Monthly Archives: July 2016

“Punishment that doesn’t fit the crime”

That’s the title of a recent NY Times op/ed piece about sex offender registries, their overuse and abuse. As the Times writer observes:

“The expansion of sex offender laws to include juveniles was based on the assumption that kids who sexually transgress cannot be reformed. However, research has shown this assumption to be false. Only 1 percent to 7 percent of children who commit sexual offenses will do it again — much lower than the 13 percent recidivism rates for adult sexual offenders.

The policy seems to succeed only in making life difficult for offenders, subjecting them to harassment and isolation. Of the more than 500 youth sex offenders whose cases Ms. Pittman examined, about 100 had attempted suicide.”

What about Gideon?

The National Association for Public Defense examines the debate on criminal justice reform through the lens of the party platforms, and observes that there is no call to provide greater resources for the public defenders, arguably at the heart of any attempt to address the imbalance of power in that system.

Here is the NAPD’s proposed plank:

“We will finally live up to the unfulfilled constitutional mandate to ensure that every person accused of a crime be provided a lawyer with the resources, time, training, experience, and commitment to adequately represent them. As the Supreme Court announced over fifty years ago, the lawyer is the vehicle necessary to ensure justice in our courts. If we truly believe in equal justice, we must ensure that people without means have access to the same quality lawyers that those with means would pay for.

We recognize that until we complete the difficult work of transforming societal values so that we truly embrace the humanity and dignity of every person equally, the best safeguard against the implicit biases that drive those who administer justice is to support public defenders, the men and women tasked with protecting the fundamental rights of our most vulnerable citizens.

Because we understand that even if we change laws, there will continue to be some police, prosecutors, and judges who will abuse their discretion in an effort to punish vulnerable populations they view as dangerous, we must support public defenders who ferret out this abuse and bring it to the attention of courts and policymakers. We recognize that while most of the professionals entrusted with administering justice strive to be fair, there will always be some who are driven by values inconsistent with justice and who are willing to cut corners to achieve those values. Although a minority, their actions have a destructive ripple effect on our system of justice. Public defenders who have adequate resources, training, experience, and support are best positioned to identify these abuses and shine a corrective light on them.

Because we understand that even the best intentioned prosecutors and judges have limited information about the men and women whose fate they control, we must support public defenders who can help decision-makers understand the accused as a whole person. While judges and prosecutors frequently have examined the behavior that led to the arrest, this information paints an incomplete picture of the accused. Without a fuller picture prosecutors and judges are left to act on the assumption that the accused is defined by the worst thing he or she has done. Only through the efforts of a compassionate and prepared lawyer do prosecutors and judges learn about other information necessary to achieve just outcomes. Lawyers are necessary to help the court understand the accused’s background and accomplishments; whether they suffer from mental illness or substance abuse; and a host of information necessary to understand the whole person and to counteract the human instinct to judge based on stereotypes and biases. In this vein we understand that even our best prosecutors and judges cannot deliver just outcomes without good public defenders.

Because we understand that unequal justice in the courts is fueled by a justice narrative that deems some lives as less valuable, and we understand that this is driven by the fact that our most marginalized communities have been rendered voiceless in criminal justice process, we must support public defenders who are tasked with giving voice to over eighty-percent of the people in the criminal justice system. Public defenders who have the time to learn about the individuals and families they represent, and to serve as the vehicle for these populations to be heard throughout a process that has such tremendous impact on their communities, are essential to our commitment to overcome our implicit biases and to begin to treat those in the system with dignity. Until we take the time to understand the humanity of those in the criminal justice system, rather than to treat them in accordance with our subconscious biases, we will not have equal justice. Public defenders are the necessary vehicle for those who mete out justice to gain that understanding.


The criminal justice section of the platform ends with the statement:

We have been inspired by the movements for criminal justice that directly address the discriminatory treatment of African Americans, Latinos, Asian Americans and Pacific Islanders, and American Indians to rebuild trust in the criminal justice system.

But these movements are necessary because we do not truly embrace the ideal that all lives matter equally. Our criminal justice system is driven by a value-system that understands some lives as less valuable. Even the best intentioned among those of us who work in the system have internalized this narrative. So if we want to be true to these movements, we better engage in the hard work of changing hearts, in additional to changing laws. We cannot do this in the criminal justice arena without public defenders.”


Prosecuting Collateral Consequences

A recent article in the Georgetown Law Review argues that the consequences of having a criminal record can outstrip any penalty imposed by criminal law, and that fact gives prosecutors additional power – effectively serving as substitutes for a criminal conviction, as a source of leverage, as a way to circumvent the requirements of criminal procedure, as a means of achieving deterrence or retribution, or as a way to promote their own public policy preferences.

“Spotlight” on mental health services

The Boston Globe “Spotlight” team takes on the failures of the mental health care system in a recent article, succinctly titled “Families failed by a broken mental health care system often have no one to call but police.” The article focusses on issues around suicide, and “suicide by cop” incidents, and points out that in Massachusetts, where the suicide rate has long been lower than in most other states, the total number of suicides per year grew 47 percent from 2003 to 2012, from 424 to 624. Most occurred in a mental heath care vacuum: Two-thirds of Massachusetts residents who killed themselves in 2012 weren’t receiving any treatment, according to the Department of Public Health, though multiple studies have found that 88 to 90 percent of people who commit suicide have a diagnosable and potentially treatable mental condition.

Juvenile LWOP after “Montgomery”

An excellent article in the Denver Post discusses the political struggle to deal with juveniles sentenced to LWOP in adult court before Montgomery v. Louisiana, where the Supreme Court ruled in 2012  that those sentenced as teenagers to mandatory life imprisonment for murder must have a chance to argue that they should be released from prison. (Described here). The Denver Post examines both the politics and the personal costs for the prisoners, now adults, and the families of the victims.

Fair Punishment Project Report

The “Fair Punishment Project” has published a report on the relationship between individual prosecutors and the frequency and validity of death penalty convictions in particular jurisdictions in the US. Titled “How Overzealous Personalities Drive The Death Penalty,” the report concludes:

“There have always been a tiny handful of prosecutors who pursue death sentences with fervor, and without regard for fairness and accuracy. America’s ve deadliest prosecutors—Joe Freeman Britt, Bob Macy, Donnie Myers, Lynne Abraham and Johnny Holmes—epitomize this over-aggressive and reckless style of prosecution. But this personality-driven feature of the death penalty is visible in other states too, including among prosecutors who continue to seek the death penalty today. These prosecutors are evidence that the application of the death penalty is—and always has been—less about the circumstances of the offense or the characteristics of the person who committed the crime, and more a function of the personality and predilections of the local prosecutors entrusted with the power to seek the ultimate punishment. Their overzealous pursuit of the death penalty does not accurately re ect America’s growing skepticism of the death penalty, nor is it representative of local constituencies that are more attached to the death penalty. It better re ects the lack of meaningful controls on prosecutorial discretion and a lack of consequences for their illegal or unethical behavior. In fact, death sentencing trends in these counties before and after these individuals served as prosecutors demonstrate that these individuals drove these counties to become extreme outliers in their use of the death penalty, and that these counties saw dramatic reductions in capital verdicts as soon as these individual actors were out of the picture. This overzealous, personality-driven, win-at-all-costs pursuit of punishment seriously undermines the legitimacy of the death penalty today.”