Saturday, March 29, 2008

Convicting Innocents

At this link is a post titled "Who is Trying to Count Sentencing Mistakes?" Berman explores and readers offer helpful comments on this topic as well as the phenom of innocents' convictions. One in seven seems to be the low estimate.

This is not cool. Or maybe, if we are just trying to create more cheap felon labor, homelessness, and disrespect for the law, it is. Prison is grad school for criminals.

Tuesday, March 25, 2008

Friday, March 21, 2008

Sex Crimes: Where Nobody Wants to Go

This post, referencing an in-depth 4-part series by the Deseret Morning News (Utah) by Doug is a must read for all involved in the sex crimes arena, legislators, enforcers, and other professionals alike. The public could find a healthy dose of reality there as well.

This should explain why support and educational groups, such as Sosen, are so necessary and deserving of support. Victims and perps alike have special, albeit diffferent, needs that one who has not been there cannot possibly understand. Below are links to Sosen and related sites.

Wednesday, March 19, 2008

Criminal Law Blog

Kent's Crime and Consequences needed to be moved into the best crime and criminal category.

Monday, March 17, 2008

Rothgery Argument in Supreme Court

a policy of denying appointed counsel to arrestees released from jail on bond and by failing to adequately train and monitor those involved in the appointment-of-counsel process.
This is at the core of Rothgery v. Gillespie County, (scotusblogwiki) to be argued today in the Supreme Court. My prediction is that plaintiff Rothgery wins, case returns to the District Court for further proceedings.

Curious that the question arises in the context of a civil rights action. But he's already won his criminal case and is now seeking redemption, damages, for the violation. Loss of income, etc., for having to sit in jail in order to get a lawyer appointed, among other things. He is just one of the lucky ones who was actually innocent and won. Until we find a way to make counties and states pay for violations and policies that result in violations it seems clear to me that said violations will continue.

No wonder the County is fighting so hard to maintain their own, clearly wrong, policy.

The case has special significance for me because I was one of those in another county in Texas who was denied appointed counsel because I had made bond. I was also not even aware of the examining trial process to probe the existence of probable cause until today, when I read about it in the Fifth Circuit's opinion.

Even though he'd been arrested, brought before a magistrate, and read Miranda rights, according to the Fifth Circuit Panel,
the summary judgment evidence fails to establish that adversary judicial proceedings had been initiated against Rothgery during his magistrate appearance.
Here is my question, getting technical, if as the court says the affidavit was filed only to establish pc for arrest and not to initiate charges, if the hearing was not an "arraignment" which concededly triggers the right to counsel, why would Rothgery need to be held on bail? Why would he need a Miranda warning? Didn't Mirandization trigger the right to counsel all by itself?

And isn't getting pc for arrest the initial step in filing charges? Should we presume that arrests do not initiate adversary proceedings? Until when do they not initiate them. Until a prosecutor decides not to prosecute. Does that make sense? Not to me. So, in the court's opinion here, "investigation" is not an adversary proceeding. That almost makes sense until you see the circumstances in which the investigation was being conducted, and by whom. Until Rothgery's own lawyer got involved nobody thought to check the bona fides of the California "conviction." That's an investigation?

I must be too dumb to understand the reasoning behind the opinion. In fact, I confess, I see only conclusory statements and little reasoning.

UPDATE: Transcript of oral argument is here.
Thanks as always to Scotusblog.
FURTHER UPDATE: I notice that Bill Long, here, agrees with my assessment, although he blogged on it earlier I only noticed this now in reviewing who else has been blogging on it. Not many so far. Simple Justice on it here. Grits here (the comments are interesting). Orin Kerr here. I guess I was aware of the "examining trial" but by another name, preliminary hearing.

Sunday, March 16, 2008

"Supreme Court , Inc." in Numbers

Reading this made me feel exactly the way I felt after seeing No Country for Old Men, which won Best Pic: The bad guys are getting away with murder. So what? Here's a little snippet from a review of Alterman's new book, Why We're Liberals, by Scott McLemee who serves on the board of the National Book Critics Circle.
Immanuel Kant (a liberal) said the three questions facing philosophy were “What can I know?” “What ought I to do?” and “What can I hope for?” Politics is philosophy continued by other means, so these puzzlers still apply.

Well, we know, from the polling data, that the right wing’s claim to speak for the majority of American opinion is untrue. But Alterman never really addresses what liberals (or progressives, or whatever) ought to do. Nor, subtitle notwithstanding, does he ever address what one might reasonably hope for in the post-Bush world.

Back on topic, quoting Rosen, "exactly how successful has the Chamber of Commerce been at the Supreme Court? Although the court is currently accepting less than 2 percent of the 10,000 petitions it receives each year, the Chamber of Commerce’s petitions between 2004 and 2007 were granted at a rate of 26 percent, according to Scotusblog. And persuading the Supreme Court to hear a case is more than half the battle: Richard Lazarus, a law professor at Georgetown who also represents environmental clients before the court, recently ran the numbers and found that the court reverses the lower court in 65 percent of the cases it agrees to hear; and when the petitioner is represented by the elite Supreme Court advocates routinely hired by the chamber, the success rate rises to 75 percent."

Talking public safety, businesses will surely be encouraged to keep unsafe products on the shelf longer, and be slower to make improvements. 'By and large, the Supreme Court defers to agencies that refuse to regulate public health and safety. “The industry has a lot of money, and they can routinely hire the biggest names in the biggest firms, while we’re doing it on our own,” Zieve, of Public Citizen, says. “We don’t charge anything — we’re free. It didn’t cost $250,000 to get us to write the brief.”'

Jeffrey Rosen, NYT Magazine


Prison Nation: A Response

NYT Published: March 16, 2008 (more letters at link)
Editorial: Prison Nation (March 10, 2008)

Re “Prison Nation” (editorial, March 10):

The United States prison population is out of control. Minimalist efforts such as alternatives to incarceration and parole reform may be politically palatable, but they will have no significant effect.

The real magnitude of this issue can best be grasped through comparison with incarceration rates in Western Europe. The United States incarceration rate is five times that of Britain or Spain. If we reduced our prison population in half, then in half again, and finally in half again, we would have fewer than 300,000 men, women and children in our prisons and jails, rather than 2.3 million, yet our incarceration rate would still be greater than that of Germany and France.

The only way to meaningfully reduce our prison population is to decriminalize drug use and provide drug substitution and treatment to those in need. A national program of harm reduction is the only way to reverse what you have aptly described as a “Prison Nation.”

Robert L. Cohen
New York, March 11, 2008

The writer, a former medical director of the Montefiore Rikers Island Health Services, was appointed by the federal courts in Michigan, Connecticut and New York to monitor the medical care of prisoners.

Friday, March 14, 2008

Public Not Pissed Off Yet?

Link here to an update of the Second Chance Act over at Doc Bermans. Here also, for the first post on it. Wall Street is always interested in the costs, but not always for the right reasons. In this case the costs of the over-incarceration, and now the costs of the remedy. Sounds about right. Charge the public to create a problem, charge again to fix it. If I did that in my business I'd have a lot of pissed off customers.

I will say that we seem to be trying to get this ship moving in the right direction.

Tuesday, March 11, 2008

Follow the Money: (Not the Spitzer Affair)


Sex Offenders, The Constitution, and Your Tax Dollars

Very interesting display of a waste of your tax dollars here and here.
Both, from the New York Times, picked up by Doc Berman, show how the federal government can take the lead. Only in these instances, the wrong direction being taken. Backwards is not forward.

I sure hope we get real soon. Perhaps asking too much there.

Friday, March 07, 2008

Mass Incarceration and the Liberal

Insights into the politics of crime from Doug at this permalink

Recent ideas for reform include asset forfeiture for sex crimes. I happen to think that this would be a solution worse than the problem it seeks to solve, as with registries. Money isn't a motivating factor in this type of crime, in contrast to the drug trade.

But whether I am "liberal" or "conservative" on this point is an intriguing question.

Crime is obviously not a good thing and over-incarceration (and over punishment) is even worse than the alternative. We have definitely forgotten the old saw that it is "better to let ten guilty go free than to convict one innocent man".

So in the spirit of conservation, liberation, AND bipartisanship let's reach across the aisle and return to the mindset of the old saw. All it takes is budget cutting. Cut the crime fighting budget. Period. It's just that simple. I will offer that this is definitely a fiscally conservative position in addition to being socially conservative.

Even so, I think of myself as a "liberal" these days because I'm more libertarian than not, and I agree with redistributing wealth up to a point and disagree with a system that lets the uber rich abuse the rest of us just because they can. I say this tongue in cheek but have observed that the recent period of "Republican" rule has allowed exactly this type of abuse to occur, almost unfettered. It would have been unfettered if the rich had their way.

Examples in point: gasoline prices, home prices (mortgage abuse). These two elements of the economy have almost single handedly produced the current recessionary market in my view and both could easily have been avoided. Both gasoline and homes are akin to "utilities" or necessaries that require a robust regulatory oversight.

So I have just one question. How did we turn a budget surplus 8 years ago into massive deficits and recession. Maybe even stagflation. OMG I'd love to blame the liberals for this as well as for overincarceration, but I think I'd be wrong.

Sunday, March 02, 2008

Barack Not Black Enough

Shelby Steele's thesis (A Bound Man) published January 2008 is already outdated.
The part where he says Barack can't win, I mean.

The book is exceptionally well written and as a hyphenated American myself (Japanese-) I welcomed the perspective. I just think it's counter productive. I had to be taught that I was different before I knew I was. I'm just human, my blood is red, and I bleed, too.

Climbing Incarcerations

It's almost time to write up the next Newsletter. And don't wait to join the Baseball action.

Meanwhile, the Prison System is a prime example of runaway, ratchet-up spending. Speaking of Convicting the Innocent on my blog a few days ago, I have to repeat: the more we spend to convict and imprison them, the more we'll convict and imprison. Make sense? Spend more convict more. Spend less convict less. Sounds scary. Then consider how much safer we are with more ex-convicts among us than with less. How much safer are we now than ten, twenty, thirty years ago?

The recent Pew Center Press release on Numbers held in US prisons, begins:
Washington, DC - 02/28/2008 - For the first time in history more than one in every 100 adults in America are in jail or prison—a fact that significantly impacts state budgets without delivering a clear return on public safety. According to a new report released today by the Pew Center on the States’ Public Safety Performance Project, at the start of 2008, 2,319,258 adults were held in American prisons or jails, or one in every 99.1 men and women, according to the study. During 2007, the prison population rose by more than 25,000 inmates. In addition to detailing state and regional prison growth rates, Pew’s report, One in 100: Behind Bars in America 2008, identifies how corrections spending compares to other state investments, why it has increased, and what some states are doing to limit growth in both prison populations and costs while maintaining public safety.