Like typewriters, carbon paper, and other relics of the analog age, the Sixth Amendment right to trivial by jury has become a historical curiosity. According to a recent study published by the National Association of Criminal Defense Lawyers, “The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It“, over the last fifty years, trial by jury has declined at an ever-increasing rate to the point that they now occur in less than 3% of state and federal criminal cases:
“Trial by jury has been replaced by a “system of guilty pleas, which diminishes, to the point of obscurity, the role that the Framers envisioned for jury trials as the primary protection for individual liberties and the principal mechanism for public participation in the criminal justice system.”
The reason for this fundamental change in the criminal justice system is straightforward: individuals who choose to exercise their Sixth Amendment right to trial face exponentially higher sentences if they invoke the right to trial and lose. Faced with this choice, individuals almost uniformly surrender the right to trial rather than insist on proof beyond a reasonable doubt. Defense lawyers spend most of their time negotiating guilty pleas rather than ensuring that police and the government respect the boundaries of the law including the proof beyond a reasonable doubt standard, and judges dedicate their time to administering plea allocutions rather than evaluating the constitutional and legal aspects of the government’s case and police conduct. Equally important, the public rarely exercises the oversight function envisioned by the Framers and inherent in jury service.
Perhaps the most troubling effect of this trend is evidenced by “exoneration” research. In a study of 354 individuals exonerated by DNA analysis, 11% had pled guilty to crimes they did not commit, and the National Registry of Exonerations has identified 359 exonerees who pled guilty. Simply put, the extraordinary pressure defendants face to plead guilty can even cause innocent people to plead guilty to crimes they know they did not commit.
The Public Policy Institute of California has published a study analyzing crime data since 2010, designed to determine the impact if any of Proposition 47 on crime rates in the State. Prop 47, passed in 2014, reduced the penalties for certain lower-level drug and property offenses and was intended to reserve prison and jail space for higher-level offenders. The debate around the policy centered on the questions of whether these policies would increase or decrease crime and recidivism. According to the PPIC study:
Did Proposition 47 increase crime?
- We find no evidence that violent crime increased as a result of Proposition 47. While California saw an uptick in the violent crime rate from 2014 to 2016, this trend appears to have preceded the reform and is due in large part to unrelated changes in crime reporting after 2014.
- We find some evidence that Proposition 47 affected property crime. Statewide, property crime increased after 2014. While the reform had no apparent impact on burglaries or auto thefts, it may have contributed to a rise in larceny thefts, which increased by roughly 9 percent (about 135 more thefts per 100,000 residents) compared to other states. Crime data show that thefts from motor vehicles account for about three-quarters of this increase.
- Despite recent upticks, California’s crime rates remain comparable to the low rates observed in the 1960s—even with the dramatic reductions in incarceration ushered in by recent criminal justice reforms.
Did Proposition 47 reduce recidivism?
- Recidivism rates decreased due to Proposition 47. Using data from 12 California counties, we find that among individuals released after serving sentences for Proposition 47 offenses, the two-year rearrest rate was 70.8 percent, 1.8 percentage points lower than for similar individuals released before the reform. The two-year reconviction rate for individuals released under Proposition 47 was 46.0 percent, 3.1 percentage points lower than their pre-reform counterparts.
- These overall declines were driven by substantial reductions in recidivism rates for Proposition 47 offenses. Rearrest and reconviction rates for these offenses were 10.3 and 11.3 percentage points lower, respectively, than for similar individuals before the reform. Our findings suggest that the measure reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys. However, we are not able to separate the reform’s effects on reoffending from its effects on the practices of criminal justice agencies.
Tomorrow, June 5, is primary day here in California, and this year there has been an unusual focus on county-level races for District Attorney and Sheriff, positions with critical impact on the criminal justice system that have historically often been uncontested or un-noticed. The District Attorney races in Alameda and Sacramento have drawn a particular amount of attention, with progressive candidates putting on strong challenges to the establishment candidates. In Los Angeles, with less public attention, there is a similar progressive challenge to the incumbent Sheriff from inside the Sheriff’s department. Lt. Alex Villanueva is challenging incumbent Jim McDonnell on a reform campaign highlighting community policing and civilian oversight:
“Of all the pressing needs of the community and the LASD, here is a short list of the most critical:
- Rebuilding the LASD from the ground up based on community policing principles and ethical standards of conduct.
- Clean house of all sources of corruption, both past and present.
- Develop a long term strategic plan for the organization that includes adding 3,000 patrol deputies and shrinking a massive bureaucracy
- A coordinated recruitment drive targetting the County’s most under-represented communities
- Meaningful civilian oversight
My priorities are straight forward:
- Implement community policing countywide
- Develop a new generation of leadership built on public service
- Promote transparency, accountability, and meaningful civilian oversight
- Demand fiscal responsibility and live within our budget
- Improve the morale of the organization
- Restore the reputation of the LASD as the premier law enforcement organization it can be”
An analysis by vox.com suggests that weaker gun laws and higher rates of gun ownership do, at the very least, correlate with more killings by police officers (including shootings and other incidents of lethal force). The theory is that behind virtually all police shootings is a constant fear that a gun may be present.
The police have good reason to be fearful. The US has a tremendous amount of civilian-owned guns — far more than any other country in the world. Based on recent estimates, there are more firearms in America than there are people. That presents a constant potential threat to police.
“Police officers in the United States in reality need to be conscious of and are trained to be conscious of the fact that literally every single person they come in contact with may be carrying a concealed firearm,” David Kennedy, a criminologist at John Jay College, told me. “That’s true for a 911 call. It’s true for a barking dog call. It’s true for a domestic violence incident. It’s true for a traffic stop. It’s true for everything.”
(Paul Seeman is an advisor to the Underground Scholars Initiative at UCLA)
In its latest issue dedicated to incarceration issues, the UCLA student magazine “La Gente” has two articles on the Underground Scholars Initiative, the support and advocacy group for formerly incarcerated students. There is a profile of the group by one member, Humberto Flores:
“When I was introduced to the Underground Scholars, it gave me a space where I felt comfortable with people from my background and upbringing, prior to that, walking around campus, I felt like I didn’t belong.”
…and an individual profile of Daniel Cisneros,one of the founding members:
“I always try to promote higher education, like, Ay, if i could do it, then you could do it, man. You know, I’m not any smarter than you are.”
Check it out!
I quote John Grisham’s op-ed in the LA Times. “Eight reasons for America’s shameful number of wrongful convictions”:
Most cops are honest, hard-working professionals. But some have been known to hide, alter or fabricate evidence, lie on the witness stand, cut deals with snitches in return for bogus testimony, intimidate and threaten witnesses, coerce confessions or manipulate eyewitness identifications.
Most prosecutors are also honest, hard-working professionals. But some have been known to hide exculpatory evidence, encourage witnesses to commit perjury, lie to jurors, judges and defense lawyers, use the testimony of bogus experts or ignore relevant evidence beneficial to the accused.
Most jurors find it impossible to believe that a suspect would confess to a serious crime he didn’t commit. Yet the average citizen, if taken to a basement room and subjected to 10 consecutive hours of abusive interrogation tactics by experienced cops, might be surprised at what they would say. Of the 330 people who were exonerated by DNA evidence between 1989 to 2015, about 25% gave bogus confessions after lengthy interrogations. Almost every one recanted soon after.
Faulty eyewitness identification
More often than not, those who witness violent acts have trouble accurately recalling the facts and identifying those involved. Physical and photo lineups may exacerbate the problem because police manipulate them to focus suspicion on favored suspects.
In every jail there is a career criminal staring at a long sentence. For leniency, he can be persuaded to lie to the jury and describe in great detail the confession overheard from the accused, usually a cellmate. If he performs well enough on the stand, the authorities might allow him to walk free.
Those accused of serious crimes rarely have money. Many are represented by good public defenders, but too many get stuck with court-appointed lawyers with little or no experience. Capital cases are complex, and the stakes are enormous. All too often, the defense lawyers are in over their heads.
Judges are supposed to be impartial referees intent on ensuring fair trials. They should exclude confessions that are inconsistent with the physical evidence and obtained by questionable means; exclude the testimony of career felons with dubious motives; require prosecutors to produce exculpatory evidence; and question the credentials and testimony of all experts outside the presence of the jury. Unfortunately, judges do not always do what they should. The reasons are many and varied, but the fact that many judges are elected doesn’t help. They are conscious of their upcoming reelection campaigns and how the decisions they make might affect the results. Of those judges who are appointed rather than elected, the majority are former prosecutors.
Over the past five decades, our courtrooms have been flooded with an avalanche of unreliable, even atrocious “science.” Experts with qualifications that were dubious at best and fraudulent at worst have peddled — for a fee, of course — all manner of damning theories based on their allegedly scientific analysis of hair, fibers, bite marks, arson, boot prints, blood spatters and ballistics. Of the 330 people exonerated by DNA tests between 1989 and 2015, 71% were convicted based on forensic testimony, much of which was flawed, unreliable, exaggerated or sometimes outright fabricated.”
Grisham references “The Cadaver King and the Country Dentist,” by Radley Balko and Tucker Carrington, a new book that tells the story of two of these “experts,” Steven Hayne – a controversial forensic pathologist who once boasted of performing more than 2,000 autopsies in a single year – and his friend, Michael West, a small-town dentist who assumed the role of an expert in many other fields. Together they accumulated a string of convictions in Mississippi and Louisiana, and while it is clear that they in fact had little or no real expertise, only a few of those many convictions have actually been overturned. Grisham tells the story as an indictment of America’s broken criminal justice system, where prosecutors were allowed, and even encouraged, to present flawed forensic testimony because it was molded to fit their theories of guilt.
Excellent op-ed, “Turn Prisons Into Colleges” by Harvard Professor Elizabeth Hinton in the New York Times this Tuesday. Hinton argues that education is a civil right that improves society and increases civic engagement, and that expanding educational opportunities to prisoners will reduce recidivism and government spending. She quotes a 2013 study from RAND showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.
Currently, the Senate Committee on Health, Education, Labor and Pensions is consideringpermanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”
“College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery. Expanding prison education programs would link those two ventures in a forward-thinking way. It’s clear that education will continue to be a central part of criminal justice reform. The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”
The LA County Office of Diversion and Reentry has published a new report on their efforts to implement the new, comprehensive model of youth diversion that the Board of Supervisors adopted in November 2017. The aim of the new model is to connect at-risk youth with community-based services that support their development instead of arrest or citation.
Los Angeles County has the largest juvenile justice system in the nation. Available data suggests that although the total number of youth arrests in the county has decreased in the last decade overall, youth of color have become increasingly more likely to be arrested than their caucasian peers. In 2015, the arrest rate for Black youth in Los Angeles County was over 6 times higher than that of White youth. According to the new ODR report, one factor that contributing to this inequity is the wide variation in youth diversion practices and resources in Los Angeles County: “Coordination and support is needed to scale and spread evidence-informed practices and build a continuum of services that can effectively address the needs of youth in communities countywide.
Informed by local data and evidence of effective practice, this model will build the infrastructure needed to ensure that all youth in Los Angeles County can connect with a continuum of services that address their needs, reducing youth arrests and equitably improving outcomes for youth and communities.”
The California Supreme Court on Monday struck down a 50 year sentence for a juvenile as cruel and unusual punishment. In a 4-3 ruling, the state high court said such a sentence for minors was “functionally equivalent” to life without parole. “A young person who knows he or she has no chance to leave prison for 50 years ‘has little incentive to become a responsible individual,'” wrote Justice Goodwin Liu, citing the 2010 U.S. Supreme Court Graham decision that restricted life terms with no chance of parole for minors to cases involving murder.
The California court ruled in favor of Leonel Contreras and William Rodriguez, who were 16 when they attacked two teenage girls in San Diego County in 2011. Rodriguez was sentenced to 50 years to life and Contreras to 58 years to life.
Interesting article in the Boston Globe about DA’s running unopposed in local races: eight of the state’s 11 prosecutors faced no one in their most recent elections, and most will run unopposed this year as well. Per the Globe, “Suffolk DA Dan Conley hasn’t had an opponent since he first ran in 2002. Ditto DA Jonathan Blodgett, in Salem. There hasn’t been a contested DA race in the Berkshire, Bristol, or Middle districts since 2006.”
However, while more than 80% of Massachusetts voters think there is a need for reform in the criminal justice system, according to a poll released by the ACLU – 88% think that people are treated differently based on who they know, 84% think that people are treated differently based on their race, and less than half (48%) think the state’s criminal justice system is working – voters showed limited knowledge of the power and budgets of District Attorneys, and few realized that DAs are accountable only to voters, with little in the way of checks-and-balances in between elections. Half of the registered voters believed individual District Attorneys have only a minor or insignificant impact on the functioning of the criminal justice system—and almost four-in-ten (38%) did not know that District Attorneys are elected and accountable only to voters.
As part of the polling, voters were then given some information about actual impacts that District Attorneys can have on individual lives and in communities – as the Globe put it, “They choose how hard to go after somebody and when to go easy. They decide the charges that are brought against those accused of crimes and what punishments to request of a judge. Many times, there’s no judge or jury involved at all: Nationally, over 90 percent of felony cases are dispatched via plea deals.” After this information was presented, 81 percent of voters said they were more likely to pay attention to their local District Attorney race in 2018.