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.”