaching and coercing the witness into providing false testimony. For purposes of their appeal to the Supreme Court from a lower court ruling allowing the suit to go forward, the prosecutors accepted the truth of the accusations against them and argued instead that they were entitled to complete immunity from being sued.

It is well established that prosecutors cannot be sued for anything they do during trial, including knowingly submitting false evidence. The question in the Iowa case, Pottawattamie County v. McGhee, No. 08-1065, is whether that immunity extends to prosecutors’ pretrial conduct.

Stephen S. Sanders, a lawyer for the Iowa prosecutors, acknowledged that police officers can be sued for fabricating evidence later used to obtain a conviction. So too, Mr. Sanders said, can prosecutors who had nothing to do with presenting the fabricated evidence at trial. But trial prosecutors, he said, should enjoy complete immunity for anything they do before or during trial.

Justice Anthony M. Kennedy, who is often the swing vote in cases concerning the scope of the Constitution’s due process clause, appeared troubled by the distinction.

“So the law is, the more deeply you’re involved in the wrong, the more likely you are to be immune?” Justice Kennedy said. “That’s a strange proposition.”

Neal K. Katyal, a deputy solicitor general, argued for the federal government in support of the state prosecutors. Mr. Katyal said that even in the case of police officers, they could be sued only if they had duped prosecutors into using fake evidence. There is no constitutional violation, he said, if the police and the prosecution are acting in concert, because the prosecutors’ absolute immunity would apply to the police as well.

“Again,” Justice Kennedy said, “the more aggravated the tort, the greater the immunity.”

Justices Sonia Sotomayor and Samuel A. Alito Jr., both former prosecutors, expressed differing concerns about the effect that various possible rulings would have on future prosecutions.

Justice Sotomayor noted that “neither of the two prosecutors in this case were sanctioned in any way for their conduct,” and said studies showed that professional discipline or other punishment for prosecutorial misconduct was rare. She seemed to suggest that civil lawsuits had a role to play in addressing such misconduct.

Justice Alito said allowing suits for prosecutors’ pretrial activities would undermine their trial immunity, because it is easy for plaintiffs to allege wrongdoing. He added that prosecutors often played a valuable role in assisting the police during investigations, one that might be chilled if prosecutors feared potential liability.

Paul D. Clement, solicitor general in the Bush administration, represented the freed prisoners. “I can’t think of a single reason,” Mr. Clement said, “why the only reason a prosecutor would get absolute immunity is if they not only participated in the pretrial misconduct but completed the scheme by committing further misconduct at trial.”

The Alabama case, Wood v. Allen, No. 08-9156, arose from the appointment of a lawyer who was less than a year out of law school to help defend Holly Wood, convicted in 1994 of murdering his former girlfriend. The lawyer, Kenneth B. Trotter, failed to pursue or present evidence that Mr. Wood was mentally retarded, though he had a competency report in hand that said as much.

Wednesday’s argument in the case was almost entirely concerned with a 1996 law that limits the claims federal courts can hear from death row inmates.

“It is just repetitive, and it gets people mixed up,” Justice Stephen G. Breyer said of two seemingly duplicative provisions of the law, the Antiterrorism and Effective Death Penalty Act.

Justice Kennedy was also frustrated. “So I have a choice of something that is counterintuitive or superfluous,” he said, “and I don’t know which one to take.”

Various solutions were proposed about how to harmonize the two provisions, but they seemed only to complicate matters further.

Adopting one of those solutions, Justice Breyer said, would lead to confusion and litigation in equal measures. “There will only be four professors in the country who understand which is which,” he said, “and they will each say different things.”

It was not clear, though, that any answer to the question of how to read the dueling provisions would be of help to Mr. Wood.

Some justices said his best argument, under yet a third provision of the law, was not properly before the court. Others said Mr. Wood would have been no better off had his defense worked harder.

Justice Antonin Scalia said the defense had made a smart choice in deciding not to present evidence concerning Mr. Wood’s apparent mental retardation.

“There was nothing here that was going to help them,” Justice Scalia said, “and there might be stuff that would hurt them.”

Copyright 2009 The New York Times Company

Bentham's Ideas Working in Hawaii

Bentham claimed that punishment needed to be

swift, sure, and certain to act as a deterrent. In

this article, the author explains how a Hawaiian judge

puts theory into practice with probationers and

parolees and has amazing success.

Steven Alm was no courtroom novice when he started

handling felony cases as a circuit judge in Hawaii. He’d

already been a judge for three years, and U.S. Attorney

for seven years before that. But in his very first week

handling a felony docket, he noticed something that

surprised him. It wasn’t the nature of the felony offenses—

he was prepared for that. It was the way the system dealt

with probationers: offenders who had been placed under

court supervision rather than being incarcerated.

Probationers were supposed to be amenable to correction.

Yet Alm was reading motions that consisted of page after

page of violations: 10 or more missed appointments,

dirty drug tests, failure to show up for treatment. In most cases,

all this misbehavior had essentially been ignored. Yet now,

all of a sudden, he was being asked to send the violator to

prison for five, 10 or even 20 years.

‘‘This is absolutely a crazy way to try to change anyone’s behavior,”

Alm thought to himself. So he tried an experiment. In place of the

existing practice, he proposed a kind of correctional time-out—brief

but immediate punishment. Anybody found violating any term

of his probation would be returned to a jail cell for a few days.

Some 34 probationers were placed under Alm’s supervision.

Eighteen were sex offenders; the others were chronic transgressors

who had been on probation for a variety of felony offenses.

Many had substance-abuse problems: About 40 percent

routinely failed even pre-scheduled drug tests.

That was five years ago. Today, Alm’s initiative, known as Hawaii

Opportunity Probation with Enforcement (HOPE), encompasses

nearly 1,500 of the roughly 8,000 probationers on Oahu. With very

little dedicated public funding, it has achieved extraordinary results:

It claims an 80 percent reduction in missed appointments,

an 86 percent reduction in the incidence of drug use and,

based on the best current estimates, a 50 percent reduction

in recidivism. A randomized evaluation of the program, slated

to appear later this year, is expected to show similar results.

Public-safety experts are hailing HOPE—and the ideas behind it—

as something that could transform the American criminal justice system.

Probation is the forgotten stepchild of the criminal justice system. It’s the

sanction judges use when they don’t want to send someone to jail.

Nationwide, more than 4.2 million people are on probation,

compared with 2.3 million people behind bars. Just over half

the probationers (51 percent) are there for a misdemeanor offense.

Most of the rest are felons. Probation shouldn’t be confused with

parole, which is court supervision following a prison term.

Parolees are a much smaller group: fewer than 1 million nationwide.

Judge Alm noticed immediately, and more recent studies have confirmed,

is that the threat of future punishment employed by the probation

system and most drug courts was ineffective.

In Judge Alm’s court, the swift and certain consequence was jail—

only for a short time, but right then and there. If a probationer

came in on a Friday and failed a test, he could be locked up

by nightfall. If that meant missing a child’s birthday or

graduation two days later, so be it.

Since drug use is a major problem, funds were obtained to

create a drug hotline. Each probationer has number and must

dial in each day. In a random pattern a probationer is told to

go in for a drug test that day. Research shows that for 80% of

probationers it is working to keep them from using.

With such good results, the question of why it is not emulated

in all the states is hard to answer.

Attention Deficit and Adult Crime Linked

Yale University issued the following news release:

Research Identifies Link Between Childhood ADHD And Adult Crime

Schoolchildren with attention deficit/hyperactivity disorder are
substantially more likely to engage in many types of criminal activity
such as burglary, theft and drug dealing as they grow older, a new study
by the Yale School of Public Health has found.

The research was published in The Journal of Mental Health Policy and
Economics.

An analysis of more than 10,000 adolescents who were later surveyed as
young adults found that children with ADHD were twice as likely to
commit theft later in life and had a 50 percent higher incidence of
selling drugs.
The research results are believed to be the first evidence of a link
between illegal activity and the childhood condition commonly known as
ADHD that uses a national sample of individuals.

Authors Jason M. Fletcher, assistant professor at the school, and
Barbara Wolfe of the University of Wisconsin-Madison say the findings
suggest that children exhibiting ADHD symptoms should be viewed as an at-
risk group and that intervention programs might be appropriate.

Researchers estimate that crimes where ADHD is a factor cost society $2
billion to $4 billion annually. "While much research has shown links between

ADHD and short-term educational outcomes, this research suggests significant

longer-term consequences in other domains, such as criminal activities," said
Fletcher, the study's lead author.

He added, "We also found important differences in the association
between adult crime and the type of childhood ADHD symptoms-whether
hyperactive or inattentive or both."

It is estimated that ADHD affects between 2 percent to 10 percent of
schoolchildren in the United States. The condition is far more prevalent

in males than females and is much higher among close relatives than

in the general population, suggesting a genetic origin.
Treatment for ADHD, meanwhile, has increased sharply over the past 20
years with pharmaceuticals, such as Ritalin, now commonly used.

Fletcher said the link between ADHD and criminal activity will be
further investigated by examining whether pharmacological treatments may
reduce the risk of illegal activities as an adult. He is also
investigating the relationships between childhood ADHD symptoms and
labor market outcomes, such as employment and earnings.

Texting while Driving equals Jail time in England

---

November 2, 2009

DRIVEN TO DISTRACTION

When Texting Kills, Britain Offers Path to Prison

By ELISABETH ROSENTHAL

OXFORD, England — Inside the imposing British Crown Court here, Phillipa Curtis, 22, and her parents cried as she was remanded for 21 months to a high-security women’s prison, for killing someone much like herself. The victim was Victoria McBryde, an up-and-coming university-trained fashion designer.

Ms. Curtis had plowed her Peugeot into the rear end of Ms. McBryde’s neon yellow Fiat, which had broken down on the A40 Motorway, killing Ms. McBryde, 24, instantly.

The crash might once have been written off as a tragic accident. Ms. Curtis’s alcohol level was zero. But her phone, which had flown onto the road and was handed to the police by a witness, told a story that — under new British sentencing guidelines — would send its owner to jail.

In the hour before the crash, she had exchanged nearly two dozen messages with at least five friends, most concerning her encounter with a celebrity singer she had served at the restaurant where she worked.

They are filled with the mangled spellings and abbreviations that typify the new lingua franca of the young. “LOL did you sing to her?” a friend asks. Ms. Curtis replies by typing in an expletive and adding, “I sang the wrong song.” A last incoming message, never opened, came in seconds before the accident.

With that as evidence, Ms. Curtis was sentenced in February under 2008 British government directives that regard prolonged texting as a serious aggravating factor in “death by dangerous driving” — just like drinking — and generally recommend four to seven years in prison.

The case reveals the tensions that arise when law enforcement and the courts begin to crack down on a dangerous habit that has become widespread and socially acceptable. Is texting while driving bad judgment, or a heinous crime? And what is the appropriate punishment?

Upon hearing the sentence, prosecutors — backed by the police and Ms. McBryde’s mother — quickly appealed to Britain’s highest court for a longer prison term, calling 21 months “unduly lenient.”

“She came across as a lovely young girl, and I’m sure it wasn’t a nice feeling for the judge to send someone like this to prison — but someone is dead because of a text message,” said Bill Sykes, the officer who responded to the crash and led the subsequent investigation.

But many young people, among them the dead woman’s own siblings and friends, disagreed, sympathizing also with Phillipa Curtis. “I think Phillipa’s sentence was long enough, as she seemed like such a normal girl,” said Gemma Pancoust, the victim’s cousin and close friend, with whom she liked to sing karaoke to Dolly Parton’s “9 to 5.” “Until Tory’s death I texted while driving, as have most people. I don’t think she realized the danger she was causing.”

Indeed, the victim herself had sent a text message and talked on her cellphone (using the speaker function) while driving before her car broke down, according to the testimony of a friend with whom she had the 20-minute phone conversation. It is illegal in Britain to use a hand-held phone while driving, and drivers using hands-free phones may be fined if they are deemed not in control of the vehicle.

Although most European countries and a minority of American states now ban the use of hand-held cellphones while driving, Britain has become one of the more aggressive countries in attacking the problem, according to Ellen Townsend, policy director for the European Transit Safety Council, which advises the European Commission.

Britain’s new guidelines state that using a hand-held phone when causing a death will “always make the offense more serious” in terms of punishment and lead to prison time. Texting is given special treatment.

Ms. Curtis was found guilty and sent to prison even though she was not texting at the time of the accident, because the new guidelines regard “reading or composing text messages over a period of time” as “a gross avoidable distraction.” Its effect, British judges have ruled, may go beyond the moment of composing a message. Such behavior is categorized the same as driving while drunk or high on drugs, as well as racing another driver.

On the night of Nov. 20, 2007, the victim, Ms. McBryde, was on her way to visit a friend when she got a flat tire at night on the highway.

She pulled to the edge of the road, two lanes in each direction, but because there was no shoulder where her car broke down, part of the vehicle extended into the outer lane. When the towing service she called could not respond, she was frightened and called her mother, Jennifer Ford, who said she would call the Automobile Club again.

In the meantime, Ms. Ford told her daughter to make sure the flashers were on and that she was pulled off the road. “She was like, ‘Mom, of course I did these things,’ ” Ms. Ford recalled in an interview.

When she called her daughter back 20 minutes later, no one answered. By that time Victoria McBryde was dead.

Police photos show an impossibly crumpled car. The belongings of its owner, a pet lover who designed wild outfits and paraphernalia for pets, were strewn about: bright pink scarves, a brown shearling coat, red gloves, a tangle of leopard skin print.

In court, the case centered on the fact that Ms. Curtis had made no effort to brake or swerve to avoid the disabled Fiat. She testified that she had never seen the other car, though road studies performed by the police demonstrated that it should have been visible from about 300 yards back on the highway.

Ms. Curtis said she believed she could drive and text at the same time, saying that she did not have to look at the keyboard or the screen to have a conversation. Like many phones, hers had predictive text — the phone would fix spelling and find the right word if she typed in a rough approximation.

“I don’t think I should be chatting away while maneuvering roundabouts,” she said in testimony, adding that she would probably have slowed down while composing messages and that texting while driving might be safe “in the right conditions.”

The police disagreed. “How could she not see it, given that the night was clear and the car’s lights were on?” Mr. Sykes said. “She was clearly distracted.”

During the trial, the lawyer who defended Ms. Curtis, Richard Latham, proved that Ms. Curtis was not sending a message in the moments before the crash. But a new text message had arrived just seconds before she plowed into the Fiat. And prosecutors contended that, in light of the long preceding text message conversation, the ping of the incoming message distracted her so that she did not notice Ms. McBryde’s disabled car.

Although cellphone records showed that the message was never opened, prosecutors said she was unable to resist trying to do so. “Since she had read all messages before, she was probably looking to read this one, too,” Mr. Sykes said.

The jury deliberated only 50 minutes before returning a guilty verdict. Ms. Curtis and her family did not respond to requests for an interview through her lawyer.

The lord chief justice of England and Wales, Lloyd Jones, heard the appeal to extend the 21-month prison term. While concluding that the punishment was “lenient” and “arguably it was unduly so,” he declined.

He cited Ms. Curtis’s “positive good character” as well as her “genuine remorse” over the collision. Equally important, he said, she had already been assigned a release date from prison, making an extension cruel. But in an impassioned decision he also made it clear that the courts are now poised to take this crime seriously.

Victoria McBryde’s family, which used to celebrate holidays in their rural home with huge meals and Christmas trees they had cut themselves, has struggled. Her mother, who moved out of the family house, now lives in a shared home in Northampton and from a nearby Internet cafe wages a campaign for tougher laws.

Ms. Pancoust still posts loving messages to her dead cousin on her Facebook page. But she no longer sends texts while driving. By e-mail message, she added: “It’s sad as you have people out there who think they are invincible and things like that don’t happen to them. But it does.”

Copyright 2009 The New York Times Company

Can we educate bystanders to react?

This article appears in Newsweek and is worthy of consideration.

There are groups of educators who believe that only by teaching

and conditioning responses from bystanders will those who watched

the recent rape of a 15-year old or those who heard cries for help

from Kitty Genovese decades ago have different outcomes.

The Mentors in Violence Prevention is one group which utilizes role

playing in a variety of possible responses to hypothetical situations.

The MVP program has evolved into the Green Spot program which

is being used by schools and universities across the country.

Research is being conducted to test, or attempt to test, the results of

the training when real-life situations are encountered. Because the

choices taught include delegating action to another, teen-age reticience

to "tell" may be overcome; delegation can be simply texting another

to ask them to call 911 or whatever action is needed.

But all of us need to be aware that if we witness something wrong, we

have a responsibility to take some action, passive or active as the case

may be. As parents we need to be educating our children about their

responsibilities and actions as well