Change.org's Criminal Justice Blog

Two Million Prisoners' Wasted Potential

Matt Kelley — 2010-02-09T08:53:00-08:00

Nearly two and half million people are locked in our country's prisons and jails. Most of them will someday be freed, only to get locked up again within three years.

In a great Huffington Post piece this week, Alan Elsner reminds us of this fact as he goes inside a New Hampshire state prison for women to take part in a writer's forum with prisoners. What he found there, he writes, was a world of wasted potential and missed opportunities.

Elsner, who has written extensively about the criminal just system, says he was impressed by the women's passion and intelligence, but saddened to think that so many would serve years inside without learning the skills they need to survive once they leave. When they're released, they're starting already lagging in the game.

It's an issue I write about frequently here, but the picture painted by Elsner caught my attention. What if every American had the chance to visit a prison and see what Elsner saw last week? Maybe then we wouldn't stand for three-strike laws and 10-year sentences for nonviolent crimes.

Right now, the best we can hope for is zero growth in prison populations or a slight decline. America's mammoth prison population is not going away overnight. But to break out of the grinding prison cycle we've built, two things desperately need to change. First, we have to address over-sentencing for nonviolent crimes, and the inequalities that keep poor people incarcerated longer than the wealthy. One way to do so is to end the drug war -- after all, at least 300,000 American prisoners are behind bars for drug crimes. Many could be in treatment in the community instead, rebuilding their lives and participating in their neighborhoods.

Even if we were to see a drastic shift today in sentencing and enforcement policy (which will be very slow), though, we also need to change the way we treat our 2.4 millions prisoners, and increase the opportunities we provide for them upon release. Innovative programs like San Quentin's Prison University Project, Texas' Prison Entrepreneurship Program and the Fortune Society's reentry initiatives in New York should be the model -- and not the exception -- for a new generation of prison education and reentry programs.

While President Obama's new budget includes some small dollar amounts for "smart on crime" initiatives and alternatives to incarceration, it includes much more in increased enforcement and prison maintenance. Our priorities are still out of whack.

The prison system is good at sustaining itself -- and recidivism is one way it does so. But as Elsner reminds us, by preparing prisoners for post-release success, we can support those whose potential is currently wasted behind bars, and inspire an overhaul of the system in the process, too.

Photo Credit: g-hat

Japanese Support for the Death Penalty Grows

Matt Kelley — 2010-02-09T06:24:00-08:00

Official support for the death penalty may be waning in Japan, but still, the people don't want to let the policy go.

A new Japanese government survey found that a record 85.6% of Japan's population supports capital punishment for murder. This is a jump of four percentage points from 2004 and, surprisingly, comes at a time when the Japanese death penalty could finally be on its way out.

The current center-left government took power in September, and since then, no executions have been carried out (there are 102 people on death row in Japan). Shortly after Prime Minister Yukio Hatoyama took office, he appointed Keiko Chiba, an outspoken opponent of capital punishment, as the country's top justice minister.

So what's going on? Is the overwhelming public support for capital punishment a reaction to the slowdown in executions?

Survey respondents said they supported capital punishment for just the reasons you'd expect: deterrence and retribution led the list. Like the U.S., Japan is still clinging to capital punishment -- making the two countries the only major industrialized nations in the world that still support the death penalty. Public support for the death penalty in the U.S. has stayed flat at 65 percent (though, as I've recently written, there are cracks hidden in that data) for some time now.

Perhaps as Japan's brand-new jury system matures, the public will become aware that the country's 99% conviction rate and 90% confession rate could be hiding some wrongful convictions. The percentage of people on Japan's death row suffering from mental illness has skyrocketed in recent years as well.

It's time for the death penalty to go, and one by one, the nations of the world have been expressing themselves by abolishing the practice. What makes voters in the U.S. and Japan so different?

Via Sentencing Law & Policy.

Photo Credit: kanjiroushi

Federal Judge Protests Absurd Jailing of Immigrants

Te-Ping Chen — 2010-02-08T15:22:00-08:00

"Neither meritorious nor reasonable" -- not the zingiest barbs out there, but considering they were hurled by a federal judge questioning the actions of U.S. prosecutors, not too milquetoast, either.

In fact, by making those comments, Judge Sam Sparks, of Austin, TX, may have become the first federal district judge to formally protest the growing trend of criminally prosecuting undocumented immigrants. After all, says Sparks, many of the immigrants he sees have committed no major crime, save to try and reside in the United States without permission. So why lock them up (helping fuel a $1.7 billion prison population in the process) at all?

In one case Sparks has faced inside his courtroom, taxpayers paid over $13,350 to jail three Mexican citizens who crossed over the U.S. border without authorization. (And that's not even getting into the costs associated with prosecutors, defense lawyers and court employees.) None of the men had any significant criminal history, Sparks says.

Last year, a Freedom of Information Act request found that out of a U.S. immigrant detainee population of 32,000, nearly 60% had no criminal convictions on their record at all -- not even for low-grade crimes like trespassing or illegal entry.

As far as Austin immigration lawyer Daniel Kowalski knows, Sparks's on-the-record objections, which he filed in an order on Friday, are unique.

Though the build-up in immigrant detentions has been happening for years, what Sparks is protesting is comparatively new. Two years ago, someone without a significant criminal history who tried to cross into the United States without authorization might have been deported, but not prosecuted. Thanks to Operation Streamline, though -- a Bush-era project that aimed to amp up charges against immigration violations in certain border regions -- federal prosecution of immigration violations jumped 14% last year.

Musing on the situation, Sparks got still more heated, calling the vast waste of expenses "simply mind-boggling."

No kidding. It's a pretty bizarre system you decide to punish people for entering the United States by in turn making them stay in the United States, in jail -- and on the taxpayer's dime, as well.

Photo Credit: wonderlane

The Beginning of the End of Marijuana Prohibition

Ethan Nadelmann — 2010-02-08T07:32:00-08:00

Ethan Nadelmann is part of Change.org's Changemakers network, comprised of leading voices for social change. Mr Nadelmann is the founder and executive director of the Drug Policy Alliance.

Even I can't believe the way that the marijuana issue is opening up right now.

There's been steady progress on medical marijuana -- as evidenced by the Obama administration's new guidelines directing federal drug agents not to arrest legitimate patients and suppliers in medical marijuana states. Then there's the recent victories in Maine, New Jersey, Rhode Island and Washington D.C., -- not to mention the medical marijuana bills making progress in numerous other states around the country. Last month's ABC News/Washington Post poll reported a record 81 percent support for medical marijuana. If ballot initiatives could be held in all 50 states, voters would approve it in all but a small handful.

What's even more remarkable is the recent jump in support for taxing and regulating marijuana. I was pleasantly stunned by the Gallup poll late last year finding that support for making marijuana legal jumped from 36% in 2005 to 44% in 2009. Fifty-four percent of Democrats, 53% of people living in the West, and roughly half of Independents and 18-49 year-olds now support making marijuana legal. In the past year, legislative proposals to tax and regulate marijuana have prompted hearings in California, Washington, and New Hampshire -- and California voters will have their say this November at the ballot box.

What does all this mean?

Despite such progress, I don't expect bold leadership from the Obama administration, mostly because presidents rarely provide any sort of leadership on hot-button issues involving cultural conflict, personal behavior and morality. Perhaps the best we can hope for is that Obama expresses concern that 750,000 people are arrested each year for doing exactly the same thing he did as a young man -- possessing a small amount of marijuana.

Still, though, Obama has already made a difference in two critical ways. First, his candid discussion of his own experiences using marijuana set a new standard for honesty. Second, the Department of Justice's new guidelines on medical marijuana opened up significant political and legal space for states to get more deeply involved in regulating the otherwise illicit product. This move took the dialogue around medical marijuana to a new level of seriousness and sophistication, and effectively invited an emerging public conversation about making marijuana legally available for non-medical use.

Neither the administration nor Congress is ready for a serious dialogue on ending marijuana prohibition, though. Congress is even stymied when it comes to medical marijuana -- many elected officials still insist they can't spend their political capital on it. With support for medical marijuana at 81 percent, one has to wonder -- just how popular does something have to be before elected officials are willing to stand up to the vested interests behind the war on drugs?

Since the public is so far ahead of national policymakers, I think the best we can hope for is that the federal government allows change to continue bubbling up from the state and local levels. That's the nature of movements for individual freedom and social justice -- the people lead, elected officials follow grudgingly.

It's only a matter of time before marijuana is taxed, controlled, and regulated in the United States. The tragedy is that in the meantime tens of billions of dollars will be wasted, and millions of people will be harmed by our marijuana laws. It's up to us -- as conscientious members of society who care about science, compassion, health, and human rights -- to make sure that the time comes as soon as possible.

Stay tuned for my next post -- when I'll talk about what you can do to hasten marijuana reform in your own town.

Photo credit: The Rapscallion

Who's Guarding the Roost at Private TX Prisons?

Matt Kelley — 2010-02-08T06:55:00-08:00

At least one Texas private prison is giving away its keys to, well, just about anybody.

Or so one recent inspection at the Coastal Bend Detention Center in Robstown, Texas would suggest. The inspectors found that fully 72% of prison guards had only temporary licenses, meaning they hadn't yet undergone mandatory training and testing.

Not surprisingly, the prison already had a terrible track record. In December, the Texas Commission on Jail Standards classified Coastal Bend as an "at-risk" facility, because guards had erroneously released one prisoner due to a mistaken identity (the prisoner's still at large). Giving "at-risk" status to the facility meant it would remain under intense scrutiny for 90 days, subject to "surprise" inspections. Although the inspections could happen at any time without notice, I put surprise in quotes because prison officials knew they were coming eventually and could have cleaned up some cobwebs.

Temporary jailer licenses are perfectly legal in Texas (though people holding them must complete training and testing within a year). So the prison passed its inspection, and is now on its way to getting off the "at-risk" list. And sure, this inspection is an improvement over a previous one, which found that 24 guards didn't even have temporary licenses. But the results are still disturbing.

In particular, the prison has a history of high guard turnover, meaning it might just be cycling guards in for stints of less than a year to avoid paying licensed guards more. Even if the prison offers its own comprehensive training to new guards, this reliance on a loophole in the licensing laws is troubling.

As the Corpus Christi Caller reports, the Coastal Bend Detention Center is run by Louisiana-based LCS Corrections -- a mom-and-pop private prison operator, at least when compared to the big guys like GEO and CCA.

I've written several times here about serious issues we invite when we turn our prisons over to for-profit operators concerned more about the bottom line than safety or prison conditions. The lawsuits, allegations of misconduct and deaths in custody are too numerous to count. The allegation that LCS Corrections left Coastal Bend under the watch of an untrained workforce isn't new to private prison operators, either.

Late last year, for example, after a prisoner committed suicide in a Texas facility managed by GEO group, Idaho pulled its outsourced prisoners from the facility. When Idaho's director of corrections health care visited the prison, he said it was the worst facility he'd seen. Problems with guard training at the prison were also noted.

LCS may be slowly cleaning up its act -- the lack of guard training isn't the most embarrassing mistake it's made (that honor goes to when its guards happened to free the wrong guy). But with 72% of guards at Coastal Bend lacking certification, there's still a lot of room for improvement.

(Via the excellent blog Private Prison Watch)

Photo Credit: Rennett Stowe

The Uphill Battle Against Racial Profiling

Matt Kelley — 2010-02-06T10:05:00-08:00

It's hard to stamp out racial profiling in law enforcement when you've got lawmakers like U.S. Sen. James Inhofe and New York Assemblyman Dov Hikind running around saying it's a good idea. Inhofe, for one, says he "believe[s] in racial and ethnic profiling." Hikind is more demure, saying he's against the concept, but that it's wholly justified as part of the war on terror.

Some recent numbers should make both lawmakers happy. 'Frisked while brown' is alive and well, at least in New York. The NYPD's 2009 stop-and-frisk statistics should come out soon, but meanwhile, Bob Herbert cited numbers

from the first nine months of the year, and they're appalling. More than 80% of the 450,000 people frisked by the NYPD in the first three quarters of 2009 were black or Latino. Only about six percent of these stops end in arrest.

As I've written before, white people are often more like to be caught with contraband, and the latest numbers show that's also true in New York. Weapons were found on 1.1 percent of the blacks stopped, 1.4 percent of the Hispanics and 1.7 percent of the whites. (Of course, there's a better chance of stopping innocent minorities when you stop mostly minorities, so that might skew the data.)

The Center for Constitutional Rights is suing the NYPD over its stop-and-frisk policies, and the department has been turning over vast troves of data that should reveal a lot about department policy and practice on these issues. Similarly, a Maryland court ordered the Baltimore Police to turn over 10,000 documents to the NAACP, which is seeking to documents in order to check whether police are living up their promise to investigate allegations of profiling.

There's a little progress here. Right? Well, at least police who send racial slurs in emails are being held accountable. A Boston Police officer who sent an ugly email after the Skip Gates incident last summer was fired yesterday.

But let's not get carried away. Columnist Ruben Navarrette, Jr., allowed himself to hope for a moment that President Obama would condemn racial profiling in his State of the Union address. That may be a stretch.

Obama did say after the Gates incident that "racial profiling still haunts us" -- but then he took it back.

In the meantime, as we face support for racial profiling from folks like Inhofe and Hikind (ostensibly to thwart terrorism), the best tack for reform in law enforcement is being taken by the CCR and NAACP. They're holding individual departments accountable for their promises not to allow racial profiling. The data speaks volumes, and chasing the data is the right move -- even if it takes a lawsuit.

Photo Credit: Diego Cupolo

NYC Cops Take a Stand Against Doodling

Te-Ping Chen — 2010-02-05T15:43:00-08:00

New York is the "safest big city in America," as Mayor Bloomberg would repeatedly have you know. So he must be feeling pretty gratified now that cops have finally been able to start going after those last low-grade perpetrators left in the mix: middle-school students.

Or something like that. This week, they decided to haul a 12-year-old girl in Queens out of her school in handcuffs and detain her. Why? Well, they had to rush the classroom because, you see, a girl named Alexa Gonzalez was...doodling in class.

Just some bizarre extension of the Broken Windows theory? Let one kid doodle, and before you know it, they'll be rioting in the streets?

But hey, let's be fair. It could've gotten ugly there. "I love my friends Abby and Faith," the suspect had written on her desk, with a lime-green Magic Marker. And that was even before she added, "Lex was here, 2/1/10" -- and drew a smiley face.

So glad the cops were there to keep that scene under control. It was kind of like the time that the NYPD saved a classroom from 5-year-old Dennis Rivera, who threw a temper tantrum in front of other kindergarteners. (Remember? The police handcuffed him and sent him to a psych ward.) Or that 11-year-old also caught doodling on her desk in erasable ink (who the police likewise cuffed and perp-walked down to the precinct). Those New York City kids sure can be tough. So tough, in fact, that they require the nation's fifth-largest police force to keep them in check.

That's right. Since 1998, when the New York Police Department took control of NYC's public school safety, over 5,000 officers have been assigned to the city's schools. That's more than the total number of police assigned to patrol the nation's capitol. Or Baltimore. Or Las Vegas. Or Dallas. Or Boston. Even though school enrollment in New York City is the lowest it's been in a decade. Even though in-school crime had been dropping prior to 1998. But NYC kids are just that scary -- you know, what with their crayons and Magic Markers and all. You never know what surface they'll write on next.

Photo Credit: wokka

Stop TX From Executing Another Innocent Man

Matt Kelley — 2010-02-05T07:00:00-08:00

In less than three weeks, Hank Skinner is scheduled to be executed in Texas for three murders he says he didn't commit. Despite the existence of untested DNA evidence that could prove him innocent or confirm his guilt, the state is seeking to go forward with his lethal injection on Feb. 24.

Even by the standards of our most execution-happy state, it's unacceptable that officials would put a prisoner to death while ignoring scientific evidence that could prove him innocent.

The case for Skinner's innocence is by no means certain. On the other hand, the case for DNA testing is clear.

Skinner admits he was in his house when his girlfriend and her two sons were killed, and he was found hours later by police at an ex-girlfriend's house with the victims' blood on his clothes and a gash in his hand. But there's an alternate suspect that exists, as well as evidence that hasn't yet been tested. A reasonable observer could raise doubt over his case, and scientific evidence can offer finality. Texas should conduct these tests before it carries out a punishment it can't reverse.

Send a letter right now to the Texas Board of Pardons and Paroles supporting Skinner's clemency petition so he can continue to seek DNA testing in the case.

Send a letter right now to Gov. Rick Perry, urging him to stay Skinner's execution so DNA testing can be conducted.

Students working with Professor David Protess at Northwestern's Medill School of Journalism have investigated the case for a decade -- turning up critical evidence calling Skinner's conviction into doubt. As well, a two-part story in the Texas Tribune last week further raised questions about Skinner's case.

If there's one thing I've learned in my experience of working on wrongful conviction cases, it's the futility of trying to predict the cases in which DNA will exonerate a prisoner. Sometimes it's the defendants who seem most guilty who are proven innocent -- after all, that's often how they were convicted.

Texas Governor Rick Perry already has the execution of an innocent man on his hands. In 2004, he refused to stop the killing of Cameron Todd Willingham, despite the state's possession of powerful proof that Willingham was convicted based on faulty arson evidence. In the years since Willingham's execution, evidence of his innocence has grown stronger -- culminating with a comprehensive New Yorker story last August that dismantled every shred of the case against Willingham. The Willingham case provides even more reason for Perry the state to stay Skinner's execution.

It's not right to rush to execution when better evidence is available. Write to the Board of Pardons and Paroles here to help ensure that evidence is tested in Skinner's case before Texas makes another mistake.

Perry should know that even in Texas, it's not right to rush to execution when better evidence is available. Write to Perry here to help ensure that evidence is tested in Skinner's case before Texas makes another mistake.

UPDATE: Per the request below from Skinner's family, we have changed the focus of this action from the Governor to the Board of Pardons and Paroles. We will post additional information as we have it.

(Full disclosure, I went to Northwestern and worked with the Medill Innocence Project in 2001. I didn't work on the Skinner case. At the risk of being repetitive: views expressed here are mine alone and don't represent any organization.)

Photo Credit: brew ha ha

Obama's Latest Nominee on Medical Marijuana: WTF?

Andrew Marantz — 2010-02-04T15:58:00-08:00

Dear Obama,

WTF, dude? I thought we had an understanding. I've been defending you to all my lefty friends; every time they start in with "He's not doing enough on Burma" or "He's weak on gay rights," I say, "Look, he has a master plan. Be patient." Then you go and nominate Michele Leonhart to be head of the DEA? What gives? How am I supposed to defend that??

Leonhart is a Bush appointee who opposes the decriminalization of medical marijuana. In 1989, being against medical marijuana would have been an unfortunate but understandable position. In 2010, it is no longer acceptable. We know pot is safe and has medical benefits. We've been over all this a million times. The list of people who support medical marijuana decriminalization includes 80% of Americans (aka your constituents), a vast majority of Democrats (aka the people who voted you into office), and a presidential candidate named Barack Obama. I can only think of two explanations for this. One: you might be trying to pick someone Republicans will like, in order to have an easy confirmation hearing. I know you just went through a nail-biter with Bernanke and it would be nice to cruise through a confirmation hearing for a change. But guess what? THE REPUBLICANS DON'T LIKE ANYTHING. Correction: they like the opposite of what you do. So stop pandering to them, OK? Pander to us for a change.

The second explanation is that maybe you just aren't as liberal as we hoped you were. In fact, I know you're not. In fairness to you, you never really claimed to be. You warned in your book that you serve as "a blank screen on which people of vastly different political stripes project their own views." And as I wrote in my last post, I know you want to play to the center and be a New Democrat, and I do think that's admirable. But dude, holding back medical marijuana? That's not being a New Democrat; that's being an old Republican.

Yours Sincerely,

Andrew Marantz

250 Exonerated Prisoners Are Just the Tip of the Iceberg

Matt Kelley — 2010-02-04T15:04:00-08:00

Today in Rochester, New York, a man named Freddie Peacock became the 250th prisoner exonerated through DNA testing in U.S. history. He served five years in prison for a crime he didn't commit before he was released on parole in 1982. Remarkably, he continued as a free man for 28 years to fight for his own exoneration -- finally winning it today when a New York judge tossed out his conviction.

This is a happy day for Peacock, and onewhich we should celebrate. But it also marks a somber fact. Collectively, the 250th people that have been freed through DNA testing have served more than 3,000 combined years in prison for crimes they didn’t commit -- and what's more, they represent just the tip of the iceberg. Today, thousands of innocent people remain behind bars, many with little hope of proving the truth.

It will take concerted action from a mobilized public to ensure that we don’t allow these injustices to continue. That Freddie Peacock was convicted based on a misidentification and a false confession in 1976 is a travesty, but the fact that convictions like his continue to happen in 2010 is even worse.

The Innocence Project, which represents Peacock (and where I work when I’m not blogging here) launched a tool today to send a letter to the editor of your local newspaper calling for reforms to prevent wrongful convictions. Please take a moment to share your thoughts here -- you can help amplify the call for criminal justice reform to prevent wrongful convictions.

I mentioned above that a false confession played a role in Peacock's wrongful conviction. It's a common factor -- involved in more than one in four wrongful convictiions later overturned through DNA -- and, like most issues, it can be minimized through reform. To prevent false confessions, we need to videotape every minute of police interrogations, starting even before arrest. It's the only way to keep an accurate record of a confession or denial, and it doesn't only protect defendants, it helps police, too.

Many trials hinge on police testifying about what happened in an interrogation room. I'm inclined to believe that more often than not, the police officer is telling the truth. But a videotape can prove this to a jury, removing doubt raised by a defendant who claims to be abused or misquoted.

Certain populations are more susceptible to false confession than others, including children and people with mental illnesses. Peacock has dealt for years with mental illness, and he told interrogating officers that he'd been hospitalized for mental problems. Despite this, officers said he allegedly confessed, and the evidence was used against him at trial.

It's a momentous day for Freddie Peacock, but it's up to us to make sure the injustice he suffered doesn't continue unchecked. Send a letter to your local editors today to support reforms that can help, such as recording interrogations in your state.

Views expressed here are Matt's alone and don’t represent the Innocence Project or anybody else.

Photo Credit: Innocence Project

The Police Discover Social Media

Matt Kelley — 2010-02-04T09:41:00-08:00

Jimmy McNulty, meet Facebook.

For decades, police have relied on informants, investigation and intuition to dismantle criminal networks. We have pictures in our heads of detectives like the Wire’s Detective McNulty tackling particularly complicated family crime empires with photos tacked to bulletin boards. Now, they have social networks to build these webs for them, too.

An Associated Press story this week does a good job examining the impact of social media on crime and policing. Cops and prosecutors are increasingly using Facebook wall posts, MySpace pages and YouTube videos to trace criminal connections and gang membership. Meanwhile, statements made on social websites are increasingly being used as evidence in court.

"You find out about people you never would have known about before," says Dean Johnston with the California Bureau of Narcotics Enforcement, which helps police investigate gangs. "You build this little tree of people."

Of course, social networks won’t replace investigations, but police are smart to use them as a tool. If a thief is stupid enough to log into Facebook from the house he’s burglarizing, he deserves to get caught. When a gang member brags about committing a violent crime, it should spark an investigation.

Two concerns spring to mind, however.

One is the potential for wrongful accusation. Anybody who uses Twitter, Facebook, MySpace or any number of other social sites knows that most of what goes on there is just ... talk. It's easy to imagine a teenager bragging about a crime on MySpace that they didn't commit, claiming imaginary gang membership or pointing blame falsely and recklessly. It's easy to talk on the web, and though police and courts should consider conversations on Facebook walls to be evidence, they should take digital claims and confessions with a grain of salt.

Another concern is the chilling effect on speech that police monitoring of social networks could have, and the temptation judges will face to deny suspects and parolees access to the Internet. I wrote about this issue last year, after a British judge ruled that alleged gang members couldn't appear together in photos. Others have been denied access to MySpace and additional pages entirely.

While denying access to certain websites may sometimes be necessary, we need to be careful of the limitations we put on communication because of threats and chatter on the web. Like judges who deny convicted sex offenders access to the Internet, we need to ensure that these restrictions don't go too far, hurting a parolee's job chances or socialization by blocking the chance to use powerful communication tools.

Social media has become a valuable tool for police, but any evidence obtained through those methods should also carry an asterisk.

Photo Credit: mistersnappy

Is Justice Served by Freeing the Guilty? A Liberal's Dilemma

Colin Starger — 2010-02-04T06:49:00-08:00

It's impossible to feel sorry for Paul Robinson, the California man whose rape conviction was upheld by the California Supreme Court late last month. But it's still possible to fear the precedent the court set in his case, People v. Robinson. Under this precedent, California law enforcement officials can now sidestep statutes of limitations aimed at preventing stale prosecutions of old crimes, simply by issuing warrants against "John Doe" DNA profiles recovered from crime-scene evidence.

I can see how in individual cases, skirting these statutes through DNA database technology may seem fair. But in the long run, it's a Big Brother move that erodes justice.

By invoking Big Brother, I don't mean to suggest evil design on the part of law enforcement. I actually trust that prosecutors had good intentions when they filed felony charges against "John Doe" -- the unknown attacker who raped Deborah L in August 1994. In the August 2000 indictment, John Doe was identified only as the owner the male DNA found in semen from Deborah L's rape kit. Had charges not been filed against someone when they were, California's six-year statute of limitations for rape would have prevented prosecution of anyone for the horrible crime. As it happened, a "cold hit" in the DNA database subsequently linked Robinson to Deborah L's rape. Accordingly, he was convicted, and sentenced to 65 years in prison.

On appeal, Robinson argued that filing charges against a DNA profile was an unfair way to dodge the statute of limitations. Though the California Supreme Court disagreed, one justice, Carlos Moreno, offered a dissent that eloquently confronts the liberal dilemma Robinson's case poses.

To begin with, Moreno admits that in Robinson's case, justice was in some ways served. As he writes, Robinson was "guilty of heinous crimes," and deserved his punishment. The problem is that the rule will apply to all crimes in which any DNA is recovered -- not just from semen in rape cases. In other words, this John Doe gambit could keep prosecutions open indefinitely for any case in which a suspect potentially left hairs, blood, saliva, or sweat at the scene. To take the scenario further, prosecutions could be secured for car theft or burglary 20 or 30 years after the incident -- simply on the strength of stray DNA evidence.

Not all crimes have statutes of limitations -- murder is the most prominent example. But where they exist, limitations periods serve as bastions against prosecutions made unreliable by the passage of time (memories fade). Perhaps more importantly, limitation periods also force us to move on as a society; to look forward towards improving the future instead of constantly reliving the horrors of the past. As Justice Moreno noted in his dissent, to vindicate these deeper notions of justice, sometimes a society has to content itself with the basic principle inherent in all statutes of limitations -- that sometimes, a guilty person will get away.

Catching every bad guy -- and meting out punishment, no matter how overdue -- is a natural law-and-order fantasy. And these days, DNA database technology makes that dream more possible than ever. After all, DNA databases promise a world where unflinchingly accurate identifications means we don't ever need to forget who has wronged whom. All we need are bigger and bigger databases, and more and more DNA surveillance. Yet I worry this accuracy could damage the liberal idea that justice is more than just an eye for an eye. All this power to never forget could eventually destroy our ability to forgive. That's when the law-and-order fantasy starts to look a lot more like a Big Brother-style nightmare.

Photo Credit: Kravera

For Criminal Justice Reformers, Courts Are Key

Chris Cassidy — 2010-02-03T14:52:00-08:00

This week, the Third Circuit Court of Appeals opened the door for Delaware to resume inmate executions, and Attorney General Beau Biden immediately heralded the opportunity to "schedule executions as appropriate."

It's a disappointing development, but also one with a lesson in it. For too long, the progressive community and its reform-minded allies have lagged behind conservatives in understanding the judiciary's importance, and it's time that attitude changed.

As unsatisfying as this decision may be, the fault here really lies with the Supreme Court, which has bound lower courts with its misinterpretation of the Eighth Amendment. In its decision, the unanimous three-judge panel voiced serious concerns about what they called Delaware's "occasional blitheness" in its application of a three-drug protocol to execute prisoners. The court also chastened Delaware to respect its "moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

Over the past 40 years, the Supreme Court has waffled on the death penalty's constitutionality, but recent decisions have backed the idea that capital punishment is neither cruel nor unusual, and permissible under the Eighth Amendment. In 1972, the Court initiated a moratorium on the death penalty, but justices got rid of it just four years later. In 2008, the Court upheld the three-drug lethal injection protocol employed by almost three dozen states, in a highly splintered decision (in which seven out of nine justices wrote their own opinion).

Since then, states have resumed capital punishment with varying degrees of attention to protocol and adequate training for executioners. In too many instances, carelessness has resulted in botched executions. In the words of the late Justice Harry Blackmun, justices continue to "tinker with the machinery of death."

Why do the majority of justices support capital punishment? Because dumb-on-crime tough-on-crime conservatives have dominated the debate over the judiciary's role for a generation. Since the 1968 presidential campaign, conservatives have placed the courts among their top priorities. On the other hand, progressives fail to match conservatives' fevered pitch on the issue, resulting in a lop-sided political landscape that makes confirmation of even left-leaning judges a tough sell -- let alone progressive titans that can match wits with the likes of Justice Antonin Scalia.

The courts matter. Conservatives know this, and have taken advantage of progressive inaction to hijack one of our three branches of government. With rumors swirling around the possibility of a pending vacancy on the Supreme Court, progressives need to get their act together to force confirmation of a justice faithful to the language and spirit of the Constitution.

Photo Credit: ken mccown

No Grisham in Prison? Reverse TX's Absurd Book Ban

Matt Kelley — 2010-02-03T06:15:00-08:00

The list of books banned by Texas prison in recent years looks like the bookshelf of a dangerous counterculture, and it’s easy to understand why Texas prison officials decided to deny access to some of these fiery tomes.

Or -- wait. What are we talking about here? Books like the incendiary screeds of underground author…. John Grisham? The dangerous words of Alice Walker? John Updike?

And there are dirty pictures on the no-read list, too. Books on Leonardo da Vinci, Botticelli, Picasso and Michelangelo aren’t allowed in Texas prisons.

What could possibly be the danger of a John Grisham book? Perhaps prisoners will be inspired to hatch a complex and diabolical scheme involving a colorful cast of characters rigging a jury or winning a civil lawsuit.

That’s probably it.

The Austin American-Statesman reported on Texas' ridiculous and overreaching book bans on Sunday, finding through a public information request that prison officials in the state had reviewed 89,795 titles over the years and censored at least 5,000 of them. The system is fairly arbitrary -- prison mailroom staff look for offensive images and make the decision on the spot. Prisoners can appeal to state officials, but it's tough to argue on behalf of a book you can't see.

This is an unacceptable abuse of power by prison officials who are refusing to consider the interests of more than 150,000 prisoners. Access to books and educational resources is critical to the success of prisoners after release, and by denying inmates books, Texas is simply perpetuating its sprawling prison system.

Pete Brook wrote about this issue a few months ago, pointing to Texas' refusal of two books on the prison system: Women Behind Bars: The Crisis of Women in the U.S. Prison System, by journalist Silja J.A. Talvi and Perpetual Prisoner Machine: How America Profits from Crime, by Joel Dyer.

More than 500 Change.org community members have written to Texas Department of Criminal Justice Director Brad Livingston, urging him to reverse the department's decision on these two books. By focusing on these two important books, we can show Texas leaders that these decisions have an impact and shouldn't be made lightly.

Take action today.

Photo Credit: Justin Baeder

When Compromise Goes Too Far: Why the 9/11 Trial Matters

Andrew Marantz — 2010-02-02T09:13:00-08:00

Looks like 9/11 suspect Khalid Sheikh Mohammed (pictured here modeling the world's least flattering neckline) will not be tried in Manhattan. Yesterday, Chris Cassidy argued that this wasn't such a big deal. But I'm worried -- partly because courthouses are important symbols, and partly because this is one more in a string of capitulations by the Obama administration.

All terrorists -- sorry, alleged terrorists -- should be tried in criminal court. The good reasons for this have been expounded many times by folks more eloquent than myself. Despite reactionary rants that a due process trial would somehow allow Khalid Sheikh Mohammed to slip out a window and kill us all in our sleep, no one really thinks KSM will get off on the Twinkie defense. He's going away for a long time. Still, how we convict him is of great symbolic importance -- and "symbolic," here, should by no means undercut "importance." After all, perhaps the most important function of criminal justice is its symbolic power -- retribution, reconciliation, catharsis. But that's a deeper discussion than we have time for.

A KSM trial in the Lower Manhattan Southern District courthouse would have sent a lot of the right messages. But Mayor Mike Bloomberg revoked his support, claiming courthouse security would cost too much, and once again, the Obama administration has shied away from political conflict and is now scrambling to find another venue.

My knee-jerk impulse was to call this cowardly. But I will heed Obama's call and refrain from oversimplification. I do understand the argument against a Manhattan trial; the area would have to be secured, after all, and if that would really cost $250 million per year, that does sound like an impractical use of resources.

Still, it seems like the Obama administration is falling into a worrisome pattern: stake out controversial position, receive political fire, defend position at first, take more fire, then retract and run for cover.

First Obama defended Van Jones against Glenn Beck's schizophrenic rants; then Jones got canned. First Obama defended his decision to close Guantanamo within his first year; then he, uh, forgot to do that. First Obama made a big stink about rolling back Bush-era CIA tactics; then, while outlawing waterboarding, he kept extraordinary rendition. A health care plan without a public option; a stimulus bill that was one-third tax cuts; an indefinitely delayed agenda on gay rights -- all of these have been casualties of compromise.

Now, let me clarify a few things. First: I understand that politics is the art of compromise, and I know my side is not going to win every debate. Second: I do not think "flip-flopping" is a weakness; changing one's mind is, in fact, a mark of intelligence. Third: I am not, nor have I ever been, an Obama hater. I still wear the rhinestone-studded Obama hat that I bought at inauguration. While I understand the temptation to be cynical about Obama, or to dismay that he hasn't done more, ultimately I think those reactions are facile and unproductive.

And yet I wonder if Obama isn't sometimes too diplomatic. It's great that he wants to be bipartisan; but it doesn't seem like anyone else in Washington shares that desire. It's great that he wants to avoid distracting political fights; but at what point is he going to meet a fight he's ready to take on? He doesn't want to insist on a terror trial in Manhattan because it will squander much-needed political capital. Fine. But at a certain point he'll have to insist on something. I hate to say it, but it kind of makes you miss The Decider. What he did was terrible, but he sure did it quickly.

Obama keeps saying he wants to change the tone in Washington, and in my heart of hearts I hope he succeeds. His command performance at the Republican Q&A last week was a step in the right direction. Still, even if he can win the hearts and minds of Republicans, can he win their votes? As Obama himself pointed out several times at the Q&A, the Republican opposition to everything is not about policy but about grandstanding for reelection. In order to counter that thick Machiavellian fog, Obama might have to get off his pedestal and get a little Machiavellian himself. I want Obama to change the tone in Washington. Really, I do. But you know what I want more than that? Affordable health care.

Photo Credit: an agent

Don't Deny Census Jobs to Former Prisoners

Matt Kelley — 2010-02-02T07:43:00-08:00

The U.S. Census Bureau will provide temporary employment for thousands of Americans this year, but if one Congressman gets his way, people with criminal convictions need not apply.

We’ve reported here in recent weeks about the devastating effect the census has on poor communities and inner cities -- for example, by counting prisoners where they’re incarcerated rather than where they’re from. The census also misses millions of hard-to-count, usually poor individuals, which means struggling neighborhoods are denied their fair share of federal and state resources.

What’s more, the census offers thousands of good temporary jobs -- but most don't go to people with records. The Washington Post reports that thousands of former prisoners in D.C. and beyond are taking tests to be census takers or clerks. But while census rules on criminal records are vague, it’s clear that most with felony charges on their record won’t get a callback.

Experts in post-release parole and employment tell the Post that background checks would be sufficient to weed out dangerous criminals from the census, while still allowing those with old non-violent convictions a chance at the job. But Utah Rep. Jason Chaffetz (above left) doesn’t see it that way. He introduced a bill in January that would prohibit anyone charged with or convicted of a crime from serving as a census taker. Chaffetz got fired up about this issue after an error in background checks allowed people with serious criminal records to be hired last year. Now, though, his overreaction could mean a missed opportunity for good post-release jobs.

"I don't want a convicted felon going to knock on Grandma's door," Chaffetz said. "With unemployment as high as it is, there are plenty of people who don't have criminal backgrounds who we can better trust to gather this personal, sensitive information."

That’s the spirit, Chaffey. Think about it. Every year, we release 700,000 people from prison. Denying them opportunities is a surefire way to make sure they get locked up again (incidentally, on taxpayers like Grandma's dime).

Send Chaffetz an email today urging him to withdraw his bill and support second chances for people convicted of non-violent crimes, or people who have proven over a period of years that they've changed. Bills like this send the wrong message, so it's on us to send Chaffetz the right one.

Herbert Wood, a 41-year-old man who spent eight years in prison for running a chop shop, described to the Post his difficulties in seeking a second chance.

"I fill out a lot of applications," Wood said. "I go to all the job sites. When I tell them I've got a record, I can see the change in their facial expressions. I go in with hope, and I lose it."

The census does enough damage to inner-city communities without also denying job opportunities to the formerly incarcerated in a disasterous economy. Take action today: tell Chaffetz why his bill is a mistake.

How the Bail Bond Lobby Keeps Our Jails Packed

Matt Kelley — 2010-02-02T07:09:00-08:00

More than half a million people will sleep in jails across the U.S. tonight, most of them facing charges for non-violent crimes, and most of them poor. They’re spending months behind bars because they can’t afford bail, and a powerful bail bond lobby is largely responsible for keeping them there.

A groundbreaking three-part story on NPR last week looked into our country’s uniquely backwards bail system, which -- like our prison system -- locks people up not only to preserve public safety, but also to maintain private profit. Counties and states will spend $9 billion on pre-trial detention this year, and countless lives will be disrupted or destroyed by long, unnecessary stays in jail.

As Megan Greenwell wrote on Change.org’s Poverty in America blog this week, the defendants caught in this trap are overwhelmingly poor. NPR, for example, leads its reporting with the story of a Texas man who spent six months in jail because he couldn’t afford bail or even the bond deposit. He was eventually forced to accept a felony conviction, which lost him a chance at a job when he got out. The cycle continues -- but it doesn’t have to be this way.

The problem rests mainly with the powerful bail bond lobby -- a business that earns safe profits by collecting non-refundable deposits (bond) from families and friends of poor defendants in exchange for putting up bail. When the defendant shows up for trial, the bond company recoups its money, but keeps the deposit. Even if the defendant doesn’t show up, the bond company usually comes out ahead, because the state only charges a fraction of the bail.

The better alternative to packed jails are pre-trial release programs, which allow the release and monitoring of defendants before their hearings -- at a fraction of the cost of detention in jail. But bail bonds companies have successfully lobbied county officials across the country to gut pre-trial release programs in order to protect their predatory business.

When NPR’s Laura Sullivan asked bail bondsmen about their lobbying efforts, they didn't mince words.

“We take care of the people who take care of us,” one told her.

‘We're tenacious; we do our job," another says. "People should not just be released from jail and get a free ride. I mean, this is the way the system's got to work."

It’s a problem similar to the private prison companies that lobby governments for longer sentences, three-strikes laws and expanded immigration detention. These shadowy dealings cost taxpayers literally billions, and cost defendants their livelihoods, homes and families -- all for the profit of a few.

Photo Credit: Jackson West

Criminalizing Sexting

Matt Kelley — 2010-02-01T10:59:00-08:00

Last week, two Indiana middle school students were caught sending each other nude images of themselves via text message. In a crazy illustration of how sex offender registries can do more harm than good, the kids were actually charged with child exploitation and possession of child pornography. And if juvenile courts go forward with these felony charges, these 12- and 13-year-olds could both be registering as sex offenders for years.

This overreaction is a perfect example of how sex offender registries have grown out of control. These charges aren't just a question of teaching the kids a lesson, but instead are also likely to destroy their opportunities for a long time.

The prosecutor in the Indiana case said he understands that this case likely sprung from a mutual youthful curiosity, but that county pressed charges because "sexting" can lead to images spreading quickly on the web.

"I think there has always been a sort of, you show me yours and I'll show you mine, and a curiosity there," Porter County, Ind., Prosecutor Brian Gensel said. "The problem now is the stakes are so much higher because if a juvenile sends a picture of themselves to someone else, well, that can be disseminated now to the entire world within minutes."

He's right that sending these images digitally is a potentially dangerous mistake and a growing problem. A recent Pew Center study found that 4% of children between ages 12 and 17 admitted to sending nude or nearly nude images, and 15% say that they've received them.

Prosecutors in this case made a grievous error, however, in charging the tweens with felonies. Curious kids going through puberty shouldn't be criminalized. That line should be drawn as soon as an intent to distribute can be determined. From the basic facts we have, it doesn't seem that this boy and girl are guilty of 'child exploitation.'

Sexting charges like this are similar to the "Romeo and Juliet" statutory rape charges that have placed so many teens on sex offender registries across the country. These cases dilute any power the registry might have in warning communities about people who are actually dangerous, and it destroys lives for no reason. In recent years, sex offender hysteria has lowered the average age of registries by including thousands of kids for crimes like sexting.

Sexting is a serious problem, but criminalizing kids isn't the way to solve it.

Via @radleybalko

Photo Credit: Cyrillicus

Social Media's Impact on Crime and Injustice

Matt Kelley — 2010-02-01T08:37:00-08:00

In a recent post, I asked whether keeping a running Twitter feed of arrests that occur was a good idea for one town's public safety. The post sparked some lively comments, including from those concerned that publicizing arrests punishes people who should be presumed innocent -- a position I certainly understand. After all, Twitter could become a nonstop new TV news, sensationalizing crime and convicting people in the court of public opinion.

But open data is critical to fighting unjust arrests and holding government accountable. And if we want transparency, we have to accept that openness cuts both ways.

Some put too much faith in the power of openness, wondering if Twitter and other social media tools might actually act as a crime deterrent. For example, Lauri Stevens wrote recently at ConnectedCOPS.net that social media "will have a direct affect on lowering crime" because criminal will realize that "the jig is up" and will "smarten up."

But that's a thin argument.

Public shaming may work to deter some crimes, like solicitation of prostitution, but I doubt Twitter will have any impact on people driving under the influence or violent crime. People committing these crimes aren't planning to get caught, and they're hardly doing a cost-benefit analysis before getting behind the wheel or punching someone in the face. The threat of Twitter just doesn't play into the equation.

Still, though, there are some tangible ways social media can make us safer and help us fight injustice. Online social tools help us build stronger communities and give us the opportunity to pool resources to support improved law enforcement where it’s necessary, and to fight injustice wherever it pops up. These transformations will rely on law enforcement agencies and courts to provide open, accessible data online.

For example, web and social media tools have been critical in raising awareness in wrongful conviction cases like the West Memphis 3 (though even a worldwide movement to free these three defendants has yet to produce results). Campaigns to hold police departments and prosecutors accountable for abuses of power have also thrived on the web. YouTube is a repository of police brutality videos, and law enforcement agencies are forced to swiftly respond to allegations, now that web-based videos documenting transgressions can spread like lightning.

In Oakland, CA, it's doubtful that the Oscar Grant case would have been taken as seriously without the use of social tools that amplified advocates’ calls for justice. The San Jose police department has also recognized the power of such media, and is supporting wearable cameras for its officers, following several highly public incidents involving the officer use of force.

Social media and new communications technologies will undoubtedly help us fight injustice in the long term. Open records and real-time data may be a double-edged sword, but sunlight is preferable to secrecy.

Why is the Media Panicking About the 9/11 Trial?

Chris Cassidy — 2010-01-31T15:53:00-08:00

It turns out that the trial of Khalid Shaikh Mohammed and other 9/11 conspirators will not be held in lower Manhattan. And now, the mainstream media seems dead set on making us believe that, somehow, this development is a setback for the rule of law. It's enough to make your head hurt.

Last week, Mayor Michael Bloomberg initiated a domino effect by rescinding his prior support for having the trial take place in a New York courthouse once overshadowed by the Twin Towers. With recent cost estimates for the trial's security reaching up to $1 billion, and growing concerns about the disruption it would cause residents, Bloomberg's change of heart is hardly unreasonable or disappointing. His suggestion that the trial be moved to a cheaper, less disruptive venue makes sense, given his constituents' increasingly vocal concerns.

By contrast, though, the reaction of the mainstream media -- who rushed to transform the development from a mole hill to a mountain -- was disappointing.

Several sources over-sensationalized the development. Politico, for instance, characterized the likely change of venue as a "dramatic shift." This description of the "shift," though, is the only thing "dramatic" about it, as I'll explain.

Many news reports jumped to questions about whether the trial would even occur, suggesting that shift in the trial's location made it uncertain if it would even take place at all. First reports, like this Financial Times story, almost uniformly framed the possibility of the trial's relocation as a blow to the Obama administration's attempts to bring the 9/11 terrorists to justice. Only thorough readers (after wading through an overblown narrative about the fabricated controversy) would have seen the final paragraph, which explained a number of courthouses are actually available for trying 9/11 conspirators.

In fact, the Attorney General has several options for where to try these terrorists. In the Southern District of New York alone -- the initial jurisdiction considered, which includes Manhattan -- the administration may select from Governors Island, West Point Military Academy or Stewart Air National Guard Base in nearby Newburgh, NY. Other districts where the 9/11 attacks inflicted harm may also have jurisdiction, including the Eastern District of Virginia, home to the Pentagon, and the Western District of Pennsylvania, where heroes grounded United Flight 93.

Why the mainstream media was so eager to invent a controversy where one did not exist may seem puzzling -- that is, until you consider the consistent barrage they suffer from torture apologists who continue to zealously challenge having domestic trials occur for Guantanamo detainees at all. Ah ha. That might explain it.

Photo Credit: davehat