Wednesday, February 4, 2015
Sign of the drug war times: risk-management review of state drug-law reforms
There are many diverse signs, and many diverse consequences, of our modern (retrenching?) drug war, especially with respect to state-level reform of marijuana prohibitions. One such interesting sign and consequences arrived in my e-mail this morning via this link to this post by a risk management firm titled "Recap of Drug-Related State Legislation Passed in 2014." This helpful resource is introduced this way:
One trend that hiring managers should take note of in 2015 is the increased fragmentation of state drug test regulations. Exactly half of all states passed legislation in 2014 that touches upon or completely regulates drug testing in some way or another.
With more and more attention being given to developments in medical and recreational marijuana laws, it may be hard to imagine that the United States is not trending away from drug testing in the workplace. It is true that public opinion about certain controlled substances is shifting, but legislation is still being passed that creates provisions for drug testing employees, banning synthetic substances, and penalizing intoxicated motorists.
The diversity of laws and court decisions produced in 2014 is proof that the line between pro-employer and pro-employee is vague and becoming more difficult to draw-out. As laws in some states provide new “rights” to individuals to consume intoxicating substances, other laws in those states as well as other places reinforce the rights of employers and citizens seeking to ensure safe workplaces and communities.
I am not, of course, an expert on labor and employment law. But this posting provides perhaps more evidence that labor and employment lawyers need to be experts on modern drug law reforms in order to serves their clients effective.
Tuesday, February 3, 2015
NACDL seeking examples of federal cases impacted by "trial penalty"
Through some of my work with folks at the National Association of Criminal Defense Lawyers, I have learned that NACDL is now, as part of its Trial Penalty Project, actively seeking examples of the “trial penalty” federal defendants often face as they consider whether to exercise their right to go to trial based on the great discrepancy between post-trial sentences and those offered in the plea process. Human Rights Watch issued a report summarizing extensive statistical and anecdotal evidence of this trial penalty focusing on federal drug defendants, and NACDL is working toward producing a companion report focusing on the trial penalty in federal cases not involving drug prosecutions.
NACDL seeks, via a simple on-line survey, help in collecting examples and data for use in the report. NACDL is interested in examples such as (1) cases where a defendant after trial received a far more severe sentence than had been offered during plea negotiations; (2) cases where a defendant pleaded guilty principally because of a fear that any sentence imposed after trial would be dramatically higher than the plea offer; and/or (3) cases where defendant(s) convicted at trial received disproportionately severe sentences given their culpability as compared to co-defendants who pleaded guilty.
If you know of a federal case that fits these categories — or that otherwise reflects the “trial penalty” federal defendants often face in non-drug-offense settings — please take a few minutes to complete the online questionnaire at the NACDL website.
"Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System"
The title of this post is the title of this timely new report from The Sentencing Project. Here is a partial summary of its contents from an e-mail I received earlier today:
The report identifies four key features of the criminal justice system that produce racially unequal outcomes, beyond the conditions of socioeconomic inequality that contribute to higher rates of some crimes in marginalized communities, and showcases initiatives to abate these sources of inequity in adult and juvenile justice systems around the country. In many cases, these reforms have produced demonstrable results, including:
- Indiana amended its drug-free zone sentencing laws, which imposed harsh penalties on a defendant population that was over 75% African American in Indianapolis.
- Multnomah County (Portland), OR, revised and removed bias in its risk assessment instrument for determining juvenile detention, reducing African American and Latino youth detention levels by half.
- Berks County, PA, reduced the number of youth in secure detention – who were primarily youth of color – by 67% between 2007 and 2012 in part by increasing reliance on alternatives including non-secure shelters and expanding use of evidence-based treatment programs.
- The Milwaukee County prosecutor’s office eliminated racial disparity in charges of possession of drug paraphernalia by instituting case oversight and emphasizing diversion to treatment programs and dismissals.
A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
If the wealthy truly have extraordinary influence on modern federal politics and policies, a notable defendant serving a mandatory 55-year sentence as a result of a few small marijuana sales ought to be getting out of prison before too long. I say this because, according to this Daily Beast piece, my former client Weldon Angelos is now a "poster boy" for the latest Koch-brothers-backed political effort. This piece is headlined "The New Face of the Koch Campaign" and here is its subheading: "A father of two was sentenced to 55 years in jail for selling pot. The Koch brothers want to help set him free and make him the face of their new campaign for criminal justice reform." Here are excerpts:
Weldon Angelos could have hijacked a plane and spent less time in jail. But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot — a term so long even the judge who gave it to him protested its injustice. A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.
Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant — so federal mandatory minimums required that he be put in jail until he’s 80 years old. Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”...
Angelos is now 35 years old and has spent some 11 years behind bars. He has more than 40 years left to go. Even though his crime was non-violent, parole is not an option at the federal level. His only hope for relief from his sentence is an order by the president.
“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem. And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.
This is where the Koch brothers come in. The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year. They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week. “[This year] offers a unique moment in history in which people of different backgrounds and political leanings are coming together to facilitate a substantive dialogue on how to fix [the criminal justice system],” said Evan Feinberg, the group’s president. “We can work towards a more just system that reflects the rule of law without overcriminalizing non-violent offenses.”
The new campaign will target the overcriminalization of non-violent crime, mandatory minimum laws, and helping criminals who have served their sentences reintegrate into society. The demilitarization of police and the excesses of civil asset forfeiture will also be addressed.
Generation Opportunity worked with Families Against Mandatory Minimums on the documentary. FAMM founder Julie Stewart was in the room during Angelos’ first sentencing hearing. It was, she said, a severe example of a worrisome trend in the criminal justice system....
“A lot of people just thought that because of the amount of time my brother was [sentenced to], he had done something terrible, just because of the ignorance that is out there about mandatory sentencing,” said Lisa Angelos, Weldon’s older sister and advocate. “Before the case, I had no idea that this was possible in America.” The judge who was forced to hand down the sentence, Paul Cassell, said the Angelos case is an example of “clear injustice marring the public perception” of the federal courts — and victimizing taxpayers who have to pay to keep him locked up.
“We have in place in our country today some very draconian penalties that distort our whole federal sentencing scheme,” Cassell said. “When people look at a case like Weldon Angelos and see that he got 55 years, and they see other cases where victims have gotten direct physical or psychological injuries and don’t see a similar [result] from the system, they start to wonder if the system is irrational.”
When he was sent to prison, Angelos’ children were small, now both are in their teens. Without their father, the family fell on hard financial times. His children rarely talk to him, Weldon’s sister says, because they can’t afford a cell phone on which they can be reached. “When I tell him stories about his kids, you can tell how very hard it is for him to hear it… to know that he can’t be here,” Lisa Angelos said. “It’s destroyed him in many ways.”
The Angelos’ have waited for more than two years for word on their executive clemency request. The average successful clemency request takes approximately four years, according to his lawyer. Weldon Angelos deserves clemency, Osler said, because his sentencing “doesn’t correlate in this country with what’s wrong, and what those wrongs deserve.”
Long-time readers are likely familiar with the Angelos case, which came to my attention on a few months after I started this blog 11 years ago. I litigated pro bono, unsuccessfully, Weldon's 2255 motion with claims (that I still find compelling) that his prosecution and sentencing involved violations of the Second, Fifth, Sixth and Eighth Amendments. I continue to hope Weldon will receive clemency or some other form of relief soon not merely to remedy the injustice of his extreme prosecution and sentencing, but to vindicate critical constitutional principles.
Related prior posts providing some Angelos case history:
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- Cert denied in Angelos mandatory minimum case
- NYU Center files amicus in Angelos case
- An argument that the Second Amendment and Heller should help Weldon Angelos
- Weldon Angelos files 2255 motion
- A request for a commutation for Weldon Angelos
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
February 3, 2015 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack (0)
"How to Stop Revolving Prison Doors With Books"
The title of this post is the title of this extended piece in the Harvard Political Review authored by Alice Hu. Here is how it starts and ends:
Education reduces crime. This connection seems like common sense, and indeed it has been researched, analyzed, and affirmed countless times. According to a 2007 collaborative study by Columbia University, Princeton University, and City University of New York, higher education reduces the crime rates of both juveniles and adults by impacting social behavior and economic stability.
The effect of education on crime-reduction is even more dramatic for a certain group within the population: the incarcerated. To many, the idea of convicts receiving a free college education behind bars is confounding and, more often, infuriating. When New York Governor Andrew Cuomo introduced a plan to publicly finance basic college education programs in state prisons, legislators in Albany called it “a slap in the face” for law-abiding citizens.
While this response is understandable, the arguments themselves neglect the actual effects of college-in-prison programs. According to the U.S. Department of Education, inmates who participated in education programs had a 43 percent lower chance of returning to prisons than those who did not. By drastically reducing the recidivism rate of former inmates, education in prisons returns a tremendous social benefit for all members of society. Prison education programs not only save an enormous sum of tax dollars spent on prisons annually, but they also have a profound effect on thousands of families and communities. The current resistance to college-in-prison is founded upon political rhetoric rather than any factual evidence. Indeed, this type of rhetoric by politicians is perhaps indicative of a large, troubling trend in education and incarceration....
College stops the revolving prison doors. It allows inmates the opportunity to reintegrate into society, to work, pay taxes, and contribute to society. It saves the public billions of tax dollars, money that can go toward higher education aid for students rather than prison expansion. The “tough on crime” rhetoric may have helped past politicians — Democrats and Republicans alike — to win elections, but it has done little to help the people inside or outside the prisons. Indeed, the adverse effect of forgoing college programs for inmates cuts across partisan lines and prison bars. Perhaps this is why President Clinton, who was once adamant about being “on the side of those who abide by the law,” has since commended Bard Prison Initiative as a “good investment in a safer, more productive society.” Politicians can choose to neglect the evidence and paint college-in-prison programs as unfair to law-abiding citizens, but the true injustice lies in the continuation of ineffective and costly practices when a solution is readily available — education. It is common sense, after all.
Monday, February 2, 2015
Getting a European perspective on crowded prisons
This new Wall Street Journal article, headlined "Overcrowding Puts Strains on Europe’s Century-Old Prisons," highlights that the US does not have the most densely populated prisons in the world even though we have the largest total prison population. Here are some details from the article:
While cities and states across the U.S. are selling off prisons as the inmate population shrinks, Europe faces the opposite challenge: how to cope with chronic overcrowding in old, cramped jails.
The fortresslike structure of Forest prison is in the otherwise chic Saint-Gilles district of Brussels. Built in 1910 to house 380 inmates, it currently holds 600, most of whom are awaiting trial. In two of the four wings, three inmates are held in 90-square-foot cells designed for one. Two share bunk beds while the third has a mattress on the floor. They eat there and share a toilet. In the other half, prisoners have individual cells but no running water. They must relieve themselves in a bucket that can go unemptied for 48 hours....
“It is medieval,” said Vincent Spronck, who became warden four years ago after a decade working in other prisons. “I didn’t know these conditions still existed until I got here.” The problem isn’t limited to Forest or even Belgium.
In central London, the 170-year-old Pentonville Prison houses 1,303 men in a space designed for 913. An official report found “significant, easily visible vermin infestations,” dirty cells, and rampant drug abuse, and suggested shutting it down.
La Modelo in Barcelona, built in 1904, held 1,781 inmates in space designed for 1,100 when it was last inspected by a team from the intergovernmental Council of Europe, the continent’s human-rights watchdog. Lisbon Central Prison (built 1885) has an official capacity of 886, but was holding 1,310 prisoners in May 2013. Korydallos Prison, built in the 1960s in Athens, should hold 840 people, but held 2,300 in April 2013.
“The whole structure is in a state of crisis,” said Hugh Chetwynd, head of division for the Council of Europe’s Committee for the Prevention of Torture. Overcrowding means “staff struggle to keep proper control, so they resort more to excessive force.” Prison populations per capita are growing in most European countries....
One solution is to send prisoners abroad. Belgium pays €43 million ($48 million) a year to the Netherlands to hold 600 prisoners over the border in a former military barracks in Tilburg. Belgium and Italy, which also has a long-term overcrowding problem, are building new prisons, but some experts argue this doesn’t resolve the problem. “You build big prisons…that leads to higher population rates,” said Peter Bennett, who was warden at four prisons before becoming director of the London-based ICPS. “All the research shows that sending people to prison doesn’t reduce the crime rate.”
Still, while there appears to be no strong relationship across countries between incarceration and crime rates, the crime rate in the U.K. has fallen as the prison population has risen. Peter Cuthbertson, director of the Center for Crime Prevention, said taking serial criminals off the streets cuts crime. “If you don’t do anything else,” he said, a criminal “can easily end up committing hundreds of crimes a year.” He said that longer sentences reduce recidivism rates and while overcrowding isn’t ideal, his solution is to build more prisons.
Indiana sentencing reforms highlight how low-level criminal justice is forced to fill public health gaps
This lengthy local article from Indiana, headlined "County jails fear onslaught of addicts, mentally ill from prisons," provides an effective showcase of the relationships between criminal-justice issues and public-health issues. Here is how:
With the passage of sentencing reforms last year, one study estimates that more than 14,000 low-level offenders, some with serious addictions and mental illnesses, will no longer be kept in prison. They will be diverted to county jails and community corrections programs that [Franklin County Sheriff Ken] Murphy and others say are ill-equipped to handle the onslaught.
Many such offenders need expensive mental health care — some requiring hundreds of dollars a month in medication. "These are people with real problems that need treatment," Murphy said. "We need a secure facility or work release or whatever where we can send these folks ... where they can receive treatment, and when they're released, somebody follows up with them."
Sheriffs across the state say jails are not designed for all that. Jails are meant to hold people awaiting trial, not to house and rehabilitate those who have been convicted. Many do not have mental health services. Some counties also lack money to expand treatment programs or to launch community corrections programs that provide alternatives to jail, such as housing and GPS monitoring. That, Murphy said, makes this legislative session critical for public safety.
The success of the criminal code reform under House Enrolled Act 1006, which took effect in July, hinges largely on providing funds for county programs. Without them, Murphy and others say, people with mental illness and substance abuse problems have a higher risk of failing and re-offending....
"County jails are totally based on the idea in our society that you are innocent until proven guilty," said Howard County Sheriff Steve Rogers. "(HEA) 1006 wants us to hold folks after they've been convicted. Then they won't be pretrial detainees." Rogers said HEA 1006 will put a strain on his jail's mental health resources. "If we can reduce the amount of people that have these mental health issues in our jail," Rogers said, "I think we can handle what 1006 will bring us."
Jails also lack educational programs and vocational training offered in the DOC. "We're not here to rehabilitate," said Capt. Harold Vincent, commander at the Howard County Jail. "That doesn't happen in the jail setting."
Inmates with mental illnesses and substance abuse problems are expensive to incarcerate because of their medical and psychiatric needs. In Marion County, for instance, about 30 percent of inmates are mentally ill, and they take up roughly $7.7 million of the sheriff's budget every year, Layton said. Eighty-five percent have substance abuse problems.
Medication for the mentally ill costs about $800 to $1,500 per dose per person, said Dr. Erika Cornett, medical director for the behavioral health division of Community Howard Regional Health. Some need an injection once a month, while others need two. That means one mentally ill inmate can cost a jail up to $3,000 a month in medication alone....
Will the political atmosphere be agreeable to spending more money on programs and services that help criminals? Some hope so.... Some, however, think there will be political resistance. Investing in other areas, such as education, is more popular.
This article is notable in part because it helps highlight that efforts to reduce prison populations and associated costs could be "penny wise, pound foolish" if there are not adequate resources devoted to services needed to aid localities with community supervision and reentry needs. More broadly, by detailing various links between health-care needs and criminal justice institutions, this article suggests that effective health-care reform (especially for the poor) may be as critical to public safety and to the public fisc as is effective sentencing reform.
Highlighting how apathy may help the criminal justice reform cause
This new Slate commentary by Jamelle Bouie spotlights why maybe I should not complain too much about criminal justice problems not getting enough attention from the media and the general public. The piece is headlined "Why Public Apathy Isn’t All Bad: It has actually helped pave the way for significant criminal justice reform," and here are excerpts:
[A]s much as intensity contributes to politics, we shouldn’t give short shrift to its sibling: public apathy. Apathy gets a bad rap, but when you look at its full place in the world of public policy, it’s underrated.
To be clear, apathy’s reputation isn’t undeserved. Politicians have long used voter disinterest as cover for corrupt behavior. And on issues toward which voters aren’t attentive — but interest groups are — the public can get shafted. But the same shadows that cloak the worst of our lawmakers can also shield the best of them. On issues with which the problems are severe and about which voters are indifferent, politicians have a chance to act effectively for the public good without watching their rears.
The best example is criminal justice reform. During the last decade, lawmakers across the country have pushed bold experiments in shrinking prisons and reducing incarcerated populations, unscathed by any kind of public backlash. In 2010, after two decades of ceaseless prison growth, Texas officials — supported by Gov. Rick Perry — moved to counter increasing costs of prison construction and incarceration with a new regime of treatment and mental health programs to give prosecutors and judges a third option besides jail or parole. It worked. The Texas inmate population has dropped from its peak of 173,000 in 2010 to 168,000 in 2013, without any increase in violent or property crime. Recidivism is down, and the state has saved an estimated $3 billion.
You see a similar story in Georgia, where Gov. Nathan Deal has led the state to drastically change its approach to criminal justice. In 2012, lawmakers passed reforms that gave prosecutors non-prison options for adults arrested for minor crimes, and that gave judges more options for drug offenses, with a goal of reserving prison beds for violent offenders. And in 2013 the state passed reforms that would place minor juvenile offenders in social service programs, skipping the criminal justice system entirely....
On crime, in other words, the broad public just isn’t that interested. And as such, there isn’t a strong incentive for “tough on crime” rhetoric, crime-focused politicians, or punitive anti-crime policies. But for those on the other side of the issue — for politicians who want fewer prisons and less incarceration — there’s an opportunity to push reform without fear of attack. And slowly, lawmakers are taking it.
Thanks in part to public apathy, the country is beginning to make progress on one of our most important problems. But we shouldn’t get too optimistic. Bills against asset forfeiture or for flexibility in sentencing are like the first few boards in a game of Ms. Pac-Man — easy to clear if you know what to do. To tackle the larger problems — overcriminalization, disinvestment in prison alternatives, and robust reintegration for former offenders — you need more: more will, more skill, and more support. You also need more money beyond the savings you gain from reform. And in politics, the moment you ask for cash is the moment the public starts to pay attention.
February 2, 2015 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack (0)
Sunday, February 1, 2015
"Should Veterans With PTSD Be Exempt From the Death Penalty?"
The title of this post is the headline of this lengthy piece from The Atlantic. Here are excerpts:
PTSD is a severe mental disorder that can affect intellectual and adaptive functioning, trigger flashbacks to traumatic events, and impair one's judgment. As its name implies, it can develop after exposure to a life-threatening event.... About 20 percent of military personnel who served in war zones in Iraq and Afghanistan and up to 30 percent of Vietnam War veterans have experienced it in their lifetimes, according to National Center for PTSD statistics....
Despite the stigma attached to PTSD, the Department of Veterans Affairs emphasizes that most veterans suffering from the condition are not violent.... “Rambo is not the face of PTSD,” Paula Schnurr, executive director of the VA's National Center for PTSD, said in an interview with The Desert Sun. “It's extremely important that we recognize that the majority of people with PTSD don't engage in criminal and violent actions.”
The risk of criminal behavior isn’t necessarily higher among combat veterans than with civilians, according to mental health experts. "I am unaware of data showing that people with PTSD are more violent than other people," Richard McNally, the director of clinical training in Harvard University's psychology department, told Reuters.
But some legal scholars and mental health experts suggest the criminal justice system should treat convicted veterans suffering from war trauma differently than other criminals. In a 2009 Fordham Law Review article, Anthony Giardino, an attorney and former Marine, argued that veterans suffering from service-related PTSD and traumatic brain injuries should receive a categorical exemption from the death penalty. "If the death penalty is truly only for the worst offenders, justice requires that combat veterans suffering at the time of their offenses from service-related PTSD or TBI [traumatic brain injuries] not be executed or sentenced to death," he wrote....
Giardino isn’t alone in making this argument. Mental-health experts Hal S. Wortzel and David B. Arciniegas made a similar case for exempting veterans affected by war trauma from the death penalty. Military training and combat, combined with traumatic experiences, may have an impact on aggression and behavioral control, the authors said in a 2010 article....
It's difficult for the legal system to truly grasp what veterans with PTSD have experienced. This lack of empathy is a key obstacle to change.... Until society realizes how combat can change service members, the fate of capital defendants with combat PTSD will remain an open question.
Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata
As long-time readers will recall, the US Supreme Court in 2011 in Plata upheld, by a 5-4 vote, a lower-court order that imposed on California a requirement to have its prison population reduced below 137.5% of capacity to remedy extreme Eighth Amendment violations in prison conditions (basics here). In their dissenting Plata opinions (as noted here and here), Justices Alito and Scalia predicted this ruling would likely produce "a grim roster of victims" and a massive number of "murders, robberies, and rapes" in California. Similarly, as noted here, in response to Gov Jerry Brown's realignment plan to deal with the Plata problems, the Los Angeles DA predicted "the greatest spike in crime of the last several decades."
Fast forward a few years and this local story now reports that "California’s prison system has hit a milestone, with new figures showing that the inmate population inside the state’s 34 adult prisons has fallen below a court-ordered cap more than a year ahead of schedule." Here is more:
California’s prisons steadily filled in the 1990s as tough-on-crime measures such as the “three-strikes” law won public support. In November 2006, the prison population hit 162,804 -- larger than Elk Grove’s current estimated population -- or 200.2 percent of the design capacity at that time.
Lawyers for the inmates said overcrowding had reached the point that medical and mental health care services for prisoners were unconstitutional, and they renewed their legal challenge to a system in which inmates were being housed in triple-deck bunks in prison gyms and other open spaces. The state disagreed and continued to fight, but in August 2009 a panel of three federal judges said the situation had “brought California’s prisons to the breaking point.”
The panel decreed that within two years the state would reduce inmate populations to 137.5 percent of capacity. The U.S. Supreme Court agreed in a 5-4 decision in 2011 that the prison population had to be reduced, prompting a series of efforts under Gov. Jerry Brown that led to Thursday’s levels.
Under the latest court orders, California has until Feb. 28, 2016, to cut its inmate population to the 137.5 percent benchmark. The early success in getting to that point can be traced largely to the governor’s prison realignment plan, passed in 2011, which shifted responsibility for nonviolent, low-level offenders from the state to counties.
Before that plan, as many as 60,000 inmates annually were sent to prisons as parole violators and served an average of 90 days. The Department of Corrections says realignment has cut the prison population by about 25,000 inmates. Counties statewide have seen an increase in jail inmates during that time frame....
[In addition,] 2,035 inmates have been released since passage of Proposition 47 in November, which redesignated several felony-level crimes, including some drug possession and property offenses, as misdemeanors. [And] 1,975 inmates in prison after a “third strike” have been released since voters approved Proposition 36 in 2012. The measure allows for inmates to seek resentencing if their third strike was not considered serious or violent.
So, one should ask, what has happened recently in California with respect to crime rates, especially violent crimes that produce the greatest harms to victims. This Crime & Consequences post provides a quick summary of the latest official data: "California property crimes per 100k population totaled 2,665.5 in 2013, a 3% drop from the 2012 figure although still above the rate before the realignment law went into effect. Even better, the rate of violent crimes, less affected by that law, is down to a level not seen since 1967."
Posts at C&C highlight data indicating an increase in car thefts and other property crimes in recent years in California. But I do not think even the greatest critics of Plata and the state's responses can assert that, as was predicted by a prominent prosecutor, California has experienced "the greatest spike in crime of the last several decades." In sharp contrast, violent crime has continued to drop in the state in the wake of Plata.
Though I doubt we will be hearing any sort of mea culpa from those who predicted that the public safety sky was sure to fall after Plata, I hope the California story will help inform assessments of future Chicken-Little-type predictions.
"Why Judges [and criminal case decisions] Tilt to the Right"
The title of this post is a slight modification of the headline of this interesting new piece by Adam Liptak in the New York Times. Here are excerpts:
Lawyers on average are much more liberal than the general population, a new study has found. But judges are more conservative than the average lawyer, to say nothing of the graduates of top law schools. What accounts for the gap? The answer, the study says, is that judicial selection processes are affected by politics.
Judges are, of course, almost without exception lawyers. If judges reflected the pool from which they were selected based on politically neutral grounds like technical skill and temperament, the bench might be expected to tilt left. But something else is going on.
“Politics plays a really significant role in shaping our judicial system,” said Maya Sen, a political scientist at Harvard’s Kennedy School of Government and one of the authors of the study. Since judges tend to be more conservative than lawyers, she said, it stands to reason that the officials who appoint judges and the voters who elect them are taking account of ideology. She said the phenomenon amounted to a politicization of the courts, driven largely by conservatives’ swimming against the political tide of the legal profession.
Eric A. Posner, a law professor at the University of Chicago, said the paper might have drawn the wrong conclusion from the right data. “The authors argue that a court is politicized if the judges deviate from the ideology of the underlying ideological distribution of attorneys,” he said. “Maybe.”
But an equally powerful case could be made, he said, for viewing courts as politicized if they failed to reflect the ideology of people generally. “On this view,” Professor Posner continued, “we should congratulate rather than condemn Republicans for bringing much-needed ideological balance to the judiciary.”
Either way, said Tracey George, a law professor and political scientist at Vanderbilt University, the study explored a distinctive feature of American justice. Foreign legal systems tend to be homogeneous, she said, with lawyers and judges closely aligned ideologically. “You would think there would be a better match” in the United States, she said. “Why would the attorneys facing the bench be so different from the people looking back at them in robes?”
The study is based on an analysis of the campaign contributions of American lawyers, a group that turns out to be exceptionally active in the financial side of elections.... Federal judges and many state judges are barred by ethics rules from making contributions, but a majority did write checks to political campaigns before they joined the bench. Indeed, future judges gave at an even higher rate than lawyers generally. About 67 percent of future federal trial judges made contributions. Future state Supreme Court justices gave at the same rate. And 80 percent of future federal appeals court judges wrote checks to politicians....
The new study considered how judges are selected, not how they rule. It is possible that the political leanings of judges before they took the bench tell us nothing about how they do their jobs. But earlier research on the federal courts has found correlations between the political parties of the presidents who appoint judges and how those judges rule.
“The role of ideology increases as cases move up the judicial ladder,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “That’s because the constraints on judicial discretion lessen as one moves up.” She and two co-authors — William M. Landes, an economist at the University of Chicago, and Judge Richard A. Posner of the federal appeals court in Chicago — documented the trend in a 2013 book, “The Behavior of Federal Judges.”
Comparing votes in the same set of cases heard at all three levels of the federal judiciary from 1995 to 2008, the book found that judges appointed to trial courts by Republican presidents were only slightly more likely to cast conservative votes than those appointed by Democrats. But the disparity grew to almost 2-to-1 on the appeals courts and to 2.5-to-1 on the Supreme Court.
Professor Posner, who is Judge Posner’s son, said the new study made a particular contribution in assessing the political inclinations of the American Bar. “It confirms,” he said, “what everybody always thought: that lawyers are to the left of other professions.”
Every subgroup of practicing lawyers examined by the study was more liberal than the general population. Public defenders and government lawyers generally were particularly liberal, as were women and the graduates of top law schools. But prosecutors and law firm partners were pretty liberal, too.
Law professors, too, are quite likely to lean left, a finding that matched those in earlier studies. Indeed, when Professor Posner and a colleague, Adam S. Chilton, tried to assess whether the liberal tilt of the legal academy affected its scholarship, they had a hard time finding law professors at the top 14 law schools who had contributed more to Republican candidates than to Democratic ones.
Why are judges different? After all, they, too, are a subset of a generally liberal legal culture. Professors Bonica and Sen said that conservatives had worked hard and effectively to ensure representation of their views on the courts. They have cultivated candidates for the bench, notably through the Federalist Society, the conservative legal group active on law school campuses. But if the numbers of conservative candidates remains small, they wrote, it makes strategic sense to deploy candidates on the courts that matter most. The study’s authors call this “strategic politicization.”
“The most conservative courts (and thus the least representative of the overall distribution of lawyers) are the federal courts of appeals, followed by the state high courts, the federal trial courts and state trial courts,” the study found....
There may be reasons besides politics for the overrepresentation of conservatives on the courts, at least as compared with the pool of lawyers. Judges do tend to be older than the average lawyer, and older lawyers are more conservative than younger ones. Even so, the study found, judges are more conservative than other lawyers their age.
Saturday, January 31, 2015
Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones
The silly idea reflected in the title of this post is my effort to put a timely spin on what is becoming an old story: lots of folks from lots of different perspectives are coming together to talk about the need for criminal justice reforms. And, as detailed in this press piece, many of these folks got together this past week at an event. Here are the details:
Only one issue in Washington right now could bring together the Koch brothers’ top lawyer, an environmental activist, the former head of the NRA and Sen. Al Franken. Criminal justice reform. In a city best known for dysfunction and discord, the issue has stood out as a rare area of common ground between Democrats and Republicans.
And at a panel on reforming the criminal justice system hosted by the Constitution Project advocacy group on Capitol Hill on Wednesday, the bipartisan array of speakers seemed genuinely nonplussed by the harmony across an otherwise gaping political divide.
Van Jones, the former Obama administration official and liberal commentator, was seated next to Mark Holden, Koch Industries’ general counsel and the face of the conservative mega-donors’ efforts to lower incarceration rates in the country. (The Koch brothers are planning to spend a reported $889 million during the 2016 election cycle, a figure that puts their operation in the same financial ballpark as the two political parties themselves.)
“That should be a headline in itself,” Jones said of he and Holden sitting at the same table. “Cats and dogs sleeping together,” Holden chimed in. “I don’t know about sleeping together,” Jones quipped.
Jones said he hoped politicians would seize on this moment — when crime is down and interest is high — to reform the U.S. penal system so that the country no longer imprisons a higher percentage of its citizens than any other nation. “This is a time for real comprehensive change,” Jones said. “It’s very, very rare that we have a moment where the stars are aligned in this way.” He later warmly embraced the Kochs' lawyer.
Lawmakers lined up to promote their criminal justice reform bills at the event, which also included remarks from Piper Kerman, the author whose memoir about her experience in federal prison inspired the Netflix series “Orange Is the New Black.”
Sens. Rob Portman, a Republican, and Al Franken, a Democrat, spoke about a bill they’re reintroducing this year to provide more mental health services to prisoners and to fund special mental health courts that emphasize treatment over doing time. Rep. Jim Sensenbrenner (R-Wis.) said he believes lawmakers should review every federal regulation or law that carries prison time to decide if it’s merited or not. Sen. Cory Booker (D-N.J.), who introduced a bill to expunge nonviolent criminal records of juvenile offenders that he’s co-sponsored with Sen. Rand Paul (R-Ky.), sat with audience members, saying he wanted to listen and learn.
Holden told the crowd that the Koch brothers have been involved in criminal justice reform for more than 10 years, after a few of their employees were prosecuted for violating environmental regulations in Texas in the 1990s. (The charges against the employees were later dropped, and Koch Industries settled with the government.) The Kochs have since invested in providing defense lawyers for poor people and other reform efforts, and have signaled it will be a major policy priority this year. Their support could lend momentum to the bipartisan reform bills that have already been introduced. “What we should be using the prison system for is people we’re afraid of,” Holden said, not for nonviolent offenders.
I am always pleased to see talk of significant criminal justice reform making headlines. But as I have often said before (and as I likely will say again a lot in the months ahead), "talking the talk" about criminal justice reform is always much easier than "walking the walk" especially at the federal level. So, if you come upon this notable cast of characters at your SuperBowl party this weekend, you should find it much easier to talk about criminal justice reform than to predict when all this talk will result in significant legislative action.
We are coming on five years since the libertarian/small-government wing of the GOP began talking a lot about significant sentencing reforms (right after the 2010 election cycle). And yet, circa 2015, we still have not yet seen any proposals for "real comprehensive change" making the rounds on Capitol Hill. Indeed, even (much-too) small proposed changes reflected in bills like the Smarter Sentencing Act have gained precious little momentum.
I am cautiously hopeful that the involvement of major capitalists like the Kochs will help fuel the work of major activists to turn all the talk into real action. But, ever the realistic (though optimistic) cynic, I am not expecting Congress to enact any truly landmark criminal justice reform legislation anytime soon.
After adopting new execution drug laws, Ohio delays all executions for additional year
As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions. Here are the details:
The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015. The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.
The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said. The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction. The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.
The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999. The state put one inmate to death last year and three in 2013. A total of 11 executions are scheduled for 2016. Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.
Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."
Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July. Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.
Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has. Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.
Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.
I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.
Friday, January 30, 2015
Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting
As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated. The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:
Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.
The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.
In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.
The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.
The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.
In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.
Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.
The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said. "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."
I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.
Notable new commentary on Yates v. US and overcriminalization
Via email I learned about these two notable new commentaries discussing issues surrounding the federal criminal case Yates v. United States soon to be resolved by the Supreme Court:
SOX on Fish: A New Harm of Overcriminalization by Todd Haugh
Going Overboard: Yates and DOJ’s “Most Serious Offense” Charging Policy by Scott Coffina & Edward James Beale
Thursday, January 29, 2015
George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
This local article from Louisiana, headlined "George Toca, La. inmate at center of debate on juvenile life sentences, to go free," reports on a remarkable turn of events in a case that was supposed to serve as the means for the Supreme Court to address the retroactivity of its Eighth Amendment Miller ruling. Here are the details:
A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison. Orleans Parish District Attorney Leon Cannizzaro’s office agreed to vacate his murder conviction.
George Toca, 47, is set to go free after pleading guilty instead to two counts of attempted armed robbery and one count of manslaughter from a 1984 stickup that ended with his best friend, Eric Batiste, fatally shot outside a convenience store on South Broad Street in Broadmoor.
Toca’s release almost certainly means the U.S. Supreme Court will scrap a scheduled hearing this spring on whether its 2012 decision in a case known as Miller v. Alabama, barring mandatory life sentences for juvenile convicts, is retroactive. The high court in November took up Toca’s case, above others, to settle an issue that affects about 1,000 convicts in Louisiana and three other states that have refused to apply the court’s ruling to older juvenile lifers.
A spokesman for Cannizzaro’s office said the DA will join in a motion with Toca’s attorneys to withdraw the Supreme Court case.
Toca, appearing briefly in court Thursday morning, pleaded guilty to the manslaughter count under an “Alford” plea, meaning he did not admit guilt but conceded that strong evidence could have led to his conviction. He returned to Angola State Penitentiary for processing, with his release expected late Thursday or Friday.
Newly elected Criminal District Court Judge Byron Williams granted the joint motion in a case that the Innocence Project New Orleans had pursued on Toca’s behalf for more than a decade. DA’s Office spokesman Christopher Bowman credited a warming relationship with Innocence Project attorneys, along with Toca’s productive years behind bars, for the decision to let him go free on the reduced charges.
Bowman called it “a just outcome,” also citing the vehemence of Batiste’s family in urging Toca’s release and the fact he will remain on parole for another 30 years under the deal. “In light of all those facts, the district attorney believed he was no longer a public safety risk,” Bowman said. “The District Attorney’s Office ... is not afraid to take a look at older cases.”...
Bowman insisted that the DA’s decision to come to a deal on Toca’s release was unrelated to the pending U.S. Supreme Court case, in which Cannizzaro’s office had been gearing up to argue against the retroactive application of Miller v. Alabama.
The high court didn’t ban states from sentencing some young killers to life without parole. But the 5-4 majority opinion insisted that courts must first weigh a defendant’s youth, adding that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” The court said “youth matters for purposes of meting out the law’s most serious punishments,” citing “children’s diminished culpability and heightened capacity for change” when compared with adults.
In legal filings, Cannizzaro’s office argued that it would be a fool’s errand to force local judges, years or decades later, to discern a long-ago juvenile’s capacity for change. Advocates for juvenile lifers argued that the task would be made easier because judges can review an inmate’s record while behind bars. And they saw Toca’s case as a promising bellwether for what the high court justices might do....
According to the state, 272 Louisiana inmates had been sentenced as juveniles to life without the possibility of parole as of April 2013 — the bulk of them, like Toca, having been sentenced before the U.S. Supreme Court decision. State Supreme Courts in Pennsylvania, Michigan and Minnesota also have found that Miller v. Alabama does not apply retroactively, setting up the fight at the U.S. Supreme Court.
Toca’s vacated conviction and release will leave the issue unresolved for now, said Cara Drinan, an associate professor of law at Catholic University of America. Still, she expects the Supreme Court to take up the retroactivity question relatively soon in some other case, now that it has signaled its interest in settling the issue. “For George Toca, this is a victory and a great thing,” Drinan said. “For those of us looking at the bigger issue, and for the hundreds of people waiting for a resolution, we’ll have to wait.”
Examining the sources of an ever-aging US prison population
This Wall Street Journal article, headlined "U.S. Prisons Grapple With Aging Population: More Middle-Age Offenders Are Entering or Re-entering Facilities, Research Shows," explores why and how the population of incarceration nation is aging. Here are excerpts:
Criminal-justice experts often attribute the older prison population to harsher sentencing policies and antidrug laws adopted in the 1980s. The conventional wisdom is that enforcement of these laws led to longer sentences and more time served, which, in turn, is rapidly driving up the average age of inmates.
New research, however, offers an alternative view: The population of graying prisoners has exploded in recent years largely because more offenders ... are entering or re-entering prison in middle age. It is a finding that could force states to rethink their efforts to tamp down on the escalating costs of caring for older inmates.
“People are getting arrested and sentenced to prison at a higher rate in their 30s, 40s and 50s than they used to,” said Shawn Bushway, a public policy professor at the University at Albany who co-wrote a coming study on the aging of those incarcerated.
The average inmate generally costs $20,000 to $30,000 a year to incarcerate. Elderly prisoners, often defined as those older than 50, cost as much as three times more, researchers estimate, because they are more likely to have chronic medical conditions that require expensive treatments.
The population of U.S. prisoners over the age of 44 grew more than 8% annually from 1991 to 2011 — four times the rate of prisoners under the age of 35, according to the Bureau of Justice Statistics, the research arm of the Justice Department. The proportion of inmates 54 years or older nearly tripled in that time, from 3% to more than 8%. At the end of 2013, about 270,000 U.S. inmates were 50 years or older, out of a total prisoner population of more than 1.5 million, according to BJS.
Mr. Bushway’s research, based on U.S. Census surveys of state prisoners spanning from 1974 to 2004, suggests the trend is linked to high rates of reported drug use among older inmates — particularly those who came of age in the 1980s ... and have cycled in and out of prison for much of their adult lives....
A separate study on aging prisoners, funded by the Bureau, analyzed data from South Carolina, North Carolina, New York and California, where the proportion of prisoners 50 years or older more than doubled since 2000. The researchers, economist Jeremy Luallen and statistician Ryan Kling of consulting group Abt Associates, concluded that “rising admission age is the primary force driving the increase in the elderly group.”
The changing nature of offenses over time doesn’t explain the trend, nor do changes in sentencing severity, which had “virtually no impact” on the size of the group, they wrote. “Policy makers are missing an important part of the problem,” Mr. Luallen said in an interview. As states try to rein in costs of mass incarceration, Mr. Luallen said, they would do well to focus more on the flow of older people into the prison system than on reducing their sentences.
“Changing sentencing laws won’t affect” the increasing number of older prisoners, said John Pfaff, a professor at Fordham University School of Law, who studies mass incarceration. “You need to change the behavior of the district attorneys.”
The issue of recidivism continues to pose problems for state governments struggling to contain the costs of mass incarceration. A 2014 U.S. Bureau of Justice Statistics study that examined state prisoners released in 2005 found that about two-thirds were arrested for a new crime within three years.
Harsher laws, such as those that mandate a life sentence after a person is convicted of three felonies, indisputably have led to more time behind bars for some. Bryce Peterson, a researcher at the Urban Institute, said longer sentences have “some effect” on the aging prison population. “It would be misleading to downplay that too much.” Mr. Peterson said he believed that Messrs. Luallen and Kling would have found that the length of time served in prison played a larger role in the graying of the inmate population had their study looked back further than 2000.
With overwhelming public support, Japanese Justice Minister continues with capital punishment
As reported in this news article, "Japan is to continue applying the death penalty after over 80 percent of the country's population expressed their support for the measure, media Thursday cited Justice Minister Yoko Kamikawa as saying." Here is more:
A recent government survey revealed that 80.3 percent of respondents backed the death penalty, while 9.7 percent felt that it should be abolished. Kamikawa termed the results as positive and said strict and careful measures would continue in this regard.
She said there was no intention of revising the current policy in the short term, despite having hinted at times the possibility of introducing life sentences for capital crimes. "Most people believe it is unavoidable for those who committed extremely malicious crimes to face (execution)," Kamikawa said, according to the Asahi daily newspaper.
Kamikawa also made a reference to the global trend against the death penalty and the petition by activists for Japan to end capital punishment. "It is a problem associated with what country Japan should be, and it is (the Japanese people's) business," she said.
Eleven convicts have been executed since the current government took office in December 2012. Japan, along with the US, is the only developed and democratic country that still imposes the death penalty.
I tend also to include India on a list of "developed and democratic country that still imposes the death penalty," but maybe some would dispute characterizing India as developed.
"The Eternal Criminal Record"
The title of this post is the title of this important new book by James B. Jacobs. Here is a description of the book via the publisher's website:
For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.
The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers. Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain. While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.
In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat. But convicted persons have rights, too. Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.
Some end-of-month highlights from Marijuana Law, Policy and Reform
Though it has been less than two weeks since my last round-up of notable new posts from Marijuana Law, Policy and Reform, a lot of cannabis commotion justifies another link review:
- "Medical or Recreational Marijuana and Drugged Driving"