a public defender

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You are concerned, I am led to believe, about the support of the public. You are concerned about the victims’ families. You are right to have that in your mind. But in doing so, I implore you to consider the families of all the victims, not just certain ones. I ask you to listen to Walter Everett, whose son was murdered, but the defendant did not receive the death penalty. I ask you to go to your window or perhaps even step out onto the grand foyer in the legislature this morning and listen to the victims’ families who will gather there. Their wishes must mean something.

You’re concerned about appearing “soft on crime”, about life without the possibility of release not being “justice”. Perhaps you’re afraid of appearing weak. I think you’ve got it backwards, Governor. It’s not weak to abolish the death penalty. In fact, it’s just the opposite. It’s a show of strength to rid ourselves of this blight. It’s a show of strength to tell the families of victims that they will no longer have to wait decades to begin the healing process, to have their names dragged through the spotlight, to relive their painful memories. It is strong to say that we are not in the business of retribution. It is weak to say we believe in an eye for an eye. A man far greater than either one of us can ever aspire to be warned us that “an eye for an eye makes the whole world go blind”. We should take heed, Madam Governor.

Do not hang your hopes on fixing the death penalty either. Over the last few weeks I’ve heard much said about the length of the “appeals process”. I’ve heard much about these “endless appeals and habeas appeals”. There is nothing that you or the legislature can do (or have done) that can “fix” it. These appeals take so long and there may be so many of them, because it is what is Constitutionally required.

I know that at times you have taken the position that the Constitution is a suggestion, not a mandate, but here is your chance to show the people of the Constitution State that you, just like them, take pride in its protections. Recognize that if you do not sign this bill, it won’t magically make execution dates be set for those on death row. That isn’t going to come for years. If ever. It is strong to say that you will not let that happen, that you will be the force that drives the victims’ families closer to healing.

I want to say just a little bit about the definition of justice used by those in your party. Many a times did I hear Republican Senators say that the death penalty is the only proportional punishment for murder. That’s false, Madam Governor, because it isn’t. The death penalty isn’t even applied to people convicted of murder. If it were, our death row would be much larger. And if we’re in the “tit for tat” business, then why isn’t the punishment for assault a sound beating? Why isn’t the punishment for robbery gunpoint theft of the robber’s own belongings? Why isn’t the punishment for rape rape? Because we don’t do that, just as we shouldn’t kill those that kill.

The death penalty cannot be fixed because it must be extremely narrow. And by being required to be extremely narrow, it opens itself up to the whims and fancies of individual prosecutors. It opens itself up to being applied in a racially discriminatory manner. I’ll give you two examples:

1. Michael Ross himself. Prosecutors in New London declined to charge him with the death penalty, while those in Waterbury did not.

2. Russell and Adrian Peeler. One committed the murders, one did not. Russell is on death row, while is brother serves 20 years.

What is “justice” in either one of those cases? How do you fix it? You don’t, because you can’t. And since you can’t fix it, the right thing to do is to get rid of it.

The decision before you, Madam Governor, is a momentous one. As Sen. Williams said this morning, passage of an abolition bill was unthinkable a mere 10 years ago. Much has changed, including the attitudes of people living in this State. Our standards of decency and morality have evolved. Let us join the rest of the New England states and most of the civilized (and “uncivilized”) world in rejecting an antiquated punishment that has no place in modern society. We claim to be an enlightened people; let us put that on paper.

The pen is in your hands.

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Contrary to [the dissent's] assertion that the state ‘could have proffered’ additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt.

Justice Katz (author of Sanseverino I), dissenting in Sanseverino II, explains further:

In Salamon, only after we had examined the evidence at length did we conclude that a retrial was warranted because the evidence actually adduced could be a sufficient basis for a reasonable jury to find a kidnapping upon a proper instruction under the revised rule. State v. Salamon. Although we could have reversed the defendant’s conviction in Salamon on the basis of instructional error— i.e., he did not have the benefit of an instruction under the rule that we set forth in that case—the court relied exclusively on insufficiency of the evidence. Sanseverino simply was an application of the Salamon rubric that yielded a different outcome.

But this joy was rather short lived. A few short weeks later, the Supreme Court started on the path to yesterday’s change of mind. In State v. DeJesus (which you will remember produced a noteworthy post title), the Court quickly disavowed its remedy in Sanseverino (in fact, it expressly reversed itself). So Mr. Sanseverino was enjoying relief, but it was on borrowed time.

In Sanseverino II, the Superme Court did what I expected: it explicitly reversed the remedy of Sanseverino I. Fine, if you want to do that, fine.

But the way it did it and what else it did are noteworthy and frankly, remarkable. Let’s take things one at a time. On reversing the remedy, the Court writes:

Recently, in State v. DeJesus, [...] this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant’s kidnapping conviction and to remand the case for a new trial.  As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant’s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, ‘‘the double jeopardy concerns that preclude the  [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any  insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state’s] failure to muster evidence.’’ (Internal quotation marks omitted.)

Note the subtle change in wording. Salamon goes from being “what the legislature always intended” to an “unforeseen change in the law”. Twist and shout.

Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.

[...], we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.

It is unfair that the court is willing to allow defendants to suffer the consequences of its erroneous interpretation of the kidnapping statute.  It is clear from reading Salamon and DeJesus that the court admitted that it got it wrong the first time:  when it interpreted the kidnapping statutes to cover restraint wholly incidental to the commission of another offense, it did not properly discern what the legislature intended to criminalize.  We now know that the legislature always intended kidnapping to exclude wholly incidental restraint.

Thus, it is patently incorrect to say that Sanseverino is not unfairly prejudiced by the order of a new trial or entering of judment on the LIO because he didn’t raise the claim raised in Salamon (sufficiency) and is just lucky that he can benefit at all from the Salamon decision.  This assertion bothers me for a few reasons.  First, he was truly unlucky to have committed his crime at at time when our supreme court didn’t feel it necessary to conduct a thorough interpretation of the kidnapping statutes.  I also don’t consider it “luck” to have our supreme court acknowledge that the legislature never intended for Sanseverino to be convicted of kidnapping.  Are we supposed to feel lucky not to be incarcerated for a crime we did not commit?!

Second, the court goes out of its way to say that because of the dramatic change in the law brought about by Salamon, the state could not have been expected to foresee the change and make strategic decisions re: what evidence to present and which LIOs to include in the jury instructions; yet the court is perfectly willing to criticize Sanseverino for not foreseeing the same “dramatic change” and raising the same sufficiency claim that had been rejected numerous times before.

So let’s talk about this LIO stuff now. The Court grants the State’s request that if it chooses not to retry him on the kidnapping charge, it is entitled to a conviction of Unlawful Restraint. Yes, that was worthy of italics. In doing so, the Court blurs the line between the jury’s role and an appellate court’s role. While expressly avoiding the legal issue on which numerous other courts have split, i.e., whether an appellate court can enter judgment on an LIO on which the jury was not instructed at trial, the court instead creates a special rule just for this particular case.  The concurring opinions aren’t any better.  All seem to agree that Sanseverino isn’t prejudiced here (see above), so it’s no big deal if the jury wasn’t instructed on the LIO the court now wants to impose as judgment (bearing in mind that the judgment will only enter if the state doesn’t exercise its option to have a re-trial on the kidnapping charge. Apparently the court feels so badly about blindsiding the state with its Salamon decision, that it’s allowing the State options to choose from to cure the prejudice . Sigh, that must be nice).

The only justice who seems to have opted out from this is Justice Shaller, who dissents from this second part of the Court’s decision:

[A] remand for sentencing on a lesser included offense is appropriate only when a jury properly has been charged on that offense because: (1) appellate courts should avoid resolving cases in ways that involve fact finding or blur distinctions between appellate and trial court determinations; (2) requiring an instruction maintains the distinction between an appellate court’s determination that the record evidence is sufficient to support a guilty verdict and a jury’s determination that the state proved its case beyond a reasonable doubt; (3) when the jury has been instructed on the greater offense only, any attempt to assess what the jury would have determined with respect to the lesser offense is speculative; (4) only when the jury has been instructed on the lesser offense and could have explicitly returned a verdict, is the defendant undeniably aware of his potential liability for the lesser offense; (5) the practice of remanding for sentencing on lesser offenses that have not been submitted to the jury may encourage the state to risk not seeking instructions; (6) the state gains an unfair strategic advantage if it alone can adopt an all or nothing approach at trial but, under some circumstances, change its position and argue that the lesser offense should have been submitted; and (7) the defendant may have forgone a particular defense or strategy due to the failure to instruct on a lesser included offense.

He also sums up the problems with the “luck” argument quite succinctly:

If, indeed, the defendant ‘‘has benefited from our holding in [State v. Salamon],’’ as the majority argues, the unexpected holding in Salamon can be said to have done no more than to remedy a deficiency in the law, a benefit to which the defendant doubtless was entitled.

It’s almost like a few days after Salamon and Sanseverino the Court realized that it had ruled in favor of defendants (and their rights) and were horrified by it, so they set about “remedying” (get it?) it.

(I would be remiss in not mentioning that this post was practically co-written by Miranda and she remains, as always, the real brains behind this operation. Oh, and the usual “this post is an expression of the personal opinions of Miranda and myself and not of our employer”.)

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guarantee[] bail in a reasonable amount in all cases, even capital cases not falling within the exception . . . The defendant has a fundamental constitutional right to bail pending trial in all but certain capital offense.

[In Ayala, though, the Court ruled that this Constitutional provision doesn't prohibit a judge from revoking bail if the defendant commits a new crime while on release and the judge is not required to impose a new bond amount. Fmr. Justice Berdon argues in a dissent - and convincingly so, in my opinion - that the Constitutional provisions aren't vague and that bond must be set in every case at all times. He didn't get any support. So much for the Constitution.]

Onto the question of what bail is excessive: Certainly if the reasoning behind bail provisions is to ensure the appearance of the defendant in Court,  then one cannot circumvent the Constitutional mandate by setting a bond so high that the defendant cannot reasonably post it. Indeed, the State Supreme Court recognized as much in State v. Menillo²:

The fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings, including final judgment. If an accused were kept locked up in jail from the time of his arrest, there would be no question as to his availability at all times. But the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered. This is reinforced by a further provision in the same section of our constitution prohibiting a requirement of “excessive bail”, which thus prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail.

In State v. McDowell³, the Connecticut Supreme Court wrote that

To impose a financial requirement which is beyond [a defendant's] means is unreasonable and, of course, makes the determination of eligibility [for bail] purposeless.

But does this mean that a judge always has to set an amount that the defendant can make? No, and it doesn’t have to be that way. Again, going back to the reasonableness of bond, from Menillo:

But a reasonable amount is not necessarily an amount within the power of an accused to raise. It is an amount which is reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial. See 2 Swift, Digest, p. 395.

But, going back to the question I posed half-jokingly above, what difference does it make if the defendant can’t post even half the bond that is set? An argument can be made that setting such excessive bonds constitutes a form of preventive detention that carries along with it a presumption of guilt. Why else would such a big bond need to be set, unless everyone suspected that the guy was guilty as sin. Justice Berdon puts it more eloquently, from the dissent in Ayala:

The framers of our state constitution placed a high priority on the right to be free pending a determination of guilt. By drafting article first, § 8 of our constitution, which has its roots in our first constitution; see Conn. Const. of 1818, art. I, § 14; 6 the framers obviously recognized that more than liberty is lost when bail is denied. It is well documented that “[p]retrial detention lessens [the presumption of innocence] because an accused is now treated as a convict before trial. An accused individual loses time and liberty, jobs frequently disappear, family and friend relationships are disrupted. The physical appearance of an accused is affected during this period of detention. This impedes upon the ability to prepare an effective defense. As a result, an accused individual is more likely to be convicted and there is a greater likelihood that a severe sentence will be imposed. This violates due process since an accused individual loses liberty during pretrial detention prior to an adjudication of guilt at trial.” Comment, “United States v. Salerno: A Reduction of Individual Rights,” 15 New Eng. J. on Crim. and Civ. Confinement, 147, 161-62 (1989).

The lesson to be learned, I believe, is that bond must be imposed only as necessary and only after great consideration of the facts and circumstances of each case and in no event must be imposed or raised only for the sake of appearances.

When the amount of bond set in a case seems ridiculous, it probably is excessive.

1. 222 Conn. 331 (1992)
2. 159 Conn. 264 (1970)
3. 241 Conn. 413 (1997)

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The Client Security Fund money is held in a trust to reimburse victims of lawyer fraud and embezzlement. The fund has $7.8million currently, but approximately $5.8million of that is currently tied up in claims. That leaves the $2million that the State just “took”.

I’ll let minds greater than I explain. Associate Justice of the CT Supreme Court wrote an op-ed on this a few weeks ago, but apparently no one in the legislature gave a damn:

The transfer also will leave the fund with no cushion against pending claims. At the end of 2008, the fund had a balance of about $7.8 million available against $5.8 million in pending claims. The actions of the governor and legislature place the fund at risk of being unable to fully pay claims if there is a large scale defalcation or an appreciable number of defalcations in the future.

In addition to reducing reserves, the governor and legislature have also violated the trust of members of the bar, who have paid the annual fee with the expectation that it would be used, as noted in the Superior Court rules, “to promote public confidence in the judicial system and the integrity of the legal profession” by reimbursing clients in rare instances when an attorney has violated the trust established within the attorney-client relationship.

The fact that a theft or embezzlement of funds by an attorney is, however, a rare event is of little comfort to a client who learns that he has been the victim of such an act. It will be even less comfort for the client to learn that his losses may not be reimbursed fully because the governor and legislature have seen fit to use those funds for purposes that were never intended.

Norm Pattis (who apparently thinks this blog isn’t good enough to link to) wrote about this weeks ago, and recently made a call to arms:

I am told that heads are spinning in the judiciary. They ought to be. But we need more than spinning heads. How about litigation designed to challenge whether the executive and legislative branches really have the power to steal? I understand lawmakers have the power to tax. But this is something new, and something dangerous.

It looks like Norm’s plea has been heard…by lawyers. The Connecticut Bar Association and a bunch of who’s who of CT lawyers sued the Governor on Monday seeking a return of that money.

The lawyers claim that it’s illegal to take the $2 million because it is generated by fees for the specific purpose of aiding clients — and was not collected via general taxation for use in the overall budget.

As worded in the suit, the plaintiffs claim that taking the $2 million violates the “constitutional separation of powers” among the three branches of government. “The payments made to the fund by [lawyers] were not levied or collected by the Legislative Department, were not assessed, paid or collected as a tax, and cannot retroactively be expropriated as tax revenues for deposit in the general fund,” the suit claims.

“We think it’s absolutely unconscionable” to take money from “this segregated fund for people who are victimized by that small minority of lawyers,” said Ernest F. Teitell, a favorite of Scott Greenfield.

The outrage has been sufficiently expressed elsewhere, so I’ll spare you the anger. But, for those in CT, there’s more. A little prosecutor birdie told me yesterday that the legislature is now considering increasing the Attorney Occupation Tax to $640 and removing the exemption for State employees. Until now, people like me and those on the other side of the courtroom were exempt from paying this silly tax (I mean, is there a neurosurgeon’s tax? A dentist’s tax? C’mon people..) because we don’t get hired by clients.

Now the plan is to exempt us from the exemption and make us all pay it. There is no way to defray this cost or to pass it on to our hundreds of clients. There’s no offsetting for us in the public sector. I know that people in the private sector have been complaining about this tax for years. But don’t some (if not most) firms pay the tax on their associates’ behalf? I certainly can’t go to my supervisor and ask him/her to pay it for me.

This certainly seems like kicking a group when it’s down. I fully expect that the prosecutor’s union will make several concessions when it renogotiates its contract in the coming year (and that applies to all public defenders pursuant to the parity statute). Maybe we’ll go back to 35 hours; maybe we will be forgoing raises for the next 3 years. Whatever it is, I know there will be a loss that we will have to absorb. On top of that you’re going to make me pay $640 per year?

Maybe we should start collecting that $25 per indigent client and use it to pay for our Attorney Occupation Tax. Unless the legislature gets to that first.

[Note that I received this tip on April Fool's Day, so it might be an elaborate joke by some prosecutor, but it does sound plausible.]

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“[t]he Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.

According to the Court, “[t]he death penalty is not a proportional punishment for the rape of a child.” The opinion, which was joined by the court’s four more liberal judges, went on to state, “The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.” The opinion concluded that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.”

Now that seems pretty cut and dry, unless of course, there is some argument that the Federal Constitution applies to Louisiana but not Connecticut, because Connecticut was never a part of the United States due to some error back in the day and hence is its own duchy.

Either that, or Debicella got some bad advice. Thankfully, the rest of the legislators in the judiciary committee seem to have heard of Kennedy, since there’s been no action on the bill since it’s proposal in January.

For more on Kennedy, see Sex Crimes’ resource page.

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and many sex offenders were slipping through the cracks, being found 6-9 months later. Okay, I understand that keeping tabs on sex offenders who move from state to state is difficult. But let’s parse this new provision for a moment and compare it to the currently existing law.

The current law states that anyone moving to CT, who is convicted of a crime whose essential elements are the same as any crime in CT that requires registration, or who is required to register elsewhere, shall without undue delay, register with public safety.

The questions there are: what is undue delay and what does reside mean?

Under the new statute, not only is the fellow who moves to CT subject to registration, but also the fellow who passes through.

Remember, though, that all this does is add an extra charge of failure to register! If, under the previous scheme, someone came to CT just long enough to commit a crime, CT would still have jurisdiction over him for the damn crime that he just f*cking committed!!!

So how, in [insert name of your higher power]’s name, does this prevent anything? State troopers are not border patrol agents. No, what this does, and I guarantee this will happen, is that it provides police officers a “pretext” to pull over drivers with out of state licenses. They’ll run some check to see if they’re registered elsewhere and if they are, BAM!, arrested for a Class D felony.

And who is to be the arbiter of reason here? Are these folks to be left to the devices of our prosecutors and judges?

We are now burdening the sex offender, who has registered dutifully in his home state, with the requirement that he register in every state that he passes through, even though that transit may be wholly legal.

Yes, we do not want sex offenders to successfully reintegrate into society. Yes, we want to harass and poke and needle and annoy and insult them. Yes, we want to make things worse. Yes, we are thinking with our rears.

Folks. The message is clear. Don’t come to CT. If you’re a sex offender, your money is no good, despite the fact that we’re facing a budget deficit in the billions.

Ugh.

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S.B. No. 1159 (RAISED) AN ACT CONCERNING PRISON POPULATION.

H.B. No. 6031 (COMM) AN ACT CONCERNING PAROLE AND PROBATION TRANSPARENCY. (JUD)

H.B. No. 6341 (RAISED) AN ACT CONCERNING COMPETENCY TO STAND TRIAL.

H.B. No. 6342 (COMM) AN ACT CONCERNING DISEASE PREVENTION IN THE CORRECTIONAL SYSTEM. (JUD)

H.B. No. 6581 (RAISED) AN ACT CONCERNING THE ENHANCED PENALTY FOR THE SALE OR POSSESSION OF DRUGS NEAR SCHOOLS, DAY CARE CENTERS AND PUBLIC HOUSING PROJECTS.

H.B. No. 6624 (RAISED) AN ACT CONCERNING THE BOARD OF PARDONS AND PAROLES.

H.B. No. 6685 (RAISED) AN ACT CONCERNING THE REPORTING OF INMATE POPULATION DENSITY AND CORRECTIONAL FACILITY SPECIFIC DATA.

H.B. No. 6697 (RAISED) AN ACT ESTABLISHING A SENTENCING COMMISSION.

H.B. No. 6704 (RAISED) AN ACT CONCERNING PRISON OVERCROWDING.

H.B. No. 6706 (RAISED) AN ACT CONCERNING RESCISSION OF PROBATION.

The submitted written testimony in each of these cases can be found here.

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Now that, when read as a sentence, may not seem to be a complicated statute, but after breaking it down into its elements, raises some questions:

1. What does “actually present” mean and what are its limits?
2. What is “the offense” referred to in element 8?
3. And what of elements 9 and 10?

What of elements 9 & 10? Does an offense against “the person” literally mean an offense that involves the physical person of the homeowner? Does it limit it to things like kidnapping, assault, sex assault? Or would it even include a situation where there is no physical contact or attempted physical contact between the offender and the homeowner, say, a larceny? In other words, is it sufficient for the offender to enter a house where someone is present, take some valuables and leave, without ever threatening or even seeing the homeowner and still be convicted of home invasion?

If it is, then what is the difference between that factual scenario and what is a classic burglary?

Now, of the title of this post, “actually present”. On one hand, it is pretty self-explanatory. Actually present means just that. The person is actually present. Of course, if this were not the case, then elements 8-11 would be useless. But we know that law is not made when the facts fit squarely within the parameters of the statute. In order to test the statute, we must operate on the fringes.

So here are three scenarios. Use the poll to indicate which of the three (or any combination thereof) you would consider to be a home invasion with the elements of this statute:

Scenario A: The offender has completed the larceny of an empty dwelling and is exiting through the front door, just as the homeowner is walking up the driveway to the front door. Their “meeting” is outside the four walls of the home, but on the property. There is no physical contact, as the offender simply runs away.

Scenario B: Exactly the same as the above, but there is a brief scuffle between the two.

Scenario C: The offender is walking out the back door of the house and is seen by the homeowner who walks in the front door.

Scenario D: The offender, seeing the homeowner opening the front door, leaves via the back door. The offender is not seen by the homeowner.

Scenario E: The offender leaves through one door, while the homeowner walks in another. Neither sees the other.

All of those may qualify as “home invasion” or none of them may. It all depends on how elements 8, 9, 10 & 14 get along. The purpose of the home invasion statute, of course, is:

protection against invasion of premises likely to terrorize occupants

Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1971), p. 32. Oh wait. That’s the purpose of the burglary statute (State v. Greco, 216 Conn. 282, 296). Anyway, assume that it is the same for home invasion.

If the homeowner is not at home during the “invasion” but arrives during the exit, would that be likely to terrorize the occupant? I think the answer is yes. But what of the scenarios where the homeowner is unaware of the presence of the exiting offender? Perhaps, because there may not be a functional difference between that and the asleep homeowner who doesn’t know of the presence of the intruder.

Yes, I recognize that these scenarios are a bit fanciful, but that’s what Sundays are for. Have at it:

[poll id="28"]
1. The home invasion statute is nothing but a 5 year sentence enhancement for a burglary where a person is present.

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Oh, how many ways can I say arbitrary? Here’s one: Eight Amendment.

I do not know, for sure, who proposed this bill or why. However, I can guess. And that is a chicken-shit position to take. Those attending the public hearing should get the Rt. Hon. legislators to commit, on the record, to their reasoning for making this a prospective bill (frankly, I need a good laugh). You think they’re going to say “well, we think certain crimes that have already been committed are so heinous they deserve the death penalty and we’re pretty sure that no one is going to commit another crime in the future that will be more heinous, so we feel okay about abolishing the penalty in this fashion”? Of course not.

And what of the purported cost savings? This bill is not going to bring the cost savings that a straight abolition bill would. You can bet every bottom dollar in that rainy day fund that the State has that there will be at least 11 challenges to this bill. That will cost money and lots of it.

So, I have to conclude that I have no clue why this bill was proposed or is even being entertained. Maybe it’s only for show and the likelihood of it passing is slim to none. But if so, then why the song and dance? Why waste people’s time, money and effort? Is anyone buying this as a legitimate bill?

Of course, on the other hand, I recognize that this might be a good start. Analogize, if you will, this to the civil unions bill. It’s part of the way, but not all of the way. The rest of the road can be accessed through the courts. But this is not a serious bill. This is a mockery of an abolition bill and a mockery of the abolitionist effort.

Because of that, I will not be a part of it. I respectfully oppose this bill.

(I hate to do this time and again, but: these are my opinions only and not those of my employer.)

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Mr. O’Malley [Governor of Maryland], a Democrat and a Roman Catholic who has cited religious opposition to the death penalty in the past, is now arguing that capital cases cost three times as much as homicide cases where the death penalty is not sought. “And we can’t afford that,” he said, “when there are better and cheaper ways to reduce crime.”

Lawmakers in Colorado, Kansas, Nebraska and New Hampshire have made the same argument in recent months as they push bills seeking to repeal the death penalty, and experts say such bills have a good chance of passing in Maryland, Montana and New Mexico.

Surprising as it may be, the prospects of an abolition bill passing in CT are not high (in my opinion). The legislature (or large chunks of it) seem convinced that whatever system we have in CT works. That we sentence only the most deserving people to death and that there are no innocent people on our death row.

But this time around, it isn’t about religion or vengeance or anything else. It is, and rightly so, about cost. From the submitted testimony to the Appropriations committee, we learn how much the public defender’s office spends yearly on death penalty cases: $5.9 million on “special public defenders” [contract attorneys] alone (that figure does not seem to include costs of death penalty cases in which the defendant is represented by a salaried public defender).

But as the NYT article correctly points out, abolition of the death penalty isn’t the only area where cost-savings can be made. One obvious are is the rate of incarceration and terms of incarceration of defendants. CT may appear to be a ‘blue, liberal’ state, but when it comes to criminal justice, it is anything but. A majority of inmates in prisons are serving sentences for violation of parole and probation. Our legislators’ calls of outrage at every news-media reported crime have led to stiffer and stiffer sentences being imposed on all defendants. The jails in CT are overflowing and will be for a long time to come. That is where we need to have cost cutting. Parole needs to let people out earlier than they do, they need to deport those that are not citizens and have orders of deportation and they have to stop locking people up for every minor transgression and “technical” violation of parole.

Last year, in an effort to cut costs, probation and parole agencies in Arizona, Kentucky, Mississippi, New Jersey and Vermont reduced or dropped prison time for thousands of offenders who violated conditions of their release. In some states, probation and parole violators account for up to two-thirds of prison admissions each year; typical violations are failing drug tests or missing meetings with parole officers.

In the end, I suspect nothing will happen here in CT.

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WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

“It will be replacing the Intoxilizer 5000 that is currently used by police departments in the state,” [State Police spokesman] Vance said. “The new machines are better technology. The current machines are seven years old and the cost to maintain them far outweighs buying new ones.”

Vance said the new equipment was selected by a special committee made up of law-enforcement officials and scientific experts. They are now used by police departments in New York and New Jersey.

Right, New Jersey. New Jersey uses the BAC TM2, but only after much controversy. EvidenceProf has the skinny:

that controversy went as follows:

-the Supreme Court of New Jersey had questions about the reliability of that test;

-appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

-Judge King initially reported that the technology was unreliable in a 268 page report;

-Judge King later reversed himself in a 108 page report, which indicated that despite “minor defects” with the technology, it is more reliable than the Breathalyzer; and

-the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

So CT has moved from one useless machine to another. Bravo. And what of all the thousands of people convicted of DUI on the strength of the BAC TM1?

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