Tuesday, September 29, 2009

Off the Wall

Show me what a man reads and I will tell you what kind of man he is.
Who said this?

Show me the books he loves and I shall know
The man far better than through mortal friends.

— S. Weir Mitchell

According to Book Browse, S. Weir Mitchell.

The phrase came to mind as I was reading John Keane's, The Life and Death of Democracy, (2009). Bio here. Here is a precious line from this work:

The struggle against blind arrogance and stupidity caused by concentrated power is never ultimately winnable, yet it is among the struggles that human beings abandon at our own peril. Democracy is a powerful remedy for insolence. Its purpose is to stop people getting screwed. Democracy is a good weapon for publicly exposing corruption and arrogance, false beliefs and blind spots, bad decisions and hurtful acts. It helpfully injects critical thinking and matter-of-factness into the design and operation of complex organisations and networked systems; above all it is an indispensable means of tackling problems (like climate change) for which there are currently no agreed definitions, let alone viable solutions. Democracy champions not the Rule of the People -- that definition of democracy belongs in more ways than one to the Age of Monarchy and Era of Dictatorship and Total Power -- but the rule that nobody should rule.

That's a mouthful.

Sunday, September 27, 2009

False Evidence: Fabrication, Subornation of and Use at Trial,

My pet issue has made it to the Supreme Court:

Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.

The case is Pottawattamie County et al v McGhee et al. (at Scotus wiki).

Far from impairing the judicial process, prosecutors must be held accountable for bad conduct. The judicial system would benefit greatly from the credibility this lends to notions of justice contrary to the arguments presented by petitioners.

SMART is not so smart at making you safer

All RECENT studies taking up the question whether sex offender registries are effective at what they purport to achieve, reducing sex crimes and making us and our children safer, do not in fact accomplish this purpose. Don't take my word for it. Do the homework yourself, search my site or consult Professors Corey Young's Sex Crimes Blog, Doug Berman's Sentencing Law and Policy blogs for newsy and scholarly articles on topic. Also visit SOSEN's website, now posting news and primary sources of information every day. You may wish to conveniently locate them on my sidebar.

Nonetheless here is a press release from SMART announcing that Ohio and the Umatilla Tribe are the first two jurisdictions to implement the SORNA (sex offender registration act passed under Pres. Bush) under the Adam Walsh Act.

Thesis: Supreme Court & Public Opinion

Friedman’s thesis about the influence of public opinion on the Supreme Court sees the justices and the people as partners in a “marriage” that bypasses the elected legislature and the president.

The Will of the People

Monday, September 21, 2009

Hate and Fear

Repairing Our Broken Justice System is the title of this piece found at Nation Mag, by Gara LaMarche, director of The Atlantic Philanthropies. I wonder if this is possible. Senator Webb's Criminal Justice Commission Act is directed at a similar issue: Hate and Fear institutionalized by wars on terrorism, drugs and now sex offenders.

He writes: The Constitution Project report, from a bipartisan commission chaired by Walter Mondale and William Sessions, provides a blueprint for action by states and the federal government. Implementing these steps must be a central element of infrastructure repair for the justice system.


the new domestic human rights movement points the way to a different future. Here, too, there is a blueprint: Human Rights at Home, a collaborative effort of more than forty organizations moving forward through the Campaign for a New Domestic Human Rights Agenda with a multipronged education and advocacy strategy.


At the center of our vision is achieving the state of justice in which race and gender and ethnicity are not the determinants of who ends up in prison or on an ICE airplane to the Mexican border, or winds up dead at the hands of an abusive husband or an out-of-control cop or soldier. We will have achieved a small but important part of that goal when the Supreme Court looks like the America of those whose rights it is the ultimate guardian. Yes, the Court should have some connection to and empathy with those who come before it challenging a powerful interest, whether it's the state or a rich corporation.

Friday, September 18, 2009

Local Restriction Survives

Clearly an uphill battle to humanize notions behind residency restrictions, as this loss in Miami-Dade court shows. Story at the link.

The ACLU promises to appeal.

I hope the people paying the legal fees to defend the ordinance are happy.

Sunday, September 13, 2009

Claim and Counterclaim

Lets examine Dr. Anna Salter’s "prize-winning work in which she cites studies finding that the average sex offender assaults more than 100 different victims during a lifetime." Because I am not aware of a single such study I had to take a few moments to review, briefly.

Dr. Salter's website is here. Does "average" mean most, about half? In what context ...?

Sex offender by definition means someone on the registry. You don't know who is a sex offender until they land on the registry. Dangerous pathological criminal is not the definition a rational mind would use to define sex offender based upon the information available at this time despite what we see on the registries, which is "criminal history" of conviction, and despite what Dr. Salter and Webster imply. I have not examined the registries carefully, but my gut tells me it is rare to see individuals with multiple convictions listed.

The claim re "average sex offender" and 100 victims was passed on by this professor, as if citing a fact:

Dr. Wendy Murphy, an Adjunct Professor at New England Law School, has an opinion piece entitled Sex offender laws flawed but critical. The editorial criticizes the recent Economist article (previously mentioned here), which Professor Murphy describes as a "puff piece about how sex offenders are treated unfairly and sex offender registries are barbaric."

Said response to the Economist piece were found here, Sex Crimes, in which Corey responds, in the context of sex offender registries:

Studies that show the incredible number of victims certain offenders have are irrelevant to the efficacy of sex offender registries except insofar as those instances of victimization occur after arrest, conviction, and release. Yet, in the article Murphy dismisses the use of post-release statistics (which are the only numbers we should care about in assessing the value of collateral restrictions). Pre-arrest numbers simply have no bearing on the subject. Further, the claim that, "the average sex offender assaults more than 100 different victims during a lifetime" is simply indefensible. There is no such evidence.

Peliminary Conclusion: So Murphy and Salter, two well educated pillars of the community are passing along misinformation for what purpose, by accident or mistake, or merely ignorance? It is hard to underestimate the damage these sorts of people cause among the rest of us, the unwitting accepting public.

Friday, September 11, 2009

Maryland Legal Update

Whats new in Maryland concerning laws pertaining to sex offenders?

Bills that passed in the 2009 session of the General Assembly are retroactivity, minors, photographs and one more I will have to review, all housekeeping sorts of things. An onerous bill to ban from public parks where children regularly gather reported unfavorably. In all there were 36 bills of which 4 became law. Curiously, re minors, retroactive registration is required, a topic addressed in the recent 9th Cir. panel decision discussed in this post.

Maryland currently does not have residency restrictions. These, and additional bans from public property (Md currently bans so from schools and day care property) would make it even more difficult for the ex felon to reenter society, create sex offender ghettos, and headache and expense to enforce. We see this from experience in Georgia, Iowa, Florida and other states that do this restriction.

Residency restrictions typically restrict within various distances from schools, day cares, bus stops and parks. In places this effectively bans so from large portions of the city, in some instances the entire metro area. Rural locale become the only place so may live. In Miami, a bridge causeway has become home to many. Homelessness is the only option for many.

Registration is not effective and should be reviewed. At a minimum the three tier risk category regime needs work. Too many on the registry do not belong there, do not require monitoring, and pose no danger to the community. The risk regime fails to account for this.

Registration is costly and tax payers do not see any benefits.

Registration has collateral consequences for ex offender's families, many of whom face stigma simply by being related to a registered person. This is unjustifiable given that most registered persons are either wrongly convicted, pose no danger, or are convicted of minor off-the-wall offenses as solicitation, aiding and abetting, public urination, possession of child porn, romeo and juliet and statutory sex that present no danger of recidivism, crimes that non puritan societies do not consider crimes. Most do not recidivate according to DOJ and all credible studies (95 percent).

Registration does not separate predators from the non dangerous variety.

Registration cannot forecast future crimes, or the geographical location of crime as thought to be related to the public disclosure of so residence addresses, and not even if the perp is a registered person as the recent Garrido case shows. The case spotlights the failure of registration to perform the intended function, which is prevention and public safety.

California is considering a registry for arsonists.

Registries create an underclass and movement toward tyranny, toward government sanctioned badges of poverty and slavery, an underclass of have-nots. Registries are a tool of oppression useful only to fear mongers and business seeking to maintain a cheap labor pool. As history tells it from ancient times to Hitler's Germany, Stalin's Russia, this is the beginning of the end of free society. The right wing, neo-con, southern churches and oil lobby have concocted this as part of a scheme to roll back the freedoms of the New Deal and liberal allies have taken the bait, hook, line and sinker. These are the same lobbies that seek to cut medicare and medicaid, children's health insurance, fight bitterly against a public health insurance option, seek to abolish the department of education and roll back a minimum wage law. Look at your neighbor, your elected representative, your mayor, your congressm or senator, and see if that is him or her.

It would be nice to know who is going to commit the next crime or sex crime but this is impossible to predict. Those convicted of sex crime are not so different from the general population of ex offender as to warrant the special attention they have received. Registries are a threat to freedom everywhere. Everyone deserves a second chance to make a first impression.

A Blue Chip Empirical Study of Registries Finds no Support that they are effective

Here is a Dec. 2008 piece from Amanda Agan at the University of Chicago Dept. of Economics, thanks again to Prof. Berman's unparalleled research. Available from SSRN.

Thursday, September 10, 2009

Retroactivity in SORNA Unconstitutional Punishment

This is huge. A favorable retroactivity opinion from a Ninth Cir Panel. Thanks Doug.

Here is Corey Young on this subject. Volokh weighs in too, calling the decision or opinion not clearly correct. But this disregards common sense in favor of a technicality and precedent established by a quasi political cum legal establishment, the Supreme Court of the United States. Imo a decision is correct, right, when it makes sense. The opinion can always be tailored to fit the decision. Thus, distinguishing a juvenile from an adult in this instance is simply a clever if obvious way to suggest that the effect of retroactivity on adults is punitive as well. Does anybody disagree that registration and its consequences are punitive in light of the many, many studies in recent years finding safety concerns are not well served by registration? How can we continue to maintain the fiction that registration's stated purpose is not punitive but promotes a public purpose?

It is well past time to review the notion that registration serves any good purpose whatsoever, retroactively applied or not.

Ruling is limited to juveniles adjudicated delinquent under the Federal Juvy act. I didn't know there was such a thing. Why is there?

Tuesday, September 08, 2009

On Health, Care, and the Battle on the Hill

Just a little something from Katha over at Nation Magazine. Let's git 'er done:

Listening to the radio earlier this summer, I heard a 59-year-old nurse named Robin Batin testify in the most heart-rending way before the House subcommittee on oversight and investigations, chaired by Representative Bart Stupak. When she developed invasive breast cancer, her insurance company, Blue Cross and Blue Shield, rescinded her coverage because of a pre-existing condition--dermatitis--even though her dermatologist called to say it was acne, not, as the company claimed, a precancerous condition. Stupak confronted the heads of Assurant Health, UnitedHealth and WellPoint with the fact that there are some 1,400 conditions that can be used to cancel a policy, most of them so minor and obscure that the executives had never heard of them. Between 2003 and 2007, the three companies saved $300 million by rescinding at least 19,776 policies. By the time Batin finally got her surgery, her tumor had doubled in size. The Congressmen were shocked--they had no idea. Neither did I. The program? This American Life. I love Ira Glass, but come on, people! "Rescission" should be a word on the tip of everyone's tongue by now.

As of this writing, it is far from clear how much of the vocal opposition to reform represents wider popular feeling and how much is a mobile mob of gun nuts, birthers and teabaggers paid for and organized by lobbyists and Republican outfits like Americans for Prosperity, Conservatives for Patients' Rights and FreedomWorks. Several polls show a majority of Americans still want reform. But polls don't mean much politically if everyone stays quiet. Where's the superb organizing the Obama campaign was famous for? Where's the pushback from the left--for the public plan, or even for single-payer? It may be a non-starter in Congress, despite the upcoming vote on Representative John Conyers's HR 676, but one thing you can say for single-payer--it's easy to explain and to understand.

Oh army of Obama supporters who swarmed the country less than one year ago, we need you back knocking on our doors and sleeping on our sofas. We need you to stand on street corners handing out fliers that explain what healthcare reform is really all about and how people can make sure it doesn't get swallowed whole by the drug and insurance companies. Surely you're not too young and strong and healthy and vegan to care about boring parent stuff like health insurance? The diss on you was always that you were infatuated with Obama's charisma and with vague notions of "change"--not with the long slog of political engagement. That isn't true, though, is it?

Sunday, September 06, 2009

Sources and Resources

Talk about a great week, today I found a Voice of Witness series book called, Surviving Justice: America's Wrongly Convicted and Exonerated. This came through Atlantic Monthly link to New Yorker piece hot off the press, Trial By Fire: Did Texas Execute an Innocent Man? by David Grann.

A quote:

In the summer of 1660, an Englishman named William Harrison vanished on a walk, near the village of Charingworth, in Gloucestershire. His bloodstained hat was soon discovered on the side of a local road. Police interrogated Harrison’s servant, John Perry, and eventually Perry gave a statement that his mother and his brother had killed Harrison for money. Perry, his mother, and his brother were hanged.

Two years later, Harrison reappeared. He insisted, fancifully, that he had been abducted by a band of criminals and sold into slavery. Whatever happened, one thing was indisputable: he had not been murdered by the Perrys.

Apparently, there is a Center on Wrongful Convictions at the Northwestern U. Law School mentioned by Grann.

Here are the final words of Josh Willingham, whose homicide may well become the first acknowledged by any state to have been executed in error:

“The only statement I want to make is that I am an innocent man convicted of a crime I did not commit. I have been persecuted for twelve years for something I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

Saturday, September 05, 2009

Sex Offender Registration Ineffectiveness Becoming Widely Accepted

Registries ineffectiveness is finally becoming mainstream, as this piece from WSJ shows. California's Sex Offender Management Board is recommending against adopting the federal requirements concerning risk assessment.