Our Values In Action

Last spring, while writing about how we treat people who are released from prison, I wrote that "society owes a duty to anyone it locks in a cage."  That's equally true, perhaps doubly so, while that person is still locked in a cage.  It's a test we fail all too regularly.

Take this latest atrocity highlighted by Radley Balko.  An inmate in North Carolina named Michael Kerr, a veteran, died after several weeks in solitary confinement, due to behavioral issues brought on by untreated mental illness.  After guards found him unresponsive in his cell, they drove him for 2.5 hours to a prison hospital - bypassing eight ERs along the way.  He died en route.  The details of Kerr's life and crime are in the article and are heartbreaking.

But that's not really the point.  What I wanted to really highlight is how Balko concludes his article.  He mentions how treating inmates humanely is, paradoxically, most difficult for the people who have to do so on a daily basis - prison staff.  But we can hardly blame them alone:

look at our values. Americans not only accept violence and sexual assault in our prisons, but also a large part of the population considers it a given — it’s just another part of a convict’s punishment. We’re not just comfortable with prison rape, we often find it humorous (even SpongeBob once made a prison rape joke), or we revel in the thought of inflicting it on people we abhor, members of groups we consider the enemy, or stand-ins for groups of people we find distasteful. (It’s a common sentiment to wish prison rape upon political opponents, particularly those who have been accused or convicted of crimes.)

If those of us far removed from prisons don’t take the humanity of the incarcerated seriously, we shouldn’t be surprised to see the officials we ask to actually run the prisons engage in the sort of sadism and brutality we see in these stories.

Absolutely.

UPDATE: As if on cue, someone in the comments to this article about today's indictment handed down against coal baron Don Blankenship posted this:

Blankenship may deserve a lot of things, but if he winds up in prison, being raped isn't one of them.

The State Calls the Deceased to the Stand

All right, so why is this funny?

OK, it's funny for lots of reasons, most of them absurd.  But the most absurd bit involves a barrister seeking testimony from a dead man.  You just don't do such things.

Or do you?

A NPR story from last week tells of a crime in Brazil in which the victim came back from the grave to testify.  It involved a love triangle - two guys, one girl - that turned violent, leaving one of the male suitors, Rosa, dead.  So far, so straightforward and downright cliched.  And then:

Lenira is riven with guilt — she still loved Rosa — and so she goes to see a medium, a very famous one. She receives a letter from Rosa from the beyond.

'In the letter, channeled by this medium, the deceased confesses,' de Lima explains. 'He says his jealousy was the reason for his death. The letter includes details that only people close to him could have known.'

Nice injection of woo into the story, but here's where it gets really strange.  The letter was actually introduced in court on behalf of the shooter.  He was acquitted.

Turns out, this is not such an unusual occurrence in Brazil, particularly in the region where these events took place:

Judge Hertha Helena Rollemberg Padilha de Oliveira (no relation to Lenira) says there are many cases involving spirits in Brazil.

'If the proof is not illegal, it is lawful — you have to accept it in the process,' she says.
So when individuals present letters from the dead, written by a medium, de Oliveira says the judge has to accept it. 'He has to accept the proof in the process,' she says. 'He can't say, 'Take the letter away from the process.'

'[Brazil] is a very spiritual society,' the judge explains. 'Ninely percent of people probably will believe in some kind of spiritual influence. Most of the people believe in life after death.'

It's hard to argue with the defense attorney for introducing the letter - it worked, after all (let's hear it for zealous representation!).  It's harder to accept a court of law treating it as anything other than the trumped up sham it is.  Putting to one side that mediums are bunk (or giant douches), how on earth is the letter admissible as evidence?

In an American court, I think you'd have a serious problem getting around a hearsay objection.  True, there is an exception to the hearsay rule for statements made by a person against his own interest, but the justification for that is firmly rooted in the here and now.  The theory goes that no person would say something incriminating about himself if it wasn't true, so such statements are generally trustworthy.*  I'm not sure that justification applies to a statement from beyond the grave - if the declarant's already dead, what's the risk in making an incriminating statement?  Not to mention, those left behind and charged with a crime would have a hell of a motive to fabricate such a thing.

As it happens, according to at least one source, Brazilian law doesn't include a prohibition against hearsay, so that might not be a problem in cases like this one.  And, assuming you believe the woo involved, I suppose it's highly relevant.  It's certainly persuasive, although the two aren't always the same thing.

It's tempting to look at a story like this and dismiss it as something that happens elsewhere.  Indeed, the NPR pieces calls it "a tale of Brazil" that brings to mind the work of Gabriel Garcia-Marquez.  Only the use of spectral evidence is hardly limited to Brazil.

On January 23, 1897, Zona Shue was found dead in her home in Greenbrier County, down along the border with Virginia.  Suspicion almost immediately fell on Zona's husand, Erasmus (or Edward, if you prefer), thanks to his taking care of the body for burial, rather than leaving the task to others in the community.  The doctor who pronounced Zona dead made only a cursory examination.  Nonetheless, Zona was buried, with the cause of death listed first as "everlasting faint," and then simply "childbirth."

Shortly after Zona was buried, her mother Mary Jane reported that her daughter's ghost appeared to her, described what a cruel and otherwise shitty guy Erasmus was, and that he had broken her neck, killing her.  Mary Jane wen to the prosecutor, who had the body exhumed and a proper autopsy (such as those things were in 1897) done.  Sure enough, Zona's neck had been broken.

Erasmus was charged with murder and, at trial, Mary Jane was the main witness for the state.  In a clever bit of trial strategy, the prosecutor stayed away from the ghost stuff, but the defense attorney cross examined her about it anyway, allowing the jury to hear the story in all its glory.  Erasmus was convicted of murder and escaped a lynch mob, only to die in the Moundsville penitentiary a few years later.

Which just goes to show that woo, and its ability to seep into what should be deadly serious matters, knows no boundaries.  And it's pretty funny.

* The rules of evidence aren't necessarily based on modern psychological science or the evidence of fairly routine false confessions.

Judas Unrepentant Unmasked?

It took a while for Big Big Train's The Underfall Yard, released in 2009, to grow on me.  It's successor, English Electric Volume One still hasn't*, for whatever reason, with the exception of one track.  It's a song about something that always strikes me as fascinating - art forgery.

"Judas Unrepentant" is about a guy who forges art, but does it in a very clever way.  Rather that churn out reproductions of known classics, he has a different scheme:

Establishing provenance
Acquiring old frames with Christie's numbers
Then Pains a picture in the same style
Specializing in minor works by major artists

It's quite brilliant, actually.  Reminds me of a story I heard Rick Nielsen of Cheap Trick tell about their early days - where every other bar band played the radio hits by Zeppelin or The Who, they'd learn the B-sides nobody paid much attention to, so it sounded like original material (although they never passed it off that way).

I always wondered if the song was completely fictional or inspried by a real forger.  Last night, I think got the answer, thanks to a 60 Minutes piece on Wolfgang Beltracchi.  As the setup explains:

Wolfgang Beltracchi is a name you may never have heard before.  Very few people have. But his paintings have brought him millions and millions of dollars in a career that spanned nearly 40 years. They have made their way into museums, galleries, and private collections all over the world.  What makes him a story for us is that all his paintings are fakes. And what makes him an unusual forger is that he didn’t copy the paintings of great artists, but created new works which he imagined the artist might have painted or which might have gotten lost. Connoisseurs and dealers acknowledge that Beltracchi is the most successful art forger of our time -- perhaps of all time. Brilliant not only as a painter, but as a conman of epic proportions.

Now, the song is not Beltracchi's story.  For one thing, the song indicates that its hero wanted to get caught:

His time bombs are in place
And anachronisms
Clues pointing to the truth
If ever they are X-rayed

It's clear from the story that Beltracchi didn't want to get caught, which he did.  He was sentenced to six years in prison and his wife/codefendant to four.  As for how he got caught?

But then in 2010, he got busted by this tube of white paint. 

The Dutch manufacturer didn’t include on the tube that it contained traces of a pigment called titanium white. That form of titanium white wasn’t available when [Max] Ernst would have painted these works and Beltracchi’s high ride was over.

Which is interesting, because in the song, our hero:

Wrote legends in lead white
to trick the experts
And hoodwink the trained eye

Coincidence?  Could be.  But Beltrachhi's story must have been in the news in Europe sometimes before "Judas Unrepentant" was written, so it makes sense that one served as inspiration for the other.

One thing I will say for the song is that is provides something the 60 Minutes piece doesn't, which is answering why go through all trouble?  Beltracchi is a staggeringly talented guy.  Presumably he could have been a successful artist under his own name, so why all the fraud?  "Judas Unrepentant" has an answer:

He's painting revenge
Embittered by lack of success

* * * 

Expressing contempt
For greedy dealers
Getting rich
At the artist's expense

Revenge as the long con.  I like it, although it all comes to a tragic end, sadly.

I think what makes art forgets so interesting is that they tend to poke a finger in the eye of the art world, challenging its aesthetic bona fides and pointing out how, so often, people only care about the name attached to a work, not the work itself.  To that end, I applaud this collector:

This $7 million dollar fake Max Ernst is being shipped back to New York.  Its owner decided to keep it even after it had been exposed as a fake. He said it’s one of the best Max Ernsts he’s ever seen.

Because, in the end, the important thing shouldn't be whether the signature on the bottom makes your friends jealous, but whether the art moves you and makes you think about it.

* The similarly named English Electric by OMD, however, grabbed me right away, for what it's worth.

A New Look Prison for a New Approach?

Most of the time when I write about prisons, it's about the desire of the United States to have fewer of them.  That being said, we're not likely to go the route of Sweden and start closing prisons anytime soon.  To the contrary, between replacing aged structures and the popular job project that is rural prison building, we're likely to be having pen raisin's for some time to come.

Which is what makes this proposal so intriguing (via).  It's from an architecture student at Harvard who has plans for a new concept prison-plus called PriSchool.  Rather than being built in the sticks, would be built right downtown:

PriSchool is designed precisely for those non-violent offenders who struggle to stay on the right side of the law when released. Situated in a Brooklyn neighborhood surrounded by “million dollar blocks” – city blocks with such high crime that the state is spending over a million dollars a year to incarcerate their residents – the prison/school hybrid rethinks what a prison can achieve, positing it as a place where prisoners and students can learn from each other, and where criminals can be rehabilitated in preparation for their return to society.

It would be a complex of four linked buildings - the prison itself, a school of criminology, a 'pre-release building' (something like a halfway house, I'm assuming), and a community center.  Take a look at some of the pictures here. 

It's awfully cool looking concept, if nothing else.  It also shows the kind of approach that might lead to long term solutions, if it can overcome short term objections.  Some folks, no doubt, will not want a prison or any kind plopped down in the middle of their neighborhood (although rural communities tend to welcome the jobs).  And others, unfortunately, are too caught up in the idea that convicts need to be punished and nothing else, regardless of the fact that most people in prison will get out someday.

I'm not certain that the problems of our incarceration nation can be solved by architecture, but I'm willing to give it a shot.

Changing the Labels Doesn't Change Reality

I'd like to think I'm above falling for click-bait headlines, but I guess I'm as susceptible to it as anyone else.  So, when I saw the subheadline on this piece at Reason - "Would a free society be a crime-free society?" - I just couldn't help myself.  Shame that the substance doesn't live up to the promise.

To be fair, Sheldon Richman says right off the bat that he's not Utopian and doesn't:

foresee a future of new human beings who consistently respect the rights of others.

Rather, he investigates the historical distinction between crimes - wrongs committed against and punished by the state - and torts, which are private causes of actions individuals bring against each other in order to be made whole again.  In simple terms, a murder is a crime and will result in the perpetrator being sent to prison, while medical malpractice is a tort, resulting in someone (an insurance carrier, most likely) making the victim whole via monetary compensation.

The history itself is interesting.  As Richman explains, tort once reigned above all.  It was only as English kings began to accrue more power (and, Richman argues, quest for more money) that more things became crimes.  Richman sees this development as something "[l]iberty-minded people should regret," although it happened centuries ago.  He argues, while stating that the reasons are "too obvious to need elaboration," that a justice system aimed solely at restitution is more preferable to what we've got now.

I can't say I buy that, possibly because I occasionally deal with clients who are ordered to pay restitution, in the rare case where there's an actual victim involved.  The sad fact is, for a lot of people, paying full restitution simply isn't an option.  Furthermore, you'll still need some kind of coercive agency with the power to force those who can pay to actually do so.

Aside from practical considerations, I'm not sure restitution as the goal of the system is theoretically feasible.  Most tort cases involve monetary damages that can fairly easily ascertained.  But how does one determine the proper amount of restitution for murder?  Or rape?  Or some kind of systematic problem like perjury?  It just doesn't lend itself well to those kinds of crimes.

In the end, all this is sort of pointless because Richman doesn't show how any revised system would eliminate crime itself, it would just change the labels.  There may be different ways to deal with the aftermath of somebody whapping me over the head with a crow bar or kidnapping somebody's child, but regardless of what you call the system those are still crimes as any modern person would call them.  Sadly, Richman had it right when he said that people aren't simply going to start behaving nicely anytime soon.

I'm sympathetic to what, I think, is Richman's underlying point - that the prevalence of victimless crimes is something that ought to be of concern to anybody who thinks "freedom" is a good idea.  As I said, the current criminal justice system is clogged with people charged with offenses that have no actual victim.  But swinging all the way to the other direction and thinking, just by switching a label, that we can eliminate victims is just silly.

On a side note, I find it ironic that a libertarian and/or anarchist would resort to dealing with a problem simply by changing the label on it.  That doesn't make the problem go away, just obscures it for a while.  It's a favorite tool of repressive governments everywhere.  As Babylon 5 once had a character explain when asked when all the problems on Earth - homelessness, crime, unemployment - were solved:

When we rewrote the dictionary.

In the end, it's a trick, and not even a very clever one.

You Wouldn't Like Them When They're Angry

When courts review an encounter between a cop and a member of the public to see whether the Fourth Amendment prohibition against unreasonable searches and seizures has been breached, they do so by evaluating the "totality of the circumstances."  That is, facts that, taken in isolation might appear innocent, can be given a not-so-innocent meaning when evaluated in context.  As a result, it's hard sometimes to say just what behavior will get you in trouble with cops and what won't.

To take just one example, in US v. Foreman, 369 F.3d 776 (4th Cir. 2004), a driver was pulled over based in part on the driver's "lack of eye contact" with the officer.  The court upheld the stop, but one of the judges noted (citations omitted):

[The officer's] instant reliance on [the driver's] lack of eye contact is at odds with the government's stance in other cases, in which officers attempt to ground reasonable suspicion — and sometimes successfully do so — on the fact that an individual looks or stares back at them.

In other words, it's hard sometimes to figure out just how to behave when there's a cop about.

One thing, however, is for certain - if you make a cop angry, you will most likely regret it.  As noted legal theorist Chris Rock once explained in a related context, if you make the cops chase you, you can be damned sure they're bringing an ass kicking with them.  Similarly, YouTube is littered with clips of drivers who, during a traffic stop, piss off the officer and wind up getting tasered (or worse) for their sin.

This came up most recently in one of the odder crimes to circle the Web, the theft of electricity.

Earlier this month, a Georgia man plugged his Nissan Leaf into an outlet on the outside of a school to recharge.  According to the man, he did this while watching his son play tennis at the school courts.  Later, rather famously, he was arrested for theft for stealing what appears to be, about, five cents worth of electricity.

Putting to one side the whole issue of whether this is either really a crime or, if it is, one that warrants 15 hours worth of detention after arrest, consider the police version of events.  In it, an officer responds to a 911 call and found the car hooked up at the loading dock.  Then:

a man on the courts told the officer that the man playing tennis with him owned the vehicle. The officer went to the courts and interviewed the vehicle owner. The officer's initial incident report gives a good indication of how difficult and argumentative the individual was to deal with. He made no attempt to apologize or simply say oops and he wouldn't do it again. Instead he continued being argumentative, acknowledged he did not have permission and then accused the officer of having damaged his car door.

* * *

Given the uncooperative attitude and accusations of damage to his vehicle, the officer chose to document the incident on an incident report. The report was listed as misdemeanor theft by taking.

The emphasis is mine.  You'll rarely find it so boldly stated - this guy got charged with a crime because he was an asshole to the cop.  Granted, it's never wise to argue with a cop, particularly if it looks like he's not going to write you up for anything (if you get pulled over and the cop says you were doing 75 and you were only doing 73, if he's going to let you off with a warning why argue the point?), but that's still not a really good basis to charge someone with a crime, either.

Having said that, sometimes you can be too nice.

In Ohio, an officer pulled over someone for going 45 in a 35 zone.  As a court later related:

Patrolman Haslar approached Fontaine’s vehicle, advised him of the reason for the stop, and then requested his driver’s license, proof of insurance, and registration, which Fontaine immediately provided. Patrolman Haslar further stated that, during this exchange, he became suspicious of criminal activity. Specifically, Patrolman Haslar testified as follows: 'While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.'

Calling this "reasonable suspicion" (the lowest measure of evidence needed to justify a search), the officer patted down the driver and a second officer arrived with a drug dog.  Some pot and a gun were found in the car and the driver was arrested.

Thankfully, the trial court suppressed that evidence.  Even more thankfully, the appeals court shot down an appeal by the state, agreeing that being "overly polite" and breathing heavily weren't enough to constitute reasonable suspicion.  Still, the fact that it was even arguable shows how far down the rabbit hole we've gone when it comes to the Fourth Amendment.

Getting High, Rationally

Many years ago I saw a documentary on HBO about a community of meth users somewhere in the Midwest (I want to say Missouri, but don’t hold me to that). This was before meth exploded into the national consciousness, but the behavior of those folks matched preconceptions of how addicts (of cocaine or heroin, in prior ages) behaved. All they cared about was the hit, the rush, and they’d do whatever it took to make the next score.

But what if that’s not right? What if the decision by most drug users to get high is as rational as your decision about what to have for dinner? That doesn’t fit the stereotype of the out of control junkie, but research is starting to show that might be the case.

The New York Times has an interesting profile of a researcher who has studied how addicts behave in terms of how they decide to get high. He’s got a good reason to be interested in the issue:

Long before he brought people into his laboratory at Columbia University to smoke crack cocaine, Carl Hart saw its effects firsthand. Growing up in poverty, he watched relatives become crack addicts, living in squalor and stealing from their mothers. Childhood friends ended up in prisons and morgues.

Hart’s research has suggested that the popular conception of the drug user isn’t accurate:

when he began studying addicts, he saw that drugs weren’t so irresistible after all.

‘Eighty to 90 percent of people who use crack and methamphetamine don’t get addicted,’ said Dr. Hart, an associate professor of psychology. ‘And the small number who do become addicted are nothing like the popular caricatures.’

Hart conducted studies – first with crack cocaine users, then meth users – in which they received a hit in the morning (of “pharmaceutical-grade cocaine,” which must be some good shit) and then offered them a choice later in the day: more drugs or some economic reward (money or store vouchers) in its place. Starting a $5, Hart found that users who had a smaller hit in the morning would take the money later in the day. Users who got a big dose in the morning still chose more drugs.

Later, however, he upped the reward:

He also found that when he raised the alternative reward to $20, every single addict, of meth and crack alike, chose the cash. They knew they wouldn’t receive it until the experiment ended weeks later, but they were still willing to pass up an immediate high.

Which means what, exactly, for how society should view drug use and addiction? It’s actually pretty obvious, if you think about it:

Crack and meth may be especially troublesome in some poor neighborhoods and rural areas, but not because the drugs themselves are so potent.

‘If you’re living in a poor neighborhood deprived of options, there’s a certain rationality to keep taking a drug that will give you some temporary pleasure,’ Dr. Hart said in an interview, arguing that the caricature of enslaved crack addicts comes from a misinterpretation of the famous rat experiments.

‘The key factor is the environment, whether you’re talking about humans or rats,’ Dr. Hart said. ‘The rats that keep pressing the lever for cocaine are the ones who are stressed out because they’ve been raised in solitary conditions and have no other options. But when you enrich their environment, and give them access to sweets and let them play with other rats, they stop pressing the lever.’

Which brings me back to the Missouri meth crowd from the HBO doc years ago. For about the first half hour you think, “holy shit, these people are pathetic junkies,” but the more you notice the world around them, the more you start to think it’s not hard to see why they’d seek any kind of respite they could.

That’s why the War on (Some) Drugs is bound to always be a losing proposition – you’re not fighting an enemy on a battlefield, you’re battling a basic human desire to feel better and to escape the world around you, if only for a moment.

Another Take On Punishment and Rehabilitation

Two words I would not associate with the criminal justice system are “swift” and “certain.”

Take a conversation I had with a client a couple of weeks ago. I was explaining the prospects for his case on appeal, digging into the procedure of the Fourth Circuit and how the whole thing worked. At the end, I had to tell him that, even if we won on appeal (it’s a nice issue, but you never know, right?) that would be about a year after he was sentenced. Patience isn’t just a virtue for those in the criminal justice system, it’s an essential.

Thing is, the system works the same way regardless of how you’re swept into it. A murder case may be more factually complex than a probation revocation, but the broad strokes are the same – you get charged for doing something wrong, you go to court to argue about it, and some sentence is imposed if you’re guilty. It may take months, if not years, to reach the end point, but which time who can remember what the hell you did to make it here in the first place?

One judge in Hawaii came up with what might be a better way, at least when it comes to probation/parole/supervised release violators. Judge Alm (a former US Attorney) came onto the bench in 2001 and immediately found the current system for such folks problematic and not very effective. So he switched things around:

The program, called Hawaii’s Opportunity Probation with Enforcement, or HOPE, is based on simple precepts that the judge who created it likened to ‘Parenting 101.’ It immediately jails, for no more than three or four days, offenders who miss a probation appointment or fail a drug test. Operating under the theory that judicial punishment should be ‘swift, certain, and proportionate,’ it seeks to turn around behavior that the system ordinarily, though inadvertently, seems to perpetuate. A proffered meth pipe attains a new significance, the thinking goes, when it comes attached to the prospect of an immediate three-day tour behind bars. Moreover, such brief, predictably enforced jail stays are congenial to prisoners used to a more unpredictable and, to their minds, arbitrary system.

So simple, but it appears to be working:

Participants in HOPE were 55 percent less likely than members of a control group to be arrested for a new crime, 72 percent less likely to use drugs, and 53 percent less likely to have their probation revoked. As a result, they served 48 percent fewer days of incarceration.

As a result, HOPE-like programs have appeared in over a dozen states.

Of course, a program like that can really only happen in a supervisory context, where probationers are required to follow lots of rules that don’t apply to regular folks. It’s not clear to me how you could apply the swift/certain punishment idea in new criminal cases without running into serious due process issues.

One interesting observation of those in the HOPE program involves their perception of the process:

’Ordinarily, when you ask an inmate why he’s behind bars, it’s always someone else’s fault,’ Hawken said. ‘ ‘I’m in jail because the judge is an SOB’; ‘I’m in jail because my probation officer had a bad day.’ ‘ But in Honolulu she encountered men and women who, unbidden and unpressured, praised the system that put them away, and told her they were locked up because they had ‘messed up’—something so unusual, she said, that it made her skin tingle. ‘That language of personal responsibility is unimaginable if you’re a criminal justice researcher.’

Now, in my experience the old saw that everybody who is in prison thinks their innocent isn’t the case. People are a lot more honest about their transgressions than that. However, what I have noticed is that there is a certain percentage of defendants who lose sight of any culpability on their part in their plight and view the entire predicament as a kind of game to be won or lost without any regard to their behavior. That’s particularly true when the only real “defense” someone has is a motion to suppress evidence that, otherwise, shows them to be dead-bang guilty. My own personal theory is that it doesn’t help those clients down the road to get caught up in the “game” and lose sight of what they did and how things need to work when they get out of prison.

HOPE offers a different take on criminal justice. It appears to be one of the truly unusual examples of a true win/win situation. The probationers do better overall and spend less time going back to jail. The public benefits by a reduction in crime, reduced cost (due to shorter incarceration), and a more efficient criminal justice system. Let’s hope (so to speak) it continues to spread.

We Asked For This

The reaction to last week’s revelations (courtesy of Glenn Greenwald) at the Guardian) of sweeping data gathering by the National Security Agency, the predominant reaction from the public has been one of outrage.* Even folks who otherwise fall on the “security” side of the security/civil liberties line stopped and asked if things had gotten a bit out of hand. But even the outrage is justifiable (and I think it is), should anybody really have been surprised by this?

Fourth Amendment expert and former NACDL President John Wesley Hall explains how, as distasteful as the NSA’s plans might be, they probably aren’t unconstitutional under current law:

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

As for the Patriot Act, Hall notes that it:

became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised.

Even beyond that, the primary bulwark keeping the government from searching people (and their stuff) willy nilly, the Fourth Amendment, has been slowly hacked away for decades. Well before 9/11 and the War on Terror, we as a society had largely ceded the protections against unreasonable search and seizure in the War on (Some People’s) Drugs. The quantum of evidence needed to search or seize someone has gradually gone down, while the only effective tool to punish breaches – the exclusionary rule – is on its death bed. In the grand tradition of “when they came for the [INSERT GROUP HERE] I did nothing,” society was largely OK with all this, as it only impacted “those people.” Who gives a shit about goddamn drugies, anyway?

Ironically it’s the drug angle that writer/producer David Simon (of The Wire, Treme, etc. fame) uses to explain why we shouldn’t really be all that freaked out about this (via):

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal.

Simon stresses that, like the NSA program exposed in the Verizon order, they weren’t listening to calls, just getting the “metadata” (if the term was around back then). That information, he points out, is already generated without the NSA’s request and, increasingly, is going to be stored for some kind of future use by the private companies that produce it. To not utilize it for something as serious as trying to thwart terrorist attacks (or develop more traditional particularized individual suspicion) is silly.

I think Simon’s right that the only thing about the NSA program that’s different from his Reagan-era memory of Charm City is the scope of the information gathering, but, unlike him, that still bothers me. It’s possible to, at the same time, not be particularly surprised by something and yet still outraged. Furthermore, Simon appears to take Obama at his word when he says nobody’s listening to our phone calls.** There’s just no reason to believe that. As this piece at Slate points out, there’s a history of surveillance operations straying far afield from the legitimate, limited goals.

While the NSA’s programs are outrageous in and of themselves, what’s more outrageous is that they may be perfectly legal. They’re clearly authorized by statute and have been blessed by Congresspersons in the know. And, of course, they have the approval of a pair of presidential administrations from theoretically opposite parties. Furthermore, I don’t have any confidence that they violate the Fourth Amendment in its current emaciated form.

No, the real outrage is that we’ve let it come to this. For too many years we’ve traded liberty for security, from crime or from terrorism, on a bipartisan basis. If things have really gone too far for too many people, maybe we can start to roll things back. But I won’t hold my breath.

* Or maybe not. Via Orin Kerr at Volokh, a Washington Post poll found that only 41% of respondents think the NSA’s phone program is “unacceptable,” compared to 56% who find it “acceptable.” There appears to be the inevitable partisan gloss as well. We are so fucked.

** To be fair, in the comments he expresses more concern about the PSRIM internet surveillance program, which does appear to reach content, not just technical metadata.

Hunter Becomes Hunted (Redux)

Back in April I blogged about Ken Anderson, a former prosecutor and current judge in Texas who made headlines for actually being criminally charged for misconduct that resulted in an innocent man being sent to prison for almost 25 years. In that post I mentioned that, regardless of the eventual outcome of the criminal proceedings, Anderson would ultimately be judged by voters when he faces reelection.

I no longer think that will be quite enough.

Scott over at Simple Justice has a copy of the judge’s order issuing the arrest warrant for Anderson, in which he lays out the findings of fact supporting the warrant. Buried deep in the order is this gem:

42. Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and former prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty. (RR 6:116:18-6:117:4 and RR 6:94:4-24).

Read that again, slowly, and make sure you grasp what Anderson said, under oath, to a court examining his conduct – that if he thinks your guilty, the law is just an impediment to his ultimate triumph of putting you in a cage. It’s hard to think of a more appalling example of a prosecutor who has decided to completely ignore his legal, constitutional, and ethical obligations in order to do what’s “right,” of which he is the only judge (naturally).

Prosecutors have a constitutional duty to turn over evidence to defendants that tends to show they’re innocent of the crime with which they’re charged. This so-called Brady obligation is a fundamental protection of an adversary system where one side has the entire investigative apparatus of the state at its disposal. Yet the very nature of it – evidence is required to be turned over only when it might exonerate the defendant – provides prosecutors with enough wiggle room to get into trouble.

I’ve heard that prosecutors are told that if they have a piece of evidence they don’t want the defense to have, then it’s the kind of evidence they need to turn over. Sound advice, but not followed very often. The law should make the decision much easier – turn over everything. Don’t leave the decision about what to disclose to a party with a vested interest in the result. Human nature being what it is, the temptation to filter things through your own biases is going to lead to bad results.

As for Anderson himself, I’m not sure if the law is capable of sending him to prison for what he’s done, for reasons noted in the initial post. But the Texas bar and judicial disciplinary apparatus presumably has more room to deal with his malfeasance. He is a disgrace to the profession and shouldn’t ever have a place in courtroom, except as a party.

Hunter Becomes the Hunted

When we hear a news story about a person being freed from prison years after being wrongfully convicted of a grisly murder, often there’s a perverse punch line to the whole sordid affair – the prosecutor responsible for the case, responsible for a ruined life and an innocent person spending years in a cage, is now a judge. Not only does the miscarriage of justice not impede a prosecutor’s career, in most cases it seems like a boon.

Which is what makes what happened in Texas a couple of weeks ago so amazing and important.

On August 16, 1986, Christine Morton was brutally murdered in her home near Austin, Texas. As often happens in such cases, Christine’s husband, Michael, was treated as a potential suspect from the beginning. He was arrested in September and convicted in 1987 and sentenced to life in prison. Morton spent 25 years in a cage before DNA testing confirmed what he had been saying all along – that he was innocent. He was formally acquitted in 2011. For a detailed, fascinating, and chilling account of Morton’s saga, see here and here.

Ken Anderson, who was the lead prosecutor in Morton’s case, is now a judge, naturally. He’s also, now, under arrest:

Ken Anderson was in the courtroom as Judge Louis Sturns issued his ruling and turned himself in afterward. Sturns said there was sufficient evidence that Anderson was guilty on all three charges brought against him for his handling of the case against Michael Morton: criminal contempt of court, tampering with evidence and tampering with government records.

‘Mr. Anderson consciously chose to conceal the availability of the exculpatory evidence so he could convict Mr. Morton for murder,’ Sturns said. ‘This court cannot think of a more intrinsically harmful act than a prosecutor's intentional choice to hide evidence so as to convict a defendant facing a murder charge and a life sentence.’

At issue in Anderson’s case are two pieces of evidence collected by police that pointed to someone other than Morton as the killer. One was a report of a suspicious van in the area at the time of the killing, while the other was a report that Morton’s young son, who was at home when his mother was murdered, that a “monster” hurt his mother, not his father. As Judge Sturns concluded in his findings of fact, this was:

evidence that showed Mr. Morton did not murder his wife.

In addition, Judge Sturns concluded that Anderson knew about this evidence and failed to turn it over to the defense or follow up on potential leads:

[t]he sheriff’s department and Mr. Anderson quickly concluded Mr. Morton was responsible for killing his wife, and so curtailed further investigation of the murder.

Anderson’s failure to disclose evidence forms the basis of the criminal charges against him.

Will they stick? It will be interesting to see. One problem that’s already been raised is the statute of limitations. The original trial judge is dead, which may harm Anderson’s ability to defend himself. And, of course, the entire point of statutes of limitations is to prevent someone needing to defend themselves years after an event when memories have faded, physical evidence has disappeared, and witnesses have died or disappeared. Regardless, it doesn’t seem like much of a stretch to argue that Anderson’s conduct was ongoing so long as Morton was still in prison, which might squelch any statute of limitation problem.

Even if Anderson escapes conviction, the very fact that he’s being dragged into court for prior malfeasance is a step in the right direction. If he doesn’t wind up in jail, he will, at some point in the future, have to face the voters (judges in Texas are elected). Then the ball will be in their court – will they reward a man who sent an innocent man to a cage for a quarter-century with another term? If they do, it will say all too much about how this system got to the place where it could make such mistakes in the first place.

When A Crime Becomes A Crime

In a perfect world, the line between innocent behavior and a criminal act would be bright, clear, and flashing like a neon sign on the Vegas strip. Alas, this isn’t a perfect world and sometimes that line gets very blurry, if it doesn’t evaporate completely. Two cases in the news recently show just how hard the line can be to find and how easy it is to cross it.

The first, and more notorious, is the case of the “cannibal cop” in New York, Gilberto Valle. As this story points out :

In July, Valle had another chat with a different online friend—a man called ‘Moody Blues.’ Their conversation flowed very well. Moody Blues, a male nurse who lives in England, pretended to be a connoisseur of cannibalism: He said he'd eaten lots of women and offered up his favorite recipes. Valle responded that he'd been working on a document called ‘Abducting and Cooking Kimberly: A Blueprint,’ and promised to send it over. That Word file had a photo of his real-life friend from college, Kimberly Sauer, and a list of supplies that he would need to carry out a crime. It also gave a set of made-up details about the victim: a fictitious last name, date of birth, alma mater, and hometown.

Then he and Moody Blues agreed to cook and eat Kimberly together over Labor Day, at Valle’s secluded place ‘up in the mountains,’ a spot accessible via ‘lots of winding roads.’ Valle lived in an apartment building in Queens.

There’s more nauseating detail in the story, but the gist of it is that, for all his talk, Vale never actually abducted, killed, and consumed anybody. Nonetheless, he was charged with conspiracy to commit such a grisly murder. As another story explains:

The bulk of the evidence regarding Gilberto Valle's plot consisted of online communication between the ‘cannibal cop’ and fellow cannibal-role-playing kinksters at a social media site called DarkFetish.net. The defense team had argued that while Mr. Valle had gruesome fantasies about roasting women on spits, they were just that: fantasies.

Prosecutors examined 24 online conversations Mr. Valle had and determined that three appeared to be real. The defense team argued to the jury that the 21 conversations the FBI considered ‘fantasy’ were no different in substance than the three they singled out as ‘real.’ Either way, Mr. Valle had a right to free speech, they said.

The jury disagreed and found that Mr. Valle had acted in furtherance of these grisly schemes – researching recipes for chloroform, downloading photos of his intended victims – to conclude he had crossed into the realm of criminal intent. In a separate charge, he was also convicted of unauthorized use of a law enforcement database to look up the women.

As both stories note, there is concern in some circles that Valle was convicted purely for his own fantasies, rather than any tangible act that put someone else in danger. While the specter of “thought crime” is enough to make anyone sit up and take notice, I’m not sure Valle’s case is the best one to use as an example. Regardless of what he said online, he took actions in the real world that appear to be part of a scheme. Most critically, he committed another crime – accessing the database – along the way. I can buy, somewhat, the idea of playing out the fantasy through some of the other acts doesn’t show intent to actually do anything. But once you’ve subjected yourself to criminal liability in the process, it seems clearly enough that the line has been crossed.

More troubling to me is the tale of Alfred Anaya, as detailed over at Wired.

Anaya was a car stereo installer in California who branched out into what are called “traps” – hidden compartments in cars in which items can be stored. They can be staggeringly complex:

In recent years, trap makers have competed to see who can dream up the most elaborate opening tricks. The acknowledged masters of this art are the Dominican-born installers of the Bronx, many of whom work out of auto body shops on Jerome Avenue—a gritty strip that DEA agents call the Silicon Valley of trap making. ‘The Dominicans started doing voice activation about six years ago,’ says [Maryland sheriff Michael] Lewis, who teaches classes in trap recognition to law-enforcement agencies nationwide. ‘I have videotape of a Dominican trap—you have to activate cruise control, pull one window up while you pull another window down, and you speak. And when you speak, you complete a circuit and activate the compartment. It’s pretty badass.’

Having said that, the most effective traps are the ones that aren’t detected in the first place. That was where Anaya really excelled.

“Now wait a second,” you’re saying to yourself. “I’ve seen Star Wars. I know that hidden compartments in a vehicle are used for smuggling.” And, of course, you’re right. But they’re not only used from that purpose. After all, what is a closed locked trunk if not a compartment used to hide from view objects you don’t want seen by the general public? Traps are just a further extension of that principle, for people who have particular valuables they want to protect.

That’s what Anaya thought, anyway, until a guy named Esteban came to him to fix a trap he had previously installed:

Anaya was unsettled by this request, for he had suspicions about the nature of Esteban’s work. There is nothing intrinsically illegal about building traps, which are commonly used to hide everything from pricey jewelry to legal handguns. But the activity runs afoul of California law if an installer knows for certain that his compartment will be used to transport drugs. The maximum penalty is three years in prison. Anaya thus thought it wise to deviate from his standard no-questions-asked policy before agreeing to honor his warranty. ‘There’s nothing in there I shouldn’t know about, is there?’ he asked. Esteban assured him that he needn’t worry.

* * *

Anaya punched a precise hole through the upholstery with his 24-volt Makita drill, probing for the screws that anchored the seat to the hydraulics. After a few moments he heard a loud pop as the drill seemed to puncture something soft. When he finally managed to remove the backseat, he saw what he had hit: a wad of cash about 4 inches thick. The whole compartment was overflowing with such bundles, several of which spilled onto the truck’s floor. Esteban had jammed the trap by stuffing it with too much cash—over $800,000 in total.

Anaya stumbled back from the truck’s cab, livid. ‘Get it out of here,’ he growled at Esteban. ‘I don’t want to know about this. I don’t want any problems.’

But it was too late. Esteban was part of a big drug ring that shipped drugs from California to Kansas. Once they were all arrested in the heartland, the feds came for Anaya, too, charging him with conspiracy, even though he really knew nothing about the actual drug smuggling operation. It didn’t matter. He made the mistake of going to trial and, with actual conspirators cutting deals to testify, didn’t stand a chance:

When the trial started on January 25, 2011, the lead prosecutor, an assistant US attorney named Sheri McCracken, argued that Anaya was one of the main reasons the smuggling ring had evolved into a multimillion-dollar enterprise. The organization ‘moved up in the world when they met Mr. Anaya,” she told the jury. ‘He built supreme compartments, and because he did that, drug hauling became easier … But for Mr. Anaya’s compartment building, lots of loads would be lost.’

* * *

McCracken took no pity on him. ‘He makes the drug world work,’ she told the judge. ‘He is equivalent to what I consider somewhat of a genius that takes cocaine and molds them into shapes so that they can be moved in plain sight … I don’t feel bad at all today. In fact, this is a pleasure. And Mr. Anaya says that he’s part of this big group of people that puts in compartments. He’s part of this secret society, I guess. Well, I hope he tells a friend, because we’re coming for them.’

Not only was Anaya was convicted, he was sentenced to more than 24 years in prison, double what the guys who actually ran the drugs received.

In both cases, the defendants involved have a good argument that they never knew what they were doing was illegal. Nor is it a coincidence that both were convicted under the squishier heading of “conspiracy” rather than for substantive offenses. But should the law reach that far?

It’s a common legal maxim that a person’s intent can be inferred from his actions. But what if the actions themselves are susceptible to multiple interpretations? A man shoots a gun and kills another man. Is it murder? If the shooter acted with malice and intent. Or was it self-defense? It was if the shooter was in reasonable fear for his life. Ultimately, Valle’s and Anaya’s behavior is the same thing – conduct that could be innocent, or it could be criminal.

At the end of the day, the line between crime and innocence is often blurry. That’s why we have juries, who get the awesome power to decide on which side of the line a defendant stands. They probably get it more right than wrong, but I’m sure that’s cold comfort to guys like Valle and Anaya. But in an imperfect world, imperfect justice is the most we can hope for.

Feelings Don’t Make Good Policy

West Virginia abolished the death penalty in 1965. We haven’t actually executed anybody since 1959. There are many things about this state that can be embarrassing, but that’s something I’m always proud of. From my perspective, the six states that have abolished the death penalty over the past few years (Maryland is the latest) are just following our lead.

Leave it to a long-term House of Delegates member to try and drag us back into the past.

John Overington, a GOP delegate from Berkeley County, has introduced a bill to bring the death penalty back to West Virginia. This is not a recent change of heart for him – he’s done the same thing for the past 26 years. Thankfully, his bill has been dead on arrival in all those years and, most likely, will be again.

I respect people, like Overington, who think capital punishment is a legitimate part of a proper justice system. I think they’re wrong, of course, but they have deeply held convictions (so to speak), just like I do. I just wish they’d come up with better arguments to support their positions, one that didn’t sound like they were just pulled from the ether. For example:

Overington said he will continue pushing such bills because he thinks the state would be better served if it could execute convicted murderers.

‘You want to live in a just society that is fair, and capital punishment, if somebody is murdered, I think there’s a perception that you have fairness if that person is put to death,’ Overington said. ‘It sort of adds to the fairness of our society and helps make it work. If you feel that our justice system is fair, it helps you believe in it.’

Feelings aside, I’m not sure anybody would use “fair” as the primary descriptor of the American death penalty. It’s disproportionately deployed against the poor, African-Americans, and those without access to high-priced legal help. Add to the mix the fact that those cases become potential career makers for prosecutors and there’s lots of potential unfairness built into the system. But ignoring those problems makes Overington “feel” better about the justice system, so it’s all OK.

On the question of fairness in the justice system, it boggles the mind that Overington is either unaware of, or has overlooked, one of the great criminal justice scandals of the late 20th century that occurred right here in West Virginia, all while Overington was pushing to bring back the death penalty.

Fred Zain was a serologist in the West Virginia State Police crime lab. He dealt with various bodily fluids – semen, blood – left at crime scenes. After a spectacularly notorious rape case against a man who had served five years in prison fell apart when Zain’s work was closely scrutinized. In the end, an investigation ordered by the state Supreme Court of Appeals (and, to be fair, instigated by the Kanawha County prosecutor) revealed fraud on Zain’s part on a massive scale:

Hundreds of blood tests that West Virginia prosecutors have used to link defendants to crime scenes over a 10-year period are now invalid because a former State Police serologist may have fabricated the results, the West Virginia Supreme Court of Appeals has ruled.

At the court's request, an independent team of serologists spent the last five months combing through the testimony of Fred Zain, the State Police serologist from 1979 until 1989. In the 36 cases it investigated, the team said, it discovered that Mr. Zain had lied about, made up or manipulated evidence to win convictions in every single case.

Emphasis mine, because, for fuck’s sake . . ..

All told, 134 convictions were called into question. In an opinion laying out the procedure for challenges those convictions, the court concluded:

The matters brought before this Court . . . are shocking and represent egregious violations of the right of a defendant to a fair trial. They stain our judicial system and mock the ideal of justice under law.

And while the court later concluded that Zain’s fraud wasn’t replicated by other technicians in the lab, the whole system nonetheless failed:

This corruption of our legal system would not have occurred had there been adequate controls and procedures in the Serology Division. [The] report is replete with deficiencies and derelictions . . ..

Of course, problems in crimes labs aren’t unique to West Virginia. But if any state should give the ultimate punishment a wide berth, it’s the state of Zain.

More problematic is that Overington is being guided by another feeling – fear – that’s completely unfounded:

Other than Maryland, all of West Virginia’s neighbors still have the death penalty - and Overington said he fears that West Virginia invites killers by not having capital punishment as a deterrent. However, West Virginia’s homicide rate for the past 10 years is lower than that of all neighboring states, according to FBI data.

Indeed, West Virginia famously has had a low crime rate for years (if not decades). It’s one of the few state ranking lists where we’re consistently near the top. It’s unlikely that killing the odd inmate every few years will make us any safer.

Lest you think Overington is alone in his quixotic quest, he does have some bipartisan support:

The bill has one Democratic co-sponsor, Del. Rupert Philips [Logan County], who said that people he’s talked to while campaigning seem to support it.

‘When’s enough enough? We’re wasting tax dollars trying to prosecute them,’ Philips said. ‘An eye for an eye.’

This is, of course, false. It costs exponentially more for a state to execute someone – or even seek the death penalty without achieving it – than it does to lock someone in a cage for life. Prosecutors and law enforcement investigators would need more money. My colleagues in the state public defender system would need serious reinforcements if they took on capital cases – they are a complete time sink for even the most experienced of litigators. Hell, even my office would need serious expansion for the federal habeas corpus proceedings that would be necessary. Finally, the courts would need revamping. West Virginia has no mid-level appellate court, which would be a must if we’re going to try and execute people.

The bottom line is that not only is Overington’s crusade based only on “feelings,” those feelings are contradicted by empirical evidence. Squishy feelings are an understandable, and maybe even a good place, to start when thinking about an issue. But, eventually, if everything tells you your feelings are wrong, you’ve got to go back and rethink your conclusions.

A Legacy Unfulfilled

The COURT: I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

The “DEFENDANT” in that passage was Clarence Gideon. At the time he made that request in 1962, he was actually wrong. The Supreme Court had held that, unless there was some particular reason that a defendant couldn’t represent himself (mental illness, illiteracy, etc.) he had no right to counsel. Gideon went to trial and was convicted. Then he wrote petition, in pencil, to the Supreme Court. With an assist from future Justice Abe Fortas, Gideon would fundamentally change the American legal system.

Fifty years ago today, the Supreme Court announced its decision in Gideon’s case. Unanimously, the Court rejected its old precedent and held that every person charged with a crime (that carries a sentence of jail time) has a right to an attorney, appointed at state expense if they can’t afford one. Justice Black, writing for the Court, wound up the opinion in lofty, aspirational language:

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries.

To be fair, the writing was on the wall when it came to appointing counsel for indigent defendants. Florida didn’t send its top appellate lawyer to argue the case, instead entrusting it to an assistant attorney general who had never argued before the Court before. And his attempts to bolster his case didn’t go well:

An effort by Jacob to get other states to file an amicus brief extolling the dangers to federalism of requiring counsel for indigent defendants drew only two supporters (Alabama and North Carolina). Meanwhile, the letter from Jacob prompted a young, up-and-coming politician, Minnesota Attorney General Walter F. Mondale, to organize an amicus from states urging that Betts be overruled. Twenty-three states signed on.

It all paid off for Gideon in the end. At a retrial where he was represented by counsel (although not by volunteers from the ACLU whom he turned down), Gideon was acquitted. He couldn’t get back the time he lost in prison, of course, but at least he lived the rest of his life as free man.

I owe a debt to Gideon (and Fortas), since without his case I doubt the public defender system of which I’ve been a part for the past 13 years wouldn’t exist. Although that case didn’t technically deal with the right to counsel on appeal, the entire apparatus in which I work owes its beginning to Gideon’s pencil-written petition.

Alas, 50 years out from the Court’s decision, we as a society still struggle to provide adequate representation to indigent criminal defendants. In fact, that failure has become a common feature in reports about the court system :

A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.

There were more specifics, of course, but the report’s bottom line was that ‘40 years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.

Ten years on, things are in no better shape, particular in state courts. One repeated recommendation of reports on indigent defense is that statewide systems are best as delivery quality representation. Unfortunately, only 24 states have statewide public defender systems. The federal system is both broader and more integrated (IIRC, only one federal district is without a defender office of some kind) and, as a result, generally performs better.

As an example of what it can be like at the state level, check out the situation in Wilkes-Barre, Pennsylvania, detailed recently in USA Today:

If he came back today, Clarence Gideon might rue the quality of legal representation he'd receive. He might not get any at all.

Such was the fate last year of some indigent criminal defendants who walked in the public defender's door here and past Gideon's gaze. They were told that, because of a shortage of staff lawyers, the office was turning down all but the most serious new cases. They were given a letter to show the judge.

Al Flora, Luzerne County chief public defender, says that ethically and legally he had no choice: His overburdened lawyers couldn't take on new clients and do justice to those they already had. He sued county officials — his bosses — to let him hire more lawyers and to stop them from retaliating against him.

That situation may be exceptionally bad, but it’s a good example of problems faced across the country.

We send more people to prison than any other country on the planet. Our greatest grown industry is building prisons. Legislators, at the state and national level, respond to every problem that arises with more laws that define more crimes and require more severe punishments. Yet, for all that, we don’t make sure that the people charged with those crimes get adequate representation. It’s a failure of fundamental fairness.

In Gideon, the Court wrote that:

[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Sadly, that’s as true today as it was 50 years ago.

There Are Things Worse Than Mercy

Clemency - when a governor or the president either lessens a person’s sentence or overturns his conviction - isn’t something that happens very often. Many words have been written on Obama’s stingy record when it comes to clemency, but the fact is he’s not that much worse than his predecessors. Sadly, politicians are just not that enthused to use political capital to release someone from prison who might, when it’s all said and done, go out and do something awful. One of those is all it takes to destroy a political career. Weighed against that, the reward for doing the right thing just isn’t that great.

Which is a long winded way of saying, when the governor calls and tries to lessen your penalogical burden, you say “yes!” But death, as they say, is different and sometimes capital punishment makes people do strange things.

Consider the case of Gary Haugen (via), convicted of murder in Oregon in 2007 (committed in prison while already serving life for another murder). Haugen is what they call in the capital punishment biz a “volunteer,” in that he wants to die. Or, at least, he’s waived his remaining appeals and collateral challenges to his conviction in order to bypass the years that might pass before he’s executed. If you’re the state of Oregon, so far so good, right?

Enter Oregon Governor John Kitzhaber. Kitzhaber is a death penalty opponent and he utilized his executive authority to offer Haugen an “unconditional reprieve,” after a fashion. It’s actually a reprieve that will expire when Kitzhaber leaves office and is part of a blanket decision on his part not to carry out any death sentences during his term because of problems with the death penalty. So it’s not much of a reprieve, and certainly not a commutation to a life sentence or a pardon.

Regardless, here’s the catch with Kitzhaber’s limited attempt at beneficence – Haugen doesn’t want it. Now the Oregon Supreme Court is set to decided whether an inmate can refuse an act of clemency handed down by the governor.

At first blush I would have never thought that clemency was something someone could refuse. It’s an act of executive grace, after all, which can neither be demanded* nor reviewed, so how could the receiving party turn it down? However, that’s not what a lower court decided, identifying a 1833 Supreme Court decision that allowed a prisoner to refuse a pardon. The Governor counters that newer cases undermine that idea and that:

’No state court appears to have required that, as a general matter, an unconditional grant of clemency be accepted to be valid,’ [the Oregon Solicitor General] wrote. ‘Instead, the case law surrounding the clemency power reaffirmed that the power was expansive.’

Haugen’s argument is based on both clemency law as well as federal notions of due process and cruel and unusual punishment. This passage from the argument summary section of his brief seems to sum up the core of his position:

Mercy cannot be forced upon someone any more than a gift can be, and what one person considers to be a benefit, another might consider to be an injury. A purported act of benevolence that can be forced upon someone who does not want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen considers Governor Kitzhaber’s action, as well-intentioned as it might be, to be profoundly dehumanizing and cruel. It makes him an unwilling pawn in the Governor’s desire to ‘allow’ Oregonians to engage in a debate over the death penalty, even though nothing has impeded them from engaging in that debate ever since they overwhelmingly voted to establish the death penalty nearly 30 years ago. Because Governor Kitzhaber obviously cannot determine whether his successor as Governor will continue the moratorium he has imposed, Mr. Haugen could be put to death by lethal injection as soon as Governor Kitzhaber leaves office. . . . The ostensible reprieve therefore makes plaintiff live for up to seven years under an awful pall of uncertainty regarding whether, and when he will be put to death.

That is not something Mr. Haugen wants, and not something he sought.

A third party involved in the case is the ACLU, which filed an amicus brief from its office between a rock and a hard place. On the one hand, the group is furiously anti-capital punishment. On the other, it generally takes positions that maximize an individual’s control over his own life and even the right to end it (as Haugen explains in his brief, he doesn’t want to die – the state wants to kill him – he just doesn’t want to unduly prolong the process). In the end, it comes down on the side of Kitzhaber, arguing that his clemency authority extends to temporary reprieves such as this one used to “promote the public welfare” by, among other things, forcing a discussion on the nature of Oregon’s death penalty.

While I understand the structural basis for the ACLU’s argument, as well as Kitzhaber’s, I’m not sure they should prevail in this case. I’m particularly troubled by the temporary nature of the reprieve. It would be one thing if Kitzhaber simply commuted Haugen’s sentence to life, as George Ryan did in Illinois while he was governor. But the uncertainty of this reprieve, which may only prolong the inevitable for Haugen, adds an extra layer of cruelty to the whole situation. Haugen may have earned his punishment, but nobody should be made a pawn in a political game in which they have no real input.

If the death penalty in Oregon is broken, then commute those currently sentenced to death to life in prison and fix the system. Or, better yet, join the rest of the civilized world and scrap the barbaric practice altogether. Stand up and put your money, and your political capital, where your mouth is, Governor. Stop playing games.

* Obviously, you can ask the governor or president for a pardon or commutation. What I mean is that, unlike a court action, there’s no combination of factors that, if proven, will lead to success. The final decision lies completely within the executive’s unreviewable discretion.

Changing Facts, Not Changing Histories

This will not come as a shock to most people, but things change. More than that, our perceptions of things change. That’s particularly true of historical events, things that happen at a particular point in time. First impressions are often shaped by incomplete reporting, faulty eyewitness testimony, and the modern journalistic need to get the story right the fuck now, before the bastards down the street get it. It’s only after some time has passed, when the situation is examined comprehensively and with more distance that we get a better idea of what actually happened.

Take, for example, the unfortunate fate of Kitty Genovese.

In the early morning hours March 13, 1964, Genovese was returning from work in New York City. She was attacked, raped, and stabbed to death near her apartment building. As sad, brutal, and horrific as Genovese’s death was, that’s probably not why the name means anything to you these days (if it does at all).

Genovese’s name became widely known thanks to a reporter named A.M. Rosenthal:

It was a gruesome story that made perfect tabloid fodder, but soon it became much more. Mr. Rosenthal, a Pulitzer Prize-winning reporter who would go on to become the executive editor of The New York Times, was then a new and ambitious metropolitan editor for the paper who happened to be having lunch with the police commissioner 10 days after the crime. The commissioner mentioned that 38 people had witnessed the murder, and yet no one had come to Ms. Genovese’s aid or called the police.

Mr. Rosenthal quickly mapped out a series of articles centered around a tale of community callousness, and then followed in June with his quick-turnaround book, published by McGraw-Hill. National and international interest in the issue spiked, and soon the Kitty Genovese case became a sociological phenomenon studied intensely for clues to behavioral indifference.

Rosenthal turned his reporting into a book, Thirty-Eight Witnesses: The Kitty Genovese Case, which was published only three months after the murders. It was a hit and became the go-to reference for information about the case.

Over the years, as we’ve learned more about the Genovese case, we’ve learned that a lot of the initial sensational claims about the “38 witnesses” probably isn’t true:

But over time the basic facts were called into question. As early as 1984 The Daily News published an article pointing to flaws in the reporting. In 2004 The Times did its own summation of the critical research, showing that since Ms. Genovese crawled around to the back of the building after she was stabbed the first time (her assailant fled and returned) very few people would have seen anything.

The article quoted among others Charles E. Skoller, the former Queens assistant district attorney who helped prosecute the case and who also has written a book on it. ‘I don’t think 38 people witnessed it,’ said Mr. Skoller, who had retired by the time of the interview. ‘I don’t know where that came from, the 38. I didn’t count 38. We only found half a dozen that saw what was going on, that we could use.’ There were other mitigating factors as well; it was a cold night, and most people had their windows closed.

‘Maybe only five people were in the position to hear her calls, if even that many, and knew what was going on,’ said Kevin Cook, an author who is currently researching the case for a book of his own and trying to determine exactly who knew what.

In and of itself, that’s no problem. Our understanding of history changes all the time, revision in light of new evidence is a good thing. But in the modern era, it brings to mind a potential problem – what should be done with books like Rosenthal’s when they are reprinted?

The issue arises because Rosenthal’s book is being reissued in digital formats without any kind of correction or updating:

Dennis Johnson, the publisher of Melville House, said he knew about the controversy but decided to stand behind Mr. Rosenthal’s account. ‘There are, notably, works of fraud where revising or withdrawing the book is possible or even recommended, but this is not one of those cases,’ he said. ‘This is a matter of historical record. This is a reprint of reporting done for The New York Times by one the great journalists of the 20th century. We understand there are people taking issue with it, but this is not something we think needs to be corrected.’

I tend to agree with Johnson. There’s no need to change books, particularly nonfiction ones, simply because the information in them becomes outdated. Not only does that carry some nasty Orwellian overtones, but it also ignores the value of such books as historical and archaeological objects. Future readers, whether amateurs or scholars, need access to original works in the state in which they were originally consumed in order to assess their impact on a particular time period or to use as a case study in how the understanding of an event changes over time. It’s worth noting, as Johnson hints, that regardless of whether Rosenthal’s initial reporting was wrong, it wasn’t fraudulent in the sense that he made it up out of whole cloth. He used imperfect information to produce what is, in hindsight, an imperfect work.

So I don’t think publishers have an obligation to make changes to an outdated work. It would be helpful to new readers and the general understanding of the public if, perhaps, a foreword or afterword were added explaining developments since the original book was published. After all, nobody who went out to buy a copy of Plato’s Republic would spend good money on one that just contained the original text, or even an old translation. You’d expect some context and analysis, apart from the work itself.

It’s an interesting question, but hardly a new one. We don’t expect the works of Josephus to be as accurate as more modern works on the same subjects written with two millennia worth of new information. It doesn’t mean they’re worthless. But it does make the artifacts and readers need to realize that.

Bottom line – always check the publishing date. You never know how much more you have to learn about something if you don’t.

Every War Has Unintended Consequences

The latest popular cause amongst drug warriors is the abuse of prescription drugs, particularly powerful pain killers like oxycodone. Resources have shifted to prosecuting those who sell pills and more vigorous regulatory schemes have sprung up around the legitimate distribution of them. This is having some impact, as the use of prescription drugs in some areas is decreasing.

But is it really a success, or are these initiatives just forcing a change in the behavior of users? As with any war, were the drug warriors prepared for this kind of unintended consequence (via):

As efforts to crack down on the abuse of prescription drugs have worked, a new problem has emerged, with addicts who can no longer get their fix by popping pills turning to the old-fashioned street drug heroin, health and law enforcement officials say.

The trend shows up in local arrests, drug seizures and overdose deaths. Drug dealers are finding new markets in the suburbs, where teenagers once got their stash from local drugstores or their parents’ medicine cabinets, some experts say.

‘The kids who got addicted to prescription pills are flipping to heroin, and, as a result, these kids are dropping like flies,’ said Mike Gimbel, a longtime drug counselor in Baltimore County who now works at University of Maryland St. Joseph Medical Center.

It’s not just increased criminal crackdowns producing that kind of shift. As the New York Times reported last year, when pill makers reformulated their products to make them harder to use illicitly (i.e., crush and snort/shoot), users turned elsewhere:

Michael Capece had been snorting OxyContin for five years when a new version of the drug, intended to deter such abuse, hit the market last summer. The reformulated pills are harder to crush, turning instead into a gummy substance that cannot be easily snorted, injected or chewed.

Instructed by his dealer, Mr. Capece, 21, tried microwaving one of the new pills, then sniffing up the burnt remains. Other addicts have tried to defeat the new formula by freezing, baking or soaking the pills in solvents ranging from soda to acetone. Many are ending up frustrated.

* * *

Purdue Pharma, the maker of OxyContin, may have succeeded for now in reducing illicit demand for its reformulated drug. But in several dozen interviews over the last few months, drug abuse experts, law enforcement officials and addicts said the reformulation had only driven up interest for other narcotics.

In the words of one treatment specialist, rather than stopping, users shifted

to what appears to be a more economical high, which is heroin. 

It’s like a game of pharmacological Whack-a-Mole.

Ultimately the problem isn’t that oxycodone is worse than heroin is worse than cocaine or what have you. The problem is that the War on (Some People’s) Drugs is a war a human nature and one that fundamentally cannot be won.

Years ago I saw an HBO documentary about methamphetamine, back before it was the momentary focus of the drug warriors. It was about a group of people somewhere in the Midwest (I want to say Missouri, but I might be wrong) who were users and minor dealers, selling to fund their own habits. At first, they appear like the pathetic junkies of popular conception, shiftless and no good for anything but getting high. But the more you pay attention to the world around them, depressed and filled with a vacuum of opportunity, it becomes clear why they seek solace in drugs. It’s not pathetic that they want a better life, it’s pathetic that, we fail to provide them any better ways of finding it.

If the war can’t be won, why are we still fighting it? It’s not as if the war on mind altering substances never had any unintended consequences:

Instead of resurrecting from the pit a body politic of newly risen saints, Prohibition guaranteed the health and welfare of society’s avowed enemies. The organized-crime syndicates established on the delivery of bootleg whiskey evolved into multinational trade associations commanding the respect that comes with revenues estimated at $2 billion per annum. In 1930 alone, Al Capone’s ill-gotten gains amounted to $100 million.

So again with the war that America has been waging for the last 100 years against the use of drugs deemed to be illegal. The war cannot be won, but in the meantime, at a cost of $20 billion a year, it facilitates the transformation of what was once a freedom-loving republic into a freedom-fearing national security state.

One of the problems with declaring “war” on something is that it’s hard, if not impossible, to admit defeat and move on. Too much invested, too much time, too much money (too many lives, in some cases). But holding out for things to turn around when they won’t only prolongs the misery. As I’ve said before, sometimes the only winning move is deciding to stop the fighting.

Our Fucked Up Penal-Industrial Complex

As we ready ourselves for the first of the Obama/Romney debates, Stephen Colbert highlights one sector of the economy that’s not just growing, but thriving:

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To a criminal defense attorney, UNICOR is the same kind of double-edged sword as “cooperation,” aka being a snitch. On the one hand, it’s good for clients to get into a UNICOR program, for multiple reasons, including maybe learning a useful skill for when they’re released. On the other hand, it’s just barely not slave labor and conditions are bound to not improve now that the program has the ability to compete with private enterprise.

It also results in some truly fucked up irony on the ground. As Colbert points out, UNICOR originally sold only to other federal agencies including federal defender offices. That’s right – my office probably includes furnishings made for almost now pay by someone our office once represented in court. Isn’t that sick?

It’s not that I’m opposed to the idea of prison labor in general. It makes perfect sense as a limited program, designed both to provide job training to inmates and labor to maintain the facilities in which they’re incarcerated. But there’s a line that gets crossed when people locked in a cage are working for outsiders at a rate of pennies per hour. Keep in mind, we’ve been down this road before as a nation.

Of course, UNICOR’s ever expanding scope is just another symptom of a criminal justice system that is being turned into a Twilight Zone-ish profit center for private enterprise, which should be viewed as a national tragedy. But I’m guessing it never comes up during tonight’s debate, which is the real tragedy.

Careful What You Wish For

My job, as an appellate criminal defense lawyer, is to convince a higher court that my client’s fate in the lower court was undeserved. The punishment too severe, the evidence insufficient to convict. Maybe I’ve been going at this all wrong.

Brian Pinkas is on trial for first-degree murder in Illinois, just as he asked to be. He’s already pleaded guilty to that crime, but he tried for years to unsuccessfully withdraw his plea, using such traditional arguments as the ineffectiveness of his lawyer. When those didn’t work, he changed course:

When none of that worked, he resorted to a surprising claim — that he was not given a stiff enough prison sentence.

On that point, Illinois’ 5th District Appellate Court agreed.

In the wording of their 2011 order, the appeals judges seemed to acknowledge his peril in bringing it up. They said they were remanding the case to the trial court ‘so that he can withdraw his guilty plea and have his conviction and sentence vacated, if he so desires.’ The order warns that he would not only be liable to prosecution all over again but could see his 20-year term become 45.

His original 20-year sentence, the statutory minimum for his offense of conviction, by law should have been enhanced by an extra 25 years because a firearm was involved, but it was not. So he, in essence, argued on appeal that the court erred by not punishing him enough. Begging for punishment can be an effective plea at sentencing:

I’ve rarely seen it deployed as an appellate strategy, however. Such “bank error in your favor” situations do occur, but usually any subsequent litigation is all about trying to keep the error from being corrected. A few year ago, the Supreme Court heard a case where the defendant got a break at sentencing (then foolishly appealed), only to have the appeals court recognize the error and remand the case for the correct sentence to be imposed. The Supremes held that, where the prosecution doesn’t appeal the sentence, appellate courts don’t have the ability to notice the error on their own and move to correct it.

So, credit to Pinkas (and his attorney, if he had one) for spinning this odd appellate theory into gold. Whether it ultimately pans out (read more of the ongoing retrial here) is yet to be seen. One thing’s certain – if he’s convicted, you can bet Pinkas will get every year coming to him.