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September 10, 2012

"The Media's Reporting On Justice Is Criminal"

The title of this post is the headline of this extended recent commentary by (former judge, now professor) Nancy Gertner. Here are excerpts:

There is a canned, formulaic newspaper story about any criminal case.  It can be repeated in every prosecution, no matter what the crime, no matter who the defendant.

Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number).  The prosecutor argued for 10 (or higher than the number the judge gave).  The victim’s family is appalled.  When interviewed, they stridently proclaim their outrage at the judge.  The press then echoes that sentiment.

All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded.  So when the judge sentences the defendant to less, they cry foul. Another lenient judge!  Another liberal!  Another blow against the “tough on crime” mentality!

Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers — five, 10, 15, 20 — without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless.

They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime.  They don’t consider alternative approaches.  They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration....

We lead the world in imprisonment not just by a little — but by several orders of magnitude.  Our nearest competitors are Rwanda and China, hardly good company.  And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents.  This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000)....

Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences.  When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence?  The answer is never.

And, to a shocking degree, the prosecutor is picking numbers out of the air.  Twenty years ago, we considered five years a very long sentence.  In most European countries that is still the case.  But now, in the United States, we increase sentences by fives.  It’s like a betting game.  Five does not send a message if it is what the defense lawyer wants.  OK, I’ll raise you five more.  Why five?  Why not 10?...

To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences.  They are beginning to notice the disproportionate sentences for African Americans and Hispanics.  And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective.

But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) — not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate.

September 10, 2012 at 11:17 PM | Permalink

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The biggest story missed is that of the criminal cult enterprise that has taken control of the three branches of government. It is in total failure save for the seeking of the rent.

Posted by: Supremacy Claus | Sep 11, 2012 6:46:01 AM

We need wise, reasoned, even-handed folks like her on the bench . . . er, back on the bench.

Posted by: alan chaset | Sep 11, 2012 9:12:26 AM

"They don’t consider alternative approaches... whether drug treatment programs in certain instances will work better than incarceration...."

Kidding..just kidding you must be. That is all one hears, at the jail, at the court, in the NY Times, on the blog: drug court, boot camp, rehab., alternative sentences, blah, blah, uhah.

Columnists? How about Krugman, Friedman, Klein, Raspberry, Liptak, Lamont-Hill, Doud?
Need more?

Posted by: Adamakis | Sep 11, 2012 9:39:33 AM

// "a sentence that was too high… without any relationship to what works to deter crime…
// They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime.
// They don’t consider alternative approaches. They don’t evaluate recidivism" \\

Not so fast…
"IndianaOffenderStudy120905.pdf "--http://www.crimeandconsequences.com/crimblog/9/7/12 {check p44 for "racism"}

1). "A study of low-level offenders in Indiana prisons show most are repeat offenders with multiple past convictions and failed attempts at community-based supervision programs."

2) "Advocates of the plan argued that low-level offenders, especially those accused of theft and drug crimes, are taking up space that should be used for more serious offenders. But prosecutors said the study shows that the class D felons who are behind bars are there for a reason: Because alternatives to prison have failed."

3) "Prosecutors had been blamed for derailing sentencing reform legislation in 2011"


--- "The results of this are very surprising to me," said State Sen. Greg Taylor, an Indianapolis Democrat who sits on the legislative Criminal Code Evaluation Commission. "It seems prosecutors don't want to send people to the DOC"

Posted by: Adamakis | Sep 11, 2012 9:53:47 AM

alan --

"We need wise, reasoned, even-handed folks like her on the bench . . . er, back on the bench."

Even-handed??? C'mon, Alan, she was widely and correctly regarded as one of the most pro-defendant, if not THE most pro-defendant, district judge out there.

Posted by: Bill Otis | Sep 11, 2012 9:58:59 AM

Here's the problem with dug treatment in the criminal justice context: The strongest variable for long successful long-term sobriety is internal motivation.

You can't order people to have it.

Believe it or not folks, the vast majority of people who achieve long-term sobriety do so on their own without the benefit of formal treatment. A good read on the issue with lots of data:

http://www.amazon.com/Addiction-Disorder-Gene-M-Heyman/dp/0674032985

Posted by: Steve Erickson | Sep 11, 2012 10:13:21 AM

Adamkis, you clearly didn't read the final two paragraphs from the excerpt. Columnists and reporters frequently discuss systemic issues, but Gertner is correct that "those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) — not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate."

I'd add that this blog often does the same thing, e.g. in coverage of the Norwegian mass murderer, Lindsay Lohan, DWI cases, etc.. The standard framing, whatever the individual case (and despite contrary 'structural' analyses) nearly always takes the actual sentence as a floor and asks "why wasn't the sentence harsher?"

Posted by: Gritsforbreakfast | Sep 11, 2012 10:33:06 AM

Adamkis, showing that the majority of prisoners in a jail are repeat offenders is not a bad thing. It's like going into a hospital morgue, declaring that 100% of the patients you find there are dead, and concluding that doctors always fail. You need to look at the number of people convicted vs. the number of people that are in jail. Alternatives to imprisonment will not work all the time and it's expected that some people will become repeat offenders. How close to all the time they work is what we care about.

Posted by: NickS | Sep 11, 2012 1:05:16 PM

Red-eye Grits:
Yes the press is sensational, e.g., L. Lohan, DWI, and also, overwhelmingly liberally
biased, e.g.: "The Gallup survey found that 40 percent of Americans consider
themselves conservative...21 percent see themselves as liberal. The figures did not change from 2010." (1/12/12);in the 2007 Pew Research Center survey of 585 journalists,
32% considered themselves liberal, 8% considered themselves conservative.

The American people are significantly more conservative by massive proportion.

Perhaps because you share their unrepresentative inclination, you are not bothered to find this germane?

The American people appear to prefer harsher penalties than even the "[anti-]liberal" "newspaper", "columnist", et al which Judge Gertner invents.

Thank goodness, in the arena of general newspaper crime reporting of "individual cases", there are sufficiently juicy/engaging facts to marginalise biases, though playing to the sensational is frequent.

Why should they "discuss systematic issues" and spin accordingly? Maybe you and Gertner ought avoid TMZ & Entertainment Tonight (unless Obama is to be on air for a 'tough' interview).
To feed your bias, just continue to imbibe the rarefied air of the liberal echo chamber.

Posted by: Adamakis | Sep 11, 2012 1:41:16 PM

"rarely reflected…[is] the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate."

There is not a lack of relationship, but a closely correlated one; this is why honest people shy from denying it.

Posted by: Adamakis | Sep 11, 2012 1:47:43 PM

No, it's like going into the crime scene of a fatal DWAI car accident involving a pot-stoned driver, "and concluding that anyone-other-than-he failed."

Posted by: Adamakis | Sep 11, 2012 1:59:07 PM

After giving her outraged rendition of how crime reporting goes, Gertner says this: "Never do you see the opposite: a columnist decrying a sentence that was too high..."

That's just an outright lie. You see it all the time. All you have to do is read this blog for a few weeks and you'll see Doug put up post after post linking one column, op-ed, alleged "story" or some such thing decrying, not merely that Sentence X was too high, but that whole categories of sentences (e.g., any death sentence) was too high.

It's amazing that Gertner could write such patently false nonsense -- amazing, that is, until you understand that she started her career as an ideologically driven defense lawyer. Then her lying becomes perfectly understandable.

Posted by: Bill Otis | Sep 11, 2012 4:22:01 PM

The dishonest, ideological garbage Soren by Gertner since she left the bench confirms one thing: she never should have been a judge in the first place.

Posted by: Sorry | Sep 11, 2012 6:08:53 PM

The conservatives doth protest too much, methinks" in this thread. What do all of these links have in common? They all argue that tough-on-crime conservatives hijacked the victims' rights movement to their own ends. Indeed, there is no more effective way to crush the due process liberals that McCoy discusses than to lock the accused up and throw away the key. It worked. But people are starting to squint their eyes open a little.

Victims' Rights and the Struggle over Crime in the Media by Carrie A. Rentschler. She alsow has a book: Second Wounds: Victims’ Rights and the Media in the U.S.

Book Description
Publication Date: March 25, 2011
The U.S. victims’ rights movement has transformed the way that violent crime is understood and represented in the United States. It has expanded the concept of victimhood to include family members and others close to direct victims, and it has argued that these secondary victims may be further traumatized through their encounters with insensitive journalists and the cold, impersonal nature of the criminal justice system. This concept of extended victimization has come to dominate representations of crime and the American criminal justice system. In Second Wounds, Carrie A. Rentschler examines how the victims’ rights movement brought about such a marked shift in how Americans define and portray crime. Analyzing the movement’s effective mobilization of activist networks and its implementation of media strategies, she interprets texts such as press kits, online victim memorials, and training materials for victims’ advocates and journalists. Rentschler also provides a genealogy of the victims’ rights movement from its emergence in the 1960s into the twenty-first century. She explains that while a “get tough on crime” outlook dominates the movement, the concept of secondary victimization has been invoked by activists across the political spectrum, including anti–death penalty advocates, who contend that the families of death-row inmates are also secondary victims of violent crime and the criminal justice system.


"Victims' Rights in California" by Gerald F. Uelman (your former colleague, Mr Bill?)

Politics and Plea Bargaining: Victims' Rights in California By Candace McCoy."

Victims Still: The Political Manipulation of Crime Victims by Robert Elias.

Official crime policy shifted its focus from crime and criminals to victimization and victims in the 1980s and early 1990s. As a result, crime victims were the subject of extensive new legislation addressing victim needs, rights, and services. But did these initiatives really help victims, or did they help further Reagan and Bush administration "law and order" policies for curbing offender and public rights in favor of increasing police power? And has such power escalated incidents like the Rodney King case in Los Angeles? In this controversial and thought-provoking book, Robert Elias evaluates the effectiveness of the last decade's victim policy and argues that victims have been politically manipulated for official objectives. As a result, little victim support has occurred, and victimization keeps escalating. He reaches these conclusions from a thorough examination of victim legislation, get-tough crime policies, media crime coverage, the victim movement, and the wars on crime and drugs. Finally, he proposes solutions that could lead to substantially less crime. Students and professionals of criminology, victimology, policy studies, and political science will find Victims Still an exceptionally stimulating resource. "In Victims Still, Elias demonstrates again that he is a preeminent scholar in the field of victimology. This work provides a unique, provocative, and elucidative account of the politicization of the victims' movement as well as the social and political ramifications of the 'get tough' crime policies and enforcement strategies of the 1980s. Dr. Elias raises serious and challenging questions about the currency of conventional responses to crime victims and offenders. Victims Still should be required reading for crime victim researchers and program practitioners. This book offers a thoughtful reconsideration of the causes of crime and violence in America. Professor Elias's solutions to the crime problem are sweeping and progressive." --Arthur J. Lurigio, Ph.D., Loyola University of Chicago

Posted by: George | Sep 12, 2012 2:35:41 AM

George --

Nice, long post, and not one word to even contest my observation that Gertner was lying.

Posted by: Bill Otis | Sep 12, 2012 10:12:16 AM

Mr.Bill, you usually say the person who makes the claim has to prove it, unless of course it is you who makes the claim.

Where is your proof? And are you making the claim that blog posts here are representative of crime stories in general?

Sentences need to fit the crime: Sun News editorial

"There are some in the community who will say this is too light of a sentence, and we find it difficult to disagree with that assessment, considering the serious nature of the crime and how it disrupted the school schedule at Orange. However, it must be noted this boy has agreed to testify against the other two boys involved when they appear in court next month. Prosecutors apparently believe this boy’s involvement in the bomb scares was not as great as that of the other two individuals and were willing to agree to a lighter sentence in this instance in exchange for tougher sentences against the other two."

In that article Gertner is 100% right. It took about 10 seconds to find it. There is this thing called news.google.com. Give it a try.

Here is another.

Police Officer Sentenced to 30 Days in Jail

Now, the pair says the punishment doesn’t fit the crime.

“I don’t think justice was served at all, because he gets 30 days, and he just turns himself in on the weekends, still goes along with his day, but we still have to turn around and deal with being shot at,” said Eric Sherrod.

That said, maybe Gertner should have adhered to the old adage "Never say never." It is probably more like 99% of the time.

Posted by: George | Sep 12, 2012 2:54:19 PM

George --

"Where is your proof?"

All over this blog, as you well know (and as your next sentence implicitly concedes).

"And are you making the claim that blog posts here are representative of crime stories in general?"

I don't have to make any such claim. What Gertner said was (emphasis added), "NEVER do you see the opposite: a columnist decrying a sentence that was too high..."

Do you know what "never" means? It means that there are NOT EVER any stories claiming a sentence is too high, not that stories making such a claim are unrepresentative.

Are you now ready to admit that Gertner was lying?

Posted by: Bill Otis | Sep 12, 2012 3:19:54 PM

Mr Bill,

By your logic, until you submit a story with "a [news] columnist decrying a sentence that was too high..." you are lying. Of course all you have find is one, just one, in all eternity because of the word "never." But you know of course that word was a rhetorical device and not literal. Gertner is correct.

Definition of NEVER

not in any situation

She'd never do anything to harm you.

Never say that again!

I try never to throw any food away.

http://www.macmillandictionary.com/dictionary/british/never

So, to say that reporters are never as detailed and "fair and balanced" as Gertner argues they could be is not a lie. It is true if for no other reason than because it is so rare in most if not all situations.

As usual, you set up a straw man and everyone else is supposed to obey it. How's that working out for you?

Posted by: George | Sep 12, 2012 3:48:41 PM

George --

Ah yes, the old, "...of course that word was a rhetorical device and not literal" rationale to explain away lying.

Gertner is a Harvard professor and a former judge, and she knows how to select the words she wants to use.

When you say that we should NEVER use capital punishment, you mean never. You don't mean "seldom." If you can use the words you mean, so can she. And she did, which is how you know she's lying.

You're just using the standard liberal ploy of, "Words mean what they mean, except when it becomes convenient, post facto, to claim they mean something else."

Wonderful, George, just wonderful. You were more convincing hoisting the flag for Jerry Sandusky.

Posted by: Bill Otis | Sep 12, 2012 4:14:00 PM

Mr Bill, you are a liar. I never hoisted the flag for Sandusky. I've never even seen a Sandusky flag anywhere, not on the news or anywhere else.

What does it look like in your head? Does it have a penis on it?

Posted by: George | Sep 12, 2012 4:38:04 PM

George --

Get help. Get a job too, while you're at it.

Posted by: Bill Otis | Sep 12, 2012 10:34:42 PM

Mr. Bill, what you mean to say is that you went and looked and couldn't find any Sandusky support from me and so you gave up.

Surrender accepted.

Posted by: George | Sep 12, 2012 11:48:42 PM

"Mr. Bill, what you mean to say..."

This is what you just never get, George: You don't get to decide what I "mean to say." I decide that, just as Gertner decides what she "means to say" when she uses the word "never."

I'll be responsible for the words I use, not the words you and others in the pro-crime crowd would prefer that I use.

Posted by: Bill Otis | Sep 13, 2012 8:17:40 AM

Adamkis, it's not a matter of "liberal" or "conservative," it's a matter of reporting in context as opposed to sensationalizing misery for profit, which is the basis of most crime coverage in individual cases that get the most press.

Posted by: Gritsforbreakfast | Sep 13, 2012 8:30:39 AM

George:

I suspect that in describing you as a "flag hoist[er] of Sandusky, Bill Otis was referring to your comments on this site: //June 22, 2012 Jerry Sandusky found guilty on 45 counts//. http://www.typepad.com/services/trackback/6a00d83451574769e2016767c6a606970b.

" " A better and more rational take on this from the defense side is over at TalkLeft -- a real defense leaning blog. Be sure to read the comments for some true American views. That is, if you tlhink the Bill of Rights are Traditional American Values.
You go, CCDC. Posted by: George | Jun 23, 2012 6:23:21 PM

"You go, CCDC" applies to the only previous post by Calif. Capital Defense Counsel | Jun 23, 2012 4:03:53 PM, which included, among other thoughts:
o "Bill Otis, however, is in many ways more repugnant than Sandusky."

o "Thus, Otis effectively advocates the denial of constitutional rights to those he deems really yucky and really guilty."

o "Thus, by urging denial of cherished, fundamental safeguards of liberty that a revolutionary war was waged to secure, Otis renders himself more repugnant and dangerous, in certain respects, than a serial molester."

So, George, to the affirmative, you did 'hoist the flag for Jerry Sandusky' above that of a former US Attorney, by commending the comment regarding Sandusky that Bill Otis is " himself more repugnant and dangerous, in certain respects, than a serial molester. "

Posted by: Adamakis | Sep 13, 2012 10:37:43 AM

Adamakis --

Thank you for the research. I admire, although I have a hard time sharing, your apparent view that George can be influenced by citations to the record or other facts. But I very much appreciate your efforts, here as elsewhere.

P.S. For most people, it would be enough to make an assessment of George's credibility that he explicitly cheers on the view that Jerry Sandusky is a better person than I am. Sometimes you just have to shake your head.

Posted by: Bill Otis | Sep 13, 2012 12:45:06 PM

Mr Bill and Adamakis, Mr Bill is still a liar like Mr. Bill claims Gertner is a liar. He chose his words carefully like he claims Gertner chose hers carefully, so where is his imaginary flag-friend? Still waiting.

You conveniently left out the link to TalkLeft from that conversation, Adamakis, and that is suppression of evidence. Or maybe you mean to say that any criticism of Mr. Bill is support for Sandusky. You loons.

Here is the link to the TalkLeft discussion and no one is hoisting any flag for Sandusky there. It is predominately pro punishment but there is also a discussion of why Sandusky deserved due process. That is American.

And "a former US Attorney" that believes some do not deserve a defense deserves no respect from me or anyone else. The law may have been slouching that way, but fortunately, courts still deserve respect ("Judge Rules Against Law on Indefinite Detention").

Fact is, Mr Bill appears to be getting a little senile in his accusations.

Posted by: George | Sep 13, 2012 2:14:57 PM

The discussion was about defense attorneys and if they should defend certain people and I meant that a "no representation" opinion by "a former US Attorney" deserves no respect. That narrows it down to the issue.

Posted by: George | Sep 13, 2012 3:09:30 PM

George --

"And 'a former US Attorney' that believes some do not deserve a defense deserves no respect from me or anyone else."

1. Anyone who thinks I have any interest in "deserving" the respect of some anonymous character on an all-comers Internet board has lost his mind.

2. If I did have such an interest as a general matter, I would not have any interest in your respect, since you are an ill-mannered and often juvenile partisan.

3. For however that may be, I have never said, and do not believe, that criminal defendants do not deserve a defense. Sandusky was certainly among those who deserved it, and I, for one, am happy he got the asinine defense he received. It was a wonderfully eye-opening tonic for those who constantly gush about how heroic defense lawyers are.

Posted by: Bill Otis | Sep 13, 2012 6:15:21 PM

Mr Bill:

1. Anyone who thinks I have any interest in "deserving" the respect of some anonymous character on an all-comers Internet board has lost his mind.

Or if someone uses their real name.

2. If I did have such an interest as a general matter, I would not have any interest in your respect, since you are an ill-mannered and often juvenile partisan.

Why, because I called you a liar when you called someone a liar first? Because you said evidence was all over this site and it was up to me to find it because you didn't have to, nanner-nanner? (Even though I found and posted articles that supported Gertner's argument, not because she needs my support, but because it proves she can be right, and so you can be wrong.) Because I accused you of supporting someone you didn't support? No, you did that. Because you have the brass to accuse someone of doing what you do? Projection.

3. For however that may be, I have never said, and do not believe, that criminal defendants do not deserve a defense. Sandusky was certainly among those who deserved it, and I, for one, am happy he got the asinine defense he received. It was a wonderfully eye-opening tonic for those who constantly gush about how heroic defense lawyers are.

The link to that debate is posted above and people can decide for themselves what it was about, but just to clarify, here is the post in question without it being edited for self-serving purposes. Even if in the end you support representation, you argue that representation should be limited to what you want it to be, which amounts to no representation. IOW, defense attorneys should be as pro government as you are.

It seems fairly evident that Sandusky is a foul pederast who deserves what he has coming.

Bill Otis, however, is in many ways more repugnant than Sandusky. Otis assails any attorney who would represent Sandusky. Without attorneys willing to represent the most reviled (e.g., John Adams representing the British soldiers involved in the Boston Massacre), the Sixth Amendment would have no meaning; due process for despised defendants would be unavailable. "Of all of the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have." United States v. Cronic, 466 U.S. 648, 654 (1984). Thus, Otis effectively advocates the denial of constitutional rights to those he deems really yucky and really guilty. In his pro-government "brain", Otis posits any attorney who would defend a really bad defendant as responsible for the future misdeeds the really bad defendant may commit if the attorney successfully beats back some of the government's charges. In our system, however, the government bears the burden of proof in criminal cases, at least in theory. So, if the bad guy gets out or beats some charges, blame is allocated to the government for its failings, not to defense counsel for his/her success, i.e., vindication of his client's procedural rights. Otis urges a system in which those he deems really bad and really nasty don't get a full measure of constitutional protection. Thus, by urging denial of cherished, fundamental safeguards of liberty that a revolutionary war was waged to secure, Otis renders himself more repugnant and dangerous, in certain respects, than a serial molester.

Posted by: Calif. Capital Defense Counsel | Jun 23, 2012 4:03:53 PM

Any inference there is support for Sandusky (or hoisting his flag) in there is a "flat out lie" (a Mr. Bill quote from above.) If CCDC means that an unchecked government can do harm to hundreds, thousands, millions of people when Sandusky could never does so, then CCDC has a point, but that is not support for Sandusky. So enough with the sleazy manipulations.

I think this thread is strong support for Gertner's argument.

Remember, you must be the last to post if you want to be right.

Posted by: George | Sep 13, 2012 7:59:55 PM

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