Monthly Archives: August 2007

Rewind: Is the “broken window” theory itself broken?

Brr. It sure is freezing in Vladivostok! The vodka’s great, though 🙂 However, seeing some ramshackle buildings here brought to mind this old post from March 2006:


The Boston Globe had a fascinating article a few weeks ago, that I just ran across (so my apologies if this has scorched its away across the blogosphere and I’ve missed it). Is the “broken window” theory a legitimate theory?

The broken windows theory first came to prominence in 1982, when criminologists George Kelling and James Q. Wilson published a lengthy article on the subject in The Atlantic Monthly. The theory, as they explained it, holds that people are more likely to commit crimes in neighborhoods that appear unwatched and uncared for by residents and local authorities.

The crux of Wilson and Kelling’s argument was that perceptions affect reality-that the appearance of disorder begets actual disorder-and that any visual cues that a neighborhood lacks social control can make a neighborhood a breeding ground for serious crime. As Kelling and Wilson put it in The Atlantic, ”one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”

The remedy for this, as proposed by Wilson and Kelling, was to get tough on the small crime. Small crime begets big crime, the theory posits. So if we nip crime in the bud, as it were, neighborhoods will be safer and more peaceful.

Recently, however, new critics have emerged and old ones have been emboldened by the rising crime rates in Boston and elsewhere. One widely read challenge comes from ”Freakonomics,” the best-selling book by University of Chicago economist Steven D. Levitt and journalist Stephen J. Dubner, which presents a controversial theory claiming that the legalization of abortion in the 1970s was the biggest factor in the crime drop of the 1990s. According to this hypothesis, the decline in the birth of unwanted, often poor and fatherless children in the ’70s, led to a decline in the number of juvenile delinquents in the ’80s and hardened criminals in the ’90s. As for broken windows, Levitt and Dubner write, ”There is frighteningly little evidence that [Bratton’s] strategy was the crime panacea that he and the media deemed it.”

I could quote the whole article, but that would be wrong, so please take 5 minutes out of your day to read (if you haven’t already) and then come back to give me your thoughts (if you’d like).

Personally, I don’t think the broken window theory, by itself, is the cure for crime. It strikes me as rather simplistic and ignorant of the underlying rationale for crime: social and economic environment. Maybe this is the defense attorney in me speaking, but I believe (perhaps foolishly), that most tendencies to commit crime can be traced to a disadvantageous socio-economic background.

Rewind: Deal or No Deal?

Bonjour from Lyons! It’s the middle of the week and Gideon is lazily sitting on the Riviera sipping some shom-pan-ya. While doing so, it occurred to him to pose this question, from February 2007, again (ps: For those might be confused, these posts have been written in advance and scheduled to post in the future):

Mike at C&F lamented yesterday that plea bargaining

has turned our system into one that is supposed to convict the guilty and free the innocent into a risk-management system. It has turned lawyers into actuaries . “Is going to trial worth the risk?” is what lawyers ask clients. Innocence has little to do with the decision to take a deal.

Cases that highlight this dilemma abound. Julie Amero, for one. The border agents case is another. So what can be done? The logical suggestion is to leave the state to its burden of proof in each case and take everything to trial.

Windypundit jumps in with some radical ideas for criminal justice of his own. His suggestions:

Reverse Truth-In-Sentencing – if you don’t serve felony time – a full year – it doesn’t count as a felony.Performance Pay for Indigent Defense – pay indigent defense lawyers for their performance.

Punishment in Lieu of Exclusion – If a judge rules that a piece of evidence was obtained illegally, allow the prosecutor to immediately indict the responsible police officers for “improper evidence obtainment,” a newly-created crime with a mandatory minimum sentence of, say, 60 days in jail. If the officers are convicted and sentenced before the main criminal case goes to trial – easily done if the prosecutor and the officer have agreed ahead of time that the officer will plead guilty immediately – the illegally obtained evidence is allowed back in.

Limited Incarceration Without Trial – This would allow the worst of the worst to be imprisoned even if the cases against them have technical flaws.

No Miranda Warning

While I have not yet given full thought to his suggestions, one not so radical idea did seem to me a way to streamline the process. As several jurisdictions have done, all interrogations should be videotaped. This, in many instances, will eliminate the problem of the forced confession and lead to less Motions to Suppress.

This idea is gaining steam in some sectors, but I’d like to see it implemented nationwide.

Rewind: Should we shorten criminal trials?

Hello from New Zealand! Hope everyone is doing okay. There’s no jumpstart this morning – the Kiwis don’t like internet. So here’s a post from June 2005, in which I ask if we should do everyone a favor and shorten trials.


Have opinion, will travel asks if we should put the 6th Amendment up for bid. He talks of a story from England that the Lord Chancellor is cutting down criminal trials in order to save costs.

By having an agreed statement of facts, he explained, lengthy fraud trials could be made much shorter. If cases over-ran, lawyers – rather than taxpayers – would absorb the extra costs.

So the question is: would this work in the U.S.?

A couple of things jump to mind – one is that the state has to prove every element beyond a reasonable doubt. If parties in a criminal trial were to stipulate to certain facts, that would eat into that hallowed principle. It then leads into issues of due process and equal protection that I’m just not willing to discuss on a Sunday.

The other thing that pops into mind is that if the lawyers are going to be forced to pick up the tab for lengthy trials, there will be greater incentive to pressure their clients into taking deals that might not be favorable. The state would have the incentive to be hard-lined about their offers and defense attorneys, knowing that they’d have to pony up money, would perhaps not go all the way.

It must be noted that it seems that in England, trials last far longer than they do here, so perhaps the motivation might not be as strong in the U.S. A standard trial here could last anywhere from one day to three weeks. You’d be hard-pressed to find a trial that goes on for over a year. The percentage of cases going to trial is also minute as compared to cases that end up in pleas.

Also, Ken explores the question of indigent defense by contract.


Rewind: Did you have a public defender or a lawyer?

While the blog is vacationing in Bora-Bora, this is as good a time as any to remind my readership that if you wonder whether public defenders are lawyers, you are not alone. Here’s a post from March 2005:

So says State Senator Newton, during a public hearing held on January 31, 2005 on the Anti-Death Penalty Bill. The question was posed to Lawrence Adams, a man from Massachusetts, who spent 32 years in prison (roughly 9 of them on death row) before he was exonerated and released. He came to CT to testify against the death penalty. The transcript reads as follows:

SEN. NEWTON: Thank you. I want to thank you for coming to Connecticut to give your testimony. When was it that they found the DNA, after how many years?

LAWRENCE ADAMS: It wasn’t DNA. It was exculpatory evidence. It took 31 years.

SEN. NEWTON: Thirty-one years?


SEN. NEWTON: Did you have a public defender?


SEN. NEWTON: Did you have a public defender or a lawyer?

LAWRENCE ADAMS: In the beginning, I had a public defender.

[CHAIRMAN OF THE JUD. COMMITTEE] SEN. MCDONALD: All right. Senator, I really don’t even know how to address that.

SEN. NEWTON: The point I’m trying to get at, and you all laugh, but this is very serious, is that in some cases, it’s been proven that those who can afford attorneys have a better chance. I’m not saying anything bad about public defenders, but in some incidents, you know, cases have been proven.

If you have a high-price lawyer, you stay out of jail. You know, that is the point I was trying to get to, not to disparage anything about our public defenders throughout this country. When you have your own lawyer, it seems that he might be able to collect that evidence, as you said. You know, that was the only point that I was making.

LAWRENCE ADAMS: It has been my experience, right, that I would say that I was unique in the fact that my lawyer, Mr. John Battarac, did work that I don’t think anybody else could have done. I was fortunate to that extent.

SEN. MCDONALD: Thank you very much. I should just note for the record that actually the Chief Public Defender’s Office has probably the greatest breadth of information in history on the defense of capital cases than any other group of attorneys in the state. Are there other questions? Senator Handley followed by Senator Cappiello.

Then the hearing continues.

Amazing, just amazing. Not like we don’t get crap from our clients anyway, now we have a state Senator who doesn’t acknowledge that public defenders are lawyers. Not once did the Senator make the distinction in terms of public defenders as opposed to private attorneys. He kept referring to private attorneys simply as “attorneys”.

In any event, if you have time time, read as much of the transcript as you can – it’s pretty powerful, moving stuff.

It’s alway sunny in…..

This blog is going on vacation! (well, not the blog itself, but I am.) Fear not, however. I have entrusted the job of sporadically updating the blog to Miranda and taking a cue from Anne, I have some old posts lined up for republication. Hopefully, everything goes well and there will be plenty for you to read.

Also, you can always find something interesting by clicking on one of the links in the sidebar.

See you in September!

SOL eliminated for sex crimes with DNA evidence

Another important criminal justice bill [text of bill – Ctrl+F and search for “DNA”] signed into law by Governor Rell is this one that eliminates the statute of limitations for certain sexual assault crimes. There are two provisions however:

  1. The crime must have been reported within 5 years of its occurrence
  2. DNA must identify the perpetrator.

These are two very important restrictions. It is imperative when, years later, an individual is accused of a crime that the State be certain to a high degree that the individual is indeed the one who committed the crime. Imagine the severe hurdles if the SOL for all sex crimes was eliminated. It would be impossible to defend against.

Judge Downey withdraws nomination

After his nomination hearing was abruptly ended yesterday, Judge Downey today asked Governor Rell to withdraw his nomination to the Appellate Court. She issued the following press release:

Judge Downey has asked me to withdraw his nomination to be a Judge of the Appellate Court. I respect Judge Downey’s decision. I am sure it was a difficult one for him and his family.

I will be submitting a new nomination to the Judiciary Committee in the near future.

His withdrawal letter can be found here [pdf]. Who’s next?

HT: CTLP and CT News Junkie