Monthly Archives: April 2007

Should defendant’s level of maturity be an objective factor in determining duress?

This is the question posed to the CT Supreme Court in State v. Heinemann [pdf]. Curiously, the Court holds that

The flaw with the defendant’s proposal, however, is that, carried to its logical conclusion, it essentially would require this court to rewrite the entire Penal Code, crimes and defenses, to necessitate consideration of the age of young offenders for the ultimate purpose of defining heir culpability based on their vulnerability and susceptibility to negative influences and outside pressures

The gist of the defendant’s claim was that a jury instruction should have been issued stating

that his age also was a factor to determine how he would have perceived the threat. Specifically, he contends that this court should recognize the differences between a juvenile and an adult in maturity, sense of responsibility, vulnerability and personality traits, which make it more difficult for adolescents to resist pressures because of their limited decision-making capacity and their susceptibility to outside influences. Essentially, the defendant seeks an instruction that would have allowed the jury to factor his age into the defense, independent and regardless of how it relates to the age of his coercers, with an eye toward accounting for the differences in how adolescents evaluate risks

The Court recognizes that this certainly may be true, but states that it should be up to the legislature to make the determination. In a footnote, the Court sums up the position of amicus curae:

‘‘Recent research on brain development demonstrates that structural distinctions between the adult and adolescent brain account for differences in how adolescents evaluate risks and rewards. [N.] Chernoff & [M.] Levick, ‘Beyond the Death Penalty: Implications of Adolescent Development Research for the Prosecution, Defense and Sanctioning of Youthful Offenders,’ Clearinghouse Rev., J. of Poverty L. & [Policy] 209, 210 (2005) . . . . Specifically, the prefrontal cortex which manages long-term planning, selfregulation, and the assessment of risk ‘continues to develop and change through the course of adolescence.’ Id., 210. Adolescent decision making is therefore distinguished by not only cognitive and psychosocial, but also neurological deficits. Id. ‘‘These developmentally normal impairments in making decisions can be exacerbated when adolescents are under stress. Because adolescents have less experience with stressful situations than adults, they have a lesser capacity to respond adeptly to such situations. See [L.] Steinberg & [R.] Schwartz, ‘Developmental Psychology Goes to Court’ in Youth on Trial [A Developmental Perspective on Juvenile Justice, supra, 26]

This is a very interesting and fascinating new area of the law and one that is sure to come up in the future, especially in light of the fact that the Connecticut legislature is currently considering including 16 and 17 year olds in the category of juveniles.

What do you guys think? Should the mental proclivity of an adolescent be given its own independent factor?

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Life does not mean sixty

The Supreme Court released an interesting opinion today in Mead v. Commissioner [pdf], where the central issue was the retroactive application of a statute defining life as sixty years to inmates serving life sentences under a prior statutory scheme. At the time Petitioner committed his offense, life meant “natural life”. Subsequently it was changed to mean “not less than 10 to 25 years and not more than life”. Finally, it was changed to its current form, meaning “sixty years”. The Habeas Court rejected petitioner’s argument on the grounds that statutes affecting substantive rights are meant to apply prospectively only. The Supreme Court held that:

We conclude that § 53a-35b affects substantive rights and, in the absence of any clear and unequivocal expression by the legislature rebutting the presumption of prospective application, that the statute does not apply retroactively to persons sentenced prior to its enactment.

The Court does make an interesting observation, however. Petitioner’s counsel, in his reply brief, makes the argument that if the statute is not retroactive, then Respondent’s classification of the sentence as an indeterminate sentence is wrong. The Court seems to agree with this position, but then goes on to state:

We conclude, however, that we need not decide this issue which, as we noted previously, the petitioner raised for the first time in his supplemental brief and to which the commissioner has had no opportunity to respond.14 The petitioner makes no claim that, if we were to conclude that § 53a-35b is not retroactive, then the commissioner’s treatment of his sentence as an indeterminate sentence of twentyfive years to life imprisonment under § 53a-35 instead of a definite sentence of life imprisonment under § 53-11 would have some deleterious effect on him.

Accordingly, even if we were to assume that the commissioner improperly applied § 53a-35 to the petitioner, any such impropriety necessarily would be deemed harmless because the petitioner has not claimed that he will suffer any deleterious effect as a result of serving a sentence in accordance with § 53a-35 when § 53a-35b is not given retroactive application.


Monday morning jumpstart


Here are some interesting stories from this past weekend to get your juices flowing.


Minorities fare worse after being pulled over

Who knew? A federal study [pdf] found that while drivers of all races were equally likely to be pulled over, minorities (African-American and Hispanic) were more likely to be searched and arrested.
Police were much more likely to threaten or use force against blacks and Hispanics than against whites in any encounter, whether at a traffic stop or elsewhere, according to the Justice Department.

“The numbers are very consistent” with those found in a similar study of police-public contacts in 2002, bureau statistician Matthew R. Durose, the report’s co-author, said in an interview. “There’s some stability in the findings over these three years.”

Traffic stops have become a politically volatile issue. Minority groups have complained that many stops and searches are based on race rather than on legitimate suspicions. Blacks in particular have complained of being pulled over for simply “driving while black.”
What I’m interested in, is the age-old myth that women go scot-free more often than men. Us men can’t bat our eyelids or appear weepy and appeal to the sympathies of the officer. Do the statistics back this up?

Male drivers were more likely than female drivers to experience more serious police actions following a traffic stop. Males (3.2%) were nearly 3 times more likely than females (1.1%) to be arrested (table 8). Males (59.2%) were also more likely than females (54.4%) to be ticketed.

So I guess men are more likely to be arrested, but not ticketed. Aww shucks. Can’t complain anymore. Well, back to the racial disparities:

The racial disparities showed up after that point:

    Blacks (9.5 percent) and Hispanics (8.8 percent) were much more likely to be searched than whites (3.6 percent). There were slight but statistically insignificant declines compared with the 2002 report in the percentages of blacks and Hispanics searched.
    Blacks (4.5 percent) were more than twice as likely as whites (2.1 percent) to be arrested. Hispanic drivers were arrested 3.1 percent of the time.

Among all police-public contacts, force was used 1.6 percent of the time. But blacks (4.4 percent) and Hispanics (2.3 percent) were more likely than whites (1.2 percent) to be subjected to force or the threat of force by police officers.

Make of this what you will. What I am particularly interested in, rather than disparities in traffic stops, are disparities in sentencing. Anyone have any stats on that?

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testing new design

Since I have a theme-happy trigger finger, I’m testing out a new theme and any input would be appreciated. You can view it here [it will open in a new window, so you can compare both side by side]. Vote in the poll below to let me know which one you prefer or leave a comment if you’d like to see any changes in either design.


Inmates’ calls not paying for much

Costs of calls to inmates are high – up to $17 for 15 minutes – but the money earned by the state through this feature does not pay for much of anything in the Department of Correction itself.

Nearly five years after The Courant reported that little or no revenue generated by high-priced prison pay-phone calls has been funneled back to the prisons, Connecticut has continued the practice by spending much of it on state telecommunications, including computer tracking systems for law enforcement. Prisoner advocates say that in doing so, the state is balancing its budget on the backs of the inmates’ families, who tend to be among the poor and vulnerable.

Senator McDonald, the co-chair of the Judiciary Committee called it “a state-sponsored scam” and said it was “an outrageous intrusion on the rights of families with people in prison”. He thinks the money is better spent on re-entry programs.

Given that there is no more gate pay in Connecticut and re-entry and re-assimilation programs are…well…not very good, I agree that the State needs to spend more money on ensuring that released inmates have skills necessary to lead the good life and the support that is needed to achieve that. Whether that money comes from the “phone call fund” or some other source, I don’t really care.

Here are some of the stats:

Since 2001, the state has reaped $32.7 million from a contract the state Department of Information Technology holds with MCI, now Verizon Business. As part of the contract, the state keeps 45 percent of the profits the calls generate; MCI keeps the rest.Ninety-three percent of the state’s $4.5 million take in 2006 was spent on the non-prison functions – state e-mail, websites for towns and cities, computer tracking systems for law enforcement, information technology department staff costs and other computer and telecommunications programs.

Just $350,000 went to the state Department of Correction for inmate education and re-entry programs. And since 2001, the correction department saw none of the money during certain fiscal years. The practice goes on in several other states, advocates say.

There is another option: a lower pre-paid system that is only available at 2 facilities (out of 20) in the state. The costs of phone calls via these pre-paid systems are significantly lower.

Look, it’s pretty simple. We want inmates to have contact with family, to keep in touch with the real world so as not to lose a sense of self and belonging. This leads to happier inmates and easier re-integration upon release. This is a good thing. We want this. But it isn’t right to charge exorbitant sums (I mean, $17 for 15 minutes! Which one of us would keep a provider that charged that much?) from the families of those incarcerated and then siphon off those funds to do something else. If you’re going to charge that much, then keep those funds within the DOC and use them to improve the education and re-entry programs. Inmates families should not have to pay for new computers and law enforcement.

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A brief history of skepticism

EyeID has a fantastic follow-up post to the post discussing the Judge Hoffman editorial, entitled “Stages of denial: The numbers are on our side too“. You must read it. It traces the history of skepticism of wrongful convictions and the shifting arguments employed to counter the growing evidence that wrongful convictions do occur. Here’s a brief glimpse:

In the pre-DNA era, they disdainfully dismissed works like the Radelet study — a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years — pointing to its supposed flaws such as its reliance on “one-sided” materials like newspaper articles.Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem — by, for example, reforming demonstrable problems in eyewitness identification procedures — the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.

Read the whole post. Absolutely terrific! Bravo! What a blog!

Previous coverage:

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