Let’s address recidivism realistically – We are making a difference- kra With letter to Inmate – kra
As soon as I saw this, I knew this guy had read my Editorial piece. Sure enough, he thanks me and Steve Hampton, Esq. toward the end of his Commentary. My email going to Steve Hampton within 15 minutes:
Steve,
Check it out. I shall be writing to this inmate within 48 hours (I got his S B I # from our friend Lori with Link of Love) to thank him for his Commentary, and to encourage him to keep it up and to tell more inmates to speak out in similar fashion! 🙂
The more the merrier. The more, the more legislators and others may start to see the light concerning the insane way our probation system is now operating.
Excerpts from the Article:
Attorney General Kathy Jennings suggested that reforms in our justice system addressing current laws, stack charging and the sentencing guidelines would improve our recidivism rate. However, addressing our mass probation system would improve our recidivism more quickly and more dramatically than any other choice.
In our small state of Delaware there are about 17,000 people on probation, more than three times the prison population. An extravagant cost to our taxpayers and a tremendous burden on a probation system. The mass probation equals a high ratio of probationers to officers. This leaves little or no time for the probation officer to address and help their clients with individual needs. Instead of being counseled, clients are treated like this is a police state and they’re still in prison.
Most office visits that are conducted as follows; you check in and wait 45 minutes to an hour. You’re called and walk ahead of your P.O. to his or her office. You go through the routine questions, Any problems? Nope. Still working? Yes. Any drug use? Nope. Any police contact? Nope. Unless you’re scheduled for drug test, it’s; “bye, see you next week”.
The informality of this routine leads clients to believe that the system is nothing more than a watchdog waiting for you to trip up. So let’s be realistic, probation officers are trained to be police and have little if any training in counseling. Time and time again we read in the newspaper that probation officers are involved in major criminal activities without any relevance to probation.
The statistics bear this out as a high percentage of probationers end up back in prison within the year after their release. Often for behavior that would not be a crime if they were not on probation. Two-thirds of the prison’s recidivism rate is due to people being sent back for a violation of probation. The vast majority of them are technical violations, i.e., failing a drug test, late for curfew, not working, missed an appointment, etc. etc.
How can this happen? Why does this happen? In 1971, Richard Nixon declared a war on drugs and if you haven’t seen a movie called, “The House I Live In,” by Eugene Darecki, please sit down and watch with your children or friends. There’s still a war but the war is on freedom — freedom from the monetary oppression due to lack of employment and job skills.
If only our political powers that be looked outside the financial benefits and the benefits from warehousing people in prison and consider practical problems that would help reduce recidivism, i.e., job workshops on how to seek, fill out an application and interview for employment, free up the probation officer giving them more time in training counseling, implement a job programs through probation where employers can seek experienced in capable workers.
In all, we need to come up with better ways to improve the lives of people being returned to society other than placing them on excessive probation and policing them in a never-ending cycle.
I would like to thank Ken Abraham and Steven Hampton, Esq., “What a monster we have created in our justice system”, commentary from March 15. For I was like Johnny on probation, working steady and doing OK. I already completed the recommended so-called drug treatment programs in prison and outside of prison. But I too goofed and blew numbers for drinking in my own house and under the tolerance law I was violated. The judge, regardless of a recommendation that I be placed back on probation, gave me another 2 1/2 years in prison followed by two years and $13,000 in fines. I call this excessive sentencing. But as you stated, “it is simply job preservation for all involved”.
David Downer, of Dagsboro, is an inmate housed at the Sussex Correctional Institution.
Letter to Inmate:
Mr. David Downer … Dude! 5/7/19
Good job on your Commentary, published today, 5/7/19. I am putting it on my website and in my newsletter, and sending it to Kathy Jennings. I know her from way back.
I write to encourage you to keep it up, and encourage other inmates to speak out in similar fashion.
If you have anyone on the outside with a phone and an email address, have him/her contact me ASAP. 302-423-4067 . I really have NO time to open/read/write letters. kenabraham3138@gmail.com .
IF the jackass C Os retaliate against you in any serious way, notify me immediately! I know what goes on in there.
My email to Steve: Steve,
Check it out. I shall be writing to this inmate within 48 hours (I got his S B I # from our friend Lori with Link of Love) to thank him for his Commentary, and to encourage him to keep it up and to tell more inmates to speak out in similar fashion! 🙂
The more the merrier. The more, the more legislators and others may start to see the light concerning the insane way our probation system is now operating.
…
Keep your spirits UP!
Ken
Delaware’s drug laws are out of balance. Here’s how we can fix that. With Letter to the Editor – kra
Kathy Jennings, Delaware’s Attorney General, Sen. Elizabeth Lockman, D-West Wilmington, and Rep. Sean Lynn, D-Dover, who chairs the House Judiciary Committee, wrote an excellent Editorial piece (We Must Bring Balance to the Criminal Justice System) in which they hit the nail on the head, addressing most of the major problems in the system today. NOW all they need to do is penetrate the skulls of some Bozo legislators, to enact needed changes!
Excerpts from the Article:
We have heard from countless people in Wilmington, in Dover, and across Delaware about our drug laws, all saying the same thing: the status quo isn’t working, and it’s time for us to change it. “Tough on crime” drug policies have long enjoyed bipartisan support, but today the benefit of hindsight makes it clear that well-intended policies have come with serious unintended consequences. While research does not suggest that our drug laws have effectively reduced violent crime, ample experience and data tell us that current policy comes at a significant cost to the corrections system, to taxpayers, and disproportionately to communities of color.
Federal prison populations have nearly quadrupled since 1986. A significant plurality of current federal inmates – nearly half – are serving sentences for drug charges and, troublingly, about 75 percent of them are black or Latino – despite research from the Brookings Institution that shows rates of drug use and drug dealing are roughly equal between white and black Americans.
Similar racial disparities also persist in Delaware’s criminal justice system. Recent data from Delaware’s Statistical Analysis Center shows that from 2016 to 2018, black defendants were nearly three times more likely than white defendants to be charged with a felony drug offense.
In all three counties, about two-thirds of all arrests for aggravated felony drug charges were black. Conversely, white defendants were significantly more likely than black defendants to face a misdemeanor as their highest charge. As of 2017, roughly 60% of Delaware’s prison population was African American. At the time of the 2010 census, African Americans were 21% of Delaware’s population.
Those numbers are even worse than they sound: the Sentencing Project ranks Delaware’s proportion of black inmates 8th in the nation.
It is not an indictment of any individual to recognize that these facts and patterns represent clear failures in the system. Delaware has to be committed to combatting the addiction epidemic and to fighting high-tier drug dealing.
At the same time, we need to balance that mission with a recognition of these disparities and seek out sensible reform, particularly when it comes to the lowest-level drug offenders. Part of that is an enforcement issue, and the Delaware Department of Justice announced in February that its prosecutors will use greater discretion on issues like low-level drug offenses, habitual offender designations, and technical violations of probation.
But it’s also clear that a significant part of the problem is the law itself. Delaware’s drug code includes several provisions that serve to widen racial disparities in drug arrests, charging, and sentencing. By way of example, current law enhances penalties for drug offenses within 300 feet of a park, a place of worship, or school. On paper, that policy may be well-intended; but in practice, it uniquely criminalizes drug use in cities, where any given resident is significantly more likely to live near a park, church, synagogue, or school than their counterparts in suburbs or rural areas.
We don’t have to choose between public safety and progress. We have to choose both.
That’s why we’re introducing and supporting legislation to correct, simplify, and modernize Delaware’s drug code.
This legislation eliminates geographic enhancements for parks and places of worship, and applies the geographic enhancements for school zones to drug dealing but not simple possession. It also eliminates enhancements for prior drug offenses, consolidates quantity tiers (the weight thresholds that trigger elevated offenses for higher-level dealers over lower-level users) from five tiers to three, and repeals outdated and redundant sections of code.
There is no silver bullet for multigenerational poverty, structural inequality, or the challenges of drug use and addiction; but this is an important step forward. We cannot responsibly accept a status quo where a single crime inherently carries a more severe punishment for someone living in Wilmington or Dover than it does for someone living in Middletown or Hockessin.
Delaware needs to rebalance the scales, modernize our laws, and bring our drug laws into better alignment with our shared values of equal justice and public safety. The General Assembly can take action to do that now, and we hope it will.
Editorial Commentary Submission – Leadership and Action are Needed – 5/6/19
Kathy Jennings, Delaware’s Attorney General, Sen. Elizabeth Lockman, D-West Wilmington, and Rep. Sean Lynn, D-Dover, who chairs the House Judiciary Committee wrote an excellent Editorial piece (We Must Bring Balance to the Criminal Justice System) in which they hit the nail on the head, addressing most of the major problems in the system today. NOW all they need to do is penetrate the skulls of some Bozo legislators, getting them to enact needed changes!
Ms. Jennings is in a position to make a huge difference – a drift toward fairness – by having her prosecutors use more sense when determining which charges to bring, or not bring … such as technical violations of probation, and she is introducing legislation to eliminate some of the racism and bias in the system. It does nobody any good to keep throwing people in prison because they have a drug or alcohol problem.
The big problem is that too many Bozo members of the General Assembly lack wisdom and leadership; they just keep feeding their constituents what they think they want to hear. “Bozos”?! Too rude or too strident? NO. People’s lives are being needlessly destroyed because of legislative inaction and lack of leadership. The legislators should educate the public as to the current injustice, the justice in what needs to be done, the huge economic savings … thus showing leadership in combining public safety with fiscal wisdom and fairness.
Ken Abraham, former Deputy Attorney General, founder of Citizens for Criminal JUSTICE, Dover, DE 302-423-4067
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I get lots of letters published, and ghost write for others. THIS IS THE BEST WAY TO REACH THOUSANDS OF READERS!
The keys to getting your Letter published are:
1. Keep it to 250 words or fewer.
2. Do not make it about “poor little old me”. Describe the problem as one which not only affects the individual, but is a senseless or ineffective measure, policy, or law which also harms communities and society. For example, with reentry, the obstacles make it unnecessarily difficult for the individual, but also harm society by making it hard to become productive, spending money and paying taxes in the community, and they cause increased recidivism = increased crime.
3. Speak from your heart.
4. Google any facts you are not sure about.
5. Do not name-call.Do what works: Write that Letter!…………Letter to Editor – sign name, town, state, and your phone number (they often call to verify that you sent it), and “Member of Citizens for Criminal JUSTICE” if you like – shows you are part of a large group.
Send the email to yourself, and put on the “bcc” bar the email addresses for Letters to the Editor for the top ten newspapers in your state and several national ones – The New York Times, Chicago Tribune, U S A Today (google the Letter to Editor email addresses).
Any questions, CALL me at 302-423-4067!
GOOGLE THE EMAIL ADDRESSES FOR “LETTERS TO THE EDITOR” FOR THE TOP TEN NEWSPAPERS IN YOUR STATE AND SAVE THAT INFORMATION FOR REPEATED USE – Some papers will print a letter from you every 2 weeks, some every 30 days, some every 90 days.They have varying policies. But if you really want to make a difference shoot them a new letter once a month!
I send one out every 2 weeks.Need a Letter on some criminal justice issue and not a great letter writer? NO EXCUSE! Email me a rough draft and call me and I’ll polish it up! kenabraham3138@gmail.com .
ANY QUESTIONS, CALL ME AT 302-423-4067.
Court rules in favor of woman seeking opioid meds in jail
Many articles on this website feature articles about inmates who DIED in prison because of withdrawal, when their addiction was not detected or was deliberately ignored (they told prison staff, who did nothing) when they arrived.
This article was sent to me by my friend, excellent attorney Stephen Hampton, Esq. He will sue prisons over such cases.
Stephen Hampton
sahampton@gradyhampton.com
Grady and Hampton LLC
6 North Bradford Street
Dover, DE 19904
302-678-1265
A federal appeals court has affirmed a judge’s order requiring a jail to provide medication to a woman to keep her opioid addiction in remission.
The Aroostook County Jail in northern Maine appealed to the 1st U.S. Circuit Court of Appeals after a Portland-based U.S. district judge granted the preliminary injunction, which requires the jail to provide prescribed medication to Brenda Smith. The appeals court released a brief, unsigned ruling Tuesday saying it found “no abuse of discretion by the district court” in ruling in Smith’s favor.
Smith was convicted of theft in 2017. She was scheduled to report for her 40-day sentence Wednesday, but lawyers said both sides were working to modify Smith’s sentence so it doesn’t involve jail time. The American Civil Liberties Union of Maine argued on Smith’s behalf when the Madawaska resident argued that the medicine allowed her to live a functional life. The medicine is commonly known by the brand name Suboxone. The Boston appeals court’s ruling sends “the strongest message yet” that jails need to provide inmates with medicine for opioid use disorder, said Emma Bond, a staff attorney with the ACLU of Maine.
“Other facilities should take note and do the right thing, and not wait for further legal action,” Bond said.
The fight over inmate access to opioid addiction drugs is being fought in several states. In Maine, the state ACLU filed a lawsuit last year making the case that it’s unconstitutional for Maine jails to keep addiction medicine away from inmates. eter Marchesi, an attorney for the Aroostook County Jail, said the facility is “disappointed by the ruling” because it “cannot safely dispense this medication in the jail environment, absent proper funding for policy development and training.”
Smith had not reported to jail as of Wednesday afternoon, Marchesi said, and the jail supports efforts to change her sentence so it doesn’t involve jail time. That is because the jail is “unable to safely dispense the opioid replacement medication in the jail environment,” Marchesi said.
The appeals court’s Tuesday filing noted that numerous medical associations supported Smith, including the American Medical Association, American Society for Addiction Medicine and Maine Medical Association.
Pharmaceutical executive guilty of bribing doctors to push opioid – Great! – kra
I have argued for years that THESE are people who should be prosecuted. More such executives should be prosecuted. How many of the 400,000+ did this man kill? How many lives did he destroy? Participating doctors too should go down. The wealthy should not get a free ride.
Excerpts from the Article:
A pharmaceutical company founder accused of paying doctors millions in bribes to prescribe a highly addictive fentanyl spray was convicted Thursday in a case that exposed such marketing tactics as using a stripper-turned-sales-rep to give a physician a lap dance.
John Kapoor, the 76-year-old former chairman of Insys Therapeutics, was found guilty of racketeering conspiracy after 15 days of jury deliberations. Four ex-employees of the Chandler, Arizona-based company, including the former exotic dancer, were also convicted. Some of the most sensational evidence in the months-long federal trial included a video of employees dancing and rapping around an executive dressed as a giant bottle of the powerful spray Subsys, and testimony about how the company made a habit of hiring attractive women as sales representatives.
Federal prosecutors portrayed the case as part of the government’s effort to go after those it views as responsible for fueling the nation’s deadly opioid crisis.
“This is a landmark prosecution that vindicated the public’s interest in stanching the flow of opioids into our homes and streets,” Massachusetts U.S. Attorney Andrew Lelling said in a statement. The convictions could embolden federal authorities to bring more cases against top executives of opioid manufactures, said Andrew Kolodny, co-director of opioid policy research at Brandeis University’s Heller School for Social Policy and Management.
“Paying a fine or even civil litigation is inadequate if we want to deter corporations from killing people in their pursuit of profit,” Kolodny said.
Opioid overdoses claimed nearly 400,000 lives in the U.S. between 1999 and 2017, according to the Centers for Disease Control and Prevention. An estimated 2 million people are addicted to the drugs, which include both prescription painkillers such as OxyContin and illegal drugs such as heroin.
Kapoor and the others were accused of scheming to bribe doctors across the U.S. to boost sales of Subsys and misleading insurers to get payment approved for the drug, which is meant for cancer patients in severe pain and can cost as much as $19,000 a month, according to prosecutors. The bribes were paid in the form of fees for sham speaking engagements that were billed as educational opportunities for other doctors.
The charges carry up to 20 years in prison.
A former sales representative testified that regional sales manager Sunrise Lee once gave a lap dance at a Chicago nightclub to a doctor whom Insys was pushing to write more prescriptions. Lee’s lawyer said she will challenge the verdict.
Jurors also watched the rap video , which was shown at a national meeting in 2015 to motivate sales reps to push doctors to prescribe higher doses of the drug. At the end of the video, the person dressed up as the bottle takes off his costume and is revealed to be then-vice president of sales, Alec Burlakoff. Burlakoff pleaded guilty and testified against Kapoor. Burlakoff told the jury that he met Lee at the strip club where she worked and recruited her to join the company despite her lack of pharmaceutical industry experience because he believed she would be willing to help carry out the plan to pay off doctors.
A former CEO of the company, Michael Babich, also pleaded guilty and testified against his colleagues. He said Insys recruited sales reps who were “easy on the eyes” because doctors didn’t want an “unattractive person to walk in their door.”
Several doctors have been convicted in other cases of participating in a kickback scheme. A number of states have sued the Insys, which also agreed last year to pay $150 million to settle a federal investigation into inappropriate sales.
Florida Deputy Falsifies Drug Field-Test Results, Freeing 11 From Jail – Steven O’Leary MUST be prosecuted! – kra
More cases surely will be dropped, and this dirty cop MUST be prosecuted.
Excerpts from the Article:
Steven O’Leary was a preacher before switching his career to law enforcement. The career-changing, job-hopping cop held jobs at two different departments.
O’Leary might face criminal charges himself.
The number of people jailed in U.S. prisons is at a decade low. It’s still too high. Read my comments to understand WHY! – kra
Of course it is way too high. For every 1 person arrested 29 people benefit financially. Prison guard unions, police unions, prosecutor unions, hundreds of contractors who feed on the broken system, and private prison corporations spend BILLIONS OF DOLLARS ANNUALLY TO LEGALLY BRIBE LAWMAKERS [LOBBYING AND CAMPAIGN GIFTS] TO FIGHT THE MANY CHANGES NEEDED! This is the ugly truth, unmentioned in many articles like this one!
I have written on all the issues mentioned in this article: old and aging inmates, no need to imprison at all many nonviolent offenders, sentences too harsh to do any good, etc. … but much more needs to be done, and YOU need to realize that money is poisoning our justice system!
Excerpts from the Article:
GOOD NEWS, and bad news: The United States held 1.5 million people in prison in 2017, the Bureau of Justice Statistics reported last week. This is the lowest number in a decade. It is still extremely high relative to numbers in other free nations.
Crime rates are far down since the 1980s and early 1990s, when politicians embraced get-tough-on-crime policies that ballooned the prison population. As policymakers eased up in recent years — and as courts ordered prisoner releases from overcrowded penitentiaries — the incarcerated population has declined.
The number of people in state or federal correctional facilities dropped 6.7 percent between 2007 and 2017. From the 2009 peak, the incarcerated population is down 7.8 percent. The number of sentenced prisoners as a proportion of the total U.S. population has declined steadily over the past decade. Though African-American men are still locked up at a far higher rate than white men, the black adult imprisonment rate declined 31 percent over the decade, cutting into the disparity.
States from Connecticut to Texas deserve credit for pushing reform, which includes diverting people from prison when more cost-effective and constructive responses to their crimes exist; improving conditions inside prisons; and discouraging recidivism.
Still, getting the United States to a place where it is neither over- nor under-punishing crime will take more work. Cutting the number of nonviolent offenders in prison, on which reformers have mostly focused so far, is the easy part. The Justice Department reports that 55 percent of inmates now serving more than a year in state prison are violent offenders. Further moves toward de-incarceration will have to grapple with the question of whether penalties were too harsh for some of them, too.
So far, this question has not featured much in the national debate, in part because many state and national policymakers are taking only tentative steps toward reform. The recently passed First Step Act, which aims to mimic some of the smart reforms that states have tried, was still only, well, a first step.
Moreover, states and the federal government can do only so much by applying smarter policies when people are tried and sentenced. There are huge numbers of people already locked away, including a large number serving life sentences — about a third of the world’s total, researchers estimate. Prisons are filled increasingly with old inmates.
Democratic presidential candidates have discussed using the president’s pardon power to release more prisoners. This would not be a new idea. During his second term, President Barack Obama established a careful review system to vet huge numbers of pardon candidates. It would be worth reestablishing a similar program on the federal level. On the state level, too: Governors should apply their pardon and commutation powers in an orderly but more ambitious way.
But executive action is no substitute for legislation. If the country no longer wants to be known as the world’s greatest jailer, reform must continue in statehouses and Congress toward a system that is geared less toward warehousing people and more toward ensuring public safety without wasting human potential.
Ex-cop sentenced in Balt. racketeering case – He got 9 years in Prison – Good!- kra
Good, because the only thing worse than a dirty cop is a dirty prosecutor or judge!
Excerpts from the Article:
A fired Philadelphia police officer who led a double life as a criminal was sentenced Friday to nine years in prison as part of a Baltimore racketeering case that exposed one of the worst U.S. police corruption scandals in recent memory. Eric Snell had pleaded guilty three days into his trial on charges that he conspired to sell drugs with members of a rogue Baltimore police unit called the Gun Trace Task Force, a plainclothes squad that resold looted narcotics, conducted robberies and falsified evidence.
“Prosecuting law enforcement officers is painful but necessary if we are to restore the public’s trust in our justice system. No one is above the law,” Maryland U.S. Attorney Robert Hur said in a statement after Snell’s sentencing.
Snell was an officer in Baltimore from 2005 to 2008 before joining the Philadelphia Police Department. He went through police training with disgraced Baltimore Detective Jemell Rayam, who pleaded guilty to racketeering charges and testified on behalf of the government. The two had become buddies in the Baltimore police academy and kept in contact after Snell joined the Philadelphia force in 2014.
As part of his guilty plea in the far-reaching federal investigation, Snell admitted that from at least October 2016 through late June 2017 he conspired with Rayam and others to sell heroin and cocaine seized by Baltimore police officers.
In October 2016, Rayam and other Baltimore officers chased a driver who threw 9 ounces (255 grams) of cocaine out of his car’s window, court documents say. Authorities said one of his colleagues told Rayam to sell the drugs instead of putting it into a police evidence room. Rayam, Snell and Snell’s brother later met at Snell’s home in Philadelphia to plan the sale of the narcotics, according to authorities.
When Snell was arrested in late 2017 at his Philadelphia home, he became the ninth sworn officer indicted in the Gun Trace Task Force investigation.
Snell’s sentencing is far from the only unfinished business in the Baltimore police scandal.
With no public accounting yet offered by Baltimore police or City Hall, a state commission has been exploring how deep the rot might actually go. Among other things, the fact-finding panel led by a retired U.S. judge is tasked with examining how the group of rogue Baltimore officers was allowed to run rampant for years in the city before being brought down by federal investigators.
A Blueprint for a Safer, Saner Society – longer sentences can actually threaten public safety! – With Letter to the Editor – kra
This recent article by a widely respected expert in criminal justice surprises many by point out that longer prison sentences do not make us safer, they decrease our safety! It explains some root causes and the reasons. The goal of criminal laws is public safety, but we need to change the plan.
Excerpts from the Article”
A prison inmate can’t commit a crime on the outside, so the longer the sentence, the safer we are, right? That is a tenet of the law-and-order movement, which arose in reaction to violent protests in American cities in the 1960s and has dictated criminal-justice policy for 50 years.
But as Rachel Elise Barkow, a widely respected legal scholar at New York University School of Law and an expert in the administration of criminal justice, explains in her important new book, “longer sentences can actually threaten public safety.” Rather than preventing future crime, they seem to cause more crime once prisoners are released. In effect, longer sentences make prisoners less concerned about the threat of future imprisonment and raise the chances that they will break the law again based on coaching from other prisoners. Barkow summarizes “a growing body of research showing that increases in incarceration” are “correlated with increases in crime rates.”
Prisoners have an exceedingly hard time managing when they get out. A U.S. Bureau of Justice Statistics study of 405,000 prisoners in 30 states who were released in 2005 found that about two-thirds of them were arrested again within three years and about three-fourths within five years. The longer the sentence, the worse the rate of recidivism. Barkow writes, “One study using data from Texas found that each additional year of a prison sentence caused a 4–7% increase in an individual’s recidivism rate once he or she was released.” Since more than 95 percent of prisoners are eventually released—about 600,000 each year—American prisons are not protectors of law and order, as intended. Instead, they are often criminogenic: with a time lag, they cause the kinds of behavior they are supposed to prevent.
In the past half century, the rate of imprisonment in the United States massively increased, from around 100 prisoners per 100,000 people in state and federal prisons to around 450 prisoners per 100,000 people. So did the number of prisoners, from around 200,000 to more than 1.5 million. This expansion and the establishment of the prison-to-prison pipeline is the result of “penal populism.” Barkow describes it as “a pathological political process that caters to the public’s fears and emotions without any institutional safeguards or checks for rationality to make sure these policies work or are the best approach to combating crime.” One out of every three adults in the country has a criminal record.
Few Americans would choose to be the ones to set limits on air pollutants, Barkow argues, because they would recognize that the scientific nature of the task requires knowledge that only experts have. Yet that is how the country makes decisions “about public safety and crime control,” she writes, “based on emotions and the gut reactions of laypeople.”
Irrationality prevails at every stage, beginning with the definition of crimes and the assignment of punishments. Legislators have embraced “lumpy” laws, which lump together crimes of widely varying seriousness and degrees of blameworthiness. Almost all federal and state criminal laws about selling drugs, for example, base punishment on the type and amount of the drug, not on the individual’s role. These laws treat small-time street sellers the same as major dealers, who reap the profit and are responsible for the level of dangerousness of the drugs. In federal prisons, for example, about one-sixth of prisoners are in for drug-trafficking, mostly people convicted of selling an ounce or less of a drug.
Legislators who pass these laws play on fear. So, in a different way, do prosecutors who coerce defendants into pleading guilty by threatening to charge them with harsher crimes carrying even longer sentences. The United States now has a plea-bargain system of justice: 97 percent of federal cases and 94 percent of state cases end in plea deals. Prosecutors, who have helped write the laws, enforced them, and insisted on the fairness of unfair deals, Barkow writes, “combine legislative, executive, and judicial powers under one roof—the very definition of tyranny that the separation of powers,” supposedly at the heart of American governance, “was designed to guard against.”
The best solution to these problems would include taking politics out of the system as much as possible, by ending the widespread practice of electing of prosecutors and judges—something unlikely to happen soon. Prosecutors make up a powerful lobby that would push back hard against this idea. About 90 percent of state judges are elected, and the special interests and campaign financiers to whom they are often beholden would lobby hard against ending judicial elections.
The first step in Barkow’s alternative, already being pursued, is to elect progressive prosecutors “committed to more rational, data-driven decision-making instead of stale rhetoric about long sentences.” The late William J. Stuntz argued persuasively for this strategy in 2011 in The Collapse of American Criminal Justice, and Emily Bazelon reports on its positive effects in her new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. The second step is to stop picking “judges who are overwhelmingly former prosecutors, making them particularly ill-suited to provide the meaningful second look of prosecutorial decision-making that is necessary to bring rationality to the system.”
The third step—Barkow’s most ambitious idea—is to create Progressive Era-like agencies “designed to withstand the political pressures they will inevitably face to adopt superficially tough, but actually ineffective, measures to address crime.” Their mission would be to use empirical data to shape criminal-justice policy with the goal of maximizing public safety. A model is the U.S. Sentencing Commission, on which Barkow served for five years. She writes, for example, “It makes no sense for a state to spend money on prisons but not subsidize other options that might be more effective and cost less, like drug treatment.” Punishment is not enough—the United States needs to do much more to rehabilitate prisoners and help them find a productive role in society.
This being the Trump era, Barkow closes her book with this caveat: “To the extent members of the public are out for short-term emotional fulfillment even if it comes at a long-term cost to their own safety, nothing here will overcome that.” Making criminal law more reasonable is a stiff challenge in this era of fear-mongering politics. The challenge is even stiffer with the fear-mongering tied to fact-mocking. The spotlight Barkow shines on the facts and their implications will surely stir denial, but if the country does not meet the challenge, all of us will be less safe.
Letter to the Editor or Op Ed Submission – Long Prison Sentences Decrease Public Safety – 4/27/19
This sentence really caught my attention: “Few Americans would choose to be the ones to set limits on air pollutants, Barkow argues, because they would recognize that the scientific nature of the task requires knowledge that only experts have. Yet that is how the country makes decisions “about public safety and crime control,” she writes, “based on emotions and the gut reactions of laypeople.” It is from an article informing us that long prison sentences decrease, not increase, our safety! READ A Blueprint for a Safer, Saner Society – longer sentences can actually threaten public safety! = http://www.citizensforcriminaljustice.net/a-blueprint-for-a-safer-saner-society-longer-sentences-can-actually-threaten-public-safety-with-letter-to-the-editor-kra/
It’s a real eye-opener, what the facts can tell us! Too many legislators (lawmakers) enact laws without knowing the facts; they just do what they think the public wants to hear. The problem starts with the very making of the laws: they tend to group or cluster certain crimes, irrespective of degrees of blameworthiness or seriousness. For example, nearly all laws about selling drugs tie the punishment to the type and amount of the drug, not the role of the individual in the sale. Thus, small time dealers are treated the same as major dealers who reap huge profits, and who are responsible for the level of dangerousness of the drugs. Rachel Elise Barkow, a greatly respected legal scholar at New York University School of Law and an expert in the administration of criminal justice, reminds us of this in her new book. She points to studies showing that increases in incarceration correlate with increases in crime rates.”
Longer sentences seem to cause more crime once prisoners are released, rather than prevent crime. In effect, longer sentences make prisoners less concerned about the threat of future imprisonment and raise the chances that they will break the law again based on coaching from other prisoners.
Once again I call for criminal laws to be “evidence-based”, rather than based on emotions. And here is a solid reason why: such laws will reduce costs (prison costs annually are from $37,000 to more than $100,000 per inmate per year) and will keep us safer! The goal of criminal laws is public safety, but we need to change the plan for getting there..
Ken Abraham, former Deputy Attorney General, founder of Citizens for Criminal JUSTICE, Dover, DE 302-423-4067
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I get lots of letters published, and ghost write for others.
THIS IS THE BEST WAY TO REACH THOUSANDS OF READERS!
The keys to getting your Letter published are:
1. Keep it to 250 words or fewer.
2. Do not make it about “poor little old me”. Describe the problem as one which not only affects the individual, but is a senseless or ineffective measure, policy, or law which also harms communities and society. For example, with reentry, the obstacles make it unnecessarily difficult for the individual, but also harm society by making it hard to become productive, spending money and paying taxes in the community, and they cause increased recidivism = increased crime.
3. Speak from your heart.
4. Google any facts you are not sure about.
5. Do not name-call.
Do what works: Write that Letter!…………Letter to Editor – sign name, town, state, and your phone number (they often call to verify that you sent it), and “Member of Citizens for Criminal JUSTICE” if you like – shows you are part of a large group.
Send the email to yourself, and put on the “bcc” bar the email addresses for Letters to the Editor for the top ten newspapers in your state and several national ones – The New York Times, Chicago Tribune, U S A Today (google the Letter to Editor email addresses).
Any questions, CALL me at 302-423-4067!
GOOGLE THE EMAIL ADDRESSES FOR “LETTERS TO THE EDITOR” FOR THE TOP TEN NEWSPAPERS IN YOUR STATE AND SAVE THAT INFORMATION FOR REPEATED USE – Some papers will print a letter from you every 2 weeks, some every 30 days, some every 90 days. They have varying policies. But if you really want to make a difference shoot them a new letter once a month! I send one out every 2 weeks.
Need a Letter on some criminal justice issue and not a great letter writer? NO EXCUSE! Email me a rough draft and call me and I’ll polish it up! kenabraham3138@gmail.com .
ANY QUESTIONS, CALL ME AT 302-423-4067.
MENTAL HEALTH: A CRISIS IN COLORADO A RUTHLESS CYCLE – This is a National Crisis! – kra
I shall never forget reading about 5 years ago that the neglect of the mentally ill in America costs us – YOU – $444 BILLION annually! This excellent article was sent to me by our friend, excellent attorney Stephen Hampton, Esq.
The problems described here are embedded in all states, not just Colorado.
Like so many truly excellent articles, this one is extensive, so I have had to edit it severely, and Lord knows I am not the best editor. If you care at all about criminal justice, the waste of YOUR hard-earned tax dollars, the homeless, our mentally ill, you should open and read the whole story, see the nightmarish but true stories of genuine anguish and death of real people, see the charts and statistics!
Excerpts from the Article:
During the lucid moments, when she was out of meds and walking the streets of Colorado Springs for days and nights on end, too afraid to sleep, Cait Pfeifer would often ponder the seemingly random domino fall that brought her down. Born to a solidly middle-class family, she’d had a healthy childhood and “incredible, loving and devoted” parents who valued education and encouraged advocacy.
But, as a young teen, she was sexually molested and suffered a breakdown that led to a diagnosis of bipolar disorder and PTSD. She fought her way back with the help of her parents, doctors and medications, and by her mid-20s, she was working as a consultant and pursuing her second master’s degree. It took just months, and a cascade of health and life misfortunes, to wipe out all that progress.
The girl who’d been born with a “silver spoon in her mouth,” who at 25 was not only managing her illness but launching a career and planning a startup, found herself homeless, sick and running out of hope.
“I was cold and hungry and so afraid. I did spend a lot of time out there, walking and thinking, trying to blame one person,” Pfeifer said. “Sometimes I’d blame myself, and it would really weigh heavy on my shoulders that I did this.
“Sometimes it was the ripple effect and that there’s this overall system here that really let this happen.”
And if it could happen to her, she reasoned as she trod alone and terrified, it really could happen to anyone.
“So many people with depression and anxiety don’t reach out because they’re embarrassed, ashamed or lonely. When they do, we should be doing everything we can to help them. And we’re not.” — Karen Fallahi, Depression and Biopolar Support Alliance
Despite 300 annual days of sun, a booming economy and an unparalleled reputation for physical fitness, Colorado’s residents rank among the most mentally ill people in the country.
It’s estimated that about 20 percent of the state’s adult population — about 832,000 people — is living with some kind of mental health condition, according to a 2019 report from Mental Health America, and nearly 450,000 of them aren’t being treated for that illness. That singular crisis lies at the root of so many others: homelessness, poverty, substance abuse and violence, as well as harrowing episodes of personal and family ruin.
Colorado’s efforts to make health care effective, accessible and affordable have been inconsistent at best and a failure at worst.
382,000
Coloradans need access to mental health care
67,000
Coloradans need access to substance abuse treatment
12,998
Total suicides across Colorado from 2004 to 2017
Scores of interviews by The Gazette with mental health experts, counselors and people struggling with mental health diagnoses and their families revealed:
• Hospital emergency rooms have become the primary first stop for mental health crises in Colorado, in large part due to a lack of accessible providers. Across the state, mental health crises resulted in more than 112,000 emergency room visits and 11,600 inpatient hospital stays over a recent 12-month span, the Colorado Hospital Association reported.
• Pikes Peak region children who require inpatient mental health care are routinely sent hours away to clinics elsewhere in the state because there aren’t enough open psychiatric beds locally to meet their needs. What’s more, Colorado children are routinely transferred by expensive ambulance or airplane trips to institutions in other states because of a lack of in-state beds, according to Children’s Hospital Colorado.
• Many people simply can’t pay for mental health care, and a decade of attempts by state and national lawmakers to make that care more affordable and accessible still precludes thousands.
• More often than not, the destination for those who fall through the wide cracks is the criminal justice system. More than one-third of all prison inmates have moderate to critical mental health needs — a far higher rate than that of society as a whole.
Grim reminders of days gone by can be seen in the Colorado Mental Health Institute at Pueblo’s museum. The state hospital in Pueblo used to house more than 6,100 patients in 1961 but housed fewer than 500 people by 2008. Above, museum director Nell Mitchell hangs a straitjacket back on a peg last month at the museum.
More than half a century after the deinstitutionalization movement began in the 1960s, jails and state prisons have effectively become warehouses for the mentally ill. For a time this year, demand for beds led the state’s psychiatric hospital system to temporarily freeze all new admissions of patients who weren’t already facing criminal charges. The freeze ended in February, with the state opting instead to pay what could be millions of dollars in fines.
Residents who aren’t inmates and seek treatment often are forced to navigate a system so confusing and costly it can be overwhelming for those facing it in an emotionally stable state.
“There really is not a mental health system in Colorado,” said Nancy VanDeMark, interim president and CEO of Mental Health Colorado and former director of the state’s Office of Behavioral Health. “Especially if we think of mental health as including substance use services.”
“The problem is they emptied out the hospitals, but they didn’t always have the support that the person needed to be able to live in the community.” — Carl Clark, president and CEO of Mental Health Center of Denver
To understand mental health care today is to go back more than 60 years, to a time when care was centralized in large state institutions rife with abuse. Patients were severely stigmatized. President John F. Kennedy sought to change that, spurring a movement that promised better care and less stigma, with people seeking treatment in their communities while living at home and managing their symptoms with new and game-changing psychiatric drugs. But the money to fully realize that dream of transforming care never followed, advocates say. Outpatient and community-based treatment centers never received enough funding to become viable options for the tens of thousands nationally packed behind hospital walls. The results were predictable.
“It’s not that Colorado is doing a good job, period — it’s just that there are so many other states that are doing a worse job,” said Theresa Nguyen, Mental Health America’s vice president of policy and programs.
In addition to the state’s discouraging statistics about those who suffer from mental health issues, 67,000 more people reported an inability to get the substance abuse services they need.
Colorado had 560 opioid-related deaths last year, 92 of them in El Paso County, as part of a national epidemic involving prescription painkiller and heroin use. That, combined with a rise in methamphetamine deaths, pushed Colorado’s drug fatalities above 1,000 in 2017 for the first time on record.
To Ted Ulibarri, substance abuse is a feeder, and outcome, of the failures in mental health care.
“What comes first, the chicken or the egg? The trauma or the substance abuse? We need to focus on the individual struggling with addiction and mental illness in their families, and their families need just as much support as the individual,” said Ulibarri, an addiction counselor and clinical supervisor at Rocky Mountain Behavioral Health in Cañon City. “If we as treatment providers, medical and mental health, if we can’t all get together and work on this together, we’re going to lose this battle.”
Even the man in charge of the Colorado Department of Human Services’ Office of Behavioral Health admits: “We could do better.” “There are many components of our system that work well,” said Robert Werthwein, the agency’s director. “The bigger question is do they work well together. And the goal really needs to be that every Coloradan gets the behavioral health services they need. “I’m not sure that’s happening today. And I think it’s time for us — for everybody — to sort of reevaluate the system as a whole.”
= https://gazette.com/special-coverage/continuing/mental-health/intro/
Plea Bargaining: Prosecutors Leave Trail of Injustice When Playing Hardball with Defendants – As I Know All Too Well – kra
This lengthy article discusses most of the evils of plea bargaining. See some of my other articles. READ Rush to Sentence
It is so extensive that I am forced to omit a lot of it in editing. You should take 15 minutes to read the whole article to get an idea of the immense power wielded by prosecutors, the many, many injustices entailed in many plea bargains!
Excerpts from the Article:
To fight against government tyranny in the criminal justice system, America’s Founding Fathers enshrined into the Constitution the “right to a speedy and public trial, by an impartial jury.” Plea bargains, however, have become, as the Supreme Court of the United States (“SCOTUS”) said, “not only an essential part of the process but a highly desirable part.” While plea bargains have streamlined the management of court caseloads, they all too often result in the conviction of factually innocent persons or create final judgments that are legal fiction.
Thomas Jefferson said, “I consider [trial by jury] as the only anchor yet imagined by man, by which government can be held to the principles of its constitution.”
Plea bargaining was first introduced as a legal tool that could protect citizens’ rights and address the need for courtroom efficiency. It, however, was criticized as being too radical from the system’s trial nature and removed jury safeguards against wrongful convictions. By the late 19th century, the nation’s population growth and increased policing systems, combined with expanded criminal codes, placed an increasing caseload on prosecutors, and they normalized plea bargains into the process to quickly resolve cases despite the criticism.
As plea bargains gained momentum in the 1800s, its practice also began to evolve and shift. Prosecutors, for instance, began overcharging suspects to increase perceived performance and to frighten defendants into taking a plea to avoid severe penalties from multiple charges. A practice that continues to the present is the filing of an indictment that contains multiple charges to gain leverage to obtain a plea on one charge, or charging a higher offense to gain a plea on the actually committed lower offense.
The Wisconsin Supreme Court in 1877 wrote that pleas are “hardly, if at all, distinguishable in principle from a direct sale of justice.”
The practice of plea bargains in America continued, nonetheless, to grow in use as a way to streamline caseloads and gain convictions. An industry grew around it as “fixers” could be hired to arrange alternatives to a prison sentence. Police regularly toured jails to “negotiate” with prisoners. In New York, one defense attorney and friend to magistrates hung his shingle in front of night court and hawked 10 days in jail for $300, 20 days for $200, and 30 days for $150. With Prohibition in the 1920s, court dockets saw 88 percent and 85 percent of cases resolved by plea bargaining in New York and Chicago, respectively.
That trend has continued — and increased. In 2013, 8 percent of all federal charges were dismissed either because of a mistake in fact or law or because the defendant decided to cooperate. More than 97 percent of the remaining cases were resolved by guilty plea. In state courts, 94 percent of cases, on average, are resolved via a guilty plea. New York has the highest percentage of cases resolved via plea with 98 percent. In 1980, 19 percent of all defendants went to trial; by 2000, that number decreased to 6 percent.
In noticing the state of America’s criminal court system, the SCOTUS said in Missouri v. Frye, 132 S. Ct. 1399 (2012), that “ours ‘is for the most part a system of pleas, not a system of trials.’” That system has created a functioning market where defendants do not expect the maximum sentence, the court noted in Lafler v. Cooper, 132 S. Ct. 388 (2012). Ninety years ago, Columbia Law School professor Raymond Mosely called the plea bargaining process “more akin to a game of poker than to a process of justice.”
The Constitution requires reliable procedures in order to accurately identify suspects who are guilty. That begs the question of whether plea bargains fulfill that constitutional mandate. According to the National Registry of Exonerations, 15 percent of all exonerees originally pleaded guilty. That share rises to 49 percent for people exonerated of manslaughter and 66 percent for those exonerated of drug crimes.
Critics point to the paradigm shift that plea bargains created. They say the prospect of pleas places too much power in the hands of prosecutors as they have the sole authority to decide what charges will be lodged. The problem with overcharging is extremely harmful for poor persons who cannot afford to post a cash bond.
Several studies have found that pretrial detention results in longer sentences, and it is more likely the defendant will plead guilty. For example, in California, Aron Jensen was offered 16 months in jail when his bond was set at $20,000. He managed to post bond, and the offer changed to probation and community labor.
Every state, with the exception of California’s abolishment of the industry in October 2019 and Washington, D.C., uses a cash bond system. While arrestees are not formally charged with a crime and are considered by the Constitution to be innocent, most of them must post a bond to obtain release.
In most jurisdictions, low-level charges such as misdemeanors have a set bond amount, but in others, the defendant must appear before a court for that amount to be determined. This is where overcharging begins to have a detrimental effect upon the accused. More charges mean a bond amount for each charge, and overcharging a crime can make the defendant appear to be a greater public safety risk. In Louisiana, Orleans Parish Criminal District Court Magistrate Judge Harry Cantrell is tasked with setting a reasonable bond for the defendants who appear before him. His reasonable bonds have a floor. “We don’t go lower than $2,500 in this court,” he told a defense attorney in 2016. The average bond for a felony in Cantrell’s court is $10,000. In 2015, 87 percent of defendants in Orleans Parish Criminal District Court had to post bail. Of those, 97 percent used a bondsman.
This is a cozy little industry. Under Louisiana law, a small percentage of every bond contract with a bondsman goes back to the budgets of the court, the sheriff, the district attorney, and the public defenders. The Orleans Parish Criminal District Court pulls in about $1 million annually from this law, giving it “an institutional financial conflict of interest,” charges a lawsuit.
Most bondsman charge 10 percent of the set bond, which is not returned even if the charges are dismissed. For those who cannot post a bond, the only option is to wait in jail until their case is resolved. “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute. The main consequence is usually the loss of a job and inability to provide for family. Critics say “instead of using the bail system to keep the truly dangerous few in custody until their cases are decided, we use it to coerce guilty pleas. The result is that justice in our courts depends on wealth.”
A 2016 study analyzing 420,000 cases determined that those who gained pretrial release were 15.6 percent less likely to be found guilty. “A dog doesn’t like being in a cage, so just picture a human being in a cage,” said Wilkeitha Washington, who was arrested on a cocaine possession charge in New Orleans. “I know that if I try to fight this, I could probably win.” Yet, Washington took a plea, so she could get out of jail to care for her four children. That is a major concern of plea bargains: People plead guilty but maintain their innocence.
A foundational aspect of America’s criminal justice system is that a jury must find the defendant guilty beyond a reasonable doubt. With SCOTUS’ decision in North Carolina v. Alford, 400 U.S. 25 (1970), the sanctity of that principle was diminished. Henry C. Alford was unable to read or write when he was charged with first-degree murder in 1963. He was an African-American facing the criminal justice system at the height of the civil rights movement, and to assist him, a lawyer who was just a few years out of law school was appointed. While there were no eyewitnesses, there was strong evidence of guilt. At arraignment, Alford was expected to plead guilty, but he testified that he was only doing so to avoid the death penalty. After some discussion, the court accepted the plea and sentenced Alford to 30 years in prison for second-degree murder. When the case came before SCOTUS, it ruled that there are two components to a guilty plea: the waiver of the right to trial and the admission of guilt. The court found the latter was not a constitutional requisite to imposing a criminal sanction. As a result, defendants can enter so-called “Alford” or best interest pleas when they claim to be innocent but fear their chances of acquittal at trial are too risky.
Because Alford pleas are not categorized in court statistics, the frequency of their entry is difficult to quantify. In a 2000 report by Wolf Harlow that used a 1997 Survey of Inmates in State and Federal Correctional Facilities, it was estimated that 65,150 state prisoners (6 percent of the state prison population) and 2,472 federal prisoners (3 percent) entered Alford pleas. Research by the PBS NewsHour and Capital News Service identified more than 100 cases where suspects pleaded guilty, but there was strong evidence of innocence. The National Registry of Exonerations says 15 percent of exonerees pleaded guilty. If just 1 percent of the people who entered Alford pleas in the 1997 study were factually innocent, then 676 of those prisoners suffered a grave injustice in the name of keeping an overburdened and underfunded court system functioning.
Why would an innocent person plead guilty? “It seems crazy that an innocent person would plead guilty,” said Illinois attorney Dan Stohr, “but when you have been pushed around and ground down, that may seem like the best choice under the circumstances.”
There are a number of factors that contribute to such pleas. It starts with the cash bond system. If bond is set higher than people can post, they face months or even years in jail awaiting final disposition of their case. In cases involving misdemeanors or first-time offenders charged with low-level felonies, it is usual practice for the prosecutor to offer a sentence of “time served,” probation, community service, or the payment of a fine in return for a guilty plea that results in immediate release. Ironically, such offers often come immediately after the prosecutor argued that the defendant was a public safety threat that required an out-of-reach cash bond.
“The DA’s objective in making the bail so high and then raising it again when we came up with the original amount was solely to force a plea bargain. Then they keep dragging it out. They are not in it for justice, they were in it for statistics,” said Kevin Ocampo, who posted bond for his cousin in Alameda County, California.
“I’ve seen it. A time served offer on a custody defendant on a low-level charge, all they think about is, ‘Do I get out today? Can I get out today?’ We have to look at whether we are contributing to the problem,” said California Supreme Court Chief Justice Tani Cantil-Sakauye.
Then, there is what defense attorneys call the “trial tax.” Defendants who plead guilty almost always get lighter sentences than those who are convicted at trial. Prosecutors can wreak havoc on the life of a person who insists he or she is innocent and wants to exercise the right to a jury trial. Sentencing “guidelines, like mandatory minimums, provide prosecutors with weapons to bludgeon defendants into effectively coerced plea bargains,” wrote federal judge Jed S. Rakoff in a New York Books Review article. Judge Rakoff said “[i]n the majority of criminal cases, a defense lawyer only meets her client when or shortly after the client is arrested, so that at the outset, she is at considerable informational disadvantage to the prosecutor.” By contrast, the prosecutor “will typically have a full police report, complete with witness interviews and other evidence, shortly followed by grand jury testimony, forensic test reports, and follow-up investigations.”
These sentencing weapons and informational advantages put the prosecutor in the driver’s seat. Indeed, in 11 states that advantage is enhanced because the law does not require prosecutors to disclose discovery materials such as videos, witness statements, and other key evidence until the eve of trial. This often results in situations where people plead guilty to a crime they did not commit because they do not know what evidence prosecutors have against them. Some prosecutors see it the other way. “What the defendant may not know is the strength of the prosecution’s case, and therefore how likely it is that he can ‘beat’ the charges despite his guilt,” wrote three prosecutors in dissent to a New York Bar report advocating for expanded discovery procedures in criminal cases. “When I was a cop, I always believed the criminal justice system was on the level,” said former New York City police detective Carlton Berkeley. “I’m embarrassed now to say that.”
“Almost all manslaughter guilty plea exonerations started as murder cases and were plea-bargained down to manslaughter.” By contrast, the harsher the penalty for homicide cases, the fewer the guilty pleas. The sweeter the prosecutor’s deal, the more likely a defendant is to accept the plea offer. This can cause a conundrum for defense attorneys who believe they can prevail at trial for their client. “The idealist in you — the one who enrolled in law school to ‘change the system’ and to fight for justice on behalf of those who need it most — hopes your client will proclaim a decision to go to trial,” wrote public defender Jeffrey D. Stein in a Washington Post article. “But a wary voice in the back of your head reminds you of the risk and life-altering consequences of losing.” Thus, the innocent often enter an Alford plea, so they can move on with their life.
In 2009, SCOTUS noted that “a frighteningly high percentage of people … confess to crimes they did not commit.” According to the Innocence Project, 28 percent of people later exonerated by DNA had falsely confessed. That many prosecutors pursue prosecutions with such exonerating evidence at hand is shameful.
Most often, it is the poor who are wrongfully convicted. “It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,” said former Louisiana prosecutor Marty Stroud, who made headlines by penning a rare public apology in 2015 to a man who spent 31 years on death row for a wrongful conviction.
The only true closure a victim has is knowing that the perpetrator was caught and punished. Alford pleas appear to be a win on paper, but in fact, they are a loss for everyone, especially the victim. “In reality, everyone lost,” said Thiru Vignarajah, a former federal and Maryland prosecutor. “The victim sees no justice. The defendant is walking away with a conviction, and the prosecution didn’t get anyone to take responsibility.”
Playing hardball in plea bargaining also may involve threatening more severe charges to gain leverage in obtaining a conviction on someone suspected of committing other offenses. In Las Vegas, the threat of two murder charges being filed compelled a man to plead to attempted murder. Police set up a mannequin in an attempt to catch the killer of two sleeping homeless men. Shane Schindler, 30, was caught attacking the mannequin with a hammer and charged. He agreed to plea to the attempted murder charge in exchange for an agreement that the two murder charges would not be lodged against him. He was sentenced to eight to 20 years in prison. While there was no evidence he committed the murders, the fear that he could be found guilty and sentenced to death or life in prison based on the similar conduct of attacking the mannequin was not a chance Schindler was willing to take.
Plea bargains are criticized because they “undermine the integrity of the criminal justice system” by diminishing the burden of proof that must be met during the trial process. Of all the pleas that are entered, Alford pleas are the ones that are most contrary to the adversarial nature, which serves as the foundation of America’s criminal justice system.
The consequences of a criminal conviction can amount to more than just a prison sentence. Over the past 40 years, the cost of a committing a violation of law has expanded beyond the seriousness of the charge or time to be served. Ten states disenfranchise felons from voting. Florida voters in November 2018 abandoned this Jim Crow-era provision in their state constitution and reinstated that right to all felons, except those convicted of murder and sex offenses, who have completed their sentences.
Like many other states, Florida still prohibits felons from receiving certain career-specific licenses and has laws that restrict where sex offenders can live, work, and hang out. Then, there is the prejudice of the “box” that asks job applicants if they have been convicted of a felony. A conviction also can impact negotiations in a future criminal case. Some offenses require the automatic deportation of even permanent legal residents. For those convicted of sex crimes, there is the threat of having to register as a sex offender, which is then listed on a public registry. Federal law prohibits drug offenders from living in public housing or receiving federal student aid. To avoid such consequences, many pleas are tailored to “sanitize” the defendant from the collateral consequences of a guilty plea. This is known as creative plea bargaining, and it was encouraged by Justice Stevens in Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla acknowledged the collateral consequences of a guilty plea and a defense attorney’s ability to plea bargain “creatively” to avoid those consequences. In that case, the court held defense counsel has an obligation to inform his or her client about the potential immigration consequences of a criminal conviction.
With plea bargains turning from the traditional issues of the seriousness of the charges and the sentence to the collateral consequences, defense attorneys are focusing more of their energy on mitigating consequences than on lessening the sentence. In fact, it is not uncommon for a plea to result in a greater sentence in return for a less severe charge or one that does not carry the collateral consequences of the original charge. A “good deal” is a moving target that can vary from case to case, and this is especially so with sex offenses. “When I first became a public defender, I believed the worst punishment that my clients would face would be time in jail,” wrote Rachel Marshall in an article that appeared on Vox.com. “Since then, I’ve learned that incarceration is not the only — and perhaps not the worst — punishment the criminal justice system can impose. The registration requirements imposed on those convicted of sex offenses are unfairly harsh and punitive.”
After Velasco-Palacios denied making that statement, Hinman asked Murray about it. He claimed it was just a “joke” on the public defender. The Kern County Superior Court, however, found it to be “outrageous” and “conscious-shocking.” The conduct was determined by the court to be a constitutional violation that required dismissal of the charges. The court and Court of Appeal found the statement was altered to influence plea negotiations. The California Bar agreed and suspended Murray’s law license for one-year. Oklahoma County, Oklahoma, is a good example of using felony charges to push for convictions on lesser charges. In 2016, the county’s district attorney filed more than 10,000 felony charges, which is comparable to the amount filed in Queens and Manhattan combined. The caseload severely burdens the county’s understaffed Office of the Public Defender.
District Attorney David Prater makes clear that he enjoys the leverage he has, and that was evident in his criticism of a voter-approved referendum to reduce simple drug possession and petty theft from felony to misdemeanor offenses. “I don’t want to charge someone with a felony to put them in prison,” he said. “I don’t get off on that. There’s no benefit to society for doing that just for the sake of doing that. But if I say, ‘you’re going to go to prison for 10 years because I’ve now charged you with a felony for possession of methamphetamine,’ now are you going to go to treatment?” At least Prater is honest about using charges to leverage for plea bargains. That is refreshing when you consider the “culture of negligence and outright dishonesty” that prevailed in New Orleans when Harry Connick Sr. was the district attorney. Louisiana courts have overturned 36 convictions as a result of New Orleans prosecutors failing to carry out their duties in accordance with the Constitution in obtaining convictions.
Earlier, it was noted that many defendants enter into a guilty plea to avoid the trial tax. Corruption, such as that noted above that results in wrongful convictions or the hiding of evidence beneficial to the defense, are stories that also are passed along in the corridors of jails, placing fear into defendants. Real examples of the tax being assessed are in the back of their mind as the public defender or defense attorney relate the plea offer and the corresponding possibilities if conviction is obtained via trial.
In Lafler v. Cooper, 566 U.S. 156 (2012), the prosecution offered to drop two charges and agree to a sentence of 51 to 85 months, which the defendant agreed to accept in a letter to the court. After his attorney recommended that he reject the plea because they could prove at trial that the victim was shot below the waist and there was no attempt to murder, the offer was rejected. A conviction, however, was obtained on all counts at trial, and the court entered a mandatory minimum sentence of 185 to 360 months. Prosecutors rely on this tax and use it to their advantage when playing hardball during plea negotiations. The tactics take several forms. There are “exploding offers” that put pressure on the defendant because the offer is good “today only.” Threatening to add a sentencing enhancement, such as the use of a gun during the commission of the crime or seeking habitual, career criminal status or a mandatory minimum provision, is common. Then, there are “take-it-or-leave it” offers.
Marissa Alexander was charged in Florida with aggravated assault with a deadly weapon after she shot her gun in the air “one time” during a fight with her husband. She alleged he grabbed her neck and threatened to kill her. Before trial, the prosecution offered three years in prison without a gun enhancement. After she was convicted at trial, the court sentenced her to 20 years with a gun enhancement. Her conviction was reversed due to a burden-shifting jury instruction, and she took the three-year plea deal that was reoffered upon remand.
Because racism is inherent in some jurisdictions, African-American and Latino defendants are often presented with bad deals that are not presented to similarly situated white defendants. The offer also can vary based upon beliefs of the individual prosecutor. For instance, a prosecutor may have been the victim of a drunk driver and brings a belief in hard justice to the plea-bargaining table for defendants facing such charges. Defendants rightly feel they have no choice but to take the plea offer because the result will always be worse if a conviction occurs after a trial.
That is exactly what a federal prosecutor threatened Omar Burley with when he was facing charges after fleeing from members of the Baltimore Police Department’s elite Gun Trace Task Force. Burley, then 39, and two other people were parked on a residential street in northwest Baltimore when two cars pulled up beside them. Three men with guns jumped out. Fearing a robbery, Burley mashed the gas. “I was speeding for my life,” he recalled. He eventually crashed into an elderly couple’s car, killing the driver, Elbert Davis. The gunmen turned out to be Baltimore police officers. Their arrest report said Burley was parked in a “meet location for drugs” and that he fled when they displayed their badges. The officers also said they found 32 grams of heroin in the car.
Burley insisted they were lying. The prosecutor offered him 15 years and threatened to seek the maximum if he took the case to trial. With that amount of heroin, a prior drug conviction, and the fatality in the case, Burley figured it was unlikely a jury would believe him over the police. “I’d never see the light of day,” he said, “or I would be coming home a very old man.” Feeling he had no other choice, Burley took the 15-year plea in 2011. He sat in prison for seven years before a federal investigation revealed that eight officers on the Gun Trace Task Force had been robbing people, planting drugs and guns on them, and lying on police reports to cover up their crimes. Sgt. Wayne Jenkins admitted as part of his own plea agreement that he arranged to have the heroin planted in Burley’s car. Burley was the first of 105 people who pleaded guilty and later had their convictions voided. Nearly all of them were black men. “When you have a system where a small percentage of cases are actually tried and subjected to the adversarial process, it is much less likely that this kind of [police] conduct is going to be detected and exposed,” said Michele Nethercott, director of the University of Baltimore’s Innocence Project Clinic. “Everyone can hide their mistakes.” The case reveals a major flaw with the acceptance of pleas, as the police report is used to not only set the bond amount, it is often used as a factual basis to support the charge. “The police report describes the witness said this, the witness said that, this is what the scene looked like. No one is testing the veracity of that,” Nethercott said. “We’re adjudicating on basis of police reports … That’s completely at odds with an adversarial system where you test evidence through questioning on the witness stand.”
Another problem with plea bargains are the underfunded and understaffed public defender cases. It is not unusual for those attorneys to have twice the recommended caseloads. They do not, in most cases, have the time or resources to investigate claims of innocence. Defendants who cannot afford counsel due to poverty have no other real option than to accept the best deal presented them.
Immigrants have become the focus for federal prosecutors under the government’s effort to slow illegal immigration. They are pushing a hardline strategy in plea negotiations that can cause plea bargain remorse. Former Attorney General Jeff Sessions ordered prosecutors to have defendants who would later face immigration proceedings sign plea agreements that say they have “no present fear of torture” upon returning to their home country. The directive is aimed at creating an end around immigration courts and reduce their caseloads. “Obviously, I have seriously grave concerns about eliminating the small level of due process that’s afforded to immigrants in immigration court,” said attorney Susan Church. “They absolutely should not be proposed as part of a plea agreement.”
“Plea bargaining, like torture, is coercive,” wrote Yale Law School professor John Langbein in the 1970s.
Torturous is how the life of Henry Johnson can be described after he decided to plead guilty to murder. Henry and his brother Juan were both convicted of killing a Chicago gang member during a large brawl on September 9, 1989. The brothers were convicted after a bench trial and sentenced to 30 years. After serving 11 years, evidence was uncovered that Chicago Police Detective Reynaldo Guevara framed them. As they were awaiting the new trial to start, they were presented with a plea to second-degree murder that would result in time served. Henry turned to Juan and asked what he was going to do. “I looked at him and I told him, ‘I love you, but you have got to make this decision on your own. I can’t live with that decision.’” Henry pleaded guilty. Juan went to trial. During deliberations, he had second thoughts about his decision. “Juan was melting down when the jury was out,” Stohr recalled. “If he could have, he would’ve changed his plea at that moment to guilty because he was so frightened.” The jury acquitted Juan. He subsequently sued the City of Chicago and received a $16.4 million settlement. Henry, meanwhile, is a convicted murderer and he “is going through hell,” his mother, Nilda Moret, said.
A spokesman for the Justice Department, Devin O’Malley, said such plea provisions “increase the efficiency of the immigration court system, save Americans’ tax dollars, and promote good government.” Thomas Jefferson would probably call a policy that results in people giving up their constitutional right to trial and admitting to acts they did not commit tyranny rather than good government.
Federal judge Rakoff said we need a new system to oversee pleas, and he suggested involving a magistrate judge in the matter to keep the trial judge from being influenced before adjudication. “I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea,” he said. “But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?”
Economy through quick disposal of cases is the main reason cited for continuing the plea bargaining procedure in the criminal justice system. It has been argued by academics that when government is strong it affords “the luxury of a more deliberate justice, [and] the balance shifts and the accuracy of the procedure is improved to better protect the innocent at the expense of efficiency in the conviction of the guilty.”
As Chief Justice Warren Burger wrote in 1971, “An affluent society ought not be miserly in support of justice, for economy is not an objective of the system.”
“The stakes were too high, so I folded,” said Burley after he was exonerated. “I was happy and stuff, but I was still thinking about, you know, I felt I was lucky. I still was thinking about all the other people that has [been] put in my situation [and] forced to plead out the cases that wasn’t actually guilty.”
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