Monthly Archives: June 2016

The “culture” of prosecution

A former federal prosecutor dissects the “culture”of prosecution and the dangers of seeing the constitutional rights of suspects and defendants as barriers to justice in “Confessions of an Ex-Prosecutor.” :

“American criminal procedure, as developed during the four-decade retreat from the Warren Court’s recognition of defendants’ rights, encourages prosecutors to argue that rights are irrelevant. The argument goes by genteel names like “harmless error” and “lack of prejudice” and “immaterial,” and it is omnipresent in modern criminal procedure. As a prosecutor, it was my job on dozens of occasions to invoke those doctrines to assert that even if defendants’ rights were violated, those violations didn’t matter.

Take search warrants, for example. Under most circumstances, the Fourth Amendment requires police to get a warrant before they make forcible entry to your home search it. May police officers lie to a magistrate to get that warrant, or deliberately omit information that contradicts the evidence they offer? No, says the Supreme Court—that would violate your rights. But the violation only has a remedy if the lie is material—that is, if the warrant application, stripped of the lie or supplemented with the deceitfully omitted information, would no longer be enough to support probable cause. If you identify a lie that’s immaterial, you’re not even entitled to a hearing on whether it’s a lie in the first place.

So when a defendant discovers that law enforcement agents have lied to get a warrant, a prosecutor has every incentive to argue that the lie didn’t matter, that the evidence was strong enough without it to get the warrant. The prosecutor will be making this argument in the context of a search that did turn up incriminating evidence (the defendant wouldn’t be making the argument if it didn’t), which tends to bias judges towards upholding searches. After all, the judge thinks—wasn’t the cop’s suspicion proved right? Moreover, probable cause—the proof necessary to support a warrant—is a very relaxed and inherently subjective standard, requiring only a “fair probability” that evidence will be found. The practical effect is that law enforcement can lie in warrant applications with relative impunity, and it’s a prosecutorial duty to think of ways to explain how those lies are irrelevant.

On the other hand, prosecutors are encouraged to think differently about lies by mere civilians. If federal agents lie about you to a magistrate to get a search warrant, the question is whether the lie did actually make a difference. But if you lie to federal agents, the standard is far less forgiving. The materiality of a false statement to the federal government is measured by whether it is the sort of statement that could hypothetically have influenced the government’s decision-making, not whether it actually did. Thus prosecutors are trained to treat defendants’ wrongdoing harshly and government wrongdoing leniently.”

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“Spotlight” on mental health services

In the appropriately named “The Desperate and the Dead” series, the Boston Globe “Spotlight” team examines the collapse of the mental health care services system in Massachusetts, here. The article summarizes:

“Indeed, family members are often all that stand between seriously mentally ill people and disaster — making sure they keep appointments, take their medications, and have a place to stay, while remaining vigilant for the next crisis. At the same time, thousands of those without family members to stand by them are relegated to streets, shelters, prisons, and county jails. They crowd emergency room wards and hallways.

This is, of course, not just a state but a national crisis. However, it is worse here than most would imagine. Massachusetts spends less per capita on mental health care than any other New England state except Rhode Island, and much less than some states of comparable means and politics — such as New York, according to a Kaiser Family Foundation study. By this and other critical measures, Massachusetts has forfeited the leadership it once was known for in mental health care.”

“Housing first” in San Diego

As part of a shift in strategy on providing mental health services, San Diego County has adopted a new “housing first” policy. The program, dubbed Project One for All, uses a “housing first model” where, as the name suggests, people who are living on the street or in shelters are first provided long-term housing and then comprehensive care to treat their mental illness and other issues. It’s the first time that the county has used this approach to address this population.

“Broken window” policing doesn’t work…

An internal New York Police Dept. report released this week suggests that “broken window” policing – the theory that cracking down on petty crimes like vandalism and public urination will generate an atmosphere of lawfulness that then prevents more serious crime – does not work:

“The new report, released Wednesday by NYPD’s watchdog inspector general, finds no evidence that huge crack-downs on low-level “quality-of-life” incidents decrease felony crimes.

That study directly contradicts a report by Bratton’s NYPD last year that claims the exact opposite — that quality-of-life policing was responsible for fewer felony crimes in New York.

Wednesday’s report — by DOI Commissioner Mark Peters and NYPD Inspector General Philip Eure — takes direct aim at the “broken windows” policy that Bratton famously began pushing in the 1990s. Their report notes the cost of that policy “in police time, in an increase of the number of people brought into the criminal justice system and, at times, in a fraying of the relationship between the police and the communities they serve.”

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The future of juvenile justice

Lack of adequate representation continues to be a serious issue in juvenile court in 2016, according to the National Juvenile Defender Center. In the same article summarizing a recent conference on “Children and the Law” at John Jay College of Criminal Justice in New York. The conference also highlighted the drop in incarceration rates for juveniles, with a sharp decline in youth incarceration  matched by the shutdown of juvenile detention facilities around the country. Some 52 such facilities were closed between 2007 and 2011.

Community Courts in Orange County

There’s a recent article in The Atlantic describing the “Community Court” in Orange County, and summarizing some of the history and issues around collaborative courts. Amongst other things, the article describes some of the economies involved:

“According to the court’s 2015 annual report, it had a 28-percent recidivism rate for drug-court graduates who had been out of the program for at least three years, compared to 74 percent for drug offenders in the county. The recidivism rate for DUI-court graduates was 9.9 percent among those who completed the program five or more years ago, compared to 21 and 25 percent for second- and third-time DUI offenders. The rate for mental-health-court graduates was 25 percent, and 10.5 percent for veteran-treatment-court graduates.

This creates significant savings for the county and state. “In 2015, the stayed sentences of adult and juvenile program graduates resulted in 67,539 custody days saved … which translates to a savings of $11.2 million,” according to the court’s estimates. The California Judicial Council estimates that every dollar invested in Santa Ana results in a cost savings of $7.30.”

4th Amendment on Life Support

The Supreme Court’s recent decision to allow evidence from an illegal stop in Utah v. Strieff has gotten the most press for Justice Sotomayor’s scathing dissent. Here from scotusblog is a good analysis of the practical application of rules in the decision:

“The opinion applies the factors from 1975’s Brown v. Illinois and concludes that suppression is unwarranted. Some will complain about how the Court applied those factors – I will do that myself below – but it’s worth pausing to note that the majority opinion did not overturn or substantially revise Wong Sun v. United States. This case instead reconciles the pre-2000 case law on the “fruit of the poisonous tree” doctrine (such as Wong Sun and Brown) with post-2000 case law (such as Hudson v. Michigan and Davis v. United States). According to today’s opinion, all of the cases are ultimately about cost-benefit weighing.”