Archive for October, 2009
This I believe
Oct 31st
Man is neither inherently good nor bad. I believe that we act in ways because we are, for whatever reason, compelled to do so. I believe that we, as a society, need to assign labels to define behavior, to make ourselves feel better.
As someone who stands in a room of judgment, day after day, and watches society impose its collective morality on those that it deems the outliers, I cannot help but believe that there is something fundamentally askew with us. That our desire to control, to bring order, to inject sense where there may be none has blinded us. That we have drawn lines so sharp and clear in the sand that we have forgotten that there is no such thing as good or evil. I believe that it is our perception of acts that classifies them as good or evil.
I believe that the man who is about to spend the next 5 years of his life for shooting someone else has the same capacity for evil as the man who is sending him there. I believe that there is none among us who could not lift a finger to hurt another; just as there is none among us who wouldn’t lift a finger to help another. I believe that our actions are the product of our circumstances and thus, we are capable of anything: good or bad.
I believe that there is no act, however good or bad, that cannot be explained by the circumstances preceding or surrounding it. I believe that if we only chose to pay attention to those circumstances, that we would understand that. I do believe that the majority of us are better at controlling our base desires, of having better hold on our emotions and it is merely that which we are punishing in others: the lack of self-control.
I believe that we all have a breaking point; a point at which “we” become “them”. Some of the nicest, most docile men that I have met are those that have taken another life. Some of the angriest, most close-minded men are those that seek to judge others without recognizing the same capacity in themselves.
I believe that in order for us to evolve as a society, to have more “good” than “evil”, we must stop judging. I do not believe that people should not be punished, but that punishment must come with understanding and with mercy. I believe that it is easier to paint those that do not conform to our notions of “good” with the same broad brush of “evil”, but that it is more damaging. I believe that it is harder to look behind the acts that we are judging and recognize that capacity for good, but that if we tried – sincerely – we would all take a step forward toward making ourselves “better”.
I believe that it is difficult to believe this, but believe it I must.
From the Ministry of “It has to sink in eventually, right?”
Oct 20th
![insp_captkirk[5]](http://apublicdefender.com/wp-content/uploads/2009/10/insp_captkirk5.jpg "insp_captkirk[5]")
The Death Penalty Information Center, in keeping with its tireless mission of boldly going where no man has gone before abolishing the death penalty has yet another “why didn’t I think of that!” report out today, pointing out (yet again) the stupidity of persisting with the death penalty in these financial times (and the general lack of cost-effectiveness of that method of punishment).
The study (available here) essentially says that the DP is far too costly to be viable these days. The report is a fascinating read for several reasons, but I’ll highlight just two. First, let’s get right to it. How much does the damn thing cost? From the report:
The high costs to the state per execution reflect the following reality: For a single death penalty trial, the state may pay $1 million more than for a non-death penalty trial. But only one in every three capital trials may result in a death sentence, so the true cost of that death sentence is $3 million. Further down the road, only one in ten of the death sentences handed down may result in an execution. Hence, the cost to the state to reach that one execution is $30 million. Sums like these are causing officials to rethink the wisdom of such expenditures.
Although arriving at the actual cost of the death penalty in a state is complicated, in some states $30 million per execution is a very conservative estimate:
In 2008, the California Commission on the Fair Administration of Justice released an exhaustive report on the state’s capital punishment system, concluding that it was “dysfunctional” and “broken.” The report found that the state was spending $137 million per year on the death penalty. The Commission estimated a comparable system that sentenced the same inmates to a maximum punishment of life without parole would cost only $11.5 million per year. Since the number of executions in California has averaged less than one every two years since the death penalty was reinstated in 1977, the cost for each execution is over $250 million. The state has also indicated it needs another $400 million to construct a new death row.
In Maryland, where a legislative commission recently recommended abolishing the death penalty, a comprehensive cost study by the Urban Institute estimated the extra costs to taxpayers for death penalty cases prosecuted between 1978 and 1999 to be $186 million. Based on the 5 executions carried out in the state, this translates to a cost of $37 million per execution.
In 1988, the Sacramento Bee found that the death penalty cost California $90 million annually beyond the ordinary expenses of the justice system, of which $78 million was incurred at the trial level.45 But the costs have increased sharply since then. According to the Los Angeles Times in 2005, maintaining the death penalty system now costs taxpayers more than $114 million a year beyond the cost of simply keeping the convicts locked up for life. This figure does not count the millions more spent on court costs to prosecute capital cases. The Times concluded that Californians and federal taxpayers are paying more than $250 million for each execution.
The study then goes through an examination of the opportunity costs and why the death penalty costs so much to begin with. But more interesting is the first part of the report, which is a poll of 500 randomly chosen police chiefs. Read pages 9-12 of the PDF report, but here are the highlights:
- The death penalty was considered the least efficient use of taxpayers’ money. Police chiefs ranked expanded training for police officers, community policing, programs to control drug and alcohol abuse, and neighborhood watch programs as more cost-effective ways to use taxpayers’ money
- 69% of those surveyed believed that politicians support the death penalty as a symbolic way of showing they’re “tough on crime”.
- Only 24% agreed that offenders think about the range of punishments before committing a murder.
- Of various statements about the death penalty, the one with which the police chiefs most identified was: “Philosophically, I support the death penalty, but I don’t think it is an effective law enforcement tool in practice.”
- 57% agreed (and 39% disagreed) that the death penalty is an effective deterrent.
This is just reinforcement for the argument that the death penalty should be abolished. CT came close last year, but was vetoed by the Gov. Good thing she likes polls so much; someone should show her this new report.
And because it’s been so damn long since we’ve had a video on this blog, I give you a related Ministry:
[youtube]http://www.youtube.com/watch?v=BpcqbbrfuzM[/youtube]
Drunk driving is different
Oct 20th
Ordinarily, on a criminal law blog, the words “is different” would usually be preceded by the word “death” and an accompanying rant about the futility of the death penalty and the special standards to be applied in deciding whether a State should be in the killing business (I do not disappoint: see next post). However, today we learn that our esteemed Chief Justice uses another “d” word to finish that sentence: drunk driving.
In an odd little dissent from the denial of cert in Virginia v. Harris, Chief Justice Roberts essentially argues that anytime police receive an anonymous tip that someone is driving drunk and they find that person, they should be able to pull them over and conduct an investigatory stop.
The story in Harris essentially was that some woman called the cops refusing to give her name, but said that Harris was driving drunk in a green Altima and wearing a striped shirt. The police found a green Altima in the general vicinity of where she said it would be, and the license plate was “close enough” to the partial description she provided. Importantly, however, Harris did not commit any traffic violations (damn those pesky drunk drivers not providing any bases for a pretextual stop!), so when he pulled over to the side of the road, the cop followed suit and initiated a traffic stop. It is not clear why he pulled over (probably because he was drunk and saw a cop following him) or what the cop initiated a stop for (probably because he was a cop and he could). Anyway, Harris reeked and was arrested.
Not so fast, said the Virginia Supreme Court, relying on Florida v. J.L. SCOTUS, in its wisdom, determined less than a decade ago that anonymous tips, by themselves are worth diddly-squat:
An anonymous tip has a relatively low degree of reliability, requiring more information to sufficiently corroborate the information contained in the tip. See J.L., 529 U.S. at 270. “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’ ” J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. at 329) (citation omitted).
The indicia of reliability of an anonymous tip may be bolstered when the tipster provides predictive information, which the police can use to test the tipster’s basis of knowledge and credibility. However, for such predictive information to bolster the tipster’s basis of knowledge or credibility, the information must relate to the alleged criminal activity. Providing information observable or available to anyone is not predictive information and can only “help the police correctly identify the person whom the tipster [meant] to accuse.” J.L., 529 U.S. at 272. An anonymous call that provides no predictive information leaves the police without a means to test the tipster’s knowledge or credibility. J.L., 529 U.S. at 271.
And it makes perfect sense. if this were not the case, I could call the police and say I saw Scott walking down the street, carrying an AR-15 and a suitcase full of meth and he told me he was going to go rob some prosecutors. That’d be enough for them to arrest him. Now, I know he’s not actually doing any of those things, but he’d be harassed a bit. Chief Justice Roberts’ response to this, though, is that “drunk driving is different”. Okay, he didn’t actually use that pithy phrase, but that’s essentially what he thinks:
The imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases. In a case like J. L., the police can often observe the subject of a tip and step in before actual harm occurs; with drunk driving, such a wait-and-see approach may prove fatal. Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.
Riiight. So a cop who is following a driver based on an anonymous tip couldn’t pull him over if the driver was say…driving erratically? No, of course not. That would make too much sense. There’s definitely more harm there than, say, a drug deal gone bad. You know how those cops love to point out to juries that drug dealers are violent types known to carry guns.
I don’t know why he chose to dissent in this case, but one can suspect that perhaps his whole intention isn’t really to distinguish between drunk driving and other offenses, but rather to do away with that pesky J.L. case altogether.
Either way, good thing he was all alone in his dissent. Well, besides that MADD amicus brief, which I won’t link to because this is a respectable, family oriented blog.
I’d probably run
Oct 18th
Over the last three months or so, I’ve twice had the experience of riding the elevator with a client. There’s nothing out of the ordinary about riding the elevator with the client, but these two particular times, the proverbial bell was tolling. Both times we were on our way to find out the verdict of a jury of my client’s peers.
Both times, I looked over and stared at the face of a man who had placed his faith in me and in the justice system. Some might call that foolish (I might be one of them) and some might call that rolling the dice. Both times, though, I couldn’t imagine what it felt like to be him.
As any regular readers left out there know, I consider myself able to empathize with the plight of our clients, to have some insight into their world and their though processes. But this…this was a foreign emotion to me. One that I could not duplicate in my own mind.
How, I asked myself, did they have the courage to step off that elevator and into that courtroom, knowing full well that they may never walk out again into those hallways and out those doors?
Maybe my experience with the system is a curse in this regard. I’d never, never (well okay, almost never) risk a jury trial. I’ve come to the conclusion that jury trials are a crapshoot. That you’re always taking an immense risk placing your fate in the hands of 6 (or 12) strangers, who might have their own agenda and their own skewed view of the evidence. That you’re placing your fate in the hands of your lawyer, who may – with the best of intentions – pick the wrong approach to convince your jury.
Everyone knows what the consequences are of going to trial and losing. It’s called the trial tax for a reason.
I’m more convinced than ever that I’d never take that risk. That I’d probably plead to something I didn’t do to spare myself the agony of the Russian roulette that is a jury trial.
I’m sure there are many more like me. Which means there are many, many more innocent people in jail than we currently estimate.
More than anything else, though, those two moments emphasized to me the awesome responsibility we have and the seriousness with which we have to execute our duties. We can get jaded after a while, but we all need to remember that simply by representing someone we are shouldering an awesome burden: the faith of another individual and the delicate fate of their freedom and liberty. This not only means that we have to zealously advocate for them, but to them as well.
I don’t think I’d have the gumption to step off that elevator to hear a jury’s verdict. I’d probably run.
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