Money, the Courts, and Real Priorities

A wise woman once said, "money talks, and bullshit walks." Sadly, more and more it's the money that drowns out everything when it comes to judicial elections.  But it's important to pay attention to the bullshit, too, and particularly to who is pushing it and why.

But first, let's get a few things clear.  Judges should not be elected.  They are not politicians, in the traditional sense.  They should not - and cannot - promise to voters to rule in particular ways on certain issues.  Most importantly, judges need the independence to apply the law as it exists, even when it's unpopular to do so.  Most often, that comes in criminal cases.

In fact, as this lengthy article from The Atlantic (and The Marshall Project), criminal cases, and fear mongering about them, tends to be the them of the millions of dollars of advertising outside groups pour into modern judicial elections.  The theme is simple and familiar - one candidate is "soft on crime" because she was either a defense attorney at one time in her career or, as a judge, she ruled in a vaguely pro-defendant way.  That the claims are exaggerated or, at least, more nuanced than presented is a feature, not a bug.

One of the many examples they discuss is one from West Virginia featuring a big player who is now a criminal defendant himself:

When coal executive Don Blankenship wanted to unseat an unsympathetic West Virginia justice in 2004, he didn’t run ads in the name of Massey Energy Co. He funneled nearly $2.5 million to a PAC called “And for the Sake of the Kids” to produce commercials alleging the incumbent had freed a child rapist and allowed him to work as a school janitor. In reality, Justice Warren McGraw had voted with the majority that a juvenile sex offender already on probation should have been sent to rehab instead of back to jail when he was caught drinking and smoking pot. The judge Blankenship helped elect reversed a $50-million ruling against Massey Energy, culminating in a landmark Supreme Court ruling that found the campaign contributions constituted 'a serious risk of actual bias.' (More recently, Blankenship was indicted in November over a 2010 mine explosion that killed 29 miners.)

This is an interesting development, for two reasons, one disturbing and one more revealing (but ultimately disturbing, too, in its own way).

It's taken as a given that these ads influence voters - if not, why run them?  Ilya Somin has written a lot about the rational ignorance of voters.  That is, basically, that the value of any single vote is so minimal that it's rational for would be voters to devote their time to things other than learning about politics, candidates, etc.  If that's true (and I'm somewhat convinced) for regular elections, imagine what it must be like for judicial elections.  After all, most folks will never appear before a judge they vote for or against, so how much thought will they give to that choice?

But even worse is that evidence is mounting that the ads are changing the way judges make decisions:

A growing body of research suggests that soft-on-crime attack ads may be changing how judges rule on criminal cases. In the American Constitution Society’s study of state-supreme-court races, Emory University law professors Joanna Shepherd and Michael Kang concluded that the more TV ads aired, the less likely individual justices are to side with a defendant. The impact was fairly small but statistically significant, showing that doubling the number of TV ads in a state with 10,000 ads increased the likelihood of a vote for a prosecutor by an average of about 8 percent.

* * *

Previous studies have found that Pennsylvania judges handed out longer sentences as an election approached, and that Kansas judges chosen in partisan elections gave harsher punishments than those who kept their seats in nonpartisan retention elections. A 2013 survey of seven states with judicial-election spending of $3 million or more, conducted by liberal organization Legal Progress, asserted that 'as campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.'

While judges deny any kind of influence, numbers don't lie.  They may not be as damning as they appear at first blush, but they aren't good.  It's bad enough for a would-be judge to use "tough on crime" language to get on the bench.  It's even worse for a judge to worry about keeping his seat while making a ruling in a case, criminal or otherwise.

The other thing, the more revealing thing, about all this spending is where it's coming from.  The article chronicles how most of this money comes from out-of-state groups that, for the most part, don't really seem to have anything to do with criminal justice.  In fact, most are pro-business groups using crime as an issue to support pro-business jurists.  For example, one group that spent nearly half a million dollars in a Michigan election was actually based in Virginia and formed by ex-tobacco company execs to fight smoking regulations.

But in some cases, it's worse than that, because the groups funnelling in money for these fearful spots that raise the spectre of child molesters running amok or killers being set loose at least make noises that they care about criminal justice reform:

Koch Industries, owned by the conservative activist Koch brothers, gave $460,530 this year to the Republican State Leadership Committee and $50,000 to the North Carolina Chamber of Commerce’s PAC—money that helped fund an ad promising 'no leniency' for violent criminals in Illinois and one praising a North Carolina candidate for 'putting murderers, drug dealers, and sex criminals in jail,' among others. In the same year, they’ve emerged as champions of due process and indigent defense, announcing a 'major' grant to the National Association of Criminal Defense Lawyers* and sponsoring a forum on the problem of mass incarceration.

Another wealthy family took part in that Michigan campaign, while also giving millions of dollars to an organization that fights mandatory minimums.

While you might argue that tactics are not the same thing as principled positions, it's a little disturbing to see people who claim to care about criminal justice reform stoke the fires of fear and misunderstanding that will keep it from happening.  Not to mention, the studies above show that there might be some actual impact on the judging, which makes the criminal justice system worse, not better.

It also provides evidence for those who argue that organized libertarians are really only concerned with money and property issues.  While they may say the right things about decriminalization or our exploding prison population, where are they putting their resources?  Where they think it will benefit their own bottom line.

Like I said - money talks, bullshit walks.

* Full disclosure - I am a member of NACDL.

On Prosecuting the Torturers

In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior.   Generally that means prosecution, but should it?  There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.

The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released.  Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld).  It's not a matter of giving up - it's a more clever gambit:

with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

* * *

Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Problem is, I don't think pardons really work that way.  For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached.  For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.  

In fact, just the opposite could be true.  I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future.  It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.

So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.

Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take.  He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:

But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder.  Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice.  I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?).  But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate.  Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?

One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise.  That doesn't mean we have to shrug and accept it or, much worse, justify it.

* Full disclosure - I am a card carrying member.

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.

Eric Cartman Pens an Op-Ed

Since the killing of Michael Brown by a police officer in Ferguson, Missouri a couple of weeks ago, a lot of words have been written.  I can't claim to have read them all, but I can say without hesitation that this piece in the Washington Post has to be one of the most outrageous.  Strangely, it has nothing to do with the specific facts of the Brown shooting, but it says an awful lot about how the police view the world around them and the people who live there.

Sunil Dutta is now a professor of "homeland security" at a for-profit university, but before that he spent 17 years as an LAPD officer.  Last week, Dutta wrote a column entitled:

I’m a cop. If you don’t want to get hurt, don’t challenge me.

Provocative, yes?  However, if you know anything about journalism you know that, quite often, the person who writes the article doesn't write the headline and the headline is crafted to be sensational and generate page views.  Hell, some places like Slate are so bad about it that the percentage of time the headline matches the article contents probably hovers around the Mendoza Line.  So, maybe, give Dutta the benefit of the doubt and assume he has a more nuanced point to make.

Not so much:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

In other words:

To be fair, Dutta "side[s] with the ACLU" and argues that all officers should wear body cameras and all police cars should have a camera, too (although, as Radley Balko points out, those are hardly a panacea).  And he writes this:

And you don’t have to submit to an illegal stop or search. You can refuse consent to search your car or home if there’s no warrant (though a pat-down is still allowed if there is cause for suspicion). Always ask the officer whether you are under detention or are free to leave. Unless the officer has a legal basis to stop and search you, he or she must let you go. Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.

Emphasis very much mine.  This, while nice in theory, directly contradicts the "respect my authoritah" mantra he relies on earlier.  If a cop says he's going to stop me and I don't think he has the right to do so, what do you think will happen if I don't "submit" to it?  We're talking about a relationship with a serious imbalance of power between the two people.  The officer has the gun, after all, and, as we've seen, generous legal cover should he or she use it.  I, on the other hand, am likely to at least wind up arrested for something vague like "disorderly conduct," of not worse.

Ken at Popehat is right.  Dutta's attitude, and the fact that we generally accept it without much objection, is "servile and grotesque."  If anything good comes out of this whole mess, maybe it will be that society starts to rethink the hands off attitude we have toward the way the police do their job.

How to Coerce a Confession (Amateur Edition)

Many times before I've written about false confessions and how police obtain them.  They're professionals, after all, and have at their disposal a frightening array of psychological and legal tricks that make such things possible.  But it's easier than that to force someone into making an untrue statement, as a recent case from Texas (highlighted by Radley Balko) shows.

Alfred Brown was a suspect in the murder of a Houston police officer.  The grand jury investigating the case brought before it Ericka Dockery, who had been Brown's girlfriend for about six months.  She told the grand jury that Brown was asleep on her couch when investigators thought he was meeting with other suspects.  But the grand jury didn't believe her and, by the time trial came around, Dockery was the state's star witness.

What happened - which we know only thanks to the fortuitous release of a usually secret grand jury transcript - is that Dockery was beaten down emotionally to the point where she did what most people who give false confessions do: she told her inquisitors what they wanted to hear.

Naturally, they suggested she was lying, asking the prosecutor about the penalty for perjury, before going on:

'I'm just trying to answer all your questions to the best of my ability,' Dockery says.

A bit later, a female juror asks pointedly: 'What are you protecting him from?'

'I'm not protecting him from anything. No ma'am. I wouldn't dare do that,' Dockery eventually responds. As [prosecutor] Rizzo and the grand jurors parse Dockery's every word and challenge each statement, she complains they're confusing her.

'No, we're not confusing you,' a grand juror says. 'We just want to find out the truth.'

But things get really nasty when the grand jurors raise the spectre of Dockery's children being taken away if she doesn't tell the "truth" they seek:

When the grand jury returns, the foreman says the members are not convinced by Dockery's story and 'wanted to express our concern' for her children if she doesn't come clean.

'That's why we're really pulling this testimony,' the foreman tells her.

The foreman adds that if the evidence shows she's perjuring herself 'then you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time.'

That was the crack in the wall, which the grand jurors then exploited with the flair of a seasoned attorney locked in cross examination of a hostile witness, with admonishments to "[t]hink about your kids, darling," and that "what we're concerned about here, is your kids."  Eventually, not only did Dockery recant Brown's alibi, she admitted making a call to another one of the suspects.  One grand juror even said she thought Dockery was in on the murder itself.

As a reward for her truthiness, Dockery was charged with perjury, anyway.  She was kept in jail for 120 days, released only when she agreed to give more evidence against Brown (she even had to check in with a detective every week).  Once she testified and Brown was convicted and sent to death row, Dockery's perjury charge evaporated and she went on with her life.

What makes this situation particularly repugnant, is, as Balko explains, grand juries aren't supposed to work this way:

Grand juries are supposed to protect us from false allegations, but the old saying that prosecutors could get a grand jury to 'indict a ham sandwich' reflects the reality that most fail on that front. Instead, as this study from the Cato Institute explains, they’re often used to harass and intimidate.

Keep in mind that the traditional rules of evidence don't apply in grand juries and witnesses don't have a right to have counsel with them while testifying.  In addition, it's an entirely one-sided affair, as there is no opposing counsel to try and keep things in line.  There's not even a judge - the prosecutor runs the show.

By the way, remember that phone call that Dockery said Brown made from her house originally?  Balko again (with my emphasis):

seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective. Brown is still waiting to learn if he’ll get a new trial.

It's perhaps not surprising that grand jurors, regular citizens who get pulled into doing this kind of duty, start acting like cops or prosecutors in pursuit of convictions over all else.  After all, if the cops don't have play by the rules, why should they?

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.

Another Day, Another Corrupt Crime Lab

If you live in West Virginia and care about criminal justice issues, the name Fred Zain should make you cringe.  Zain was a serologist in the West Virginia State Police crime lab between 1977 and 1989 (after which he took his talents to Texas).  Zain made a habit of falsifying evidence leading to wrongful convictions.  You can read the details of his conduct in this 1993 West Virginia Supreme Court decision, which concluded:

The matters brought before this Court by Judge Holliday 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. We direct Prosecutor Forbes to pursue any violation of criminal law committed by Trooper Zain and urge that he consult with the United States District Attorney for the Southern District of West Virginia. We direct our Clerk to send all relevant papers to both of them. This conduct should not go unpunished.

Zain died before he was held criminally responsible for any of his misdeeds.

Almost more important than his individual culpability, though, was this observation:

This corruption of our legal system would not have occurred had there been adequate controls and procedures in the Serology Division. Judge Holliday's report is replete with the deficiencies and derelictions that existed and as were uncovered by the American Society of Crime Laboratory Directors whose team reviewed the forensic data.

That was two decades ago.  Which is just to say that, in West Virginia at least, we should not be surprised by malfeasance in crime labs.  Yet it continues to happen.

The latest notorious crime lab scandal comes from Massachusetts, where chemist Annie Dookhan was convicted of doing false testing in numerous drug cases, leaving a complete mess in her wake:

When the scandal broke in August 2012, those incarcerated based on evidence Dookhan had tested did have a day in court. Many were identified immediately, and had their sentences stayed. More than 3,200 'drug lab' court hearings have been held.

In spite of that, things are moving slowly, if at all, when it comes to remedying the situation.  Explains the state ACLU's legal director (and former fellow Fourth Circuit public defender) Matt Segal:

'The state has already spent hundreds of millions of dollars on this scandal, and what have we gotten for that expenditure? The answer is almost nothing,' Segal says. 'Certainly hasn't been justice; it hasn't been a better approach on the drug war.'

Among the things Dookhan lied about were her credentials, for which, at any rate, there are no national standards.  Standards may not matter much, anyway, as most of the labs involved in some kind of scandal are accredited by a national organization. For what it's worth, West Virginia officials were told in 1985 that Zain had failed courses in sreology and blood testing, but nothing came of it.

A major problem is that crime labs are - like police and prosecutors - part of the State that prosecutes defendants (although, it appears, that Dookhan's lab wasn't part of the state police, at least).  They're on the same side of the ledger, not a truly neutral arbiter of scientific fact.  By contrast, public defenders (federal ones, anyway) are employees of the court system itself, a branch apart from the prosecution.  Any pressure that a scientist feels to return the "right" answers as opposed to the accurate one has dire consequences in court.

And lest anyone think "well, they're just criminals, they must have been guilty of something," keep in mind that you, dear taxpayer, pay the final bill:

Besides the expense of investigating and prosecuting Zain, and retrying cases related to him, West Virginia has paid at least $6.5 million to settle lawsuits by wrongfully convicted defendants.

* * * 

His work in Texas also was under fire and led to the payment of at least $850,000 to two men.

Crime lab reform needs to happen because it's wrong to lock people in a cage based on bullshit and made up results.  But if, as is so often the case, the only motivation for change is to save money down the road, I'm all right with that.

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.

Will Work for Beer

I am so totally not making this up.

Not to be outdone by the Swedes closing prisons left and right, the Dutch have discovered another frontier of substance abuse treatment.

Amsterdam has a problem with litter. It also has a problem with alcoholics. The solution? Smush 'em together like a penalogical Reese cup:

Fred Schiphorst finally landed a job last year and is determined to keep it. He gets up at 5:30 a.m., walks his dog and then puts on a red tie, ready to clean litter from the streets of eastern Amsterdam. 

* * *

His workday begins unfailingly at 9 a.m. — with two cans of beer, a down payment on a salary paid mostly in alcohol. He gets two more cans at lunch and then another can or, if all goes smoothly, two to round off a productive day.

But, as the Dutch equivalent of Ron Popeil might say, that's not all. Schiphorst and others similarly employed also get lunch, some tobacco, and 10 euros a day (about $14 according to today's exchange rate). It's an attractive offer, as the program has a lengthy waiting list.

Nor is it as crazy as it sounds:

The basic idea is to extend to alcoholics an approach first developed to help heroin addicts, who have for years been provided with free methadone, a less dangerous substitute, in a controlled environment that provides access to health workers and counselors.

'If you just say, ‘Stop drinking and we will help you,’ it doesn’t work,' said Mr. Wijnands, whose foundation gets 80 percent of its financing from the state and runs four drug consumption rooms with free needles for hardened addicts. 'But if you say, ‘I will give you work for a few cans of beer during the day,’ they like it.'

And it appears to be working, giving the folks involved an alternative to "just sitting in the park and drinking themselves to death." The guys doing the cleaning are positive about it, as are the local residents who had to deal with the aforementioned park drinkers. Prior police-oriented crackdowns did nothing other than move the alcoholics around and lead to fights with cops.

At bottom, this appears to be a good example of how to deal with substance abuse issues. It views these folks as human beings in need of assistance, not as rogues flaunting the law. This is a public health issue, not a criminal one.

Finally, credit where credit is due, the idea did not originate in the home of Amstel and Heineken. That honor goes to our friends up north, where the Molson and Moosehead roam.

Score One For Sweden

Ah, Sweden.  'tis a wonderful place, with a deep well of excellent prog bands, from the bucolic symphonic splendor of The Flower Kings to the brutal RIO of Gosta Berling's Saga. It is a place where, so the song says, "the coulds are nice," where "the weather's realy pleasin' and they have good rice."  Then, of course, there are Volvos.

Now they've got another thing to add to the "pro" column, at a time when most other countires, and certainly ours, can't hope to match them - they're closing prisons (via):

Sweden has experienced such a sharp fall in the number of prison admissions in the past two years that it has decided to close down four prisons and a remand centre.

'We have seen an out-of-the-ordinary decline in the number of inmates,' said Nils Öberg, the head of Sweden's prison and probation services. 'Now we have the opportunity to close down a part of our infrastructure that we don't need at this point of time.'

Before you say, "well of course they're going to shut down prisons when the crime rate drops," keep in mind that the crime rate in the United States - particular the violent crime rate (you know, where there are actual victims) - has been going down for decades.  

In spite of that (although some will argue because of that), we put more people in prison than any other place on Earth:

The US has a prison population of 2,239,751, equivalent to 716 people per 100,000. 

China ranks second with 1,640,000 people behind bars, or 121 people per 100,000, while Russia's inmates are 681,600, amounting to 475 individuals per 100,000.

The Swedes, by contrast, lock up only about 76 of every 100,000 people, good for either 112th or 180th in the world, depending on who's counting.

To what do the Swedes attribute this sudden surplus of prisons?  Part of it stems from a recent court decision that limited drug sentences, but part of it is also a reflection of:

Sweden's liberal prison approach, with its strong focus on rehabilitating prisoners.

In fact, in the editorial announcing the numbers Öberg argued:

Sweden needed to work even harder on rehabilitating prisoners, doing more to help them once they had returned to society.

Can you imagine something similar happening in this country?  Think about how those prison closures would quickly become economic issues.  After all, so many poor rural communities are tying their futures to the booming prison business, who's to say that closing prisons wouldn't wind up like trying to get rid of weapons systems the Pentagon doesn't want because of the pork associated with their production?  At best, we'd wind up with a bunch of uselessly open empty prisons.  At worst, the powers that be would find new and devious ways to keep them full.

So, congrats, Sweden on your sudden excess of punitive real estate.  Please don't sell them off to any Americans, OK?  It's hard enough to keep my clients close to home as is.

Quick Hits

As usual, when I disappear for a few weeks, things start to pile up. Here’s a few interesting things that passed through my field of vision in the recent past.

Good News on Private Prisons?

I’ve written before about the evil of privatizing prisons, replacing one of the state’s core functions (under anybody’s idea of how big the “state” should be) with businesspeople in pursuit of a healthier bottom line. Shockingly, it turns out that when the bottom line is in play, things at the prison actually go to shit. It’s gotten so bad that several states have backed out of their contracts (via).

Admittedly, it’s hard to ignore stuff like this:

Idaho cut ties with the corporation on Wednesday, which turned the state’s largest prison into a violent hellhole inmates called ‘Gladiator School.’ Earlier this year, CCA was caught understaffing the prison and using prison gangs to control the population. The company admitted to falsifying nearly 4,800 hours of staffing records to squeeze more money out of the state for nonexistent security work. Shift logs at the prison showed the same security guards working for 2 to 3 days at a time without breaks.

Similar conditions popped up in Mississippi and Texas (in two different facilities). My cynical side thinks that the only way the private prison movement gets turned back is when it turns out they actually cost more than doing it the old fashioned way. Maybe I’m wrong. I’d like to be.

Your Militarized Police Force

Radley Balko has written for years about abusive police tactics and the Fourth Amendment, first over at Reason and more recently at Huffington Post. In the current issue of the ABA Journal he provides an overview of the rise of militarism in American police forces and how it manifests itself every day. He writes:

Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.

* * *

But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops—despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.

Read the whole thing, and don’t forget the various statistical tables and what not spread throughout. The explosion in the number of SWAT teams (and their deployment) over the past few decades is staggering. Balko makes a pretty good argument that the growth is driven by money, particularly a federal grant program with the name Byrne attached to it (unfortunately).

Oh, and they shoot dogs too. Lots of ‘em.

Judicial Idiocy, With a Prosecutorial Assist

Courtroom misbehavior has to really be of the prime variety to surprise me anymore these days, but this situation certainly meets that high standard.

Let’s set the scene – a courtroom in Texas, where a criminal trial is underway. A prosecutor in the gallery (not the one actually trying the case) gets a text, suggesting a line of questioning for the prosecutor to pursue. She scribbled the text “word for word” and has her investigator run the not up to the prosecutor. Now, guess who sent the text?

The trial judge.

That’s right. The judge presiding in a criminal case gave advice to the prosecution appearing before her in that case! Even worse – or at least equally bad – is that the other prosecutor, used as a conduit for the message, didn’t think twice about passing it on. The only positive note is that the investigator reported the judge, probably at the risk of losing his own job.

But the absolute icing on the cake of idiocy? That conduit prosecutor who passed on the note? She’s a judge now, too. Of course she is!

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.

Justice Is Bigger Than Vengeance

I once had a conversation with a friend of mine about the death penalty. We were both generally on the same side of the issue – that is, we were both against it – but she admitted it was difficult for her to imagine not wanting someone who killed one of her loved ones to suffer and pay the ultimate price. I argued that was why we don’t let crime victims set policy. Vengeance is a legitimate emotion, but it’s not a sound basis upon which to setup a criminal justice system that handles thousands of cases a year. She conceded that I had a valid point.

Thane Rosenbaum, a law prof (and novelist) at Fordham, disagrees. In fact, in an article last month for The Chronicle of Higher Education, he argued that not only should vengeance have a seat in the criminal policy bus, it should get to drive. Maybe he’s onto something, since he apparently has the magical ability to read the minds of others:

But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. . . . No matter what they say, victims aren’t choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge.

I’m always wary of someone who claims that something “always” anything and has the gall to tell others what they’re actually thinking (which is double odd since he’s setting himself up as their advocate). What does Rosenbaum say to families of murder victims who actively argue against the death penalty, even in cases involving their loved ones? Are they deluded? And if they are, doesn’t that argue for keeping victims at a greater distance from the criminal justice process?

On the basis of his sweeping generalization, Rosenbaum argues that “there is no justice unless victims feel avenged.” The problem is that Rosenbaum views vengeance as some physical thing that can be objectively measured and, therefore, we can easily determine when such avenging has been accomplished. He analogizes it to business transactions, but those do involve easily identifiable debts and repayments (more troublingly, he also analogizes to “ledgers we keep with . . . intimate partners to be balanced,” which is just sad).

Life, in Rosenbaum’s eyes, is like a movie in which revenge is not only an acceptable goal, but a laudable one:

We watch revenge films without embarrassment because on some primal level we know that just deserts are required in the moral universe, that those who commit crimes must be punished according to their blameworthiness, and that wrongs must ultimately be righted. It’s not our lust for violence that explains why we applaud payback, but our absolute need to live in a world that promotes fairness, law and order, and social peace.

Yes, because the revenge films of which he speaks, such as Braveheart and Gladiator, are held up as shining examples of the complexity of human relations. Except, of course they aren’t. We like revenge flicks because they present an easily identified wrong, committed by an obvious bad guy, who eventually gets his due. They’re a parody of real life, not accurate reflections.

That simplistic, black/white view of the universe, comes through even more clearly in a comment Rosenbaum made on NPR while discussing this issue:

We run away from this idea that the death penalty is something that we should abhor. But remember, when someone takes an eye, or in this case a life, they’ve made a decision to take a life. And there’s - one wonders why there’s - that there should be a discount on what payback should look like.

It’s certainly a simpler way to look at punishment to say, “you take a life, your forfeit your life,” but to do so would reject centuries of Western law that actually gives a shit about a defendant’s state of mind when he acts. Consider the following scenarios:

• Killer shoots Victim in the head as part of a contract killing
• Killer shoots Victim in the head in the heat of passion after finding Victim in bed with Killer’s wife
• Killer shoots Victim in the head by accident, perhaps while “practicing” Wild West tactics
• Killer shoots Victim in the head because he correctly thinks that Victim has a weapon and is going to kill him
• Killer shoots Victim in the head because he incorrectly thinks that Victim has a weapon and is going to kill him
• Killer runs over Victim with his car, while driving drunk
• Killer runs over Victim with his car, while completely sober
• Killer runs over Victim with his car, while swerving trying to avoid a small child running out into the road

I could go on all day. Most of us would think the proper punishment would have some relation to the culpability of the Killer and would vary from case to case. However, by Rosenbaum’s calculus, the punishment for the Killer in all those scenarios is the same – off with his head – presumably even in the true self-defense situation. After all, there’s a dead Victim and an identified Killer. The only way out of that is to somehow argue that a justified killing doesn’t lead to proper demands for vengeance, but I expect Rosenbaum will find plenty of loved ones of people killed in “self-defense” who think it was anything but.

Rosenbaum’s entire argument revolves around this idea of vengeance as something that can be located with mathematical certainty. For example, he complains about the impact of plea bargaining:

So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.

I’m not sure this shows what Rosenbaum thinks it does, however. Firstly, that 95% figure covers all offenses, a large proportion of which have no victim at all. In fact, in my practice the case with an actual victim is vanishingly rare. So what percentage of cases with victims plead out? Secondly, why were those cases resolved by plea agreement? Were the original charges overly harsh given the evidence? Was it a matter of securing a conviction to a lesser offense or letting a guilty defendant walk free after an unsuccessful trial? Or does Rosenbaum think we just do away with the actual guilt phase of proceedings and focus entirely on what the victims want? Once again, a victim may want the perpetrator excessively punished, regardless of what evidence that prosecution could actually muster in court.

Rosenbaum’s attempt to drag us into some international consensus on this issue isn’t persuasive, either:

Other nations around the world allow for revenge—whether in the form of individual relief or under color of law.

Except that most western nations, the ones we think of our peers in the whole Enlightenment experiment, have almost completely rejected his easiest sale for vengeance, the death penalty. So if, in fact, lots of other nations don’t allow for revenge, which ones do?

And other nations, including Cambodia and Iran, better incorporate vengeance within their legal systems. (Iran’s and Cambodia’s human-rights records are a different matter entirely.)

Ah, all right, I see. Let us not look to European models, which protect a shared interest in human rights, but instead to nations with troubling human rights records, as if the two are not related.

In the end, Rosenbaum’s argument is like vengeance itself – unpredictable and hard to grasp fully. He writes repeatedly about the system’s failure to include victims more fully in the process, but doesn’t offer any ideas as to how they should be better integrated. Hell, he may be right – as I said, so few of the cases I deal with have victims in the first place. But giving ourselves over to base vengeance, and upending our entire criminal justice system in the process, doesn’t seem the right way to go about it.

Vengeance is a personal thing. What sates the desire for revenge in one person won’t do it in another, even when the wrongs committed against them were the same. Justice, by contrast, is a societal value, one that is important not because it gratifies particular individuals but because it keeps society functioning in the best possible way. We shouldn’t forget about vengeance when we think of justice, but neither should we let it be the prime mover.

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.

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.

Time Is Money (and So Much More)

One of the crueler ironies of the current criminal justice system is the disparate way it treats people being released from prison.

If you’re guilty and coming to the end of a full sentence, the system is designed to help ease your transition back into the real world. There’s counseling, an emphasis on making plans for life outside of prison, and a (overburdened and underfunded) support system waiting upon release to make sure a person doesn’t fall back into bad habits. At least it’s supposed to work that way.

Not so if you’re actually innocent of whatever sent you to prison in the first place. The wrongfully convicted, who can lose years of their lives in a cage waiting for the justice system to get things right, aren’t necessarily given much help at all.

Consider what happened to Robert Dewey, who was locked up by the state of Colorado for a murder he didn’t commit. Nearly 18 years later, DNA not only cleared Dewey but linked the murder to someone else:

After years of work by his court-appointed lawyer, Danyel Joffe, the Innocence Project came on board in 2007 and paid for tests that showed no DNA links between Mr. Dewey and the crime scene. His conviction was reversed, and he was released last April. He left with an apology and a handshake from prosecutors in Mesa County, he said, but little else.

Colorado, like nearly half the states, doesn’t have any scheme for compensating people who have been wrongly imprisoned, although legislation providing for $70,000 per year in prison is working its way through the state legislature.

Dewey’s case is a particularly good example of this problem because DNA exonerations tend to take place in cases, like murders and rapes, where defendants are sentenced to lengthy terms, including life, which makes any attempt at rehabilitation unlikely:

Because Mr. Dewey had been sentenced to life, he said, he never touched a computer or took any vocational classes while he was in prison. He came out awe-struck by a world that had gone online and turned digital. The first time he walked into a Walmart, he said, he was so overwhelmed by its colors and scale that he had to run outside to smoke a cigarette.

I have to admit, I’m regularly overwhelmed at Walmart, but not because of the colors.

Dewey’s case is also a good example of the poor medical care that inmates sometimes receive while in prison. He’s currently unable to work because of a back injury that was aggravated while in prison. All in all, this seems like a correct assessment:

’God bless him, but the system has created him the way he is,’ said Stephen Laiche, one of Mr. Dewey’s lawyers in his 1996 trial. Mr. Laiche is now working to seal Mr. Dewey’s records from the murder case. ‘Are we surprised that he can’t get a job? Because we wrongfully convicted him, he couldn’t work for 20 years.’

Society owes a duty to anyone it locks in a cage to try and help them move back into the outside world. Not out of any kind of bleeding heart charity, but just because it’s better for them and us if they become productive, law-abiding citizens. That duty is doubly critical to those whom we had no reason to lock away in the first place. Seventy grand, or an even larger amount, isn’t much for a years of a man’s life disappeared, but it’s the least we can do.

Throwing the Wrench Well Away from the Machinery of Death

It's not many stories I blog about for three years running, but since this one appears to be at an end, I figured I might as well wrap things up.

You may remember, back in 2011, when I wrote about the odd case of Jason Pleau, who is serving a sentence on a Rhode Island state charge that's set to expire in 2028. The federal government would like to prosecute Pleau as well, but with on charges that could bring the death penalty. The state of Rhode Island does not have the death penalty, but that wouldn't stop the federal government from securing a death verdict themselves.

As a result, the feds submitted a routine request under the Interstate Agreement on Detainers Act for Rhode Island to hand over Pleau so he could be prosecuted in federal court. Rhode Island's governor, Lincoln Chafee, mucked things up a bit by using a rarely (if ever) used clause of the Act to deny the request because the potential federal penalty (death) was harsher than any called for by state law.

The feds ran to a federal court get a writ of habeas corpus ad prosequendum, which is another means to get someone in state custody into federal court. Litigation ensued about whether the feds could resort to such a backdoor method (over which the Rhode Island authorities had little control).

To the surprise of several (myself included), the First Circuit initially sided with Chafee, but in a later en banc proceeding held for the feds and ordered Pleau turned over. Chafee took the case to the Supreme Court, which yesterday denied his request to review the case (without comment or dissent, apparently).

So, in the end, the feds get their man. But will they get their death sentence? It will be interesting to see if they pursue it after all this effort and, if the do, whether a Rhode Island jury will give it to them. We'll see, I guess. It's up to the jurors of Rhode Island to have the final say.

Innocent Confessions, Japanese Version

Regular readers should know by now that anyone who says “an innocent person would never confess to a crime they didn’t commit” is either ignorant or willfully blind. Research, not to mention numerous exonerations, show that it’s not unheard of for someone in the American criminal justice system to confess to a crime they didn’t commit (here is another recent, local, example). Doesn’t mean every confession is false, but it does mean they can’t simply be taken at face value.

It’s a problem, but at least we can take comfort in knowing it’s not a part of that American exceptionalism we hear about so often. As this BBC report shows, the problem of coerced false confessions is bubbling to the surface in Japan, spurred by an audacious (and unethical) stunt.

It started with threats made on the Internet against various high profile people. The police then sprang into action:

After a police investigation, four people were arrested. Two, including a 19-year-old student, confessed while in custody.

But on 9 October, the real perpetrator sent an email to a lawyer - Yoji Ochiai - and local media, explaining how he or she made those threats by taking control of innocent internet users' computers with a virus.

His or her purpose, as stated in the email to Ochiai, was ‘to expose the police and prosecutors' abomination’.

And in a way, it did.

Ochiai was surprised – not at the false confessions, but by the email itself. As the case of Shoji Sakura, who spent nearly 30 years in prison for a murder he didn’t commit shows, the techniques used to produce his false confession sound familiar to American ears:

When arrested, aged just 20, he was treated like a guilty criminal, he says.

‘They interrogated me day and night, telling me to confess. After five days, I had no mental strength left so I gave up and confessed.’

‘It may be difficult for people to understand, but being denounced repeatedly - it is harder than you think,’ he adds.

But, of course, Japan is not the United States, either in its criminal procedure or its underlying culture. For example, police interrogations take place without being recorded and the person being questioned doesn’t get to have an attorney with them. More than that, however, is this fascinating overlay from a sidebar to the BBC piece, an excerpt from People Who Eat Darkness by Richard Lloyd Parry:

Japanese courts attach great importance to motive. The reasoning and impulses which led to a crime must be proved in a court; they are a crucial factor in determining a convicted criminal's sentence. The who, what, where and when are not enough: a Japanese judge demands to know why. A detective, then, is obliged to get inside his subject's skull - if he fails to do that, he is not considered to have done his job. In reality the only way to do this is by obtaining a confession.

By contrast, motive plays a very small role in American substantive law, so that desire to answer the “why?” question doesn’t have as much force.*

Then there are different cultural considerations that might lead to a false confession in Japan:

Japanese society’s emphasis on shame and consideration towards their family also plays a role.

Sakurai says he was told that his mother suggested he confessed - he doubts this but cannot ask her as she had passed away before he was freed.

The father of the 19-year-old student who confessed to June's cyber threat said in a statement to the media that consideration to the family was what motivated his son to ‘misrepresent the fact and confess’.

For all that’s different, there’s something depressingly familiar as well - the pressure on cops and prosecutors to get a confession (and the resulting conviction), even if it’s complete fiction. One former prosecutor, who was fired after threatening to kill a suspect, explained:

Another thing he regrets - aside from making the death threat - is writing up a confession statement which did not correspond with the truth.

‘After I grilled the suspect for eight hours, I got him to sign this statement even though he didn’t say a single word of it,’ he says.

‘My boss was pressuring me to get his confession so I thought I couldn't go home without it.’

For Ichikawa, it didn't matter if it was true or false as long as he had the confession.

Is Ichikawa an outlier, either in Japan or the United States? Certainly. But imagine how much damage an outlier like that can do to the lives of people whose only crime is being roped into the investigation of a crime they had nothing to do with. When a skilled interrogator pushes as hard as he can, it can lead to horrible results:

Regardless of geography, the criminal justice system, and society in general, needs to recognize the reality of false confessions and do more to prevent them.

* Don’t confuse “motive” with various mental states related to intent or lack thereof. A man who kills his wife intentionally and with malice is guilty of murder, but only manslaughter if he kills in the heat of passion. It makes no difference if the motive for the killing – the wife was sleeping around – is the same.

The Vestiges Remain (Redux)

Do you ever have one of those situations where you hear a word for the first time and then, all of a sudden, it seems like it pops up all over the place? It’s kind of like déjà vu, but not quite. I’m getting that a lot lately, not with a word but with history, specifically of the kind I’ve already talked about twice in discussing Slavery by Another Name, the 2009 Pulitzer Prize winner by Douglas Blackmon.

Last week I discussed an Alabama statute that gives an incentive to sheriffs to barely feed those in their custody by allowing them to pocket any funds left over. The profit motive of local law enforcement was a key part in Slavery by Another Name.

Today finds us back in Alabama, dealing with an even more central theme from Slavery by Another Name, the saddling of poor defendants with fines and other fees they have no hope of paying, leading to their imprisonment. But now there’s a modern twist to the whole situation – the collection of these fees and the incarceration of those who can’t pay them has been farmed out to private industry:

‘With so many towns economically strapped, there is growing pressure on the courts to bring in money rather than mete out justice,’ said Lisa W. Borden, a partner in Baker, Donelson, Bearman, Caldwell & Berkowitz, a large law firm in Birmingham, Ala., who has spent a great deal of time on the issue. ‘The companies they hire are aggressive. Those arrested are not told about the right to counsel or asked whether they are indigent or offered an alternative to fines and jail. There are real constitutional issues at stake.’

There are several problems with this kind of approach, two of which the article touches on.

The first is a theme I’ve gone back to again and again when I write about this kind of thing. Namely, that for-profit private enterprise has no legitimate role to play in one of the fundamental roles of government, locking people up. As one attorney explains:

‘These companies are bill collectors, but they are given the authority to say to someone that if he doesn’t pay, he is going to jail,’ said John B. Long, a lawyer in Augusta, Ga., who is taking the issue to a federal appeals court this fall. ‘There are things like garbage collection where private companies are O.K. No one’s liberty is affected. The closer you get to locking someone up, the closer you get to a constitutional issue.’

But even if that doesn’t sway you, consider the fact that putting people in prison, particularly for minor shit like traffic violations, produces negative practical results:

In a 2010 study, the Brennan Center for Justice at the New York University School of Law examined the fee structure in the 15 states — including California, Florida and Texas — with the largest prison populations. It asserted: ‘Many states are imposing new and often onerous ‘user fees’ on individuals with criminal convictions. Yet far from being easy money, these fees impose severe — and often hidden — costs on communities, taxpayers and indigent people convicted of crimes. They create new paths to prison for those unable to pay their debts and make it harder to find employment and housing as well as to meet child support obligations.’

Nobody thinks that sending someone to prison is likely to make them a better human being, given the nature of the modern prison system. So why would anyone think that throwing minor law breakers in the klink for not paying mushrooming fees they have no hope of paying is going to work out in the end?

One of the interesting things about the history of Eastern State Penitentiary I visited a couple weeks ago is how sadly familiar political concerns scuttled the original plan for the prison. It’s design had to be changed before it was even complete to hold twice as many inmates as intended. Overcrowding destroyed the one-man-to-a-cell plan.

The same is true today. We want a criminal justice system that works, but we don’t want to pay for it. So the system is overburdened with people and leads to things like this. At some point, we need to learn to think in more long term fashion, because the short term solutions never seem to pan out.

Phun, Phun, Phun

A couple of weeks back, K (the girlfriend) and I headed off to Philadelphia for a few days (sans critters this time). The motivation for Philly was Marillion returning to the United States on tour for the first time since 2004. It was the third time I’ve seen them, each time a little further from home. At this rate, I’ll wind up in Bangor, Maine, just to go to a concert.

I should mention that K is not a particular fan of prog in general or Marillion specifically. But she is a very patient, loving girlfriend and didn’t blink at the thought of going to the concert with me. The long weekend and short vacation didn’t hurt, of course. She also took a lot of the pictures.* Thanks, honey!

As is typical when we breeze into town for a few days, we stayed downtown (for the most part), on Penn Square.

The night view right outside the hotel, looking up at the Ben Franklin statute on top of city hall, was really cool, but I couldn’t get a good picture.

First day we spent on foot, basically wandering around the neighborhood. The Reading Terminal Market, a huge collection of ethnic food places, was just down the block. It took more than an hour just to work through it, much less decide where to have lunch. We settled on a Cajun place serving gator sausage gumbo. Good stuff!

We also wandered through Chinatown, in which K bought strange, odd, spiky fruit. Yes, we are that kind of tourist.

That night, we dined high style at Morimoto, restaurant of perennial Iron Chef champ Masaharu.

It lives up to the hype. I had the world’s best ramen soup and a kobe beef rice bowl, while K worked through an 8-course tasting menu. Aside from one of the “pallet cleanser” courses (some kind of strawberry and vinegar soda), it was all excellent. So I was told. The restaurant itself has a cool vibe, with subdued neon lights of shifting colors underneath every table. Very conducive to conversation.

We went to Philly a few years ago and managed to avoid one of its more famous attractions – the Philadelphia Museum of Art. It’s a fabulous old building with lots of neat stuff, most of which is arranged in period appropriate rooms. In fact, some of the Asian artifacts are housed in rooms transported from Japan and China. And, of course, that’s where Rocky is.

I wanted to try and check out the relocated Barnes Foundation collection, but it apparently takes an act of Congress to get in. It was outside of the Museum of Art, waiting on a cab, that I spied this abomination.

I hope all the money they’ve made on SUV’s keep Porsche warm at night, since they sold their soul to get there.

That night, it was concert time! The venue, the Theater of the Living Arts, is on South Street, just down the street from Jim’s, one of Philly’s premier cheesesteak venues. So we planned to hit Jims for a bite, then head to the show.

When we arrived, the line at Jim’s was out the door and around the corner. And so we stood. This would be a recurring theme for the evening. To be fair, Jim’s has a system and it works pretty quickly, all things considered. As for the sandwich? To be honest, I wasn’t overly impressed. It was good, don’t get me wrong, but not the revelation I expected.

The TLA is on the next block down from Jim’s, but there wasn’t anybody hanging around outside before the doors opened. Seemed odd, but then we found out why – they line formed down the block and around the corner (in front of another cheese steak place – they’re everywhere!). And so, with an hour before the doors opened, we were faced with this:

K was not particularly enthused about doing more line standing.

Neither was I, to be honest. The venue itself was mostly standing room only (the few seats in the balcony were reserved for VIPs), which meant we were going to spend the rest of the night on our feet. After about an hour, we were let out of the alley and into the venue. We quickly staked our ground at a post near the back of the main room, next to the sound guy’s station.

The TLA is an old movie theater, so the floor slopes down toward the stage, providing some vantage point from the back of the room. It was a good view, for me at least. K did her best to snap a few pictures (sans flash, due to TLA policy), though the conditions made it difficult. Some ended up interestingly abstract, tho'.

This one came out a bit better, H with his MIDI cricket bat. What? It's a cricket bat with MIDI technology for triggering samples and such. Doesn't everybody have one?

Technical problems were the theme of the night. One of H’s mics stopped working, Mark’s keyboards dropped out at the end of one track, and the aforementioned MIDI bat tanked. So no sax samples for “This Strange Engine.” But those roadblocks were easily overcome. The crowd was into it, the band was excellent, and the vibe was just what I’ve come to expect from a Marillion concert – the closest I ever get to a religious experience. I guess I’ll be due for another one in a decade or so.

There’s another Philly tourist attraction in the neighborhood up near the Museum of Art that K and I managed to miss last time we were there. This time, since we were uprooting from downtown a day early and had a car, I was compelled to check it out.

When most folks think of prisons today, the word “penitentiary” is synonymous. It was not always the case. The idea that a prison could be more than just a temporary warehouse for serious criminals (who were most likely to be executed, exiled, or heavily fined) started circulating in the late 18th-century. The first place it was tried was in Philly, at the Eastern State Penitentiary, opened in 1829. It is, truly, what one thinks of when “prison” pops into your head.

It was called a penitentiary because the core of its approach was to force prisoners to be penitent, or humble and regretful, about their sins . . . er, crimes, rather. To accomplish that task, prisoners were kept in isolation from one another at were required to remain silent at all times.

In the ceiling of each cell was a skylight. It was more than a simple way to get light into the cell. It was supposed to be a reminder of the omnipresent eye of God looking down upon them.

The system employed at Eastern State didn’t catch on in the United States very much (a similar system that emphasized work over penitence won out in Gilded Age America), but it was popular overseas. That being said, the general look and vibe of the place is similar to a lot of American prisons built not too long after, including the old West Virginia Penitentiary at Moundsville.

Eastern State was really a marvel of its age, architecturally speaking. It had a system of steam heat and running water (sort of – guards flushed the toilets twice a week, IIRC) long before most of the young United States did. The design itself, with its central control hub and cellblocks spiraling out from there. It allowed for maximum visibility with the fewest number of watchers. Thus, you get views like this.

At the time, it was a noble experiment. Looking back with hindsight and an increasing understanding of how solitary confinement turns people bugfuck crazy, to call it cruel would be an understatement. Thankfully, or maybe not, politics overwhelmed the experiment, as more and more people were sent to Eastern State (the cell block above is an example of one of the later two-tiered ones, built to house more people). It was closed in 1971.

After its closure, Eastern State sat a good long while as folks tried to figure out what do with it. Various plans came and went (including one for redevelopment as high-end condos, built behind the massive outer walls), but nothing materialized. As a result, by the time it became the tourist attraction it is today in 1994, a good bit of it had fallen into ruin. Most of it is maintained that way, and thus you have things like this:

That’s a tree growing down into one of the cells. As a result of the ruin, the place is plenty creepy. No surprise, then, that it’s often used as a set for films (including Terry Gilliam’s 12 Monkeys), TV, and photo shoots.

As I said, we hit Eastern State on our way out of downtown Philly. We relocated because, in a completely happy coincidence, not only was there a Philadelphia Union game the night after the concert, but it was against DC United. I may never turn K into a prog fan, but she’s become quite a fan of the beautiful game.

My prior soccer experiences have all been at DC’s home stadium, RFK, which was built for the Redskins and (olde school) Nationals decades ago. To say it has “charm” is to oversell it a bit. It’s way too big for the average MLS game, but it does lend something to the atmosphere when Barra Brava and the Screaming Eagles can make the stands shake with their drumming.

By contrast, the Union play in a fairly new soccer specific stadium in the Philly burb of Chester, right near New Jersey and Delaware (our hotel was actually in Delaware that night), PPL Park. It sits right on the river, next to a big ass bridge that (thanks to Mapquest) would have spirited us away into Jersey. It’s a much smaller, more comfortable, and enjoyable place to experience a game than RFK.

It also made for some interesting moments during the match. I decided not to buy tickets in the designated “away supporters section,” because I rightly thought it would be full with drum pounding, chanting DC fans and figured we wouldn’t want to spend another night on our feet. As a result, we were in the middle of a section full of Philly fans, many flying the Union colors (I strategically wore my US national team jersey, not a DC one). We blended pretty well, except the grin on my face as the Union impotently tried to score again and again played out over 90 minutes.

As it happened, DC snatched a late goal to win the match. I celebrated quietly to myself.

With that, our jaunt to Philly was over. We ate well, heard some great music, and watch DC United snatch victory from the jaws of defeat. Can’t ask much more than that.

* For more pix and bigger versions, see here.