24 December 2020

CATO: Getting Police Questioning Wrong Through Lack of Context

CATO is a ideologically libertarian think tank which often puts out quite smart think pieces on various topics. Even when I disagree with them, I usually find their pieces well thought out. This was why I was somewhat surprised when I came across this opinion piece about how terrible the police are in the United States because they lie during interrogations and therefore they are mistrusted by the public. 


The Proposition

Standing alone, it's a very dubious proposition that the general public distrusts police because they lie during the questioning of suspects, so the author attempts to strengthen it by positing that lying in the questioning of a suspect leads to (1) police lying about searches in court and (2) lying to keep each other out of trouble. He doesn't provide any proof of that connection and indirectly points toward collateral factors that are much more likely as causes: (1) the imposition of federal search and seizure standards through Mapp, and (2) the loyalty factor found in any group of people who rely upon one another. I agree, these are factors - particularly the second - which can lead the general public to mistrust law enforcement. They aren't tied into using deception during questioning.

That leaves one item supporting the proposition: they do it better in Europe. They always do it better in Europe. Patriotism may be the last recourse of scoundrels, but Europhilia is the last refuge of those who can't support their argument through American jurisprudence. But, okay, they've set the field. Let's try to play on it.

First of all, let's clear out some of the brambles. The overall rate of crime in Britain and Germany has nothing to do with whether suspects are misled during questioning. There are a myriad of social factors that strongly affect the crime rate that all occur well before anyone ends up at the PD in a room with a detective and a two way mirror.1 And, now is when we cut away the idea that being deceptive during questioning leads to the distrust of the general public. Telling us that people in Britain and Germany trust officers more than Americans do is a distraction which the author connects to questioning techniques. At core, the author of the CATO article believes a suspect has a basic right not to be lied to. That kind of solid core belief is respectable. However, it doesn't make the connection the author wants magically appear.


Examining the English Model

Nevertheless, there is one facially solid argument the author has made: the claim that a policy of requiring officers to be honest has resulted in a "high volume of confessions" and fewer false confessions in England. The fact that "high volume" was used to describe the number of confessions would tend to indicate the author didn't have stats which showed better results in England. I went to the article linked to by the author as his proof that England had fewer false confessions, but on a quick read through didn't see that stated unequivocally. I did see the linked article state

Unfortunately, the PEACE model technique . . . needs to become more innovative with regard to challenging the denials of uncooperative suspects. With this in mind, both the Norwegian and the Irish (An Garda Síochána) police have developed their own interview models, which are largely based on the structure and principles of the PEACE model but are more dynamic and flexible in terms of challenging uncooperative interviewees. (p. 706)

 Putting this together with the attached "high volume" statement would tend to indicate they got fewer confessions overall and that the total honesty system fails when it comes up against the uncooperative. As there are fewer confessions overall and system failure without cooperation by the suspect, there are fewer false confessions.

How then do the English get a "high volume of confessions" when they must maintain honesty? Well, they can entirely honestly look at the suspect and say "If you don't talk to us then it will be used against you at trial." Americans seem to operate on the belief that the English have exactly the same set of rights that we do. They don't. Our Supreme Court has interpreted our right to remain silent as nigh unto absolute. Their Parliament has not. Suspects in England don't have to say anything, but that silence will most assuredly be used against them at trial. Here are the pertinent sections from Part III of the Criminal Justice and Public Order Act 1994:

34. If a suspect fails to mention any fact, but uses that fact as part of his defense, the failure can be used against him at trial.

35. A defendant's failure to give evidence at trial can be used against him.

36. If a suspect has evidence on him indicating he had something to do with the crime, but does not explain the presence of the evidence to an officer, the failure to explain can be used against him at trial.

37. If a suspect is found at the scene of a crime, but does not explain his presence to an officer, the failure to explain can be used against him at trial.

How do you not get a high volume of confessions with that big a stick to wave, entirely honestly, at the suspect?2  I'm pretty sure that there are a lot of American officers who would agree to be honest while questioning suspects if they walked into the room with almost a requirement that the suspect explain things to them.3  So, it appears likely that the high volume of confessions in England is due to a very different playing field and that the honesty requirement isn't the prime mover.

I've watched a fair number of police interviews over time. Most start with a short chat that quickly leads into the officer explaining Miranda rights to the suspect. In the last ten years or so in my locale that usually means the officer reading them off a piece of paper, the suspect initialing beside each right and then the suspect signing the bottom of the paper if she waives the rights. The suspect does it almost every time and then starts talking; sometimes she can't even wait that long.4  Do police build rapport with suspects? Yes. Despite the CATO author citing rapport as a terrible and deceptive thing we do in the US, it is a major part of the interview process in England as well. After all, the second phase of the PEACE model, Engage and Explain, "is sometimes described as the Rapport stage of the interview." And let's not forget, the suspect is often trying to build rapport herself so she can lead the detective down a primrose path or sell him a sob story or just catch a break. 

PEACE is all about the rapport and in a situation like England's where the suspect basically has to talk to the officer rapport and picking apart inconsistencies is probably enough in many cases. The US system also relies on rapport, but doesn't have a situation where the suspect faces consequences for not saying anything. It's not quite a comparison of apples to oranges. It's more like comparing a Golden Delicious to a Granny Smith. They're both apples, but you wouldn't use them interchangeably in a recipe.

We could change our system to mimic the English: "You have a right to remain silent. Anything you say or do not say can and will be used against you in a court of law." Then we could adopt the PEACE system from the English. Would it be as effective? Apparently not. However, if you take as a first principle, as the CATO author does, that officers must be entirely honest with suspects that might be a sacrifice you're willing to make.


The Example Given

 Let's look at the example the author gives. Two suspects are put in separate rooms and neither is talking. The officers tell each that the other is singing like a bird in order to get them to talk. Ask yourself if this technique in any way makes the content of the statements of the suspects conform to a preconceived notion of the officers of how the crime occurred. It doesn't. Therefore, should we remove this technique from the officers? Probably not.

We should be concerned if officers are leading a suspect down a path. Didn't you do X? Yes. Then you did Y? Yes. Whenever a questioner asks closed questions, leading a suspect in a certain direction it can be bad. If there's nothing but this sort of questioning that interview is very suspect. Of course, a leading and/or deceptive question may be needed to get things rolling along. Look, we know you killed him, right? Yeah, okay. Just tell me how it went down. Then the suspect fills in the details. An important check in this sort of questioning is the undisclosed fact. If the suspect talks about something which is not told him and not known to those who weren't at the scene then the interview is strong evidence.5  The problem here, and I suspect in most false confessions, isn't the deception. It's the susceptibility of the suspect to suggestion and officers who don't use open ended questions when they should either because of poor training or because they aren't getting the answers they want.



I understand finding the misleading of a suspect during questioning distasteful. In a perfect world robbers, rapists, and serial killers would all confess fully and immediately the moment they were first questioned. Then our police officers would not have to sully themselves with misleading questioning tactics meant to lead to a confession of the act and the CATO author would not be discomforted by reality. Unfortunately, we live in reality. Officers have to do distasteful things because we are choosing the distasteful over the bad or flat-out evil.

Believing that total honesty from officers is a first principle is fine - naive, but fine. However, you must argue its benefits within the American system, not use a comparison with a significantly different system. Explain why it is such a good that it more than compensates for the necessary evil officers now engage in. If you can come up with a solid, practical, American jurisprudence based solution which will provide as good or better results, present it. I'm sure a detective who gets an embezzlement confession without using a single bit of deception will thank you for your efforts. Just please don't ask him to hold his breath while you try to work out that solution.



 1  In the US, the idolization of crime and criminals might have something to do with this. We know and glorify our criminals from Billy the Kid through Bonnie and Clyde and on to the Notorious B.I.G. who was so well known that people adopted his nickname for a Supreme Court Justice.

2  My one semester of college German has not sufficiently prepared me to do as indepth a review of German law, so I'm stuck with what Wikipedia says (rely on this at your own risk): Complete silence is unusable, but selective silence (answering only some questions?) can be pointed out in court. Apparently, this is a statutory right, not a constitutional protection. Also, the warning given by police tells a suspect he can remain silent, but also tells him it is his right to tell the officer of evidence in his favor.

3  As an aside, if the purpose of the constitutional protection is to stop things like confessions being beaten out of a suspect, I don't think this would be unconstitutional in the US either. The Brits have simply decided to walk a different path than we have.

4  I've had more than one patrol officer complain that "I told the guy he had the right to remain silent so don't talk to me and he did anyway so now I'm in court." 

5  I've had that conversation with officers before. "Oh come on John, you're the third detective on this case and it's from twenty-two years back. How can you know this confession is real?" "Because we never told anybody that the robber scattered crayons across the kitchen before he left - not even your office or anybody - and he described his co-defendant doing it." They will hold on to these undisclosed facts like Scrooge McDuck holds on to his money and hide them in Fort Knox if they can.

01 November 2020

The Emotional Gambit and Jail

You'll recall that a few years back I tried to copyright the four reasons that no defendant can ever go to jail. BTW, all you defense attorneys out there are behind on your payments for their use; I figure most of you will have to sell your homes to make your payment by now. Anyway, over time I've come to realize that I've left out one other thing used by defendants in their attempts to avoid jail: The Emotional Gambit.

This epiphany came to me while I was watching a Korean show about their judicial/political system (about 25% of Korean shows seem to involve the judicial system) and the senior prosecutor quizzes a junior prosecutor about the things that defendants say which should never sway a prosecutor.

(1) "I'm sorry."
(2) "Please forgive me."
(3) "I repent."
(4) "I'll never do it again."
(5) "This is unfair."

Then he goes on to warn her (6) "The ones who cry are the most dangerous."

He's advising her before her first solo interrogation. In Korea prosecutors have more responsibilities than US prosecutors. They are tasked with interviewing suspects brought to them by the police and they can work out deals with suspects and victims which, as best I can tell, conclude the case without ever going to court. And, if the multiple Korean prosecutor television shows are to be believed (because we all know TV never get things about court systems wrong), no defense attorneys are involved at any point in that process.

It's a different world. Still, the advice above is something a US prosecutor should consider. So let's go thru the factors.

Crying is something most professionals in a courtroom will see thru jaundiced eyes. We've all too often seen crying as an attempt to manipulate the outcome of a court proceeding. Perhaps as often, we've seen it as a display of anguish at being caught and the fear of punishment (intermixed with the former purpose). On some rare occasions it even appears to be an actual display of remorse for the act. Even then, it is most often situationally prompted remorse. And before people start yelling at me for being a cynical prosecutor unable to recognize that people can be truly remorseful of their wrongful acts, ask yourselves a question: If the lady wailing away in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room crying because she stole $1,500 worth of electronics from Wal-Mart?

Moving on, "I'm sorry" and "I repent" are more specifically expressed variations of the same thing: showings of remorse and refutation of the illegal act. These are basically subject to the same analysis as crying. Again, the most obvious purpose for the apology or refutation is manipulation of the court. To a lesser extent, it can also be seen as a display of anguish at being caught and the fear of punishment, although unlike crying verbal communications probably involve a greater level of manipulation over simple anguish. Again, betimes it appears that defendants are truly sorry and repent their act, but they still usually appear to be situationally prompted. The question to be applied here is the same for crying: If the lady proclaiming her sorrow and repentance in front of the judge who is about to sentence her had never been caught would she be sitting home in her living room with sorrow and repentance in her heart because she stole $1,500 worth of electronics from Wal-Mart?

The remaining three are more open attempts by the defendant to negotiate a better consequence. "Please forgive me" is a bald request for non-punishment. The implication of the request for forgiveness is that forgiveness comes with minimal punishment; it is a request to be treated as the adulteress when Jesus said "Let he who is without sin cast the first stone." As we all recall, no one was left to condemn her and Jesus refused to do more than place the woman on terms of good behavior: "Go forth and sin no more." To put this in more legally cognizable contract terms, the defendant is asking the court to gift her with minimal punishment without even offering consideration.

"I'll never do it again" is similar to "please forgive me" with a small variation. When a defendant says this, it is an open attempt to form a contract with the court. As part of this covenant, she offers to "go forth and sin no more" (be of good behavior). If the court accepts her offer she is asking as reciprocal consideration that the court only impose minimal punishment. 

Finally, "this is unfair" doesn't really concern a contract made by the court; instead it's about one enforced by the court. Assuming it's honestly made, it is a statement that the court's punishment violates the defendant's perception of a societal contract. This could be the defendant perceiving or wishing that the societal contract favors her freedom of action over all ("You can't deny me the right to carry a bazooka."). It could be the defendant perceiving or wishing that rights vested with her instead of another party ("I was going to inherit it in a couple years anyway"). It could be the defendant perceiving that the punishment is greater than a rational cost-benefit analysis would allow ("Five years? For this little charge?"). As well, beyond these more rational reasons; there are a number of less coherent "this is unfair" gripes by defendants which basically break down to the defendant expressing her distress at being caught and held to account.


Of course, it's seldom that any of these six occur without at least some of the others and the big four reasons a person can't go to jail. Most specifically, crying almost never occurs in a vacuum. It's almost always an addition to the other factors and, depending on your judge's proclivities, sometimes a multiplier. Along with the big four, these are all "I did it, but . . ." attempts to sway the outcome.

The most frustrating thing about all of these is that there are certainly people who are truly remorseful and who will never consider undertaking criminal activity again. The problem is that it is nigh unto impossible to separate the wheat from the chaff. Frequent flyers long ago figured out that if they rend their garments and gnash their teeth while wailing about their sorrow for their act they can get a better sentence from Judge X1. And they do it far better than those who are not accustomed to being in court and are somewhat overwhelmed by it all. Those whom we all know are putting on a show often do so far better than those who mean it.

Beyond the manipulators is a group that is as large and probably larger. These are the people I mentioned above who are situationally remorseful. While they are under the thumb of the court and facing sentencing they mean it. They are never going to do it again and they are extremely sorry that they did. They are going to turn their lives around and they mean it. And, having dealt with these people for years, I believe they mean it at the time. Then they get back out on the street. Months later, they're back in front of the court, once again extremely sorry for their act and swearing to the court with zeal of the converted that they will never do it again. And, I believe they mean it then too. It doesn't mean they won't be back in another few months or years in the same mode again . . . and again . . . and again. Lather, rinse, repeat.2

Finally we get to the truly bone deep repentant defendants. While I don't quite believe these are unicorns, I do believe it is incredibly hard for the judicial system to spot them. These most likely come in two flavors: (1) The one-timer, and (2) the out of proportion offender.

The One Timer is the lady who gets a DUI driving back from the office Christmas Party or the guy who shoplifts a book just to see if he can get away with it. If the offense is petty, this person is probably going to get a slap on the wrist and move on with their life.

The Out of Proportion Offender is the petty thief who stabs someone who jumped him, the lady who shot the woman she caught in bed with her husband, or the boat owner who's been told by the harbormaster eight times to tie his boat to the dock correctly and refused to do it resulting in the boat slamming into someone in a kayak and killing them. Here things are more difficult. The person has done an act with a result so drastic that it cannot be merely borne. A jury may nullify and refuse to convict a lady who shot and killed the woman she found in bed with her husband, but a prosecutor should not countenance the killing of a person unless it occurs upon threat of another's life (see "History" here for self defense in Virginia).



Every so often, there is going to be a person among the masses of defendants who is truly remorseful. Discerning that person is nigh unto impossible. Even when you believe a person is showing actual remorse, experience teaches anyone who has been in the courtroom for any period of time that it is almost certainly situationally prompted remorse and will produce little actual change in the person's behavior once she has returned to her life outside the judicial system. Obviously, it is the defense attorney's job to latch onto whatever real/fake/situational remorse his client shows and present that to the sentencing judge to the best of his ability. It's not as obvious that the prosecutor should always entirely discount a showing of remorse. However, a prosecutor should probably start with a fairly strong presumption against believing expressed remorse unless he can picture in his head the defendant being remorseful and repentant even if she'd never been caught and brought to court.  If he cannot, he should leave it to the judge to determine whether this lone defendant among the many is that rare gem of a truly penitent criminal.

1  Hopefully, no one out there who is a legal professional is foolish enough to believe that the frequent flyers don't know the judges just about as well as we do. The FF who wails away in front of Judge X will be stoic and calm in front of Judge Y because it just bounces off Y. Emotional appeal isn't the only thing we see this in. How often do you see décolletage in front of (female, professional, no nonsense) Judge Y as opposed to (old guy, wandering eye) Judge Q? Examples like this abound. Just because you have a piece of paper on your wall stating you can practice law doesn't mean you're the only one who can scope out the judges.

2  In a way, these are the most frustrating people to watch go through the system. You want to believe that if you could just provide these people with well paying, stable jobs they would become vested in society and stay on the straight and narrow. I'm convinced this would work for a fair portion of them, although only God knows what percentage. There's a reason a guy working a $60,000 a year job is less likely to shoplift from WalMart than the guy living off a government check. Of course, the problem is that most of the people who are situationally remorseful are going to go back out into a world with few opportunities to excel and lots of opportunities to fail.

10 September 2020

Abandon the Police: Options

We've all seen the signs and heard the chants. Although there is a core group which will swear it is absolutely serious about this, most people see it as sloganeering and the use of political passions as an excuse to transfer money to pet social projects. That's all in the political realm and I don't do political here. 

It's up to others to decide whether things like Eugene's CAHOOTS program is a contributing factor to Eugene's very high crime rate or if it mitigates what would otherwise be an even higher crime rate.1 Instead, let's talk about a world in which police forces were greatly reduced. What models have existed in the past and might be used if the police became a minimal force?

Constables: The 1,000 Man Model

The Idea: I was doing some research about constables recently and depending upon what period of time you research you find them having a variety of different responsibilities. At one point, it appears that constables were to be in charge of 100 men (basically the head of a household) and had the responsibility of making sure every man was armed (so he could be called up in levy) and that this group enforced the law in their zone.2

How It Works: An adaptation of this model for the modern world would have to include many more people per constable. Perhaps 1 per 1,000 adults would be a more appropriate. So, New York City, with a population of 8,399,000, would go from having 36,000 officers to 8,399 constables. If we take out those under 18 and above 55 it should lower the number to approximately 6,000.

In this system the constable would make certain that the adults in her area were armed well enough to respond to criminal activity. That would probably mean at least one rifle per adult and ammunition. When a criminal act occurred the constable would call up an appropriate number of these adults who would show up armed and act to take the culprit into custody.

Difficulties: From what little I've read on this, problems back in the day used to rise when a person committed a crime in a town and then went back to his own area because the members of the group in the area he lived in neither felt the need to arrest someone who was living peaceably in their area nor felt inclined to let members of another group come into their area to apprehend the criminal. I'll leave the exact parameters of that issue to anyone out there who wants to do some historical research.

Other issues that would seem probable to arise would be the difficulty of getting people to react quickly enough to respond to significant crimes such as robberies or kidnappings, the free rider problem in which a number of people won't respond because of inconvenience or because they perceive the danger to be too great, and the lack of training of the individuals responding which can make them cause much more damage and harm.

Posse Model

The Idea: This is a modification of the idea above wherein there is a law enforcement officer or two for basic peacekeeping and when a major crime happens he summons citizens generally to chase down the bad guys. If you've seen a western movie you've seen this in action.

How It Works: This is a less organized version of the 1,000 Man Model. The lawman doesn't organize the people in his area or make sure they are armed. He just calls them out when he needs them and assumes they will come and come armed and with ammunition.

There are actually laws still on the books from this model. In Virginia there are two statutes which are artifacts of this system:

§ 18.2-463. Refusal to aid officer in execution of his office.

If any person on being required by any sheriff or other officer refuse or neglect to assist him: (1) in the execution of his office in a criminal case, (2) in the preservation of the peace, (3) in the apprehending or securing of any person for a breach of the peace, or (4) in any case of escape or rescue, he shall be guilty of a Class 2 misdemeanor.

§ 18.2-464. Failure to obey order of conservator of the peace.

If any person, being required by a conservator of the peace on view of a breach of the peace or other offense to bring before him the offender, refuse or neglect to obey the conservator of the peace, he shall be guilty of a Class 2 misdemeanor; and if the conservator of the peace declare himself or be known to be such to the person so refusing or neglecting, ignorance of his office shall not be pleaded as an excuse.

The first authorizes a lawman to order citizens to help him. The second allows judges and prosecutors to order citizens to go get the criminals and bring them back. Of course, neither is much used in the current era of professional police forces, but they're still on the books.

Difficulties: This has much the same problems of the 1,000 Man Model. It would be difficult getting people to react quickly enough to respond to significant crimes such as robberies or kidnappings. There will be a free rider problem in which a number of people won't respond because of inconvenience or because they perceive the danger to be too great. The lack of training of the individuals responding could make them cause much more damage and harm. Beyond these problems is the probability that without some sort of supervision to make sure they even have firearms many individuals might not have a suitable weapon or adequate ammunition to accomplish the job if they are called upon.

Vigilance Committees

The Idea: These are committees of concerned local citizens who come together to decide who the troublemakers are and how to handle them. These have played a part in US history and in some places are looked upon with a sense of nostalgia. Montana even has the identifying logo of one of these committees on its highway patrols' patch (3-7-77).

How It Works: Historically, these were groups that came together privately, made their decisions as to whom the bad people in their communities were, and then acted as a group to deal with the bad people. In some cases this meant immediately going after the individual as a group, but in some cases (the 3-7-77 group listed above) the group would first give a warning so the bad person could clear town. In the end, the committee would apply violence as a group to affect a solution to the problem. This could have been anything from riding the bad man out of town on a rail, tar and feathering him, or just out and out killing him.

Difficulties: Some people look upon these with a bit of nostalgia, but they are incredibly problematic. One may be a necessity if there are no available lawmen, but it essentially makes the committee both jury and enforcer, thus eliminating any meaningful due process. Additionally, there is no guarantee that the committee will represent a majority or even a large portion of the population. An armed committee can impose its will thru fear and firepower even if it is a small minority. This is the realm of know-nothings and klansmen. If any form of organized law enforcement checked by courts is available this it will almost always be superior to this.


 These are the primary other historical models I've been able to find, although I guess Mob Justice could be another. Personally, I view mob behavior as perhaps vengeance, but not justice or policing. Good luck on choosing a replacement for lawmen.


1 This strikes me as an extremely difficult metric to compose and thus will be a matter of political and social philosophy unless and until there is some sort of a decision based on a serious lack of fiscal resources.

Yes, I'm sure this and the other models offered today are filled with all sorts of historical inaccuracies and lack a nuanced understanding of how things actually worked. I'm talking about models here, not trying to get a PhD in obscure historical matters.

18 August 2020

Virginia: Proposed New Laws: DOA's / Left Overs

A few more bills that don't fit elsewhere and I don't expect a single one of them to pass.

HB5012 - Would allow law enforcement officers to sue a person or group that harms him while he is on the job.

HB5020 - Would allow anyone with a concealed carry permit to carry in locations a locality has stated a firearm cannot be carried.


(1) Would remove from the firearm purchase for the question whether a person was involuntarily detained temporarily and agreed to check into a mental institution voluntarily. 

(2) In a personal sale of a firearm from person to person, the bill would remove the class 1 misdemeanor punishment from the buyer if no background check was done at a firearm store to confirm the buyer can legally posses, but the class 1 misdemeanor remains for the seller.

That seems backward. The seller may be willfully blind, but he's not the one who knows the buyer has a felony conviction.

Virginia: Proposed New Criminal Laws: Administration


SB5027 - Would illegalize police unions.   DOA.

SB5021 - Would forbid police union contracts from having provisions about hiring, firing, or discipline.  Probably DOA.

Public employee unions have only been legal in Virginia for a couple years and they've not yet caught on. They are also the reason pointed at for many of the problems in Northern and Western cities and activists complain they stop rogue officers from being disciplined. Those who favor unions also tend to be those who want stricter controls on police. They will likely bury these bills in committee.


SB5030 - Requires the disciplinary record of any officer involved in any case to be made available to the Commonwealth Attorney.

Presumably this is to make prosecutors check the records and report anything which might be used against the officer to the defense so it can be brought up in front of the judge or jury. That's not practical in reality. Most prosecutors aren't going to check officers' disciplinary records unless there is a reason to believe a particular officer has been disciplined. A probable side effect of this law will be that nothing will be noted in an officer's disciplinary record unless it is so bad that the officer is going to be fired.

SB5038 - Would create Mobile Crisis Co-Response Teams to deal with mental health issues during calls to respond. Mid-Level chance to pass.

This isn't a bad idea per se and extra resources provided to a locality are a good thing as long as expectations are realistic. These programs don't reduce crime, they just provide extra resources for dealing with a situation. They also cost money and that's probably the greatest impediment to this bill. It will either not pass or be passed with insufficient funding and staffing.


SB5014 - Requires crisis intervention team training for officers (training in dealing with those having mental issues). 

Not a bad idea as long as it is not just something imposed on law enforcement and done by repetition and rote every year so that on years 4, 5, 6, and 7 it's substantively the same as it was in year 1 and provides no actual benefit as it gets tuned out.



(1) Bans law enforcement from taking free military equipment being given away by the federal government. 

For years now, the military has been dumping this equipment on police departments who take the gift and then have 5 military vehicles sitting in the back lot rotting away. In general, I'm okay with departments not getting any more of these.

(2) Requires officers to get training in de-escalation techniques. 

Because this isn't happening already? Why do I get the feeling that there are members of the General Assembly who think officers approach every situation immediately shooting from the hip and screaming "Let God sort them out!"

(3) Requires standardized training across Virginia for officers.

(4) Police departments (not sheriffs) can't get state funds if they don't turn in paperwork having to do with tracking biases, engage in biases, or take equipment from the US military.

(5) A law enforcement agency can't hire someone unless it has done a background check on her employment at any other agencies.

 (6) Requires local law enforcement to report to Richmond if an officer is fired or quits because she violated laws or policies. It also requires this if an officer is merely placed on a Brady list.

That last is interesting considering that a prosecutor who maintains a Brady list will now be harming the officers' certification without due process.

SB5035 - Allows localities to adopt Civilian Review Boards to watch over police departments.

I don't have any particular problem with this. Note that it does not apply to sheriffs - probably because they already have a citizen review board (the voters). This brings more democratic accountability to police departments. It would be interesting to see how many mayors and city councils would cede this power to a citizen board.

SB5044 - Sets the time period for investigation of a citizen complaint to that of an outside accreditation agency.

Not sure what the time frame is because the proposed statute doesn't say.

17 August 2020

Virginia: New Proposed Laws: Attorney General Involvement


SB5040 - The bill will allow the Attorney General to participate in prosecutions of officers charged with a homicide if the local prosecutor allows them to.


SB5024 - Allows the AG to investigate claims of law enforcement behavior violating "rights, privileges, or immunities secured or protected by the laws of the United States and the Commonwealth", try to resolve these problems, and sue to enforce against law enforcement agencies.

This is similar to the federal AG intervening in local law enforcement. It will be interesting to see how this plays out intrastate. In a federal context my impression is that the feds swoop in, declare local departments to be in violation of a particular interpretation of the constitution, and rely on the fact that the County of Pitcairn can't possibly stand up to the federal government to force the locality to conform to the interpretation whether or not the courts would support that interpretation. However, the AG may not have that level of intimidation and greater power levels to rely upon.

Virginia: Proposed New Laws: Changes to Court Procedure

SB5030 Unless a judge allows a variance, search warrants would be served during the day after the officers announce their presence and purpose. If the officers do the search at night or without the knock and announce (and do not have judicial approval for the variance) then the evidence is not admissible in court.

SB5013 - Would allow marijuana citations to be prepaid.

SB5033 - (1) Would first define the "good cause shown" needed for a nolle prosequi , but do so in such vague terms that just about anything could be argued to for under it (or against). Wouldn't change much. (2) Would codify the taking of cases under advisement, but would require prosecution agreement. Currently, a judge can do it without approval from a prosecutor and changing that may not be constitutional as Starrs says it is an inherent power of the judge rooted in the constitution.

SB5007 - Beyond the attempt to dismantle jury sentencing mentioned previously this bill contains a couple other provisions:

(1) If a jury hangs and a mistrial is declared the defendant would not be retried on any of the unresolved charges. 

Don't like dynamite charges now? Wait until this goes into effect. Judges won't let jurors go until they resolve everything no matter how deadlocked they think they are. Actually, I don't have a problem with an end being declared at some point, but perhaps it should be after two juries deadlocked so that one rogue juror (or corrupted juror) cannot spike a trial because "the defendant's a Gemini; Gemini would never do this sort of thing; I don't care what the seven nuns testified to." Or, perhaps the judge could ask the numerical breakdown of the deadlock and if more than three are for a not guilty finding declare a permanent mistrial.

(2) Prosecutors would not be able to demand a jury during a declared emergency. As discussed in the last post, this is most likely not constitutional.

SB5043 - Would allow expungement of conviction of (1) under 21 possession of alcohol, marijuana, or tobacco products, (2) under 21 possession of alcohol, or any possession of marijuana or drugs if the charge has been deferred and dismissed under a first offender program, and (3) someone who received a simple pardon unless they've been convicted of a violent crime, drug distribution, and some others.

Nothing particularly troublesome there.

SB5046 - Would eliminate all mandatory minimum sentences.

While the mandatory minimums serve a purpose in some crimes, they did get expanded too far. It's a shame they're taking a nuke 'em all approach instead of trying to address this in a more nuanced manner.

Virginia: Proposed New Laws - Removing Democracy from the Courtroom

SB5007 - This statute would remove juries from sentencing in Virginia unless the defense asks for a jury sentencing. It is probably the most anti-democratic bill of the year, removing one of the best aspects of Virginia's jury system: local democratic participation in choosing a proper sentence reflective of community norms. And why is it being removed? It's a blatant attempt to shift power to defendants at the expense of the People.

The counterargument to this would be that jury sentencing is an impediment to the exercise of the jury right by defendants and often a threat usable by prosecutors because jurors are expected (in some cases required) to sentence higher than a judge and judges rarely reduce a jury sentence even though it is within their power (because a jury sentence is the will of the citizens). This is easily solvable. Have the advisory sentencing guidelines be published to the jury prior to their sentencing deliberations so they have the same parameters to start from as the judge would. Don't inform them of any mandatory sentence a judge could suspend and if they sentence lower than the mandatory have the judge impose the mandatory and suspend all but the jury's sentence. These two steps would make the jurors what they are intended to be, the voice of the citizenry in the courtroom.

The desire to get rid of jury sentencing is elitism writ large. Attorneys don't like it because it is unpredictable. Academic types hate it because it is reflective of the will of the local community rather than what is imposed as a one size fits all solution from outside. Defendants might get a heavy sentence for theft because the community despises theft despite it's relegation to almost a non-crime by legislation and sentencing guidelines. Prosecutors might get a light sentence for a drug distribution (particularly if the fix I suggest above was implemented) because the citizens don't see a problem with buprenorphine. Both sides should be forced to face sentencing juries and if I had my way they would whether the defendant pled guilty or not for all violent and sexual felonies. Trying to suppress it is a failure and anti-democratic.


It also appears that allowing jury sentencing only at the beck and call of the defendant is violative of Virginia's constitution. Jury sentencing has been a part of Virginia law since it abandoned death as the sole punishment for felonies in 1796. Our constitution lays out the situation in which a defendant can be sentenced by a judge:

In criminal cases, the accused may plead guilty. If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record, be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case. Art I sec. 8.

The court is authorized upon a plea of guilty to "try the case." The logical reading of "trying" at that time is the sentencing. This, read in conjunction with the history of Virginia jury trials having jury sentencing as long as the ability to be sentenced to something other than death has existed in Virginia, establishes a strong case that jury sentencing is part of any jury trial herein. Reading further into the language above, juries can only be waived by the defendant with the agreement of the Commonwealth and the judge. Nothing allows the defendant the right to pick and choose those parts of a jury trial she prefers to take place.

16 August 2020

Virginia: Proposed New Laws: Trying to Bring Back the Parole Travesty


Members of the General Assembly want to bring the parole monster back to life.

HB5015 - The mildest of the proposed parole bills, it requires the parole board to contact the victim (not just make an effort) and allows a victim to testify before the parole board virtually.

HB5035 - Would exclude 1st degree murder and sexually violent offenses from eligibility for geriatric parole. Probably DOA.

SB5018 & SB5034 (Elitist~3, Defense~3, Rights~4) - This allows inmates who are "terminally ill" or "permanently physically disabled" to get parole with no requirement that they have served a certain amount of time or be of a certain age. It comes from a good place in that it lets people out who are in a bad way if they can get past the parole board (which will presumably stop bad offenders from getting out). It will also be subject to all sorts of gamesmanship.

SB5016 - Turns parole back on and makes it available to all persons sentenced when it was not available. This is full on taking away sentencing as it was done by the people through juries and as it was promised to the people; we will have been lying to sentencing juries for 20 years because we have told them their sentence would not be subject to parole. It is removing sentencing from the jurors and judges and vesting it in a sentencing bureaucracy.

Parole was abolished in Virginia in 1995. There were good reasons to do this. Not that I want to adopt the old political slogan, but its corollary is true: under the parole system courts lied to victims and citizens. Ten years didn't mean ten years. It meant whatever the parole board decided it meant under guidelines both statutory and self created. I've been told stories from prior to 1995 of defendants getting misdemeanor, non-parole convictions because it was accepted that they would serve more time on them than felonies. There was no final sentencing hearing, only a string of potential end of sentences so that the victims would never have finality and be forced to relive the experience every time the guilty party came back before the parole board. It also creates a perverse incentive for the guilty party to keep contacting the victim in attempts to win her over or to engage in worse activities so that the victim stopped being an obstacle to his freedom. Parole is a bad idea that benefits no one but the guilty and those who want to save money by emptying prisons.

SB5034 - This puts in place a convoluted credit system wiping out most of the sentence for inmates not convicted of violent crimes. In the most likely classification, a person sentenced to five years would serve 17 days per month in the first year (57%), 14 days per month the second year (47%), 10 days per month of the third year (34%), 5 days per month the fourth year (17%), and 15 days per month in the fifth year (50%). Working that out is something of a nightmare, but I think 5 years would be killed with a little over 2.

That's such a bad law, imposing from above a serious cut in sentencing that is contrary to the judge's sentence and/or the democratic will expressed in a jury's sentence, that I have to wonder if it's not an attempt to offer a really, truly horrendous law in order to get the merely very bad parole law passed.

Keep your calculators close folks. If they pass either of these statutes we're all going to become junior accountants as we figure out what has to be imposed to get the actual sentence which should be served. One wonders if the sentencing guidelines, already adjusted to be about where parole would have put someone prior to 1995, will be adjusted upwards to reflect the re-imposition of parole. Logic would dictate that it should.