Imprisoning LeFevre a costly, senseless ritual

Guest essay by Daniel Macallair*

Few examples better illustrate the vindictive nature of the American criminal justice system than the case of Susan LeFevre.

On April 24, LeFevre was arrested by federal marshals at her San Diego home 32 years after she walked away from a minimum security prison for nonviolent offenders in Michigan. At the time of her escape, she had just begun serving a 10- to 20-year sentence after she and a male companion pleaded guilty to charges of attempting to sell $200 worth of heroin to an undercover police officer.

Despite having no criminal record, the 19-year-old college student faced a crusading judge and the first wave of harsh drug laws. For a crime that may have resulted in probation in a neighboring jurisdiction, LeFevre received the maximum possible prison sentence.

Now a 52-year-old law-abiding mother and housewife, LeFevre has returned to Michigan where justice and corrections officials have stridently vowed that she will face the wrath of the criminal justice system.

While walking away from a prison sentence is never justified, the case raises troubling questions about the American criminal justice system and the purpose of imprisonment.

According to a recent study by the Center on Juvenile and Criminal Justice, the U.S. has the highest imprisonment rate in the world. With just 5 percent of the world's population, we have 25 percent of the world's prisoners.

Even more startling, the U.S. jail and prison population for drug offenses (458,131) exceeds the European Union's jail and prison population for all offenses (356,626).

The reason why the United States imprisons 740 out of every 100,000 citizens compared to Europe's rate of 110 per 100,000 is the size of its prison establishment and the acceptance of imprisonment as a sentence for both violent and nonviolent offenders. Other countries choose to use prison sentences very sparingly on the understanding that prisons are cruel and brutalizing places that should be reserved for only the dangerous. Instead, European countries prefer to rely on penalties such as day fines that are tied to the individual's income....

LeFevre's imprisonment will cost the state of Michigan more than $300,000 during the next 10 years. This does not include any additional periods of imprisonment imposed for her earlier escape. Many in the prison establishment will argue that requiring LeFevre to serve her sentence is necessary to demonstrate the criminal justice system's resolve and to deter others from similar actions. Others argue that special treatment for LeFevre cannot be justified since special considerations are not extended to other inmates.

Effective criminal justice systems measure their success by the number of people successfully returned to the community, not the number of inmates maintained in prison. Incarcerating individuals such as LeFevre who pose no danger to society and who are forced to leave behind children and spouses simply renders her punishment a costly and senseless ritual.

In this instance, society would be best served by allowing LeFevre to return home, leave the past behind and continue her productive life.

*Reprinted with the written permission of the author. Originally posted on the Saginaw (Michigan) News online edition. Daniel Macallair is executive director of the Center on Juvenile and Criminal Justice and teaches criminal justice at San Francisco State University.

A bridge as a last resort

Guest essay by Danny Westneat

Seattle Times staff columnist

SNOHOMISH — The patch under the bridge is closed in by brambles. Rodent tracks crisscross in the dirt. It may be dry, but still it's not fit for human habitation.

Unless you're a sex offender, that is. The underside of the 88th Street bridge, near this river town's greenhouses and horse farms, is where state government last week assigned a released rapist to sleep.

David J. Torrence, who assaulted a 16-year-old girl in 1995, had completed his latest prison term (for failing to register as a sex offender.) He had no place to go. So officials gave him a sleeping bag and a rain poncho, then told him to stay under this bridge, 9 p.m. to 6 a.m., until further notice.

"We're not proud of it," says Mary Rehberg, parole officer for the state Department of Corrections. "We did it because this is what it has come to. Under a bridge is the best of the options we had left."

That we're now storing sex offenders under bridges is hardly the worst thing to happen in the long struggle over sex crimes. Not compared with what happened to the victims.

But it is a sign of a looming breakdown. There's got to be a better way.

Nobody wants sex offenders around. It can be infuriating to see taxes spent on their treatment or care. But putting them under bridges, like trolls? Set aside whether that's inhuman. It's about the worst outcome possible, for public safety.

Torrence was released from state prison at Monroe on April 20. He is a Level 3 — high risk for reoffending. He is not deemed so dangerous, or his crimes so serious, that he qualifies to be locked up longer.

Rehberg tried for months to find him a place to live.

He's barred by local ordinance from living in the town of Monroe (it bans all Level 2 and 3 offenders.) So she tried his relatives in another state. That state, like Monroe, rejected having him come there.

She called motels, shelters, landlords known to rent to sex offenders. All said no.

Almost any apartment building was likely to be off-limits because there would be families living there.

advertising

That's increasingly the way it goes. Sex offenders are the new lepers. She fitted him with a GPS bracelet and drove him to the 88th Street bridge.

"At least we could check on him," she said. "We could keep trying to find him a place. I'm sorry to say it, but it was the best we had to offer."

On the fourth night, he cut off his monitor and fled. So far he hasn't been found.

Some version of this sorry story is about to happen again. Rehberg is trying, but failing, to find housing for three more sex offenders, all due out soon.

The state has got to build some monitored halfway houses for sex offenders. Like you, I don't especially want one on my block. It also strikes me as unfair to pay for housing for criminals while many taxpaying folks are hurting.

But forget about fair. This system is shot. Our government just put a Level 3 sex offender under a bridge.

I asked Rehberg: Did you get much criticism for this?

"Not as much as we get when we actually find them a place to live," she said.

Reprinted with the written permission of the author. Danny Westneat can be reached via email. The column originally appeared here.

Why the Next Civil Rights Battle Will Be Over the Mind

Guest essay by Clive Thompson*

Trolling down the street in Manhattan, I suddenly hear a woman's voice.

"Who's there? Who's there?" she whispers. I look around but can't figure out where it's coming from. It seems to emanate from inside my skull.

Was I going nuts? Nope. I had simply encountered a new advertising medium: hypersonic sound. It broadcasts audio in a focused beam, so that only a person standing directly in its path hears the message. In this case, the cable channel A&E was using the technology to promote a show about, naturally, the paranormal.

I'm a geek, so my first reaction was, "Cool!" But it also felt creepy.

We think of our brains as the ultimate private sanctuary, a zone where other people can't intrude without our knowledge or permission. But its boundaries are gradually eroding. Hypersonic sound is just a portent of what's coming, one of a host of emerging technologies aimed at tapping into our heads. These tools raise a fascinating, and queasy, new ethical question: Do we have a right to "mental privacy"?

"We're going to be facing this question more and more, and nobody is really ready for it," says Paul Root Wolpe, a bioethicist and board member of the nonprofit Center for Cognitive Liberty and Ethics. "If the skull is not an absolute domain of privacy, there are no privacy domains left." He argues that the big personal liberty issues of the 21st century will all be in our heads - the "civil rights of the mind," he calls it.

It's true that most of this technology is still gestational. But the early experiments are compelling: Some researchers say that fMRI brain scans can detect surprisingly specific mental acts - like whether you're entertaining racist thoughts, doing arithmetic, reading, or recognizing something. Entrepreneurs are already pushing dubious forms of the tech into the marketplace: You can now hire a firm, No Lie MRI, to conduct a "truth verification" scan if you're trying to prove you're on the level. Give it 10 years, ethicists say, and brain tools will be used regularly - sometimes responsibly, often shoddily.

Both situations scare civil libertarians. What happens when the government starts using brain scans in criminal investigations - to figure out if, say, a suspect is lying about a terrorist plot? Will the Fifth Amendment protect you from self-incrimination by your own brain? Think about your workplace, too: Your boss can already demand that you pee in a cup. Should she also be allowed to stick your head in an MRI tube as part of your performance review?

But this isn't just about reading minds; it's also about bombarding them with messages or tweaking their chemistry. Transcranial magnetic stimulation - now used to treat epilepsy - has shown that it can artificially generate states of empathy and euphoria. And you've probably heard of propranolol, a drug that can help erase traumatic memories.

Let's say you've been assaulted and you want to take propranolol to delete the memory. The state needs that memory to prosecute the assailant. Can it prevent you from taking the drug? "To a certain extent, memories are societal properties," says Adam Kolber, a visiting professor at Princeton. "Society has always made claims on your memory, such as subpoenaing you." Or what if you use transcranial stimulation to increase your empathy. Would you be required to disclose that? Could a judge throw you off a jury? Could the Army turn you away?

I'd love to give you answers. But the truth is no one knows. Privacy rights vary from state to state, and it's unclear how, or even if, the protections would apply to mental sanctity. "We really need to articulate a moral code that governs all this," warns Arthur Caplan, a University of Pennsylvania bioethicist.

The good news is that scholars are holding conferences to hash out legal positions. But we'll need a broad public debate about it, too. Civil liberties thrive only when the public demands them - and understands they're at risk. That means we need to stop seeing this stuff as science fiction and start thinking about how we'll react to it. Otherwise, we could all lose our minds.

*Reprinted with the written permission of the author from Wired magazine. Clive Thompson writes about science, technology, and culture for the New York Times Magazine, Wired, Discover, and others. Find out more about him at his blog, Collision Detection.

Guest commentary: Prisoners of panic

Yesterday's Los Angeles Times featured a great opinion piece on the costly and out-of-control effects of tough-on-crime rhetoric. It was written by Joe Domanick, a senior fellow at the USC Annenberg Institute for Justice and Journalism. Mr. Domanick, author of "Cruel Justice: Three Strikes and the Politics of Crime in America's Golden State," is currently at work on a book about California's prison system. With his permission, I'm posting the entire piece.

Guest commentary by Joe Domanick

Prisoners of panic: Media hype and political quick fixes have swelled our inmate population

from the L.A. Times, January 6, 2008

How much more folly, absurdity, fiscal irresponsibility and human tragedy will we endure before we stop tolerating the political pandering that has dictated our criminal justice law and policy over the last two decades?

The pattern has become all too clear. Our politicians, fearful of being labeled "soft on crime," react to sensationalistic coverage of a crime with knee-jerk, quick-fix answers. Only years later do the mistakes, false assumptions and unexpected consequences begin to emerge, and then the criminal justice system is forced to deal with the mess created by the bad lawmaking.

For example, remember the great crack scare of the 1980s? When basketball superstar Len Bias, who'd been drafted by the Boston Celtics as a franchise player, died of a crack overdose, the media went wild in covering it. Alarmed by the sudden increase in crack use and fearful that the drug was highly addictive and disposed users to commit violence, Congress mandated tough minimum sentences for crack-related crimes. A defendant convicted of possessing a small amount of crack could receive the same sentence as one possessing 100 times that amount of powder cocaine. Because crack users were disproportionately African American (and powder cocaine users were disproportionately white), 85% of those receiving dealer-like sentences for possession or sale of small amounts of crack were black -- an outcome that helped to fuel widespread perceptions among blacks that there was a double standard of justice in the U.S.

In December, the overly harsh and misguided sentencing policy concocted during the "war on drugs" in the 1980s was finally modified. The U.S. Supreme Court ruled that judges were no longer bound by the strict sentencing guidelines, freeing the jurists to craft punishment that best fits the crime and the background of the defendant.

The 1990s produced its own racially tinged crime panics. Led by John J. Dilulio Jr., a political scientist at Princeton University, and William J. Bennett, a former secretary of Education in the Reagan Cabinet, law-and-order proponents declared that the U.S. was being overrun by a new generation of remorseless "super-predators" spawned by crack-head mothers in violence-infested ghettos. Stories of kids committing heinous crimes were common in the media. One of the most sensational occurred in Chicago in October 1994. Two boys, one 10 years old, the other 11, dropped 5-year-old Eric Morse from the 14th floor of a housing project, killing him, because he refused to steal candy for them.

In response to such crimes, politicians across the country passed anti-super-predator laws. In many states, including California, the age kids could be tried as adults was lowered to 14, and in 48 states, the decision to try juveniles as adults was taken away from judges and given to prosecutors. As a result, the number of people under 18 tried as adults rose dramatically through the 1990s, and a small percentage of them were even sentenced to prison. Ironically, the predicted crime explosion caused by super-predators never materialized. Juvenile arrests declined by more than 45% from 1994 to 2004, according to FBI statistics.

But the ultimate example of media hype meeting irresponsible politicians to produce bad public policy is California's three-strikes law. It was chiefly written by Fresno photographer Mike Reynolds after the murder of his daughter, Kimber, in 1992.Introduced in the Legislature, the bill languished until the rape and murder of 12-year-old Polly Klaas in 1993. A network of right-wing talk-radio hosts reacted to the killing by fiercely promoting Reynolds' measure, which had provisions like no other three-strikes bill in that virtually any crime, no matter how petty, could be prosecuted as a third strike.

In 1994, the Legislature unanimously put the measure on the November ballot, and Proposition 184 passed easily. The law would eventually send thousands of Californians to prison for 25 years to life, some for such third-strike crimes as attempting to steal a bottle of vitamins from a drug store, buying a macadamia nut disguised as a $5 rock of cocaine from an undercover cop and shoplifting $2.69 worth of AA batteries.

Today, Californians are still paying the price for that folly and other like-minded laws, not just in the ruined and wasted lives of people sentenced under these laws, but in other ways. There are now tens of thousands of inmates in California convicted of nonviolent crimes and serving out long second- and third-strike sentences, as well as thousands more behind bars because minor crimes were turned into felonies with mandatory minimum sentences.

All these laws have contributed to severe overcrowding in the state's prisons -- as high as 200% of capacity -- that has produced conditions of such "extreme peril" for prisoners and guards that Gov. Arnold Schwarzenegger was forced to declare a systemwide state of emergency in 2006. Since 2003, the inmate population has grown 8%, to about 173,000. But the budget of the Department of Corrections and Rehabilitation has skyrocketed 79%, to $8.5 billion, becoming the fastest-growing category in the state budget and a factor in opening up a $14-billion budget deficit.

The get-tough-on-crime laws also have helped create a crisis in California's prison healthcare system, where spending has risen to $1.9 billion a year, up 263% since 2000. A large part of the problem is that the prison population is aging because inmates are serving the longer sentences approved by lawmakers, and with aging comes more medical problems. The system became so understaffed and dysfunctional that a federal judge ruled that it was causing at least one avoidable death a week through sheer neglect and ineptitude. He has seized the entire prison medical system and placed it under his direct supervision.

Faced with the huge budget deficit and judicial threats to cap the state's prison population, Schwarzenegger's office has been floating the idea of early release for about 22,000 inmates convicted of nonviolent crimes. That 13% cut in prisoners, however, would require legislative approval, something that is by no means certain. The story of crime and punishment in California -- and the country -- since the 1980s, after all, has been quick-fix answers fueled by media hype. Let's hope that such proposals as releasing nonviolent inmates receive serious attention rather than panicky headlines that lead to bad criminal justice laws.

The Social Construction of Crime

Do you think that a crime is just, as Webster's would say, "an unlawful activity"? Think again. Yesterday, I was horrified to witness a prison guard brutalize a young man for the mere act of smiling, which the guard construed as a prison rules violation. In this essay, a sociology professor explains the complicated interpersonal negotiations that go into deciding whether a trivial act will be labeled a crime.

Guest essay by Bradley Wright*

What is a crime? This simple question turns out to have a variety of answers.

A simple answer would be that a crime is doing anything that is against the law. The problem with this, however, is that there are tens of thousands of laws, and who could possibly remember all of them? Did you know that here in Connecticut it is illegal to throw away used razor blades? In Massachusetts, it's illegal to use bullets as currency? In Arkansas, it is illegal to drive barefoot?

Some laws may be well-known but rarely or never enforced. For example, when was the last time you got a ticket for driving five miles over the speed limit? If a law is either not known or not enforced, does breaking it constitute a crime?

This raises the issue of which laws actually get enforced, and one answer uses the social psychological principle of social construction. Rooted in the sociological perspective of symbolic interactionism, social construction is the idea that social realities happens as people interact and come to an agreement about what a situation means.

Here’s an example that happens fairly regularly here at [the University of Connecticut]: A student walks around at night with a beer in their hand, and they see a police officer. Not only are they underage, but they are also not supposed to have an open container in public, so they drop the beer. The student defines the situation as one of avoiding an alcohol-related crime. The police officer sees the dropped bottle or cup, goes over to the student, and tells them to pick it up and dispose of it properly. The police officer defines the situation as one of littering. This situation is pretty straightforward—the student readily accepts the police officer’s definition and throws away the cup or bottle.

In other situations, however, there is protracted negotiation about what is happening and what is right and wrong.

Here's a video shot in St. George Missouri. Police Sergeant Sgt. James Kuehnlein confronts 20-year-old Brett Darrow for being stopped in a parking lot. It turns out that Brett had a video camera on in the back of his car, and so we are able to hear the whole interaction. Here's a snippet of the conversation:

Kuehnlein asks for identification. When Darrow asks whether he did anything wrong, the officer orders him out of the car and begins shouting.

"You want to try me? You want to try me tonight? You think you have a bad night? I will ruin your night. … Do you want to try me tonight, young boy?"

Darrow says no.

"Do you want to go to jail for some [expletive] reason I come up with?" the police officer says. Later, Darrow says, "I don't want any problems, officer."

"You're about to get it," Kuehnlein is heard saying, "You already started your [expletive] problems with your attitude."

[The police officer was ultimately fired.]

There are various implications of crime being socially negotiated. Most obviously, justice isn't a predetermined outcome based on what you actually do, instead it's sometimes what you can negotiate. This puts a premium on your ability to negotiate a successful outcome with police officers and other members of the criminal justice system. That's why it's such a good idea to be polite and deferential to the police when you interact with them. "Yes officer" and "no officer" are very good things to say, for a pleasant interaction paves the way for a more successful negotiation of what's going on.

The criminal justice system may not always enforce all written laws, but they do sometimes enforce unwritten laws. There are various norms of how to deal with the police and other officials, such as being polite, and even though these norms are not official laws, they are enforced as if they were.

For example, having a sarcastic tone with a police officer isn't illegal, but it can change the amount of punishment you get for a crime. Likewise, there is no law saying that defendants in court have to present themselves well and be apologetic, but it's quite possible that poor self-presentation in the courtroom will lead to a harsher sentence.

This social construction of crime can also be affected by individuals' place in society. The police and courtroom actors, like anyone, have their preconceptions about different types of people. That means that going into their interaction with somebody they might already have an idea as to whether that person is guilty or how that person will act.

These preconceptions, which we can also call stereotypes, can affect the interaction between the official and the person in question. In the video clip, the police officer clearly has some ideas about young people in fast cars, and he projected them onto the person he stopped. Not only age, but also race, gender, clothing, and general appearance can affect expectations of law enforcement officials which in turn, via social construction, can alter the way someone is treated by the police or the courts.

The next time that you get pulled over, maybe the real question is not what you did but rather what you can construct through social interaction.

*Reprinted with the written permission of Bradley Wright from the exceptionally high-quality blog Everyday Sociology. Dr. Wright is a sociology professor at the University of Connecticut.

Guest report: Interrogations & Confessions Conference, El Paso, Texas

Since I haven't found the time to report on last week's superb conference on interrogations and confessions in El Paso, I'm posting a guest report by Edwin Colfax, director of the Justice Project of Austin, Texas. This report is via "Grits for Breakfast," an award-winning criminal justice blog.

by Edwin Colfax, posting at Grits for Breakfast

I believe it was Jeff Deskovic, a recent DNA exoneree from New York, who said he felt like he was at the Super Bowl, his way of saying that we were in the presence of the best of the best. Jeff was talking about the international conference titled "Interrogations and Confessions: A Conference Exploring Current Research, Practice and Policy," held last week at the University of Texas at El Paso. Having been to a fair number of conferences on issues related to wrongful convictions, I have to say he was really on to something. The conference lineup was a who's who of leading researchers on interrogations and false confessions, including most of the pioneering social psychologists and legal experts who have helped us understand the reality of false confessions and how they occur.

And, of course, Jeff was there to tell us his story about a grueling interrogation he endured at 17 after a classmate was murdered in Peekskill, New York. His eloquent effort to provide a glimpse into his experience is in many ways a tall order, given that most people have a hard time wrapping their head around how an innocent person (especially one who is not mentally disturbed) can be led to confess to a serious crime. Of course, the reality of the phenomenon is increasingly well known and well documented.

Saul Kassin, Richard Leo, Gisli Gudjonsson, Steven Drizin, Ray Bull and Allison Redlich are among the leaders in the field, and anyone interested in learning about interrogations would be well served to review their pioneering work and recent publications. Below are some highlights of the conference Grits readers might find of interest.

Recording Interrogations Benefits Everybody

Confessions are regarded as the most powerful evidence that can be presented at trial, and can even overcome other exculpatory evidence, even forensic evidence, as was the case in the Norfolk Four case.

One of the most straightforward policy responses to false confessions is to electronically record custodial interrogations, thereby creating a complete record of suspect statements and the process that led up to them. Having a complete record eliminates the swearing contests about who said what, when and in what context, and allows judges and juries to make fully informed calls about the voluntariness and reliability of suspect statements.

My own presentation reviewed the unmistakable national trend toward requiring recording of complete custodial interrogations, which is driven in large part by an increasing awareness among law enforcement that the policy serves their own interests as well as the protection of the innocent. My review showed at least 10 states plus the District of Columbia with some statewide recording policy, either in statute or by court ruling, the most recent being North Carolina. California Governor Arnold Schwarzenegger has a recording bill on his desk now.

Recording modernizes police procedures in a way that ensures the best evidence possible against the guilty, and protects police from bogus claims of misconduct. The Justice Project's Policy Review on recording is a great overview of the issue, including case profiles, a model policy, and an overview of the research.

While police and prosecutors in jurisdictions that do not record often express skepticism, those who do record give unequivocal endorsements to the policy. Thanks to the hard work of Thomas P. Sullivan, a former federal prosecutor who has extensively interviewed experienced detectives who record, we know that recording is a valuable law enforcement tool. Sullivan has published several must-read articles on the benefits to law enforcement, available here and here. This work is sure to move us toward more recording as law enforcement hears from peers about the benefits and practicality.

Since Grits reported recently on Prof. Daniel Lassiter's 20 years of research on camera angle bias, I’ll only mention that recording needs to be done carefully and properly to ensure that the evidence is documented in a complete, fully objective way. (Prof. Lassiter was one of the organizers of the El Paso conference, along with Prof. Christian Meissner, both of whom have made important contributions to the development of the literature.)

The Reid Technique and the Detection of Deception

Any serious discussion of interrogations in the U.S. will quickly move to the Reid Technique, which Grits has discussed before. Reid is the dominant interrogation methodology used by law enforcement in the U.S., and delivers trainings all over the country. The President of Reid and Associates, Joseph Buckley, gave an overview of the Reid Methods to a tough audience. Many of the researchers there have been highly critical of the Reid Technique because of the substantial risk of its generating unreliable statements from suspects.

One part of the Reid Technique involves asking a series of particular questions to suspects which are designed to elicit signals of deception from suspects. In fact, a fundamental assumption of the Reid Technique is that these questions, asked early on, are a reliable way to determine if the suspect is truthful or deceptive. If the interrogator determines that the suspect is deceptive, the Reid system moves into a confrontational interrogation mode, in which the interrogator does almost all the talking, and in which the suspect is offered to choose between alternative accounts, which maximize and minimize the suspect’s culpability (but each of which presupposes the suspect's guilt).

One presenter, however, pointed out that the assumptions about outward signals of deceptive behavior that Reid relies on are based on paltry and questionable research, and what little there is uses a very small sample size and ignored ground truth about when a confession is true or false. Professor Aldert Vrij's research actually shows that police are "generally rather poor" at distinguishing deceptiveness. Vrij has published a new edition of his book which he characterizes as an alternative to the Reid Technique that has a much more solid empirical foundation. Given that the high-powered interrogations that have elicited false confessions got cranked up as a result of a mistaken judgment about the truthfulness of a suspect, this research may help to put fewer people in the inherent jeopardy of those psychologically coercive interrogation sessions.

One of Vrij's examples I found particularly interesting. Many people think that excessive blinking may be a sign that someone is deceptive, presumably because they are more nervous about the situation and what they are saying. But research suggests otherwise. First off, innocent people are very nervous in interrogations, too—they are nervous about not being believed! But Vrij has pointed out that lying is, cognitively speaking, harder work than truth telling. Because the liar has to think more about what he is saying, he actually tends to blink less, while focusing all that cognition on keeping his story straight.

Many other bits of 'folk psychology' about deception are similarly dubious.

(Note: I will have more to say about new research into detection deception, as well as some cautionary comments about Vrij's research, in a future post. - Karen Franklin, Ph.D., In the News)

Juvenile Interrogation Tactics Ignore Developmental Vulnerabilities

Another significant criticism of the Reid Technique is that juvenile suspects (as well as those who are mentally retarded or mentally ill) are especially vulnerable to deceptive and psychologically coercive interrogation techniques now standard because they are more compliant and suggestible. There is significant research to show that juveniles are more susceptible to false confessions, but Reid training does not address the relevant differences between kids and adults, and indicates that their standard methods are appropriate for juveniles.

In what I thought was one of the most instructive studies presented, Professor N. Dickon Reppucci from the University of Virginia demonstrated that American police officers, while they generally demonstrated a decent understanding of the developmental differences between youth and adults, seemed to ignore those differences in the context of interrogating young suspects. Repucci and his colleagues did an extensive national survey of police in representative jurisdictions across the country, asking their knowledge about child development and developmental limitations, as well as their views about interrogating youths. There was an unmistakable disconnect between their general appreciation of some basic and relevant developmental factors and their belief that youth can be dealt with in the same manner as adults when it comes to interrogation.

England's Different Approach

Professor Ray Bull gave an overview of the evolution of practices in England, which contains important lessons for those of us in the U.S. who are concerned about false confessions. After some high profile exonerations, the British revised policies in the 1980s away from confrontational, accusatory models of interrogation (like Reid’s) to an information-gathering model. And, of course, the British have required recording of custodial interrogations for many years now, too. According to Prof. Bull, these changes have been embraced by the police service and have proven effective, and there is no effort to go back to the old ways of doing things.

How Innocence Can Work Against You

Saul Kassin gave a fascinating presentation on how the "phenomenology of innocence" can actually contribute to false confessions. Kassin described research that shows that innocent suspects are much more likely to waive their rights and to be open and forthcoming. This seems to be the result of a somewhat naïve but natural faith in the transparency of their innocence. While innocent people are able to offer more plausible denials, they actually seem to trigger harsher tactics from guilt-presumptive interrogators (see Kassin's study from 2003).

On top of all this, there is a distrust of what are perceived as "weak" alibis, such as that one was at home, sleeping in bed, or with family members or friends watching television. Those kinds of things are the reality of most people’s everyday lives, yet investigative tunnel vision can make them seem "weak." All these factors contribute to what Kassin calls an innocence/confession paradox.

Even misrepresentations of evidence, a common, legally permissible interrogation tactic, can, under the right conditions, actually contribute to a false confession. If one is told that his fingerprints are on the gun, or his DNA is at the scene, if he believes in the criminal justice system and in his own innocence, he may actually be more likely to confess to get himself out of a particularly nasty, confrontational interrogation. Such a confession is motivated by the belief that the physical evidence will, when reviewed properly, clear up the mistake. But often that evidence does not exist at all, and was only a bluff by the interrogator to extract a confession. Youths and others with developmental disabilities, in particular, are susceptible to such an ill-advised short-term strategy for getting out of a nasty interrogation.

Posted with the written permission of Edwin Colfax, Justice Project of Austin, Texas, and Scott Henson, award-winning "Grits for Breakfast" blogger

Photo credit: Scottog (Creative Commons license)

Note: Jeff Deskovic, the exoneree who spoke at the conference, is supporting himself through speaking engagements as he finishes up his bachelor's degree and prepares for law school. Contrary to the public impression that exonerees automatically receive money from the government, his sole source of income comes from speaking engagements. He is an excellent speaker, so think about inviting him to your venue to discuss his case.)

Guest Editorial: The Presence of Malice

Richard Moran
Professor of Sociology and Criminology, Mount Holyoke College

New York Times op-ed, August 2, 2007, reprinted with the written permission of Richard Moran and the New York Times

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded more than $100 million to four men whom the F.B.I. framed for the 1965 murder of Edward Deegan, a local gangster. It was compensation for the 30 years the men spent behind bars while agents withheld evidence that would have cleared them and put the real killer — a valuable F.B.I. informant, by the name of Vincent Flemmi — in prison.

Most coverage of the story described it as a bizarre exception in the history of law enforcement. Unfortunately, this kind of behavior by those whose sworn duty it is to uphold the law is all too common. In state courts, where most death sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

Mistakes are good-faith errors — like taking the wrong exit off the highway, or dialing the wrong telephone number. There is no malice behind them. However, when officers of the court conspire to convict a defendant of first-degree murder and send him to death row, they are doing much more than making an innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be executed, a prosecutor can be dead set against reopening an old case. Since so many wrongful convictions result from official malicious behavior, prosecutors, policemen, witnesses or even jurors and judges could themselves face jail time for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful convictions is compounded by the very people who work to uncover them. Although the term “wrongfully convicted” is technically correct, it also has the potential to be misleading. It leads to the false impression that most inmates ended up on death row because of good-faith mistakes or errors committed by an imperfect criminal justice system — not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a death sentence is overturned because of malicious behavior, we should call it for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are exonerated are not necessarily innocent of the crimes that sent them to death row. They have simply had their death sentences set aside because of errors that led to convictions, usually involving the intentional violation of their constitutional right to a fair and impartial trial. Very seldom does the court go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice officials trying to do the right thing. (A police officer, say, plants evidence on a defendant he is convinced is guilty, fearing that the defendant will escape punishment otherwise.) In cases like these, officers or prosecutors have been known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by prosecutors and the police underscores why it’s important to discard, once and for all, the nonsense that so-called wrongful convictions can be eliminated by introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive scientific evidence” of guilt, as Mitt Romney, the presidential candidate and former governor of Massachusetts has proposed, we will still not eliminate the problem of wrongful convictions. The best trained and most honest forensic scientists can only examine the evidence presented to them; they cannot be expected to determine if that evidence has been planted, switched or withheld from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect workings of our criminal justice system — if it did we might be able to remedy most of it. A crucial part of the problem rests in the hearts and souls of those whose job it is to uphold the law. That’s why even the most careful strictures on death penalty cases could fail to prevent the execution of innocent people — and why we would do well to be more vigilant and specific in articulating the causes for overturning an unlawful conviction.