ct state law
Neutered animals
Apr 30th
There seems to exist a rule of lawmaking that every good policy decision must not go unpunished and must be equally balanced by a completely bone-headed one. That logic and good sense must be sacrificed at the altar of fear-mongering at least once every legislative session.
Given all the good work the CT legislature has done this year, it seemed inevitable that someone would end up being spanked. Sure enough, a bill has made its way out of committee that underlines the commonly-held belief that any good work that comes out of a legislature is sheer, blind luck and most of the bills passed are ineffectual at best or mind-bogglingly stupid at worst.
This particular euphemism would not only make it a Class D felony - punishable by up to 5 years’ incarceration – but also place the offender on a public sex offender registry. The act? Committing a “lewd act” while in prison.
The bill, says the Department of Correction, is necessary because inmates often expose themselves and masturbate in front of staff members. In 2011 alone, there were 390 such incidents committed by 94 inmates.
Wait. Hang on.
94 inmates? Out of approximately 17,000 at any given time? That’s 0.55% of the inmate population. That’s barely half of one percent of the entire population in all of CT’s prisons.
And for this we need a new crime? One that would impose a mandatory consecutive sentence no less? And one that would land the offender on a sex offender registry for 10 years, presumably with the short description that “this person exposed himself in prison”.
Have we suddenly solved every other problem that plagues the State of Connecticut that this is all that remains to be whipped? Are the administrative punishments so limp that this is even viewed as a necessity? (Clearly, they are not, as evidenced by the offender rate of 0.55%. There exists a deterrent, and an effective one.)
Although the masturbation aspect of this bill will garner the most headlines, it is important to note that the bill is broader than that. It criminalizes any “lewd exposure”. What that is will be known when we see it. Presumably, any exposure than a correctional officer decides they do not like will be lewd.
The second clause of the bill, presumably inserted because even the drafters recognized the outrageous nature of it, is a red herring and a lie. It states that this lewd exposure or masturbation “may reasonably be expected to be viewed by a reasonably identifiable employee of the Department of Correction”. Umm, hello? It’s a fucking prison. Every living second “may reasonably be expected to be viewed by a reasonably identifiable employee of the Department of Correction”.
Public indecency, in the free world, is defined as:
(1) an act of sexual intercourse, (2) a lewd exposure of the body with intent to arouse or satisfy his or her sexual desire, or (3) a lewd fondling or caress of another’s body.
When not in prison, this act is designated as a Class B misdemeanor, worthy of no more than 6 months in jail. In that same jail, it is apparently 10 times more despicable.
Masturbation in prisons – or lewd exposure – is about two things: sexual release and maintain a modicum of dignity. We strip inmates of their humanity, we strip them of their privacy, we strip them of their freedom, we strip them of their clothes and perform cavity searches, we strip them of any semblance of privacy, we treat them like animals and then we act surprised – shocked, even – when they use the only thing we can’t take away from them, their bodies, to regain a sense of control over their situations.
Meanwhile, rapes in prison go unnoticed, condoms aren’t passed out, disease is rampant and staff exert immense physical and sexual control over their wards. And yet all we want to do is flog the prisoners more. Treating them like animals isn’t enough, we want to neuter them.
[Let's not forget the preposterous cost implications of this 5 year consecutive requirement: the current average cost of housing an immate is $44,000+ per year. For every inmate who is convicted of this nonsense, we're adding $220,000 to the DOC's already bloated budget.]
Norm has more.
Recording racial profiling
Apr 20th
In somewhat of a banner day at the CT Senate (this is turning out to be quite the legislative session), two bills passed that chamber of the legislature and move to the House for its approval. Both bills have to do with police behavior, both having been in the spotlight recently.
The first is a bill that not only makes it clear that it is legal for citizens to record police officers, but also provides a cause of action for a lawsuit against officers who illegally prevent citizens from conducting such video recording:
(b) A peace officer who interferes with any person taking a photographic or digital still or video image of such peace officer or another peace officer acting in the performance of such peace officer’s duties shall, subject to sections 5-141d, 7-465 and 29-8a of the general statutes, be liable to such person in an action at law, suit in equity or other proper proceeding for redress.
There are some exceptions, however, to civil liability:
(c) A peace officer shall not be liable under subsection (b) of this section if the peace officer had reasonable grounds to believe that the peace officer was interfering with the taking of such image in order to (1) lawfully enforce a criminal law of this state or a municipal ordinance, (2) protect the public safety, (3) preserve the integrity of a crime scene or criminal investigation, (4) safeguard the privacy interests of any person, including a victim of a crime, or (5) lawfully enforce court rules and policies of the Judicial Branch with respect to taking a photograph, videotaping or otherwise recording an image in facilities of the Judicial Branch.
Some of which seem to be somewhat vague in their definition and might lend themselves to overbroad application. But hopefully this codification will prevent what happened to Luis Luna from happening again. For more on the debate on this bill, see this Capitol Watch post.
Second, there was the bill to strengthen the racial profiling law in CT, in the wake of the East Haven fiasco. The bill would require:
1) A standardized form, in both printed and electronic format, to be used by police officers of municipal police departments and the Department of Emergency Services and Public Protection to record traffic stop information. The form shall allow the following information to be recorded: (A) Date and time of stop; (B) location of the stop; (C) name and badge number of the police officer making the stop; (D) race, color, ethnicity, age and gender of the operator of the motor vehicle that is stopped, provided the identification of such characteristics shall be based on the observation and perception of the police officer responsible for reporting the stop; (E) nature of the alleged traffic violation or other violation that caused the stop to be made and the statutory citation for such violation; (F) the disposition of the stop including whether a warning, citation or summons was issued, whether a search was conducted and whether a custodial arrest was made; and (G) any other information deemed appropriate. The form shall also include a notice that if the person stopped believes they have been stopped, detained or searched solely because of their race, color, ethnicity, age, gender or sexual orientation, they may file a complaint with the appropriate law enforcement agency, and instructions on how to file such complaint;
The CT Mirror reports on the basics of this bill:
The anti-profiling bill sets standards for reporting the information and shifts responsibility for its analysis from the Commission on African-American Affairs to the Office of Policy and Management, which has staff and resources unavailable to the commission. The new legislation also allows OPM to withhold public safety-related state funds from communities that don’t comply.
Though most GOP senators backed the anti-profiling bill, Canton Republican Kevin Witkos, a 28-year veteran of that community’s police force, argued that while profiling is wrong, the measure was flawed. Rather than requiring officers to guess at a motor vehicle operator’s race and ethnicity, Witkos said the legislature should mandate that drivers provide this information on their driver’s license.
But [Judiciary Committee Co-Chair Sen.] Coleman argued this would work against efforts to end profiling, adding that it’s crucial to know what an officer’s beliefs about an operator were when the decision to stop the motorist was made. Witkos also tried, unsuccessfully, to amend the bill to ensure that state funds couldn’t be stripped from community policing or youth athletic programs tied to municipal departments found not in compliance with profiling reporting rules. “It’s not fair to the other areas of the police department that do good work,” he said.
All in all, a good start.
Idiocracy
Apr 16th
There is a moderately entertaining movie called Idiocracy, directed by Mike Judge and starring the less-stoned Wilson brother about a man of perfectly average intelligence who goes into cryogenic deep freeze for a long time and emerges 500 years in the future where the stupid have out-reproduced the intelligent and the Earth is ruled by grunts and monosyllables. Reading some reactions to the death penalty repeal here in CT, it seems to me that the future is now.
First, CT News Junkie reported, in a story with the provocative title ‘Lawmaker Guided By Experience As Defense Attorney’, of the tale of Representative David Labriola. Labriola, a Republican, drew upon his experience as a criminal defense attorney to vote against the repeal of the death penalty, in something that can only be described as fzzt-fzzt-does-not-compute-err-ROR-err-ROR.
You see, Attorney Rep. Labriola represented Miguel Roman. Miguel Roman, you might or might not remember, was the fourth man exonerated in CT with the assistance of DNA evidence. Unfortunately, before that happened, Roman spent 20 years of his life in jail for a crime he did not commit. His actual sentence was 60 years for a murder – one of three that the police believed were linked. Having represented a man you believe is wrongly convicted and has spent decades of his life unjustly in prison is not something a defense lawyer gets over quickly and it is certainly not something that builds confidence in the infallibility of the criminal justice system.
Yet, we have Labriola:
He said the sophistication and reliability of modern DNA analysis is one of the reasons he supported the death penalty statute, which a majority of his colleagues voted to take off the books Wednesday. DNA evidence provides the state with greater assurance that offenders handed guilty verdicts are, in fact, guilty, he said.
I suppose that’s somewhat logical so far, if a bit naive. But here’s the key part:
Labriola recalled that he did present DNA evidence in Roman’s case more than 20 years ago. He said it was one of the first DNA cases in the country. Though the DNA clearly didn’t belong to Roman, prosecutor John Massameno was able to argue that presence of another person’s DNA did not mean Roman was not guilty.
[Ideally, at this juncture, I'd like to Professor Farnsworth uttering his signature "Whaaaa? - you can hear it in your head, can't you? - but I can't find it online. So this equally appropriate reaction will have to suffice.]
This is far beyond any timey-wimey plotline that Steven Moffat could conceive of, but I’m going to try and untangle it. Labriola believes:
1. The death penalty is appropriate.
2. Because DNA evidence provides great assurances that offenders are actually guilty.
3. He knows this because he represented an offender.
4. In whose case DNA evidence was presented.
5. And the DNA evidence excluded his guy.
6. And still his client was convicted.
7. And spent 20 years in jail.
8. ????
9. PROFIT!!!!
Labriola concludes with:
“I think working as a defense attorney for the last 25 years gives me insight into a wide range of issues and some crimes are so heinous that the death penalty is the only justifiable punishment,” he said.
It’s almost as if he got to logical step number 8 above, realized that he was going up the down staircase and ended with the handwavium encrusted “well, I know better”. As a fellow criminal defense lawyer, that last quote of his is especially troubling. I’ve often written that in order to do this job well and honestly, one cannot judge one’s clients and one must take the place of the client and view the world through his eyes. We are the client. We are his advocate and his shepherd. Where does Labriola stop? If some clients are deserving of the death penalty, are others deserving of life without the possibility of release? Are others deserving of 60 years in jail, because, in his opinion, they’re bad people? How do we differentiate the role of the prosecutor from that of the defense attorney? At what point do we stop becoming an advocate and start becoming a mouthpiece – a mere messenger?
For many in this field, capital defense is the holy grail. It is the one job that embodies every ideal that leads us to this work: the defense of those who are most undeserving, the fight for another’s life, the pushback against the mightiest weapon the State possesses in its arsenal. Death penalty defense is more than a job. It is the embodiment of an idea. I believe that one can be a great defense attorney and not like all the crimes that our clients are charged with. Great lawyers refuse to represent people accused of sex crimes. I disagree with that, but I can see it. I believe, however, that anyone in favor of the death penalty has no business representing individuals accused of crimes.
It does not compute.
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Lagniappe (a word I have shamelessly borrowed from today’s MLK-themed edition of Blawg Review, hosted by the inimitable Mark Bennett): “Judge” Andrew Napolitano goes on FOX to suggest that CT delay the implementation of the death penalty repeal by, oh, 5 years so we can quickly execute the 11 men on death row. The stupendous idiocy of that position hardly merits the waste of more pixels.
Nevermore in my name: CT abolishes the death penalty
Apr 11th
I know I wrote a similar post last week, but this time there’s no caveat. Connecticut has just abolished the death penalty. The Senate abolished it. The House has abolished it. The Governor will sign it.
If I weren’t so tired from listening to hours of testimony, my hands would probably be shaking. This is historic, indeed.
We have turned a corner. We have made ourselves known. We have stated with clarity that we have a moral compass and that compass is pointed in the direction of compassion and humanity. We are not that which we wish to condemn. We are not that which we wish to punish. We are better than them. We will not arbitrarily punish our own, we will not discriminate based on race or geography.
We will take a different approach. A road that leads to mercy and forgiveness. A path that saves the best in us. A choice that allows us to hold our head high and be counted among the citizens of the world. We will show that while it is difficult to resist our base instincts of anger, revenge and hatred, it is possible. And we can move past that and emerge stronger. We will lead by example.
We will not assume the hubris to decide, as a people, whose life is worth living. We will not ask that of our friends, neighbors and our children. We will unburden our state from the heavy yoke of carrying the deaths of so many. We will wash the blood from our hands.
Nevermore in my name.
In which I make some uninvited retorts to specious arguments against abolition
Apr 10th
With the Connecticut Senate having already voted to abolish the death penalty last week, and in light of the looming vote in the House tomorrow and given the extensive debate this topic has been subject to for decades, I figured that we finally had reached a point where we were having honest, intellectual and moral arguments for or against this propriety of maintaining this punishment.
I was wrong. Linked there is a post by “Don Pesci” (whether that is his real name is unknown to me and irrelevant as well), who seems to be a real conservative and proponent of the death penalty. That someone is both of those things doesn’t bother me; rather what bothers me is someone who is both of those things (or anything, really) who then uses false arguments to state his or her support for the penalty. I did leave a brief comment on his blog, but upon further reflection, I decided that it merits a somewhat longer blog post. These are counter-arguments that have been stated plainly before, but are ultimately worth repeating, especially given the importance of tomorrow’s vote. I will attempt – as far as it is possible – to respond to each quip.
Q: The death penalty was abolished by the Senate on April 5. It’s a virtual certainty that the House also will approve the Democrat inspired bill. Do you feel safer?
A: Can’t say. Part of the abolition bluster was that the death penalty did not prevent murders, always a questionable assumption.
Q: “Bluster?” What ever can you mean?
A: It was never a serious proposition, just a useful piece of propaganda.
He then goes on to state that one can’t ever know if a punishment deters a crime. While that is clearly true, one can measure the impact of having a particular penalty on the actions of those it is meant to serve as a deterrent to. One could, for instance, compare the murder rates in death-penalty and non-death penalty states. One could look to a survey of law enforcement agencies which list the death penalty as the most ineffective tool for reducing violent crime. Or one could read the voluminous research and scientific study undermining the argument that the death penalty serves as a deterrent. While it may be true that it is not possible to know if the death penalty had a direct impact on a particular individual and prevented him from committing a crime, it is also honest to acknowledge that we don’t know that it did. And that is the crux: that the argument that the death penalty deters crime (one of the foundational arguments for retaining this punishment) is false.
Q: One of the other points raised against the death penalty by Senate President Don Williams prior to the vote to abolish was that it had been randomly applied: Not everyone who committed murder in Connecticut has been sentenced to death.
A: And a good thing too. In practice, Connecticut’s death penalty punishment was applied ONLY if certain circumstances had been met. Not every murderer qualified. You had to work really hard to merit the death penalty. It is no argument in favor of the abolition of a punishment – say, ticketing for speeding – to say that not everyone who commits the offense is punished. This is an infantile objection: “Mommy, he did it too. How come only I got sent to bed?” Should we abolish ticketing for excessive speed on the highways because – just to fetch for a figure – 98 percent of speeders are not ticketed and of those ticketed 99 percent are not brought to trial? Grow up!
This argument, as I said in my comment to his post, is simplistic and possibly disingenuous. The comparison made in the “disparity” argument is not between non-death eligible murder and death-eligible murder. That is a false comparison. The comparison is between one death-eligible murder in which the penalty was not sought and another in which it was. The argument is made that the death penalty is arbitrary because often the decision to seek the penalty depends not on the crime itself – which may be comparable in every respect – but on other factors, such as the race of the defendant, the victim, the geographical location and sometimes the quality of the lawyer representing the defendant.
It is this disparity that gives us pause. In Connecticut, if two people commit two identical death eligible crimes, but one does it in New Haven and the other in Waterbury, there is a significantly greater chance that the person who committed the crime in Waterbury would have to defend against the death penalty and the one who committed the crime in New Haven would not.
So the next time someone tells you that of course the death penalty should be discriminatory and not applied to all murderers, tell them that you know they’re hiding critical information from you and their argument is based on a lie.
Q: Another argument was that the penalty once applied was irreversible.
A: People who said that the death penalty could be applied in error had to travel outside the confines of Connecticut to find such instances. Or they presented their objection as a theoretical proposition. No one awaiting death on Connecticut’s death row has been mistakenly led there by judicial error.
I would have said that this is my favorite argument, but that title belongs to the next one. We’ll get there. This one is particularly rich because it takes a very foolhardy view. The argument, essentially, is that we haven’t screwed up yet. Yes, that’s true. We haven’t. But we, in CT, have also had at least 4 DNA exonerations in the last half-decade. Before that, we’ve had other innocent men in jail. Is it a matter of time until we have an innocent man on death row? I don’t know the answer to that, but I’d say there’s a greater chance that we will, than that we won’t. That is not a risk I – or you – should be willing to take.
Q: But the appeals!
A: A means of postponing punishment, a judicial means of jury nullification.
…
[and elsewhere:] The abolition bill does not and cannot prevent pointless appeals.
You can see why this would be my favorite argument and it is one that has come up repeatedly. Variations include “endless appeals” and “endless habeas appeals”. I think it’s important to define what these terms mean and the Constitutional underpinnings of these mechanisms before illustrating just how misinformed, stupid and dangerous the argument is.
First, pointless signifies that the the only arbiter of a legal conviction is a jury at the trial level. It implies that any judicial review is a mechanism for undermining the jury’s just verdict. It also implies that somehow appellate courts are complicit in the liberal desire to avoid implementing the necessary punishment of death.
This flies in the face of what we normally call facts. For one, the Connecticut Supreme court has not only routinely upheld death sentences for those currently on death row (duh), but also has repeatedly and consistently upheld the constitutionality of the death penalty in Connecticut. Further, our supreme court overwhelmingly sides with the State against criminal defendants and if one is to accuse them of complicity in something, a more accurate accusation would involve the disturbing curtailing of individual rights and emasculation of Constitutional protections.
But I digress. Appeals are not pointless. They are checks on the functioning of our criminal justice system. They are the umpires that review the methods and processes we use. They are the enforcers of our rules of law, rules that we all rely upon to keep us and our freedoms safe. That a particular defendant has no viable claims for review does not make the entire appellate process pointless. Rather, it makes it indispensable.
Second, appeals aren’t endless either. There are very limited appeals granted to defendants. That they may take a lot of time to resolve is not the same as the appellate process having no end.
These are the appellate review options available to any defendant:
1. Direct Appeal to the Supreme Court of Connecticut (bypassing, by statute, the intermediate Appellate Court).
2. Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
3. A Petition for Writ of Habeas Corpus in State Court.
4. An Appeal to the Connecticut Supreme Court from that decision.
5. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
6. A Petition for Writ of Habeas Corpus in Federal District Court.
7. A Discretionary Appeal to the Second Circuit Court of Appeals.
8. A Petition for Writ of Certiorari to the United States Supreme Court (which is granted almost never).
Sure, you may say, these are a lot! But 1, 2, 3, 4 are necessarily separate because they challenge different things. It is by statute and law in Connecticut (State v. Leecan), that some claims cannot be raised via direct appeal (#1) and must be raised via a petition for writ of habeas corpus (#3). In some states those two are combined, but that is a poor way to do it because #3 requires information that #1 cannot provide. [See this previous post on the meaning and importance of The Great Writ.]
To do away with any of these avenues would push us all down that slippery slope. The justice system is fraught as it is with allegations of bias, racism and unfairness. To limit avenues of redress would affect us all. You just haven’t been arrested yet.
To claim that these appeals are pointless because thesepeopleareguiltyletsjustkillthemalready is stunningly narrow-sighted.
In the end, I do not dispute that this is an entirely moral issue. If, however, you’re going to rely on other arguments to support your position, at least make sure you’re correct, so you can be taken seriously.
[As a side note, I am glad that news agencies are finally paying attention to those survivors of homicide who are opposed to the death penalty, instead of just those who are in favor of it.]
Three’s a crowd
Apr 2nd
It takes two to tango, goes the famous saying, and despite what 70s sitcoms try to tell you, three is most definitely a crowd. This is even more so in the criminal justice system, where there are two parties to every prosecution: the individual accused and the rest of the citizenry, on whose behalf the accusations are made.
But in recent years there has been a move – and to some extent rightfully so – toward giving the individual victim more input and a greater voice in the process. But the basic structure has – and should – remain the same: State v. defendant. In a sense, it is the State as a whole that has been victimized; the collective peace, law and order. Our laws, which are rules we have agreed to in order to maintain a semblance of morality and structure, are designed to protect the orderly functioning of society. We give up certain rights in order to have others.
So it’s good to see a court even as conservative as Connecticut’s top court acknowledge and reaffirm this. Today, in State v. Gault, the CT Supreme Court held that a victim is not a party to a criminal case.
It is a ‘‘basic tenet of the criminal justice system that prosecutions are undertaken and punishments are sought by the state on behalf of the citizens of the state, and not on behalf of particular victims or complaining witnesses.’’ State v. Barnett, 980 S.W.2d 297, 308 (Mo. 1998), cert. denied, 525 U.S. 1161, 119 S. Ct. 1074, 143 L. Ed. 2d 77 (1999). ‘‘A criminal prosecution is a public matter and not a contest between the defendant and his victims, or their relatives.’’(Internal quotation marks omitted.) Id. It is axiomatic, therefore, that ‘‘[t]he parties to a criminal action are the [state], in whose sovereign name it is prosecuted, and the person accused’’; Dix v. Superior Court, 53 Cal. 3d 442, 451, 807 P.2d 1063, 279 Cal. Rptr. 834 (1991); and not the crime victim(s). State v. Harrison, 24 P.3d 936, 945 (Utah 2001).
It is important to note that while the decision, viewed most simplistically, is a ruling against a victim in a privacy case, there are broader, more important implications here. It is a ruling for due process and the rights of a defendant and that of society as a whole to have an orderly determination of the matter of guilt or innocence of one of its citizens. That the victim in this case was raped or kidnapped is irrelevant to the story. She might as well have been a he and he might as well have been defrauded out of $1,000,000.
The very thing that the victim in Gault sought to do was considered and rejected by the legislature in 2007, for much the same reasons that the supreme court rejected it today. To permit to enter into the fray a third party, whose interests are already ostensibly represented by an existing one, but not tempered or checked in any way by concerns of judicial economy, fairness, due process and – sometimes – justice, would be to take an already chaotic system plagued by allegations of disparity and unfairness and turn it into even more of a quagmire.
To plead or not to plead: a critical question
Mar 21st
To be, or not to be: that is the question:
Whether ’tis nobler in the mind to suffer
The slings and arrows of outrageous fortune,
Or to take arms against a sea of troubles,
And by opposing end them?
So muses Hamlet in Act 3, Scene 1 of Shakespeare’s play of the same name. So goes the quandary faced by criminal defendants in today’s criminal justice system: to plead or not to plead? Is it more advisable to suffer the ignominy of a conviction and lesser jail time up front than to press the sword of trial and hope that it doesn’t turn on you, often to more deleterious effect?
Hamlet had no one to guide him honestly; the modern criminal defendant, however, does: his lawyer. And it is upon this lawyer that he relies for a frank and learned assessment of the pros and cons of the various options available to him. To argue that the decision to plead guilty or to reject an offer is not a “critical stage” of the criminal process is to disingenuously ignore the realities of this modern day system.
And yet this is precisely what agents of the various States have been arguing for many years. This is a nonsensical fight that I personally have fought for at least 5 years now, without any direct guidance from the United States Supreme Court. Until yesterday.
In two sure to be seminal cases, Lafler v. Cooper and Missouri v. Frye [both PDF], the Supreme Court unequivocally held that the right to counsel at all “critical stages” of a criminal proceeding means the right to effective assistance of counsel at those stages and yes, Dorothy, the plea bargain is a “critical stage”.
The argument for this holding is best explained by stating the position of those against it. The position against is this: so long as a defendant receives a fair trial, it is irrelevant whether – and to what extent – his lawyer erred in the time leading up to that trial. Reductio ad absurdum, to these folks, if a lawyer never speaks to his client prior to the trial and conveys no offer, it doesn’t matter, because the right to effective assistance of counsel only has force in the context of a criminal trial.
To a less absurd degree, take the case of Lafler, whose lawyer told him that he should reject a very favorable pre-trial offer and instead make the State prove its case because there was no way he could legally be convicted of attempted murder, since the victim was shot in the leg.
You don’t need 3 years of law school and a passed bar exam to tell you that’s just wrong. Stupid, wrong and dangerous. But the States would have you believe that it is of no moment that such patently faulty advice was given, because Lafler received a fair trial.
Justice Kennedy, writing for both majorities, explains it well:
The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours “is for the most part a system of pleas, not a system of trials,” Lafler, post, at 11, it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. “To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”
While the significant role of plea bargaining cannot be diminished (also why ideas like taking every case to trial are stupid and unethical), I would argue that the right to effective assistance pre-trial is not a product of only that large impact of the plea process. It is also a matter of simple logic and ethical responsibility. As I’ve long argued, we are our clients’ shepherds through this complicated quagmire that we call the criminal justice system. The layman, untrained in the nuances of this system, look to us to proffer advice and most often follow our advice. How would you feel if you were given bad advice by the person whose only responsibility was to give you good advice?
Simply put, the issue boils down to this: if you have a right to have a lawyer give you advice, then you have a right to have that lawyer give you competent advice.
This is an outcome that everyone involved – judges, prosecutors and defense attorneys – should be cheering, because it ensures that the system is fair. That is not to say that all advice given by counsel that a defendant doesn’t like is per se ineffective, as some folks1 would have you believe. Rather that a court should evaluate that advice to determine whether it was sound. I suspect that in the vast majority of cases, the advice will be deemed so. But there will also be cases where, but for the misadvice of counsel, the defendant would have not been worse off.
The problem with these opinions lies – as it often does – with the remedy. Here is where I part ways with Justice Kennedy. He writes, in the context of a sentence after a jury trial and a rejected plea agreement:
The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.
This proposed model of determining remedy is fundamentally unsound. The general underlying principle is – and should be – that the defendant, when disadvantaged by the Constitutional violation, should be placed back in the position he was in before the violation so disadvantaged him. See, e.g., Santobello v. New York. To suggest that an appropriate remedy for this Constitutional violation could be the same sentence he received as a result of this violation is incongruent and incomprehensible. In my mind, the only appropriate remedy2 is the first one: if the defendant can establish that the plea was rejected as a result of ineffective assistance and the plea would have been accepted by the judge, the only way to make the defendant whole is to sentence him to the terms of that plea. Anything else would be a band-aid on a gaping wound.
Finally, there will always be naysayers even among the defense bar. To them, I repeat words I wrote just under two years ago:
Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.
IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us. At the end of the day, it is you and I who go home to our comfortable beds. You and I have the ability to walk outside in the free world and to buy what we choose and talk to whom we want, whenever we want. To place our petty egos and some twisted sense of self-worth before the complaints of the convicted client, who has nothing but a badly beaten and bruised writ to use to seek his release from the oppressive conditions of confinement in our penal institutions is pettiness of the ugliest kind.
This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.
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1. The analogy given by the good folks at C&C is, simply put, stupid and inapposite. This is not a situation where “you offer to buy my car for $10,000. After consulting with my expert, I reject the offer. Turns out my expert gave me bad advice. The next week, I want to go through with the deal. In the meantime, though, I have wrecked the car. Would it be fair to make you pay me $10,000 for the now-wrecked car?” The expert has no duty to give me advice and my “wrecking the car” is not analogous to going to trial with that expert as my advocate.
2. The same good folks at C&C suggest that the appropriate remedy should be that “the defense lawyer should be personally liable for the cost of the trial. If the defense was the public defender’s office, the cost of prosecution should be transferred from the public defender’s budget to the district attorney’s budget.” If it wasn’t clear prior to today that the good folks at C&C were only concerned with obtaining convictions and watching people murdered by the State, it should be now. Such a rigid, simplistic view of the by-its-nature murky and unclear business of assigning guilt does a disservice to everyone.
Prison isn’t what you think it is, and other death penalty half-truths
Mar 15th
The judiciary committee’s public hearing on the repeal of the death penalty in Connecticut lasted well over 14 hours yesterday, with both sides making impassioned pleas for their respective positions. All the usual arguments were bandied about: it’s not a deterrent, yes it is; it costs money; it’s worth it and so on. So one would think that with a debate so well worn out, there wouldn’t be any surprising moments in the discussion, but oh my, where do I start?
[Before I do start, however, I do want to point out that it seemed to me that unlike in years past, the number of supporters of repeal significantly outnumbered the opponents of repeal. Is this indicative of anything? I'm not sure, but it's worth noting.]
As the day progressed, one common theme seemed to emerge among the opponents of repeal, and since it’s one that’s blatantly wrong and designed to invoke false outrage among people it’s worth tackling head on. The refrain was that prison is a dandy place. A place where inmates “have everything going for them” (yes, that’s an approximation of an actual quote by a State Representative), where they get “all the rights and responsibilities” of other inmates. Where they have a TV – albeit 9 inches and only 1 or 2 channels. Where they can spend 6-7 hours a day outside their cages. Sounds heavenly.
So let’s get one thing clear: bullshit. Prison is a terrible, terrible place. It’s not Club Fed. It’s not your mother’s basement. It’s not the local Starbucks. It’s a fucking prison.
You know what happens in a prison? People are locked up. In tiny cells. With a big metal door that other people control. They also control when you eat, when you walk, when you take a shower, when you sleep, who you talk to, how long you talk to them, what you can watch, what you can read and whether that medical condition of yours deserves treatment.
And you are so controlled, inside drab, grey, concrete, barricaded walls for days, weeks, months, years, decades and in some cases, for the rest of your life. To suggest that allowing people from death row out into some form of general population is a gift that they do not deserve betrays a fundamental misunderstanding of what prison is. Either that or it’s an intentional lie meant to rouse the passions of the masses, in which case, if you’re stupid enough to believe it, you deserve what you get.
It’s one thing to go look at conditions of confinement when you’re with a touring party and a show is being put on just for you. It’s quite another to sit there, day in and day out, left with nothing but the sound of your own slowly deteriorating mind.
And let’s clear up another misconception: this bill would change the penalty of death to – and listen carefully now – life in prison. without. the possibility. of release.
It should be clear enough, but since a surprising number of people are poor at reading comprehension, I’ll state it in even simpler terms: life without the possibility of release means that there is no chance, none whatsoever, that those individuals will ever be released from prison, even if they live to the ripe old age of 5,328. In yet other words, they will die in prison. There’s no if, but or parole about it. So stop with the nonsense.
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There is another segment of the population that seems to have deliberately closed its ears to an honest and accurate debate on the death penalty: our purveyors of fact, the doyens of social responsibility and honorable men, all – news media.
There are two things the media loves to trumpet in the wake of any death penalty debate: an incomplete statistic of the support of the death penalty and the views of one particular high-profile victim’s family.
It is true that, when asked if they support the death penalty, 67% of respondents said yes. So the headline becomes 67% support the death penalty. The headline is half-true and would be fully true if the words (in a vacuum) were added.
Because, as is often the case, the truth lies deeper (or in the case of this poll, in the next sentence): that when given the choice between the death penalty and life without the possibility of release, only 48% support the death penalty, while 43% oppose it with 9% not having a clue. As anyone who can reasonably guess at the meaning of words might tell you, 48% does not a majority make.
But try and find that in the news piece I linked to above. Or in any other. I’m not saying this as a supporter of abolition. I’m saying this as someone who wants to see an honest, informed debate. What other reason can there be to ignore this vital statistic than the fact that it doesn’t fit within the pre-determined story?
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In the world of victims in Connecticut, in the context of the death penalty debate, there are two types: the Petits and everyone else. The Petits who, as is their right, have been vocal in their opposition to the repeal of the death penalty get a mention in every news story about yesterday’s public hearing despite not being present to testify. Those on the other side are lumped together – if they get a mention at all – in an amorphous blog of nameless, colorless, existence-less, generic terms like “other supporters of repeal”.
No, sorry, that’s just disrespectful. The Petits’ position is just as valid as that of Dawn Mancarella or Elizabeth Brancato whose mothers were murdered, or Catherine Ednie, whose brother and four of his friends were murdered, or Cindy Siclari, whose sister-in-law was raped and murdered, or Jane Caron, whose aunt was murdered in the course of a robbery, or former Hartford Police Chief Daryl Roberts, testifying both as law enforcement and as someone whose cousin was murdered, or Timothy Anderson, whose aunt was murdered [and who is interesting for more than that reason, but more on that in a bit]. You can read all the submitted testimony here.
These people – and their voices and opinions – should be part of the debate just as much as those on the other side.
—-
There was a moment, when Chief State’s Attorney Kevin Kane, a man who is respected by most on both sides of the bar, started speaking in opposition to the death penalty, when he asked the members of the committee, just like he asks juries, to vote their conscience. He asked them to recognize that this is a gut-wrenching issue, that this will be the most important decision of their lives and to search within their souls and vote according to their beliefs and their convictions.
He’s right, you know. Underneath it all, sentencing a fellow human being to death, no matter whether their actions justified it, is a deeply moral issue.
And we ask our fellow, average, everyday citizens to do this on a regular basis. We ask you and me to make the decision to another’s life as if it were a decision about which car to buy. We place this heavy moral burden on people who do not ask for, nor want this responsibility. If it is such a monumental decision and causes so much anguish for those who are elected to make these decisions, how can we, in good conscience, foist this upon the rest of us?
This brings me back to Timothy Anderson, linked to above. Timothy Anderson was a juror in the trial of Joshua Komisarjevsky. Anderson was opposed to the death penalty and yet he voted to put Komisarjevsky to death (let’s put aside the contradictions here for the purposes of this post). He submitted testimony in support of repeal, not only for moral reasons, but because he experienced first-hand the toll it takes on the regular individual to have to make the decision to end someone’s life. We should not be asking this of our fellow citizens.
—–
This post has gone on long enough and meandered far enough, but I want to end with one exchange I viewed near the very end of the debate last night.
Maybe this came up during the day, I don’t know. But it was the first time I’d seen someone mention it yesterday: the death penalty is about who we are and who we want to be. It needs to be said. Put aside finances and the unworkability of the statute and the required appellate process. At its core, the death penalty is about how we wish to be viewed as a society. Are we forgiving, just and fair? Or are we racist, vengeful murderers?
As the member of the public said in response to some chiding by Republican Senator Kissel: “with all due respect, Senator, this is about how history will view us. And history will not look upon us kindly”.
Truth in sentencing
Mar 13th
In 1994, Connecticut joined the vast majority of states in enacting the ‘Truth in Sentencing’ law, which did away with good time and other early release opportunities for inmates. It established a three-tiered system for parole: non-violent offenders are eligible for parole upon serving 50% of their sentences, violent offenders upon 85% and murderers not at all.
The bill was in response to growing outcry that people were getting off too easily, some after serving only 10-30% of their sentences. “So we need truth in sentencing”, they said. “We need to know exactly how long people will serve!” Fine, whatever. It is a legislative scheme and it is what it is.
Then prison populations ballooned and recidivism was dropped as an objective of incarceration altogether. Last year, a much needed risk reduction credit bill was passed, awarding 5 days per month to certain inmates while they were in programs in jail and if they didn’t get any disciplinary tickets. The legislature capped this at 50 days per year. The purpose was to encourage inmates to enroll in programs in prison – whether to educate themselves, get psychiatric help or overcome a substance dependency. And it makes sense. The best way to help prevent crimes in the future is to attempt to address the causes of those crimes in the present. If a person robs banks because they have a crippling addiction to crack, locking them up for 5 years is one way to deal with the problem, but it’s not very useful when that individual leaves the jail in 5 years, with no job skills, no education and that same addiction to crack.
But good sense is too much for some legislators. Sen. Andrew Roraback (R-Goshen) and candidate for Congress put on a show at the Capitol yesterday, bringing with him crime victims who were shocked to hear that some inmates were earning this credit and it meant that their eligibility for parole was advanced by some 200 days.
Eligibility. That’s the key. Our supreme court has repeatedly ruled that there is no liberty interest in parole. Which means that the 50% mark of your sentence could come, and you could get a hearing and the parole board could still make you serve 100% of your sentence. And no one can do a damn thing about it.
Every criminal defense lawyer (the ethical ones, at least), tells their clients that they should expect to serve 100% of their sentence. If they get out early, consider it a windfall.
But apparently that’s not what prosecutors and victims advocates are telling victims:
It wasn’t welcome news. The couple [parents of the decedent] said that after the 1996 murder they agreed to accept a plea bargain that allowed Gargliardo to cop to manslaughter and a 27-and-a-half-year sentence. The only reason they said they agreed to the lesser sentence was to avoid putting their four-year-old grandson on the witness stand. They said the possibility of him getting parole parole sooner than that wasn’t fair. “They promised us,” Lee DeGrosse said.
Who, exactly, promised them that is unclear. But they’re victims and they’re allowed to feel any way they want. Who isn’t allowed to tag along is an elected member of our legislature, who is presumed to have some critical reasoning ability. There is no functional difference between ‘tough on crime’ and ‘dumb on crime’.
To make matters worse, Roraback wants to be heard. And he wants to be heard now. So much so that he’s threatening to vote against his moral convictions on the death penalty, unless these credits are repealed.
There is nothing more disgusting than playing with an issue as important and fundamental as the death penalty over a half-baked and utterly ridiculous idea.
In the name of victims, he purports to do something that will only cause more harm. Take away credits and we return to a time where inmates had no incentive to better themselves, to arm themselves with the opportunities to succeed in the real world. To give them the tools to step away from a life of crime, not embrace it with open arms again because no one cares about them.
In the name of protecting victims and the lies they were told, he moves only to harm them further and create more of them.
As former Judiciary Co-Chair Mike Lawlor explains:
“If you’re going to pick a group of inmates you didn’t want to recidivate, you would start with violent offenders I would assume,” he said in a phone interview. Lawlor said that the credits don’t ensure an inmate is released early, they only allow them to be up for a parole hearing sooner. During those hearings victims and families are given an opportunity to testify and the board can decide not to release them, he said. “I’m not aware of any violent offender who’s been released without serving 85 percent of their sentence,” he said. “At the end of the day it’s actually quite unlikely.”
And that’s entirely true. Parole can – and will – likely say “That’s great Mr. X. We grant you parole. At 85% of your sentence. See you in three years.”
Go ahead Mr. Roraback. Vote against your convictions and against common sense. We’ll vote with our convictions and repeal the death penalty anyway.
It’s time for real reform
Mar 3rd
Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.
But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.
Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.
First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:
[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]
The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.
For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.
Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.
That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?
The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.
A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.
The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.
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Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
A: No.
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
A: No.
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
A: No.
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A: No.
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
Free-ish
Jan 12th
Sometimes I think that if it weren’t for Georgia and Justice Thomas, I wouldn’t have much to blog about. Having fulfilled the Thomas quota for the night, I now move on to that rotten peach of a state, which seems to be continually perplexed at the existence of the thing called “the indigent defendant” and completely at a loss to deal with them and their pesky “constitutional” rights.
Why just yesterday, the Georgia Supreme Court heard oral argument in a case where the issue, as framed by the Atlanta Journal-Constitution, was:
whether the state’s public defender system can ethically provide and — and also afford — conflict-free representation for thousands of indigent clients.
Go ahead, shed that tear. More, from the concisely named GeorgiaCriminalAppellateLawBlog (a LexBlog production, natch):
So, it came to pass that Michael Edwards, the leader of a circuit public defender’s office in South Georgia came to oral argument at the Supreme Court yesterday where he sat at the same table with an Assistant Attorney General, a prosecutor. Both the prosecutor and the the “public defender” appeared as co-counsel to argue against a bar rule regarding imputed conflicts in the representation of the poor.
What is this cataclysmic event that brought the two sides together? An ethics opinion [PDF], opining rather uncontroversially that:
Lawyers employed in the circuit public defender office in the same judicial circuit may not represent co-defendants when a single lawyer would have an impermissible conflict of interest in doing so.
In plain-speak-ese, if you – an individual lawyer – can’t represent co-defendants at the same time due to a conflict of interest, then neither can anyone else from your office. Not groundbreaking, not so far beyond the pale that it required the unholy union of a public defender and an attorney general.
The United States Supreme Court has long maintained that “a criminal defendant is entitled to be represented by an attorney free from conflicts of interest”. Wood v. Georgia, Strickland v. Washington, Cuyler v. Sullivan…I could go on and on. In fact, I can’t think of an ethical duty that is more important for the criminal defense attorney than this one to provide conflict-free representation. Just as the prosecutor’s duty is to seek justice (go ahead, chortle), ours is to our client and only to our client.
Yet it is this very duty that seems to give defense attorneys the most trouble. It is this unambiguous, bright line, don’t-touch-with-someone-else’s-10-foot-pole duty that somehow turns into a jumbled, confusing incomprehensible mess when it works its way through the neurons of public defender officials. It was this precise issue that the Connecticut Appellate Court considered last October (albeit erroneously concluding there wasn’t a conflict).
How then, given the Constitutional right and the ethical obligation, could the public defender’s office argue that it shouldn’t be required to provide this conflict-free resolution? The answer, as always, is money.
Stunningly, the explanation from the Georgia public defender isn’t that the right doesn’t exist, but that he can’t afford to provide it:
Mr. Edwards pointed out that he can’t afford to engage in egg-headed “philosophical” or “academic” discussions as a GPDSC bureaucrat. He has to be pragmatic about all this. We can’t afford to get off on this business about right and wrong. If you want conflict-free representation, then either stop getting accused of crime or stop being poor.
He didn’t say that last bit, but he might as well have. Public defenders have enough of a PR problem as it is. Siding with the state on whether to provide our clients conflict-free representation isn’t really helping our cause.
Look, I get it. There is only so much money and there are only so many resources. The answer, however, isn’t to capitulate and argue that our clients should be entitled to conflict-free-ish representation, but instead to do what we’re supposed to: stand up for our clients and demand the State to adequately fund the prosecutions they seem so happy to initiate. If, in this no-brainer of a situation, we public defenders take positions that are clearly contrary to our clients’ interests, then is it any wonder that they refuse to trust us and call us pawns of the prosecution?
The duty isn’t ambiguous or predicated on the availability of funds. Free isn’t free-ish.
CT death penalty nothing but arbitrary
Jan 9th
Only today did I stumble across this October 2011 study [PDF] [also available here] on the arbitrariness of the death penalty in CT (via the NYT), which seems to be an update of this 2007 study. Both are by Yale and Stanford lawprof John Donohue, hired by the public defenders office and the attorneys representing death row inmates in the long-ongoing racial disparity litigation here in CT.
The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:
Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:
It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.
It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.
The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:
not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial. Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23). A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.
For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number. Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.
Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group. The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.
The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:
1. There are enormous and unexplained geographic disparities.
2. Death sentences are not confined to the worst murders.
3. There is gender bias in death sentencing.
4. There is racial bias in capital outcomes.
5. There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.
That sounds awfully like the State’s expert agrees with the defense expert.
The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.
DOJ finds widespread racial profiling in East Haven
Dec 31st
the land of steady racism
Almost exactly one year ago, I wrote about the town of East Haven, CT hurtling towards “sundown town” status, caused largely by alleged institutional racism and bias towards minorities – lately specifically Latinos. In that post, I mentioned that there was a federal civil rights lawsuit pending and that the Civil Rights Division of the Department of Justice had opened an investigation into these alleged discriminatory practices of the East Haven Police Department. This past week, the DOJ issued its report in the form of a letter [PDF] sent to the East Haven mayor and boy is it damning (media coverage here).
Some of its key findings:
- The East Haven Police Department (EHPD) conducted disproportionate traffic stops of Latinos. Latinos accounted for 24.8% of the stops in the 4pm-12am shift, which is typically the busiest. The numbers for the other shifts were 17.8% and 14.7%.
- However, comparing the percentage of Latinos stopped to the percentage of Latinos in the population reveals a starker difference. Latinos accounted for 19.9% of all traffic stops, but make up only 8.3% of East Haven drivers (and 15.5% of East Haven and surrounding towns).
In making these stops, the DOJ found that the EHPD targets Latino drivers and employs tactics not used against non-Latinos:
- Officers heavily patrol known Latino areas, lying in wait for people leaving predominantly Latino-oriented businesses.
- Other methods use include following cars until a traffic violation occurs, out-of-state license plates known to be “forged”, citing speeding but writing little to no information about the speeding on the ticket itself.
- Latinos face harsher treatment after being stopped: they are more likely to be arrested and have their cars towed for traffic violations than non-Latinos.
The DOJ further charges that the EHPD haphazardly employes immigration policies against Latino drivers and points out that the EHPD and East Haven have had a long standing problem with policing of minorities, citing a recently concluded federal lawsuit which alleged discrimination against African Americans (Jones v. Town of East Haven, et. al.).
The most shocking thing about all of this (or the least surprising, depending on how naive you are) is that the DOJ got all the above information from the EHPD itself: from 2 years’ worth of police reports and interviews with officers and community members.
The institutional coddling of these discriminatory practices is mind-blowing. From the news report:
East Haven may be unique, if only because of a tangle of politics and the close friendship between East Haven’s Republican mayor, Joseph Maturo Jr. and his chief of police, Leonard Gallo.
Maturo was originally mayor from 1997 to 2007 and he hired Gallo as chief in 1998. But Gallo was put on administrative leave by Maturo’s Democratic successor as mayor, April Capone, in 2010, a result of the allegations of racial profiling and excessive use of force by East Haven Police.
After Maturo won in the November elections, he almost immediately returned Gallo to full duty as chief — an astounding move given the ongoing civil rights and grand jury investigations into police actions during Gallo’s tenure.
And more:
The 23-page report released Monday by the U.S. Department of Justice Civil Rights Division cited top police officers for “creating and condoning a hostile and intimidating environment for anyone seeking to provide relevant information in this investigation.”
“We also learned that Chief Gallo had warned staff that the Department of Justice had agreed to provide him with the names of individuals who cooperated with the investigation,” according to the civil rights report. And that, federal officials insisted, was completely and utterly untrue.
How bizarre is this institutional protection? EHPD officers told DOJ officials (that’s the fucking Federal Department of Justice Civil Rights Division, in case we were unclear) that the DOJ officials’ safety could not be guaranteed by the EHPD when they went on ride-alongs. Ponder that for a second.
The DOJ found an abject lack of any internal policing mechanisms and that the EHPD hadn’t ever bothered to compile the statistics to see if racial profiling existed with its department, something that’s required by C.G.S. 54-1m. In addition, the DOJ noted that a large number of entries into the EHPD’s database seemed to be missing ethnicity data or the data seemed to be misreported.
EHPD is at a crossroads: either admit that there are problems and work toward fixing them or deny it all and face lengthy and costly lawsuits brought not only by civilians, but also the Department of Justice. As a new year dawns, one can only hope that concern for the safety of officers and the constitutional rights of its residents rises above deep-seated racism and pride.
Witnessing bullshit
Nov 22nd
That eyewitness identification is a troublesome area of the criminal justice system is well known to regular readers of this blog. That the movement toward long overdue reform is lethargic and a source of much consternation to me is well known to the readers of this blog. So, it presented a bittersweet moment when I learned that the Connecticut-centric NPR show “Where We Live” was going to do an episode on the problems of eyewitness identification and the enacted legislative reforms. That the complexities of this issue cannot be given – heh – justice in a one hour time slot goes without saying, but there is something to be said about this seeping into the collective general consciousness. So, all for the better, I suppose.
Until a caller called in with a comment toward the end of the show (which you can listen to in its entirety here). The caller “Wayne” offered a personal anecdote, which I paraphrase below:
I’m a cab driver in New Haven and back in 1979, I had transported an individual, who it turned out had just committed a murder. So, as a witness, I was called to testify at the trial and identify him. Now, when I had transported him, he was a thin fellow, riddled with a drug addiction, unkempt, mousy and had that lean and hungry look. After getting 3 squares a day, regular sleep and no sunlight for a year at the taxpayer’s expense, he looked like a different man. He’d put on weight, had grown hair and was looking well-fed. I couldn’t recognize him at all. I couldn’t see the person I had transported a year earlier, so when asked to identify the passenger, I figured, heck, it has to be that guy sitting next to the defense attorney, looking quite out of place in a suit. So I pointed in that direction. Luckily, there was other evidence and he was convicted.
Read it again if you’re sitting here thinking “well, what’s the problem?”. The problem is that this witness admitted that he had no idea whether the defendant was indeed the same person who he had transported a year ago, but pointed at the guy sitting in the courtroom anyway, thereby making an in-court identification that jurors could – and would – rely upon to convict him.
Putting aside the desire that witnesses be honest and forthcoming about their inability to recall the defendant as the perpetrator – they rarely are – this highlights a recurring problem for which there may be no solution. In most criminal trials, there is one person sitting across from the jury who just doesn’t belong to the scene. There is one person who best resembles a Microsoft photoshop faux pas: the defendant. Either he isn’t wearing a suit, or wearing one that’s ill-fitting or is wearing the same shirt that the juror saw him wear during voir dire, or he’s just…sitting there. Looking out of place. Uncomfortable.
And everyone can see it. Even the witness. And that makes identifications in court essentially meaningless. Because, when asked to identify the perpetrator, who else is the witness going to pick out? The prosecutor who’s just been asking him questions? The defense attorney who’s been objecting? The judge? Don’t be silly.
I’ve been thinking about this all day and I’m not sure that there’s a solution. But there is a problem. And the problem is that it turns bad memories into good ones. It turns hunches into convictions. It’s the same problem with juries: the defendant’s here, he’s arrested, he must be guilty. Innocent people don’t just end up in trial for no reason. If the system has got him, it’s got the right guy.
We can control this to some extent during pretrial hearings on the suppression of identifications, but in trial, there’s no apparent remedy. It’s yet another failing that we have to live with and work to overcome.
A different approach
Nov 22nd
For those of you who have followed the recent history of capital punishment in Connecticut and the struggle over abolition, I will quote a few paragraphs. Tell me if it sounds familiar:
[We] have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced [here] is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death [here] is actually executed is that they volunteer. The hard truth is that in the [40 odd] years since [we] reinstated the death penalty, it has only been carried out on [one] volunteer who waived [his] right to appeal.
In the years since [then], many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that [our] system is broken.
But we have done nothing. We have avoided the question.
And during that time, a growing number of states have reconsidered their approach to capital punishment given public concern, evidence of wrongful convictions, the unequal application of the law, the expense of the process and other issues.
It goes on and on. Sadly, while the debates and the struggles and the arguments are the same, the State is not Connecticut, but rather Oregon, and the above is not an excerpt from a speech of Governor Malloy, but rather from a remarkable statement [PDF] made by Governor Kitzhaber in explaining his decision to impose a moratorium on executions in Oregon. Compare the solemn eloquence of Kitzhaber’s statement with the barbaric vengeance that spewed forth from the mouth of Edith Prague. The former is replete with compassion and realism, while the latter is devoid of any intellectual honesty.
Is there any wonder that we still seek and pursue the death penalty here in Connecticut? What more could highlight the arbitrariness of the death penalty when the same argument is utilized by Kitzhaber to justify his moratorium and by the Connecticut Supreme Court to continue to sanction this ghastly punishment [PDF]:
And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing. Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.
versus:
We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty Information Center, ‘‘Facts about the Death Penalty,’’ supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option for prosecutors to seek life sentences without the possibility of parole.
Although some of these explanations suggest declining public support for the death penalty because it offends contemporary standards of decency and morality, others decidedly do not. Because of the ambiguity underlying the decline in new death sentences, that circumstance does not provide compelling support for abandoning our decisions in Ross and Webb.
The courts and the legislature in Connecticut are engaged in a silly game of kickball and avoidance. We hide behind the cutesy nickname, “the land of steady habits”, when in reality, we are the only state in the entire Northeast to still sanction this punishment. Steady we are, I suppose. Steadily vengeful and regressive.
Says Kitzhaber:
Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I would make a different decision. That time has come.
The time has come. Who will have the courage to utter these words and take a different approach?
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