Is Jared Loughner Competent to Stand Trial?
Is Jared Loughner competent to stand trial? How about Baby Gabriel's mother Elizabeth Johnson?
Will Tucson shooting suspect Jared Loughner be ready for trial?
"It's going to come down to what the doctors say, so if there's no real evidence that he's competent to stand trial, it's kind of out of the prosecution's hand," Phoenix Attorney Vladimir Gagic said. Too read the rest of the story see "Will Tucson shooting suspect Jared Loughner be ready for trial?" by Steve Kuzj Phoenix station ABC 15 KNXV.
Arizona Dept of Corrections Imposes $25 Fee for Inmate Visitation
New legislation allows the Arizona Dept. of Corrections to charge $25 for each adult visitor to an Arizona prison facility ("Inmate Visits Now Carry Added Cost in Arizona" by Erica Goode of the New York Times).
New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.
When I first heard about this proposal, it reminded me of how the Chinese government bills the families of executed convicts for the cost of the bullets (see "China injects 'humanity' into death sentence" by Cristian Segura). Of course, while not as cold-hearted as the Chinese, the AZ DOC fee is not meant for any reason other than to humiliate the family of the inmate.
The inmates will not pay this fee; the family of the inmate will pay it. And thus, the state of Arizona is trampling the fundamental precept of modern justice, that of individual responsibility. What separates justice from oppression is not just our wish for freedom and peace; justice also requires us to distinguish between the guilty and the innocent, and to only punish the guilty. When we reject the notion of individual responsibility and instead impose collective responsibility, our system is as unjust as if our objective was tyranny. This fee will punish the family of the inmates for the simple reason they are the family of an inmate. It is guilt by association.
The distinction between individual and collective guilt is the reason why the Nuremberg Tribunal was so much more successful than the Treaty of Versailles. Instead of the punishing the entire nation of Germany (collective guilt) for Nazi crimes, the allies only punished individuals and organizations, like the SS, responsible for crimes.
And while $25 may not seem like much, most inmates and their family are extremely poor, but in accordance with the neoliberal agenda, we are imposing a regressive tax on poverty. Instead of going to the movies or the department store, this money will now flow out of the real economy into a bloated government bureaucracy for no reason other to balance the AZ DOC paper budget. Regardless of what one may think of the moral propriety of the fee, I can't imagine anything thinks it's sensible to lesson consumer demand in the middle of a recession. Make no mistake: this fee is the economic equivalent of a recessionary consumption or sales tax in terrible economic circumstances.
My hope is the Arizona legislature rethinks the fee for inmate visitation. I hope the legislature realizes that the goal of criminal justice system should not be the humiliation of inmates and their families.
Troy Davis' Polygraph Request Does Not Stop Scheduled Execution.
Troy Davis' execution, who has been on Georgia's death row since 1991 for killing an off-duty police officer, will continue as scheduled. His lawyers, including the Innocence Project, were asking for a polygraph examination to prove his innocence. Unfortunately for Mr. Davis and his family, however, the courts have denied his request. As reported in today's New York Times by Kim Severson (Request for Lie Detector Test for Davis Is Denied):
As last-minute appeals to spare Troy Davis from execution at 7 p.m. on Wednesday pour in from across the United States and Europe, his lawyers asked the state for one more chance to spare him: a lie detector test.
But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr. Davis’s clemency after a daylong hearing Monday, quickly responded that there would be no reconsideration of the case, and the polygraph test was abandoned.
As is typical for American death penalty cases, this case has attracted quite a bit of attention around the world, with many activists, including some death penalty supporters like former FBI director William Sessions asking for a commutation of the sentence.
My own feeling of the death penalty is that the ultimate sentence for murder should be decided by the public, either through direct democracy or the legislature. And every indication I have seen is that the vast majority of the population favors the death penalty over life in prison for some very severe crimes. I am not fond of judges deciding policy, such as whether or not the death penalty is legal, based on abstract constitutional principles. Even though in some circumstances the public may be wrong and the judges may be right, it is much easier to fix mistakes by legislatures than mistakes by judges, and that is why I believe judges have no place making policy.
Ultimately, notwithstanding the fact we are all dead in the long run, the democratic process will be right more often and sooner than rule by elites and judges. Just consider the fact it took half a million American dead to reverse the awful Dread Scott decision, and that President Roosevelt had to threaten court packing to defeat the anti-New Deal Supreme Court of the 1930s. Progressives seem to believe that judicial social engineering has always favored their causes, but that belief is hardly accurate. Thus, I think it right the Supreme Court has said it is up to states to decide if the death penalty should be applied.
As far as the self-righteous Europeans and internationals, even though the European Union officially opposes the death penalty and demands joining nations scrap the death penalty, I have seen polls that show most of the European public favors it. How odd that an organization allegedly dedicated to the rule of law and democracy would ignore its own people on such an important topic.
Some well-meaning people argue the government does not have the right or moral authority to execute criminals. I find that argument completely unconvincing. If our government has the right to send blameless 18 year old boys to storm machine guns nests in France, Iwo Jima, and if need be, anywhere else in the world, then it certainly has the right to execute criminals if that makes us safer.
There also is quite a bit of attention drawn to the fact if we execute someone, and it later turns out the defendant was innocent it will be too late. Unfortunately, that is true of all criminal sentences and it does not apply exclusively to the death penatly. The simple fact is, in America, once a jury has found a defendant guilty, regardless of how flawed the procedure may have been, that is the end of it. I know the Innocence Project has done a lot of good work, but that is the textbook example of the "exception that proves the rule." And thus, if an innocent man were to get life in prison instead of the death penalty, the only difference is he would die in his cell at age 70 than in a gurney at age 50. From my point of view, the latter may be better than the former.
In any event, while the American public seems to in favor of the death penalty, is that right? Even if we could know for certain that death row inmates were guilty, which we can't, is the death penalty the right policy? The main, if not only, reason for supporting the death penalty is that it is supposed to deter murders and save lives (see "The Death Penalty Deters Crime and Saves Lives" by David Muhlhausen). I once heard a statistic, probably from a pro-death penalty organization, that every execution saves something like 8 lives. That statistic was taken as conclusive proof of the value of the death penalty.
I disagree with that conclusion because even if true, that statistic only proves the death penalty saves 8 lives more than no punishment at all, not 8 lives more than a life sentence as an alternative. As I wrote before, just punishment is not just about any punishment to get the job done; it is about the right punishment ("lightest touch"). And thus, for the death penalty to be good policy, there would have to be conclusive proof that the death penalty saved more lives than the alternative of life sentences. So far, that proof does not exist.
DEA to Ban Bath Salts in Arizona
As Ken Alltucker reports in today's Arizona Republic (As 'bath salts' drug ban nears, selloff feared by doctors), the federal Drug Enforcement Agency has decided to use its emergency powers and ban three chemicals commonly used in bath salts (see "DEA Moves to Emergency Control Synthetic Stimulants Agency Will Study Whether To Permanently Control Three Substances"). These bath salts are not the ones used in actual baths, but rather are smoked and have an effect similar to LSD.
The Drug Enforcement Administration announced on Sept. 7 that it would use its emergency authority to ban three chemical ingredients to protect the public from "imminent hazard." That ban takes effect the first week of October.
Users smoke, ingest or inject the drug to create a high that has been compared to cocaine or methamphetamine. Law enforcement and doctors say the drug can also cause hallucinations similar to drugs such as LSD and PCP, even triggering acts of violence...
The DEA's ban applies to three of the more commonly used compounds: mephedrone, methylone and methylenedioxypyrovalerone, also called MDPV.
The fact the DEA has banned the use and possession of bath salts means that the banned substances are not illegal under state law. Once the ban takes place, they will only be illegal under federal law. It also seems that the Arizona state legislature has plans to ban the possession, use, or distribution of these same substances (see "Epidemic reveals need to outlaw dangerous bath salts" by Senate President Russell Pearce and Glendale Republican Sen. Linda Gray, who is the chair of the Senate Public Safety & Human Services Committee).
If the state legislature were to follow the lead of the DEA and federal government, my guess is that would include these substances under the category of "dangerous drugs" and first or second time personal possession would be eligible for probation. On the other hand, possession for sale could lead to prison time.
If the Arizona legislature does not ban these compounds while it is illegal under federal law, would someone with these federally banned substances in their system be guilty of an illegal drug DUI in Arizona? The answer to that question is not clear as ARS 28-1381(A)(3) defines an illegal drug by reference to ARS 13-3401, and that statute does not specifically list these compounds nor does it have a blanket provision that compounds banned under federal law are automatically an illegal drug DUI.
Free the Innocent or Convict the Guilty: Which is More Important?
Which is more important, freeing the innocent or convicting the guilty? With all due deference to the rules of logic, I say both are more important because we cannot free the innocent unless we convict the guilty.
There is a very famous comment by the English legal commentator Blackstone along the lines of "it is better to set free 10 guilty men than to convict one innocent man". I remember the first time I heard that statement thinking to myself, as I am sure others have as well, what a wonderful sentiment that point embodied. On the face of it, it sounds very democratic and progressive. But now, after a few years working as a criminal defense attorney, I am not so sure that viewpoint is a good one. While it may be inspiring and heartwarming, it may in fact be very harmful and destructive: that it, destructive to the rights of criminal defendants. Is it better to set 10 guilty men free than to convict one innocent man?
As a first step, we need to determine what the objective of our criminal justice system is. Is it justice? Is it revenge or retribution? Is it deterrance? I believe the answer is much less general than a nonspecific term like "justice". The objective of our criminal justice system is simply about making our population behave a certain way under the least onerous terms possible. Our political system determines how we want people to behave, for example murder and rape are illegal, and the criminal system sets about creating the right incentives for people to do what we want them to do.
The important point here is the right incentive, not just any incentive to get the job done. If probation is enough to keep people from from stealing, then there is no reason to make the punishment 5 years in prison just because 5 years in prison might feel or seem better. If probation is enough to make sure someone who posses child porn does not do it again or molest any children, there is no reason to give that same person a 90 year prison sentence. That is the problem with mandatory sentencing laws. To make sure there is no disparity in sentencing among different types of defendants, the legislature overreacted and mandated that everyone gets the top sentence. If you complain to your mom that your brother got too much cake and you not enough, your mom takes the cake from both you and your brother. Thus, the punishment might be equal, but not the right one.
The Miranda Myth: Why It's Time to Change Miranda
Seemingly everyone has heard of Miranda rights and the notion that a suspect has the right to remain silent in the face of police interrogation, and that no one, regardless of the nature of the crime, can be compelled to testify against himself. Even members of my own family who live in Eastern Europe and have watched American TV shows are aware of a person's right to remain silent. This, of course, is from the very well-known decision of Miranda vs. Arizona.
But is this right real? Do we really have the right to remain silent, and is it really true that we cannot be forced to say anything that will tend to incriminate us? For the following reasons, I say no, and it might be time to modify or even eliminate the putative right against self-incrimination. The idea that a person cannot be compelled to testify against himself is nominal only, and it is not real. It is a fiction and would be better called the Miranda myth. It is a right that does not truly exist.
Usually when the police stop someone who they believe is a suspect in a crime, they do not technically "arrest" the person. While the police stop someone, and even use handcuffs, and force him to talk to them, the police and courts, call that an investigative stop or detainment. That means the police are free to talk to the suspect without informing the suspect of Miranda rights.
Only after the suspect actually confesses or otherwise incriminates himself does that detainment move into the realm of custodial interrogation. And only after that point are the police required to inform the suspect of his rights. So we have the odd situation of the police talking to a suspect, the person is not free to leave, but yet not informed of his Miranda rights. And he only gets read his Miranda rights after he has already confessed. It's like telling someone he might want to stop smoking after he is already dead.
But what if the suspect, even though he may have confessed during the detainment, does not testify? Let's say he gets a public defender, after he is already indicted, who tells him to keep quiet and not testify. The police can't use his statement if he doesn't testify, right? Yes they can, because of a peculiarity in the rules of evidence known as a admission by party opponent, the prosecution can still use the defendant's statement he made pre-Miranda even if he does not testify.
But what if the suspect does not confess and does not testify? Because his incriminating statements can be used by the prosecution if he does not testify, his exonerating statements can be used by the defense? That is, his exonerating statements can be introduced into evidence just like incriminating statements? No, because those exonerating statements would not be an admission by party opponent, they would be hearsay and not admissible.
The bottom line of all of this is that according to the current state of criminal procedure and the rules of evidence, the right against self-incrimination is not real. That is because any incriminating statement will essentially be both pre-Miranda and non-hearsay. But any exonerating statement would be inadmissible hearsay.
Sheriff Joe's Cowboys, er Deputies Attack Michael Wyman, and Then Charge Him with Multiple Felonies
I know this point is getting old and tedious, but that very fact in itself means there is a serious problem: why do civil servants, and police officers in particular, get away with behavior that would land average, everyday Americans in prison for decades?
This time I am referring to a very disturbing story in the Arizona Republic by JJ Hensley: "Peoria man sues Sheriff's Office, cites abuse by deputies". During a recent NASCAR event in Phoenix, Michael T. Wyman, saw his friend, Ernie Griego, and gave him a bear hug. Apparently, in the eyes of Maricopa County Sheriff's deputies providing security at the event, that was enough to attack Mr. Wyman, arrest him, and then charge him with multiple felonies. According to Mr. Wyman, Deputy Preston Boyer even came up behind him and started to choke him, and another deputy tasered him in the back, and his son as well.
Fortunately for Mr. Wyman, the Maricopa County Attorneys' Office, responsible for prosecuting this case, dismissed all the charges against Mr. Wyman. Now Mr. Wyman is suing Sheriff Joe Arpaio and the Maricopa County Sheriff's Office.
Michael T. Wyman, 50, maintains in his lawsuit that he greeted an old friend with a bear hug near the track's Speed Cantina during a NASCAR race last November when, without warning, a deputy put him in a choke hold. The deputy threw him to the ground, Wyman alleges, and another deputy began shooting Wyman in the leg with a stun gun.
Wyman was charged with resisting arrest, aggravated assault and disorderly conduct for his role in the Nov. 13 incident, but a judge dismissed the charges in March at the request of prosecutors.
The important point about this case is that all the available evidence indicates the deputies overreacted, and then, to protect themselves from sanction, blamed everything on Mr. Wyman, even though he did absolutely nothing wrong. According to the story, "a handful of witnesses acquainted with Wyman, including a firefighter and a 911 operator, could verify Wyman's claims."
According to Mr. Wyman's attorney, Daniel Treon:
Wyman continues to experience nerve damage from the stun-gun shock and has undergone surgeries, including a skin graft, to repair damage from the weapon and broken bones from a deputy stomping on Wyman's foot...
The injuries appear to be so bad that Mr. Wyman cannot go back to work at his job with Ricochet Excavating.
If it is true that the deputies overreacted, I don't understand why the worst thing that will happen to the deputies is that the department and Sheriff Arpaio get sued. It does not even seem like they will lose their job. But imagine if these were not law enforcement but regular citizens who overreacted at a bar fight. Wouldn't they be facing jail time for aggravated assault with a deadly weapon and charges for false reporting? Why should deputies get off easy just because they wear a badge?
Even as bad as the injuries Mr. Wyman suffered seem to be, by far the worst part of this story is the fact it seems the deputies were perfectly willing to use their authority not only to cover up their wrong doing, but were even willing to charge an innocent man with multiple felonies.
I wish the next time the media does a story in which they think an guilty person is acquitted, for example Casey Anthony, they would also do a story in which an completely innocent man is wrongly accused. Imagine if in this case there were no civilian witnesses to corroborate Mr. Wyman? He would now be facing decades in prison for simply being the victim of police brutality.
My own experience with Maricopa County Sheriff deputies, usually at the Maricopa County Superior Court, is that while plenty of them are polite, plenty of them are cowboys as well, for example Deputy Adam Stoddard. And my experience with the always courteous and professional Pima County Sheriff deputies puts Sheriff Joe's gang to shame.
Should Arizona Legalize Illegal Drugs?
This is a question that I am asked all the time, and most of the people who ask me the question assume that I will answer the question by saying "yes, drugs should be legal." That assumption would not be correct. While I think current drug laws are too strict, I think most criminal laws are too strict and there is nothing in particular about drugs laws that make them unusually severe or unnecessary. Most of the arguments I see that favor legalizing drug would be better dealt with by reforming criminal sentencing overall.
The simple fact is that if use of narcotic drugs were legal, drugs would be much cheaper than they are now and more people would abuse them. That is just because of the increased availability and diminished social consequences as a result of legalization. That is not good. As someone who has dealt with a lot of people who have used and abused drugs, I find nothing redeeming or beneficial about drug use. And that includes marijuana use.
And while many people who want drug legalization point to the fact alcohol is a drug and is legal, to me that argument is just the more reason illegal drugs ought to remain illegal. If a house is burning down, that is not a good reason to throw fire on the flame. For examples of the usual arguments of legalizing all drugs, see "Legalize drugs — all of them" by Norm Stamper, the former chief of Police in Seattle:
I favor legalization, and not just of pot but of all drugs, including heroin, cocaine, meth, psychotropics, mushrooms and LSD...I've never understood why adults shouldn't enjoy the same right to use verboten drugs as they have to suck on a Marlboro or knock back a scotch and water.
Having said all that, however, there is one good reason legalizing the sale and purchase of drugs should be legal: it will greatly reduce violent crime. Ironically, most drugs laws punish drug dealers much more severely than drugs users, but that distinction may be outdated and unhelpful. That is because most of the violence from drugs is a direct result of the fact that drug dealers do not have a legal mechanism to resolve grievances other than violence. If you are a drug dealer and someone breaks a deal with you, you can't sue them. So most drug dealers resort to violence. But there is nothing inherently violent about the commerce of drugs other than the fact that the commerce of drugs is illegal.
Maybe a way we could reduce violence is by making the sale and purchase of drugs legal, and thus, drug dealers would not have to resort to violence and they would have a legal alternative to dispute resolution. But the actual possession and use of drugs would stay illegal. That way, while violence would decrease greatly and drugs would probably be much cheaper, the social and legal hindrance to their use would still exist.
Andrew Thomas Facing Disbarment: Is that enough?
The state bar of Arizona is considering the professional fate of former Maricopa County Attorney Andrew Thomas. Opening statements are scheduled today in Mr. Thomas' ethics violation hearing at the state bar. Disbarment is a possibility.
As reported in today's Arizona Republic by Michael Kiefer and Yvonne Wingett Sanchez ("Former Maricopa County Attorney Andrew Thomas to face ethics panel over investigations"):
Because of those investigations, Thomas and two of his former deputies must appear before an ethics panel at the Arizona Supreme Court starting at 11 a.m. Monday. For two of them, the outcome will determine if they can continue to practice law.
The hearing, resembling a trial in many ways, is expected to last five to nine weeks and will feature an all-star county cast of witnesses including Sheriff Joe Arpaio, retired judges, elected officials and top county employees.
The state bar allegations against Mr. Thomas are very serious:
They alleged that the prosecutors engaged in criminal conduct and that, despite conflicts of interest, they filed civil and criminal cases against political rivals solely to embarrass or burden them.
There is plenty of evidence how the conduct of Mr. Thomas hurt the lives of ordinary people. There is a very good example in Laurie Robert's blog called "Is this how we root out corruption in Maricopa County?".
Susan Schuerman is a casualty of the county wars but you wouldn't know it from the phone calls she gets...
Schuerman, 57, has worked for the county for 25 years – 17 as Supervisor Don Stapley's secretary. She came under the steely gaze of the Sheriff's Office in December 2008, when she returned from a dentist appointment to find detectives waiting for her. Stapley had just been served with a 118-count indictment charging him with failing to publicly disclose loans, real-estate dealings and other assets.
While this point may get tedious as I have mentioned it a number of times with regard to CPS, Phoenix Police, and Sen. Lori Klein, why is the worst punishment Mr. Thomas is facing essentially losing his job, but no criminal charges? I am not aware of any criminal investigation against Mr. Thomas. But if the allegations against him are true, certainly the damage he caused is unmeasurable.
Should we not want to make sure that every public official is aware there is no such thing as immunity from prosecution? Right now, our criminal justice system comes down excessively hard on everyday, average Americans, but not at all on those in power or with privilege. It seems that not only do some civil servants enjoy official immunity from prosecution for certain crimes, but unofficial immunity from prosecution as well.
My point is not that I know for a fact he committed crimes. I only know what I read and hear in local media. My point is just that the overwhelming public evidence of the seriousness of the damage, and the seemingly callous nature in which he caused it, deserve more attention than just from the state bar.
Should Mere Possession of Child Pornography Mean Decades in Prison?
If someone has downloaded pornographic images of children, should they automatically go to prison? For how long? Is mere possession of child pornography sufficient reason to send someone to prison for decades, even if the suspect never touched a child? Recently, a Payson man received 90 years in prison for merely possessing child pornography, for which the sentencing judge called the sentence "clearly excessive", but had no choice because of mandatory sentencing laws (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn"). Another man, Gulf War veteran Joseph Lauricella, just received a five year sentence from Judge Derek Carlisle in Mohave County (see "LHC Veteran Apologizes During Child Porn Sentencing" by Dave Hawkins).
I know that some people who read this post will have the visceral reaction that of course, if you someone has child pornography, put them in prison and throw away the key. Or even better, put them on a desert island and and forget about them. To those people, this blog is not for you, and if you feel the overwhelming desire to vent your self-righteous frustration, find another forum. This blog is for people who can actual consider actions and consequence, and who do not seek every chance to validate their own self-congratulatory moral superiority.
In some states, merely possessing child pornography is a misdemeanor, but in Arizona it is a felony with a minimum sentence of 10 years for each count. Arizona's statutory scheme is even more severe than the notoriously harsh and rigid federal sentencing guidelines. The mandatory minimum in federal court is five years, or half what Arizona requires. But is either right?
According to the no so liberal Wall Street Journal, some federal judges do not believe mere possessors of child pornography are an actual threat and that the Congressional mandatory minimums are excessive. In fact, they are nothing more than puritanism in the guise of public safety ("Making Punishments Fit the Most Offensive Crimes" by Amir Efrati).
These acts alone are disgusting to most people. But not everyone buys into the idea that they warrant two decades or more in prison. Federal judges around the country are speaking out against what they view as harsh mandatory and recommended sentences, spurred by Congress in recent years.
The sentencing guidelines for child pornography crimes "do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses," wrote U.S. District Court Judge Robert W. Pratt.
The important point here is these are cases in which there is absolutely no reason to think the suspects actually ever touched a child, only that they possessed images.
In possession cases where there is no evidence that defendants sought to abuse minors, several judges are giving much lower sentences than the guidelines intend, which they are allowed to do if they believe the recommended punishment doesn't fit the crime...
William Griesback, a federal judge in Green Bay, Wis., wrote: "The fact that a person was stimulated by digital depictions of child pornography does not mean that he has or will in the future seek to assault a child."
Certainly, the point of these judges is not that possessing child pornography is tasteful or laudable, just that automatically handing out decades in prison for mere possession is vindictive. And such vindictiveness has no place in a democractic and thoughtful America.
Also see this article in the New Times Magazine called "The price of a stolen childhood" NYTs ICP and Restitution 1-24-13.pdf" By Emily Bazelon
Balancing Arizona's Budget by Reducing Prison Populations
The neoliberal nonsense of austerity and deficit hysteria is overwhelming a poorer America. It has gotten so bad that Arizona is cutting medical benefits for the poor. But assuming for the sake of argument there is value in gutting state budgets, can Arizona save money by spending less than 11% of its budget on corrections? And if Arizona decided to cut spending on corrections, would Arizonans still be safe?
For the following reasons, I say without question yes. Arizona would be better off in reforming prison sentences and keeping the savings to provide health care for our poor or help reduce the annual budget deficit.
America in general has too large a prison population. But Arizona in comparison to other states has even a disproportionally large prison population. Washington state has about half the prison population of Arizona, while Massachusetts has about a quarter the prison population of Arizona. Both Washington and Massachusetts have roughly the same population as Arizona. Despite that fact, Arizona's violent crime rate is much higher than Washington's violent crime rate and similar to Massachusetts' violent crime rate.
Assuming Washington has it exactly right, 18,000 inmates for a population of 6.5 million, how much money could Arizona save if it cut its prison population from over 40,000 to approximately 20,000 or half its current level? According to an article in the Tucson Citizen, the annual budget for the Arizona Department of Corrections is $900,000,000.00, or almost a billion dollars as of 2009. I understand that cutting the prison population in half would not necessarily equal $450,000,000.00 is savings, but if it did or was close to that, what would that mean to the overall Arizona budget?
According to a story in the East Valley Tribune by Howard Fischer, the current yearly budget deficit is $1.1 billion, so cutting our prison population in half- in line with Washington's per capita prison population- would eliminate approximately half of the Arizona budget deficit. Who knows, maybe with a better state economy and smarter sentencing, Arizona's violent crime would fall 25% to be line with Washington's violent crime rate.
Phoenix Police Department in Freefall: How do we fix it?
The Phoenix Police Department is having a terrible time lately. There is the ongoing Sgt. Sean Drenth investigation that is not getting any closer to resolution, with the very real possibility that fellow Phoenix police officers murdered Sgt. Drenth with the intention of covering up police corruption.
Now there is another disaster looming, and I hope the public and media do not let Phoenix police off the hook without due scrutiny. During a training exercise last week at Sky Harbor Airport, Phoenix Police lost a bomb during training (see "Phoenix police take blame in stolen-bomb flap" by William Hermann of Arizona Republic).
The Phoenix Police Department has taken full responsibility for recently losing a bag containing explosives during a security test at Phoenix Sky Harbor International Airport, and acting Chief Joe Yahner vowed to conduct a full internal investigation of the incident.
Officers were conducting a training exercise with bomb-sniffing dogs on Friday about 2:30 p.m., when a training aid with explosives inside went missing. It turned up Monday on a south Phoenix roadside.
While no one was hurt, this example goes a long way in showing the disaster that is the Phoenix Police Department, and I, for one, have very little confidence that the administration at Phoenix Police will take the necessary steps to investigate this matter and make sure it never happens again.
So what should be done? For one thing, I think the possibility of felony charges, like endangerment, should be on the table. Phoenix Police should not get immunity just because this was a police training exercise, and the they should not be treated any differently from private individuals. Firing a negligent officer, if it even comes to that, is just not enough punishment for this sort of mistake. Losing a bomb at the airport is every bit as dangerous as a drunk driver driving on the wrong side of the road, which the county attorney routinely charges as felony endangerment.
Second, as I have written many times before with regard to Sgt. Drenth, the Phoenix Police Department is broken, and the best way to fix it is a civilian police commission.
Amanda Knox Appeal Gaining Traction
Amanda Knox, the American women convicted in Italy for murdering her English roommate has filed an appeal to her conviction that has some merit. Italian judge handed Ms. Knox a 26 year sentence for murder. First, there could be a problem with the forensic DNA evidence the prosecutors used to convict Ms. Knox (Alleged DNA contamination at heart of Amanda Knox appeal trial):
An independent review of DNA traces in the case found that much of the evidence collected in the original investigation fell below international standards and may have led to contamination of the samples. The review especially focused on some traces of DNA linking the defendants to the crime, and concluded that due to the risk of contamination and the low amounts of DNA used for the testing it was impossible to extract a genetic profile with any certainty.
Second, the main prosecutor against Ms. Knox, Giuliano Mignini, is in custody for abuse of his office in other prosecutions (Amanda Knox prosecutor Giuliano Mignini convicted of ‘abuse of office’). The interesting thing about this case, other than the fact it was an American defendant, is that the Italian criminal system has added elements of the American criminal system. With this very trial, they started incorporating the adversarial process and using a combination of judges and juries to determine guilt and innocence.
As is the case in America, Ms. Knox's trial goes a long way in showing the limits of what we can do to do figure out what happened in any incident, regardless of the justice system and procedure used. The simple fact is that is very difficult to know what happened in past, especially when the issue is what someone was thinking. It is just as difficult to use evidence to figure out what happened in the past as it is to use evidence to try to predict what will happen in the future.
Juries intuitively understand the practical limits of fact finding and that is why they often compromise on verdicts, even though the defendant may not actually be guilty of the conviction. A compromise verdict is many times a mathematical procedure in which the jury mentally combines the strength of the evidence and seriousness of the offense: the stronger the evidence, the more likely conviction of the top charge. But the weaker the evidence, the less likely a conviction of the top charge, and conviction on a lessor charge, even though the factual allegations are identical.
The practical limits of fact finding, I think, are a very good reason why we should be reluctant to hand down death penalty verdicts and even life sentences. Sometimes we think we know much more than we actually do.
Roger Clemens to Face Second Trial for Perjury After Mistrial
Even though the US Attorneys' Office committed an error in the first trial for perjury, Roger Clemens will be facing another trial for perjury for allegedly lying to Congress (Clemens faces second perjury trial in April).
US District Judge Reggie Walton set a new trial date of April 17, in the opening weeks of the 2012 baseball season, on charges Clemens lied under oath to Congress in 2008 when denying he took performance-enhancing drugs.
Clemens, a seven-time Cy Young Award winner as his league's top pitcher, was charged with perjury, false statements and obstruction of Congress for telling a US House of Representatives committee under oath that he never used steroids or human growth hormone (HGH) in his Major League Baseball career.
Judge Walton did not believe that the prosecution deliberately tried to cause a mistrial, and thus, despite the expense to Mr. Clemens, there is no double jeopardy and he will face another trial. If the judge believed the prosecution deliberately tried to cause a mistrial, then the judge could have barred the prosecution from trying Mr. Clemens again. That is called prosecutorial misconduct and that is what Mr. Clemens defense attorneys' argued.
The reason a prosecutor would deliberately try to cause a mistrial is that once the jury is sworn, if the prosecution wants to dismiss the case for whatever reason (gather more evidence, locate a witness, etc...) that dismissal will mean the end of the case. However, if there is a mistrial through inadvertence, as the prosecution claims happened here, then there is no double jeopardy and the prosecution is free to bring the defendant back to trial.
One of the interesting things about this case is that the judge made the point that even if the prosecution did not intend to cause a mistrial, Mr. Clemens has spent a lot of money on his defense attorneys, who it seems are very expense. "A tremendous court time has been consumed... it cost Mr. Clemens a lot of money."
With all due respect to the Judge Walton, the cost to Mr. Clemens is irrelevant. Why should a judge care how much money the defendant has spent? Should a judge bar a second trial if the defendant has spent a certain amount of money on his lawyers? If so, what about a poor defendant with only a public defender or court appointed attorney? That defendant doesn't get that argument?
Beyond the ability and skill of an attorney, no one should get any additional benefit from having the money to hire an expensive attorney. Mr. Clemens had the right to hire his own counsel, which he did for his own benefit, and at his own peril.
I make the point of Judge Walton's statement not to criticize Judge Walton, but to illustrate what I think is a problem with our current justice system. Those with money and who are established get "better" justice than the rest of the population. Judge Walton's statement inadvertently brings that point to the surface. And thus, as I wrote with regard to the Strauss-Kahn dismissal, it may be time we considered making all criminal defense lawyers public servants, regardless of the financial resources of the defendant.
Arizona Rep. Cecil Ash Answers My Questions About Sentencing Reform: Part 3
This is the final part in a three part interview with Arizona Representative Cecil Ash concerning the very important topic of reforming the Arizona penal system and changing how sentencing is done in Arizona. Those who wish to help may contact Rep. Ash at his legislative office at 602-926-3160 (cash@azlag.gov), or through his webpage at www.cecilash.com
Part One of my interview is available here.
Part Two of my interview is available here.
9) Realistically, what specific sentencing reforms do you believe Arizona will enact in the next few years?
Rep. Ash: You ask what reforms do I believe we will enact? It's hard to say which reforms a majority will be persuaded to pass. But these are some that I am hopeful for.
(1) I hope that we give judges more discretion in their sentencing. Right now, prosecutors frequently tie judges' hands to prevent them from issuing sentences judges believe are appropriate. It would be a significant improvement if judges had the option of choosing between consecutive and concurrent sentences, rather than having consecutive sentences mandated by the legislature.
(2) I believe we can provide for a medical parole of those whose physical condition renders them no longer a threat to public safety. These inmates constitute a great burden on the staff and resources of the Department of Corrections.
(3) I believe we can provide more options for the county and courts in drug cases to allow for deferred prosecution in conjunction with rehabilitation efforts that will reduce the defendants that actually go to prison and get a felony on their record.
(4) I believe we can make some changes to the sex registry so we are tracking the felons who actually pose a threat to the community, rather than those who, for example, engaged in consensual sexual encounters. Right now, there's little distinction.
10) Finally, why should the average, law abiding Arizonan embrace the reforms you are proposing? How will sentencing reform benefit them and their families?
Rep. Ash: To the average person who has little or no contact with criminals, it may be difficult to see the benefits on a micro level. But on a macro level, there are great savings to be had. People complain that we are investing too little in education and health care. You never hear the complaint that we are investing too little in our Department of Corrections -- after all, nobody thinks about it, "out of sight, out of mind." But in truth, many of these inmates have families on welfare and AHCCCS. We are spending over 11% of our state budget on Corrections. There are more productive ways to spend our money.
Beyond that, there is a moral imperative here: you are taking away one of life's most precious gifts -- someone's liberty. There is a moral responsibility when you do that to make sure that it's justified, both in terms of the nature of the punishment and length of the confinement. Someone has said, "We send people to prison as punishment; we don't send people to prison to be punished." That's what the despots do. That is not America.
Thank you Rep. Ash for not only taking the time to answer my questions, but also concerning yourself with this just cause.
Rep. Ash: You're welcome. I keep thinking that sometime I should quit the legislature and enjoy retirement. However, everyday I am reminded that there are inmates sitting in prison who shouldn't be there. It's a perversity that we are punishing people and taking away their freedom for crimes that in many cases involved no serious physical harm and no serious financial loss to anyone.
I hope your community will support this effort. Everyone of your readers has a senator and two representatives who should hear from him or her that they believe it's time to address these issues.
Those who wish to help may contact me at my legislative office at 602-926-3160 (cash@azlag.gov), or through my webpage at www.cecilash.com
Thanks.
