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November 18, 2009
Two notable new speeches from AG Eric Holder
This week on the DOJ website one can find the text of two speeches given by Attorney General Eric Holder that criminal justice and sentencing fans ought to check out. The more recent one, which was given yesterday at the Financial Fraud Enforcement Task Force Press Conference, includes this notable tough talk:I am pleased today to announce the launch of an interagency Financial Fraud Enforcement Task Force to combat financial crime. The Task Force is designed to strengthen our collective efforts -- in conjunction with our federal, state, and local partners -- to investigate and prosecute significant financial crimes relating to the current financial crisis; to recover ill-gotten gains; and to ensure just and effective punishment for those who perpetrate financial crimes....
In the tough economic environment we face today, one of this Administration’s most important missions is to draw upon all of the resources of the federal government to fight financial fraud in all of its forms. The Financial Fraud Enforcement Task Force will wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. We will marshal the criminal and civil enforcement resources of the executive branch to investigate and prosecute financial fraud cases; recover stolen funds for victims; address discrimination in lending and financial markets; and enhance coordination and cooperation among federal, state, local, tribal, and territorial authorities responsible for investigating and prosecuting significant financial crimes and violations.
This Task Force’s mission is not just to hold accountable those who helped bring about the last financial meltdown, but to prevent another meltdown from happening. By punishing criminals for their actions, we will send a strong message to anyone looking to profit from the misfortune of others: We will investigate you, we will prosecute you, and we will incarcerate you. We will be relentless in our investigation of corporate and financial wrongdoing, and will not hesitate to bring charges, where appropriate, for criminal misconduct on the part of businesses and business executives.
Striking a very different tone in a very different context, AG Holder spoke Monday at the Brennan Center for Justice Legacy Awards Dinner. His remarks there focused on the importance of effective defense counsel, and includes these notable comments:
A recent report commissioned by a joint resolution of the Michigan state legislature, for example, found counties in the state where defendants are charged and plead guilty to crimes that carry jail time without ever speaking to a lawyer. In other parts of the country, according to another report, defendants may sit in jail cells for weeks, even months, waiting for a lawyer. In one example, a 50-year-old woman charged with shoplifting spent 11 months in jail waiting for a lawyer to be appointed. Another woman charged with stealing $200 from a slot machine spent 8 months in jail before receiving a lawyer.
Even when counsel is appointed the appointment is oftentimes not meaningful, not truly effective. The most recent comprehensive national study on the state of indigent defense documented a Missouri county where the public defenders office started to refuse cases after its lawyers began averaging 395 cases a year, causing the State Public Defender Director to acknowledge publicly that with caseloads that high, mistakes were being made....
For me, this is an issue of personal importance and national conscience. As a judge, I saw firsthand how ill-equipped and unprepared defense counsel distort the entire system.
Ours is an adversarial system of justice — it requires lawyers on both sides who effectively represent their client’s interests, whether it’s the government or the accused. When defense counsel are handicapped by lack of training, time, and resources — or when they’re just not there when they should be — we rightfully begin to doubt the process and we start to question the results. We start to wonder: Is justice being done? Is justice being served?...
So, what is to be done? In order to fulfill the promises of Gideon and Gault, we need the engagement of partners at the federal, state, and local levels, both within and outside of government. Much good work has already gone into developing model standards for public defense systems, including the American Bar Association’s Ten Principles of a Public Defense Delivery System and the National Juvenile Defender Center’s Ten Core Principles for Providing Quality Delinquency Representation Through Public Defense Delivery Systems. I am grateful for organizations like the Brennan Center that are on the front lines of this effort, whether it is through education or litigation.
I want to emphasize education because I believe that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered....
At the Department of Justice, I have convened an internal working group to help me identify ways we can do our part in this effort. I’ve instructed them to leave no stone unturned in identifying potential funding sources, legislative initiatives, and other ways we can work with our state and local partners to establish effective public defense systems. I have personally met with leaders from the indigent defense community to learn more about the problem and to get their advice and ideas on ways the Department can help. And our Office of Justice Programs is currently planning a national indigent defense conference in February that will bring together public defenders from all 50 states.
There is much worthy of commentary in both of these speeches, but I am especially intrigued by AG Holder's assertion that he believes "that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered." I share that belief on a few issues — e.g., the use of acquitted conduct to increase sentences, the pressure innocent defendants may feel to plea guilty for fear of a huge trial penalty, the imposition of long sentences for non-violent crimes by some first offenders. But, with respect to repeat and violent offenders, I question whether many members of the public would truly be "shocked and angered" about how these defendants experience the criminal justice system.
November 18, 2009 at 10:45 AM | Permalink
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Comments
I watched a snippet of Mr. Holder's testimony today before the Senate Judiciary Committee. His prepared statements are all well and good (as prepared statements tend to be, having been drafted by talented subordinates). But it was almost funny, in a grim sort of way, watching him try to answer Lindsay Graham's question whether, if Osama bin Laden were captured tomorrow, would he have to be given Miranda warnings in order for his post-capture statements to be admissible in a civilian trial.
As you might imagine, Holder couldn't give a coherent answer to this question, since (1) the answer is obviously "yes," Osama would have to be given warnings, but (2) to say out loud that the foremost terrorist in the world is entitled to Miranda warnings would lift the curtain as never before on how foolhardy -- indeed absurd -- it is to treat acts of war as civilian crimes.
Posted by: Bill Otis | Nov 18, 2009 3:52:32 PM
Professor, you quote the AG as saying he believes "that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered." I could not agree with him more but will he do anything to shine a light on the broken system for which he is now responsible? I suggest that his house, the Federal Criminal Justice System specifically, is in desperate need of a good "cleaning" from top to bottom. A house rife with prosecutors who will stop at nothing including outright lies and fabrication of evidence through the manipulation of the involved parties and any other means to get a conviction.
In October you referenced an article from SSRN that poses the argument that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging "moral disengagement" in prosecutors. In my humble layman's terms, this simply says that the goal of the "system" is to get as many convictions as is possible, preferably resulting in jail time and anything goes to reach this goal. Oh, and don't forget Mr. Prosecutor, you are immune from any real "kick back" for your actions. That is unless SCOTUS comes to their senses and removes the immunity. One can only hope.
Professor you also say that you share the belief that the citizenry would be shocked and give the examples of, "the pressure innocent defendants may feel to plead guilty for fear of a huge trial penalty and the imposition of long sentences for non-violent crimes by some first offenders. I agree completely with these examples and would add that the "zeal" of the prosecutor aided and abetted by the equally ambitious federal probation officers who run "PSR's- R-Us and the lazy judges who allow them to "set" the sentence are major contributors to the problems. Once the threat of the "full weight" of the government is brought to bear, few have the resources to fight.
The first time non-violent offender is especially vulnerable as, generally, they have no clue as to how the system works and what they are facing. In addition if, as is often the case, he/she has incompetent defense council the outcome is never in doubt. They do the time but the felony tag is forever even if the sentence was only a term of probation.
Several months ago you graciously posted comments that I made in support of H.R. 1529 the “Second Chance for Ex-Offenders Act of 2009”. I am still a very strong advocate for passage of this legislation as a means of remedy for those first time non-violent offenders who are wrongly forced to suffer the lifetime stigma of a federal felony despite having paid their full debt.
Visit and join our group of supporters at Yahoo Groups, or e-mail me for a copy, and view a new booklet explaining the benefits of H.R. 1529 and telling the story of two people who deserve a "Second Chance".
Posted by: T Kinney | Nov 18, 2009 10:19:11 PM
Sorry, tried to post links to Booklet E-mail. No Go.
Posted by: T Kinney | Nov 18, 2009 10:37:26 PM
i have a major problem with this!
"for example, found counties in the state where defendants are charged and plead guilty to crimes that carry jail time without ever speaking to a lawyer. In other parts of the country, according to another report, defendants may sit in jail cells for weeks, even months, waiting for a lawyer. In one example, a 50-year-old woman charged with shoplifting spent 11 months in jail waiting for a lawyer to be appointed. Another woman charged with stealing $200 from a slot machine spent 8 months in jail before receiving a lawyer."
Just where is the folllow though that all of them had been released and all charges dismissed and that those in charge in those areas are NOW in CUSTODY! Every one of these individuals has major ammo for a massive lawsuit.
Posted by: rodsmith3510 | Nov 19, 2009 2:22:59 AM
Bill,
So what if OBL is given Miranda warnings?
Would key evidence against him be suppressed? Is this what you are trying to scare the lay people with?
Considering that OBL made plenty of non-custodial inculpatory statements, I don't think there is much of a danger of Miranda warnings making a difference.
No wonder why I never talk to the lay people anymore.
Posted by: S.cotus | Nov 19, 2009 2:50:23 AM
S.cotus --
"So what if OBL is given Miranda warnings?"
The idea that, immediately upon his capture, we should tell the most dangerous terrorist in the world, and a man likely to have a great deal of information we could desperately use to protect ourselves, that he has "the right to remain silent" is not merely misguided, it's outright insane.
"Would key evidence against him be suppressed?"
Of course it would. How could you not know that? Any unMirandized statements made after the beginning of custodial interrogation are automatically suppressed even if they are in fact voluntary. Dickerson v. United States, 530 U.S. 428 (2000).
"Is this what you are trying to scare the lay people with?"
What are you talking about?
"No wonder why I never talk to the lay people anymore."
If this is actually true, which I doubt, I feel sorry that you live in such a constricted world.
Posted by: Bill Otis | Nov 19, 2009 11:43:19 AM
Great posts by S.cotus and T Kinney
Scaring lay people is what conservatives do best.
They get "the folks" riled up with fear and anger then point to the crazed mobs they've incited as evidence the democratic process is on their side.
Never mind that it's easier by a factor of 100 to scare people than to honestly inform them about nuanced, complicated issues.
S.cots's question is apt. Other than the demogoguery factor of course, why not read OBL (or any other defendant at risk of losing life or liberty) his rights?
My father was a successful homicide detective for most of his career with a Southern California police force. He didn't see Miranda as an obstacle because he viewed the job as building sound cases, not tricking suspects or end-running their rights.
Conservatives' apoplexy at the notion of allowing terror suspects trial rights seems oddly reminiscent of their sometimes palpable contempt for the rights of ordinary U.S. citizens accused of wrongdoing.
T Kinney gets it, and I wish him luck in his efforts on behalf of the second-chance act.
Posted by: John K | Nov 19, 2009 12:36:55 PM
John K --
"S.cots's question is apt. Other than the demogoguery factor of course, why not read OBL...his rights?....My father was a successful homicide detective for most of his career with a Southern California police force. He didn't see Miranda as an obstacle because he viewed the job as building sound cases, not tricking suspects or end-running their rights."
I repeat: The idea that, immediately upon his capture, we should tell the most dangerous terrorist in the world, and a man likely to have a mountain of information we could desperately use to protect ourselves, that he has "the right to remain silent" is not merely misguided, it's insane.
Terrorism is real whether you like it or not. The people with whom your father dealt were criminals. They aimed to get rich quick (by far the most frequent motive) or settle some score or satisfy their lust or something along those lines.
Al Qaeda is something entirely different. It aims to destroy the United States, and got the ball rolling eight years ago with the most savage mass murder in our history. Radical Islam hasn't stopped (e.g., Ft. Hood) and they have no plans to stop.
Winning this war and defending ourselves depend on getting intelligence. To introduce yourself to your most important and malevolent enemy, upon his capture, with the warm assurance that he doesn't have to tell you a thing, is, I repeat, insane.
Posted by: Bill Otis | Nov 19, 2009 4:18:36 PM
Bill Otis lucidly explains the difference between Al Qaeda and the common criminal and why separate investigatory and adjudicating systems are needed.
Al Qaeda is not motivated by a profit motive--their aim is to bring America to its knees by any depraved means possible.
Columbo and his ilk are overmatched against this global threat.
Posted by: mjs | Nov 19, 2009 8:45:10 PM
"Terrorism is real whether you like it or not. The people with whom your father dealt were criminals. They aimed to get rich quick (by far the most frequent motive) or settle some score or satisfy their lust or something along those lines.
Al Qaeda is something entirely different. It aims to destroy the United States, and got the ball rolling eight years ago with the most savage mass murder in our history. Radical Islam hasn't stopped (e.g., Ft. Hood) and they have no plans to stop."
I agree completely...of couse that's what god made neutron bombs for. carpet bomb the middle east and be done with it. Then in 3 weeks to a month we could recolonize ....nice location for all the unemployed from here! As well as the criminals....The New Australia!
But sorry once you bring someone into U.S Custody by whatever way...THEY FALL under OUR LAW. Which requires you do things a specific way. You dont' like that LEAVE.
Posted by: rodsmith3510 | Nov 19, 2009 10:14:02 PM
rodsmith3510 --
"...sorry, once you bring someone into U.S Custody by whatever way...THEY FALL under OUR LAW. Which requires you do things a specific way. You dont' like that LEAVE."
Thousands and thousands of enemy soldiers have been "brought into U.S. custody" when they, like KSM, were captured on the battlefield, and until now NO ONE has thought they should be told that they have the right to remain silent.
Have you forgetten that, at Nuremburg, the victorious allies tried and in many cases executed Nazi officers? Do you think someone told them upon their capture that they had the right to remain silent? That seems quite implausible to me, but if you know differently, I'll be happy to examine the evidence.
Do you think that, notwithstanding the failure to give such a warning, it was impermissible to try to get them to tell us, for example, about the location of anti-personnel booby traps in Berlin, or hidden caches of weapons, or about the whereabouts of Jews still held in concentration camps? And when they divulged information like that, do you think the failure previously to give Miranda-type warnings rendered, or should have rendered, their statements inadmissible? If so, do you have any evidence that anyone responsible for the creation of the Nuremburg trials (which were, incidentally, military tribunals) shared your view? Or that such a view was later adpoted by any reviewing court?
"...You dont' like that LEAVE."
The death penalty also falls under our law; indeed, in 36 states and in federal jurisdition, it IS the law. It requires that the jury be given the option or recommending a death sentence. Since you don't like that, I take it that instead of being a hypocrite, you'll take your own advice and "LEAVE."
Will you?
Posted by: Bill Otis | Nov 20, 2009 11:50:15 AM
Don't you all think that OBL already knows our legal system? What difference would it make if he was read miranda, he already knows all that. The ones on here that say, "Oh, he might have evidence we need, and if we give him his rights, we won't get that information." That is crazy.
Posted by: DLJ | Nov 20, 2009 4:00:30 PM
DLJ --
"Don't you all think that OBL already knows our legal system?"
I don't know and neither do you. I sure don't know Sharia law (and neither do you).
"What difference would it make if he was read miranda, he already knows all that."
A criminal defense attorney pulled over for DWI also knows Miranda, even when drunk, but the fact remains that any statements he makes once questioned back at the station are inadmissible if he has not first been given his Miranda warnings.
The point, which you avoid, is that it would be crazy to tell the foremost terrorist in the world -- a man whose knowledge of al Qaeda operations, plans, and finances we urgently need to protect ourselves -- that he doesn't have to say beans and that's just fine with us. But that's exactly what Miranda does.
Posted by: Bill Otis | Nov 20, 2009 5:54:50 PM
Bill --
Al Qaeda isn't going to destroy America by blowing up buildings.
It's going to destroy America by goading opportunistic American politicians who probably never thought much of the Constitution in the first place ("just a god-damned piece of paper"...George W. Bush) to enact abominations like the Patriot Act, recruit phone companies to spy illegally on citizens and invade and occupy countries that never attacked us.
Posted by: John K | Nov 20, 2009 6:29:58 PM
John K --
"Al Qaeda isn't going to destroy America by blowing up buildings."
My prediction is that it isn't going to destroy America at all -- through explosives or the other means you mention. It will fail because we will come to our senses in time to understand the nature of the enemy and defeat it by doing whatever is necessary, as Franklin Roosevelt and Harry Truman did when they, respectively, authorized and used the atomic bomb to make it clear to our enemies that they would either surrender or cease to exist.
Of course there are those who brand Roosevelt and Truman "barbarians" for doing this. These people, looking down their noses in the peace and safety our victory in WWII bequeathed to them, find it easy to sneer at the toughness and resolve that bought them their easy lives. They also, in the breezy ignorance they think they can afford, overlook the fact that (1) the use of the bomb saved thousands of American lives that would otherwise have been lost in the invasion of Japan, and (2) that the bomb so pulverized and shocked the fascist Japanese Empire that it shook off hundreds of years of medieval, imperialist, brutal, shogun culture to emerge as a prosperous and advanced democracy.
And thus I hope we pulverize the jihadist culture now at our throats, so that we might bequeath to the next generation the safety that was bequeathed to us -- and to give the people of the Middle East and the subcontinent the same chance to free themselves of the remnants of the Dark Ages that the Japanese got.
Posted by: Bill Otis | Nov 20, 2009 11:34:44 PM
"Thousands and thousands of enemy soldiers have been "brought into U.S. custody" when they, like KSM, were captured on the battlefield, and until now NO ONE has thought they should be told that they have the right to remain silent."
Ahh but LEGALLY under our rules HE'S not a soldier. That means he's a civilian and the same rules that apply to any other civilian has to apply to him.
"Have you forgetten that, at Nuremburg, the victorious allies tried and in many cases executed Nazi officers? Do you think someone told them upon their capture that they had the right to remain silent? That seems quite implausible to me, but if you know differently, I'll be happy to examine the evidence."
No i haven't but considering what's coming out of cuba, afghanistan,irack it's apparent that our govt has. Also i was just reading about the Italian kidanning trial where the CIA was found guilty...of couse they didnt' bother to show up and defend themselves. One of these days OUR OWN people will face judgement and they themselves like you said set the rules..."i was just following orders" won't cut it.
"Do you think that, notwithstanding the failure to give such a warning, it was impermissible to try to get them to tell us, for example, about the location of anti-personnel booby traps in Berlin, or hidden caches of weapons, or about the whereabouts of Jews still held in concentration camps?"
of course not. but again we're talking about militiary members caught on the battle field...not a civilian in new york.
"And when they divulged information like that, do you think the failure previously to give Miranda-type warnings rendered, or should have rendered, their statements inadmissible?"
Yes of cousrse it should. you can't try individuals for actions taken in war.That are in line with the recognized rules of war. You get the info and act on it and move on simply keeping the dangerous ones contained till the end of hostilities.
"The death penalty also falls under our law; indeed, in 36 states and in federal jurisdition, it IS the law. It requires that the jury be given the option or recommending a death sentence. Since you don't like that, I take it that instead of being a hypocrite, you'll take your own advice and "LEAVE."
Will you?"
As for the death penelty i'm all for it when done properly. I have no problem walking up on someone in the middle of a capital crime who has been caught in the act and simply blowing their brains out.
Posted by: rodsmith3510 | Nov 21, 2009 3:56:38 AM
rodsmith3510 --
A quick response for now, on this Saturday afternoon, and limited to your last comment about the death penalty.
What you describe your willingness to go along with is NOT the death penalty. The DP is a post facto punishment ordered by the court, at the recommendation of the jury, after a conviction for murder. It is not blowing someone's brains out on the spot.
You have a clever way of avoiding the question, but it's still just an avoidance. So I will ask again. You said that those who don't like the legal system as it is should leave (Nov 19, 2009 10:14:02 PM). But the legal system as it is includes the DP as I described it -- a legal punishment you don't like. Therefore, in order to avoid being a hypocrite, shouldn't you take your own advice and leave?
Posted by: Bill Otis | Nov 21, 2009 4:20:52 PM
ahh but your the onw who is missing the point.
"What you describe your willingness to go along with is NOT the death penalty. The DP is a post facto punishment ordered by the court, at the recommendation of the jury, after a conviction for murder. It is not blowing someone's brains out on the spot."
when under our rules someone could kill an individual at home plate at yankee stadium in front of 100,000 people and 22,000,000 on national tv and the lead would be the "suspected killer" our system is broke. Our courts have ok'd the fact that the police and DA's can lie, cheat, fake evidence or HIDE it whatever it takes to win that conviction with little or NO recourse against them later when found out!....so sorry under that sytem the death penatly and let's call it what it is not some watered own initial! "DP".....IT'S DEATH. But under the conditions we have now in this country using it is CRIMINAL.
Of course i dont' expect YOU to admit it since by your own admission your ONE of them. As for my leaving ...WHY i'm NOT one of those trying to turn this country into the 21st century version of NAZI Germany or Soviet Russia!
Posted by: rodsmith3510 | Nov 27, 2009 4:02:06 PM
