Sentencing reform may target parole system

California is the nation’s uncontested leader in criminal recidivism. We send about 7 out of 10 released prisoners back to prison within two years. That’s a far greater proportion than any other state.

Why?

That’s easy to answer. Unlike some other states, California puts everyone coming out of prison on parole. Then, when they miss an appointment with a parole agent or have a “dirty” urinalysis, it’s back to prison for them.

These “technical violators” make up about two-thirds of prison admissions at any given time. Most are non-violent, non-serious offenders. They rotate in and out of prison, staying for an average of five months each time, at an estimated cost of $900 million a year.

Individual parole agents make these decisions, with little or no public oversight.

So, what would happen if traditional parole were eliminated entirely?

That's an intriguing idea that will be debated soon by the American Law Institute as part of its ongoing revision of the Model Penal Code.

The topic came up this week at the annual conference of the National Association of Sentencing Commissions, meeting this week in Oklahoma City. Officials from 27 states - including lawmakers, attorneys, judges, professors, researchers and corrections officials – are meeting under the theme "New Frontiers in Sentencing." And reducing imprisonment through drastic sentencing reform is one aspect of that theme.

"Every state that has tried, beginning with Minnesota and Washington in the 1980s, to deliberately take control of prison growth has had success in doing it," conference presenter Kevin Reitz, a law professor at the University of Minnesota, was quoted by the AP as saying. "An awful lot have done that without sacrificing public safety.”

"We're going to have to do something different,” agreed Oklahoma state Senator Richard Lerblance. “We're going to have to get over the thought that we're soft on crime because we're addressing these issues. We're going to have to get over the idea that we're going to lock them up and leave them there."

The tone of this conference is yet more evidence of the pendulum swing that I’ve been posting about recently. Only, the reformist mood may be slower to reach California, which isn't even a member of the federal and multi-state sentencing consortium.

Hat tip to the “Sentencing Law & Policy” blog for alerting me to this conference. Photo credit: "Remuz" (Creative Commons license).

For more on the California parole system, see "California's Parole Experiment," California Journal, August 2002.

International criminal justice problems spawn unusual solutions

"Mobile courts," "ghetto courts" spring up in India and Jamaica

Most Americans tend to be pretty ignorant about the rest of the world. I'm no exception. I have to admit that, while I write a lot about criminal justice issues, I don't know as much as I'd like to about the systems in many other nations. So, I thought I'd share a bit that I just learned about a couple of widely disparate criminal justice trends.

First, India:

We know that our own prisons are overcrowded, but did you know that theirs are, too? And that they, like us, are implementing a massive new prison construction program to augment and replace their old prisons, mostly built by the British between 1860 and 1930?

Much of the problem of overcrowding in Indian prisons stems from a massive backlog of "undertrials," according to yesterday's Times of India. That term, I gathered, is the Indian word for pretrial detainee. About two-thirds of the prison population are "undertrials."

And now, in an innovative effort to make the court system more accessible "to remote and backward areas," India has just launched its first "mobile court."

The mobile court is housed in a bus and staffed like a regular court to conduct full civil and criminal trials. It will travel to different regions each week, starting in a very "backward" district with an "abysmal literacy rate," according to yesterday's edition of The Hindu newspaper.

Meanwhile, a different trend of vigilante-style courts is emerging in Jamaica, apparently due to popular mistrust of the official police and court system.

The underground community tribunals in urban ghettos mete out their own forms of justice, including beatings, the breaking of bones and "sun-dance," a punishment in which an individual must "kneel on bottle-stoppers in the sun for prolonged periods, according to an editorial in yesterday's Jamaica Gleaner.

The editorial, by retired judge and former government minister Hugh Small, sounded an alarm over the potential human rights issues raised by such courts.

"Why has nothing been done, especially when they are said to impose punishments that would be regarded by the formal justice system as being cruel and inhuman?" asked Small. "If the existence of these courts is accepted in these communities as preferable to the formal system, what does this mean for nurturing awareness for the right to challenge abuses of human rights by the citizenry and the police?"

Well, that's it for this little dose of international perspective.

New study on desistance from crime

Every day, about 1,600 people are released from prisons in the United States. Until now, the primary focus has been on the "R word" - recidivism.

In a promising trend that I’ve posted about previously, some academicians and policy makers are turning to the "D" word - desistance.

As part of this welcome trend comes a new study by the National Research Council. The study, Parole, Desistance from Crime, and Community Integration, points to evidence-based interventions that significantly reduce recidivism. As a psychologist, I was happy to see that cognitive behavioral therapy tops the list, followed by intensive drug treatment. Strong marriages and ties to work also help parolees reintegrate into society.

The entire book is available for free online from the National Academies Press.

Beware the bite-mark expert

Is forensic odontologist putting innocent people on death row?

With our increasingly crime-centered culture comes the "CSI Syndrome" of glorification of all things forensic. Unfortunately, it is sometimes hard for laypeople to distinguish valid science from the junk, and good experts from charlatans.

This is especially true in newly emerging fields such as "forensic odontology," in which dentists testify as expert witnesses about bite-mark patterns.

The spotlight on wrongful convictions is shining its beam on forensic odontology as – in the words of one legal scholar – "the poster child for bad forensic science."

In an expose in the Chicago Tribune a few years ago, journalists Flynn McRoberts and Steve Mills called the field "a case study" of the ease with which "forensic science's false aura of infallibility can distort the adversarial system of American justice."

Ask 10 dentists to identify a suspect from bite marks, and six of them will point to an innocent person, according to one informal study conducted at a convention workshop back in 1999. Indeed, odontologists often don’t agree on the most basic issue of all – whether a mark on a victim’s body is even a bite mark.

Ask who is the worst culprit of all, and you’re likely to hear the name of Michael West of Mississippi. He's testified in dozens of cases and helped to send many people to prison, including at least five to death row. He’s been the subject of exposes on 60 Minutes and in Newsweek and the National Law Journal.

Later this month, his testimony will be at the center of a hearing regarding a new trial for Kennedy Brewer, convicted of the 1991 murder of his then-girlfriend's 3-year-old daughter.

At Brewer's original trial, Dr. West testified that he found 19 bite marks on the girl's body that matched Brewer’s teeth. A defense expert countered that the marks were actually insect bites, but the jury believed the charismatic Dr. West.

The new hearing is a result of new DNA technology that didn’t exist at that time. Analysis of semen found in the girl's body revealed that it came from two separate men - neither of them Brewer.

Dr. West has taken the field of forensic odontology to "bizarre, megalomaniacal depths," according to an expose yesterday on Fox News. He has "invented a system he modestly calls 'The West Phenomenon.' In it, he dons a pair of yellow goggles and with the aid of a blue laser, he says he can identify bite marks, scratches, and other marks on a corpse that no one else can see - not even other forensics experts. Conveniently, he claims his unique method can't be photographed or reproduced, which he says makes his opinions unimpeachable by other experts."

The case points to the need for both courts and professional organizations to more vigilantly police expert witnesses.

The stakes are enormously high - both for potentially innocent suspects and for the credibility of the forensic sciences. As Fox reporter Radley Balko argues:

"The Kennedy Brewer case highlights a serious flaw in our adversarial criminal justice system — the use of expert testimony in complicated, advanced scientific fields. A charlatan like Dr. West, who has little respect from his peers, can with charisma and personality convince a jury to take his word over that of an expert far more careful and deliberate in his analysis. In some cases, indigent defendants can't afford to hire their own experts at all, leaving a state's expert like West as the only testimony on the available forensic evidence."

photo credit: "selfCTRL" (Creative Commons license)

Bullies have different motives

My research with perpetrators of hate crimes challenged the notion of a uniform motivation underlying such offenses. Rather than hatred or bias, I found that many young male offenders were motivated by group affiliation needs and/or the desire for excitement.

Now, research out of Norway is finding similar dynamics underlying some bullying. The new research suggests that immigrant boys in Norway often bully "because they want to belong to a group." That’s in contrast to ethnic Norwegian boys, who tend to bully out of a desire for "power over their victims."

The research is out of the Centre for Behavioural Research at the University of Stavanger.

Hat tip to the always-informative Psychology & Crime News for this story.

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.