Gov. Brown’s proposed ballot initiative (LA Times Article) gets one thing very right. It would remove from prosecutors the discretion to charge juveniles as adults, and give it to judges. The decision to charge a juvenile as an adult is one of the most consequential decisions in the world of juvenile justice, with the power to effectively (and summarily) end the childhood of any juvenile, sometimes forever, and to shift the balance in a juvenile offender’s case dramatically towards a plea bargain because of the level of risk. The decision should be made by the kind of impartial, factual evaluation that only a judge can make, not by a party with a vested interest in the outcome of the case, and one eye on the political calculus that comes with partisan political office.
Last Monday was a big day for criminal justice reform – the Supreme Court extended the scope of its new juvenile sentencing standard precluding automatic life sentences for young murderers, and President Obama announced several prison reforms including a ban on solitary confinement for juveniles in the federal prison system. Unfortunately, other than the optics, neither is as significant as they might seem. The Supreme Court’s decision in Montgomery v. Louisiana still leaves great discretion with state judges, parole officers, and prison wardens to keep juveniles behind bars for life, and there are very, very few juveniles in the federal prisons – states can continue to use solitary confinement for juveniles as they choose.
There is an interesting policy divide in the apparent momentum towards criminal justice reform. Nominally bi-partisan, there appear to be in fact two very different views of where the issues are and how to move forward. A recent article by Republican leadership in Congress mentions two issues, mens rea reform and over criminalization, but focusses almost exclusively on the idea that mens rea reform will provide the most needed systemic reform by reducing the number of people charged or convicted of crimes they were not aware of or lacked intent to do anything wrong. Politico. This fits neatly with the narrative around the interest of the Koch brothers and other conservatives essentially linking reform philosophically to the idea of smaller government. Rebranding the Koch Brothers. On the other side of the issue is the idea that the sheer mass of criminal statutes, couple with little or no limit on prosecutorial discretion, results in a staggering rate of guilty pleas and incarceration (“Why Innocent People Plead Guilty”), an issue closely related to progressive’s concern about institutional and class-based problems in the system. It seems unclear how these two narratives will in fact meet as a bi-partisan agenda.
Popular perception of criminal justice reform often centers on wrongful convictions, as in the current fascination with the Netflix series, “Making a Murderer.” Today in the LA Times, a front page article Wrongful Convictions highlights the cost to the city of Los Angeles of civil liability for the kind of investigative and prosecutorial misconduct that drives most such convictions, with the city paying millions of dollars to settle lawsuits in the cases of two men convicted and imprisoned when detectives and prosecutors were aware of, and hid, exculpatory evidence. In the case of one man, Bruce Lisker, the detective even wrote a letter to the parole board trying to block Mr. Lisker’s release, years after the crime, in which the detective lied about finding “additional incriminating evidence” after the trial. The point, for criminal justice reform, is that there is no personal accountability for the individuals in law enforcement who abused their authority in obtaining the wrongful convictions. Our system requires law enforcement and prosecutors to be neutral in their investigations and prosecutions, to put aside the very human characteristics of desire to succeed, to win, to be right in a hunch and only pursue the objective truth, even if does not make them look good. Most can, and do, follow this difficult path. For those who don’t, however, there is no real personal cost. As in this LA Times story, it is the county or state that pays a financial price, but there is no real legal, criminal cost for the personal abuse of authority. Fundamental change in the criminal justice system, fundamental change that will reduce wrongful convictions, will require some form of personal accountability for this type of misconduct.
The trial of former Khmer Rouge leaders continues in the Extraordinary Chambers in the Courts of Cambodia – the proceedings can be viewed live at ECCC Live Stream. In Cambodia, and specifically at the ECCC, the oath sworn by witnesses to tell the truth invokes the spirit of a warrior, who will behead the witness with his sword if the witness is untruthful:
The oath itself is here: Oath
The National Council for Behavioral Health provides free Mental Health First Aid training – information is available at mentalhealthfirstaid.org