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June 1, 2017

Lots of notable new reporting and commentary from The Marshall Project

The always terrific Marshall Project always has many great pieces that should be must-reads for sentencing fans.  Though I rarely have the time or ability to give shout-outs to all of the great work done there, the last few days have seen the posting of these pieces or reporting and commentary that all struck me as particularly blog-worthy:

Tuesday brought this Commentary, authored by Mark Osler, headlined "The Problem with the Justice Department: It’s a building full of prosecutors."

Wednesday brought this News piece, authored by Justin George, headlined "What Are Inmates Learning in Prison? Not Much: A new survey of 2,000 federal prisoners reveals big gaps in teaching reentry skills."

Thursday brought this Feature piece, authored by Anat Rubin, "Downloading a Nightmare: When autism, child pornography and the courts collide."

The last of these pieces is especially lengthy, but should be especially interesting for sentencing fans who think about when and how offender characteristics should or should not impact sentencing decisions. Here is a portion of the piece:

The “autism defense” was thrust into the spotlight by the case of Gary McKinnon, who, in 2002, from an apartment in London, broke into computers at the Army, Air Force, Navy, Department of Defense and NASA, searching for evidence of a UFO cover-up.  In fighting his extradition to the United States, McKinnon’s legal team argued that his crime was the result of his autistic compulsions.  “And then we started to see an increase in other individuals coming forth and claiming that Asperger's was causal in their need to — and their compulsion to — download child pornography,” said Chad Steel, who conducts digital forensics investigations for the federal government.

Steel, who also teaches digital forensics at George Mason University, wrote a paper to help forensic psychologists and others in law enforcement gather evidence to refute the central assumptions of the autism defense in child pornography investigations. “A frequent argument we get is that the person was unable to control their impulses, unable to know it was wrong.  There have been some cases where that’s absolutely been true,” he said.  “But when you read ‘this person has high-functioning autism, they didn’t know what they were doing’ — that’s not necessarily true.”  He said before the McKinnon case, he was seeing defendants who were likely autistic, even if they didn’t have an official diagnosis. But since McKinnon, the disability is more likely to take center stage.

The autism defense can be a double-edged sword in court.  Arguing that the defendant has the social and emotional maturity of a child can backfire.  Prosecutors can use that information to argue the defendant is likely to reoffend.  More often, parents whose lives have been defined by their child’s disability find that, in the eyes of the criminal justice system, their child doesn’t seem disabled enough.

The Marshall Project reached out to state and federal prosecutors with experience in child pornography cases.  With few exceptions they were unwilling to discuss cases involving autism.

For all child pornography defendants, outcomes depend largely on geography.  Some judges stick close to the federally-recommended sentences, while others have spoken out against the increased punishments. But for autistic defendants, the outcomes seem also to depend on how autism is explained to the court.  “In cases where judges and prosecutors have really been informed on all the dimensions in which Asperger’s applies, they got drastically reduced punishments,” [defense attorney Mark] Mahoney said. “If they get the right information, there’s a good chance — a much better chance than defense attorneys imagine — that prosecutors will understand that this is a population that just doesn’t have the dangerousness we associate with the behavior.”

In arguing for diversion, Mahoney focuses on what prison is like for an autistic person.  Many people with autism are unable to understand the hidden social structure of a prison environment.  They sometimes tell on others who break the rules.  They are eager to please and easily manipulated.  Their behavior can be misinterpreted by prison staff, and they are often placed in isolation, either as a form of punishment or for their own protection.

June 1, 2017 at 02:37 PM | Permalink

Comments

Here is another local piece from NM about their rising prison population.

http://www.santafenewmexican.com/news/local_news/n-m-prison-population-rises-while-other-states-see-decline/article_7575190f-8751-5787-8016-5308d6e070b2.html

The political framing is interesting insofar as it paints the state as out of touch because it hasn't reformed.

Posted by: Daniel | Jun 1, 2017 2:55:40 PM

Great first observation about the DoJ. I'm so tired of Supreme Court nominees with long stints in the DoJ. Not just the prosecutorial bias, but the statist bias. And even if they aren't statists per se (i.e. some form of conservative), their views tend to be highly politicized and insufficiently real-world.

Posted by: Fat Bastard | Jun 1, 2017 3:23:35 PM

One feature of autism? Avoidance of change. In Rainman, if you cut the fish sticks in the wrong way, he had to destroy the place. Is the avoidance of change a mitigating or a an aggravating factor?

Posted by: David Behar | Jun 1, 2017 4:21:54 PM

Sorry, I meant my first post to go in the thread about prison growth and states.

Posted by: Daniel | Jun 1, 2017 4:36:57 PM

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