Over at Vox.com, Dara Lind has posted the shocking “One chart that puts mass incarceration in historical context.” Lind painstakingly sifted through Bureau of Justice Statistics reports to create a graph of U.S. prisoners per 100,000 of population, from 1880 to 2013. Focusing on those sentenced to prison (i.e., for more...
NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk...
A lot of the law is extremely formulaic. True, human intelligence is required to spot issues, devise strategies, and (most importantly) persuade decisionmakers. But in its actual application, the law is often little more than a series of IF-THEN decisions. A computer could be programmed to do it. This is...
The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being...
Or maybe not… For some reason, common wisdom would have it that crime should go up when the economy is going down. Violent crime in particular. Apparently, the thinking is that less prosperity leads to increased frustration and desperation, leading to more beatings killings muggings and rapes. As if the...
Wanda: What would an intellectual do? What would… Plato do? Otto: Apol- Wanda: Pardon me? Otto: Apollgzz. Wanda: What? Otto: Apologize! Well, no. He probably wouldn’t. Not Plato. And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution...
Looks like there’s going to be more work for defense lawyers, and that’s a real shame. Hey, we like working as much as the next guy, but we’d rather have a lower crime rate. After Obama’s little press conference yesterday, though, we can’t help but think that the crime rate...
The short answer is yes. Yes, it is. One of the lovely ironies of criminal defense is that most of the things we fight for are conservative values — individual liberties, constitutional rights, defending actual people from the insane might of the State — even though the defense attorneys themselves...
So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you). ...
Lanny Breuer, the DOJ’s Assistant Attorney General for the Criminal Division, gave a speech today announcing a “new era of heightened white-collar crime enforcement — an era marked by increased resources, increased information-sharing, increased cooperation and coordination, and tough penalties for corporations and individuals alike.”
You can read his prepared remarks here. We did, and we find them very troubling.
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“The techniques that have been used historically to go after organized crime or blue-collar crime need to be used at times in white-collar crime, because the American people expect no less.” That’s a quote from Breuer’s speech today.
That ought to scare you. It scares us. We’re going to have mob agents looking at Wall Street with the wrong filter. Bring a shopping bag to a friend’s house? It’s a cash delivery! Share gossip and rumors heard on the street? It’s insider trading!
And how many federal prosecutors really understand the day-to-day nuts and bolts of the financial world? Sure, they’re mostly bright and well-educated, but how many know the lingo? How many know what actually goes on at those long tables, with everyone on the phone and banging away on their keyboards? Considering where federal prosecutors come from, we’re willing to bet it’s not a big number at all.
So agents are going to be interpreting things wrong. And prosecutors are going to be interpreting things wrong. And now they’re just going to be doing it more.
How is that not scary?
Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.
The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.
Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”
But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.
Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.
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For as long as we’ve been practicing law, everyone has been complaining bitterly about …
The Supreme Court today decided Graham v. Florida, ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).
(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)
The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.
Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.
Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.
(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)
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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional …
So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”
That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.
What we found instead was a totally inane article on the Huffington Post, leading off with the following lines: …
The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.
The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.
One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.
But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.
So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.
So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.
Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.
The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.
So the trick is to get better, not more, prosecutors. How do you do that?
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Last year, for reasons we’re not entirely clear on, Hamas-led Palestinians started firing rockets and mortars at civilian populations in Israel. Israel put up with it for a while, but then after Christmas it finally responded with a bunch of air strikes on targets in the Hams-controlled Gaza region, and...
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