Category Archives: Criminal Justice Reform

Innocence Project Press Release: House Passes Bipartisan Bill to Review and Reform the Criminal Justice System

House Passes Bipartisan Bill to Review and Reform the Criminal Justice System

Innocence Project praises the House of Representatives’ leadership and urges the Senate to enact this legislation as soon as possible

(Washington, D.C.: Wednesday, July 28, 2010) – Late yesterday, the House of Representatives passed critical bipartisan legislation, “The National Criminal Justice Commission Act of 2010” (H.R. 5143), to improve the fairness and reliability of the nation’s criminal justice system. Lead cosponsors of the bill include Representatives William Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), Tom Rooney (R-FL), and Bobby Scott (D-VA). This historic legislation, originally championed in the Senate by Senator Jim Webb (D-VA), would create a national commission to examine and reshape the criminal justice system.

Barry Scheck, Co-Director of the Innocence Project, a national organization affiliated with Cardozo School of Law that uses DNA testing to exonerate innocent prisoners and pursues reforms to prevent wrongful convictions, praises House leaders for championing this badly needed legislation and urges immediate Senate action.

“The Innocence Project congratulates the House of Representatives today for passing this historic and crucial legislation. Thanks to the leadership of bipartisan cosponsors, including Representatives Delahunt, Issa, Fudge, Rooney and Scott, this critical commission would improve the underlying fairness and reliability of the criminal justice system. We urge the Senate to pass this legislation quickly so that comprehensive review and reform of the system can begin in earnest.”

For the first time since the Johnson Administration, the commission would review the criminal justice system and recommend key reforms that would improve the system’s effectiveness and efficiency, resulting in increased public safety and confidence. The legislation, which has passed out of the House of Representatives and the Senate Judiciary Committee, now awaits final passage in the Senate. There is significant bipartisan support for the bill, as well as support from a range of interest groups representing law enforcement, academicians, criminal justice reform advocates, and faith-based organizations.

Nationwide, 255 people have been exonerated through DNA testing since 1989, according to the Innocence Project. Those cases are a window into the causes of wrongful convictions. For example:

• More than 75% of wrongful convictions overturned with DNA testing involved eyewitness misidentification;
• In about 50% of the cases, unvalidated or improper forensic science was a factor;
• More than 25% of the cases involved false confessions, admissions or guilty pleas;
• In 15% of the cases, informants provided unreliable information.

The National Criminal Justice Commission could look more closely at these and other causes of wrongful conviction and recommend improvements that would help to prevent such miscarriages of justice. Since the commission would be comprised of highly respected figures from throughout the justice system – including judges, prosecutors, defense attorneys, crime victims and other experts – the recommendations would carry significant weight with decision makers. Texas, California, Illinois, Wisconsin and other states have created similar commissions on the state level, and they have led to concrete improvements in those states’ systems of justice.

For additional press inquiries please contact:

Alana Salzberg, Innocence Project
Asalzberg@innocenceproject.org
212.364.5983

This is very good news. Call your senators and tell them to pass this very important legislation so we can begin to repair our broken criminal justice system.

Did the Jury for the BART Shooting Get the ‘Right’ Verdict?

It was arguably the first nationally broadcast officer involved shooting of 2009. Early January 1, 2009 BART Officer Johannes Mehserle shot and killed Oscar Grant on a crowded platform at the Oakland station. Several videos (see them here) captured by cell phone cameras show what appears to me to be an execution style shooting of Oscar Grant.

Even as shocking and outrageous as this footage was, I cautioned readers at the time that the videos only tell part of the story (the videos aren’t exactly of the best quality either). Officer Mehserle’s defenders at the time said that he was likely reaching for his tazer rather than his gun. If this could be argued to the satisfaction of a jury pursuant to California law, then Officer Mehserle’s actions do not satisfy the conditions necessary to convict him of second-degree murder but involuntary manslaughter*.

And that is exactly the conclusion the jury ultimately reached. I can imagine a very contentious deliberation where several believed Mehserle acted with intent to kill while several others believed the shooting to be accidental. Those who believed the former must have been outnumbered by those who believed the latter and decided to agree to the lesser charge to prevent the jury from being hung and take the risk that another jury would find him not guilty.

This is pure speculation on my part, of course, but involuntary manslaughter is the verdict. The more important question: is it possible that the jury arrived at a ‘right’ and/or ‘just’ verdict?

For regular readers of The Agitator, you may be a little surprised that none other than Radley Balko believes the jury reached the right conclusion, however unpopular. While I’m not in total agreement with Balko’s reasoning in his recent article in Reason, he does make a persuasive case.**

At the very end of the article, Balko speaks directly to those of us who are a little less than satisfied with the outcome of this case:

The anger at Mehserle’s conviction on a charge short of murder stems from the perception that cops who allegedly commit crimes are held to a lower standard than regular citizens accused of the same crimes […]

[…]

There’s also the appearance of a double standard. Mehserle’s defense is that he made a mistake. In the heat of the moment, Mehserle inadvertently reached for the wrong weapon. But Mehserle had training. He had other cops there backing him up. If we’re going to be sympathetic to him, we should also show some sympathy and understanding for people like Cory Maye and Ryan Frederick, both of whom were tried for murder for killing police officers who broke into their homes at night. Both Maye and Frederick say they mistook the raiding cops for criminal intruders. Maye was convicted of capital murder. Frederick’s jury opted for voluntary manslaughter.

That said, Mehserle shouldn’t be required to suffer the accumulated anger stemming from other problems in the criminal justice system. He should be convicted of—and punished for—the crime the evidence presented at his trial proves he committed, nothing more. His jury did the right thing.

I can’t fault the jury for doing the ‘right thing’ as I am sure this was a very difficult case for each individual. And technically, Balko has a very good point that it was the jury’s job to make a decision on the facts of this case rather than consider the injustices that have befell many individuals such as Cory Maye and Ryan Fredrick. And because each of these cases took place in different states each with different legal standards, we probably aren’t exactly comparing apples to apples.

The jury may have reached the ‘right’ or ‘just’ decision but damn it, it sure doesn’t feel*** like the right decision. It seems to me that if a police officer can be convicted with a lesser penalty for an accidental killing**** that those who don’t have the benefits of wearing a badge should be judged similarly.

I really wish jury instructions for defendants who happen to be police officers or other government agents would include something I like to call the ‘average person’ test. Put simply, the jury would be asked to consider if the actions of the defendant would fit the definition of the charge if the individual was neither a cop nor government agent. If it’s a crime for an average person to act a certain way than surely the same action is a crime regardless of his or her chosen profession (no matter how difficult).

This case was about whether Johannes Mehserle’s actions met these definitions not whether BART Officer Mehserle’s actions met these definitions.

See the difference? It wasn’t a uniform that was on trial but a man. Nothing more, nothing less.

If the jury decided that Johannes Mehserle, the individual, committed involuntary manslaughter, then I would be much more inclined to agree with Balko.

But as long as the perception (which is reality, I believe) remains that the double standard exists for the badges and the badge-nots, there will be jurors who will deliberate accordingly whether or not their decisions are ‘right’ or ‘just.’

» Read more

SCOTUS will Hear Hank Skinner’s Case but Might Not Make the Final Decision

Yesterday SCOTUS decided they will hear Hank Skinner’s case; arguments will likely be heard sometime next year. However, even if Skinner ‘wins,’ SCOTUS is unlikely to decide once and for all if convicts have a Constitutional right to challenge their convictions if exculpatory evidence becomes available post-conviction. Legal experts say that the most Skinner can hope for is a SCOTUS ruling which would allow a lower court to make the decision which would likely lead to one appeal after another and potentially find its way back to SCOTUS.

Brandi Grissom writing for The Texas Tribune explains the long road ahead if SCOTUS rules in Skinner’s favor:

Even if the court agreed that Skinner can request DNA testing under federal civil rights law, Hoffmann said, it’s unlikely the courts would rule that he has a constitutional right to prove he was actually innocent. The Supreme Court has never ruled that the Constitution spells out such a right. It’s likely that Skinner’s case or a similar one would make its way back to the Supreme Court and eventually force the court to face that question. If the court were to answer it affirmatively, Hoffmann said, it could start a flood of litigation from inmates claiming innocence. That, in turn, could raise a myriad of questions about how the justice system operates and really “gum up the works,” he said. “They really don’t want to kind of bite the bullet and recognize this as a federal constitutional right.”

Allowing DNA requests under federal civil rights law would also bring the Supreme Court closer to a larger question that Blackburn and Hoffmann said the elite jurists have carefully avoided: whether inmates have a constitutional right to prove they are actually innocent. With the rise of DNA science, the question looms large in cases such as Skinner’s, in which testable evidence exists that the jury never heard. Currently, federal innocence claims are primarily based on deprivation of an inmate’s constitutional right to due process — things like shoddy representation or biased juries. There is no legal remedy for convicted criminals who claim the jury just got it wrong, even though their rights were properly protected at trial, Hoffmann said.

“Whether they’re actually innocent or not is kind of a legal irrelevancy once the jury has spoken its version of the truth,” Hoffmann said. “Basically, our legal system is constructed in such a way that that’s the end of it.”

I’m not a lawyer and would never claim to be but a criminal justice system in which judges and lawyers can say that actual proven innocence is ‘legally irrelevant’ is surly a criminal justice system that is broken – particularly when an individual’s life is on the line.

This is why I do not trust the government to kill in my name. There is a legal definition for taking the life of an innocent* person: homicide.

» Read more

Modern Jurisprudence is PROFOUNDLY Broken

Two contrasting stories out of the Supreme Court today, that bring home the fact that jurisprudence in this country is profoundly… hopefully not irreparably… broken.

First, from the New York Times:

NO MORE LIFE SENTENCES FOR MINORS WHO HAVEN’T MURDERED…. In yet another 5-4 ruling, the Supreme Court said this morning that incarcerated minors can’t receive life sentences if they haven’t killed anyone.

By a 5-4 vote Monday, the court says the Constitution requires that young people serving life sentences must at least be considered for release.

The court ruled in the case of Terrance Graham, who was implicated in armed robberies when he was 16 and 17. Graham, now 22, is in prison in Florida, which holds more than 70 percent of juvenile defendants locked up for life for crimes other than homicide.

“The state has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law,” Justice Anthony Kennedy wrote in his majority opinion. “This the Eighth Amendment does not permit.”

The Eighth Amendment, of course, prohibits cruel and unusual punishments.

Justices Alito, Scalia, and Thomas dissented. Chief Justice John Roberts also sided with the minority, though he agreed with the majority on the specific case of Terrance Graham’s fate.

In Justice Kennedy’s majority ruling, he made note of the “global consensus” against life-sentences for youths who haven’t committed murder. The sentence will likely enrage the far-right, which tends to throw a fit when justices take note of international developments.

In a concurrence, Stevens, joined by Ginsburg and Sotomayor, threw an elbow at one of their colleagues: “While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old … Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.”

and in a complete reversal of logic, this judgement:

AP: High Court: ‘Sexually Dangerous’ Can Be Kept in Prison

WASHINGTON (May 17) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered “sexually dangerous” after their prison terms are complete.

The high court reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered “sexually dangerous.”

“The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned by who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of “America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

A fifth man who also was part of the legal challenge was charged with child sex abuse, but declared incompetent to stand trial.

The 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled last year that Congress overstepped its authority when it enacted a law allowing the government to hold indefinitely people who are considered “sexually dangerous.”

But “we conclude that the Constitution grants Congress legislative power sufficient to enact” this law, Breyer said.

Justice Clarence Thomas dissented, saying Congress can only pass laws that deal with the federal powers listed in the Constitution.

Nothing in the Constitution “expressly delegates to Congress the power to enact a civil commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the federal government with such a power,” Thomas said.

Thomas was joined in part on his dissent by Justice Antonin Scalia.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our “justice system” today: We can’t deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

Both of these cases are about recidivism. The plain fact is, more than 40% of people who go to prison, go back. More than 60% who go to prison for violent crimes go back. More than 80% who go to prison for sex crimes go back.

There have been a number of attempts at dealing with these difficult facts; none of them effective, and most of them unconstitutional.

In the case of the criminals under 18 being imprisoned for life because of sentence enhancements… The problem here isn’t that it’s a 17 year old in prison for life for something other than rape or murder… Its that “sentence enhancements” even exist at all.

Firstly, I think the whole “global consensus” thing is not only irrelevant, but dangerous and unconstitutional (interpretation of American law should ONLY be based on the Constitution, and the constitutions of the several states)

Yes, the law evolves, and yes it is influenced by changing moral standards, which is influenced by world culture.

When we wrote our constitution, it was in large part based on principles inherent in English common law; as was the early constitutional scholarship and interpretation until we built up our own body of case law. The goes further back to the greeks, romans, even the Assyrians. Certain basic principles of law and justice are universal; or have filtered up through from the earliest formalized conceptions of both rights, and laws.

However, it is important that case law be consistent with the written constitution; and that any case law which is not be ignored in interpretation of future cases, and hopefully be reversed.

If the American people want to change their constitutions, they can. There is a mechanism for that. Until they do, there should be no other arbiter for American law than the constitution.

One of the fundamental principles of jurisprudence is that the law should be knowable, and predictable; not arbitrary and capricious. One should not need to follow “evolving moral standards” and case law in other countries, to know whether one is violating the law.

In a system where ignorance of the law is no defense, the law must be written and knowable. The fact that in todays world it is not; is not an indication that we have evolved morally, it is an indication that modern jurisprudence is profoundly broken.

All that said however I agree that the law in question should have been struck down, just for a different reason.

I believe that “sentence enhancement” conditions are themselves a bad thing. They are invalid and unconstitutional as far as I am concerned. A crime is a crime, and one should be punished the same way for the same crime, as everyone else.

Certainly, there can be special circumstances, but they shouldn’t increase punishment; a maximum punishment should be set, and that’s it. There should be discretion for judges to reduce sentences, but not to increase them. Three strikes laws, hate crime enhancements, all of them need to go.

The problem that three strikes laws are intended to solve (high recidivism rates), is more properly addressed by longer or more harsh initial sentences, combined with better rehabilitation and reintegration efforts, and a better running of our penal system.

In the second case, we again have an issue of inappropriate sentencing.

Genuine sexual predators (rapists, molestors etc..) need to be put away for life without parole, or they need to die (though I have grave reservations about the death penalty). Either way, they need to be permanently removed from society.

For some reason, we treat sex crimes as far less serious than major property crimes, or other violent crimes; as if rape were not every bit as serious as attempted murder (believe me, it is).

Some things require ultimate sanction, and serious sex crimes are among those things.

On the other hand though, we now classify the most piddling things as sex crimes. Right now, we have hundreds of 18 and 19 year old young men in prison around this country, for having consensual sex with their 17 year old girlfriends (somehow, we almost never imprison older young women for sex with teenage boys). We make people register as sex offenders for having consensual sex in the back of their cars in a parking lot…

Which just reinforces the point: We’re broken both ways. We are far too harsh on one side, and far too lenient on the other; and just plain broken all the way around, because a sentence doesn’t mean what it says it means.

The very idea that a state official can simply decide you are too dangerous to be let out of prison, EVEN THOUGH YOUR JUDICIAL SENTENCE IS OVER… It’s disgusting. It’s abhorrent to the very nature of our country, and our constitution.

Three strikes laws, sentence enhancements, sex crime laws… All are seriously broke; because they are attempting to deal with practical problems, in an impossible way. You can’t achieve the goals they’re trying to achieve, with the techniques and tools they are using.

We’re broken. We need to fix it. We need to protect society from real criminals, real dangerous people, real evil people; and we need to provide a strong incentive for the “casual criminal” (and we are all “Casual Criminals” now). But we need to do it, without destroying what it means to be American.

In order to do this, we must first reduce our prison population, not by releasing the truly dangerous; but by DRAMATICALLY slashing the amount of people we imprison (both today, and in the future).

The first thing we need to acknowledge, is that the so called “war on drugs” has not only failed, but was wrongly conceived in the first place.

Imprisoning people for drug use simply does not achieve the goals it is intended to achieve. It doesn’t reduce drug use at all. It doesn’t reduce crime at all, in fact it increases it. It turns people who might otherwise be productive… or at least LESS of a drag on our society; into total dependents. It frequently makes them into “harder” criminals.

It just doesn’t work.

Frankly, I think we should entirely decriminalize drug use and possession; even if we choose to maintain prohibition on importation, sales, and distribution.

Then there is the question of the proliferation of felonies… Damn near everything is a felony these days. Two students in Virgina were charged with felonies last year for THROWING SNOW BALLS. Schoolchildren have been charge with felonies for drawing pictures with guns in them…

Felonies are supposed to be reserved for “high crimes”. Those things which must be punished by long term removal from society.

Does anyone really believe it is necessary to send someone to prison for two years, for serving hotdogs wrapped with bacon out of a cart (yes, that is a felony in several jurisdictions in this country).

The fact is, we classify far too many things as felonies, which simply should not be. We need to eliminate most of those felonies.

What it comes down to, is that we should reclassify most non-violent felonies as misdemeanors, and eliminate custodial sentences for them; substituting EXTREMELY HIGH fines, and supervised restricted release (ankle bracelets etc…).

Combined, that would reduce our prison population by more than three quarters immediately (the drug changes alone would cover 60%). This would allow us to deal with the remainder of that population more appropriately. More harshly for those who need it, and with a higher focus on rehabilitation for those who are willing to make the effort.

Importantly, it would allow us to eliminate early release for those who have not made serious and genuine rehabilitation efforts; allowing prison officials and judges to exercise discretion appropriately.

Perhaps when we no longer have to be so concerned about overcrowding, and inappropriate early releases, and imprisoning those who should not be; we can restore some sanity to the system as a whole.

But that’s all related to the practical issue.. The pragamatic justice as it were..

The bigger issue here, is that under todays conception of jurisprudence, it is impossible to know or understand whether you are breaking the law or not. Whether your crime is a felony or not. Exactly what that crime might be, or what the punishment for it might be.

That isn’t law, or justice; and it isn’t what our country is supposed to be.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Legalization Of Marijuana To Be On California Ballot In November

Advocates of marijuana legalization have succeeded in getting a referendum on the November ballot:

LOS ANGELES, March 24 (UPI) — California will again be the flashpoint in the smoldering debate on legalization of pot as officials said Wednesday the question will be on the November ballot.

Los Angeles County elections officials Wednesday submitted their official estimate of valid signatures collected in the county on a statewide legalization initiative, putting the number of signatures collected statewide over the 433,971 needed to put the measure on the ballot, the Los Angeles Times reported.

The move to legalize marijuana comes 14 years after California decided the controversial weed could be used for medicinal purposes. The initiative would permit people age 21 or older to possess up to an ounce of pot for personal use.

Proponents cite the financial and social cost of enforcing a marijuana prohibition and argue that marijuana isn’t as dangerous and addictive as alcohol or tobacco. Opponents counter with statistics of marijuana-related crimes, rising use among teens and the physical harm pot can cause.

Is this the beginning of the end of the War On (Some) Drugs ? I sure hope so.

Hank Skinner Execution Update: Texas Board of Pardons and Paroles Deny DNA Test Request

All seven members of the Texas Board of Pardons and Paroles Death Panel voted earlier today to deny Hank Skinner’s request to have DNA samples tested. Unless Gov. Rick Perry or the U.S. Supreme Court intervenes, Hank Skinner will be executed this Wednesday as scheduled. The courts have rejected Skinner’s requests for the DNA tests for over a decade; the rationale being that Skinner failed to request the tests during the original trial.

Supposing for a second that the courts have a valid point,* I would argue that there is more than one interest that is not being served other than Skinner’s. For one, if someone other than Skinner committed these murders, the courts are allowing this person to escape the justice the victims’ families so righteously deserve. If Skinner did kill these individuals, there will be lingering doubts by his supporters and he will become a martyr.

I think there is even a more fundamental question though: What is the true purpose of our criminal justice system? If the purpose is to determine the truth, then the interest of truth is also sacrificed in the process. If, however; the purpose is process – regardless of how absurd/the truth be damned as Alito, Roberts, and the seven members of the Texas Death Panel apparently believe, then I suppose the courts are working just as they should.

Where will Gov. Perry/ SCOTUS fall, on the side of truth or process?

For those of you who abhor the idea that an innocent man could be put to death in the name of process and would still like to try to influence the governor’s decision to grant a 30 day reprieve, here is the contact information one more time:

Opinion Lines
Texas callers: (800) 252-9600
Out of state callers and Austin residents: (512) 463-1782

Office of the Governor, Main Switchboard (from 8:00 a.m. to 5:00 p.m. CST): (512) 463-2000

Office of the Governor Fax: (512) 463-1849

The Innocence Project also has an easy petition that only takes a few minutes to fill out.

If you cannot get through on the “Out of state” line, try the main switchboard. I tried both today; I had no success with the Out of state but actually talked to a real person immediately who said she “would pass my message on to the governor” when I called the switchboard (so don’t be rattled if someone actually answers). Be polite but get your point across.

With that, let me leave you with a closing thought from Dallas Morning News Editor Michael Landauer:

We have just posted our editorial set for tomorrow’s paper urging Gov. Rick Perry to do the right thing and delay Wednesday’s planned execution of Hank Skinner. Is he guilty? Honestly, I don’t know. I tend to think juries get things right most of the time, but in this case, there is a lot of evidence that needs to be DNA tested to be sure. I am hopeful Gov. Perry will do the right thing. There is no downside to ordering a 30-day reprieve. The upside is that he looks like someone interested in the truth and interested in the kind of certainty that the proper dispensation of the death penalty requires.

Point of Clarification (March 23, 2010 9:29 a.m. edit)

I mentioned in the post that the DNA evidence could implicate someone other than Skinner and by not testing the DNA, someone else would escape justice. I have since re-read an article that Radley Balko wrote just over a month ago which reminded me of a detail I had forgotten. According to the article, another man by the name of Robert Donnell could have committed the murders. Witnesses say that Donnell had harassed Skinner’s girlfriend (one of the murder victims) the night of the murders. Donnell allegedly raped her on another occasion and had been stalking her up to the day she was killed. If the DNA sample turns out to be that of Donnell’s rather than Skinner’s, Donnell will still have escaped the justice the victims’ families deserve because Donnell has since died.

Related Posts:

ACTION ALERT: Tell Gov. Perry to Give Hank Skinner 30 More Days

Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

» Read more

ACTION ALERT: Tell Gov. Perry to Give Hank Skinner 30 More Days

With less than five days until the scheduled execution of Hank Skinner, a DNA testing laboratory in Phoenix, AZ has offered to test evidence that Skinner’s attorneys say will prove his innocence. Chromosomal Laboratories has told Texas Gov. Rick Perry that they will run the tests for free if Perry agrees to grant Skinner a 30-day reprieve. Under Texas law, the governor has the authority to grant a one-time reprieve for capital cases.

The Texas Tribune reports that Gov. Perry has not decided whether or not he will grant the reprieve and said that any decision to test the DNA will be decided in the courts.

My question for Gov. Perry is what is there to think about? The man has been on death row for 15 years; what is the harm in giving him just 30 more days to determine once and for all if he is guilty or not? The state cannot give Skinner his 15 years back if the state turns out to be wrong but he could at least live the rest of his life a free man. The state obviously cannot give Skinner his life back once the state takes it from him, however.

Whether you oppose the death penalty or not we can all agree that the state should at least make every reasonable effort to ensure that the person being put to death by the state actually committed the crime. This is not an unreasonable request.

The execution is scheduled for March 24, 2010 so there isn’t much time left to act (see the contact information below).

Opinion Lines
Texas callers: (800) 252-9600
Out of state callers and Austin residents: (512) 463-1782

Office of the Governor, Main Switchboard (from 8:00 a.m. to 5:00 p.m. CST): (512) 463-2000

Office of the Governor Fax: (512) 463-1849

The Innocence Project also has an easy petition that only takes a few minutes to fill out.

Related: Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

Former Texas Prosecutor and Judge Both Believe the State Has Executed More Than One Innocent Man

Hank Skinner is scheduled to be executed by the State of Texas on March 24th. Despite more than a decade of requests to have his DNA tested, Texas courts have denied him every step of the way. The Medill Innocence Project has even offered to pay for the testing to no avail. Skinner’s attorneys have appealed to the U.S. Supreme Court to force the issue before it’s too late. Given the recent ruling in Osborne, I’m not optimistic that Alito and Roberts would put their slavish allegiance to process aside long enough to allow the truth of Skinner’s guilt or innocence to see the light of day…at least until after Skinner is executed (maybe).

Former Texas prosecutor Sam Millsap wrote an op-ed piece in The Houston Chronicle explaining why he believes the courts should grant Skinner’s request, if for no other reason, to learn the truth. He also pointed out that only a week ago, Gov. Rick Perry pardoned Tim Cole posthumously some 9 years after he died while in prison. Why wouldn’t the same governor want to avoid making the same mistake again?

Millsap:

I’m not an advocate for Hank Skinner. I’m an advocate for the truth. If DNA tests could remove the uncertainty about Skinner’s guilt — one way or the other — there’s not a good reason in the world not to do it […]

[…]

It is cases like Skinner’s that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

From there Millsap gets personal and explains why he, acting in good faith, may have been responsible for prosecuting an innocent man who was executed in 1993.

Why the change of heart? Millsap explained that one of his star witnesses against Ruben Cantu recanted his testimony 20 years later. Millsap said he believes the witness’s latest version of the events because the witness had nothing to gain from changing his testimony “except a whole lot of trouble.”

Beyond Cantu, Millsap also believes Texas has executed at least two other men he says “were almost certainly innocent”: Carlos DeLuna, executed in 1989 and Cameron Todd Willingham, executed in 2004.

Millsap is by no means the only individual inside the Texas criminal justice system who recognizes inherent flaws in the system which kills more people every year than any other state. State District Judge Kevin Fine recently granted a pretrial motion declaring the death penalty unconstitutional due to his belief that innocent people have been executed in Texas and elsewhere:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The article goes on to point out that Judge Fine’s ruling will likely be overturned on appeal and is more symbolic than anything else (i.e. a way to force people to discuss the issue of the death penalty). Fine is taking quite the career risk in a very pro-death penalty state which elects its judges. His critics, who like to point out that Judge Fine is a former cocaine addict, argue that his ruling has no basis in the law.*

And maybe Judge Fine’s critics are technically right** about his “judicial activism,” but can anyone really argue with the judge’s logic? Is it possible for sates to execute only guilty individuals 100% of the time when states have admitted to wrongfully convicting others for lesser charges? If not, what is the acceptable margin of error when we are talking about allowing the government to kill?

These are the kinds of questions which I hope keep Gov. Perry up at night with the scheduled execution of Hank Skinner and those who will undoubtedly follow.

» Read more

LP’s Wes Benedict on ‘Limited Government’ Conservatives

Those of us who truly believe in limited government* tend to be simultaneously amused and irritated hearing the folks at CPAC speak of limited government as though it’s a principle they truly support. Yesterday, the Libertarian Party’s Executive Director Wes Benedict, monitoring the CPAC festivities from afar, said some of the things that many of us have been thinking:

Unlike libertarians, most conservatives simply don’t want small government. They want their own version of big government. Of course, they have done a pretty good job of fooling American voters for decades by repeating the phrases “limited government” and “small government” like a hypnotic chant.

It’s interesting that conservatives only notice “big government” when it’s something their political enemies want. When conservatives want it, apparently it doesn’t count.

– If a conservative wants a trillion-dollar foreign war, that doesn’t count.

– If a conservative wants a 700-billion-dollar bank bailout, that doesn’t count.

– If a conservative wants to spend billions fighting a needless and destructive War on Drugs, that doesn’t count.

– If a conservative wants to spend billions building border fences, that doesn’t count.

– If a conservative wants to “protect” the huge, unjust, and terribly inefficient Social Security and Medicare programs, that doesn’t count.

– If a conservative wants billions in farm subsidies, that doesn’t count.

It’s truly amazing how many things “don’t count.”

Benedict went on to point out the lack of concern these same people had with the government expansion of President Bush and the health care mandates of another CPAC favorite – Mitt Romney.

While I’m by no means a supporter of the Obama Administration, the idea that many Conservatives seem to have that all the problems we are faced with started on January 20, 2009 is completely ludicrous**.

These are the same people who would gladly support Sarah ‘the Quitter’ Palin, ‘Mandate’ Mitt Romney, or ‘Tax Hike Mike’ Huckabee – none are what I would call ‘limited government’ by any stretch of the imagination.

» Read more

Crystal Mangum Strikes Again

From The Associated Press:

Crystal Mangum, 31, was arrested late Wednesday on charges including assaulting her boyfriend, Durham police said in a press release.

Durham County jail records indicate she also was charged with identity theft, communicating threats, damage to property, resisting an officer and misdemeanor child abuse. A judge ordered that she remain in jail on a $1 million bond. Mangum had no attorney listed Thursday.

Authorities released the audio of a 911 call in which a girl who said she was Mangum’s 9-year-old daughter called for help.

Police said they found Mangum and Milton Walker fighting when they arrived at the home just before midnight. Mangum then went into a bathroom and set some clothes on fire in a bathtub, police said.

For most readers who have busy lives but still try to follow the news of the day, the name Crystal Mangum probably doesn’t ring a bell.

Why should it?

For those who didn’t know or need reminded, Mangum was only the lying skank who falsely accused several members of the Duke Lacrosse team of raping her in 2006. The general public did not know her name, at least in the beginning, due to the MSM’s ridiculous* ‘rape shield’ policy which kept the media to keep from revealing Mangum’s identity. By the time Mangum was exposed as a liar, the media’s ‘rich white male jocks rape poor, defenseless, black woman’ template no longer worked and the media lost interest in the story (though some gave at least some passing mention of her past before moving on to the next story). Curiously, Al Sharpton was also nowhere to be found.**

Though I knew the media was done with Crystal Mangum, somehow I knew that one day I would see her name in the paper again. She was never subject to the kind of scrutiny the Duke Lacrosse players received by the media (and certainly not the courts).

Now Mangum is the one in the hot seat with her credibility all shot to hell. The burden of proof will be on her accusers and the prosecution that she is guilty beyond a reasonable doubt in a court of law. But as the Duke Lacrosse players know all to well, the court of public opinion requires quite a lot less proof.

As tempting as it may be to smear Mangum by posting every rumor, conjecture, and tabloid story, I for one will do my best to separate the garbage from the truth (admittedly, not an easy task). While the truth may set most individuals free, I tend to believe that in this case at least, Mangum will finally receive the poetic justice she richly deserves.

» Read more

Innocence Commission Exonerates Greg Taylor After Serving 16 Years of Life Sentence

North Carolina has at least one criminal justice reform that all states ought to adopt: an innocence commission (particularly for states which currently have a death penalty). So far, North Carolina is the only state which has such a commission.

Greg Taylor, convicted of 1st degree murder of prostitute Jacquetta Thomas in 1993, was the first to be exonerated by the commission after serving 16 years of a life sentence. One who isn’t familiar with the details of the case may assume that Taylor’s conviction was an honest mistake since DNA testing was in it’s infancy in 1993. According to this Associated Press article, however; the commission found a very disturbing omission by the prosecution which could have cast reasonable doubt (if not excluded altogether) on Taylor’s guilt.

Defense attorneys worked to cast doubt about the initial case built against Taylor, and a State Bureau of Investigation agent testified that complete blood test results were excluded from lab reports presented at trial.

The agent’s notes indicated that samples from Taylor’s SUV tested positive for blood in preliminary tests but were negative in follow-up testing, which wasn’t disclosed during the prosecution.

But rather than drop the charges against Taylor, prosecutors went forward with the case anyway and successfully convicted him. The jury was denied access to this critical evidence and Taylor’s liberties were taken from him as a result.

Hopefully, those who failed to disclose the results of the blood test will pay some sort of price but I have serious doubts. Until Taylor is compensated one way or another, this injustice is far from being set right.

Liberty Rock Friday: “Prison Song” by SOAD

Here’s a perfect song to complement my recent call to action to pass the National Criminal Justice Commission Act of 2009.

toxicity

System of a Down
“Prison Song”
Toxicity (2001)

Written by: Tankian, Serj;Malakian, Daron;Odadjian, Shavarsh; and Dolmayan, John

They’re trying to build a prison,
They’re trying to build a prison,

Following the rights movements
You clamped on with your iron fists,
Drugs became conveniently
Available for all the kids,
Following the rights movements
You clamped on with your iron fists,
Drugs became conveniently
Available for all the kids,

I buy my crack, my smack, my bitch
right here in Hollywood.

Nearly 2 million [*] Americans are incarcerated
In the prison system, prison system,
Prison system of the U.S.

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison, (for you and me to live in)
Another prison system,
Another prison system,
Another prison system. (for you and me to live in)

Minor drug offenders fill your prisons
You don’t even flinch
All our taxes paying for your wars
Against the new non-rich,
Minor drug offenders fill your prisons
You don’t even flinch
All our taxes paying for your wars
Against the new non-rich,

I buy my crack, my smack, my bitch
right here in Hollywood.

The percentage of Americans in the prison system
Prison system, has doubled since 1985,

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison, (for you and me to live in)
Another prison system,
Another prison system,
Another prison system. (for you and me to live in)
For you and I, for you and I , for you and I.

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison,
For you and me,
Oh baby, you and me.

All research and successful drug policy show
That treatment should be increased,
And law enforcement decreased,
While abolishing mandatory minimum sentences,
All research and successful drug policy show
That treatment should be increased,
And law enforcement decreased,
While abolishing mandatory minimum sentences.

Utilizing drugs to pay for secret wars around the world,
Drugs are now your global policy,
Now you police the globe,

I buy my crack, my smack, my bitch
right here in Hollywood.

Drug money is used to rig elections,
And train brutal corporate sponsored
Dictators around the world.

They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison, (for you and me to live in)
Another prison system,
Another prison system,
Another prison system. (for you and me to live in)
For you and I, for you and I , for you and I.
They’re trying to build a prison,
They’re trying to build a prison,
They’re trying to build a prison,
For you and me,
Oh baby, you and me.

*This number has since increased to about 2.4 million according to the Sen. Webb’s findings.

Action Alert: Help Pass the National Criminal Justice Commission Act of 2009

In April of 2009, I wrote a post entitled “Reforming America’s Prison System: The Time Has Come”

A full 8 months later, the time has truly come. Sen. Jim Webb’s (D-VA) bill S.714, the National Criminal Justice Commission Act of 2009, is scheduled to be before the Senate Judiciary Committee tomorrow.

The purpose of the bill is as follows:

SEC. 3. ESTABLISHMENT OF COMMISSION.
There is established a commission to be known as the `National Criminal Justice Commission’ (referred to in this Act as the `Commission’).

SEC. 4. PURPOSE OF THE COMMISSION.
The Commission shall undertake a comprehensive review of the criminal justice system, make findings related to current Federal and State criminal justice policies and practices, and make reform recommendations for the President, Congress, and State governments to improve public safety, cost-effectiveness, overall prison administration, and fairness in the implementation of the Nation’s criminal justice system.

America accounts for 5% of the world’s population but a staggering 25% of the world’s reported prisoners. This statistic seems to be at odds with those of us who want to believe our nation is a “free” and “just” nation.

Also, its worth pointing out that this commission will give the war on (some) drugs some much needed scrutiny (as the graphs below show, drug offenses account for more than half of the prison population).

Source: Bureau of Prisons as of February 2009

Source: Bureau of Prisons as of February 2009

bop-graph_page_2

I have already contacted my senators, now its time to do your part. If you don’t want to spend much time on writing an e-mail or letter, NORML has an easy form to fill out here (the message goes directly to both of your Senators even if you don’t happen to know who your Senators are).

With your help, perhaps this bill will pass. This will be a great first step in combating the prison industrial complex.

Is the End of Government Reefer Madness Near?

Referring back to my post I wrote last week about the “perfect storm” the Obama Administration has created regarding medical marijuana, Colorado in many ways seems to be in the eye of this storm. It seems that more and more people are starting to understand the insanity of declaring war on a substance which has never resulted in an overdose of any kind (much less a deadly overdose). In yesterday’s election, voters in Breckenridge, CO passed a measure by 71% which decriminalizes marijuana in amounts of an ounce or less for individuals 21 and over.

The Denver Post is having guest columnists who are staunchly pro-legalization write persuasive and articulate articles which could be mistaken for something you might read here at The Liberty Papers. Here’s an excerpt from an article written by Robert Cory Jr.

Today, not much about Colorado’s economy moves. The state is broke and releases prisoners because it cannot afford to keep them. The governor slashes the higher education budget 40 percent. People lose jobs, homes and financial security. Our leaders face serious issues.

And what keeps some politicians up at night? That sneaking suspicion that some suffering cancer patient may gain limited pain relief through medical marijuana, coupled with that gnawing certainty that someone, somewhere, actually grew the plant for that patient.

But government cannot repeal the laws of supply and demand, and cannot extinguish the spark of freedom in peoples’ hearts. Now, the marijuana distribution chain becomes legal. Responsible entrepreneurs open shops to supply a skyrocketing demand for medicine. These small businesses serve needy patients. They pay taxes. They hire employees. They lease space. They advertise. And the drug war industrial complex can’t stand it.

The article only gets better from there. I find it very encouraging that Colorado’s newspaper of record would print this and that citizens are pushing back against big government, if only on this issue.

Obama Creates Perfect Storm with Marijuana Policy Change

Last week’s announcement from the Obama Administration that the Justice Department would call off the dogs with regard to medical marijuana in states where legal has created a perfect storm regarding state and local regulations. Colorado Attorney General lamented that with this announcement, a “legal vacuum” has been created and was quoted in The New York Times: “The federal Department of Justice is saying it will only go after you if you’re in violation of state law,” Mr. Suthers said. “But in Colorado it’s not clear what state law is.”

Here’s a thought Mr. Suthers: rather than trying to interpret the law yourself, why not allow the state legislature and/or Colorado voters clarify the law. In the meantime, while the law in your opinion is vague, err on the side of freedom by no longer prosecuting medical marijuana users or dispensary operators.

Greeley (Colorado) City Council member Carrol Martin also expressed concerns with the Obama Administration’s change in federal policy: “The federal government says they’re not going to control it [medical marijuana], so the only other option we have is to control it ourselves” and “If we have no regulations at all, then we can’t control it, and our police officers have their hands tied.”

Councilman, I would argue that this is a very good thing. You are no longer responsible for enforcing federal laws but state and local laws regarding medical marijuana. Your police officers “have their hands tied”? I think it’s quite the opposite councilman. Your police department can now concentrate on violent crime rather than spend valuable resources on going after non-violent, medicinal, marijuana users and their suppliers. If anything, the Greeley police has their hands freed!

In a time when we have an administration which wants to control banking, housing, the auto industry, the healthcare industry, and everything in-between we have one instance of the same administration relinquishing control and giving it back to the states. This is the perfect opportunity for states to act as independent laboratories of government. Some will pass stricter controls on medical marijuana (or outright ban it) while others may go the other direction and outright decriminalize or leagalize marijuana altogether.

Kirk Johnson writing for The New York Times:

Some legal scholars said the federal government, by deciding not to enforce its own laws (possession and the sale of marijuana remain federal crimes), has introduced an unpredictable variable into the drug regulation system.

“The next step would be a particular state deciding to legalize marijuana entirely,” said Peter J. Cohen, a doctor and a lawyer who teaches public health law at Georgetown University. If federal prosecutors kept their distance even then, Dr. Cohen said, legalized marijuana would become a de facto reality.

Senator Morrisette in Oregon said he thought that exact situation — a state moving toward legalization, perhaps California — could play out much sooner now than might have been imagined even a few weeks ago. And the continuing recession would only help, he said, with advocates for legalization able to promise relief to an overburdened prison system and injection of tax revenues to the state budget.

This seems like a very reasonable step to take for California from a purely economic standpoint. As I reported in my post Reforming America’s Prison System: The Time Has Come, last year California spent almost $10 million on corrections, more than half of the U.S. prison population accounts for drug offenses, 75% of state drug offenders are non-violent offenders, and that nearly half of all drug arrests in the U.S. were for marijuana offenses.

By my math, that would mean that if California* released all non-violent marijuana users and stopped prosecuting new cases involving non-violent marijuana use, the state could cut its prison population by 19% and save California taxpayers about $2 million** per year just on corrections (to say nothing of other costs associated with policing marijuana use).

If California or any other state tried such a bold approach, the American public would most likely learn that legalization does not lead to the sort of mayhem drug warriors have warned us of over the decades***. We would most certainly not see the sort of mayhem that has occurred via the drug war.

Not only does this perfect storm which the Obama Administration created have possible implications for the War on (Some) Drugs, but the very concept of Federalism itself. What might state governments learn about self governing once they have been encouraged to do so? Might the states resist the next attempted power grab from Washington?

There are many exciting possibilities. Those of us who advocate for smaller government should make the most of this opportunity.

» Read more

Risk and Compliance

For the first time today, TASER international has acknowledged that the use of their electro-compliance device has a higher risk to the health of the restrainee than they have advertised

Taser: Don’t shoot stun gun at chest

First time company has suggested there is any risk from its stun guns

AP – updated 8:23 a.m. PT, Wed., Oct . 21, 2009

PHOENIX – Taser International is advising police agencies across the nation not to shoot its stun guns at a suspect’s chest.

The Arizona-based company says such action poses a risk — albeit extremely low — of an “adverse cardiac event.”

The advisory was issued in an Oct. 12 training bulletin. It marks the first time that Taser has suggested there is any risk of a cardiac arrest related to the use of its 50,000-volt stun guns, The Arizona Republic reported.
Story continues below ?advertisement | your ad here

Taser officials said Tuesday the bulletin does not state that Tasers can cause cardiac arrest. They said the advisory means only that law-enforcement agencies can avoid controversy if their officers aim at areas other than the chest.

Critics called it a stunning reversal for the company.

We have all of course seen or heard of such incidents as the intransigent elderly woman who was TASED a few months ago in Texas (and many other similar incidents involving the elderly or emotionally disturbed); and most famously of course, of Rodney King, who continued resisting arrest after multiple TASER hits (which is why the officers began beating him. What started as an attempt to physically restrain a violent and intoxicated offender, turned into an emotional free for all).

Less frequently, we hear of someone experiencing cardiac or respiratory arrest, seizures, or nervous system damage from the use of the TASER.

Civil liberties activists have claimed that TASERs have directly caused the death of at least 350 people this decade; and that unjustified use of the TASER device is rampant, with thousands of effective cases of police brutality every year.

I take those claims with a hefty grain of salt.

Unfortunately, it IS clear that there have been a not insignificant number of deaths, either directly or indirectly caused by TASER usage; and that the risks of TASER usage are in fact much higher than law enforcement agencies and individual officers have been trained, or led to believe.

Because of these risks, those same civil liberties activists have called for the TASER device to be banned.

For years, TASER international has utterly denied the possibility of any elevated risk of death or serious injury involved in the use of the TASER.

Today, for the first time, the company acknowledged those risks; but in response suggested something I believe is ridiculous, counterproductive, and may even be harmful. In order to avoid liability, they are advising law enforcement agencies to train their officers to avoid shooting restrainees in the chest…

This is patently ridiculous.

First, the TASER is most effective when shot into the chest. The TASER device works by disrupting neuromuscular co-ordination, and hits outside of center mass are far less effective at causing systemic disruption. Other areas simply do not have the concentrations of nerve and muscle junctions that allow for effective immobilization.

When targeting peripheral areas of the body, effective immobilization may be limited to the localized area of the hit, or to one side of the body. Even hits to the abdomen or pelvis are far less effective in immobilization, (especially on larger restrainees) though they are exceptionally painful.

It is entirely possible (though very difficult) to fight through a TASER hit to a peripheral area, whereas it is nearly impossible to do so with a chest hit (unless you are physically huge, or very high).

It is also standard tactical doctrine for all projectile weapons training to aim for center mass; and it’s damn near impossible to hit a limb in a stressful situation. You don’t want to train officers to shoot for other targets under stress, it will just cause more problems.

Even after the department training officers and lawyers dutifully pass on the message from TASER; officers will, RIGHTLY, ignore this warning.

If you’re going to restrict TASER usage to targeting peripheral areas of the body, you might as well ban their use entirely.

I believe banning TASERs would be a huge mistake, as would changing the targeting area for the device; but clearly something needs to change.

The problem with TASERs isn’t their risks; it’s their doctrine for use.

I’ve been a law enforcement trainer myself, and I’ve been through various less-lethal force training courses, including TASERs. I’ve been TASED several times, and have had several other electro-compliance devices demonstrated on me (to great effect).

Officers are trained to view TASERs as, and to use them as, a less harmful compliance option than direct physical contact; with less risk to both the officer, and the restrainee. The TASER is viewed as a less risky, and less harmful option in the continuum of force.

While the less risk to the officer part is true, the risk of great harm to the restrainee is very high. Much higher than that of chemical compliance techniques, and as high as PROPERLY EXECUTED physical restraint and compliance techniques

Improperly executed physical restraint and compliance techniques, unfortunately present nearly as high a risk of fatality as a shooting; and with much greater risk to the officer. Without extensive training, continuing practice, and exceptional strength and physical fitness; it is very difficult for officers to maintain proper physical restraint and compliance techniques. Even with proper technique, the risk to the officer remains much higher than non-contact restraint and compliance techniques.

It is these issues, which in fact prompted much of the development of less-lethal force technologies; including chemical restraints, and electro-compliance devices like the TASER.

So where does this leave us? Where does this leave law enforcement officers; who are simply looking for a way to effectively restrain subjects, with less risk to the officer, and the subject.

This improper perception of risk has created an environment; especially in smaller law enforcement organizations, with lower training budgets and more permissive attitudes towards the continuum of force; where TASER use is not considered serious.

In general, many officers would prefer to use the TASER than other means of enforcing physical compliance; because it presents the least risk to them, and the most compliant restrainee.

Combined this false perception of low risk, with a more permissive attitude, and the undoubted advantages to the officer; and it is understandable why in many jurisdictions it seems that taser usage is out of control, and suspects are being TASEd almost casually.

The use of the TASER should be understood to be (and officers should be trained to this effect) 1/2 step below the use of a firearm in the continuum of force. Officers should be trained in a more realistic assessment of the risks and dangers of the TASER (and other electro-compliance devices).

Additionally, TASER use in the line of duty, should be reviewed with the same diligence as the discharge of a firearm.

I don’t want to take the TASER away from officers, as it is a useful and excellent tool that in general DOES increase the safety of both the officer, and the restrainee.

What I want, is for officers, and agencies, to understand, and take the risks and impact of TASER usage more seriously.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Sorry Granny, “But For The Good Of Everyone, The Law Was Put Into Effect.”

I tells ya, sometimes ya just gotta to make an example of ‘em:

When Sally Harpold bought cold medicine for her family back in March, she never dreamed that four months later she would end up in handcuffs.

Harpold is a grandmother of triplets who bought one box of Zyrtec-D cold medicine for her husband at a Rockville pharmacy. Less than seven days later, she bought a box of Mucinex-D cold medicine for her adult daughter at a Clinton pharmacy, thereby purchasing 3.6 grams total of pseudoephedrine in a week’s time.

Those two purchases put her in violation of Indiana law 35-48-4-14.7, which restricts the sale of ephedrine and pseudoephedrine, or PSE, products to no more than 3.0 grams within any seven-day period.

When the police came knocking at the door of Harpold’s Parke County residence on July 30, she was arrested on a Vermillion County warrant for a class-C misdemeanor, which carries a sentence of up to 60 days in jail and up to a $500 fine. But through a deferral program offered by Vermillion County Prosecutor Nina Alexander, the charge could be wiped from Harpold’s record by mid-September.

You know the only thing worse than a police force given the discretion to determine whether or not a lawbreaker is a real threat to society and should be arrested for a crime — a situation which can lead to unintended consequences of racist enforcement, letting cronies off the hook, etc? A police force which enforces horrible, no-good, very bad laws evenly.

H/T: Reason

Papers Please

Over at the Agitator, Radley Balko asks why people are amused by Bob Dylan’s latest run-in with the law.

I find it pretty depressing. There was a time when we condescendingly used the term “your papers, please” to distinguish ourselves from Eastern Block countries and other authoritarian states. Post-Hiibel, America has become a place where a harmless, 68-year-old man out on a stroll can be stopped, interrogated, detained, and forced to produce proof of identification to state authorities, despite having committed no crime.

Maybe what makes it comical rather than a tragedy is that it happened to a famous guy rather than some ordinary person.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Man Receives 6 Months in Jail…for Yawning?

Just when you think the criminal justice system couldn’t be any wackier, a spectator inside a county courthouse was sentenced to 6 months in jail for yawning. No shit.

Williams, 33, attended his cousin’s July hearing at Will County Courthouse in Joliet. His cousin, Jason Mayfield, pled guilty to a felony drug charge. As the judge sentenced Mayfield to two years probation, Williams let out a yawn, an involuntary faux pas in such a formal setting.

Circuit Judge Daniel Rozak thought the yawn was criminal and sentenced Williams to six months in jail, the maximum penalty for contempt of court without a jury trial. Rozak’s order said that Williams “raised his hands while at the same time making a loud yawning sound,” causing a disrespectful interruption in court.

I guess it never occurred to me just how much power a judge can have and did not realize that the right of trial by jury as guaranteed by the 6th Amendment evaporates once an individual enters the courtroom. It also seems to me that Williams’ 8th Amendment protection from “cruel and unusual punishment” has been violated as being sentenced to 6 months in jail seem both cruel and unusual to me.

But what do I know? I read the Constitution’s plain language rather than more than 200 plus years of case law which have obscured the meaning of what should be a very simple concept.

Popular Mechanics Separates CSI Fact from CSI Fiction

CSI, Forensic Files, The First 48 and other television programs of this genre are among my favorites. Investigators study a crime scene and learn all sorts of valuable information from blood spatter, shoe prints, tire marks, hair fibers, ballistics, and trace evidence. We are to believe that “the evidence doesn’t lie” and that these noble CSI crusaders seek only the truth and determine this truth by their many years of expertise in all areas of science.

That is what we are to believe but is this reliance on forensic science in solving crimes misplaced? The cover story in the August 2009 article of Popular Mechanics makes the argument that the “science” in forensic science isn’t always all it’s cracked up to be.

On television and in the movies, forensic examiners unravel difficult cases with a combination of scientific acumen, cutting-edge technology and dogged persistence. The gee-whiz wonder of it all has spawned its own media-age legal phenomenon known as the “CSI effect.” Jurors routinely afford confident scientific experts an almost mythic infallibility because they evoke the bold characters from crime dramas. The real world of forensic science, however, is far different. America’s forensic labs are overburdened, understaffed and under intense pressure from prosecutors to produce results. According to a 2005 study by the Department of Justice, the average lab has a backlog of 401 requests for services. Plus, several state and city forensic departments have been racked by scandals involving mishandled evidence and outright fraud.

But criminal forensics has a deeper problem of basic validity. Bite marks, blood-splatter patterns, ballistics, and hair, fiber and handwriting analysis sound compelling in the courtroom, but much of the “science” behind forensic science rests on surprisingly shaky foundations. Many well-established forms of evidence are the product of highly subjective analysis by people with minimal credentials—according to the American Society of Crime Laboratory Directors, no advanced degree is required for a career in forensics. And even the most experienced and respected professionals can come to inaccurate conclusions, because the body of research behind the majority of the forensic sciences is incomplete, and the established methodologies are often inexact. “There is no scientific foundation for it,” says Arizona State University law professor Michael Saks. “As you begin to unpack it you find it’s a lot of loosey-goosey stuff.”

This kind of pokes holes into the notion that the evidence doesn’t lie.

Here’s the money quote of the whole article:

[The National Academy of Science report concerning the state of forensic science used in the criminal justice system] specifically noted that apart from DNA, there is not a single forensic discipline that has been proven “with a high degree of certainty” to be able to match a piece of evidence to a suspect.

That’s right; according to the NAS report, ballistics, trace evidence, and even finger print analysis are far from perfect.

A 2006 study by the University of Southampton in England asked six veteran fingerprint examiners to study prints taken from actual criminal cases. The experts were not told that they had previously examined the same prints. The researchers’ goal was to determine if contextual information—for example, some prints included a notation that the suspect had already confessed—would affect the results. But the experiment revealed a far more serious problem: The analyses of fingerprint examiners were often inconsistent regardless of context. Only two of the six experts reached the same conclusions on second examination as they had on the first.

Ballistics has similar flaws. A subsection of tool-mark analysis, ballistics matching is predicated on the theory that when a bullet is fired, unique marks are left on the slug by the barrel of the gun. Consequently, two bullets fired from the same gun should bear the identical marks. Yet there are no accepted standards for what constitutes a match between bullets. Juries are left to trust expert witnesses. “‘I know it when I see it’ is often an acceptable response,” says Adina Schwartz, a law professor and ballistics expert with the John Jay College of Criminal Justice.

The good news, according to the article, is that there are certain forensic techniques which are considered good science:

Techniques that grew out of organic chemistry and microbiology have a strong scientific foundation. For example, chromatography, a method for separating complex mixtures, enables examiners to identify chemical substances in bodily fluids—evidence vital to many drug cases. The evolution of DNA analysis, in particular, has set a new scientific standard for forensic evidence. But it also demonstrates that good science takes time.

So should these other methods which do not have a strong scientific foundation all be junked? Not even the critics of these methods in this article are willing to go that far. The article goes on to explain that these methods should be explained in their proper context to jurors (i.e. strengths and weaknesses, variables which can affect the results, and whether the evidence is exclusionary or qualified supporting evidence, etc.). All of this should be disclosed up front rather than relying on a defense attorney who likely does not have a background in forensic science to identify each problem with the presentation of the evidence.

Of course with the damning NAS report, others like it, and more exposure to the weaknesses of forensic science used in the courtroom by mainstream publications like Popular Mechanics, criminal defense lawyers everywhere now have this in their arsenal to create reasonable doubt in the minds of jurors until expert witnesses are required to give full disclosure regarding the techniques.

1 2 3 4 5