08 August 2019

Detaining Car Passengers

via nbc15.com
Every so often we have to go back and cover well trod ground. This week I've had to face the question of whether an officer can detain the passengers in a car when he makes a legitimate stop of the car. I thought everyone understood that an officer can detain everyone in the car, but apparently some people haven't gotten the memo. So, now I get to go back and research it all over again.

A useful case to start with in Virginia is Thomas v. Commonwealth57 Va.App. 267 (2010). In this case, the Virginia Court of Appeals was kind enough give us a list of all the things that an officer can do during a legitimate stop:
• to obtain the registration for the vehicle and request the identities of its occupants,
• to seek radio dispatch confirmation of the information obtained from the vehicle occupants,
• to detain Thomas, a passenger, during the duration of the stop,• to ask questions unrelated to the traffic violation,
• to order the driver and Thomas out of the vehicle,
• to walk a drug-sniffing dog around the vehicle,
• to seize Thomas's handgun the moment they saw it
Of course, this wasn't the first case in which the Virginian appellate courts had ruled passengers could be detained. As early as 1998 the Virginia Court of Appeals ruled that "police officers may also detain passengers beside an automobile until the completion of a lawful traffic stop."  Harris v. Commonwealth, 27 Va. App. 554, 562 (1998); see also McCain v. Commonwealth, 275 Va. 546, 553 (2008).

Ultimately, however, the basis of the ability of the officer to detain passengers during the stop of a car comes from a US Supreme Court opinion, Brendlin v. California, 551 U.S. 249 (2007):
An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.. . . . . .What we have said in [prior] opinions probably reflects a societal expectation of unquestioned police command at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission.

Reading through the various cases, it seems fairly obvious that the officer's ability to detain passengers was long assumed, because at first the argument seemed to be whether the officer could make them leave the vehicle while it was legally stopped and hold them outside the vehicle. But, of course, nothing can exist only in common sense. Eventually, there have to be court opinions to tell us what we already know.

19 July 2019

2019 New Virginia Laws - CLTV

 

Here's the pdf of my breakdown of the new laws (with notations of actual statute numbers). I suggest either printing or downloading it so you can follow along.

29 May 2019

Bring Back the Bloody Code?

Since about the 1800's Anglo-American jurisprudence has included a strong tendency to view the underpinnings of incarceration theory as a treatment model. Back then, our system was coming out of a particularly harsh period of punishment when a large number of felonies carried only one punishment: death. Reformation of that system came at least partially as an attempt to save the souls of convicts. After all a "cell" is the living quarters of a monk and the thought behind locking a criminal in a cell (with a Bible) was that he would examine himself, read the Good Book, and come out a new and better man.

Of course, like all nice, well reasoned, and well meaning theories, once you examine it closely enough to view reality it gets messy and the theory gets off the rails - usually fairly badly. How many criminals went to prison, were furnished with a Bible, and came out better men? I don't know and you don't either. However, I'm willing to bet that a lot of people who read that question smirked in disbelief that many did. I'd also bet that a lot of prisoners learned to say the right words and phrases to play into the system and sound like they were repentant souls when they went back in front of the courts of their day. On the other hand, some percentage of them were surely helped and we will never know how many. This is problematic.

The difficulty with "treatment" instead of punishment is that it almost never yields concrete, easily understood, irrefutably good results. If the current level of inundation with social media had existed when the system was reformed so that felons were imprisoned over a long periods instead of hung or decapitated, I'm sure we would have plenty of examples of tweets, blogs, and videos with people railing against the "wussification" of the system and complaining that there was no proof that the newer, more expensive model provided better results. And they'd probably have been right because people who are still alive will re-offend while dead people won't. Without a doubt, the recidivism rate experienced a rather large increase.

All the above is in the way of saying that penological behavior isn't entirely linked to practical reality, but it's strongly influenced by the philosophy that people bring to it. If society is in a more "realist" zone it locks people up to remove them from society and provide an example of what will happen if others engage in the same behavior. If it's in a more "fix'em" mode it engages in whatever the well meaning of that time think will make the criminal "better." In the past this meant trying to save their eternal souls and getting them to act correctly as a moral matter; in modern times it means mental fixes meant to get people to behave better as more of a self help idea. If a society is in more of an "equipoise" mode it will try to punish at a level which balances out the crime. Of course, the reality is that while the societal treatment of offenders varies as different beliefs come to the fore none of these has ever entirely excluded the others.

Lately, the trend is to roll back the reform of imprisonment. Somehow, I doubt those wanting to roll back imprisonment are advocating that rabbit poaching and pick-pocketing should result in the imposition of the death penalty. I could be wrong. Maybe the deep, long term goal of the head prosecutors getting elected in the big cities on promises not to incarcerate is to bring back the olden ways. Who knows? I can't read their minds any more than y'all can and it's a little cynical to believe they are just doing it because that's the political promise that will get them elected.

13 May 2019

Delhi Crime

Delhi Crime may be the best thing I've seen on Netflix for years. Not kidding.

The story is a fictionalized telling of a brutal rape/murder that happened in Delhi, India. A young man and woman got on a bus to ride home and six people on the bus beat both of them and raped the woman so viciously that she died from her wounds a couple weeks later. Unlike American television, the Indian show doesn't feel obligated to shock us by showing the actual event, but builds the shock, horror, and disgust through reactions and descriptions. It's more of a slow burn and it works well as it mixes with the frustrations of the officers as the case unfolds.

The show follows the police from the moment the two victims are found naked in a ditch next to the road by officers thru their trip to the hospital and the notification of the regional commander. The regional commander arrives on scene and quickly realizes that the local department has a poor commander and isn't up to the task. She pulls in her own team of investigators, sets up shop in the local precinct headquarters, and personally takes command of the investigation.

And the police jump in with both feet. Unfortunately for them, circumstances conspire to make their lives miserable and interfere with the investigation. In fact, it appears that the very concentration of effort they are making causes their political masters to become aware and start trying to use the circumstance for political gain no matter how detrimental the political maneuvering could be to the case. One politician tries to use the circumstances to force out the head of the police force and get himself a particular cabinet position. A judge also opens her own investigation into the way police are handling the investigation (while it's ongoing). Meanwhile, the media is badly misreporting several facts that make it seem like the police are absolutely incompetent and uncaring while the police can't say anything because of the ongoing investigation. And then there are the protesters/rioters. They pop up suspiciously quickly and keep gaining in size and intensity. Because of this, when the police finally catch some of the perpetrators they have to sneak in and out the back of the police station by climbing over a fence.

Through some pretty competent police work, they catch the first few rapists. Then they have to really dig in to get the remainder. Eventually, they are sending teams out to rural villages to track down the suspects because they have scattered. One set of officers have to wade a river to go to the home of one suspect and arrest him; then they have to wade back with their suspect. Another set of officers ends up in an area where there is a Marxist rebellion ongoing and the local police force is more like a military occupation force than law enforcement. There's even a part where an informant leads them on a wild goose chase because he wants them to arrest a guy who made fun of him in front of a girl he liked.

In the end they get all the perpetrators within five days and all the political maneuvering is short stopped because the police have done an amazing and almost impossible job of catching 6 people in a country of 1.5 billion despite not having adequate resources and being hindered by the press and their political bosses. During the entire time, all the officers live in the precinct house and sleep is something that is in short supply. They just hunker down and get it done. It's impressive (and it was in real life too).

The atmosphere in the series is one that clearly shows that this was not filmed in the U.S. It was filmed in India and as such we see what we would characterize as widespread poverty and overpopulation. To them it's just normal life. It comes across incredibly realistic. It's also a good police procedural. There are no supercops here and nary a single lone wolf cop out there on a crusade to make the world a better place. Nope. This is as close as I think you can get to a realistic portrayal of how difficult policing is in a large country with a massive population and lots of impoverished people. It also shows that - even with all the inherent disabilities - when they decide to do it right they can accomplish impressive things.

In case it isn't already obvious, I highly recommend this series. I do have one bit of advice though. If you are not used to listening to English with an Indian accent you may want to put your subtitles on for the entire series. They switch back and forth between Hindi and English all the time and while the Hindi is automatically subtitled, the English is not. I've heard English with an Indian accent often enough that usually it's not a problem for me. Still, more than a couple times the switch to English came so fast that they were on the second sentence before my ears realized they were speaking English. 

I give Delhi Crime a rating of 4.5 out of 5.

06 May 2019

Did Duke Law Abandon the 1st Amendment?

So, I'm between watching episodes of Delhi Crime and I start perusing the web to see what is going on and checked in on Scott's ongoing fight against all things found in the idiocy of youth and inexperience. There, I found out that the 1st Amendment Clinic at Duke Law has motioned a district criminal court in Texas for leave to file an amicus brief in support of the prosecution *GASP* in a case called Texas v. Rivello (as well as including their brief with the motion; sneaky that). As best I can tell Rivello is charged with felony "aggravated assault with a deadly weapon, with a hate-crime enhancement" for sending a flashing picture of the words "YOU DESERVE A SEIZURE FOR YOUR POSTS" to a journalist he knew suffered from epilepsy and triggering a seizure.

My first reaction is "Why do we need the brief?" It's clear what the prosecutor's argument is going to be. Expressing the words is protected by the 1st Amendment. Making them flash in the knowledge that they were going to someone who could be harmed by that flashing is an act - not speech. Just as clearly, the defense is going to argue the flashing is expressive speech, part of the message, and protected. TAH-DAH! If that argument didn't occur to you as you read through the first paragraph maybe you should consider a legal specialty other than crimlaw. Whether you're a prosecutor trying to put together your best argument or a defense attorney trying to anticipate the prosecutor's theory of the case, that's so basic it should be the first thing that comes to mind.

So, I turned to the unsolicited brief from Duke's 1st Amendment Clinic certain that it must have in depth, incredibly compelling reasoning mixed in with citations to Blackstone, the Great Charter, and the Code of Hammurabi. After all, if it doesn't what's the point?

Unfortunately, it doesn't. The first section of the brief is a well reasoned argument against the flashing being expressive speech. However, it's not breaking any new ground. All it really does is provide some citations for an argument we should all be able to make. It might prove useful to the prosecution if there is a conviction and an appeal is noted.

Then we get into the second section of the brief and it's disturbing. The 1st Amendment Clinic starts arguing the very, very dangerous exceptions that have crept into free speech doctrine over the years AND IT ARGUES IN FAVOR OF THEM.

Let me be clear, many of these exceptions exist for valid reasons. However, they are of a kind that they should be watched, controlled, and kept as limited a humanly possible. They are the kind of things that you set up 1st Amendment Clinics to act as watchdogs against. Prosecutors and Attorney Generals should argue they apply in particular cases. Defense attorneys should almost always argue against their application. A 1st Amendment Clinic should watch and intervene when it believes a line has been crossed or even might be crossed; it may have to pass on many because of lack of resources and them falling too squarely within accepted doctrine, but it should never argue in favor of something like the "True Threat" exception (allowing speech to be punished even though it has not blossomed into a threat of immediate physical harm). I should. As a prosecutor, it's my job to go after those bleeping idiots who burnt a cross on their own farm across the highway from a farm owned by African-Americans. I'm comfortable with that. Those idiots knew what they were doing and deserve what they get. Anyone working in a 1st Amendment Clinic should not be comfortable with that in the least.

Yes, I know the people at the clinic don't like the putative speech here. However, I'd ask them to consider the saying I used to have across the top of this page when I was still a defense attorney:
If I choose to defend only the righteous,
When the righteous are accused,
What tools shall I have to defend them?
Remember, every inch given up to get "them" is an inch you've lost when you become "them." If you can't defend the act of someone you don't like, or at the very least stand aside instead of arguing against an expansive reading of the 1st Amendment guarantee of free speech, what are you doing in a 1st Amendment Clinic?

03 May 2019

Foot Shooting 101

Ray is on probation, but can't stay off the pills. After several positive tests for opioids and not going to the drug counseling his probation officer ordered he is violated and comes to court to answer for it. Basically, the probation officer is just trying to give him a wake up call and with that in mind, I recommend to the judge that he get some community service, stepped up drug testing, and directly ordered by the court drug treatment. The judge accepts the recommendation and Ray goes off down the hall to sign up for his community service and drug treatment.

Ho-hum. All the practitioners out there are asking how is this different than any other day that ends in a Y?

Well, you see, Ray isn't the kind of guy who leaves well enough alone. About ninety minutes after he gets his slap on the wrist, I'm working the post-lunch docket when the person who signs people up for community service and the drug treatment program waves me over and tells me Ray has passively refused the initial drug test ("I can't go") and has been standing in her office arguing and throwing attitude. I tell her to bring Ray back to the courtroom and call Ray's defense attorney who comes back.

As soon as Ray found out he was coming back to court his bladder released and he provided a sample that was - you guessed it - positive for opioids. Even with that, there was a good chance he was leaving the courthouse through the front door. Everybody figured he was going to start out positive for opioids; the purpose of the first test is to set a baseline, not violate him.

The intake officer tells the judge about Ray claiming he couldn't provide a sample and getting belligerent during intake. She says she doesn't want him in her programs, but she'll do what the court orders. It looks like the original deal will fall back in place if Ray has enough smarts to be contrite and pledge his undying dedication to overcoming his drug addiction.

Ray, of course, has other ideas. He starts off by telling the judge how rude the intake officer was and then swears that he DOES NOT use opioids and hasn't for over a year. He's getting worked up and swearing that "those tests are wrong - they're always wrong!" Then, as he is loudly, with a great deal of aggravation, protesting his eternal innocence he finishes with "And she told you I was yelling at her! I wasn't yelling at her! I wasn't speaking any louder than I am now!"

The judge looks down at Ray and says something to the effect that if he had admitted to his drug use and been cooperative Ray'd have been fine, but this was unacceptable. The judge then set him for another probation violation hearing next month and remanded him to jail without bond.

At this point, Ray broke down and started to babble about how he couldn't go to jail because of his fiance and kids and a doctor appointment he had next week. He was still babbling as the deputy led him away.

-----

Friday rolled around and Ray appeared back in court with his attorney for a bond hearing. Everyone in the courtroom knew that as long as Ray was contrite and honest he was going to be let out. Everyone, that is, except Ray. Ray gets up in the witness stand and is far more lucid and level headed than he was a couple days before. He testifies that he'll be living with his grandmother and that he'll do everything he's required to while on bail. Then his attorney passes the questioning to me. I ask one question.

"When was the last time you used opioids?"

"That would have been over a year and a half back. I haven't used any opioids. I haven't forever. I didn't use any drugs before I came to court and I didn't use any while I was on probation. I'm not using!"

I didn't ask anymore questions.

No bond.

01 May 2019

Virginia's Probation Revocation Guidelines

Since 1995, Virginia has used sentencing guidelines as a way to influence judges’ sentencing in felony convictions. The felony sentencing guidelines were part of a general reform in sentencing in Virginia known overall as “Truth in Sentencing” and were done as a way of leveling sentences so that they would be consistent between judges and localities. They’re non-binding, but a judge has to write an explanation on the guidelines form if she goes below or above the guidelines range. When the judge goes back before the General Assembly she can be called upon to explain why she’s been deviating so much from the guidelines. And those people decide whether she keeps her job.

Then, a few years back the Sentencing Guideline Commission promulgated guidelines for revocations in probation violations for “technical violations.” My impression was at the time, and still is, that these guidelines were met with a lot of skepticism. They were not perceived as something that was needed; they were an unneeded solution in search of a non-problem. The mere fact that they called anything except new convictions “technical violations” showed a bias in their point of view. Unlike the felony sentencing guidelines, which came about as part of a sweeping change in sentencing policy and the philosophy behind sentencing, probation violation sentencing guidelines were seen by the cynical (and let’s face it, most of us are pretty darn cynical) as more of a fiscal matter put in place to limit the amount of time that a defendant gets sent back to prison and the Commonwealth has to pay for. Worst of all, probation violation sentencing guidelines face a fairly strong argument that they are an unconstitutional infringement of the General Assembly upon the demesne of the courts.

The last argument would go something like this: The Virginia Constitution states that the executive, legislative, and judicial departments are “separate and distinct, so that none exercise the powers properly belonging to the other.” Va. Const. Art. III Sec. 1. Without a doubt, the General Assembly can control the limits within which a trial judge can sentence a newly convicted defendant. The General Assembly could mandate exact sentences for the newly convicted. Thus, non-mandatory felony sentencing guidelines are well within the purview of the General Assembly because mandatory ones would be.

However, once the person is convicted his suspended sentence is under the supervision of the trial court. His first line supervisor, the probation officer, may be an employee of the executive branch (Probation is an office of the Department of Corrections), but all probation violations basically boil down to violations of “good behavior” and only a judge can make the final determination that such a violation has occurred. Once the judge has determined that the probationer is in violation of the requirement that he be of good behavior it is solely within the purview of the court to determine how much of the probationer’s previously suspended time should be imposed. Any intervention in that exercise of the trial court’s sole discretion by the General Assembly is an “exercise of the powers properly belonging to the other” and a direct violation of the Constitution of Virginia. In fact, the strongest argument that it isn’t unconstitutional is that the probation violation guidelines are not mandatory and that’s a pretty weak argument if it can be shown that the probation violation guidelines are followed. This leads us to one question: are they followed?

It doesn’t appear that they are.


This chart shows that the guidelines are consistent with the amount of time imposed about half the time. I’d say they were followed, except I think many courts may operate the way that I’ve seen the ones I practice in operate. The probation violation guidelines are ignored. The prosecutor and defense attorney negotiate a recommendation for the court without even looking at them. The only time I usually see them mentioned is when the defense attorney uses them as a weapon to try to pry a lower sentence out of the prosecutor or the judge and on the odd occasion when the judge thinks the deal being recommended is much too lenient and references them to ask why the recommendation is so low that it’s even below the probation violation guidelines.

But, you say, Ken that’s just your courthouses. Surely that is not replicated in the rest of Virginia.


*ahem* This chart shows that at some level most of Virginia is ignoring the probation violation guidelines. The only group of people who even have a bare majority that believe these guidelines are useful are the probation officers at about 54%. The order then descends as follows: private attorneys at 38%, judges at 36%, prosecutors at 21%, and public defenders at 20%. It’s also telling that 49% of judges find them specifically unhelpful as well as 68% of public defenders and 72% of prosecutors. The people on both sides of the bench who only do criminal law as well as the judge sitting on the bench who makes determinations as to what to do with probation violations all basically find probation violation guidelines useless. This renders any constitutional question moot.

Probation violation guidelines should be scrapped. They won’t be. I’m sure we all realize that once laws of this sort are on the books they stay there and once a bureaucracy develops this sort of paperwork it stays around forever. Sure, it’ll be subject to reforms every so often. Every time will be the one that “finally” fixes it and the beast will keep shambling along. Eventually it may even win the day thru the sheer momentum of bureaucracy. That doesn’t mean it’s a good system; it just means that it stays around so long that eventually people give up or don’t know any better. After all, we all know the most powerful argument in a courthouse isn’t case law or the statutes – it’s “that’s the way we’ve always done it.”

30 April 2019

Unconstitutional Chalking

Chalking cars is a police practice that I can personally attest to as being at least 30+ years old. I remember getting warned about it in my youth when I visited Richmond, Kentucky. And, I must admit to coming out every so often, in different towns in different States, to find one of my my car’s tire marked. I never got tagged with a ticket from the marked tires which I guess means I was always one of the lucky ones who got back to my car in time.

For those of you who don’t know what I’m talking about, chalking is a long hallowed practice of many a police departments’ traffic enforcement division. Broad Street has a two hour limit on parking. Traffic officers travel down the street every so often and mark the tires of cars parked on the street with chalk. Then they come back two hours later and if your car is still parked there with chalk on its tire you get a ticket.

It’s actually the better of the two traditional options for controlling parking. The other is control thru annoyance by using parking meters. Nobody likes meters. If there’s a meter, the person parking downtown has to bring quarters with her and run out to her car every hour or so to put another one in. Conversely, the in-town businessmen who want to limit parking duration so that the spaces will open every so often for their next customer don’t want someone not stopping at their store because they don’t have a quarter for the meter. Of course, the fact that the meter puts a big red “EXPIRED” after the time has run out makes life easier for traffic enforcement and the same amount of enforcement probably ends up with more tickets.

But, it looks like meters may be the default solution from here on out – at least in the Sixth Federal Circuit. In Taylor v. Saginaw, a scofflaw got tired of paying her tickets. She sued Saginaw for violating her civil rights by marking her car’s tires with chalk and then using that mark to charge her with parking violations. For some reason, this burning issue made it to the federal court of appeals and they agreed with her.

Personally, I think the 6th Circuit got the constitutional analysis right. Chalking the tire of a car is a trespass upon the chattels of the car owner and it’s done to reveal information that otherwise would be unknown. Therefore, police ought not to be doing it without a search warrant (or at the very least probable cause). Saginaw’s arguments in favor of allowing officers to do it were that chalking was allowed under the automobile exception and/or community caretaker exception. They lost the automobile argument because it’s based on the fact that cars are mobile and the entire point of chalking a car is to prove it wasn’t mobile. As well, there really isn’t any immediate harm to the community which chalking is designed to protect against. Strangely, the one argument I think might have had some teeth, relying on the administrative search exception, was abandoned by Saginaw in the court of appeals; I can only imagine that case law must not have been favorable.

Tennessee, Kentucky, Ohio, and Michigan can no longer use chalking. Huzzah! Hooray!

Or maybe not. All a locality has to do is avoid touching the car and it can continue its ongoing battle with those who hog parking spaces.

The old fashioned solution to this is to put meters up everywhere. As pointed out above, meters suck and don’t make anyone happy except the bean counters downtown who now have a new revenue stream. As best I can find on the internet (which must mean it’s true) a reasonable cost for a single space meter is less than $500 assuming the locality buys the sane version instead of the crazed upsell monstrosities. The investment is probably made up within two years and then, assuming your city is the typical poorly designed failure without adequate parking, becomes a wonderful profit stream. It punishes your citizens and almost surely hurts your businesses (after all, there’s free parking at the shopping center outside town), but it provides a profit stream for the government.

However, assuming you have people in your city government who care about their citizens and only want to make parking work, there are other solutions in the modern world. In particular, license plate scanners should make this process even easier for officers. Instead of getting out of their vehicles to chalk a car or using a long stick with a piece of chalk on its end to do the same thing while remaining seated, the traffic control officer simply drives down the street every thirty minutes with the scanner getting the plate of every car. Software in the police car pings every time a car has been there for over the allowed time. Heck, if the system is even halfway sophisticated it can do what the toll systems do nowadays and simply report all the miscreants to some central computer so that tickets can be mailed to them later. The officer doesn’t even have to stop. Personally, I think they should; a ticket on the window has a more immediate deterrent effect than a ticket in the mail a month later. Even then, the computer could print the ticket out automatically so the officer only has to spend a few seconds stepping out and putting it on the car. It’s a better system; it just costs a lot more money than chalk.

If the locality doesn’t want to spend the money to put a license plate scanning system in its parking enforcement vehicles, it could simply buy each officer a cheap cell phone and have them take pics of the street with the time and date turned on so they’re burned into the picture and then come back later to check to see if the same cars are there after the time limit has run. Simple. Effective. Cheap.

So, this weird little opinion shouldn’t change things all that much. You’ll still get parking tickets. You just won’t be subject to the grave injustice of having a chalk mark on your tire.

29 April 2019

The BodyCam Problem

If you've done any work in criminal law in the last decade or so you've encountered the recorded media problem. For even the most minor of traffic stops there is about twenty minutes of video recording. That doesn't sound too bad until you walk into traffic court and see fifty people (or more) waiting for their trials. That's over sixteen hours of video for one day of a fairly minor docket.

Now imagine a serious case. An eight person person team does an entry into a drug house each officer with a personal body camera. Drugs, money, and a dead body are found inside. The whole place is video taped to preserve it. There are also two hour sessions of questioning for each of the three live people arrested in the house; each is video recorded. About ten other people are questioned and recorded about the dead person in the house; each averages an hour. Then each of the people arrested in the house goes to jail and proceeds to make a couple phone calls a day each of for the six months prior to trial - all of which are recorded. Let's call this one 100+ hours.

Generally, all this recording is good. It provides about as impartial a witness as could be and is probably the best tool out there (short of basic morality) for guaranteeing police color within the lines. However, it has led to a massive problem with evidence.

Consider for a moment the obligations of prosecutors. Every prosecutor is required to turn over to the defense evidence under the control of the government's investigative team that tends to prove the defendant did not commit the crime and evidence which would tend to impeach a prosecution witness. As well, at least in Virginia, the defendant's relevant statements must be turned over by the prosecutor (I assume other States have the same rule).

So, you're a prosecutor who has hundreds upon hundreds of hours of video and audio recordings. It is not possible to sit and watch every bit of video in every case. Consequently, who knows if there's some exculpatory or impeachment evidence in the third hour of an otherwise worthless recorded interview with the defendant's crazy Aunt Suzie? What's the obvious solution for the prosecutor? Turn over every bit of audio and video in every case.

Well, that sounds good and fulfills the constitutional requirements, but as a matter of practical reality what it accomplishes is the dumping of hundreds upon hundreds of hours of video and audio recordings on the defense attorneys to watch. There's no way they can do that either. This has led to calls for "meaningful" constitutional disclosure which translates as "the prosecutor should view all the videos and tell me if there is exculpatory or impeachment evidence on them." So far, this hasn't been accepted as the law and for reasons both objective (not enough hours in a week) and subjective (prosecutors and defense attorneys will never agree as to what is exculpatory) it is not a good solution. In fact, the "hand it all over to the defense attorney" way of handling it at least eliminates the subjectivity problem since there would be no initial screening by the prosecutors and only the defense attorney's view of what is exculpatory would apply. However, the objective reason for failure happens here too; there just aren't enough hours in a week for a defense attorney to go through every video for every case and fulfill all the other obligations that come along with a private practice.

What's a real and practical solution that's as fair as possible? There has to be a pretrial sorting of some sort and I'm sure others are working on a solution. Nevertheless, I sat down and put together a first draft of a statute I think could put some controls in place:

-------------------  

§ 19.2-9999 Use of Recorded Audio or Video in Trial

(A) Definitions

(1) Recording – An audio or video account of a conversation or activity preserved on any medium on any device capable of preserving the audio or video so that it can be listened to or viewed at a different time and/or place.

(2) Relevant Recording – A recording in the possession of the Attorney for the Commonwealth or the investigative team (a) that is a statement made by the defendant pertaining to the charged criminal violations, (b) that is a statement made by another pertaining to the charged criminal violations, (c) that would tend to exculpatory, (d) that would tend to impeach a witness for the Commonwealth, or (e) that is a visual representation of occurrences pertaining to the charged criminal violations.

(3) Investigative Team – Any person or persons employed by the Commonwealth of Virginia and tasked with an investigation of the individual charged or the criminal act before the court. Absent a showing of extraordinary circumstances, an investigative team is presumed to have access to all recordings in the possession of any agents in its employ, any persons in its department, any cooperating law enforcement agencies from outside Virginia, and any cooperating federal agency.

(B) Disclosure by the Commonwealth – The Commonwealth shall be required to give copies of all relevant recordings to the defendant no later than ten days before trial. If a relevant recording is turned over to the defendant later than ten days before trial the sole remedy shall be for the defendant to receive a continuance unless there is a showing of bad faith. If the case has been continued twice because of late disclosure of relevant recordings there shall be a rebuttable presumption that a third late disclosure is in bad faith.

(B1) Disclosure by the Defendant – Upon receipt of relevant recordings from the Commonwealth, the defendant shall give copies of any other recording he intends to use at trial to the Commonwealth no later than five days before trial. If a recording is turned over to the Commonwealth later than five days before trial the sole remedy shall be for the Commonwealth to receive a continuance unless there is a showing of bad faith. If the case has been continued twice because of late disclosure of recordings there shall be a rebuttable presumption that a third late disclosure is in bad faith.

(C) Case in Chief – No recording shall be used by a party in a criminal trial unless such evidence has been turned over to the other party and the specific portion of the recording that is going to be used has been identified. This identification shall occur no later than three days before trial. If identification occurs later than three days before trial the sole remedy shall be for the receiving party to obtain a continuance unless there is a showing of bad faith. If the case has been continued twice because of late identification there shall be a rebuttable presumption that a third late identification is in bad faith.

(D) Cross Examination or Rebuttal – No recording shall be used for cross examination or rebuttal unless such evidence has been disclosed to the other party. Specific identification of the portion of the recording to be used in rebuttal or cross examination shall not be required prior to its use in trial.

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 The meat of it is obviously in C and D and I'm fairly satisfied with them. The definitions could probably use a little sharpening. It's surprisingly difficult to define "recording" without using "record" (at least for me). Feel free to offer suggestions or, if you're the bold type, to grab your state senator or delegate (representative for those of you poor unfortunates who live outside the Great Commonwealth of Virginia) and tell them that they need to pass this statute. Make sure you get my name somewhere in the bill though. Personally, I'd suggest "The Lammers Bill of Ultimate Solutions and All Around Awesomeness", although I could be talked into cutting a couple words out.

Seriously though, bills or court rules along this sort of path are quickly becoming a necessity. As more and more recordings are becoming more and more ubiquitous in courtrooms something has to be done. And the solution to more and better evidence isn't to dismiss cases despite what some professors might urge.  See Theories of Prosecution, 108 Calif. Law Rev. ___, pgs. 13-14 (2020). One suspects that those who propose such solutions are often operating with unclean hands - urging all police officers to be required to have bodycams to prove what's actually happening on the street and then using the fact that there is so much video to urge that crimes should not be prosecuted because viewing all the videos is too much of a barrier for prosecutors. There are times when reality gets out ahead of the law and we have to do something to provide a parctical solution. This is one of those times.

18 April 2019

"Competitors" to Proactive Policing

Anonymous commented on my previous post about the social pendulum and how America treats crime (And So the Pendulum Swings) that my position would have been better served if I addressed the competing theories to proactive policing.We skirmished about it in the comments with him pointing to the banning of lead gasoline and paint as correlating with the drop in crime, me not taking that seriously and flippantly pointing out the rise in the prices of beverages in the 90's could be said to correlate as well, and him doubling down with a link to a chart from Mother Jones. Not knowing anybody who trusts Mother Jones for science facts, but not wanting to blow off a point someone seemed to really believe, I contacted someone who know a lot about statistics and now I'm ready to talk about the competing theories.

THEORY ONE: Abortion Legalization Caused the Decline in Crime

This theory was actually one of the ones used to justify the legalization of abortion in the United States. It comes from a Swedish study that followed "unwanted" children and determined that they were likely to engage in crime. The theory, as far as its application to the U.S. goes is that abortion was legalized in the early 70's and therefore the drop in crime in the 90's was due to the drop in unwanted children.

As you might imagine there has been quite a bit of push back against this theory and a hesitancy to actually study it because it has the whiff of eugenics about it and any serious study is probably going to have implications in racial spheres (i.e. claims about Margaret Sanger and abortion rates for African-Americans and Hispanics in NYC ) and few social scientists want to tread on those grounds.

The strongest counter-argument I've seen to this is that it doesn't hold up to actual demographics and the changing social environment. At about the same time as abortion became legal premarital sex and out of wedlock (unwanted) births started becoming normalized. There were actually more out of wedlock births in the lower social classes than there were babies aborted. So, instead of a downturn in crime there should have been an uptick which was somewhat mitigated by the abortion affect.

Personally, I think there's a good chance that a lot of people who push this theory are strongly influenced by confirmation bias. They want the Swedish hypothesis to be proven true because it would show abortion as a long term benefit to society.

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THEORY TWO: Removal of Lead Hazards Caused the Reduction in Crime

This theory states that the US government's banning of the use of lead paint (outside of industrial uses) and requiring its removal as an automotive fuel additive caused people to become less aggressive and led to the downturn in crime. Here's the chart:
.......
Of course, you have to be careful with these kind of charts otherwise you have to believe things like the strong correlation between the Age of Miss America and Heat Murders.
........
So, I went out and imposed on an old friend who has gone on to make a better man of himself in a career involving a lot of statistical analysis1. He said, in much more erudite words, what I previously stated in the comments on the old post. Correlation cannot prove causation. You can only argue whether correlation shows a stronger or weaker case. As to the case for lead he informs me that it appears likely to have had an effect, but that it is not clear how great the effect was.

On my own, I went out to see how our society compared to some where lead exposure for youths should still be higher. Admittedly, I was looking to see if the US result was predictive in societies with a significantly different cultural base and went to India, Thailand and Egypt to see. In the U.S., the CDC has determined that 5 micrograms per deciliter (μg/dL) of lead in blood is too high. In India it seems that children have about 6.86 μg/dL. In Thailand children have 7.71μg/dL. In Egypt the median is about 17 μg/dL. Assuming the theory that criminal activity tracks with lead contamination Egypt should have the most crime, Thailand and India would follow, and the U.S should have the least.

EGYPT      THAILAND   INDIA      USA

Murders per     
100K
0.8 5.9 2.8 5

Rapes per     
100K
0.1 6.7 1.8 27.3
Source: Nationmaster

Obviously lead is not the entire answer. The U.S. has pushed hard to lower lead levels and still has relatively high crime rates. Egypt, which obviously has a lot of continuing lead exposure has a minuscule violent crime rate. If it was entirely about lead or even in great part about lead the United States' crime rates should have cratered by now and should not have stopped their decrease in about 2002.

So, yes there appears to be a correlation that shows some effect. However, higher lead levels do not seem, unto themselves, to cause high crime rates2. I'd really like to see more data on this comparing crime rates for other countries with different cultural bases over time as their lead levels dropped (China, India, Egypt, Indonesia, etc., not European based societies). If a replication of a significant drop could be shown in the crime rates of other societies then this would be a rock solid theory and people much better at math than me might actually be able to determine how much the lowering of lead levels affects criminal behavior. In fact, I must admit to some suspicion as to why there isn't such a study.  If a study of different countries with different societal bases showed similar, significant drops in crime it would be rock solid evidence of the lead theory. Why then does one not exist? Let me put on my tinfoil hat and say maybe it's because a significant reduction in crime rate in other countries did not occur.

Anyway, that's as far as I can take this one. There does seem to be an effect of indeterminate magnitude in the United States.

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THEORY THREE: Collective Efficacy

This is the social group in an area through its shared values and trust of one another cooperating to enforce informally social norms that preclude criminal activity.

This is cited in many places as a counter theory to broken windows policing. While I think it is something that can be a barrier to the entry of crime into an area, I don't think it's something that has effect in an already crime ridden community. In fact, I'd say the underlying purpose of broken windows policing is to create a space and condition so that a positive "collective efficacy" can come into being and flourish.

For instance, after a long period of proactive policing, the police in NYC reduced their activity (we'll assume they didn't just change methods). After they did, the depressed crime rates which came into existence during the proactive policing period remained depressed. Those who opposed proactive policing trumpeted this as proof that broken windows didn't really accomplish anything. In so doing, they ignored one obvious conclusion: proactive policing had changed the social structure so that behaviors were less violent and criminal. The question now becomes, did the social change imprint in the social group deeply enough that collective efficacy can hold the line against a slide back into a crime ridden society? We won't know for years, but my bet would be that in some neighborhoods it will and in others it will fail. Where the final balance will lay probably won't be known until a couple decades have passed and somebody does a historical study.

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THEORY FOUR: Economic Improvement

This is the "a rising tide lifts all boats" theory. Of course, this has some merit, but I wonder how much in an economically depressed area. If half the people in an area are on welfare, the area is flooded with dealers and gangs who constantly have gunfights over turf, and there is one gas station and one McDonalds, how is that community going to grow itself economically out of that situation even in times of booming growth? Sure, some people will get jobs outside the community - if they've got reliable transportation - but enough to transform the entire community? Unlikely. At least it's unlikely as long as no businesses or factories open up near the community and that's unlikely as long as the perception that the neighborhood is dangerous and crime ridden persists. Thus the economic improvement theory finds itself in a catch 22. Crime keeps businesses away and businesses are needed to bring people's economic status to the point that crime is squeezed out socially.

Here again, part of the purpose of proactive policing is to damp down crime so that these neighborhoods can become acceptable (and hopefully desirable) places for businesses to locate and then that tide can actually lift everyone in the community by providing employment for significant numbers of people.

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CONCLUSION:

Let's admit something here. Nothing in the real world occurs in a vacuum. Proactive policing may be - and I would assert is - the major element in the decrease of crime since the early nineties, but it didn't stand alone. It is intertwined with the other things listed above with the probable exclusion of the abortion theory. And yes, I am including the lead reduction theory in that statement; I'm still skeptical and want to see the replication I called for above, but as far as I've been able confirm it has some effect.

None of these things are the only cause. They are all part of a set of circumstances which combined to drop crime rates. The question becomes, what was the primary cause? As always, it's impossible to prove with certainty any of this. Someone will always challenge; after all people have to earn their doctorates, get jobs as professors, and become tenured. That process doesn't tend to favor someone who just says "Yeah, the obvious answer is the right one." Thus someone will always be developing new, strange, and attenuated theories and swearing they're the one who is correct.

What is that most likely answer which they'll be striving to make their bones by disproving? The most likely answer is that proactive policing provided a break from prior patterns of social behavior and perception, apparently at such a time as lead reduction had caused younger adults to become less aggressive and thus more likely to conform to new behavioral patterns. This allowed more economic growth in previously inaccessible neighborhoods and allowed room for a new pattern of accepted social behavior to develop.

We'll call this Addendum A to the Ken's Grand Unified Theory of Broken Windows.


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1 And, no, I shan't be giving you a name or firm employed at. There are too many whackadoodles on the web and he's done nothing to deserve their attention.
  
2 Obviously and admittedly, this is a terrible model. I don't have the time, resources, or training to do a long term data or metadata analysis. So, I did my best to approximate a snapshot of the data to give a general idea. I invite anyone out there who wants to investigate the cross cultural effects of the reduction of lead on crime to have at it.

10 April 2019

Gateway Drugs

Here's an interesting article about the connection between low level drugs (cigarettes, alcohol, marijuana) and the use of harder drugs. Admittedly, a lot of it is over my head, but I did get the part where they state that the use of cigarettes, alcohol, and marijuana make it 24 more times likely someone will use hard drugs.

What caught my eye was the short section on the two competing theories as to why lower level precede the use of harder drugs. 

There are two general schools of thought on the gateway effect. The first is that the gateway effect is causal: Cigarette or alcohol use causes marijuana use and marijuana use causes cocaine use. If the gateway effect is causal, then smoking restrictions should decrease marijuana use and the legalization of marijuana would lead to an increase in cocaine use. The second school of thought is that the gateway effect is merely descriptive: Individuals have a preference for drug use and the fact that individuals typically use marijuana first is due to some unobservable factor, such as marijuana being more readily available.
Personally, I think the two theories intertwine in reality. I'm pretty sure every human comes wired to seek pleasure and starting out at a lower level can lead to attempts to repeat an action in a manner believed to provide greater pleasure. I'm actually more curious about what barriers prevent most everyone from moving up the chain until we're all hooked to a morphine drip. 

I'd posit three strong reasons for this barrier affect (I'm sure there are a passel of small ones). First, social norms. Second, perception of danger. Third, anticipated opportunity loss. 

Social Norms

To begin with, let's address the social norms. Here I think we will all agree that a large portion of the population - probably a majority - perceive cigarettes, alcohol, and Marijuana as falling in a normal to use category. Their downside is discounted to a certain degree and it is expected that almost everyone will partake of them - at least as young adults. The step up to the next level is not acceptable. Cocaine, heroin, and oxycodone are not seen as normal use and therefore use is viewed with with disapproval. These are norms handed down as part of the social atmosphere. You see Uncle Ted and Aunt Katrina smoking and drinking a beer; you don't see them using cocaine.

Perception of Danger

Next we come to the perception of danger. Cigarettes are known to have long term harmful consequences. Alcohol clearly has the ability to be dangerous in both the short term and long term, but is so ingrained in society that is part of religious functions and part of everyday life for most people without any serious problems. Marijuana has not been widely perceived to have large detrimental health effects. There is some perception that heavy use impacts intellect over time and one imagines that the inhalation of a foreign substance into a person's lungs can lead to long term health issues, but no one seems to take that into account. Consequently, there may be a perception of some minor danger, but there isn't a great feeling of immediate jeopardy. 

On the other hand, even in depressed communities - perhaps especially in depressed communities - the affects of harder drugs become known. Heroin kills. Crystal meth makes you skinny, scabby, paranoid and dangerous. Everybody overdoses from fentanyl. Sure, some people will always go there anyway (after all there are no shortage of young people who think they are invulnerable), but a lot of people seeing what's happened to those before them will stop short. Additionally, I think the threat of incarceration has a lesser effect in causing people not to use the harder drugs. 

Anticipated Loss of Potential

While I occasionally make fun of the young among us for not exercising their brains much, they are generally on a path and can see their potential futures. They can see that someone addicted to heroin or cocaine isn't as likely to succeed. Thus, when middle class or above kids are making their way thru high school and going off to college the majority of them don't come out the other end with addiction issues. And don't try to tell me that drugs aren't available in and around school; Lexington PD raided the place where kids congregated just outside my Junior High School when I was in the eighth grade. I had a classmate in college tell me how he had sworn off LSD because a building tried to attack him while he was high and walking across campus. Drugs are available while you are in school. 


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So, I see the minor drugs as a gateway of sorts, but the jump to harder drugs not being accomplished solely thru them. There has to be something that gets a person over the barrier. This could come in many flavors. There are always some few people who simply fall off the path because of they are young and (in their own mind) invulnerable or they have a major event and seek solace in oblivion or maybe they came equipped with a greater genetic predisposition. There are always people who have so much familial money/power they will be taken care of even if they turn into the biggest herion addict on the West Coast. Most importantly, if there doesn't appear to  be a set path for success then immediate gratification becomes a much more powerful draw. This is your basic explanation as to why, despite not having the same level of general affluence, drugs are more commonly found in depressed communities where their economic impact is more profound.

There is an argument that in order to make the lesser drugs even less of a connection to the harder drugs they should be legal, affordable, and relatively easy to access. Minor entry level bumps (which are fairly easily worked around) may be acceptable to reduce their potential for harm, but making them so high that the lesser drugs go back to being sold by the same guy who is distributing coke, heroin, or oxys is counterproductive. 

In fact, I've often wondered if - and at times posited that - the main reason that marijuana is a gateway drug is that it is sold by the same person who is selling coke and he'd really like to get you hooked on that more addictive drug to make you a more dependent customer. 

08 April 2019

Ken's Grand Unified Theory of Broken Windows

I got into this tangentially the other day, so I thought I'd set out why I think "broken windows" works as one aspect of proactive policing.

The theory, as usually laid out is that lesser crimes lead to greater crimes and punishing lesser crimes, as well as cleaning them up, breaks the causal chain. First, let me say that I don't believe it breaks the chain directly. Stopping someone from tagging a wall and painting over tagged walls as quickly as possible doesn't stop the guy down the street from selling drugs out of his house. In fact, I generally agree with the article cited here that posits that most violent crime is personal in nature and therefore isn't directly effected by broken windows policing. I also believe that collective efficacy has an affect growing out of broken windows in a couple possible ways, at least one of which will probably not be viewed favorably by its fans. However, I think that the biggest factor is most likely the growth of affluence.

I'm going to give two examples of what I mean. These are two general models for how broken windows can work. Neither involves actually breaking the chains of criminal behavior directly, but lead to it.

I.  Displacement Model:

This one will be viewed as less pleasant because it is for those displaced. For those of you old enough to remember the fussing about gentrification, it's at the heart of this. Here is a map of the area I grew up in in Lexington, Kentucky:

I've colored part of it blue to represent nice houses where people of a certain station live even though it's on the wrong side of town. Yellow is a sketchy part of the neighborhood where people aren't thrilled to live, but make do despite higher crime rates and run down houses. Peach is the part of the neighborhood where police only go in force and nobody sane walks the streets after dark. All of the sections are arbitrarily chosen; I'm sure nobody in Lexington actually views the Northside as anything but a land of hugs and cookies.

Anyway, let's say the Lexington Police Department concentrated on the area and swamped it with officers to stop all the petty crime they set their eyes on. As well, they have people doing community service come in and clean everything up as soon as any mess is made (new windows, new paint, etc.). Minor, observable crime disappears along with its signs.

What happens next? After a while, some innovative sort looks across from the blue area and sees some decent houses that are dirt cheap and starts buying and renovating. Then he spins them out for sale to young professional types who want the perks of a nice house, but can't afford to get anywhere near as nice a place on the "good side" of town. Likewise, displaced people from the sketchy area start moving into the bad area and it is improved because these people aren't bad, they just can't afford to live elsewhere. The map starts to look like this:

The green are the places starting to have young professional types moving in and the orange is the consequent movement of the displaced. Property values start rising. More builders catch on and start buying and renovating. More young professionals start thinking this is a good place to live. Police start seeing Biff and Madison in their weekend polos and weekday suits and start treating the neighborhood like they do a place where Biffs and Madisons live. The affect continues to spread.

Now you've made the blue and green area much larger. The sketchy area has changed to include the remnant of the yellow and the orange. The really bad area has shrunk and hopefully those leaving it have gotten scattered and lost connections and customers.

Local governments love this sort of thing. It brings them lots and lots of new taxes from an area that was a black hole for their funds before. That's why they'll listen patiently to community activists et al. complaining about gentrification and swear they'll ensure mixed communities. Then they'll sit back and collect their taxes as property values go up and drive the prior residents out.

And here is where collective efficacy (a fancy way to say informal community standards) come into play. Depressed communities may accept a lot of criminal behavior, but once the community becomes filled with young professionals that sort of thing isn't going to cut it anymore. These folks won't steal, fight for neighborhood territory, or sell drugs on the street and they won't tolerate it at any great level. Whether you are one of them or someone still hanging on from before (if you can stay as the neighborhood improves around you why wouldn't you?) you know what behavior is acceptable and you color within the lines. Stepping out of line could mean shunning by the community, but more importantly the people now in the neighborhood will call the police on you and expect a satisfactory response. The police, now dealing with Biffs and Madisons will respond more rapidly and decisively than before. And thus informal standards fall into place and become the norm.

II.  Economic Growth Model:

Sometimes there are barriers to the type of model above. The area outside of the blue might be riddled with government housing projects. The houses in the yellow and peach areas might all be ugly orange brick houses built to exactly the same design, have about the same space as a single wide trailer, and have no land around them. Community activists could actually win the fight and make it impossible for buildings to be improved and other people to move in (usually thru getting control of whatever government entity controls building permits). The yellow and orange areas could be down wind from the local paper mill. What happens then?

Well, in these circumstances property values don't increase, taxes don't increase, and outsiders don't move in. What can happen, if the situation is stabilized long enough, is that a better quality of merchants moves in.

If you've lived in one of these areas (yes, I have) you know the kind of merchants set up shop in them. They get a terrible reputation for inflating prices which have to be paid by a captive customer base and selling lots of alcohol and tobacco. There are reasonable explanations for some of this such as lack of economy of scale and/or a chain of supply (except mass purchases at Wal*Mart), but that's not what we're here for today. We're here to examine what happens when low level crime disappears  and the streets clean up.

Well, Businessman Bob may not want to live there, but he's quite willing to set up a business if he believes it will be safe and profitable. So a Winn Dixie, 7-11, Shoneys, and Food Lion move in. They provide employment. They provide a supply chain connected to a powerful economy of scale and therefore significantly lower prices. They improve the local quality of life and thus boost collective efficacy.

The depressed community improves. That improvement, combined with continued guarantee by law enforcement of clean streets free of low level offenders, can spark a set of informal rules that put people to work and lean against the commission of crimes that would cause a slide backwards.

Admittedly, I think this second model is more tenuous. Rather than changing the makeup of the community, you are trying to change the behavior of the members of a community which has already settled into an acceptance of a constant level of criminal activity. That is both more difficult and a potentially better result because it moves a group into a better life first through enforcement and later through self imposition.

----------------

In summary, I think broken windows is the opening step. It allows communities to improve by presenting an appearance and actuality of a community safer from the identifiable low level crimes that drive people away. Thus it leads to neighborhood improvement by encouraging some sort of affluence to come into the community. This builds a collective efficacy that is anti-crime in defense of the affluence.

It is also the opening step for law enforcement to start using more proactive techniques. This doesn't have to be anything as draconian as New York's former no reasonable suspicion stop and frisk program. It can be flooding this troubled area with patrols so that officers are constantly seen combined with multiple consensual encounters and the occasional constitutionally valid Terry stop. This is the more modern computer driven model of policing relying on data to determine which areas need to be flooded with officers to provide a presence to damp down trouble and catch actual troublemakers instead of casting a massive net by just stopping anybody who catches the officer's eye (and making the officers keep track of their stop numbers).

What it isn't is an immediate causal break between the commission of minor crimes and major crimes. It's a part of a process which either changes the makeup of a community so that its new members are more affluent and invested in an ordered life and, as a side effect of this, serious crime is curtailed, or it's part of a process which can bring economic benefits to those in a depressed area and over a longer period lead to a decline in serious crime. The second is a much harder process and would require longer police investment to maintain the stability for the new conditions to set in the minds of the community as the norm.

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Before anyone fusses at me about the simplicity of these models, yes they are simplistic. This is a blog post not a fifty page article in The Journal of Perfect Solutions for which I've spent five years gathering data and metadata. I realize there are all sorts of variables and conditions not dealt with here. In particular there is the pushback problem.

No matter how well intentioned something like this is at its inception and no matter how bad off the community, there will always be pushback both from members of the community and from those outside the community who fancy themselves as protectors of some sort. The internal dynamics of the community are easy to understand. People in depressed communities want a safe place to live too. They want the violence to stop and the drug dealers to go away. And then you arrest cousin Joey, who's the only one living with and caring for Grandma and has three kids he needs to take care of as well. Suddenly, the fact that he was selling drugs isn't all that important and they want you to leave them alone.

Third party protectors can range from the naive and ignorant, thru those who work in the community on a daily basis and are invested in the now, to the cynical who are using the community to forward their own politics or policies. In any event, there will always be a significant pushback.

However, the fact that there is opposition to the models above doesn't mean the models aren't valid. It just means that there may not be the will to overcome those that push for the status quo. After all, if you're the chief of police or mayor isn't it easier to just isolate a bad community instead of trying to fix it? You can concentrate your patrolling efforts on the better parts of town where people expect protection and low crime rates. Nobody will be screaming at you because you're arresting too many people from one area (who are likely to share an ethnicity). It's simply easier to contain instead of trying to fix.

04 April 2019

Restorative Justice in Domestic Violence

One of the academic articles that caught my eye the other day was one about restorative justice in cases involving violence against women written by Lorenn Walker and Cheri Tarutani. Admittedly much of it seemed rather shallow - a kind of broad philosophical assertion that restorative justice would be a better system filled with direct and indirect platitudes but not much else. It was also somewhat confused in that it was primarily dealing with inter-generational violence against women and the hopes that something other then a prison sentence can save those damaged by the people who are supposed to be looking after them and protecting them as they grow up, but it also threw in stuff about violence between domestic partners. The latter is what caught my attention.

The authors don't like the mandatory arrest policies which have been adopted in large portions of the country when officers respond to a domestic violence situation and find actual evidence of the violence. In fact, they called it patriarchal.

I think this is wrong. They are correct when they state that the victims in these cases are deprived of the power of choice when mandatory arrest policies are in place, but their position ignores the fact that women get arrested under these policies as well. I don't know if "gender symmetry" actually exists (the claim that domestic violence is done at an equal rate by both sexes), but anyone who's done this kind of work has seen violence directed against males and sure as shooting has seen "bidirectional" domestic violence (both sides fighting). Male victims are deprived of the power of choice just as much as females.

Nevertheless, there is a power dynamic at work (several actually, but we're going to stick with just this one for simplicity's sake). The victim in a domestic is rarely the one who decides to charge the batterer. Nor is the victim the one who directly decides whether the charge should proceed in court. That, however, is not the end of the story. Victims have, and in an unfortunately large number of cases wield, an indirect power to decide whether a charge proceeds. They can refuse to testify, "forget" what happened when called to the stand ("I was drunk. I don't remember."), or give an alternative explanation (an amazing number of victims fall into doors). Often, and if you work in domestic courts it seems very often, the victim is 100% in the camp of the defendant.

In fact, one of my worst examples for this was a case wherein the victim was male. Two days before his wife had stabbed him in the middle of the chest with a long, sharp knife. The only reason he was alive was that she hit him smack dab in the middle of the sternum. We had the knife. She'd hit him so hard that it bent. He pushed the defense attorney for the bond hearing and testified on her behalf in it. When I spoke to him and pointed out that she'd tried and come close to killing him he responded something to the effect of "She was drunk. She didn't mean it. Besides, I need her home to take care of the kids so I can go to work."

In recognition of this sort of issue, most people who do domestic work try to do something more than mere punishment. Personally, in minor cases I try to sell the victim (who doesn't want anything to happen to the defendant) and the defendant on something along the lines of "Defendant pleads facts sufficient for conviction, but the court withholds its finding for a year. Defendant will complete an anger management course, remain drug and alcohol free, and engage in no further violent acts. If the defendant has not violated these conditions the charge will be dismissed after twelve months." It's about the best compromise available with an uncooperative victim. It puts the defendant in a situation where he/she is being monitored for a year and the great hope is that a year of enforced domestic calm is enough to at least start a change in behavior.

Would restorative justice work better? I don't know. You rarely see a down-in-the-trenches, nuts and bolts type of discussion as to how it would work. If it means some sort of couples counseling working toward better behavioral patterns, I'd love to see that. I doubt that harmful behavioral patterns exist only on one side of most dysfunctional relationships. Nevertheless, I see at least two problems with this. First, the courts can't order a victim to do anything. This might be something the courts could allow victims the ability to opt into if the defendant agrees. HOWEVER, the option would have to be closely monitored so that it doesn't just become another part of the pattern of abuse. And that is a major concern for something like this. Ask anyone who has worked in domestic courts what would happen if the victim was given - solely at the victim's discretion - the ability to opt out of the courtroom. We all know that there'd be far too many victims who would opt out every time and you'd end up with victims who had opted out five times or seven or how ever many it took before they were in the hospital or morgue.

Second, the abuser would try to game this just about every time. He/she would pressure the victim to opt into it and put as little in as possible. It's just another way to avoid jail time. This, of course, is one of the greatest blindspots most proponents of restorative justice seem to have. They assume the defendant will act in good faith and be interested in change. Some few will; the rest will range from tepid participation to downright hostility once they've escaped the possibility of punishment by the courts. I'd expect a lot of dropouts.

What would I like to see? Well, I'd love to change the deal I end up making to something like this:  "Defendant pleads facts sufficient for conviction, but the court withholds its finding for a year. Defendant and Victim shall participate in joint counseling once a week for six months and twice a month for the subsequent six months. Defendant will complete an anger management course, remain drug and alcohol free, and engage in no further violent acts. If the defendant has not violated these conditions the charge will be dismissed after twelve months."

I'd love to do that and think it would have the best real-world shot at success. After all, if we can pay for X number of counseling sessions for something like drug court why can't we pay for the same in an attempt for domestic rehabilitation?1 It would be a powerful tool in trying to fix people rather than just telling them what is wrong/illegal, trusting them as individuals to exercise free will and moral judgment, and punishing them when they do what society has told them is unacceptable.

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1 Yes, I know the answer is finite resources, but this is a la-la land wish for a world where the assumption of infinite resources, so often found in "what we should be doing" academic articles and news stories, is true.