Category Archives: psa

We thought of the children

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For years I’ve written about the sorry state of the juvenile justice system and the inattention we pay to the lives of the children who get caught up in it, sometimes through no fault of their own. So it heartens me (with some pretty important reservations) to see this report [PDF] from the Justice Policy Institute about the remarkable transformation of CT’s juvenile justice system from one of complete failure to that of a role model for the rest of the country in about 10 short years. From their executive summary [PDF]:

In 2007, Connecticut made national headlines when it passed a law ending its status as one of just three states that automatically tried and punished all 16 and 17 year-olds as adults. Yet this historic   “Raise the Age” legislation is just one of many reforms enacted by Connecticut’s juvenile justice system in recent years. Propelled by a determined coalition of advocates and public sector innovators, Connecticut has forged a new consensus for progressive change in juvenile justice, and it has transformed a previously wasteful, punitive, ineffective, and often abusive juvenile justice system into a national model – at no additional cost to taxpayers. Perhaps more than any other state, Connecticut has absorbed the growing body of knowledge about youth development and delinquency, adopted its lessons, and used the information to fundamentally re-invent its approach to juvenile justice. As a result, Connecticut’s system today is far and away more successful, more humane, and more cost-effective than it was 10 or 20 years ago.

And the evidence is staggering: residential commitments for juveniles are down 70% despite the influx of 16 and 176 year olds into the system; the number of juveniles locked up for “status offenses” (missing school, etc.) has become negligible; the number of youth tried and convicted as adults has also drastically declined:

For decades, Connecticut was one of only three states that prosecuted and punished all 16- and 17-year-olds as adults. In 2007, the state enacted historic legislation to raise the age of juvenile jurisdiction from 16 to 18, effective January 1, 2010 for 16 year olds and July 1, 2012 for 17 year olds. Even before 17 year-olds became eligible for juvenile court on July 1, 2012, the new law had enabled 8,325 16 year-olds to avoid prosecution and punishment in the adult criminal justice system. Extending juvenile jurisdiction to 16 year-olds has increased juvenile caseloads far less than expected (22 percent actual versus 40 percent projected); as a result the state spent nearly $12 million less in fiscal years 2010 and 2011 than it had budgeted. Meanwhile, 16 year-olds served by the juvenile system have had higher success rates in alternative programs and lower rearrest rates than youth 15 and younger, disproving concerns that they should be in the adult system.

That’s great and all and everyone involved with this staggering reform must be commended. But.

But as I’ve written before, there are 14 and 15 and 16 and 17 year olds who are still treated as adults. And still subjected to the horrors of the adult criminal system and adult prisons:

Department of Correction data show that youth incarcerated in adult correctional facilities suffer alarming recidivism: 85 percent are re-arrested within two years of release, 62 percent are convicted of new crimes, and 70 percent return to prison on a new charge or parole violation.

Pursuant to C.G.S. 46b-127, any child 14 and older, who is accused of a Class B or A felony is automatically transferred to adult court and treated like an adult. There is no discretion; the legislature, in their “hard on crime”  binges in the 90s, took that power away from the prosecutor and the judge. At the same time, they legislature removed the defendant’s seat at the table. The defense can no longer put on a hearing or ask that the case remain in juvenile court.

Even when the case is in adult court, no one except the prosecutor has the authority to decide to send it back. There’s no oversight and, unlike New Jersey [PDF], our legislature and courts haven’t decided that the decision to treat 14 year olds like adults is important enough to warrant that someone, somewhere state their reasons for doing so on the record. There is absolutely no accountability and the only thing that matters is checking off a box on a list.

So, you say, that’s fine. Even a 14 year old should be held accountable for a serious crime. No doubt. But do you know the punishments Class A and B felonies expose a teenager to? Class B felonies have a 20 year maximum and Class A 25 years, both longer than the life that the teenager would have lived up to that point.

Making matters worse is the mandatory-minimums. There is a lengthy list of crimes for which 14 year old children have to be tried as adults which carry mandatory minimum sentences of 5 or 10 years. And that means no matter how much anyone thinks it’s wrong, the child must get that time in jail. Minimum.

According to the data in this report, in 2010, approximately 170 children were automatically transferred to adult court and kept there and treated as adults. How many of them are now serving long, mandatory prison sentences in adult court? Whose 14 year old is going through absolute hell?

When the Supreme Court decided Miller v. Alabama, it made no distinction between 14, 15, 16 and 17  year olds. Because the Court recognized that they were, after all, children. Why do we insist differently?

Our decisions rested not only on common sense — on what “any parent knows” — but on science and social science as well. Id., at 569, 125 S.Ct. 1183. In Roper, we cited studies showing that “`[o]nly a relatively small proportion of adolescents’” who engage in illegal activity “`develop entrenched patterns of problem behavior.’” Id., at 570, 125 S.Ct. 1183 (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)). And in Graham, we noted that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds” — for example, in “parts of the brain involved in behavior control.” 560 U.S., at ___, 130 S.Ct., at 2026.[5] We reasoned that those findings — 2465*2465 of transient rashness, proclivity for risk, and inability to assess consequences — both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “`deficiencies will be reformed.’” Id., at ___, 130 S.Ct., at 2027 (quoting Roper, 543 U.S., at 570, 125 S.Ct. 1183).  Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.

Children are different. Let’s continue to treat them that way.

 

Your rights are only worth the probable cause used to extinguish them

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This, folks, is what happens when you don’t pay attention to the erosion of our collective rights. This is what happens when you steadfastly maintain an “us vs. them” attitude. This:

Maryland Deputy Attorney General WINFREE: But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

If your eyes haven’t popped out of your head yet, you should check with an ophthalmologist. They may be stuck in place. The Government – Your Government – has brazenly started taking the tact in open court that simply by virtue of being arrested, an individual surrenders a “substantial amount” of liberty and privacy. I’m pretty certain she didn’t mean this in the literal sense of arrest and being locked up (which also has some requirements of balancing interests). This is in the sense that once you’re arrested, your rights are limited and you, by virtue of causing the police to arrest you, have forfeited privacy expectations and Constitutional rights.

Her argument, in that brief moment before Justice Kagan challenged her on it, was that by virtue of an arrest, an individual has voluntarily sacrificed his Fourth Amendment rights as is the issue in the case she was arguing.

Do you know what it takes to arrest someone? Next to nothing. You know the “ham sandwich” joke? Well probable cause is what they replaced grand juries with. And probable cause is whatever the hell they want it to be. It doesn’t have to be probable cause of the particular officer making an arrest, either and it can be based on completely innocuous every day actions of regular people.

I don’t normally say this, but thanks Justice Kagan:

JUSTICE KAGAN: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person, assume   you’ve been arrested for something, the State doesn’t have the right to go search your house for evidence of unrelated crimes; isn’t — isn’t that correct?

MS. WINFREE: That’s correct, Justice Kagan.

JUSTICE KAGAN: It doesn’t have the right to search your car for evidence of unrelated crimes.

MS. WINFREE: That’s correct.

JUSTICE KAGAN: Just because you’ve been arrested doesn’t mean that you lose the privacy   expectations and things you have that aren’t related to the offense that you’ve been arrested for.

Of course, what’s lost is that this State (Maryland) and the 49 other states that joined Maryland via an amicus brief already routinely take the position that once you’re arrested, you lose rights. (CT passed just such a bill last year. All my posts on DNA are here.)

In the case being argued, Maryland v. King, the Court is tasked with applying the Fourth Amendment to the 21st Century (is your computer’s recycle bin like your home’s trash can?). When someone is arrested for Crime A, can they take the person’s DNA and then enter it into a cold-case database to see if it matches any old crime. In King’s case, it did. He was then charged with and convicted of Crime B. At the time they took the DNA, they had absolutely zero suspicion that he was involved. It’s a routine procedure done with all arrestees.

These laws permit the collection of DNA from anyone who’s been arrested because they got into a drunken bar fight or because their boyfriend called the cops and said they were threatened or because a vindictive neighbor doesn’t like your dog pooping on his lawn or because you’re driving while black. And you have to give up your DNA, because the Man said so. And with that DNA, you give up your genome, your individual traits and characteristics.

You can read the oral argument transcript here and reports from SCOTUSBlog, the ABA Journal, the WaPo and the NYTimes to get a sense of how the court will rule. There are some Scalia zingers in there too. But I wanted to highlight this separate quote, for fear that it will get lost in the greater discussion.

And I want to keep asking that question: why aren’t you scared yet? Why don’t you care enough?

Justice Alito called this the “most important criminal procedure case this court has heard in decades”. He’s absolutely right. It’s time for the court to decide what’s more important: helping cops catch crooks or the individual liberties and freedoms of every citizen of this country. The answer’s clear to me. Is it to you?

In Georgia, public means private

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Georgia: the land of misfit idiots and backward logic and a seemingly endless stream of opposite days. Georgia: a State whose official fruit is sweet to the taste but rotten to the core. Georgia: the only State to get its own category on this blog. Georgia: the State where public courtrooms apparently mean private courtrooms. At least in Massachusetts they don’t intentionally close courtrooms to the public.

Ben Hill and Crisp County operate Law Enforcement Centers [hereinafter “LECs”]. LECs contain each county’s jail and a courtroom to hold Superior Court criminal and juvenile delinquency proceedings. Pretrial detainees in the LEC jails appear in the LEC courtrooms for pretrial hearings, which include bond hearings, arraignments, calendar calls, and other criminal matters. Because many of the LEC pretrial detainees plead guilty and are sentenced at the LECs, the LEC courtrooms are often the only courtrooms they see.

Relatively speaking, the LEC courtrooms are not large. The Ben Hill County LEC courtroom has about thirty seats. The court reserves four to six seats for criminal defendants who appear before the court. A partition separates those seats from the remaining twenty-four seats. The Crisp County LEC courtroom has about twenty-five seats. Sheriff deputies place pretrial detainees in two rows of those seats, which apparently leaves about five seats available to the public.

Putting aside the problem I have with having defendants plead guilty on their dates of arraignment for a moment, this isn’t an issue of space. And even if it were, so what?

Family members and regular members of the public were apparently routinely denied access to the courtroom, despite a similar 2003 lawsuit that was dismissed because these very counties promised not to obstruct public access. And this is why consent decrees are useless.

When she arrived, a sheriff’s deputy told her she could not enter the courtroom until the judge called her grandson’s case. Ultimately, the deputy never allowed Hall to enter any of her grandson’s hearings, despite available seating.

Likewise, Plaintiff Beverly Fuqua tried, on three occasions in early 2012, to attend her son’s court appearances at the Ben Hill County LEC. Each time, the bailiff prevented her entry because her son did not plead guilty. She was not allowed to see any hearings.

On March 15, 2011, Plaintiff Joy Scales and her sister drove two and a half hours to see her nephew’s arraignment at the Crisp County LEC. After waiting in the lobby for several hours, she was prevented from watching her nephew’s hearing because he did not enter a guilty plea.

And on and on. The Counties argued that there was no formal “closure” of the courtroom and so the First Amendment was not implicated. In other words, that a court has to order the courtroom closed in order to trigger Constitutional protections. As we know from the discussion of the relevant caselaw in the Mass. post above, that’s not true. In dispensing with the Counties’ motion to dismiss, Judge Sands of the United States District Court for the Middle District of Georgia made it clear [PDF]:

It is no answer to say that there were space limitations and Defendants could not accommodate everyone. This is a motion to dismiss, so the Court takes Plaintiffs allegations as true. The complaint shows that the court and bailiffs required every member of the public to identify himself or herself and only family members were allowed in, for sole purpose of briefly watching their relatives’ guilty pleas, regardless if more seats were available. Defendants make no attempt to refute Plaintiffs’ basic allegations that no one is free to enter the LEC courtrooms without permission and that many people never successfully gain entrance.

Defendant-Judges’ argument that the First Amendment right of access requires a “court order” (Doc. 9-1 at 9) is also unpersuasive. The allegations state that the judges ordered the bailiffs to close all hearings to the public, except in limited circumstances. Superior Court officers, for example, prevented Carl Ringgold from entering the proceedings without approval from the presiding Superior Court judge. (Doc. 1 ¶ 27(f).) The fact that the judges did not explicitly put the order on the record does not absolve the alleged conduct of a First Amendment violation. Such a requirement would render the First Amendment’s right of access a mere formality.

You can get access to other documents from the Southern Center for Human Rights’ press release.

Listen, Georgia, you don’t mind if we take a look, right? I mean, after all, why would you care about open access if you had nothing to hide?

The cost of your conviction

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This attitude that I’ve written about before: the attitude of us vs. them, which is enshrined in the ‘tough on crime’ policies of the 80s and 90s, has consequences. Real life consequences that affect you and me, the “us”, as much as they affect the “them”. There’s a financial cost to society that goes unnoticed: the high cost of incarceration, the cost of having non-productive members of society and the cost of destroyed lives. We bear the burden of all of these.

The New York Times has this lengthy piece on the consequences that long-term incarceration strategies have on families. From driving family members to welfare, to neglect in childcare:

“I thought I was going to lose my mind,” he said. “I felt so bad leaving my wife alone with our daughters. When they were young, they’d ask on the phone where I was, and I’d tell them I was away at camp.”

His wife went on welfare and turned to relatives to care for their daughters while she visited him at prisons in Tennessee, Texas, Arizona and New Mexico.  “I wanted to work, but I couldn’t have a job and go visit him,” Ms. Hamilton said. “When he was in New Mexico, it would take me three days to get there on the bus. I’d go out there and stay for a month in a trailer near the prison.”

In Washington, she and her daughters moved from relative to relative, not always together. During one homeless spell, Ms. Hamilton slept by herself for a month in her car. She eventually found a federally subsidized apartment of her own, and once the children were in school she took part-time jobs. But the scrimping never stopped. “We had a lot of Oodles of Noodles,” she recalled.

to increasing rates of sexually transmitted diseases and teen pregnancy: Continue reading →

Reciprocal discovery: should we have to?

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The United States is a vast place and practices that seem de riguer on one coast are apparently unheard of on another border. This discordant approach – a product of State’s rights – is quite evident in criminal justice procedure. While the substantive laws are usually the same and the rights of each defendant are necessarily identical, the manner in which justice is delivered varies greatly from state to state.

Take, for example, the issue of discovery. For the non-lawyers, discovery refers to the disclosure by the prosecutor of the evidence it claims to have and intends to use against you in a criminal prosecution. It also includes evidence that it has or has notice of that would tend to undermine their theory that you are guilty. Discovery is an essential component of due process and the right to be informed of the charges against you.

But a hotly debated topic is what, exactly, constitutes discovery? And that’s where a haphazard application of the Constitutional protections becomes evident. Brady v. Maryland, the seminal case establishing the State’s obligation to turn over exculpatory information has limited value precisely because prosecutors are free to – and generally do – adopt a moving target theory of what “exculpatory” means. Similarly, some prosecutors take a very dim view of “discovery”. The arrest warrant, if one exists, the charging document and maybe a police report or two. I know of jurisdictions – even CT back in the day – where prosecutors turn over witness statements after their direct examination of the witness on the stand during trial and as a defense attorney, you have about 10 minutes to read it and see if there’s anything you can use to cross-examine. Continue reading →

It’s not like you knew you had that right, anyway.

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We can all name certain rights that we have: the right to counsel, the privilege against self-incrimination, the right to be free from unreasonable searches and seizures, the right to say whatever the hell you want, the right to have the arms of a bear, etc. But do we think that these are all the rights we have? Especially in the criminal context, there are various other rights that each person has that we may not necessarily be aware of. The right to a trial by jury, for example, is well known, but it is actually the right to a public trial by jury. [TL;DR at end of the post.]

Well sure, that seems obvious enough: you can’t have a trial in a closed courtroom, or in a judge’s chamber somewhere. According to Presley v. Georgia [PDF], the Constitution guarantees it. But did you know that a courtroom, while seemingly open, might be “closed” to the public? And did you know that, even if you didn’t know that, your lawyer may make the decision to say that’s okay without telling you?

That’s what the Massachusetts Supreme Judicial Court concluded in Commonwealth v. Lavoie last month. In Lavoie, they were conducting public voir dire, which last two days. Apparently because there were so many prospective jurors, the court sheriffs asked family members of the defendant to leave the courtroom and told them they couldn’t be present because there was no room for them. The lawyer didn’t notice; the judge didn’t notice. The defendant did know it and he was annoyed, but didn’t say anything, because, you know, he’s a defendant in a criminal trial and he’s not exactly in charge of much.

So he got convicted and some years later filed a motion for new trial arguing that his Constitutional right to a public trial was violated. The State naturally objected, claiming almost preposterously that he had implicitly waived the right because he didn’t say anything to anyone and neither did his lawyer. Lavoie responded, rather logically:

there was no explicit waiver by the defendant or his attorney, and … defense counsel could not waive his client’s rights without ever discussing the issue of his right to a public trial with him. The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right.

In other words: how the hell do I waive something I don’t know I had the right to? Quite simply, says the Court, because your lawyer made a tactical decision to do so. And there, kids, is how the courts get away with almost anything: by couching everything in terms of a decision of tactics, the courts shift the power of enforcement from the defendant to his lawyer. Even when his lawyer doesn’t remember consciously making that tactical decision. Like, oh, I don’t know, Lavoie’s lawyer:

Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant’s mother “was an emotional individual [who would] be a distraction.”

Although defense counsel had no specific recollection of court officers excluding the defendant’s family during jury selection and did not discuss this issue with the defendant, “he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

The emphasis is all mine just to highlight the bullshit. I’ll bet you a box of Krispy Kreme donuts this attorney, when seeing a copy of the motion raising this claim, thought: “oh crap, I never even thought of that!” And if you’ve practiced criminal law for longer than a second, you’ve already run into some CYA lawyer who’s told you to claim it was a tactical decision, no matter what. Courts are all too happy to oblige, because really, he was guilty, right? And that’s all that matters?

[Because really that's what the value of your rights are. Are you guilty enough? That's the justification for repeated violations of Constitutional rights: harmless beyond a reasonable doubt. "Well yes, this confession was obtained illegally, but he was really guilty, so it doesn't matter" and on and on.

The legal gymnastics really are a sight to behold: 1. The defendant has a lawyer, so the lawyer's word is as good as the defendant's. 2. Except when the lawyer speaking doesn't mean anything [State v. Johnson, PDF] if the defendant doesn’t speak. 3. Even if either and or both speak, it’s not sufficient because they didn’t explain their objection properly. 4. Even if they objected, they didn’t list all the possible grounds for objection so it’s waived. 5. If they said the rights words, they didn’t object a second time and that was essential. 6. If they objected a second time and properly preserved the issue, it doesn’t matter because he’s guilty anyway.

And yet we puzzle why this happens over and over again and why judges and prosecutors and cops don’t learn: because there’s no punishment for doing it wrong. It’s like having a cat that constantly eats your birds but you don’t do anything because, well, you don’t give it enough food, so it’s justified.

So our rights will always be infringed upon because there’s no corresponding punishment for violating them: and you and I and the rest of us “non-criminals” are just as implicit in this erosion as the judicial system. We cry and moan about “guilty” people getting off on “technicalities”. The Constitution isn’t a technicality. It shouldn’t matter how guilty you think someone is; a violation of fundamental rights should have appropriate remedies. Because guess who decides if someone is guilty enough for the error to be harmless? Judges and courts and the legal system. It’s a system that feeds itself. And we will become fodder.]

The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46 (1984). Yet, it is okay for a lawyer to implicitly do away with this right on behalf of his client without ever consulting or mentioning it to him?

It seems that the courtroom of justice has long been closed.

TL;DR because apparently everyone is stupid now and has no attention spans: your lawyer can waive rights on your behalf that you never knew you had because justice.

H/T: Juries

 

 

How long will you be lucky?

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There are just about 315 million people in the United States today. You are one of them. So am I. You probably know what seems to you a large number of people but what is, in fact, impossibly small. Out of those, you may care about only 5 or 10 when all is said and done. But no one cares about you. No one cares about your friends. We aren’t special; we aren’t precious; we aren’t protected. We are all just numbers.

Mirriam Seddiq writes today about an issue I touched on in the Aaron Swartz post:

I’ve been defriended in real life and on this world wide computer for my never-ceasing preaching. I am called judgmental by those who hold views that I find appalling. It is disconcerting to me that so many people truly believe that because they don’t “do anything wrong” they will never face the terrible wrath of their very own government. I hope beyond all hope it is true for every last one of us.

I hope so too, but both Mirriam and I know that it won’t happen. We all know someone – maybe we already do – who’s been arrested and has served a sentence. They have a number. There are about 17,000 people in Connecticut right now who are in prison. Do you know any? I bet you do. Does anyone care about them? Do you think they’re lying when they say they got screwed? Who listens to them? How soon are they forgotten? How long would you be remembered?

And what of some nameless, faceless inmate in a penitentiary in South Dakota who got shafted because a court issued a frightful decision in his case and affirmed his conviction when the law and justice demanded a reversal? Do you know if he exists? Or did I make him up? Does it matter? Will he be a man who lives the rest of his life unjustly convicted and then swallowed by a system that takes no prisoners?

Are we content with a system of faceless defendants and “close enough” justice that is really nothing more than a medieval trading post? Who is this mythical “criminal” that you keep referring to? Is he a person or an idea? Does it matter?

Is it more important, as recently uncovered by an investigative journalist, that the justice system’s “numbers” look good; or do we care about the individuals that make up those numbers? So does it surprise anyone that to learn that deportations at ICE are at record levels because of tactics they’re employing that are designed to do just that?

Among those new tactics — detailed in interviews and internal e-mails — were trolling state driver’s license records for information about foreign-born applicants, dispatching U.S. Immigration and Customs Enforcement (ICE) agents to traffic safety checkpoints conducted by police departments, and processing more illegal immigrants who had been booked into jails for low-level offenses. Records show ICE officials in Washington approved some of those steps.

And how is the government keeping its pledge to deport only “dangerous criminals” and yet managing to maintain high numbers of deportations? By making everyone a dangerous criminal, naturally.

By the time the government’s fiscal year ended in September, ICE had deported 225,390 criminal immigrants — a record, and well above the agency’s target of 210,000. ICE has not specified how many of those deportations were based on minor offenses; the year before, it reported that more than a quarter of the people it classified as criminals had been convicted only of traffic offenses.

If today the government can decide that it is going to take your God Given Right Under The Constitution and make part of it a crime, do you really not understand that it’s just your number being called? Today, you’re a lawful gun owner; tomorrow, you’re in violation of a number of state and Federal laws. Everything everyone’s ever done has been legal, until some authority has declared it to not be so.

And if you realize that, then why haven’t you said anything? Or done anything? Why haven’t you cared? Why haven’t you demanded more of your legislators? Why haven’t you asked these important questions? Why haven’t you studied your rights? Why haven’t you applied those rights? Why haven’t you demanded others do the same? Why haven’t you understood?

Why are you so sure they’re going to come for you? Why are you so sure that if it does happen to you, it’ll get sorted out. Why are you so sure that there’ll be someone fighting for you, to make justice happen? Why are you so sure you’re not just another number?

Because you are. You just haven’t been called yet.