California and the Death Penalty

The nation’s most populous state has been a trailblazer in justice reform, but it lags behind others in its failure to abolish capital punishment. Gavin Newsom, sworn in this month as the new governor, could change that, writes a reform advocate.

On Christmas Eve, outgoing California Gov. Jerry Brown reduced the prison sentences of 131 people in California and pardoned another 143, giving them a far better chance to reintegrate into society.

The move tops Brown’s already record-breaking number of pardons and commutations and other policy changes he championed, all of which were aimed at rethinking a justice system that Americans widely agree needs an overhaul.

Indeed, there is a growing recognition across the country that mass incarceration and racial inequity in the justice system are among the most urgent issues of our time. Brown should be applauded for the steps he took to address these issues.

But the governor missed a critical piece by leaving the death penalty off his Christmas list.

In doing so, he sent a clear signal that California lags behind the national trend to end capital punishment. Now it’s up to his successor, Gov. Gavin Newsom, to finish the job.

Brown’s inaction is confusing because the death penalty is already on its last legs across the country. Eleven states have either ended or suspended the death penalty in the last 11 years. The most recent, Washington State, came just months ago when its highest court ruled that racial bias was so ingrained in the process as to make it unconstitutional.

States from New Hampshire to Louisiana to Utah have taken significant strides, and 2019 is shaping up to be another big year for states seeking to end this antiquated practice.

On the other hand, California has the largest death row in the nation—nearly 740 people, more than three times the size of Texas’ death row. California’s death row ballooned in much the same way that its prisons did, during an era when the death penalty was on the rise.

Many of the people awaiting execution would likely not be sentenced to death today, yet they have languished on death row for decades. Many were young people at the time of their crimes and are now aging, but desperate for any opportunity at rehabilitation. The death penalty offers nothing of the kind.

Instead it represents the lack of hope or opportunity for rehabilitation that Brown celebrated in granting his commutations last month.

Like Gov. Brown, I have met or heard from many people who have committed violence and later turned their lives around. What has become clear to me again and again is that most people don’t commit violence unless they’ve been exposed to it before – as victims, as witnesses, and so often as children. California’s death row is rife with such people.

The Death Penalty Information Center just published its 2018 report and found that 72 percent of those executed this year suffered a dramatic impairment – significant evidence of a mental illness; some element of brain damage or disability; or chronic, serious childhood trauma.

Those on death row are often poor or people of color and have faced the most daunting challenges. We marshal all of society’s resources to kill them after they harmed someone else, but what if we had dedicated just a fraction of the effort to prevent the violence in the first place?

Trauma, Chronic Poverty and Racism

Trauma begets trauma, and communities plagued by chronic poverty, racism, police violence, and mass incarceration experience that trauma at the highest levels. The communities most harmed by violence are very often the same that get swept into the criminal justice system. One of the cruelest aspects of executions – and the way we respond to violence overall – is how we betray our most vulnerable people.

We have all the tools we need to address their trauma and start breaking the cycle of violence and retribution that has become our nation’s shameful legacy.

Gov. Brown took powerful strides to right those wrongs throughout his two most recent terms.

“From my background, I do believe that redemption is an essential element of being human,” Brown told the San Francisco Chronicle recently.

There was wisdom and humanity in these most recent commutations. That reasoning should be extended to people who receive death sentences. Gov. Newsom now has an extraordinary opportunity.

Shari Silberstein

Shari Silberstein

By commuting the sentences of these 740 women and men, or imposing a moratorium on executing them, he can create a new legacy that pulls California and the U.S. ever closer to a new era for justice.

Additional Reading: Jerry Brown’s Criminal Justice Legacy: ‘It’s Called Hope’

Shari Silberstein is executive director of Equal Justice USA, a national leader in the movement to transform the justice system from one that harms to one that heals. She welcomes comments from readers.


Marijuana and Driving: A Cop’s Perspective

Do we need roadside tests for marijuana? A veteran detective argues that experienced police can easily identify motorists intoxicated by non-alcoholic substances without special equipment—and get them off the road.

Do we need roadside tests for marijuana?

The simple answer is: no.

Since California legalized and regulated the sale of marijuana for medical purposes in 1996, the nation has been obsessed with how the police enforce DUI laws for “driving while high on marijuana.”

It’s now become an even great concern as more states around the country have legalized recreational and medicinal marijuana.

See TCR’s Stephen Bitsoli on: “Do We Need Roadside MarijuanaTests?”

But let’s be realistic. Marijuana users have been smoking and driving on the nation’s roads, since the 1960s.  When you hear or read from your local sheriff that his or her deputies don’t know how to take enforcement action, since “there is no roadside test for marijuana,” and the sheriff clutches his pearls and trembles into the camera that we should therefore not legalize marijuana, I say: buffalo chips.

As a 15-year veteran of law enforcement who was honored multiple times as the #1 arrester of drunk drivers, I know this issue well.  I tested about 1,200 drivers and arrested about 400 of them.  I only had to release one: a guy who tested fuzzy, refused the roadside breath test in 1987 and only blew an 0.06% BAL (blood alcohol level) at the jail.

I arrested only three for non-alcohol DUI.  They just weren’t that common.

The fact is, until about 1985, police did not have the small, roadside PBT (portable breath tester, or breathalyzer) used to measure blood alcohol content. I arrested about 300 drivers based on bad driving, smell of alcohol and failing the subjective roadside tests (say your alphabet, etc.).   This is not rocket science.

Regarding DUI Marijuana or any non-alcoholic, intoxicating substance (such as opioids, prescription pain killers, magic mushrooms), the amount in your blood, a percentage, an arbitrary number (5 nanograms of marijuana for example) is not appropriate for enforcement.

If the citizen is in great pain and takes an Oxi 80 mg to bring the pain from a 9 to a 3, that driver is still sober and legal to drive.  If a citizen uses marijuana as an analgesic (pain killer), the same principle applies, as long as the citizen-driver don’t consume too much and become intoxicated.

Bad driving and field tests are more important than chemical field tests, which are of minimal usefulness. But concerns about this appear to have fueled a new industry. Some private companies will soon begin selling a roadside test for the presence of marijuana.  But when the test comes back negative, do we just let the driver go – despite bad driving and flunking our field tests?

Absolutely not.  It would be clear to any responsible officer when a driver is intoxicated on something and is a danger to himself and the public.  We arrest, read the rights for a chemical test, and ask for blood to be taken at the local clinic or hospital.  The driver goes to jail for eight hours and public safety is served.

Days later, the lab will tell us and the prosecutor what was in the blood.  And six months later, a jury can convict the driver, despite no established level or ‘number’ of “intoxication” for that drug.

I understand the nation’s desire to have a scientific device declare a driver to be legal or not.  Unfortunately, that is not possible with marijuana.

Harold Wooldridge

Harold Wooldridge

Americans should be aware that my colleagues and I have been at this type of enforcement for some five decades. We’ve long been trained on how to keep you safe.  If your opposition to legalizing marijuana is because the police are unable to enforce DUIM, you need to find another reason.  Your premise is based on false information.

For those who are interested, here is a 10-step primer of what a law enforcement officer looks for in assessing DUI.

Howard Wooldrige, a retired detective, is founder of Citizens Opposing Prohibition (COP), and co-founder of the Law Enforcement Action Partnership ( He welcomes comments from readers.


Video Counseling, Focused Training Help an Illinois Jail Address Inmates’ Mental Health  

As rural jails bear an increasing burden of individuals with mental health problems, jail authorities in Quincy, Il.,  have deployed innovative measures such as video counseling, special training for corrections officers, and partnerships with police and health providers.

Every Monday, a representative from Clarity Healthcare, based in Hannibal, Mo., visits the small Adams County jail in Quincy, Ill., to help authorities treat inmates who need mental health counseling.

The “visit” is often connected through video, allowing authorities to speak with a psychiatrist who can prescribe medications and assist with any issues they have with the medications.

“If we feel that Clarity needs to (help) somebody, we will definitely get them hooked up with it,” said Adams County Sheriff Brian VonderHaar. “From there’s up to the individual.”

Diagnosis by video is just one of the options jails in smaller jurisdictions are using to help them deal with a growing population of mentally ill inmates.

Bipolar disorder, schizophrenia and depression are just a few of the diagnoses some inmates at the Adams County Jail in Quincy have received.

With no elevator up to the booking area on the fourth floor, inmates must walk—or at times be carried—up the stairs to get booked, putting staff and the inmate at risk, especially if a mental health illness makes them uncooperative.

It’s a nationwide problem.

According to the Vera Institute of Justice,  about 14.5 percent of men and 31 percent of women in jails have a serious mental illness, compared to 3.2 percent of men and 4.9 percent of women in the general population.

Going by that estimate, it means with a capacity of 118, 21 inmates—15 men and six woman—in the Adams County Jail could be expected to have a serious mental health illness.

However, the jail has exceeded its capacity in recent years. Recent populations have soared to more than 140.

Although construction continues next to the Adams County Courthouse on a new, larger facility, local authorities are deploying in the interim a number of innovative options such as video counseling to address mental health.

Another option is focused staff training. New hires for the jail automatically go through crisis intervention courses after they complete their Basic Correctional Officer Training.

The crisis intervention team training is specifically designed to help jail officers deal with individuals who suffer from mental health illness.

Jail Administrator Chad Downs said four or five corrections officers recently completed the crisis intervention team training.

With the new jail set to open before the end of the year, VonderHaar said it is possible that more services could be offered, including in-jail counseling, but more discussions are needed for that.

Downs said after an inmate leaves, he or she might stop taking medication and then end up getting sent back to the jail after getting arrested. After they get back on their medications, he says they’re fine.

“It’s when they leave here that they might get off track,” he said, adding aftercare is another area that needs to be addressed.

Partnerships with Police

The Quincy Police Department has also changed how it interacts with those with mental health illness.

Sgt. Erica Scott, a 15-year veteran of the Quincy Police Department, has seen the change in approach when police officers are given crisis intervention training to deal with individuals suffering from mental health illness.

“It basically teaches officers not to diagnose, but how to recognize someone in crisis and how to recognize someone who is potentially mentally ill, and then how to handle it — ways to approach them, things to do, things not to do and a little bit of a de-escalation,” Scott said.

The Quincy Police Department also is working with Clarity to provide mental health evaluations as needed. The department contracted Clarity last year for evaluations and to provide services during crisis to crime victims or even officers.

“They are basically on call to us 24 hours a day to provide mental health services, so if we have someone in custody that is suicidal or homicidal and they need to be evaluated prior to being put in jail, they will come and do an assessment and determine whether or not that person really needs to go to the hospital or if they can go to jail,” Scott said.

*In 2018, officers with the Quincy Police Department responded to about 660 calls for service involving an individual with mental illness.

Scott or another assigned officer along with someone from Clarity will occasionally reach out to individuals with mental illness to make sure they are keeping up with medications and follow-up appointments they may have with an area provider.

*”I think law enforcement as a whole has taken a new perspective that jail is not a solution for a lot of these people,” she said. “It’s getting them follow-up services. A lot of people don’t need to be hospitalized. There can be out-patient services that can treat them.”

Aftercare for jail inmates is cited by both law enforcement and justice officials as an area that particularly needs attention. Last year, Adams County launched a Mental Health Court in 2018 to help divert former inmates with mental health issues to treatment.

State’s Attorney Gary Farha said the goal of Mental Health Court is to stop a pattern of behavior of repeat offending by inmates suffering from mental health illness. Cases can range from multiple counts of retail theft to violation of an order of protection.

The Mental Health Court team includes representatives from Transitions of Western Illinois, Blessing Hospital, Quincy Medical Group, the state’s attorney’s office, the Adams County public defender’s office, the Adams County Probation Department, and other representatives from law enforcement.

“You’re not only getting treatment providers looking at (inmates’) cognitive thinking, but they’re also looking at their medication and what it might do to them—and what not taking their medication might do to them,” Farha said.

“That’s the wonderful thing about the team approach, because you get everything from different prospective. Ultimately, the judge is the arbitrator.”

The problem-solving court is a more intensive version of probation for those convicted of crimes who suffer from mental health illness.

However, Farha takes issue with a state requirement that sets specific standards for admission in the program. With space for just 20 to 25 people, that could limit people who staff believe would be successful from entering the program, he said.

“That’s a little bit frustrating when you’re trying to start (an inmate) out a program because we’ve already had an individual that has left the program for not being able to handle it, and there are a couple others that are having difficulty with it,” he said.

Matt Hopf, a staff writer for The Herald-Whig, is a 2018 John Jay Rural Justice Reporting Fellow. This is a condensed and slightly edited version of an article written as part of his fellowship project. The full version can be accessed here.


Thieves and Art: Why Protecting World Treasures Needs Higher Priority

While security around many of the world’s most important artifacts has improved, the failure to take full advantage of modern technology can be costly, says a British security expert.

Heist movies like “Ocean’s 8” and “The Italian Job” are fun to watch, but as we start the new year, audiences might be forgiven for wondering whether the most famous pieces of art and jewellery are vulnerable to highly skilled, real-life master thieves.

Most are safer than you might think.

The Mona Lisa, a masterpiece by Italian Renaissance artist Leonardo da Vinci which was crafted between 1503 and 1517, is one of the most recognizable pieces of art in the world. Its insurance value, which has risen from $100 million in 1962 to over $821 million in 2018, reflects its significance as a symbol of Western civilization—as well as its potential worth to enterprising criminals.

The painting which hangs today in the Louvre in Paris, was actually stolen in 1911. The culprit was Vincenzo Peruggia, a former employee at the museum. Although he was caught two years later when he tried to sell the painting to an art gallery in Florence, he is still regarded as the architect of one of the greatest art thefts of the 20th century—and, according to some, is partly responsible for the painting’s position as one of the most-viewed artworks in the world.

Vicenzo Peruggia

Vincenzo Peruggia staged one of history’s most notorious art thefts in 1911. Photo via Wikipedia.

Peruggia, it turned out, removed the piece from the wall where it was hanging during working hours, hid it in a broom closet, and waited until after hours to walk out of the museum with the painting positioned under a coat that he carried casually under his arm.

The painting was returned to Paris in 1914. Peruggia, sentenced to a year and 15 days in jail, served just seven months behind bars—a reflection of the fact that many of his compatriots noting his claim that he wanted to return the masterpiece to its Italian homeland considered the theft an act of patriotism.

Peruggia’s ‘walk-in’ theft would be impossible today. The painting sits behind bulletproof glass that is almost two centimetres thick, and is enclosed in a special sealed box to protect it from vibrations and humidity. A barrier separates the public from the piece.

But those are just the most visible aspects of a state-of-the-art security system that the Louvre has since put in place for all its art treasures.

Within the 70,000 square meters that make up the museum, you can find access control systems, intruder-detection equipment including video analytics, and a 24-hour surveillance of closed-circuit TV cameras. They all help to protect some of the finest pieces of art in the world.

The Mona Lisa is not the only example of the world-class treasures that are now protected by state-of-the-art security.

Anyone who has studied English history is aware that the United Kingdom is home to some of the most stunning pieces of craftsmanship owned by Britain’s royal family, such as the Sovereign’s Orb and the Imperial State Crown. With 23,578 delicate stones and over 140 objects, putting an exact price on the jewels has been difficult, but some estimates put it closer to three billion pounds (or US $3.8 billion at current exchange rates).

Even a single jewel pried loose from the objects would earn an enterprising thief millions if he or she could get away with it.

But there’s little chance of that happening.

The royal collection is locked away in the Jewel House at the Tower of London, and protected by bombproof glass. Although the Tower is open to the public, the collection is monitored by more than 100 hidden CCTV cameras.

And if that weren’t enough, a 22-strong Tower Guard, a detachment of the British Army, has the sole mission of protecting the Crown Jewels on behalf of the UK Ministry of Defense.

On the few special occasions when the Crown Jewels appear in public, such as coronations and openings of Parliament, armed police officers must be present.

But the fact remains that no one should underestimate the risk to the priceless objects stored in museums and other venues. Sometimes, the guardians of national treasures fail to take advantage of the security that modern technology can offer.

Sweden is a sad example. In August 2018, two crowns and a royal orb that belonged to King Charles IX of Sweden and his wife Christina of Holstein-Gottorp were stolen from Strängnäs Cathedral in eastern Sweden, in what looked like an amateur heist.

Theft by Bicyle

The 400-year-old jewels had been on public display. Two men walked into the cathedral around midday and smashed the glass where the contents were held. That caused alarms to go off around the building, but the duo still managed to escape undetected from the crime scene by bicycles and then by a motorboat along Lake Malaren, entering Stockholm’s archipelago.

Sweden’s police force were able to successfully track down one suspect because of blood left at the crime scene; some of the jewels were recovered. To track down the second culprit and the artifacts that had not been found, authorities carried out house searches, according to Swedish media outlets.

In November, the second thief was detained, but the stolen regalia is still reported to be missing.

Although the thieves were hoping for success, even if they had got away with the heist they would have had a tough time profiting from the jewels, which are worth roughly £43,000 (or nearly US $55,000).

It isn’t the first time that Sweden’s Crown Jewels have been stolen. In 2012, a 19-year-old refugee who claimed to be a friend of a member of the royal family, stole £73,700 (approximately US $94,000) worth of jewels. He sold them to a drug dealer for £730 (about $932) to buy marijuana.

As further proof of his lack of acumen in financial (and jewelry) matters, he reportedly threw another part of his haul, a tiara worth £30,350 (nearly US $39,000), off a bridge.

Sweden’s security failure was the result of failing to balance the national interest of keeping the Crown Jewels on display with the need for top-level protection. The thieves should have been detected as they walked in. Walk-through security door frames and regular visitor searches could have helped prevent this event.

art thieves

Peter Houlis

The price to pay for an in-depth security audit and the implementation of such systems is considerably less than the cost of orchestrating an international manhunt — and this is something that many art hosts fail to understand.

For many older establishments that lack technological integration, it’s time to wake up.

The risk of not doing so isn’t worth taking.

Peter Houlis is Managing Director of 2020 Vision, a security management firm based in the UK. He welcomes comments from readers.


Should Race be the Only Factor in Promoting Police Diversity?

Better racial representation in our police forces is important, but a would-be officer’s residence can also have a major impact on making on improving a department’s legitimacy in a community, argue two researchers.

Racial representation that reflects the diversity of a community is a key ingredient in improving relations between police and the communities they serve. This was one of the key recommendations in the final report of the President’s Task Force on 21st Century Policing, released in 2015.

The rationale is simple: Officers whose demographic characteristics reflect the communities in which they serve are more likely to have an interest in promoting equity, and to understand the racial perspectives and dynamics, within those communities. But does a racially representative force actually lead to better policing outcomes?

Arthur Rad

Abdul Rad

In a review of James Forman Jr.’s “Locking Up Our Own: Crime and Punishment in Black America,” Devon Carbado and L. Song Richardson highlight a surprising finding: Over-policing in black neighborhoods implicates not only white officers, but black officers as well. Due to racial anxiety induced by their white peers, black officers “may experience stronger incentives” than their white counterparts to over-police and employ violence in order to avoid looking “soft” on crime.

Thus, while diversifying the racial makeup of our police forces is a critical dimension of reform, it is not the only step we need to take. In addition to creating departments that are more racially reflective of the communities they serve, we need to properly conceptualize what a truly “reflective” police force should look like.

It may be the case that, when it comes to policing outcomes, fair geographic representation is just as important as fair racial representation.

It is no secret that police forces across the nation are predominantly white. Using Department of Justice survey data, one study found that this is the case even in majority black jurisdictions. Given this reality, some departments have doubled down on efforts to reform their recruitment practices so that their officers are more racially representative of the communities they serve.

While improving racial representation in our police forces is an important goal, we must also consider whether problems will persist if we designate race as the only necessary consideration when creating a force that reflects community demographics.

One element frequently neglected by departments that hire minority officers is residency.

Arthur Rizer

Arthur Rizer

Officers from outside jurisdictions — regardless of whether their race matches that of those they are sworn to protect — may not have a vested interest in policing equitably. On the other hand, recruits of any race who live inside the jurisdiction of a given department have an immediate connection in the communities they serve, which may help offset the pressure to over-police that some black officers experience.

Racial and geographic disparities in officer hiring are inextricably linked, meaning that solving one disparity could exacerbate the other. For instance, it may be the case that trying to recruit from a wider pool of racially underrepresented populations could result in the hiring of more recruits from areas outside a given department’s jurisdiction.

Departments thus need to be cognizant of both elements simultaneously. In other words, if the goal is to create not only a more representative police force, but a more effective one, departments need to consider race along with place of residence when recruiting new officers.

We should ensure that the individuals joining the police force have a stake in promoting equity and understand the communities within which they work, something that is not necessarily the case if race is the only factor considered.

The locales from which officers are hired represent a critical dimension that departments need to consider in the recruitment reform process. Otherwise, we may see “racially reflective” police forces that continue or exacerbate the problems we already have.

Abdul Rad is an associate fellow with the R Street Institute. Arthur Rizer, a former police officer and Department of Justice prosecutor, and a retired U.S. Army officer, is the Director of Criminal Justice and Civil Liberties at R Street. They welcome comments from readers.


Barr Will Call Completion of Russia Probe in ‘Best Interest’ of Americans

William Barr, President Trump’s nominee for attorney general, will tell senators Tuesday it is “vitally important” that special counsel Robert Mueller be allowed to complete his Russia investigation.

William Barr, President Trump’s nominee for attorney general, will tell senators Tuesday it is “vitally important” that special counsel Robert Mueller be allowed to complete his Russia investigation, the Associated Press reports. “I believe it is in the best interest of everyone — the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work,” Barr will say, according to his prepared remarks.

william barr

william barr

Barr also says it is “very important” that Congress and the public be informed of the prosecution team’s findings. “For that reason, my goal will be to provide as much transparency as I can consistent with the law,” Barr will say.

He said he will base his judgments on the Mueller report “solely on the law and will let no personal, political, or other improper interests influence my decisions.”

Brett Kavanaugh’s Supreme Court confirmation tore the Senate Judiciary Committee apart. The panel is trying to put itself back together before a contentious fight over Barr’s nomination, Politico reports. Its new chairman, Sen. Lindsey Graham (R-SC), denounced Democrats in Kavanaugh’s hearing on sex assault allegations. The panel includes three Democrats mulling a 2020 presidential run. Graham must set the tone, and he’s not making promises.

“I’m going to let it be up to [Democrats]. You pick these fights at your own peril. [Barr will] be challenged for sure. Hopefully respectfully,” he said. Sen. John Cornyn (R-TX) said,

“I guess the question we all have is, ‘Is this going to be Kavanaugh 2.0?’ Where it’s really not about the search for the truth, it’s more about character assassination.”

Barr will struggle to attract Democratic votes but can be confirmed without bipartisan support.


Can Public Defenders be Reformers?

Defense attorneys spend more time with criminal defendants than anyone else in the justice system. So if they care about better outcomes, they need to go beyond their traditional roles, says the head of the Milwaukee Public Defender’s Office.

Defense attorneys and public defender offices have an important role to play in the broad, collaborative effort to achieve reform in the American criminal justice system.

And they must be prepared to advocate for a fair and effective systemic reform that transcends the areas of traditional defense concern.

The nationwide movement for change starts with the recognition that criminal justice system outcomes are disappointing for a significant number of Americans. That includes both the traumatizing effects of incarceration and being a victim of a crime, the inadequacy of treatment of those with mental illness and addictions, and the rates of recidivism and repeat victimization.

There also are problems frequently identified by exonerations, crime lab failures and, less commonly, actual misconduct.

Two critical shifts in thinking should accompany this recognition.

First, we have had an almost single-minded focus on the adjudication of cases at the expense of an equivalent attention to system outcomes. This old approach has led to a mistaken elevation of a competitive ethic which evaluates itself solely on short-term measures: number of arrests, prosecutions, convictions, or prison sentences.

Longer-term indicators are ignored or distrusted if adjudicatory practices seem to be in order.

Second, reform efforts, including Sentinel Events analyses which reflect a determination to learn from errors, are possible only when trust is created among system partners with differing and often seemingly antagonistic responsibilities.

The non-blaming Sentinel Events approach, first developed in the medical and aviation fields, is now increasingly being applied to the justice system. For defense attorneys, it means being willing to build trusting relationships with judges, prosecutors, police, and probation agencies whenever possible, because those relationships create opportunities that can reduce harm to their clients.

Defense attorneys have an important voice that can inform and even lead reform efforts. They spend more time with criminal defendants than anyone else in the system; only probation agents come in anywhere close.

An Active Role for Defense Attorneys

Diversion agreements, treatment courts, and deferred judgment programs all require an active role for the defense attorney working with other system professionals and their clients. These encounters, when they are effectively handled, represent an unparalleled opportunity to understand problems and identify resources in a community, and can help guide community and system partners to remedial outcomes.

Using the opportunity created when people are receiving representation to assist them to address and resolve underlying problems is what outstanding defense work is often about—keeping in mind the important ethical issues that must accompany this advanced practice.

Looked at in this light, a more holistic defense opens a window into the inadequacies of systems designed to serve people at risk.

Holistic Defense is Crime Prevention

Indeed, rightly understood, holistic defense is, in part, a crime prevention strategy. A holistic defense is an approach “in which public defenders . . . address both the immediate case and the underlying life circumstances . . . that [lead] to contact with the criminal justice system.”

Defense attorneys are students of systemic errors. They also are by training and experience deeply skeptical of reform efforts: they sense the mixed motives and unintended negative consequences lurking behind seemingly benign reform projects.

This sensibility, properly expressed, has great value in bringing honesty to discussions among stakeholders. Defense attorneys are not unique in this quality, but their work reinforces it in a regular way.

Of course, many defense attorneys balk at the suggestion that sharing their perceptions will benefit their clients. Strengthening an oppressive system seems like an obvious act of moral betrayal.

But perhaps our own thinking is in need of some reform, too, for we also are systemic actors.

Local context matters.Relationships characterized by honesty and trust are essential preconditions to any reform effort. For example, in Milwaukee County, where I head the Public Defender’s Office, there has been a sustained commitment to reform that has been rooted in many tough discussions which in turn have led to substantial improvements in pre-trial release, pre-charging diversion, post-charging deferred judgment agreements, drug treatment courts, and more.

There is nothing in these discussions that fairly could be described as surrendering clients’ sensitive information or providing moral support for oppressive law enforcement or prosecution at the expense of clients.

The strength of this collaboration has brought important resources from state, county and municipal governments and foundations, most notably, the MacArthur Foundation and National Institute of Corrections.

Understanding Violence and Trauma

Violence and the resulting trauma are the threads that run through the lives of clients and victims alike.

Both violence and trauma are poorly understood. Every experienced defense attorney has had clients who have been devastated by being the victim of violence, exposed to it, or both. Some of the worst excesses of the criminal justice system are tied to how these issues are handled.

Defense attorneys also should consider the role that they can play in helping to unravel violence by appropriately sharing their knowledge. Given the stakes for clients, defense attorneys have a responsibility to be engaged in deep learning and thoughtful efforts at violence and trauma prevention—not as members of a suppression effort, but as aspirants always to help clients in the difficult lives so many must lead.

If criminal justice reform is to be successful it must preserve its core competencies in adjudicating cases while expanding its capacity to learn from its errors to drive systemic change and reform.

Everyone needs to play a role. That includes defense attorneys, who have a critical voice that must be used─and heard.

Tom Reed

Thomas H. Reed

Thomas H. Reed has been a member of the Milwaukee Trial Office of the Wisconsin State Public Defender since 1982, and has served as the Regional Attorney Manager since 2000 for an office of approximately 60 attorneys. He is currently the Vice Chair of the Milwaukee County Community Justice Council. He welcomes comments from readers.


Diverse Neighborhoods Could Reduce Police Shootings of Blacks, Hispanics: Study

Researchers studying nearly 1,700 fatal interactions with police between 2013 and 2015 concluded that desegregation dramatically reduces the risks of black males being killed by police officers. Higher levels of segregation increased the odds for Hispanic males.

Desegregation of America’s neighborhoods can save blacks and Hispanics from being killed by police officers, according to a study published in the Social Science & Medicine journal.

The researchers, led by Odis Johnson Jr., a sociology professor at Washington University in St. Louis, analyzed a database that included details on nearly 1,700 fatal interactions with police (FIP) that occurred across the U.S. from May 2013 to January 2015.

The researchers concluded that low levels of racial segregation dramatically reduce the risks of black males being killed by police officers. higher levels of segregation increased the odds for Hispanic males.

“Black males’ odds of a FIP were dramatically lowered in neighborhoods with a relatively low percentage of black residents,” the researchers write. “This suggests that racially mixed neighborhoods to some degree shield black males from police homicides.”

Furthermore, in neighborhoods with high levels of income inequality, such as poor areas undergoing gentrification, males of color face a higher risk of being killed during interactions with police; Hispanic men face the highest risk.

“Our results concerning Hispanic males are perhaps the most important that we offer, since one could argue the majority of media and public attention about FIPs have concerned black males,” the researchers write.

“This analysis in contrast suggest that we should give careful consideration to the geospatial and institutional circumstances in which the odds of having FIPs becomes greatest for particular race-gender classifications, rather than assuming black males are placed at greatest risk in all contexts.”

The findings support the work of historian Richard Rothstein, a distinguished fellow of the Economic Policy Institute.

In his latest book, “The Color of Law,” Rothstein chronicles the history of racial segregation in the U.S., pinpointing President Franklin D. Roosevelt’s New Deal of the 1930s as the start of a deliberate government plan to create and enforce residential segregation.

Rothstein contends that systemic residential segregation continues to champion inequality and injustice in all areas.

Although America’s demographics  have been gradually changing, with one study predicting that whites in the U.S. will become a “minority” by 2045, an investigation by the Washington Post shows that neighborhoods are still deeply segregated.

A full copy of the current study can be downloaded here.

J. Gabriel Ware is a contributing writer for The Crime Report.


Forensic Science Reform at ‘Crossroads’

The government’s 2017 decision to shut down the National Commission on Forensic Science has slowed the movement to reform how courts treat forensic evidence, according to a UCLA Law study.

Recent efforts to reform the use of forensic science in the courtroom don’t go far enough to meet widespread criticisms of its validity and reliability, according to a University of California-Los Angeles (UCLA) Law School study.

forensic science

UCLA Law Professor Jennifer L. Mnookin examined the state of forensic science reform. Photo courtesy UCLA

In the last two decades, often-used forms of pattern evidence, such as fingerprint, tool mark, and bite mark identification, have faced significant criticism, wrote study author Jennifer L. Mnookin, a law professor at UCLA, in a research paper posted in Daedalus, a journal of the American Academy of Arts and Sciences.

The Department of Justice’s decision in April 2017 not to renew the charter of  the National Commission on Forensic Science reduces the likelihood of real reform, which Mnookin said puts forensic science  at a “crossroads.”

“Our best hope for sustained, substantial changes necessary for improving forensic science evidence within our system of justice requires the creation of another national commission or other institutional body, made up of both research scientists and other institutional stakeholders,” she wrote.

Mnookin uses a mistaken bite mark identification case to further her point.

Alfred Swinton, was released from prison after serving 18 years of a 60-year  sentence for murder, after an expert admitted ruled the bite mark identification evidence used to convict him no longer seemed persuasive or valid.

The bite mark expert “no longer believed with reasonable medical certainty–or with any degree of certainty –that the marks on [the victim] were created by Mr. Swinton’s teeth, because of the recent developments in the scientific understanding of bite-mark analysis,” odontologist Constantine Karazulas told the Hartford Courant, as quoted by Mnookin.

Is Forensic Science ‘Junk Science’?

Karazulas even called his earlier testimony “junk science” and said he “no longer believes that Mr. Swinton’s detention was uniquely capable of producing the bite marks I observed.”

Mnookin suggested the case indicated a potential sea change for the use of bite mark evidence,  and noted there is a growing consensus among judges that the forensic science community should scale back exaggerated and overconfident assertions of knowledge and authority by forensic scientists.

Mnookin concluded that future reform required an institutional structure adversarial advocates, and practitioners themselves, staffed by accomplished research scientists to pave new ways for credible forensic science evidence to be used in courtrooms.

“We are simply not likely to see continued forward motion unless there is some institutional body to prompt reform, a commission or working group with both convening power and a claim to legitimacy, in which academic researchers and forensic science stakeholders can jointly assess the state of forensic science and continue to push for, and argue about, improvements,” she wrote.

If it can happen, she said, the future of forensic science will almost certainly be far brighter, and the substance of what is used in investigations and offered in courtrooms throughout our nation will be more reliable, more trustworthy, and more scientifically valid.

Additional reading: “Science Takes a Hit at the Department of Justice,” by Jeff Butts, TCR Dec 2018.

A full copy of the report can be downloaded here

Megan Hadley is a senior staff writer at The Crime Report. Comments welcome.


Ban the Box for Colleges, Too

Finding a job — especially one that pays well —is key to keeping those with a criminal history from being rearrested. Removing criminal history questions on college applications will lead to better outcomes not only for people with records, but for society as a whole, argues an R Street researcher.

A growing number of Americans are required to physically check a box on all sorts of applications — including those for education, jobs and even housing — if they have a criminal history.

Sadly, this means that even a single lapse in judgment can become a major obstacle for individuals, even after they have paid their debt to society.

Michigan recently took a step toward “banning the box” for career-related applications, meaning people seeking jobs and certain occupational licenses will no longer be required to check a box indicating that they have been convicted of a felony.

The state also happens to be a leader in correctional education practices, partnering with Jackson College to provide college courses in prisons and working to support those incarcerated with Vocational Village programs.

Given this positive momentum, it makes sense for the Wolverine State (and other states as well) to move “beyond the box” in the educational context by removing the felony check-boxes on college applications.

Colleges and universities are in a unique position to help remove barriers that prevent the estimated 70 million American citizens with criminal records from pursuing higher education — specifically early in the application process when prospective students are asked about an arrest record.

At the federal level, Sen. Brian Schatz( D-HI), has introduced legislation to provide resources for colleges that are considering how to end the criminal history reporting requirement. Senate Bill 3435, the Beyond the Box for Higher Education Act of 2018, would direct the secretary of education to issue guidance and recommendations for institutions of higher education on removing criminal and juvenile record questions from their admissions applications.

A recent survey of post-secondary institutions found that about two-thirds collect criminal history information from all applicants. Even more troubling, a Center for Community Alternatives study found that 25 percent of the schools that ask for criminal histories have some criminal history-related automatic bar to admission.

For individuals with felony records — and particularly for those who would be re-entering society after a prison sentence — education can be the key to finding successful employment.

In fact, the Center on Education and the Workforce at Georgetown University found that by 2020, “employers will seek cognitive skills such as communication and analytics from job applicants rather than physical skills traditionally associated with manufacturing.”

For those seeking employment, this means that the likelihood of attaining work will increase with greater access to higher education.

By removing criminal history questions from applications, colleges and universities can contribute to long-term, positive economic returns for these individuals — and help keep them from returning to prison.

Studies have shown that workers with post-secondary education earn 74 percent more than workers with a high school diploma or less.

Similarly, research conducted by the Bureau of Labor Statistics found that wages tripled for people who have earned doctoral and professional degree compared to those individuals with less than a high school diploma.

Given that finding a job — especially one that pays well — is key to keeping those with a criminal history from being rearrested, removing criminal history questions on college applications will likely lead to better outcomes not only for people with records, but for society as a whole.

Benefits for Children

Furthermore, when a parent has a post-secondary education, his or her child is more likely to attend college as well, thereby passing additional, positive educational impacts on to the next generation. Theoretically, then, if we help ensure more parents have access to higher education, this can create a community with less unemployment and more stability for generations.

Opponents of eliminating criminal history-reporting on college applications point to the potential for increased crime on campus. Yet research has found no substantial evidence that screening applicants for prior convictions improves safety on campus.

Furthermore, some of the most serious crimes committed on campus have been committed by people with no criminal record.

Education is critical to ensuring lifelong success, and for those re-entering society, access to education can provide long-term, positive outcomes.

Jesse Kelley

Jesse Kelley

States like Michigan, which have already taken steps to ban the box and implement correctional education programs, have a unique opportunity to be on the precipice of moving beyond the box to ensure that the lasting benefits higher education are accessible to all.

Jesse Kelley (@JessDKelley) is a policy analyst and government affairs specialist for criminal justice with the R Street Institute.