The following opinion was originally published in The New Yorker on January 30, 2012.
A Critic at Large
The Caging of America
Why do we lock up so many people?
by Adam Gopnik January 30, 2012
A prison is a trap for catching time. Good reporting appears often about the inner life of the American prison, but the catch is that American prison life is mostly undramatic—the reported stories fail to grab us, because, for the most part, nothing happens. One day in the life of Ivan Denisovich is all you need to know about Ivan Denisovich, because the idea that anyone could live for a minute in such circumstances seems impossible; one day in the life of an American prison means much less, because the force of it is that one day typically stretches out for decades. It isn’t the horror of the time at hand but the unimaginable sameness of the time ahead that makes prisons unendurable for their inmates. The inmates on death row in Texas are called men in “timeless time,” because they alone aren’t serving time: they aren’t waiting out five years or a decade or a lifetime. The basic reality of American prisons is not that of the lock and key but that of the lock and clock.
That’s why no one who has been inside a prison, if only for a day, can ever forget the feeling. Time stops. A note of attenuated panic, of watchful paranoia—anxiety and boredom and fear mixed into a kind of enveloping fog, covering the guards as much as the guarded. “Sometimes I think this whole world is one big prison yard, / Some of us are prisoners, some of us are guards,” Dylan sings, and while it isn’t strictly true—just ask the prisoners—it contains a truth: the guards are doing time, too. As a smart man once wrote after being locked up, the thing about jail is that there are bars on the windows and they won’t let you out. This simple truth governs all the others. What prisoners try to convey to the free is how the presence of time as something being done to you, instead of something you do things with, alters the mind at every moment. For American prisoners, huge numbers of whom are serving sentences much longer than those given for similar crimes anywhere else in the civilized world—Texas alone has sentenced more than four hundred teen-agers to life imprisonment—time becomes in every sense this thing you serve.
For most privileged, professional people, the experience of confinement is a mere brush, encountered after a kid’s arrest, say. For a great many poor people in America, particularly poor black men, prison is a destination that braids through an ordinary life, much as high school and college do for rich white ones. More than half of all black men without a high-school diploma go to prison at some time in their lives. Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today—perhaps the fundamental fact, as slavery was the fundamental fact of 1850. In truth, there are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height. That city of the confined and the controlled, Lockuptown, is now the second largest in the United States.
The accelerating rate of incarceration over the past few decades is just as startling as the number of people jailed: in 1980, there were about two hundred and twenty people incarcerated for every hundred thousand Americans; by 2010, the number had more than tripled, to seven hundred and thirty-one. No other country even approaches that. In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education. Ours is, bottom to top, a “carceral state,” in the flat verdict of Conrad Black, the former conservative press lord and newly minted reformer, who right now finds himself imprisoned in Florida, thereby adding a new twist to an old joke: A conservative is a liberal who’s been mugged; a liberal is a conservative who’s been indicted; and a passionate prison reformer is a conservative who’s in one.
The scale and the brutality of our prisons are the moral scandal of American life. Every day, at least fifty thousand men—a full house at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or prison wings, in which men are locked in small cells, where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.) Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncoöperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic, incomprehensible on the part of people who thought themselves civilized. Though we avoid looking directly at prisons, they seep obliquely into our fashions and manners. Wealthy white teen-agers in baggy jeans and laceless shoes and multiple tattoos show, unconsciously, the reality of incarceration that acts as a hidden foundation for the country.
How did we get here? How is it that our civilization, which rejects hanging and flogging and disembowelling, came to believe that caging vast numbers of people for decades is an acceptably humane sanction? There’s a fairly large recent scholarly literature on the history and sociology of crime and punishment, and it tends to trace the American zeal for punishment back to the nineteenth century, apportioning blame in two directions. There’s an essentially Northern explanation, focussing on the inheritance of the notorious Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and a Southern explanation, which sees the prison system as essentially a slave plantation continued by other means. Robert Perkinson, the author of the Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,” traces two ancestral lines, “from the North, the birthplace of rehabilitative penology, to the South, the fountainhead of subjugationist discipline.” In other words, there’s the scientific taste for reducing men to numbers and the slave owners’ urge to reduce blacks to brutes.
William J. Stuntz, a professor at Harvard Law School who died shortly before his masterwork, “The Collapse of American Criminal Justice,” was published, last fall, is the most forceful advocate for the view that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice. He runs through the immediate causes of the incarceration epidemic: the growth of post-Rockefeller drug laws, which punished minor drug offenses with major prison time; “zero tolerance” policing, which added to the group; mandatory-sentencing laws, which prevented judges from exercising judgment. But his search for the ultimate cause leads deeper, all the way to the Bill of Rights. In a society where Constitution worship is still a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system—much inferior to the exactly contemporary French Declaration of the Rights of Man, which Jefferson, he points out, may have helped shape while his protégé Madison was writing ours.
The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong. Even clauses that Americans are taught to revere are, Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.
The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That’s why America is famous both for its process-driven judicial system (“The bastard got off on a technicality,” the cop-show detective fumes) and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated. The inhumanity of American prisons was as much a theme for Dickens, visiting America in 1842, as the cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary, in Philadelphia—a “model” prison, at the time the most expensive public building ever constructed in the country, where every prisoner was kept in silent, separate confinement—still resonates:
I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers. . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.
Not roused up to stay—that was the point. Once the procedure ends, the penalty begins, and, as long as the cruelty is routine, our civil responsibility toward the punished is over. We lock men up and forget about their existence. For Dickens, even the corrupt but communal debtors’ prisons of old London were better than this. “Don’t take it personally!”—that remains the slogan above the gate to the American prison Inferno. Nor is this merely a historian’s vision. Conrad Black, at the high end, has a scary and persuasive picture of how his counsel, the judge, and the prosecutors all merrily congratulated each other on their combined professional excellence just before sending him off to the hoosegow for several years. If a millionaire feels that way, imagine how the ordinary culprit must feel.
In place of abstraction, Stuntz argues for the saving grace of humane discretion. Basically, he thinks, we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over. There’s a lovely scene in “The Castle,” the Australian movie about a family fighting eminent-domain eviction, where its hapless lawyer, asked in court to point to the specific part of the Australian constitution that the eviction violates, says desperately, “It’s . . . just the vibe of the thing.” For Stuntz, justice ought to be just the vibe of the thing—not one procedural error caught or one fact worked around. The criminal law should once again be more like the common law, with judges and juries not merely finding fact but making law on the basis of universal principles of fairness, circumstance, and seriousness, and crafting penalties to the exigencies of the crime.
The other argument—the Southern argument—is that this story puts too bright a face on the truth. The reality of American prisons, this argument runs, has nothing to do with the knots of procedural justice or the perversions of Enlightenment-era ideals. Prisons today operate less in the rehabilitative mode of the Northern reformers “than in a retributive mode that has long been practiced and promoted in the South,” Perkinson, an American-studies professor, writes. “American prisons trace their lineage not only back to Pennsylvania penitentiaries but to Texas slave plantations.” White supremacy is the real principle, this thesis holds, and racial domination the real end. In response to the apparent triumphs of the sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as often as whites. “The system of mass incarceration works to trap African Americans in a virtual (and literal) cage,” the legal scholar Michelle Alexander writes. Young black men pass quickly from a period of police harassment into a period of “formal control” (i.e., actual imprisonment) and then are doomed for life to a system of “invisible control.” Prevented from voting, legally discriminated against for the rest of their lives, most will cycle back through the prison system. The system, in this view, is not really broken; it is doing what it was designed to do. Alexander’s grim conclusion: “If mass incarceration is considered as a system of social control—specifically, racial control—then the system is a fantastic success.”
Northern impersonality and Southern revenge converge on a common American theme: a growing number of American prisons are now contracted out as for-profit businesses to for-profit companies. The companies are paid by the state, and their profit depends on spending as little as possible on the prisoners and the prisons. It’s hard to imagine any greater disconnect between public good and private profit: the interest of private prisons lies not in the obvious social good of having the minimum necessary number of inmates but in having as many as possible, housed as cheaply as possible. No more chilling document exists in recent American life than the 2005 annual report of the biggest of these firms, the Corrections Corporation of America. Here the company (which spends millions lobbying legislators) is obliged to caution its investors about the risk that somehow, somewhere, someone might turn off the spigot of convicted men:
Our growth is generally dependent upon our ability to obtain new contracts to develop and manage new correctional and detention facilities. . . . The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.
Brecht could hardly have imagined such a document: a capitalist enterprise that feeds on the misery of man trying as hard as it can to be sure that nothing is done to decrease that misery.
Yet a spectre haunts all these accounts, North and South, whether process gone mad or penal colony writ large. It is that the epidemic of imprisonment seems to track the dramatic decline in crime over the same period. The more bad guys there are in prison, it appears, the less crime there has been in the streets. The real background to the prison boom, which shows up only sporadically in the prison literature, is the crime wave that preceded and overlapped it.
For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period. It was the condition of the Upper West Side of Manhattan under liberal rule, far more than what had happened to Eastern Europe under socialism, that made neo-con polemics look persuasive. There really was, as Stuntz himself says, a liberal consensus on crime (“Wherever the line is between a merciful justice system and one that abandons all serious effort at crime control, the nation had crossed it”), and it really did have bad effects.
Yet if, in 1980, someone had predicted that by 2012 New York City would have a crime rate so low that violent crime would have largely disappeared as a subject of conversation, he would have seemed not so much hopeful as crazy. Thirty years ago, crime was supposed to be a permanent feature of the city, produced by an alienated underclass of super-predators; now it isn’t. Something good happened to change it, and you might have supposed that the change would be an opportunity for celebration and optimism. Instead, we mostly content ourselves with grudging and sardonic references to the silly side of gentrification, along with a few all-purpose explanations, like broken-window policing. This is a general human truth: things that work interest us less than things that don’t.
So what is the relation between mass incarceration and the decrease in crime? Certainly, in the nineteen-seventies and eighties, many experts became persuaded that there was no way to make bad people better; all you could do was warehouse them, for longer or shorter periods. The best research seemed to show, depressingly, that nothing works—that rehabilitation was a ruse. Then, in 1983, inmates at the maximum-security federal prison in Marion, Illinois, murdered two guards. Inmates had been (very occasionally) killing guards for a long time, but the timing of the murders, and the fact that they took place in a climate already prepared to believe that even ordinary humanity was wasted on the criminal classes, meant that the entire prison was put on permanent lockdown. A century and a half after absolute solitary first appeared in American prisons, it was reintroduced. Those terrible numbers began to grow.
And then, a decade later, crime started falling: across the country by a standard measure of about forty per cent; in New York City by as much as eighty per cent. By 2010, the crime rate in New York had seen its greatest decline since the Second World War; in 2002, there were fewer murders in Manhattan than there had been in any year since 1900. In social science, a cause sought is usually a muddle found; in life as we experience it, a crisis resolved is causality established. If a pill cures a headache, we do not ask too often if the headache might have gone away by itself.
All this ought to make the publication of Franklin E. Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a criminologist at Berkeley Law, has spent years crunching the numbers of what happened in New York in the context of what happened in the rest of America. One thing he teaches us is how little we know. The forty per cent drop across the continent—indeed, there was a decline throughout the Western world— took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations—including demographic shifts—simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary.
But the additional forty per cent drop in crime that seems peculiar to New York finally succumbs to Zimring’s analysis. The change didn’t come from resolving the deep pathologies that the right fixated on—from jailing super predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile jumping” policing, that is, cracking down on small visible offenses in order to create an atmosphere that refused to license crime, seems to have had a negligible effect; there was, Zimring writes, a great difference between the slogans and the substance of the time. (Arrests for “visible” nonviolent crime—e.g., street prostitution and public gambling—mostly went down through the period.)
Instead, small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—“hot-spot policing.” The cops also began an aggressive, controversial program of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack Maple, one of its originators, described it—that involved what’s called pejoratively “profiling.” This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced. “The poor pay more and get more” is Zimring’s way of putting it. He believes that a “light” program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.
Zimring insists, plausibly, that he is offering a radical and optimistic rewriting of theories of what crime is and where criminals are, not least because it disconnects crime and minorities. “In 1961, twenty six percent of New York City’s population was minority African American or Hispanic. Now, half of New York’s population is—and what that does in an enormously hopeful way is to destroy the rude assumptions of supply side criminology,” he says. By “supply side criminology,” he means the conservative theory of crime that claimed that social circumstances produced a certain net amount of crime waiting to be expressed; if you stopped it here, it broke out there. The only way to stop crime was to lock up all the potential criminals. In truth, criminal activity seems like most other human choices—a question of contingent occasions and opportunity. Crime is not the consequence of a set number of criminals; criminals are the consequence of a set number of opportunities to commit crimes. Close down the open drug market in Washington Square, and it does not automatically migrate to Tompkins Square Park. It just stops, or the dealers go indoors, where dealing goes on but violent crime does not.
And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, “Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.” In a sense, he argues, it’s recreational, part of a life style: “Crime is a routine behavior; it’s a thing people do when they get used to doing it.” And therein lies its essential fragility. Crime ends as a result of “cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.” Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.
One fact stands out. While the rest of the country, over the same twenty-year period, saw the growth in incarceration that led to our current astonishing numbers, New York, despite the Rockefeller drug laws, saw a marked decrease in its number of inmates. “New York City, in the midst of a dramatic reduction in crime, is locking up a much smaller number of people, and particularly of young people, than it was at the height of the crime wave,” Zimring observes. Whatever happened to make street crime fall, it had nothing to do with putting more men in prison. The logic is self-evident if we just transfer it to the realm of white-collar crime: we easily accept that there is no net sum of white-collar crime waiting to happen, no inscrutable generation of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally start in the next office building. White-collar crime happens through an intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity is a good way to limit the range of the pathology.
Social trends deeper and less visible to us may appear as future historians analyze what went on. Something other than policing may explain things—just as the coming of cheap credit cards and state lotteries probably did as much to weaken the Mafia’s Five Families in New York, who had depended on loan sharking and numbers running, as the F.B.I. could. It is at least possible, for instance, that the coming of the mobile phone helped drive drug dealing indoors, in ways that helped drive down crime. It may be that the real value of hot spot and stop-and-frisk was that it provided a single game plan that the police believed in; as military history reveals, a bad plan is often better than no plan, especially if the people on the other side think it’s a good plan. But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself.
Which leads, further, to one piece of radical common sense: since prison plays at best a small role in stopping even violent crime, very few people, rich or poor, should be in prison for a nonviolent crime. Neither the streets nor the society is made safer by having marijuana users or peddlers locked up, let alone with the horrific sentences now dispensed so easily. For that matter, no social good is served by having the embezzler or the Ponzi schemer locked in a cage for the rest of his life, rather than having him bankrupt and doing community service in the South Bronx for the next decade or two. Would we actually have more fraud and looting of shareholder value if the perpetrators knew that they would lose their bank accounts and their reputation, and have to do community service seven days a week for five years? It seems likely that anyone for whom those sanctions aren’t sufficient is someone for whom no sanctions are ever going to be sufficient. Zimring’s research shows clearly that, if crime drops on the street, criminals coming out of prison stop committing crimes. What matters is the incidence of crime in the world, and the continuity of a culture of crime, not some “lesson learned” in prison.
At the same time, the ugly side of stop-and-frisk can be alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need to adjust the size of the holes in the nets—to make crimes that are the occasion for stop-and-frisks real crimes, not crimes like marijuana possession. When the New York City police stopped and frisked kids, the main goal was not to jail them for having pot but to get their fingerprints, so that they could be identified if they committed a more serious crime. But all over America the opposite happens: marijuana possession becomes the serious crime. The cost is so enormous, though, in lives ruined and money spent, that the obvious thing to do is not to enforce the law less but to change it now. Dr. Johnson said once that manners make law, and that when manners alter, the law must, too. It’s obvious that marijuana is now an almost universally accepted drug in America: it is not only used casually (which has been true for decades) but also talked about casually on television and in the movies (which has not). One need only watch any stoner movie to see that the perceived risks of smoking dope are not that you’ll get arrested but that you’ll get in trouble with a rival frat or look like an idiot to women. The decriminalization of marijuana would help end the epidemic of imprisonment.
The rate of incarceration in most other rich, free countries, whatever the differences in their histories, is remarkably steady. In countries with Napoleonic justice or common law or some mixture of the two, in countries with adversarial systems and in those with magisterial ones, whether the country once had brutal plantation-style penal colonies, as France did, or was once itself a brutal plantation-style penal colony, like Australia, the natural rate of incarceration seems to hover right around a hundred men per hundred thousand people. (That doesn’t mean it doesn’t get lower in rich, homogeneous countries—just that it never gets much higher in countries otherwise like our own.) It seems that one man in every thousand once in a while does a truly bad thing. All other things being equal, the point of a justice system should be to identify that thousandth guy, find a way to keep him from harming other people, and give everyone else a break.
Epidemics seldom end with miracle cures. Most of the time in the history of medicine, the best way to end disease was to build a better sewer and get people to wash their hands. “Merely chipping away at the problem around the edges” is usually the very best thing to do with a problem; keep chipping away patiently and, eventually, you get to its heart. To read the literature on crime before it dropped is to see the same kind of dystopian despair we find in the new literature of punishment: we’d have to end poverty, or eradicate the ghettos, or declare war on the broken family, or the like, in order to end the crime wave. The truth is, a series of small actions and events ended up eliminating a problem that seemed to hang over everything. There was no miracle cure, just the intercession of a thousand smaller sanities. Ending sentencing for drug misdemeanors, decriminalizing marijuana, leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians)—many small acts are possible that will help end the epidemic of imprisonment as they helped end the plague of crime.
“Oh, I have taken too little care of this!” King Lear cries out on the heath in his moment of vision. “Take physic, pomp; expose thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it was flat-out peasant poverty that starved some and drove others as mad as poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove kids to mines. But every society has a poor storm that wretches suffer in, and the attitude is always the same: either that the wretches, already dehumanized by their suffering, deserve no pity or that the oppressed, overwhelmed by injustice, will have to wait for a better world. At every moment, the injustice seems inseparable from the community’s life, and in every case the arguments for keeping the system in place were that you would have to revolutionize the entire social order to change it—which then became the argument for revolutionizing the entire social order. In every case, humanity and common sense made the insoluble problem just get up and go away. Prisons are our this. We need take more care. ♦
Tuesday, January 31, 2012
Sunday, January 08, 2012
The Random Horror of the Death Penalty
The following editorial by Lincoln Caplan was published by the New York Times on January 7, 2012.
The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.
A number of studies in the last three decades have shown that black defendants are more likely to be sentenced to death if their victim is white rather than black. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.
The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analyzed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut — similar to those in other death-penalty states — is utterly arbitrary and discriminatory.
From 1973, when Connecticut passed a death penalty law, to 2007, 4,686 murders were committed in the state. Of those, 205 were death-eligible cases (capital murders that include the killing of a police officer, murder for hire, murder-rape and murder committed during a kidnapping) that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
Why was this small group of defendants singled out for death? Did their crimes make them more deserving of execution than all the others?
To get answers, Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence.
Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.
In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.
The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.
In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.
The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.
A number of studies in the last three decades have shown that black defendants are more likely to be sentenced to death if their victim is white rather than black. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.
The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analyzed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut — similar to those in other death-penalty states — is utterly arbitrary and discriminatory.
From 1973, when Connecticut passed a death penalty law, to 2007, 4,686 murders were committed in the state. Of those, 205 were death-eligible cases (capital murders that include the killing of a police officer, murder for hire, murder-rape and murder committed during a kidnapping) that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
Why was this small group of defendants singled out for death? Did their crimes make them more deserving of execution than all the others?
To get answers, Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence.
Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.
In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.
The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.
In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.
Thursday, January 05, 2012
More progress needed
The following editorial was published by the Buffalo News on January 4, 2012.
New York is making progress -- slowly -- on the problem of wrongful convictions, but as national figures show, the need to act remains great.
A year-end report by the Innocence Project, based in New York City, shows that it helped exonerate seven people this year -- people who had been convicted of crimes they did not commit. It's a disturbing-enough number, but it doesn't tell the whole story.
A larger umbrella group to which the Innocence Project belongs -- the Innocence Network -- reports a total of 21 exonerations this year. These are people who, in many cases, had the prime of their lives stolen away. There can be no doubt that others languish in prison, hoping for their own salvation.
None of the 21 came from New York in 2011, but the Innocence Project counts 27 cases in which it has helped to win exonerations in this state. Three of those exonerations occurred last year and another one in 2009. New York remains a full partner in the national shame of wrongful conviction.
Western New Yorkers are familiar with this issue. Anthony Capozzi of Buffalo served 21 years in prison for rapes he did not commit. While he was in prison, the real rapist, Altemio Sanchez -- now unmasked as the Bike Path Killer -- began murdering women in Western New York.
Shortly after Capozzi's exoneration, the case against Lynn Dejac-Peters fell apart. She had served nearly 14 years in prison for a crime she did not commit: murdering her own daughter. The real killer remains unidentified.
New York has begun moving against the factors associated with wrongful conviction, including the No. 1 cause, witness misidentification, and also the strange but true phenomenon of false confession. The Innocence Project reports that in about 25 percent of cases where DNA evidence later exonerated the person who was convicted, innocent defendants "made incriminating statements, delivered outright confessions or pled guilty."
New York State's chief judge, Jonathan Lippman, has convened a permanent task force to look into these issues, and it has already made recommendations regarding witness identification procedures and the worthwhile, but not primary, issue of expanding the state's DNA databank.
Soon it will recommend videotaping interrogations to guard against false confessions, which can occur when police inadvertently feed an innocent suspect details of the crime that the perpetrator would know.
But if New York is moving, it is doing so slowly. Thus far, all the factors that helped create the conditions for wrongful conviction remain in force in courtrooms across the state. Other states with terrible records of wrongful conviction, including Texas and California, have moved more swiftly to deal with these issues.
It is good that the state is taking action, of course, but the Legislature needs to formalize issues such as witness identification procedures and videotaping of interrogations. Some legislators will balk at that, fearing that adversaries will somehow paint them as soft on crime. It will be a bad rap, and lawmakers need to realize that.
Nailing the right person is fundamental to any decent conception of law and order. It guards the reputation of the justice system and ensures that criminals are not left on the streets while innocent people rot in prison.
Lippman's committee, called the New York State Justice Task Force, is composed of members from all aspects of the criminal justice system, including police and prosecutors. Thus, its recommendations should give political cover to those lawmakers who need it. But lawmakers have to act. New York does not need to be putting more innocent people in prison while advocates labor to free those who are already trapped there.
New York is making progress -- slowly -- on the problem of wrongful convictions, but as national figures show, the need to act remains great.
A year-end report by the Innocence Project, based in New York City, shows that it helped exonerate seven people this year -- people who had been convicted of crimes they did not commit. It's a disturbing-enough number, but it doesn't tell the whole story.
A larger umbrella group to which the Innocence Project belongs -- the Innocence Network -- reports a total of 21 exonerations this year. These are people who, in many cases, had the prime of their lives stolen away. There can be no doubt that others languish in prison, hoping for their own salvation.
None of the 21 came from New York in 2011, but the Innocence Project counts 27 cases in which it has helped to win exonerations in this state. Three of those exonerations occurred last year and another one in 2009. New York remains a full partner in the national shame of wrongful conviction.
Western New Yorkers are familiar with this issue. Anthony Capozzi of Buffalo served 21 years in prison for rapes he did not commit. While he was in prison, the real rapist, Altemio Sanchez -- now unmasked as the Bike Path Killer -- began murdering women in Western New York.
Shortly after Capozzi's exoneration, the case against Lynn Dejac-Peters fell apart. She had served nearly 14 years in prison for a crime she did not commit: murdering her own daughter. The real killer remains unidentified.
New York has begun moving against the factors associated with wrongful conviction, including the No. 1 cause, witness misidentification, and also the strange but true phenomenon of false confession. The Innocence Project reports that in about 25 percent of cases where DNA evidence later exonerated the person who was convicted, innocent defendants "made incriminating statements, delivered outright confessions or pled guilty."
New York State's chief judge, Jonathan Lippman, has convened a permanent task force to look into these issues, and it has already made recommendations regarding witness identification procedures and the worthwhile, but not primary, issue of expanding the state's DNA databank.
Soon it will recommend videotaping interrogations to guard against false confessions, which can occur when police inadvertently feed an innocent suspect details of the crime that the perpetrator would know.
But if New York is moving, it is doing so slowly. Thus far, all the factors that helped create the conditions for wrongful conviction remain in force in courtrooms across the state. Other states with terrible records of wrongful conviction, including Texas and California, have moved more swiftly to deal with these issues.
It is good that the state is taking action, of course, but the Legislature needs to formalize issues such as witness identification procedures and videotaping of interrogations. Some legislators will balk at that, fearing that adversaries will somehow paint them as soft on crime. It will be a bad rap, and lawmakers need to realize that.
Nailing the right person is fundamental to any decent conception of law and order. It guards the reputation of the justice system and ensures that criminals are not left on the streets while innocent people rot in prison.
Lippman's committee, called the New York State Justice Task Force, is composed of members from all aspects of the criminal justice system, including police and prosecutors. Thus, its recommendations should give political cover to those lawmakers who need it. But lawmakers have to act. New York does not need to be putting more innocent people in prison while advocates labor to free those who are already trapped there.
Tuesday, December 27, 2011
Let Anderson's record be heard by a court
The following editorial by the Editorial Board was published in the December 26, 2011 edition of The Statesman (Austin, TX):
Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.
Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.
With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.
Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.
The family of Debra Masters Baker is also calling for a court of inquiry. Baker was beaten to death in her bed in Travis County in 1988, two years after Christine Morton was killed in a similar way.
Morton was released from prison after DNA tests on a bandana found near the Morton home ruled him out as his wife's killer.
Authorities have since charged Mark Norwood with Christine Morton's death, and they suspect Norwood in Baker's murder. DNA evidence connects him to both crimes, police say.
Morton's lawyers, led by Barry Scheck of the Innocence Project in New York, say Anderson did not give Morton's trial lawyers key pieces of evidence that could have prevented his conviction. In addition, they say Anderson committed contempt of court by failing to give trial Judge William Lott all the reports and notes collected by the case's lead investigator, Sgt. Don Wood of the Williamson County Sheriff's Department.
Eleven days after Christine Morton's murder, her mother, Rita Kirkpatrick, talked with Wood on the phone about a chat she had had with Morton's 3-year-old son. According to the police transcript of the call, Kirkpatrick said the boy told her a "monster" had beaten his mother and that his father was not home when it happened.
Excerpts of this interview were found this summer in Anderson's trial file. Morton's lawyers say Anderson never told Morton's trial lawyers about Kirkpatrick's call.
Also unknown to Morton's trial lawyers: reports that a check made out to Christine Morton had been cashed more than a week after her murder; a report that Morton's credit card might have been used in San Antonio two days after her death; and a police report prompted by a Morton neighbor who saw the unidentified driver of a green van walk on several occasions in the wooded area behind the Morton house.
Anderson says he gave Morton's trial lawyers all the information they needed. He says he wasn't legally required to give defense lawyers a copy of the phone transcript because it was not admissible evidence.
Last month, Anderson apologized for "the system's failure" in wrongly convicting Morton. As we said in response to Anderson's apology, wrongful convictions don't exist because of failures of the system. They exist because the investigators, prosecutors and judges who run the system fail. They make honest mistakes, are unaware of contradictory evidence, or, in their zeal for convictions, either blind themselves to alternative possibilities or rationalize misconduct to fit the "truth" as they see it.
By asking the system to assign blame for Michael Morton's wrongful conviction, his lawyers are breaking new ground. Never before has the prosecutor in a wrongful conviction case been subjected to such an inquiry. But it's ground that needs to be broken. Prosecutors whose deliberate actions steal decades from someone's life should be punished.
Perhaps Anderson concealed evidence. Perhaps he did what was required of him to do. Perhaps there was nothing at the time (remember, DNA testing was in its infancy in 1987) that would have kept Morton from being sent to prison.
We need to know, and Anderson's system needs its credibility restored. Judge Harle should convene a court of inquiry, and the sooner the better.
Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.
Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.
With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.
Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.
The family of Debra Masters Baker is also calling for a court of inquiry. Baker was beaten to death in her bed in Travis County in 1988, two years after Christine Morton was killed in a similar way.
Morton was released from prison after DNA tests on a bandana found near the Morton home ruled him out as his wife's killer.
Authorities have since charged Mark Norwood with Christine Morton's death, and they suspect Norwood in Baker's murder. DNA evidence connects him to both crimes, police say.
Morton's lawyers, led by Barry Scheck of the Innocence Project in New York, say Anderson did not give Morton's trial lawyers key pieces of evidence that could have prevented his conviction. In addition, they say Anderson committed contempt of court by failing to give trial Judge William Lott all the reports and notes collected by the case's lead investigator, Sgt. Don Wood of the Williamson County Sheriff's Department.
Eleven days after Christine Morton's murder, her mother, Rita Kirkpatrick, talked with Wood on the phone about a chat she had had with Morton's 3-year-old son. According to the police transcript of the call, Kirkpatrick said the boy told her a "monster" had beaten his mother and that his father was not home when it happened.
Excerpts of this interview were found this summer in Anderson's trial file. Morton's lawyers say Anderson never told Morton's trial lawyers about Kirkpatrick's call.
Also unknown to Morton's trial lawyers: reports that a check made out to Christine Morton had been cashed more than a week after her murder; a report that Morton's credit card might have been used in San Antonio two days after her death; and a police report prompted by a Morton neighbor who saw the unidentified driver of a green van walk on several occasions in the wooded area behind the Morton house.
Anderson says he gave Morton's trial lawyers all the information they needed. He says he wasn't legally required to give defense lawyers a copy of the phone transcript because it was not admissible evidence.
Last month, Anderson apologized for "the system's failure" in wrongly convicting Morton. As we said in response to Anderson's apology, wrongful convictions don't exist because of failures of the system. They exist because the investigators, prosecutors and judges who run the system fail. They make honest mistakes, are unaware of contradictory evidence, or, in their zeal for convictions, either blind themselves to alternative possibilities or rationalize misconduct to fit the "truth" as they see it.
By asking the system to assign blame for Michael Morton's wrongful conviction, his lawyers are breaking new ground. Never before has the prosecutor in a wrongful conviction case been subjected to such an inquiry. But it's ground that needs to be broken. Prosecutors whose deliberate actions steal decades from someone's life should be punished.
Perhaps Anderson concealed evidence. Perhaps he did what was required of him to do. Perhaps there was nothing at the time (remember, DNA testing was in its infancy in 1987) that would have kept Morton from being sent to prison.
We need to know, and Anderson's system needs its credibility restored. Judge Harle should convene a court of inquiry, and the sooner the better.
Wednesday, December 14, 2011
Reasonable doubt exists in Holly Staker slaying
The following editorial was published by the Chicago Tribune on December 14, 2011.
Juan Rivera has spent nearly two decades in prison for the 1992 sexual assault and stabbing murder of 11-year-old Holly Staker in Waukegan. He has been convicted three times by jury, largely because he confessed to the crime.
But three judges on the Illinois Appellate Court reached a stunning decision last week: No "rational trier of fact" could have concluded beyond a reasonable doubt that Rivera is guilty. The court reversed Rivera's conviction.
Lake County State's Attorney Michael Waller now must decide whether to drop the case, ask the appellate court to reconsider, or appeal its decision to the Illinois Supreme Court. A Supreme Court appeal would require the approval of Attorney General Lisa Madigan.
Three jury trials and three convictions can't be discarded lightly. The appellate court, though, was unanimous and emphatic. It said DNA evidence in the case "does not completely exonerate" Rivera, but it "significantly impeaches" the prosecutors' case.
•No DNA evidence tied Rivera to the crime. The evidence showed that semen in Holly Staker's body wasn't from Rivera.
•No physical evidence tied Rivera to the crime. Fingerprints at the scene weren't his. Blood found at the scene wasn't his.
•At the time of the crime, Rivera was on electronic monitoring for a parole violation in another crime. The monitoring device did not indicate that Rivera left his home on the night of the crime. (Though as we wrote at the time, Lake County's electronic monitoring program was notoriously unreliable.)
The appellate court scolded Lake County prosecutors for offering a "highly improbable" explanation of the crime, which distorted "to an absurd degree" the testimony from witnesses.
Then there is Rivera's confession. People ask: If he was innocent, why did he confess?
We've seen many troubling cases where people confess to crimes they didn't commit, oftentimes when they are coerced.
The Tribune reported last year that researchers believe false confessions lead to about 25 percent of wrongful convictions. "Some people confess from fatigue, stress, and being worn down through relentless questioning and sleep deprivation; some people confess out of fear; some people confess with the expectation of future exoneration; some people confess due to coercive or suggestive methods of interrogations," the appellate court wrote.
In this case, the court found, veteran officers used leading questions and likely fed details about the crime to Rivera. The court said detectives psychologically manipulated Rivera, who has an IQ of 79 and reads at a third-grade level. Rivera was banging his head against a wall and pulling his hair out at one point during a police interrogation. He signed confession statements after a long interrogation over several days.
The DNA evidence proves that someone else sexually assaulted Holly Staker. The prosecution's theory about her murder doesn't hold up.
Reviewing courts do not blithely overturn the decisions of juries. These appellate judges have done a careful and thorough analysis and reached an unambiguous decision.
State's Attorney Waller should accept that decision and move to free Rivera. He should not appeal. If he pursues that course, he should move to let Rivera be freed while an appeal is considered. It seems extremely unlikely that Waller will prevail in the Supreme Court.
Lake County does have a case to pursue. Someone did grievous harm to an 11-year-old girl. Someone who has not been identified.
Juan Rivera has spent nearly two decades in prison for the 1992 sexual assault and stabbing murder of 11-year-old Holly Staker in Waukegan. He has been convicted three times by jury, largely because he confessed to the crime.
But three judges on the Illinois Appellate Court reached a stunning decision last week: No "rational trier of fact" could have concluded beyond a reasonable doubt that Rivera is guilty. The court reversed Rivera's conviction.
Lake County State's Attorney Michael Waller now must decide whether to drop the case, ask the appellate court to reconsider, or appeal its decision to the Illinois Supreme Court. A Supreme Court appeal would require the approval of Attorney General Lisa Madigan.
Three jury trials and three convictions can't be discarded lightly. The appellate court, though, was unanimous and emphatic. It said DNA evidence in the case "does not completely exonerate" Rivera, but it "significantly impeaches" the prosecutors' case.
•No DNA evidence tied Rivera to the crime. The evidence showed that semen in Holly Staker's body wasn't from Rivera.
•No physical evidence tied Rivera to the crime. Fingerprints at the scene weren't his. Blood found at the scene wasn't his.
•At the time of the crime, Rivera was on electronic monitoring for a parole violation in another crime. The monitoring device did not indicate that Rivera left his home on the night of the crime. (Though as we wrote at the time, Lake County's electronic monitoring program was notoriously unreliable.)
The appellate court scolded Lake County prosecutors for offering a "highly improbable" explanation of the crime, which distorted "to an absurd degree" the testimony from witnesses.
Then there is Rivera's confession. People ask: If he was innocent, why did he confess?
We've seen many troubling cases where people confess to crimes they didn't commit, oftentimes when they are coerced.
The Tribune reported last year that researchers believe false confessions lead to about 25 percent of wrongful convictions. "Some people confess from fatigue, stress, and being worn down through relentless questioning and sleep deprivation; some people confess out of fear; some people confess with the expectation of future exoneration; some people confess due to coercive or suggestive methods of interrogations," the appellate court wrote.
In this case, the court found, veteran officers used leading questions and likely fed details about the crime to Rivera. The court said detectives psychologically manipulated Rivera, who has an IQ of 79 and reads at a third-grade level. Rivera was banging his head against a wall and pulling his hair out at one point during a police interrogation. He signed confession statements after a long interrogation over several days.
The DNA evidence proves that someone else sexually assaulted Holly Staker. The prosecution's theory about her murder doesn't hold up.
Reviewing courts do not blithely overturn the decisions of juries. These appellate judges have done a careful and thorough analysis and reached an unambiguous decision.
State's Attorney Waller should accept that decision and move to free Rivera. He should not appeal. If he pursues that course, he should move to let Rivera be freed while an appeal is considered. It seems extremely unlikely that Waller will prevail in the Supreme Court.
Lake County does have a case to pursue. Someone did grievous harm to an 11-year-old girl. Someone who has not been identified.
Wednesday, December 07, 2011
Righting a wrongful conviction in Virginia
The following editorial was published by the Washington Post on December 5, 2011.
FOUR YEARS AGO, 15-year-old Edgar Coker Jr. pleaded guilty to a crime he did not commit after his lawyer warned that he could be prosecuted as an adult and subjected to a lengthy prison term if he fought the charges.
Two months later, after Edgar had been sent to a juvenile facility, the 14-year-old girl who accused him of raping her recanted and said she made up the story after her mother walked in on the young couple. The girl’s mother has acknowledged the lie and is now advocating on his behalf.
But as The Post’s Chris L. Jenkins reported, this horrible episode continues to haunt Edgar Coker and has forced him to live with the vilification that comes with being falsely branded a rapist.
Rectifying this injustice should be swift and unconditional, but Virginia’s laws make that virtually impossible. Mr. Coker’s name still appears on the state’s sex-offender registry. Because of that, he was arrested for attending a high school function, and he and his family have been subjected to threats from neighbors who learned of his presence on the list. Prosecutors say they can do nothing to help the young man, who spent 17 months locked up, because they lost jurisdiction once he was released from state custody. Mr. Coker’s new lawyers hope that Virginia’s Supreme Court will give them a chance to challenge the conviction in a trial court, but it is a long shot. His only plausible argument at this stage involves a claim of ineffective assistance of counsel — an argument that Virginia courts are often reluctant to embrace.
A state law allows convicts to go back into court to make a claim of “actual innocence,” but this second chance is not available in the vast majority of instances to those who pleaded guilty. It is not clear because of wording issues whether those adjudicated as juveniles may avail themselves of this law.
Mr. Coker’s case is scheduled to be heard by the state’s high court in January. His lawyers should seek a full pardon from Gov. Robert F. McDonnell (R), although executive clemency is typically not considered until all court action has been exhausted. The best chance for speedy redress may lie with Virginia’s General Assembly, which reconvenes next month for its annual legislative session. Del. Gregory D. Habeeb, a Roanoke-area Republican, plans to introduce legislation to allow juveniles — even those who entered guilty pleas — to make a claim of actual innocence.
“This is not a partisan issue. This is not a race issue. This is a justice issue,” he says. This change would not guarantee a clean record, but it would rightly give those caught in a paralyzing legal vise a chance to clear their names.
FOUR YEARS AGO, 15-year-old Edgar Coker Jr. pleaded guilty to a crime he did not commit after his lawyer warned that he could be prosecuted as an adult and subjected to a lengthy prison term if he fought the charges.
Two months later, after Edgar had been sent to a juvenile facility, the 14-year-old girl who accused him of raping her recanted and said she made up the story after her mother walked in on the young couple. The girl’s mother has acknowledged the lie and is now advocating on his behalf.
But as The Post’s Chris L. Jenkins reported, this horrible episode continues to haunt Edgar Coker and has forced him to live with the vilification that comes with being falsely branded a rapist.
Rectifying this injustice should be swift and unconditional, but Virginia’s laws make that virtually impossible. Mr. Coker’s name still appears on the state’s sex-offender registry. Because of that, he was arrested for attending a high school function, and he and his family have been subjected to threats from neighbors who learned of his presence on the list. Prosecutors say they can do nothing to help the young man, who spent 17 months locked up, because they lost jurisdiction once he was released from state custody. Mr. Coker’s new lawyers hope that Virginia’s Supreme Court will give them a chance to challenge the conviction in a trial court, but it is a long shot. His only plausible argument at this stage involves a claim of ineffective assistance of counsel — an argument that Virginia courts are often reluctant to embrace.
A state law allows convicts to go back into court to make a claim of “actual innocence,” but this second chance is not available in the vast majority of instances to those who pleaded guilty. It is not clear because of wording issues whether those adjudicated as juveniles may avail themselves of this law.
Mr. Coker’s case is scheduled to be heard by the state’s high court in January. His lawyers should seek a full pardon from Gov. Robert F. McDonnell (R), although executive clemency is typically not considered until all court action has been exhausted. The best chance for speedy redress may lie with Virginia’s General Assembly, which reconvenes next month for its annual legislative session. Del. Gregory D. Habeeb, a Roanoke-area Republican, plans to introduce legislation to allow juveniles — even those who entered guilty pleas — to make a claim of actual innocence.
“This is not a partisan issue. This is not a race issue. This is a justice issue,” he says. This change would not guarantee a clean record, but it would rightly give those caught in a paralyzing legal vise a chance to clear their names.
Friday, December 02, 2011
Courtrooms Shackle the Presumption of Innocence
The following opinion by John Christopher Fine was published by The Epoch Times on December 1, 2011.
I have vivid memories driving through Georgia with my parents en route to Florida. We would see men chained together working on the road. They were prisoners shackled in road gangs overseen by pot-bellied guards with shotguns. The practice was uncivilized yet not far in our recent history.
Today, our courts are adopting practices never before allowed, and defendants are being deprived of their dignity and their chance at a fair trial.
There has always been the “Perp Walk.” The parade of a handcuffed defendant by police or federal agents on public streets in order for the press to get pictures. The “perp” or perpetrator is jostled between police detectives or officers and led somewhere for booking. The police enjoy the limelight. Their pictures are televised and in newspapers, great scrapbook mementos. The defendant is shamed, scorned, and punished before even being adjudicated guilty.
When I served in the District Attorney’s office in New York County the diligence used to protect the innocent was as fervent as pursuing the people’s advocacy to insure the culpable received justice.
A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.
A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.
What happened outside his courtroom the judge could not ordain but this was a judge that had the dignity, decency, and demeanor to recognize that there are limits to the way defendants can be treated in a court of law.
Would that that judge presided over the many cases that have been brought into court today.
A physician arrested for white-collar crimes was arraigned. He was shown on television between two brutish officers, stripped of his clothing, in prison garb and shackled with a chain around his waist, hands manacled to it.
The physician was small in stature,stature; he had surrendered to police to answer the charges against him. He appeared before the arraignment judge already convicted despite the fact that our system of justice proclaims him innocent until proven guilty.
There was a controversy about cameras in courtrooms. Most judges disdained them. Defense lawyers in criminal proceedings were against them, prosecutors were apparently neutral for a time. The press urged and even sued for the ability to film and photograph in courtrooms. In the abuses perpetrated in most recent times, cameras in courtrooms have proved to be a mistake.
As society hardens it is becoming more difficult to retain the independence of our judicial system. Many judges are caught up in a tide that seems to be sweeping over America. Police agencies have been given more weapons than they need and more power than they should have. That was inevitable after the terrorist attacks of Sept. 11, 2001.
Draconian measures cannot be rolled back once imposed. That has been the fate of many democratic societies, long ago perished.
Our basic premise from the founding of America is that a person in a criminal proceeding is innocent until proven guilty. Police can arrest upon suspicion but a Grand Jury composed of ordinary citizens must hear evidence sufficient to bind a defendant over for trial.
Even before a Grand Jury convenes to hear felony charges a defendant is entitled to be promptly brought before a judge. The judge must be an impartial arbiter standing between the police and prosecutor and the accused. There should be a sorting out at this stage, not the inevitable routine of degrading the defendant and rubber stamping papers with the innocent at law being then returned to jail cells until bail is determined.
Bail today is being used as punishment. The federal system of justice is often at fault in requiring high bail. Most often it is a grand-stand play between federal prosecutors and the court. There is the news conference where officials from federal agencies, ambitious prosecutors, and agency heads display the products of their investigation. Many of these public officials get their start in politics this way. How else do they receive media exposure?
The next step is a degrading process where the innocent is paraded before cameras shackled, stripped of personal clothing and looking, for all to see, ashamed. Can such a person receive a fair trial thereafter? Certainly not in a free society. That person is already branded a criminal and condemned.
am no bleeding heart liberal. I do not assume arbitrarily that defendants are framed and all will be found not guilty. They are innocent until proven guilty and must be accorded the dignity and respect required by our Constitution.
Degrading techniques used in our courtrooms veiled as security measures are being used as a means of condemning the innocent before trial. Where is the U.S. Supreme Court when we need it?
John Christopher Fine served as Senior Asst DA in New York County, Director of the Organized Crime Task Force and Special Counsel to a U.S. Senate investigating committee.
I have vivid memories driving through Georgia with my parents en route to Florida. We would see men chained together working on the road. They were prisoners shackled in road gangs overseen by pot-bellied guards with shotguns. The practice was uncivilized yet not far in our recent history.
Today, our courts are adopting practices never before allowed, and defendants are being deprived of their dignity and their chance at a fair trial.
There has always been the “Perp Walk.” The parade of a handcuffed defendant by police or federal agents on public streets in order for the press to get pictures. The “perp” or perpetrator is jostled between police detectives or officers and led somewhere for booking. The police enjoy the limelight. Their pictures are televised and in newspapers, great scrapbook mementos. The defendant is shamed, scorned, and punished before even being adjudicated guilty.
When I served in the District Attorney’s office in New York County the diligence used to protect the innocent was as fervent as pursuing the people’s advocacy to insure the culpable received justice.
A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.
A New York City Criminal Court judge scolded a Texas lawman that came to take a prisoner being extradited. The defendant was released by the judge into his custody. The Texas lawman took out leg shackles and started to chain his prisoner. “You will not put chains on that man in my courtroom,” the judge said sternly from the bench.
What happened outside his courtroom the judge could not ordain but this was a judge that had the dignity, decency, and demeanor to recognize that there are limits to the way defendants can be treated in a court of law.
Would that that judge presided over the many cases that have been brought into court today.
A physician arrested for white-collar crimes was arraigned. He was shown on television between two brutish officers, stripped of his clothing, in prison garb and shackled with a chain around his waist, hands manacled to it.
The physician was small in stature,stature; he had surrendered to police to answer the charges against him. He appeared before the arraignment judge already convicted despite the fact that our system of justice proclaims him innocent until proven guilty.
There was a controversy about cameras in courtrooms. Most judges disdained them. Defense lawyers in criminal proceedings were against them, prosecutors were apparently neutral for a time. The press urged and even sued for the ability to film and photograph in courtrooms. In the abuses perpetrated in most recent times, cameras in courtrooms have proved to be a mistake.
As society hardens it is becoming more difficult to retain the independence of our judicial system. Many judges are caught up in a tide that seems to be sweeping over America. Police agencies have been given more weapons than they need and more power than they should have. That was inevitable after the terrorist attacks of Sept. 11, 2001.
Draconian measures cannot be rolled back once imposed. That has been the fate of many democratic societies, long ago perished.
Our basic premise from the founding of America is that a person in a criminal proceeding is innocent until proven guilty. Police can arrest upon suspicion but a Grand Jury composed of ordinary citizens must hear evidence sufficient to bind a defendant over for trial.
Even before a Grand Jury convenes to hear felony charges a defendant is entitled to be promptly brought before a judge. The judge must be an impartial arbiter standing between the police and prosecutor and the accused. There should be a sorting out at this stage, not the inevitable routine of degrading the defendant and rubber stamping papers with the innocent at law being then returned to jail cells until bail is determined.
Bail today is being used as punishment. The federal system of justice is often at fault in requiring high bail. Most often it is a grand-stand play between federal prosecutors and the court. There is the news conference where officials from federal agencies, ambitious prosecutors, and agency heads display the products of their investigation. Many of these public officials get their start in politics this way. How else do they receive media exposure?
The next step is a degrading process where the innocent is paraded before cameras shackled, stripped of personal clothing and looking, for all to see, ashamed. Can such a person receive a fair trial thereafter? Certainly not in a free society. That person is already branded a criminal and condemned.
am no bleeding heart liberal. I do not assume arbitrarily that defendants are framed and all will be found not guilty. They are innocent until proven guilty and must be accorded the dignity and respect required by our Constitution.
Degrading techniques used in our courtrooms veiled as security measures are being used as a means of condemning the innocent before trial. Where is the U.S. Supreme Court when we need it?
John Christopher Fine served as Senior Asst DA in New York County, Director of the Organized Crime Task Force and Special Counsel to a U.S. Senate investigating committee.
Saturday, November 26, 2011
Judge Ken Anderson still can’t tell the truth about the Morton case
The following opinion by Lamar Hankins was published in the San Marcos Mercury on November 21, 2011.
Former Williamson County District Attorney Ken Anderson, now a Williamson County District Judge, who wrongfully secured the conviction of Michael Morton 25 years ago for killing his wife Christine, has apologized in a press conference held a few days ago. Anderson’s apology appears taken right out of the Politics 101 Manual–admit that a mistake was made, but explain the mistake away. The first problem with his apology, however, is that he began it with telling a lie.
Anderson said, “Twenty-five years ago, Michael Morton was convicted of murdering his wife in this very courthouse. The jury’s verdict was based on the evidence as we knew it at the time.” Thanks to the work of the Innocence Project, we now know that the evidence Anderson had available to him at the time of trial, but Morton’s defense attorneys did not have, included a statement made by Morton’s three-year old son to his grandmother that a “monster” with a mustache killed his mother, not Morton. Had defense attorneys been given this information, which Anderson was required by law to reveal, Morton might not have been convicted. Anderson violated his sworn duty to reveal that information.
In addition, Anderson knew that a check to Christine Morton had been cashed nine days after her murder by someone who forged Christine’s signature, but Anderson withheld this evidence from defense attorneys. Anderson violated his sworn duty to reveal that information.
And there was evidence that someone had used Christine Morton’s credit card in San Antonio after she was killed, but Anderson failed to tell defense attorneys, and no law enforcement agency apparently followed up on this information after it was received by the Williamson County Sheriff’s Office (WCSO). Anderson violated his sworn duty to reveal that information.
One final piece of nondisclosed evidence that Anderson knew about or should have known about was a report by a neighbor that around the time of Christine Morton’s murder, he had seen a suspicious person park a green van behind the Mortons’ house on several occasions and walk into the adjacent wooded area. A second neighbor also had information about this suspicious person. Anderson violated his sworn duty to reveal that information.
The Texas Code of Criminal procedure provides that “It shall be the primary duty of all prosecuting attorneys,. . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” In 1963, the US Supreme Court held in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Furthermore, Article I, Section 19 of the Texas Constitution gives an accused the same rights recognized in the Brady decision.
And the prosecution has a duty to learn of and disclose the exculpatory evidence in the possession of all members of the prosecution team, which includes the police, other law enforcement agencies, such as the WCSO, and other investigators working with or on behalf of the state. In 1985, the US Supreme Court held that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.”
All of the withheld evidence would have met that standard. We know this because immediately after the trial the assistant prosecutor in Morton’s case, Mike Davis, told some of the trial jurors after the trial that the state had failed to disclose some “investigatory materials to the defense.” Davis said that if the defense had gotten the materials, it would have been able to raise even more doubt than it did about Morton’s guilt. (See the Motion for New Trial filed on March 17, 1987, by defense attorney William P. Allison.)
While a bandanna with blood and hair fibers on it was found near the Mortons’ house during the investigation, it provided no help to Morton because DNA testing was in its infancy, but Anderson is using the earlier absence of DNA evidence as a smoke-screen to hide his malfeasance, claiming that this new evidence is all that matters in showing Morton’s innocence. Judge Anderson now wants to pretend that he did nothing wrong and should be forgiven for securing a wrongful conviction, but he fought a subpoena to give testimony under oath for weeks, exhausting all appeals before being compelled to answer questions posed by Morton’s post-conviction attorneys, who represent the Innocence Project. Morton was released from prison a few weeks ago after the DNA evidence on the bandanna implicated another man in his wife’s murder.
This past week, the Austin American-Statesman reported: “On Nov. 9, Williamson County sheriff’s officers charged Mark Norwood, a Bastrop dishwasher and former carpet installer, with the murder of Christine Morton. DNA tests conducted last summer found Norwood’s DNA on a bandanna that had been collected from a construction site behind the Morton home the day after the murder. Tests on the cloth were inconclusive in 1986, but the recent DNA tests confirmed that the bandanna also contained Christine Morton’s blood and one of her hairs. Norwood also is a suspect in the 1988 Austin murder of Debra Masters Baker. Like Morton, Baker had been beaten to death in her bed. No charges have been filed in the Baker case, which had remained unsolved.”
Judge Anderson says he believes that 25 years ago he complied with the requirements then in place to disclose evidence that might tend to show the innocence of Morton. After refreshing his memory by reviewing the files that he compiled then, Anderson said, “I believe that the state’s prosecution team complied with all orders from the court and with the law on pretrial discovery and disclosures as it existed in 1987.” Once again, Anderson will not admit the essential wrong-doing that he committed while serving as Williamson County District Attorney.
If Anderson continues to insist that he did nothing wrong 25 years ago, he further diminishes the reputation of another Williamson County district judge, the late Judge Bill Lott, who presided over the Morton trial. Anderson claims that he submitted to Judge Lott files that were not given to the defense for Judge Lott’s review to determine whether they included exculpatory evidence. Judge Lott did not find any exculpatory evidence in the files. If Anderson gave Judge Lott any of the exculpatory evidence discussed above, and Lott ruled it was not exculpatory, he is implicated in this on-going cover-up, as well.
There is nothing new in Anderson’s conduct. For anyone who has spent much time working in what is mistakenly called “the criminal justice system,” misconduct by prosecutors is not only common, but widely known. While prosecutors love to tell jurors that they have a duty to see that justice is done, what they really like to do is convict people of crimes. The less scrupulous ones don’t care about what is termed “exculpatory evidence.” Anderson was one of that kind of prosecutor. He helped build the reputation of the Williamson County District Attorney’s office as a hard-nosed, “hang’em high” fiefdom, destitute of actual justice.
I have known prosecutors who bragged that the milk of human kindness did not flow through their veins. I have seen prosecutors who worked out their own sociopathic tendencies by being as hard, mean, and indifferent to human welfare as the most callous criminal. In fact, prosecuting is one of the professions where sociopathic behavior is regularly rewarded by advancement in the profession and sometimes by election to the position of District Attorney.
Fortunately, not all District Attorneys and prosecutors take out their own personality defects through their work. There are many hard-working, diligent prosecutors who primarily seek justice, not convictions, but Williamson County in recent decades has not produced too many of this kind. Judge Anderson and the current occupant of his former position, John Bradley, have done a disservice to the notion of justice. Bradley fought even the testing of the DNA evidence in Morton’s case until he had exhausted all avenues of interposition.
During this same period, Bradley served as Gov. Rick Perry’s minion as the head of the Texas Forensic Science Commission in an attempt to keep evidence of Cameron Todd Willingham’s wrongful conviction and execution from being officially acknowledged. Bradley now claims to have had a Damascus Road experience and to be a changed man, following only the path of righteousness as a prosecutor. I’ll believe that when Willingham comes back to life.
The average citizen does not know the level of corruption that can exist in a system such as the Williamson County District Attorney’s office. When a prosecutor is working in a courtroom with a prosecutor-friendly judge, there is nothing that can be done in the prosecution of a defendant that is too extreme. Many defense attorneys are too timid to vigorously defend their clients in such a hostile environment. I have known attorneys who have gone from being prosecutors to defense attorneys and vice versa, and those who have gone from being prosecutors or defense attorneys to being District Attorneys or judges. Most of them do so with integrity and faithfulness to the highest ideals of the profession.
Unfortunately, Ken Anderson and John Bradley do not represent this latter group. They have been comfortable with ignoring the requirements of the law, judicial decisions, and the ethical code they are sworn to uphold, which provides that “The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”
Whatever Ken Anderson says now, the record shows that he failed in his legal and ethical duties in the Morton case. It was a personal moral failure, a professional failure, and a failure to do justice to Michael Morton, Christine Morton, the Mortons’ young son, the entire Morton family, the actual murderer of Christine Morton and Debra Baker, the citizens of Williamson County and the State of Texas, and to the system of justice that Americans believe makes us special among nations. Maybe our system is not so special after all.
Former Williamson County District Attorney Ken Anderson, now a Williamson County District Judge, who wrongfully secured the conviction of Michael Morton 25 years ago for killing his wife Christine, has apologized in a press conference held a few days ago. Anderson’s apology appears taken right out of the Politics 101 Manual–admit that a mistake was made, but explain the mistake away. The first problem with his apology, however, is that he began it with telling a lie.
Anderson said, “Twenty-five years ago, Michael Morton was convicted of murdering his wife in this very courthouse. The jury’s verdict was based on the evidence as we knew it at the time.” Thanks to the work of the Innocence Project, we now know that the evidence Anderson had available to him at the time of trial, but Morton’s defense attorneys did not have, included a statement made by Morton’s three-year old son to his grandmother that a “monster” with a mustache killed his mother, not Morton. Had defense attorneys been given this information, which Anderson was required by law to reveal, Morton might not have been convicted. Anderson violated his sworn duty to reveal that information.
In addition, Anderson knew that a check to Christine Morton had been cashed nine days after her murder by someone who forged Christine’s signature, but Anderson withheld this evidence from defense attorneys. Anderson violated his sworn duty to reveal that information.
And there was evidence that someone had used Christine Morton’s credit card in San Antonio after she was killed, but Anderson failed to tell defense attorneys, and no law enforcement agency apparently followed up on this information after it was received by the Williamson County Sheriff’s Office (WCSO). Anderson violated his sworn duty to reveal that information.
One final piece of nondisclosed evidence that Anderson knew about or should have known about was a report by a neighbor that around the time of Christine Morton’s murder, he had seen a suspicious person park a green van behind the Mortons’ house on several occasions and walk into the adjacent wooded area. A second neighbor also had information about this suspicious person. Anderson violated his sworn duty to reveal that information.
The Texas Code of Criminal procedure provides that “It shall be the primary duty of all prosecuting attorneys,. . . not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” In 1963, the US Supreme Court held in Brady v. Maryland that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Furthermore, Article I, Section 19 of the Texas Constitution gives an accused the same rights recognized in the Brady decision.
And the prosecution has a duty to learn of and disclose the exculpatory evidence in the possession of all members of the prosecution team, which includes the police, other law enforcement agencies, such as the WCSO, and other investigators working with or on behalf of the state. In 1985, the US Supreme Court held that evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.”
All of the withheld evidence would have met that standard. We know this because immediately after the trial the assistant prosecutor in Morton’s case, Mike Davis, told some of the trial jurors after the trial that the state had failed to disclose some “investigatory materials to the defense.” Davis said that if the defense had gotten the materials, it would have been able to raise even more doubt than it did about Morton’s guilt. (See the Motion for New Trial filed on March 17, 1987, by defense attorney William P. Allison.)
While a bandanna with blood and hair fibers on it was found near the Mortons’ house during the investigation, it provided no help to Morton because DNA testing was in its infancy, but Anderson is using the earlier absence of DNA evidence as a smoke-screen to hide his malfeasance, claiming that this new evidence is all that matters in showing Morton’s innocence. Judge Anderson now wants to pretend that he did nothing wrong and should be forgiven for securing a wrongful conviction, but he fought a subpoena to give testimony under oath for weeks, exhausting all appeals before being compelled to answer questions posed by Morton’s post-conviction attorneys, who represent the Innocence Project. Morton was released from prison a few weeks ago after the DNA evidence on the bandanna implicated another man in his wife’s murder.
This past week, the Austin American-Statesman reported: “On Nov. 9, Williamson County sheriff’s officers charged Mark Norwood, a Bastrop dishwasher and former carpet installer, with the murder of Christine Morton. DNA tests conducted last summer found Norwood’s DNA on a bandanna that had been collected from a construction site behind the Morton home the day after the murder. Tests on the cloth were inconclusive in 1986, but the recent DNA tests confirmed that the bandanna also contained Christine Morton’s blood and one of her hairs. Norwood also is a suspect in the 1988 Austin murder of Debra Masters Baker. Like Morton, Baker had been beaten to death in her bed. No charges have been filed in the Baker case, which had remained unsolved.”
Judge Anderson says he believes that 25 years ago he complied with the requirements then in place to disclose evidence that might tend to show the innocence of Morton. After refreshing his memory by reviewing the files that he compiled then, Anderson said, “I believe that the state’s prosecution team complied with all orders from the court and with the law on pretrial discovery and disclosures as it existed in 1987.” Once again, Anderson will not admit the essential wrong-doing that he committed while serving as Williamson County District Attorney.
If Anderson continues to insist that he did nothing wrong 25 years ago, he further diminishes the reputation of another Williamson County district judge, the late Judge Bill Lott, who presided over the Morton trial. Anderson claims that he submitted to Judge Lott files that were not given to the defense for Judge Lott’s review to determine whether they included exculpatory evidence. Judge Lott did not find any exculpatory evidence in the files. If Anderson gave Judge Lott any of the exculpatory evidence discussed above, and Lott ruled it was not exculpatory, he is implicated in this on-going cover-up, as well.
There is nothing new in Anderson’s conduct. For anyone who has spent much time working in what is mistakenly called “the criminal justice system,” misconduct by prosecutors is not only common, but widely known. While prosecutors love to tell jurors that they have a duty to see that justice is done, what they really like to do is convict people of crimes. The less scrupulous ones don’t care about what is termed “exculpatory evidence.” Anderson was one of that kind of prosecutor. He helped build the reputation of the Williamson County District Attorney’s office as a hard-nosed, “hang’em high” fiefdom, destitute of actual justice.
I have known prosecutors who bragged that the milk of human kindness did not flow through their veins. I have seen prosecutors who worked out their own sociopathic tendencies by being as hard, mean, and indifferent to human welfare as the most callous criminal. In fact, prosecuting is one of the professions where sociopathic behavior is regularly rewarded by advancement in the profession and sometimes by election to the position of District Attorney.
Fortunately, not all District Attorneys and prosecutors take out their own personality defects through their work. There are many hard-working, diligent prosecutors who primarily seek justice, not convictions, but Williamson County in recent decades has not produced too many of this kind. Judge Anderson and the current occupant of his former position, John Bradley, have done a disservice to the notion of justice. Bradley fought even the testing of the DNA evidence in Morton’s case until he had exhausted all avenues of interposition.
During this same period, Bradley served as Gov. Rick Perry’s minion as the head of the Texas Forensic Science Commission in an attempt to keep evidence of Cameron Todd Willingham’s wrongful conviction and execution from being officially acknowledged. Bradley now claims to have had a Damascus Road experience and to be a changed man, following only the path of righteousness as a prosecutor. I’ll believe that when Willingham comes back to life.
The average citizen does not know the level of corruption that can exist in a system such as the Williamson County District Attorney’s office. When a prosecutor is working in a courtroom with a prosecutor-friendly judge, there is nothing that can be done in the prosecution of a defendant that is too extreme. Many defense attorneys are too timid to vigorously defend their clients in such a hostile environment. I have known attorneys who have gone from being prosecutors to defense attorneys and vice versa, and those who have gone from being prosecutors or defense attorneys to being District Attorneys or judges. Most of them do so with integrity and faithfulness to the highest ideals of the profession.
Unfortunately, Ken Anderson and John Bradley do not represent this latter group. They have been comfortable with ignoring the requirements of the law, judicial decisions, and the ethical code they are sworn to uphold, which provides that “The prosecutor in a criminal case shall . . . make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”
Whatever Ken Anderson says now, the record shows that he failed in his legal and ethical duties in the Morton case. It was a personal moral failure, a professional failure, and a failure to do justice to Michael Morton, Christine Morton, the Mortons’ young son, the entire Morton family, the actual murderer of Christine Morton and Debra Baker, the citizens of Williamson County and the State of Texas, and to the system of justice that Americans believe makes us special among nations. Maybe our system is not so special after all.
USDOJ's "Public Integrity" Unit
On October 27, 2008, Alaska Senator Ted Stevens, a pillar of the Senate for 40 years, was convicted of a seven-felony string of corruption charges -- found guilty of accepting a bonanza of home renovations and fancy trimmings from an oil executive and then lying about it. The conviction came just in time to cost him re-election. After all, who has more credibility, a convicted felon or an elite team of prosecutors brought together to ensure that elected officials maintain the highest level of integrity? As it turns out, it's the felon who is more credible. The hot-shot "Public Integrity" prosecutors hid evidence of Sen. Stevens' innocence in order to get a conviction. They acted no more honorably than cheating prosecutors all over the country, the kind that distraught citizens turn to the "Public Integrity" Unit to rein in.
Sentor Stevens was exonerated more than a year before he died in a plane crash on August 9, 2010. Six weeks later, Nicholas Marsh, one of the "Public Integrity" prosecutors, committed suicide. The official investigation of the USDOJ prosecutors continued at a snail's pace, and appears to be wrapping up with evidence of criminal misconduct that will go unpunished. Below are some highlights of the investigation, food for thought that leads inexorably to the question, If they can do this to a ranking U.S. Senator, what do they do to regular citizens?
December 23, 2008. A special agent with the FBI is accusing government prosecutors in the Ted Stevens case of intentionally withholding exculpatory evidence from Stevens' lawyers and scheming to conceal a witness from the defense team. Did the government cheat to convict the Senator?
February 14, 2009. An angry federal judge held Justice Department lawyers in contempt yesterday for failing to deliver documents to former senator Ted Stevens's legal team, as he had ordered. "That was a court order," U.S. District Judge Emmet G. Sullivan bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?" Judges rarely hold prosecutors in contempt. They're following in Mike Nifong's footsteps.
November 21, 2011. The lawyer investigating allegations of misconduct in the investigation and prosecution of the late Alaska Senator Ted Stevens is not recommending that any of the government's lawyers face criminal charges. Still, the special prosecutor's report, filed in the chambers of U.S. District Judge Emmet Sullivan, revealed "systemic concealment" of favorable information that would have corroborated the former Republicans senator’s defense that he did not knowingly file false Senate financial disclosure forms. They're getting off a lot lighter than their victim did.
Sentor Stevens was exonerated more than a year before he died in a plane crash on August 9, 2010. Six weeks later, Nicholas Marsh, one of the "Public Integrity" prosecutors, committed suicide. The official investigation of the USDOJ prosecutors continued at a snail's pace, and appears to be wrapping up with evidence of criminal misconduct that will go unpunished. Below are some highlights of the investigation, food for thought that leads inexorably to the question, If they can do this to a ranking U.S. Senator, what do they do to regular citizens?
December 23, 2008. A special agent with the FBI is accusing government prosecutors in the Ted Stevens case of intentionally withholding exculpatory evidence from Stevens' lawyers and scheming to conceal a witness from the defense team. Did the government cheat to convict the Senator?
February 14, 2009. An angry federal judge held Justice Department lawyers in contempt yesterday for failing to deliver documents to former senator Ted Stevens's legal team, as he had ordered. "That was a court order," U.S. District Judge Emmet G. Sullivan bellowed. "That wasn't a request. I didn't ask for them out of the kindness of your hearts. . . . Isn't the Department of Justice taking court orders seriously these days?" Judges rarely hold prosecutors in contempt. They're following in Mike Nifong's footsteps.
November 21, 2011. The lawyer investigating allegations of misconduct in the investigation and prosecution of the late Alaska Senator Ted Stevens is not recommending that any of the government's lawyers face criminal charges. Still, the special prosecutor's report, filed in the chambers of U.S. District Judge Emmet Sullivan, revealed "systemic concealment" of favorable information that would have corroborated the former Republicans senator’s defense that he did not knowingly file false Senate financial disclosure forms. They're getting off a lot lighter than their victim did.
Saturday, November 05, 2011
Buying and selling judges
The following editorial was published by the Washington Post on November 5, 2011.
FOR THOSE who believe that judges should be bought, sold and marketed like any other product, the 2009-10 election cycle brought welcome developments. Special-interest groups from both the left and right inundated judicial campaigns across the country with record levels of cash. These groups — dominated by lawyers, lobbyists, businesses and political parties — independently spent a combined $11.5 million, or nearly one-third of the $38 million spent on these campaigns.
The money is question is a pittance compared to the sums spent by groups and candidates for political office, but its impact is profound. Campaigns become demonstrably nastier as the level of outside group involvement increases. Outside groups, for example, were responsible for funding three out of every four attack ads aired during the 2009-10 judicial election campaign season.
These are but a few of the disturbing findings in a recent report by Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — a trio of public-interest groups that follow judicial elections closely. The revelations once more affirm the need to discard the election of judges.
Total spending in judicial campaigns dipped during 2009-10, typical for for off-year elections. But the incursion and influence of special interests grew. Just 10 outside groups accounted for nearly 40 percent of the spending nationwide. Lawyers and lobbyists provided the most direct contributions to candidates, funneling $8.5 million to judicial campaigns. They were followed by business groups and political parties, with $6.2 million and $3.5 million, respectively.
Unopposed retention elections — in which voters give a thumbs up or thumbs down to sitting judges — no longer insulate jurists from the most pernicious political elements. National spending on these elections between 2000 and 2009 amounted to just over $2 million, but they attracted nearly $5 million just during the 2009-10 cycle. National interest groups poured hundreds of thousands of dollars into the successful campaign to unseat three Iowa Supreme Court justices who joined a decision recognizing same-sex marriage. The message was clear: Render decisions that rile the public and risk the loss of your seat.
This is precisely the problem with judicial elections. Judges should not have to worry about pleasing political constituencies — whether they are business groups, unions or those who support a particular definition of marriage. Judges in many circumstances are meant to be a check against these forces and the unconstitutional excesses of the elected bodies. The notion of impartial justice for all is obliterated when judges are forced to think like politicians and to curry favor with monied interests just to keep their jobs.
FOR THOSE who believe that judges should be bought, sold and marketed like any other product, the 2009-10 election cycle brought welcome developments. Special-interest groups from both the left and right inundated judicial campaigns across the country with record levels of cash. These groups — dominated by lawyers, lobbyists, businesses and political parties — independently spent a combined $11.5 million, or nearly one-third of the $38 million spent on these campaigns.
The money is question is a pittance compared to the sums spent by groups and candidates for political office, but its impact is profound. Campaigns become demonstrably nastier as the level of outside group involvement increases. Outside groups, for example, were responsible for funding three out of every four attack ads aired during the 2009-10 judicial election campaign season.
These are but a few of the disturbing findings in a recent report by Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — a trio of public-interest groups that follow judicial elections closely. The revelations once more affirm the need to discard the election of judges.
Total spending in judicial campaigns dipped during 2009-10, typical for for off-year elections. But the incursion and influence of special interests grew. Just 10 outside groups accounted for nearly 40 percent of the spending nationwide. Lawyers and lobbyists provided the most direct contributions to candidates, funneling $8.5 million to judicial campaigns. They were followed by business groups and political parties, with $6.2 million and $3.5 million, respectively.
Unopposed retention elections — in which voters give a thumbs up or thumbs down to sitting judges — no longer insulate jurists from the most pernicious political elements. National spending on these elections between 2000 and 2009 amounted to just over $2 million, but they attracted nearly $5 million just during the 2009-10 cycle. National interest groups poured hundreds of thousands of dollars into the successful campaign to unseat three Iowa Supreme Court justices who joined a decision recognizing same-sex marriage. The message was clear: Render decisions that rile the public and risk the loss of your seat.
This is precisely the problem with judicial elections. Judges should not have to worry about pleasing political constituencies — whether they are business groups, unions or those who support a particular definition of marriage. Judges in many circumstances are meant to be a check against these forces and the unconstitutional excesses of the elected bodies. The notion of impartial justice for all is obliterated when judges are forced to think like politicians and to curry favor with monied interests just to keep their jobs.
Saturday, October 29, 2011
Texas Must Test DNA Before Carrying Out Skinner Execution
The following opinion by Kirk Bloodsworth was published by the Huffington Post on October 26, 2011.
Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.
In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.
DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.
The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.
Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.
Such testing could resolve the doubts that persist in Mr. Skinner's case. For example, a man's windbreaker was found next to the body of Mr. Skinner's girlfriend Twila Busby, who was tragically murdered along with her two sons. Untested DNA evidence on the windbreaker includes blood spatter, human hairs, and perspiration stains. Investigation after Mr. Skinner was sent to Death Row revealed that another suspect had stalked Ms. Busby at a party on the night of the murder and left the party shortly after she did.
It would be indefensible for Texas to execute Mr. Skinner without taking the simple step of testing the DNA evidence. Over a dozen former prosecutors, judges and law enforcement and current and former Texas elected officials have called on state officials, including the Gray County District Attorney, the Texas Attorney General and Governor Rick Perry, to conduct the DNA testing. The State ought to heed these calls and do everything possible to be sure they have convicted the right person, particularly when it comes to death penalty cases.
Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.
Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.
The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.
DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.
Kirk Bloodsworth was exonerated by DNA testing in 1993 after spending eight years in Maryland prison, two on death row, for a crime he did not commit. Mr. Bloodsworth was the first exoneree in a capital conviction in the United States.
Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.
In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.
DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.
The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.
Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.
Such testing could resolve the doubts that persist in Mr. Skinner's case. For example, a man's windbreaker was found next to the body of Mr. Skinner's girlfriend Twila Busby, who was tragically murdered along with her two sons. Untested DNA evidence on the windbreaker includes blood spatter, human hairs, and perspiration stains. Investigation after Mr. Skinner was sent to Death Row revealed that another suspect had stalked Ms. Busby at a party on the night of the murder and left the party shortly after she did.
It would be indefensible for Texas to execute Mr. Skinner without taking the simple step of testing the DNA evidence. Over a dozen former prosecutors, judges and law enforcement and current and former Texas elected officials have called on state officials, including the Gray County District Attorney, the Texas Attorney General and Governor Rick Perry, to conduct the DNA testing. The State ought to heed these calls and do everything possible to be sure they have convicted the right person, particularly when it comes to death penalty cases.
Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.
Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.
The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.
DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.
Kirk Bloodsworth was exonerated by DNA testing in 1993 after spending eight years in Maryland prison, two on death row, for a crime he did not commit. Mr. Bloodsworth was the first exoneree in a capital conviction in the United States.
Friday, October 28, 2011
Nationwide Tour Seeking Policy Reforms to Prevent Prosecutorial Misconduct
Press Release
Veritas Initiative, Innocence Project, Innocence Project New Orleans and Voices of Innocence Will Embark on Nationwide Tour Seeking Policy Reforms to Prevent Prosecutorial Misconduct
Death Row Exoneree John Thompson, Who Was Stripped of His $14 Million Civil Award for Prosecutorial Misconduct by the U.S. Supreme Court, Will Headline Events
Contact: Audrey Redmond, 408-554-4790, cell 408-396-1360, alredmond@scu.edu
Paul Cates, 212-364-5346, cell 917-566-1294, pcates@innocenceproject.org
(Washington, D.C. – October 27, 2011) Today the Northern California Innocence Project’s Veritas Initiative, the Innocence Project, the Innocence Project New Orleans, and Voices of Innocence announced plans to conduct a nationwide tour, “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson,” to explore policy reforms to prevent prosecutorial misconduct. John Thompson, who lost his appeal before the U.S. Supreme Court in 2011 and was stripped of his $14 million civil award for the intentional misconduct that caused his wrongful murder conviction and near execution, will headline forums across the country with policy makers and prosecutors to spark a national dialogue on possible solutions.
“As someone who came within days of being put to death because of the intentional misconduct of prosecutors at the New Orleans District Attorney’s Office, I’m all too familiar with what can go wrong when the enormous power of prosecutors goes unchecked,” said Thompson, Founder and Director of Resurrection After Exoneration and Voices of Innocence; “My case was not an isolated incident. Of the six men who received the death penalty at the hands of one of my prosecutors, five had their convictions reversed because of prosecutorial misconduct. I know that most prosecutors are as bothered by this behavior as I am, and I call on them to help us find a way to make prosecutors’ offices more accountable.”
The tour, which will include stops in Arizona, California, Louisiana, New York, Pennsylvania and Texas, will bring together participants from all aspects of the criminal justice system including legal ethics professors, members of bar disciplinary committees, prosecutors and judges. At the end of the tour, the groups will prepare a report with recommendations for reform.
“We recognize that this is a complex problem. It is not easy to develop internal systems in prosecutors’ offices that effectively distinguish between error and misconduct nor independent institutions outside of their offices that can adequately investigate and remedy misconduct when it occurs. A serious, thoughtful, constructive discussion of this issue, conducted without posturing or finger pointing, is an appropriate response to John Thompson’s case, which makes it clear that civil suits against prosecutors are virtually impossible,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
Kathleen Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative, added, “Allowing this type of misconduct to persist undercuts public trust and undermines prosecutors who do their jobs properly. Prosecutors – who are no doubt just as concerned about misconduct as we are – are in an excellent position to help identify and correct improper prosecutorial actions. Their input will be invaluable as we move forward with collaborative discussions focused on solving this problem.”
At each stop on the tour, the groups will release new state specific research illustrating the scope of the problem. This research will mirror research that was released last year in California by the Veritas Initiative in Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, which documented 707 instances where an appellate court found misconduct during the 13 year period, but found that only 7 prosecutors were disciplined.
“There’s no question that prosecutors have tremendous responsibility to protect our safety, but everyone suffers when prosecutors put their zeal for winning above finding the truth. We’ve seen too many situations where the innocent are unjustly punished because of prosecutorial misconduct. The current mechanisms of accountability are not working. These forums are an important step towards reform that is long overdue,” said Angela Davis, professor of law at American University's Washington College of Law and author of Arbitrary Justice: The Power of the American Prosecutor.
Questions that panelists will discuss at the forums will include:
What are the systems we rely upon to ensure prosecutorial accountability?
What does research-based evidence tell us about how well those systems are working?
What improvements should be made to these systems to ensure quality and accountability?
A video of today’s press conference and additional information about “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson” is available at http://www.prosecutorialoversight.org.
##
Veritas Initiative, Innocence Project, Innocence Project New Orleans and Voices of Innocence Will Embark on Nationwide Tour Seeking Policy Reforms to Prevent Prosecutorial Misconduct
Death Row Exoneree John Thompson, Who Was Stripped of His $14 Million Civil Award for Prosecutorial Misconduct by the U.S. Supreme Court, Will Headline Events
Contact: Audrey Redmond, 408-554-4790, cell 408-396-1360, alredmond@scu.edu
Paul Cates, 212-364-5346, cell 917-566-1294, pcates@innocenceproject.org
(Washington, D.C. – October 27, 2011) Today the Northern California Innocence Project’s Veritas Initiative, the Innocence Project, the Innocence Project New Orleans, and Voices of Innocence announced plans to conduct a nationwide tour, “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson,” to explore policy reforms to prevent prosecutorial misconduct. John Thompson, who lost his appeal before the U.S. Supreme Court in 2011 and was stripped of his $14 million civil award for the intentional misconduct that caused his wrongful murder conviction and near execution, will headline forums across the country with policy makers and prosecutors to spark a national dialogue on possible solutions.
“As someone who came within days of being put to death because of the intentional misconduct of prosecutors at the New Orleans District Attorney’s Office, I’m all too familiar with what can go wrong when the enormous power of prosecutors goes unchecked,” said Thompson, Founder and Director of Resurrection After Exoneration and Voices of Innocence; “My case was not an isolated incident. Of the six men who received the death penalty at the hands of one of my prosecutors, five had their convictions reversed because of prosecutorial misconduct. I know that most prosecutors are as bothered by this behavior as I am, and I call on them to help us find a way to make prosecutors’ offices more accountable.”
The tour, which will include stops in Arizona, California, Louisiana, New York, Pennsylvania and Texas, will bring together participants from all aspects of the criminal justice system including legal ethics professors, members of bar disciplinary committees, prosecutors and judges. At the end of the tour, the groups will prepare a report with recommendations for reform.
“We recognize that this is a complex problem. It is not easy to develop internal systems in prosecutors’ offices that effectively distinguish between error and misconduct nor independent institutions outside of their offices that can adequately investigate and remedy misconduct when it occurs. A serious, thoughtful, constructive discussion of this issue, conducted without posturing or finger pointing, is an appropriate response to John Thompson’s case, which makes it clear that civil suits against prosecutors are virtually impossible,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
Kathleen Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative, added, “Allowing this type of misconduct to persist undercuts public trust and undermines prosecutors who do their jobs properly. Prosecutors – who are no doubt just as concerned about misconduct as we are – are in an excellent position to help identify and correct improper prosecutorial actions. Their input will be invaluable as we move forward with collaborative discussions focused on solving this problem.”
At each stop on the tour, the groups will release new state specific research illustrating the scope of the problem. This research will mirror research that was released last year in California by the Veritas Initiative in Preventable Error: A Report on Prosecutorial Misconduct in California 1997-2009, which documented 707 instances where an appellate court found misconduct during the 13 year period, but found that only 7 prosecutors were disciplined.
“There’s no question that prosecutors have tremendous responsibility to protect our safety, but everyone suffers when prosecutors put their zeal for winning above finding the truth. We’ve seen too many situations where the innocent are unjustly punished because of prosecutorial misconduct. The current mechanisms of accountability are not working. These forums are an important step towards reform that is long overdue,” said Angela Davis, professor of law at American University's Washington College of Law and author of Arbitrary Justice: The Power of the American Prosecutor.
Questions that panelists will discuss at the forums will include:
What are the systems we rely upon to ensure prosecutorial accountability?
What does research-based evidence tell us about how well those systems are working?
What improvements should be made to these systems to ensure quality and accountability?
A video of today’s press conference and additional information about “Prosecutorial Oversight: A National Dialogue in the Wake of Connick v. Thompson” is available at http://www.prosecutorialoversight.org.
##
Wednesday, September 28, 2011
Wisconsin AG Van Hollen’s dereliction of his duty
The following editorial was published by the Madison Capital Times on September 28, 2011.
It is no secret that Wisconsin Attorney General J.B. Van Hollen regularly chooses to serve his political masters rather than the public interest.
In 2008, after attending a Republican National Convention session with White House political czar Karl Rove, Van Hollen returned with a grand plan to erect barriers to voting in Wisconsin. The courts rejected this last-ditch effort to avert defeat for the GOP that year.
But Van Hollen was back the next year, refusing for political reasons to defend the state’s domestic partnership registry.
Then he steered state resources into a fight against health care reform that was ginned up by the American Legislative Exchange Council and other right-wing groups.
This spring Van Hollen decided not to prosecute former Calumet County District Attorney Ken Kratz, a fellow Republican, on criminal charges of sexual assault and abuse of the public trust after Kratz reportedly sent 30 text messages trying to strike up an affair with a domestic abuse victim while he prosecuted her ex-boyfriend on a strangulation charge. Kratz was forced to resign, but he was not held to account by Van Hollen, whose campaign Kratz backed in 2006.
Around the same time, Van Hollen decided — despite the opinion of the legal counsel for the Legislative Reference Bureau, the advice of county and city prosecutors from around the state, and the assessments of leading law professors — that the state constitution and statutes did not need to be respected in the debate over whether Gov. Scott Walker’s anti-union power grab (Act 10) could be unilaterally declared to be in force. The Legislative Reference Bureau made moves to prepare for publication of the legislation, but Secretary of State Doug La Follette used his authority to put the law’s publication on hold after a judge issued a temporary restraining order barring publication until questions could be reviewed about whether the legislation had been legally enacted. Van Hollen ignored the constitution, the statutes and the judge’s order and simply issued a press release declaring: “Act 10 is now law.”
Try as Wisconsinites might, they will have a hard time finding examples of Van Hollen placing duty above party and ideology.
Even when issues of corruption arise.
That has become clear with the revelation that the attorney general refused to assist the burgeoning investigation into wrongdoing by Walker aides. According to a Milwaukee Journal Sentinel report published last week, Van Hollen “was asked months ago to assist in a growing secret investigation of former and current aides to Gov. Scott Walker, but Van Hollen’s office declined, sources familiar with the request said Tuesday.”
Why are taxpayers paying Van Hollen if he will not support law enforcement in Wisconsin?
That’s the question Scot Ross, director of One Wisconsin Now, is asking. And it’s a good one.
“J.B. Van Hollen owes the people of Wisconsin answers immediately as to why he would not investigate these potential crimes,” said Ross. “Van Hollen’s refusal to investigate Scott Walker’s ‘cronygate’ raises serious questions about his integrity and fitness to continue to serve as our state’s attorney general.”
Any serious lawman would recognize the significance of recent developments.
The official and personal computers of aides to Walker when he served as Milwaukee County executive (a position he held until this year) have been seized as part of a John Doe investigation, which reportedly is focusing on whether Walker aides ran his campaign out of a public office. It appears that the probe, which is being conducted by the Milwaukee County District Attorney’s Office, involves several aides who are now part of the governor’s administration.
Top officials in the Walker administration have abruptly stepped down or been moved out of key positions as the probe has expanded. The governor’s press secretary has been granted immunity.
This is a serious and expanding scandal.
So why has Van Hollen refused to help?
Not because he does not assist John Doe probes in Milwaukee County. He has done so in the past.
And not because the Department of Justice was unneeded. It now appears that the FBI was called in at least in part to provide the sort of technical assistance that Van Hollen refused to deliver.
“It’s now clear Van Hollen only investigates cases that further his partisan agenda,” said Ross. “But when his political allies like Walker are in trouble, he sits on his hands.”
That’s a harsh assessment.
We once held out hope that Van Hollen would maintain Wisconsin’s tradition of independent and ethical law enforcement by attorneys general who place principle above party. But his record of extreme partisanship suggests that the criticisms are credible.
They also raise a core question: If it is not politics, then what is the explanation for why Wisconsin’s top law enforcement officer is refusing to help prosecutors enforce the law?
It is no secret that Wisconsin Attorney General J.B. Van Hollen regularly chooses to serve his political masters rather than the public interest.
In 2008, after attending a Republican National Convention session with White House political czar Karl Rove, Van Hollen returned with a grand plan to erect barriers to voting in Wisconsin. The courts rejected this last-ditch effort to avert defeat for the GOP that year.
But Van Hollen was back the next year, refusing for political reasons to defend the state’s domestic partnership registry.
Then he steered state resources into a fight against health care reform that was ginned up by the American Legislative Exchange Council and other right-wing groups.
This spring Van Hollen decided not to prosecute former Calumet County District Attorney Ken Kratz, a fellow Republican, on criminal charges of sexual assault and abuse of the public trust after Kratz reportedly sent 30 text messages trying to strike up an affair with a domestic abuse victim while he prosecuted her ex-boyfriend on a strangulation charge. Kratz was forced to resign, but he was not held to account by Van Hollen, whose campaign Kratz backed in 2006.
Around the same time, Van Hollen decided — despite the opinion of the legal counsel for the Legislative Reference Bureau, the advice of county and city prosecutors from around the state, and the assessments of leading law professors — that the state constitution and statutes did not need to be respected in the debate over whether Gov. Scott Walker’s anti-union power grab (Act 10) could be unilaterally declared to be in force. The Legislative Reference Bureau made moves to prepare for publication of the legislation, but Secretary of State Doug La Follette used his authority to put the law’s publication on hold after a judge issued a temporary restraining order barring publication until questions could be reviewed about whether the legislation had been legally enacted. Van Hollen ignored the constitution, the statutes and the judge’s order and simply issued a press release declaring: “Act 10 is now law.”
Try as Wisconsinites might, they will have a hard time finding examples of Van Hollen placing duty above party and ideology.
Even when issues of corruption arise.
That has become clear with the revelation that the attorney general refused to assist the burgeoning investigation into wrongdoing by Walker aides. According to a Milwaukee Journal Sentinel report published last week, Van Hollen “was asked months ago to assist in a growing secret investigation of former and current aides to Gov. Scott Walker, but Van Hollen’s office declined, sources familiar with the request said Tuesday.”
Why are taxpayers paying Van Hollen if he will not support law enforcement in Wisconsin?
That’s the question Scot Ross, director of One Wisconsin Now, is asking. And it’s a good one.
“J.B. Van Hollen owes the people of Wisconsin answers immediately as to why he would not investigate these potential crimes,” said Ross. “Van Hollen’s refusal to investigate Scott Walker’s ‘cronygate’ raises serious questions about his integrity and fitness to continue to serve as our state’s attorney general.”
Any serious lawman would recognize the significance of recent developments.
The official and personal computers of aides to Walker when he served as Milwaukee County executive (a position he held until this year) have been seized as part of a John Doe investigation, which reportedly is focusing on whether Walker aides ran his campaign out of a public office. It appears that the probe, which is being conducted by the Milwaukee County District Attorney’s Office, involves several aides who are now part of the governor’s administration.
Top officials in the Walker administration have abruptly stepped down or been moved out of key positions as the probe has expanded. The governor’s press secretary has been granted immunity.
This is a serious and expanding scandal.
So why has Van Hollen refused to help?
Not because he does not assist John Doe probes in Milwaukee County. He has done so in the past.
And not because the Department of Justice was unneeded. It now appears that the FBI was called in at least in part to provide the sort of technical assistance that Van Hollen refused to deliver.
“It’s now clear Van Hollen only investigates cases that further his partisan agenda,” said Ross. “But when his political allies like Walker are in trouble, he sits on his hands.”
That’s a harsh assessment.
We once held out hope that Van Hollen would maintain Wisconsin’s tradition of independent and ethical law enforcement by attorneys general who place principle above party. But his record of extreme partisanship suggests that the criticisms are credible.
They also raise a core question: If it is not politics, then what is the explanation for why Wisconsin’s top law enforcement officer is refusing to help prosecutors enforce the law?
Monday, September 26, 2011
How we can save the next Troy Davis: Claims of innocence must be heard in death row cases
The following opinion by Katie Chamblee and Katie Mesner-Hage was published by the New York Daily News on September 24, 2011.
On Wednesday night, Georgia executed Troy Davis, despite much doubt about his guilt. Though many find it difficult to understand how our legal system could have failed to vindicate his claims of innocence, Davis did not simply slip through the cracks. Instead, his case is symptomatic of a profound flaw in our system: Our laws intentionally foreclose nearly all means of reversing a death sentence on claims of innocence, even when the testimony that led to the original conviction is recanted.
That's largely because our laws value finality over accuracy, even when a life is at stake. Retrying cases is hard, the Supreme Court has said, and overturning convictions is disruptive. The court has made the threshold for demonstrating actual innocence, in its own words, "extraordinarily high."
In fact, the court is not even in agreement that claims of innocence should be heard at all, so long as the trial that produced the wrongful conviction was technically fair. As Justice Antonin Scalia wrote in his 2009 dissent when the Supreme Court held that a federal court should hear Davis' claims of innocence, the high court "has never held that the Constitution forbids the execution of a convicted defendant" who is later able to convince a court that he is actually innocent.
Even if a defendant succeeds in getting into court, proving innocence requires far more than what is required for a "not guilty" verdict at trial. The Savannah judge who eventually heard the new evidence in Davis' case said that Davis would have to show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." So while a prosecutor must prove the defendant's guilt beyond a reasonable doubt to all 12 jurors to get a conviction at trial, to overturn his death sentence, Davis would have to show that no juror would have convicted him. In other words, evidence insufficient for a conviction can uphold a death sentence.
Davis' case has received an incredible amount of national attention, and the growing recognition that innocent people are often convicted in the first place is encouraging. Texas, for one, has recently implemented legislation that provides greater access to post-conviction DNA testing.
This is a step in the right direction, but it does nothing for defendants convicted on the basis of coerced confessions or mistaken (if not outright false) testimony. There must be a way for defendants such as these with legitimate claims of innocence to have their claims heard.
But even if a better vehicle for hearing innocence claims can be devised, the death penalty would remain a deeply flawed punishment. In a landmark 1983 study, legal scholar David Baldus found that the best predictor of whether a defendant will receive the death penalty is not the severity of the crime, but the victim's race. Baldus discovered that defendants accused of killing white victims, as Davis was, were about four times more likely to get the death penalty than defendants accused of killing black victims.
The Supreme Court has long tried in vain to correct the arbitrariness and racism of capital punishment by, as Justice Harry Blackmun put it, "tinker[ing] with the machinery of death." But the only way to put an end to the death penalty's brutal flaws is to end the death penalty itself.
Ending the death penalty for good will go far to restore the integrity of our justice system and to ensure that it serves to protect, and not victimize, the most vulnerable among us.
Chamblee and Mesner-Hage are students at Yale Law School and members of its Capital Assistance Project.
On Wednesday night, Georgia executed Troy Davis, despite much doubt about his guilt. Though many find it difficult to understand how our legal system could have failed to vindicate his claims of innocence, Davis did not simply slip through the cracks. Instead, his case is symptomatic of a profound flaw in our system: Our laws intentionally foreclose nearly all means of reversing a death sentence on claims of innocence, even when the testimony that led to the original conviction is recanted.
That's largely because our laws value finality over accuracy, even when a life is at stake. Retrying cases is hard, the Supreme Court has said, and overturning convictions is disruptive. The court has made the threshold for demonstrating actual innocence, in its own words, "extraordinarily high."
In fact, the court is not even in agreement that claims of innocence should be heard at all, so long as the trial that produced the wrongful conviction was technically fair. As Justice Antonin Scalia wrote in his 2009 dissent when the Supreme Court held that a federal court should hear Davis' claims of innocence, the high court "has never held that the Constitution forbids the execution of a convicted defendant" who is later able to convince a court that he is actually innocent.
Even if a defendant succeeds in getting into court, proving innocence requires far more than what is required for a "not guilty" verdict at trial. The Savannah judge who eventually heard the new evidence in Davis' case said that Davis would have to show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." So while a prosecutor must prove the defendant's guilt beyond a reasonable doubt to all 12 jurors to get a conviction at trial, to overturn his death sentence, Davis would have to show that no juror would have convicted him. In other words, evidence insufficient for a conviction can uphold a death sentence.
Davis' case has received an incredible amount of national attention, and the growing recognition that innocent people are often convicted in the first place is encouraging. Texas, for one, has recently implemented legislation that provides greater access to post-conviction DNA testing.
This is a step in the right direction, but it does nothing for defendants convicted on the basis of coerced confessions or mistaken (if not outright false) testimony. There must be a way for defendants such as these with legitimate claims of innocence to have their claims heard.
But even if a better vehicle for hearing innocence claims can be devised, the death penalty would remain a deeply flawed punishment. In a landmark 1983 study, legal scholar David Baldus found that the best predictor of whether a defendant will receive the death penalty is not the severity of the crime, but the victim's race. Baldus discovered that defendants accused of killing white victims, as Davis was, were about four times more likely to get the death penalty than defendants accused of killing black victims.
The Supreme Court has long tried in vain to correct the arbitrariness and racism of capital punishment by, as Justice Harry Blackmun put it, "tinker[ing] with the machinery of death." But the only way to put an end to the death penalty's brutal flaws is to end the death penalty itself.
Ending the death penalty for good will go far to restore the integrity of our justice system and to ensure that it serves to protect, and not victimize, the most vulnerable among us.
Chamblee and Mesner-Hage are students at Yale Law School and members of its Capital Assistance Project.
Sunday, September 18, 2011
Georgia has to get it right
The following is an editorial published by the Buffalo News on September 17, 2011.
Officials should reopen murder case or risk executing an innocent man
We don’t know if Troy Davis killed a police officer in Savannah, Ga. He was convicted of the crime, though, and has served two decades on Georgia’s death row. He is scheduled to be executed next week.
There’s just one problem, and it’s a huge one. Davis was convicted on the basis of eyewitness identification, which is notoriously unreliable. According to the Innocence Project, which challenges questionable convictions, seven of the nine eyewitnesses who testified at Davis’ trial have since recanted and new evidence points to another person as the real perpetrator. Yet Georgia is apparently ready to plunge ahead with the execution.
Western New Yorkers are familiar with wrongful conviction. Two defendants in high-profile cases were exonerated after having spent years in prison for crimes they did not commit. Anthony Capozzi served 21 years in prison for his wrongful conviction as the Delaware Park rapist, and Lynn DeJac spent nearly 14 years behind bars after being wrongfully convicted of murdering her daughter.
In fact, the Innocence Project counts 273 men and women it has helped to exonerate. These people have been cleared of responsibility not based on some legal technicality, but because they were actually innocent. Wrongful convictions occur for many reasons, but generally they can be traced to flawed investigative and courtroom procedures. Leading them are the problems associated with eyewitness identification.
The victims of the Delaware Park rapist identified Capozzi as their attacker. They didn’t do it on purpose; they thought he was the one. It was a mistake for which Capozzi paid dearly. So did the future victims of the real rapist, Altemio Sanchez, a sociopath who soon morphed into a serial killer.
But what if Capozzi had been executed?What if DeJac had been executed?How do you take that back? The state of Texas has already been shown to have put an innocent man to death. Texas doesn’t seem to care much one way or the other, and it’s not alone. Why would Georgia want to add to that list?
The Innocence Project has a reputation for thorough investigation, and it has raised significant questions about Davis’ conviction. It’s true that the case has dragged on for more than 20 years and that Davis has had previous opportunities to contest his conviction. But this is about life and death and a state’s reputation for its commitment to justice.
As we said, we don’t know if Davis killed police officer Mark MacPhail, who was only 27 when he was shot twice as he tried to help a homeless man under attack over some beer. This isn’t about protecting a cop killer, though we do oppose the death penalty. It’s about acknowledging the facts of wrongful conviction and ensuring that the right guy is being strapped to the gurney before taking steps that cannot be reversed. In this case, there appears to be enough doubt for the state of Georgia to step back.
Officials should reopen murder case or risk executing an innocent man
We don’t know if Troy Davis killed a police officer in Savannah, Ga. He was convicted of the crime, though, and has served two decades on Georgia’s death row. He is scheduled to be executed next week.
There’s just one problem, and it’s a huge one. Davis was convicted on the basis of eyewitness identification, which is notoriously unreliable. According to the Innocence Project, which challenges questionable convictions, seven of the nine eyewitnesses who testified at Davis’ trial have since recanted and new evidence points to another person as the real perpetrator. Yet Georgia is apparently ready to plunge ahead with the execution.
Western New Yorkers are familiar with wrongful conviction. Two defendants in high-profile cases were exonerated after having spent years in prison for crimes they did not commit. Anthony Capozzi served 21 years in prison for his wrongful conviction as the Delaware Park rapist, and Lynn DeJac spent nearly 14 years behind bars after being wrongfully convicted of murdering her daughter.
In fact, the Innocence Project counts 273 men and women it has helped to exonerate. These people have been cleared of responsibility not based on some legal technicality, but because they were actually innocent. Wrongful convictions occur for many reasons, but generally they can be traced to flawed investigative and courtroom procedures. Leading them are the problems associated with eyewitness identification.
The victims of the Delaware Park rapist identified Capozzi as their attacker. They didn’t do it on purpose; they thought he was the one. It was a mistake for which Capozzi paid dearly. So did the future victims of the real rapist, Altemio Sanchez, a sociopath who soon morphed into a serial killer.
But what if Capozzi had been executed?What if DeJac had been executed?How do you take that back? The state of Texas has already been shown to have put an innocent man to death. Texas doesn’t seem to care much one way or the other, and it’s not alone. Why would Georgia want to add to that list?
The Innocence Project has a reputation for thorough investigation, and it has raised significant questions about Davis’ conviction. It’s true that the case has dragged on for more than 20 years and that Davis has had previous opportunities to contest his conviction. But this is about life and death and a state’s reputation for its commitment to justice.
As we said, we don’t know if Davis killed police officer Mark MacPhail, who was only 27 when he was shot twice as he tried to help a homeless man under attack over some beer. This isn’t about protecting a cop killer, though we do oppose the death penalty. It’s about acknowledging the facts of wrongful conviction and ensuring that the right guy is being strapped to the gurney before taking steps that cannot be reversed. In this case, there appears to be enough doubt for the state of Georgia to step back.
Friday, September 16, 2011
Teaching Criminal Justice and Law in High Schools
by Marie Owens
A criminal justice and law curriculum for high school students may sound like an overly specialized course of study for young people who may not have had a chance to consider all of their career options before they even start college, but such a curriculum can actually introduce teenagers to a liberal arts education. The Urban Assembly School for Criminal Justice in Brooklyn, New York operates on this premise. The summary on the school's web site states that students learn that evidence-based thinking found from a criminal justice degree is necessary in all fields: whether writing a persuasive essay, proving a scientific hypothesis or understanding historical events.
Several school districts throughout the United States now have high schools in which the major focus of the curriculum is on criminal justice and law. There are also several such charter schools. These schools can be found in Texas, Florida, New York, New Jersey and Virginia. Students at these schools are introduced to many fields of study, including forensic science, statistics, psychology, sociology, public administration and law. Students at high schools devoted to criminal justice and law studies are also encouraged to develop critical thinking skills. These skills can help a young person in any career, even if he or she later decides not to pursue a career in law or criminal justice. Some of the schools also have a prominent character education component.
High schools that have a criminal justice and law curriculum often place an emphasis on exposing the students to hands-on or real world applications of the coursework. Field trips are organized so that the students can have conversations with medical examiners, judges and police officers. They also visit correctional institutions to help make some of the concepts they learn less abstract.
Some colleges and universities offer summer programs or seminars for high school students in criminal justice and law. They often focus on real world applications of the topics that they cover. The John Jay College of Criminal Justice provides a program in forensic science that demonstrates how biology and chemistry are used outside of academic settings. Seton Hall University offers a one-week summer program that introduces high school students to criminal justice. High schools are also affiliated with colleges through advanced placement courses in fields related to criminal justice and law.
Some of the schools that offer criminal justice programs are more vocational in nature than collegiate. They help students prepare for careers in such fields as security or the informational technology associated with crime and security. These programs may offer industry certification upon completion. Many programs are run in conjunction with nearby technical or vocational colleges.
Allowing students to study within a specific field of criminology while they are still in high school gives educational institutions an opportunity to provide a well-rounded education to students by allowing them to pursue their interests while they are still interested. Many charter schools and magnet schools across the country are founded on this principle. Programs are available for students to study the arts, media, technology and ecology.
If students who attend high schools devoted to the study of criminal justice and law do not go on to a career in these fields, society benefits because these students will be less likely to be criminal offenders. In their report to the United States Congress, prepared for the National Institute of Justice, Preventing Crime: What Works, What Doesn't, What's Promising, Lawrence W. Sherman and various other authors stated that law teachings in schools is one of the things that work, along with peer-group counseling, gang resistance education, and anti-bullying campaigns.
High school programs associated in the field of law equips young people with knowledge and skills that they can use in many fields. As The Urban Assembly School for Law and Justice in Brooklyn, New York, puts it, "law is a captivating lens for learning, and that the skills necessary for the legal profession are universal." Students who enroll in a high school devoted to criminal justice or law may think that they are embarking on a specialized field of study, but will most likely gain a holistic education along the way.
A criminal justice and law curriculum for high school students may sound like an overly specialized course of study for young people who may not have had a chance to consider all of their career options before they even start college, but such a curriculum can actually introduce teenagers to a liberal arts education. The Urban Assembly School for Criminal Justice in Brooklyn, New York operates on this premise. The summary on the school's web site states that students learn that evidence-based thinking found from a criminal justice degree is necessary in all fields: whether writing a persuasive essay, proving a scientific hypothesis or understanding historical events.
Several school districts throughout the United States now have high schools in which the major focus of the curriculum is on criminal justice and law. There are also several such charter schools. These schools can be found in Texas, Florida, New York, New Jersey and Virginia. Students at these schools are introduced to many fields of study, including forensic science, statistics, psychology, sociology, public administration and law. Students at high schools devoted to criminal justice and law studies are also encouraged to develop critical thinking skills. These skills can help a young person in any career, even if he or she later decides not to pursue a career in law or criminal justice. Some of the schools also have a prominent character education component.
High schools that have a criminal justice and law curriculum often place an emphasis on exposing the students to hands-on or real world applications of the coursework. Field trips are organized so that the students can have conversations with medical examiners, judges and police officers. They also visit correctional institutions to help make some of the concepts they learn less abstract.
Some colleges and universities offer summer programs or seminars for high school students in criminal justice and law. They often focus on real world applications of the topics that they cover. The John Jay College of Criminal Justice provides a program in forensic science that demonstrates how biology and chemistry are used outside of academic settings. Seton Hall University offers a one-week summer program that introduces high school students to criminal justice. High schools are also affiliated with colleges through advanced placement courses in fields related to criminal justice and law.
Some of the schools that offer criminal justice programs are more vocational in nature than collegiate. They help students prepare for careers in such fields as security or the informational technology associated with crime and security. These programs may offer industry certification upon completion. Many programs are run in conjunction with nearby technical or vocational colleges.
Allowing students to study within a specific field of criminology while they are still in high school gives educational institutions an opportunity to provide a well-rounded education to students by allowing them to pursue their interests while they are still interested. Many charter schools and magnet schools across the country are founded on this principle. Programs are available for students to study the arts, media, technology and ecology.
If students who attend high schools devoted to the study of criminal justice and law do not go on to a career in these fields, society benefits because these students will be less likely to be criminal offenders. In their report to the United States Congress, prepared for the National Institute of Justice, Preventing Crime: What Works, What Doesn't, What's Promising, Lawrence W. Sherman and various other authors stated that law teachings in schools is one of the things that work, along with peer-group counseling, gang resistance education, and anti-bullying campaigns.
High school programs associated in the field of law equips young people with knowledge and skills that they can use in many fields. As The Urban Assembly School for Law and Justice in Brooklyn, New York, puts it, "law is a captivating lens for learning, and that the skills necessary for the legal profession are universal." Students who enroll in a high school devoted to criminal justice or law may think that they are embarking on a specialized field of study, but will most likely gain a holistic education along the way.
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