proposed legislation
DNA exonerates another in CT; mis-ID the culprit
Mar 16th
On Monday, Hubert Thompson walked out of Hartford Superior Court a free man. He felt the sun hit his face, breathed fresh air and went where the hell he damn pleased. He had just been granted a new trial after serving well over half a decade in prison for a rape he didn’t commit.
After DNA taken from the victim was discovered to still exist in a vault somewhere, his attorney sought to have it tested. The results excluded him as the source of the DNA and implicated another man. On Monday, his motion for a new trial was granted [I don't have a copy of the actual motion, but if you go that page, you can see a copy of the order page, which has some details on it].
[I've been sitting on this post for 3 days now, since there was absolutely no media coverage whatsoever and I didn't want to find myself in the enviable position of being the source of a news story that frankly half a dozen "news" organizations shouldn't gotten their hands on this week. That it took 4 days before the intrepid folks at CT News Junkie tracked down this story independently speaks volumes to the focus of the "mainstream" news outlets, which are quick to splash sensationalist headlines of people's arrests but reluctant to find out about real stories of injustice even when repeatedly informed of them. This is why independent news outlets like CTNJ and New Haven Independent have the drop on most traditional news media.]
How did Mr. Thompson get arrested, charged and convicted, you might ask, despite the title of this post? A faulty identification by the victim, ‘natch. Just in time, too, as the legislature today holds a public hearing on another eyewitness identification bill that would improve upon the one passed last year. But it also comes at the right time in the context of the death penalty debate, serving to remind us and our legislators that even here in the land of steady habits, we are not perfect. We make mistakes and one day, these mistakes are going to converge in a death penalty case. That we’ve been lucky so far is no reason to maintain faith in the infallibility of our particular death penalty scheme.
Thompson was convicted in 1998 of a rape and kidnapping that occurred in 1994. He was sentenced to serve 12 years in prison. At the time there was no usable DNA evidence, but the victim identified Thompson as the perpetrator.
Just this month, the State lab finished testing on the victim’s underwear to find that it excluded Thompson and implicated another man. Which is fantastic for Mr. Thompson, but just imagine, for a second that there was no testable DNA remaining. He’d still know he was innocent, but no one would believe him. He’d probably serve 12 years and be left to the ravages of the system with no way of proving his innocence.
There are people like that in our prisons. People who are innocent, but have no way of proving it. And a large number of them are convicted based solely on eyewitness testimony. Why do we continue to rely on this faulty mode of evidence? Why do juries? People: if you’re reading this and you’re on a jury, be extremely skeptical. There may be no white knight in 5, 10, 15 years to save an innocent man. Maybe it’s time we all started requesting instructions on the dangerousness of eyewitness testimony. We should ask that juries be instructed that 75% of wrongful convictions involved an identification of the exonerated. Something has to be done.
Just not what State Rep. Hewett wants:
However, Rep. Ernest Hewett, D- New London, said Thompson’s case lends support to a different proposal he’s pushed in the past. Hewett wants to allow the pre-conviction collection of DNA data at the time of a felony arrest. “Can you imagine if we increased our database to arrestee DNA, how many people we’d get? They’re just walking the streets,” he said. “Those people that are running wild out there, continuing to commit crimes, their profile would be in our database.”
This, apparently, is his pet project. I’ve written in the past about how this would run afoul not only of our basic Constitutional rights, but also the principles underlying those rights and would only serve to push us closer to war with Oceania [and a debate on this bill last year produced, in my estimation, the "Best. Quote. Ever"].
Hewett, as you can see from prior posts, is prone to saying things that make little sense. He says that Hubert Thompson’s DNA exoneration, – and for that to work, they’d had to have DNA from the victim, the suspect and Mr. Thompson – this particular case, lends support to the idea that we should take DNA from people when they’re arrested. Apparently he missed the part where they didn’t test the DNA in 1998 because there wasn’t any usable DNA in the rape kit, not because they didn’t have Mr. Thompson’s DNA or that of the real suspect.
As time went by, extraction methods and protocols improved, allowing the lab to extract DNA from samples previously thought to be unusable. It’s that advancement in technology that permitted the exoneration of Mr. Thompson, not him suddenly deciding 5 years into a 12 year sentence that “hey, you know, maybe I should start working on this whole ‘getting out of serving time for a crime I didn’t commit’ thing”.
We’re all allowed to have positions on things and our pet projects – God knows I have so many – but can’t we at least expect our elected officials to be able to understand, articulate and properly apply theirs?
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.
—
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?
—-
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.
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.
I blue myself
Jun 9th
I know what you were thinking. Pervert.
As I snarked (yes, it’s a verb now) on Twitter last night as Governor Malloy delivered his end of the session speech to a joint session of the legislature, yesterday was the first time since 1990 that a Connecticut governor uttered the words “criminal justice reform” and I didn’t want to throw something at the television.
The reason for this new-found restraint isn’t the deep meditation I’ve been practicing, but rather the reality that the legislature did indeed pass some sensible reforms this year. As the nation turns red, Connecticut turned blue, not only in the criminal justice arena but others as well. There was the paid sick leave [full coverage here] bill, the transgender identity bill and the in-state tuition for undocumented students bill. But as is the case with politics generally, there were many things left undone. Here’s a roundup of the criminal justice bills that passed and those that didn’t.
First, the good bills that passed:
- Decriminalization of possession of less than half an ounce of marijuana.
- Risk Reduction Credit: the first piece of “smart on crime legislation” to pass the legislature this year (scroll to section 22), this bill provides for 5 days per month of credit towards a reduction in the overall sentence of an inmate. It seems similar to a “good time” bill, but it really isn’t, because there are several offenses that are ineligible for this risk reduction credit and the credit applies only to inmates who participate in programs and maintain good behavior.
- Home confinement for DUI and drug offenders: as advertised. Scroll to section 26 & 27.
- Electronic Recording of Custodial Interrogations: finally a videotaping of interrogations bill and yet it feels so incomplete. This bill applies to people accused of capital felonies and Class A & B felonies only. Plus, it doesn’t go into effect until 2014, because apparently, in the 21st century, it’s far to burdensome for police departments to buy a goddamn videocamera and record something. Still, better than nothing.
- Eyewitness ID reform: another half-measure as the bill now requires double-blind identification procedures “where feasible” but leaves sequential procedures for a “task force” to study. Study what, exactly, I don’t know.
- An Act Concerning Competency To Stand Trial: I haven’t fully perused this bill yet, but it seems to make some changes to the restoration to competency procedure.
- Prevention of Prison Rape: this is a terrific bill designed to prevent rape in prisons, which is a real problem. Read the NH Advocate for more.
Bills that should have passed but didn’t:
- Reducing the radius around schools, within which drug offenders face enhanced penalties, from 1500 feet to 200 feet: This was another great bill that died at the last second, with time running out. This would’ve made another “smart on crime” change, reducing the enhanced penalty zone around schools to 200 feet. As it currently stands, at 1500 feet, major cities have almost no spots that aren’t within that radius of a school. In New Haven, there’s only one: in the middle of a golf course. Too bad. Maybe next year.
- An Act Making It Clear That It’s Legal To Record Police Officers: This bill, ostensibly proposed in the wake of the Luis Luna fiasco, had great momentum, passing the Senate last week, but then it languished on the House calendar and was never put to a vote.
- An Act Concerning Speedy Trials: another smart bill that sought to prevent the problem of people being incarcerated pre-trial for longer than the maximum punishment. Unfortunately, it didn’t get as much as a sniff in either the House or Senate.
- An Act Concerning Sentence Modifications: a favorite of inmates, this bill would’ve removed the current requirement that all inmates serving sentences of 3 years or more need the permission of a prosecutor to even have their modification request heard by a judge. Essentially the bill would’ve removed prosecutors’ ability to cock-block. It didn’t get far.
The bills that shouldn’t have passed and didn’t:
- An Act Designed To Make a Mockery of The Great Writ: This stupid bill keep getting proposed every year and every year it gets tougher and tougher to beat it back, for some reason. This year it made it out of committee, but thankfully died before a vote in either chamber. I’ve written extensively on why this is a bad, stupid, dangerous bill.
- An Act Equating a Motor Vehicle With A Fiream: Here. I’ll let you read the summary: ‘To make the penalty for the offense of manslaughter with a motor vehicle while under the influence of intoxicating liquor or any drug, or both, consistent with the penalty for manslaughter in the first degree with a firearm and provide for a rebuttable presumption that any person who causes the death of another person while operating a motor vehicle under the influence of intoxicating liquor or drug, or both, did so evincing an extreme indifference to human life in a manner that constitutes manslaughter in the first degree.’ The penalty for manslaughter with a firearm? 45 years. That’s forty five. Thankfully this abomination, after passing the Senate (!), stalled in the House.
- The DNA upon arrest bill: I wasn’t aware of this, but the bill passed with a great amendment: it applies only to those accused of serious felonies and who have been convicted of a felony in the past and haven’t provided a DNA sample. So, basically, it means no change in the law. [Link is to the House Amendment that was approved by the Senate, essentially the relevant portion of the bill.]
- Establishing a ‘gun offender’ registry: this was a novel idea but didn’t make it far.
- Thanks to Capitol Watch for reminding me about the stricter penalties for cell phone use while driving bills that apparently went quietly into that gentle night.
The bill I wish never passes, so we can keep talking about it forever:
- The Ryan McKeen loves Susan Bysiewicz bill: This would have eliminated the hotly contested “active practice” requirement for someone wishing to be Attorney General. The House passed it, the Senate didn’t vote.
You can find a very unhelpful list of all the bills passed here. If any of you so much as thinks about mentioning ‘d____ p______’, I will /kickban you.
For those who don’t get the title of this post or the hilarious picture of Tobias Funke, here’s context:
CT decriminalizes pot
Jun 7th
yes, officer, this weed is mine.
Connecticut’s legislature today voted to decriminalize the possession of less than half an ounce of marijuana. For those who don’t know, the picture above is of half an ounce of pot. That’s a lot.
In celebration of the impending signing of the bill by the Governor, I am conducting an experiment: this post is being typed while I am completely high1. I have Pink Floyd playing in the background, Half Baked on the television and my good buddy Jim Breuer mumbling on the telephone.
The bill makes it an infraction to possess less than half an ounce, resulting only in monetary fines and confiscation for said pot, presumably for the officers to smoke.
[Former Judiciary Committee co-chair and current criminal justice advisor to the Governor Mike] Lawlor said many of the 2,000 people each year who are convicted of possessing less than a half ounce of marijuana do complete one of the several programs that wipe their record clean upon completion.
But the conviction being on a permanent record is not the only problem, he said.
“In this day and age, the minute you get arrested that’s public record and remains a public record… That’s there forever,” he said. “When employers Google your name that will pop up.”
“Those are records they have to explain the rest of their lives” when applying for jobs, financial aid for college and when attempting to join the military, [Judiciary Committee co-chair] Fox said. “This [bill] would change that.”
Also: it’s pot. But of course, the Repubs brought out the “gateway drug” argument3. So, after typing this post I’m going to raid my mom’s medicine cabinet, pop some percocet and then head down to the corner to score some meth1. Brb.
And now here’s a picture, shamelessly stolen from the Hartford Advocate, followed by a video. Suggest your own theme song for this awesome event in the comments. Man.
wait, what...?
1No, don’t be stupid. I’m writing this post drunk, as usual. I’ve never partaken of illegal drugs.2
2Not within any active statute of limitations, anyway.
3No, seriously. Smoke responsibly. Don’t smoke and drive. Don’t smoke and tweet.
Best. Quote. Ever.
May 23rd
Look, you folks know it’s no secret that I’m disillusioned with the people that pretend to govern us, especially when it comes to their views on justice and crime. This disenchantment has been solidified in the current legislative session, starting with EdithGate and today’s news that the abominable DNA upon arrest bill staying alive. This bill, you will recall, permits the state to take DNA samples of any arrested of a crime. The DNA profile would then remain in the State’s database until you were acquitted and then you jumped through bureaucratic hoops to get it removed.
Explains State Rep Hewitt, a proponent of the bill:
“If I walked out of this door right now and I was arrested for rape with an eyewitness and there was DNA found on the scene of that rape — God help me I wish they would take my DNA.
I’d wish the same too. And you know what? They do. It’s usually titled ‘Motion for Non-Testimonial Evidence’ and is always granted, because there’s no basis to object. Then the police take a buccal swab of the defendant, do some science-y magic and decide if you’re the guy. It. Happens. All. The. Time.
Said another:
Rep. Don Clemons, D-Bridgeport, said it was the rape and murder of his son’s mother more than 30 years ago in Bridgeport that makes him inclined to support the bill. He said from 1978 to 1982 there were eight women abducted from Bridgeport and later found strangled and raped. To this day, those cases remain unsolved, he said.
“When I saw this piece of legislation Rep. Hewett produced, it brings back haunting memories,” he said, but he added that the measure could provide resolution for the families affected by those crimes.
And so you’d think there was no hope for individual freedoms and liberties in the Constitution State. But there is. And his name is Peter Tercyak, D-New Britain. Which brings us to the greatest quote ever:
Personally I’ve long argued that we won’t be robbed of our liberties at gun point. We will freely give them up one at a time to solve one problem at a time with our hearts being tugged by one truly horrible story at a time,” he said. “That’s why we’ve coded our liberties as we have.
Take a minute and read it again. Isn’t it beautiful?
Abolition is dead and with it, a little bit of all of us
May 11th
“They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street,”
State Senator Edith Prague, D-Lots of Places That Are Not Cheshire, CT, who was for the death penalty before she was against it, before she was for it again, but only for one man.
The abolition of the death penalty in Connecticut was already hanging on by the thinnest of wires, thanks to Governor Malloy’s decision to take several Senators into his administration. The vote was a very, very close one. And that was before Sen. Prague’s comments today, after she had a meeting with Dr. He Who Shall Not Be Named, CT’s favorite victim.
But lets be clear: Sen. Prague may not have changed her stance on the death penalty in general – she may very well vote for abolition next time, she magnanimously informs us – but in this one instance, she wants the government of Connecticut to murder a man:
Prague indicated she may still support future efforts to abolish the death penalty but said, this year, she couldn’t look Petit in the face and “not give him something that would make his life a little easier.”
“I actually believe in repealing the death penalty,” said Prague, a senator for 16 years. “For Dr. Petit, for me to do one more thing to cause him some kind of angst, I can’t do it.”
…
Prague’s voice broke today as she recounted her visit from Petit.
“I can still see Dr. Petit’s face in front of me. Oh, my god in heaven. I’m doing it because that’s what they came in for,” Prague said. “They brought their lawyer and said, ‘If you vote for the repeal, it would make it more difficult.”
And she’s not the only one:
Sen. Andrew Maynard, D-Stonington, who voted for repeal two years ago, said he also has reconsidered as a result of conversations with Petit.
Those who are regular readers know that I am not easily left at a loss for words. To say that these comments left me reeling would be an understatement. So let me state this in terms that should not be misunderstood by anyone: Sen Edith Prague is deciding policy in the State of Connecticut based on the wishes of one man.
She may well be the deciding vote that defeats the abolition bill and she is doing so, not because of some moral opposition to the death penalty, but because one survivor made a personal request to her. And what of the others? Those survivors who are opposed to abolition? Did she even bother to listen to their opinions? Can she look them in the face and make their life easier? Or is their loss not the same? Must we always side with vengeance and “justice” over mercy and compassion? Where do you want to be, at the end?
Connecticut’s capitulation to the person in question is well documented: our former Governor Rell repeatedly invoked his name in defeating criminal justice and death penalty abolition bills. Public opinion polls routinely separate one particular case from the idea in general when asking about the death penalty. And apparently, a majority of Connecticut’s citizens would agree with Sen. Prague.
It is one thing, however, for the general populace to voice such opinions – they should and are entitled to it. It is quite another for an elected representative, who takes an oath, to put aside policy considerations for the specific interest of one individual.
Make no mistake: this is the State of Connecticut explicitly stating that Joshua Komisarjevsky and Steven Hayes are to be murdered. This should trouble you. The machinery of two governmental branches of the State have now maneuvered and conspired to bring about the deaths of two individuals.
If two elected representatives to State Government are so moved by their desire not to “make it more difficult” for this survivor, what chance do 12 members of a jury have?
I offer an analogy – admittedly weak, because nothing can adequately capture the gravity of the State’s decision to murder someone – but nonetheless: If this were not an abolition bill, but a bill to raise taxes and Sen Edith Prague made public comments that while she supports raising taxes and it will benefit the State, one individual from a city not in her jurisdiction came to her and begged her not to, because it would affect him personally, and so she will be voting against raising taxes this time. How hard would you laugh at her?
If the State can so contort itself to train its crosshairs on these two individuals – so explicitly, so blatantly and without any shame – why do you think you’re not next?
I suppose, on balance, an abolitionist might gain some small measure of hope from the fact that these public comments, with their explicit emphasis on the desire to please one individual over greater policy, would make it almost impossible for an appellate court to affirm the death sentence for a man so clearly and publicly marked for death. Upon rumination, however, I do not share that optimism. I have no faith in any of the branches of Government of this State. And they haven’t given me any reason to.
Whether you are for or against the death penalty is, in my opinion, entirely irrelevant to this post. Sen. Prague’s comments and her willingness to cow-tow to the emotional machinations of one individual should put the fear of God in all of us.
Today, we can no longer say that there is a divide between “them” and “us”. Today, Sen. Prague has made us all animals.
They may take my freedom, but they will never take my cell phone
Mar 15th
The title only really works if you imagine it being uttered by Mel “before he went crazy – or maybe he always was” Gibson essaying the role of William Wallace in that stirring monologue near the end that is actually said to have never happened (There’s some trivia for you).
But it is indisputable that some of the lunacy that has infected the good actor’s mind has seeped into the brains of certain state legislators, for how else would one explain a new proposed bill that would make talking on a cell phone punishable by imprisonment?
Raised Bill 6366 would make the penalty for a second violation of the no-talking-on-cell-phones-while-driving law up to three months in jail:
(h) Any person who violates subsection (b), (c) or (d) of this section shall, for a first violation, be fined one hundred dollars, and, for a second or subsequent violation, be fined not more than five hundred dollars or imprisoned not more than three months, or both.
It would also give the police the immediate authority to suspend a driver’s license for a period of 24 hours, without a hearing, or due process, which up until now were within the exclusive kangaroo jurisdiction of courts and the Department of Motor Vehicles.
I’ll get back to the “3 months in jail” provision in a bit, because there are other problems with the bill as drafted that also merit attention. For example, the bill makes it illegal to talk on the phone or send text messages, but does not make it illegal to hold “a hand-held mobile telephone to activate, deactivate or initiate a function of such telephone”.
There is an exception for a “hands-free” device which:
means a hand-held mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.
So, it would seem, I can answer a call, put the phone on speaker and talk away to my heart’s content. Or can I? It is also illegal to have “engage in a call” in one’s “immediate proximity”:
(7) “Immediate proximity” means the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator’s ear.
Whaaa? So can I use the speaker function, or can’t I? The bill also makes it a rebuttable presumption that anyone who holds a phone to, or in the “immediate proximity” of his ear is engaged in a call. The presumption can be rebutted by one proving that there was indeed no call taking place.
And of course, the bill also makes it clear that getting pulled over for this violation does not give police the authority to seize or forfeit the phone.
Nifty little trick there. It places the burden of proof – of innocence – on the accused and then forces that accused to give up his fourth amendment right to be free from illegal search and seizure in order to prove that innocence.
The only way that someone can prove that they were not engaged in a call is to take out the phone and show the officer that they were not, indeed, making a call. But courts have held recently that there is some grounds for a right to privacy in one’s telephone, thus triggering the Fourth.
[Although, this particular "problem" is taken care of by Raised Bill 961, another bill on talking-while-driving, which directs the police to seize the cell phone for a period of 48 hours. I suggest that each one of you create a password on your cellphones and calmly remind the officer that he is violating your fourth amendment rights and that he obtain a warrant prior to seizing the cell phone.]
Of course, the biggest problem with this bill is that it creates criminal liability for acts that are so poorly defined and that really should not be the subject of criminalization.
Making one of the potential penalties 3 months’ imprisonment brings with it the attendant rights of anyone who is exposed to a deprivation of liberty. Which means due process, the right to counsel, etc. And that means greater resources and more time wasted on something that really even the police themselves can’t be bothered to police. In other words, I smell pretext.
H/T: Capitol Watch
Looney times are here again
Feb 13th
It’s February after an election year, which can mean only two things: pitchers and catchers report soon and there’s an influx of bills in a new legislative session that make you go “stfu!”. Don’t ask me what stfu stands for. Seriously, it’s 2011.
So in a year where the only focus should be the economy, stupid, there already is no dearth of head scratch inducing bills that have been or are about to be proposed in the State legislature. I bring you these only as I can – with heaping amounts of derision.
So let’s get started:
Proposed S.B. 104: An act concerning the penalty for the sexual assault of a minor. Don’t bother reading it, it’s a proposed bill so there’s nothing more than a statement of purpose. I’ll tell you what the proposal is: one strike. Yes. One strike for people convicted of sexual assault of a minor under “certain circumstances”. That means, under “certain circumstances” you sexually assault a minor, the penalty is life.
I’ll tell you why such boneheaded bills get proposed: publicity and feeding into hysteria. Senator Witkos, who must know that there’s no chance in frozen Connecticut that his bill will pass, has introduced it only so he can look “tough on crime” (which we all know is on the way out and there’s no chance in frozen Connecticut Witkos will ever look ‘smart’ on crime). The implications of a bill such as this are frightening nonetheless. Apart from the severity of the penalty, there will almost certainly be no more plea bargaining for this sort of offense. What’s the incentive? None. Go to trial. Watch the system crumble. Watch children further traumatized. Good times, Witkos.
Proposed S.B. 87: An act concerning the prevention of convicted felons from receiving state social service benefits. If you thought 104 above was the extent of Witkos’ bright ideas, let me disabuse you of that notion. Here is another of his bright ideas. The statement of purpose is laughably uppity: To require that persons receiving state aid are law abiding citizens.
I hope, dear reader, that you have no need for me to list the various ways that this bill is a bad idea and insidious at worst. Whether the chicken came before the egg, the impact of this bill will squarely fall on the minority communities of Connecticut, whom some might argue have the greatest need for social services.
Proposed S.B. 395: An act concerning drug testing for recipients of cash assistance benefits. It seems that Sen. Kane is drinking whatever Witkos is. This bill would require periodic drug testing (yes, let out that sigh right about now) of people on state welfare. Hey, at least it’s no “one strike” bill. A first offense requires an evaluation. A second requires mandatory (!) drug abuse treatment and only a third will strip away benefits. Because there’s nothing like making poor people poorer to get them to stop using drugs.
Proposed S.B. 142: The “DNA upon arrest” bill. The problems with this type of DNA collection are well documented as are my objections to it. (More on this bill here.)
Proposed S.B. 695: The “gun offender registry” bill. Proposed by longtime Senator Looney (now you get it), the bill would create a registry, similar to the sex offender registry, of people convicted of using guns during specified crimes. It helps keep track of gun users or something, apparently.
But I can’t hate on Looney too much, because for every crappy bill like the above, he proposes several good ones. For example, the bill legalizing less than an ounce of marijuana, the bill reducing the “drug free zones” to only 200 feet as opposed to 1500 feet and only during school hours, the bill to videotape interrogations, the bill to automatically make provisional pardons final after 5 years of crime free life (beautifully titled “To allow former offenders a better way to become productive members of society”), the bill making it illegal to detain in pre-trial status people charged with misdemeanors for longer than the maximum punishment (aka the bill “To create a more rational criminal justice system”);
and finally S.B. 788 which would give citizens the right to sue police departments who interfere with a citizen’s right to photograph or videotape events as long as they are not interfering with the police’s ability to perform their duty. Perhaps because of this or this?
Proposed H.B. 6076: The “residency restrictions” bill. Proposed once again by Rep. Roldan of Hartford, this is a reprise of the bill from last year, creating a 2000 foot buffer zone around schools, bus stops, parks, etc., prohibiting sex offenders from living there. You really want a link to my opposition? Fine. Word on the street is that Roldan himself is pretty sure that the bill won’t pass and yet has to introduce it to…I don’t know…avoid talking about the budget?
The Day of New London has more on other silly bills that shouldn’t have even taken seed in the minds of our esteemed legislators, but yet, here we are.
Oh, there’s a death penalty abolition and eyewitness ID reform bill too, but those deserve their own posts.
Death penalty abolition bill filed and waiting
Dec 16th
It isn’t even January yet and already state legislators are “pre-filing” bills to be voted upon in the next session of the state legislature. As expected, first among them is a death penalty abolition bill with State Rep. Gary Holder-Winfield as its proponent. Holder-Winfield, you may recall, spearheaded the first abolition bill two years ago, which passed both the House and Senate and was ultimately vetoed by “only a month left until she’s gone, wooohoo” Gov. Rell.
Holder-Winfield has also introduced other necessary criminal justice reform legislation, like adopting the best practices for eyewitness identification procedures and videotaping interrogations. He has “pre-filed” a bill addressing the former once again.
Of course, with the just concluded Hayes trial and the upcoming circus in the trial of his co-defendant Joshua Komisarjevsky, the debate on the death penalty bill is likely to be emotional, contentious and close. But no one can accuse Holder-Winfield of falling prey to the typical abolitionist tendencies of avoiding confrontation and “waiting for the right moment”, which almost never materializes, because there’s always a heinous crime around which the pro-death penalty folks will rally.
With newly elected anti-death penalty Dan Malloy taking over the reins of the State for the next 4 years, there’s a sliver of hope for abolition.
H/T: CTNJ
Rell vetoes sentencing commission
Jun 8th
Rell, intent on breaking the world record for vetoes and dumbass moves as Governor before she leaves office this year (can that day come soon enough? I say no), vetoed yet another important criminal justice bill yesterday. The bill, which would have created a sentencing commission to evaluate the state’s statutes and sentencing practices and analyze them for disparity – including those of the racial kind – apparently carried a very hefty price tag, which is what prompted her veto.
The gargantuan sum of $130,000 a year easily dwarfed the $150,000 price tag for each of the 9 new judges that she nominated, that the State didn’t need, but were eventually confirmed.
“While I appreciate the need for review of our sentencing statutes and practices, given our State’s ongoing economic challenges, this is simply the wrong time to create yet another state entity,” Rell said. “I have spent much of the last year examining our state budget to find ways to save money so that we would not have to increase the burden borne by our already struggling taxpayers. Some of the cuts we have made were painful; none were easy.”
She said. I rolled my eyes.
It’s 5 p.m. Do you know where your bills are?
Mar 29th
Today, at 5:00pm, the Judiciary Committee of the state legislature closed for business, just like any other day. But today is important for two reasons: 1) It was the last day on which the committee could vote on bills; 2) This marked the first year that the eyewitness identification reform bill passed and will now head to the legislature for a full vote.
There are several bills I’ve been tracking for a while now, of interest to me and the regular reader. We now know the fate of all those bills (here’s a list of all bills voted out of committee and here’s a list of those that were on the agenda).
Good news:
The biggest news, in my opinion, is that the eyewitness identification reform bill received enough votes to make it out of committee (it died in committee last year). This is a tremendous step forward in the quest for adoption of best practices in lineups and photo arrays.
In addition, the sex offender residency restriction bill was never called to vote, and so unless it’s added as an amendment to a bill that did pass, it has died. (My problems with this bill were documented in this post.)
Another year and another assault on the dignity of The Great Writ has been turned away. The habeas corpus “reform” bill also died in committee, never being called to a vote.
For the second year in a row, the Adam Walsh fearmongering and bleeding money Act also failed to make it out of committee.
The innocuously titled “Act Concerning Subpoenas for Property” also wasn’t called to a vote and went away quietly. Don’t get fooled by the title. This was a very, very dangerous investigative subpoena bill, essentially granting the state to subpoena whatever the hell they wanted from whomever they wanted, even in the absence of a pending criminal prosecution/investigation. It essentially spat in the face of the Fourth Amendment.
An act seeking to create a mandatory-minimum sentence for assault of a public safety officer made it out of committee, but if I recall correctly, without the mandatory minimum.
Three bills hell bent on pushing Connecticut closer to fulfilling Orwell’s prophecy, one to remove the statute of limitations on perjury in murder cases; one to remove the statute of limitations for hindering murder prosecutions and one making it a crime to fail to report a “serious crime” against a child.
The “sexting” bill made it out of committee. But that could be a good or bad thing depending on your point of view. Me, personally? I don’t care either way.
Bad news:
I’ve always viewed the eyewitness ID bill and the videotaping of interrogations bill as two peas in a pod. Fraternal twins, if you will. Where one goes, so should the other. Unfortunately that wasn’t the case today. I’m not even sure the videotaping of interrogations bill was called for a vote. One step at a time, I guess. There’s always next year (says he, sounding awfully like a Red Sox fan. I need a shower).
The big-ticket news item of the day is the passage of the bill eliminating the statute of limitations for civil suits in child sexual assault cases. It’s not criminal, per se, but a stupid idea nonetheless.
A statewide ban the box proposal was called for a vote, but derailed and then “held”, which is lege-speak for killed.
For the second year, a bill seeking to reduce the zone around schools within which drug offenses triggered an enhanced penalty from 1500 feet to 200 feet. In addition, the penalty would have been triggered only for sales made within school hours. This was a much needed bill and I’m sad that it died.
I’m sure there are others that I’ve missed. Which bill did you want to see make it out of committee and which bill are you glad/mad didn’t?
A few stray thoughts
Mar 23rd
the metaphor, stupid
Monday was a marathon day at the state legislature, with several criminal justice bills being considered. Two of the most important, in my view, were the bills to eviscerate The Great Writ (see prior post here) and Connecticut’s first attempt at residency restrictions (see previous post here). For those who want to brave through the public hearing, the entire video is here and written testimony submitted can be read here.
[A warning: this post is long, repeats some arguments I've already made and is extremely rude and vitriolic. But if you don't read it, you support terrorists.]
The habeas corpus effective suspension and evisceration bill
Chief State’s Attorney Kevin Kane testified at length (almost an hour, I think) on the habeas corpus “reform” bill. There were many, many problems with his testimony, but a few things really stuck in my craw. The entire basis for the State’s “suggestions” in the habeas reform bill seemed to be premised on two things: 1) that there is a glut of “frivolous” petitions and courts are overburdened; and 2) by moving the restrictions on the filing of habeas corpus petitions to the “front end”, rather than during the process itself, there will be a lot of weeding out and the load will be lightened.
Both are unfounded. CSA Kane went on for the better part of an hour, trumpeting the vast number of “successive petitions”, before someone on the committee had the good sense to ask him for some numbers. Just what constitutes a successive petition and what does he consider frivolous? Certainly not all petitions that are denied are not frivolous and eventually he had to admit that. Later on, during the testimony of the Deputy Chief Public Defender, we heard that a meager 4 1/2 % of all petitions were “successive”, in that petitioners had filed a prior habeas corpus petition.
But the State’s argument was premised on this straw man (if not outright lie) that the courts were dealing with a deluge of repetitive, frivolous and time consuming merit-less habeas petitions where petitioners were on their 9th or 10th bite at the apple. From what I’ve been told, there is maybe one inmate who is on his 7th or 8th petition, but that’s about it.
The second premise of the state’s position is all the more confusing and confounding.
Sex-y times at the state lege
Mar 18th
It’s the middle of the legislative season and just like all of us, the state legislature has sex on their minds. Sex related bills, I mean. No, wait, not dollars bills that you – nevermind. This is a family-friendly blog.
During public hearings to be conducted tomorrow and on Monday, the judiciary committee will consider a slew of bills focusing on sex and sex offenders. I’m here to give you the rundown on what they are and why they’re all bad (except one).
S.B. No. 33 An act concerning the registration of sexual offenders
This is, of course, the State equivalent of the awful, awful federal Adam Walsh Act. For 7 reasons why this bill is evil and must be defeated, see here.
S.B. No. 34 An act concerning computer crimes against children
This bill amends the “Enticing a Minor” statute by making it a crime to not exactly entice a minor to do anything:
or (2) display such person’s intimate parts through the use of a digital camera capable of downloading still or video images to a computer for transmission over the Internet or through the use of other available technology, or engage in a sexual act through the Internet or by telephone.
In fact, I’m not even sure that subsection (2) requires that the minor view any of these, um, intimate parts.
S.B. No. 479 (RAISED) AAC the attendance of registered sexual offenders at school functions involving their children.
Registered sex offenders are permitted to enter school property to attending school functions and/or meet with school personnel regarding their own children. That this bill is needed is the perfect example of just how stupid our sex offender laws are getting.
H.B. No. 5486 (RAISED) AAC residency restrictions for registered sexual offenders.
That this bill has been introduced comes as no surprise. The only surprise (to me) is that it took until 2010 for our state legislature to consider residency restrictions. My battle against residency restrictions is well documented. This bill has bad parts and “oh look we’re learning from other states” parts.
The bad: There’s a 2000 feet buffer zone. Which means that sex offenders will be banned from living anywhere in the state.
The “oh look we’re learning”: Grandfather clauses for those who already live somewhere within 2000 feet of any place a child may conceivably one day dream of going and for those whose houses may one day in the future fall within a 2000 feet zone.
The “good, I guess”: A violation is only a Class A misdemeanor.
H.B. No. 5533 (RAISED) AAC sexting.
Yes, sexting. That venerable institution of teens everywhere. What we used to call, back in the day, a good old-fashioned game of “doctor”.
Except this is the good bill I mentioned earlier. Thanks to Norm’s post, I see that the bill actually reduces the penalties for “sexting” from a D felony to an A misdemeanor.
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