The ‘Environmental Factor’: When Criminals Are Also Victims

In a 1968 murder case, the defendant claimed systemic racism and poverty were mitigating circumstances in his crime. An appeals court rejected the argument, but is the relationship between the “environment” and criminal behavior worth examining today?

On June 5, 1968, at about 3 a.m., Murdock Benjamin and a couple of friends were in a hamburger joint in Washington D.C. when a group of six walked in to order takeout—five men, all U.S. Marines in uniform, and a woman. All were white.

A few minutes later, as Benjamin and his friends were leaving the restaurant, there was a confrontation by the door. At trial, each side said the other started it, and the details remained unresolved.

Benjamin was already outside when he heard one of the Marines say, “Get out, you black bastards.”

Benjamin reentered, pulled his gun, and started shooting. He killed two of the Marines, and seriously wounded another and the woman. He was charged with murder.

At trial, Benjamin’s lawyer admitted there was blood on his client’s hands. But he argued that Benjamin wasn’t criminally responsible for what he’d done. He had a mental condition born of the deprivations he endured as a poor black person, the lawyer argued, adding that his experiences primed him to explode the moment he heard that racial slur.

The defense was a long shot because Benjamin, by all accounts, was a sane young man. But Benjamin’s mind was in the grip of the ugly social forces that had shaped his life, according to his lawyer. After all, racism and poverty might not make a man hallucinate, but they still inflict real harm on both body and brain.

The trial judge, Gerhard Gesell, didn’t buy it.

“We are not concerned with a question of whether or not a man had a rotten social background,” Gesell said. “We are concerned with the question of his criminal responsibility.”

The jury convicted him of second degree murder. He was sentenced to 20 years to life in prison. He was about 20 years old.

But did Benjamin’s defense have any validity?

A closer look at Benjamin’s background suggests how someone’s environment carves out their destiny.

He was raised in the Watts neighborhood of Los Angeles. His father was a construction worker and his mother stayed home to take care of him and his siblings—he had 12. They were poor, but there was always enough for clothes and food. But then his father left the family, and life grew more difficult.

In the summer of 1965, a few years after his father left, Benjamin was one of hundreds of people arrested and jailed following what has been called the Watts Rebellion—one of many uprisings by black Americans in the 1960s that were rooted in systemic oppression. Watts’ residents suffered bad policing, bad schools and few opportunities for work, according to one contemporary report.

Benjamin recalled the experience as the start of his political awakening.

“It was like striking out at something, not caring whether you win or lose, as long as you strike back at it—because it had struck at you long enough,” Benjamin said in a 1970 interview with Malaika Lumumba for an oral history of the civil rights movement.

“They’d blew up four young girls in Alabama not more than two years prior to that,” he added. “[During Watts] we were only paying them back for the slavery and sufferings of our people.”

When he got out of jail, Benjamin found work and moved in activist circles, but his politics wavered. He had a new, promising job as an apprentice machinist, and he wanted to make good; but a year after he was hired, the company laid off all the black and Mexican apprentices.

“I realized that I couldn‘t get away from racism within the United States,” he told Lumumba. “I’d sold my people out by thinking that I could ever make it within the system.”

After he lost the job, Benjamin dealt drugs for a couple of months to get by, before he soured on it. He figured he was helping the white man, hurting his community. He was arrested for a couple of other crimes he said he didn’t commit.

Then Martin Luther King Jr. was assassinated, in April, 1968. Benjamin had now come to believe a race war was coming—a belief his lawyer would later use to argue that Benjamin had a “mental condition.”

Shortly after King’s assassination, he decided to leave Los Angeles to join the Poor People’s March on Washington. A few weeks later, on the other side of the country, Benjamin shot four people.

Benjamin’s lawyers appealed his conviction, arguing that the trial judge shouldn’t have excluded the broader context of Benjamin’s life—his “rotten social background,” as one lawyer termed it—from the question of his guilt.

Shouldn’t a person’s circumstances affect responsibility for his or her actions?

David Bazelon, one of the appeals court judges, struggled so earnestly to answer that question that he made the case famous in academic circles. Bazelon began by conceding that it probably wasn’t fair to convict Murdock Benjamin, because forces beyond his control were responsible for the shooting, more than Benjamin himself.

But if Benjamin wasn’t responsible for his actions, that only made things more complicated, because he wasn’t insane and he was likely still dangerous.

Society doesn’t know what to do with someone who’s sane, violent and, hypothetically, innocent.

Sane people can’t be locked up in an asylum, harm demands a response, and innocence precludes prison. Bazelon’s ruling offered up “social reconstruction.

Systemic equality, he suggested, might prevent more violence than any punishment.

Bazelon seemed to want to convict America itself.

But the other two judges outvoted Bazelon. In that 1973 appeal, they reaffirmed Benjamin’s conviction and kept him in prison.

“The ultimate responsibility for [the marines’] deaths reaches far beyond [Murdock Benjamin],” agreed Judge Carl McGowan.

But he added: “As courts, however, we administer a system of justice which is limited in its reach.”

In the decades since, judges have continued to wave off “environmental” defenses like Benjamin’s, often with good reason.

Lawyers sometimes cooked up farcical excuses for their clients, like Super Bowl Sunday Syndrome, trying to spin an individual’s misconduct into a mass phenomenon in which they had no control.

Judges are probably also wary of arguments grounded in society’s inequities because they would be so powerful.

Black people aren’t the only ones overrepresented in the justice system. The poor, the young, and the queer—among many other demographic groups—are all disproportionately likely to be arrested for a crime.

Researchers have also found that people who have a certain genetic attribute, and who also suffered abuse as children, are more than nine times more likely than the average person to behave criminally.

Benjamin’s case highlights the tension at the core of modern American justice.

Courts try people, not inequality. Judges reliably exclude big-picture phenomena—like genetics, or the ravages of white supremacy—from the question of someone’s guilt. They only consider it at sentencing, where the standard for evidence is lower.

But even then, it seldom makes much of a difference. A 2012 study polled judges on how they’d sentence a man, diagnosed with psychopathy, who committed terrible violence. Overall, the judges ruled the man’s mental condition made him less responsible for his crime.

But they also ruled that the same mental condition made him more of a menace.

FT Green

F.T. Green

“Psychopathy may make the defendant less morally culpable, but it increases his future dangerousness to society,” one of the judges explained to the researchers. “In my mind, these factors balance out.”

Still, the question from Murdock Benjamin’s case still hovers on the edges of every courtroom today.

Should the victims of racism be held solely responsible for its inevitable consequences?

F.T. Green is a reporter in Toronto. His website is He welcomes comments from readers.


Four Charged In Last Year’s VA ‘Unite the Right’ Rally

Federal authorities arrested four men in California on charges that they traveled to Virginia to incite a riot at the Unite the Right rally in Charlottesville in August 2017. The defendants are affiliated with the white nationalist Rise Above Movement. A fifth man faces capital charges for killing a woman in a car crash.

Federal authorities arrested four men in California Tuesday on charges that they traveled to Virginia to incite a riot at the Unite the Right rally in Charlottesville in August 2017, the Richmond Times-Dispatch reports. U.S. Attorney Thomas Cullen said Benjamin Daley, 25; Thomas Gillen, 34; Michael Miselis, 29; and Cole White, 24, had been charged with violating two federal riot statutes. The charges arise from an FBI and Virginia State Police investigation into the white nationalist rally in Charlottesville over a year ago that  degenerated into street fighting. It resulted in one death and dozens of injuries when a car was driven into a crowd protesting the rally. There have been 17 criminal cases brought forward, several of which have resulted in convictions.

The criminal complaints against the four men allege that they are affiliated with the white nationalist Rise Above Movement and traveled to Virginia from California “with intent to incite a riot.” Cullen said the four men attacked counterprotesters  without provocation and previously carried out similar attacks at rallies in California. Members of the Rise Above Movement train in mixed martial arts and street fighting to prepare for violence at political rallies, according to the federal complaint. Organized as a protest against the planned removal of a statue of Confederate Gen. Robert E. Lee, neo-Nazis and white supremacists from across the U.S. banded together to attend the rally. James Alex Fields, 21, of Maumee, Ohio, is facing the death penalty for allegedly murdering Heather Heyer and injuring scores of people in a car crash near Charlottesville’s downtown pedestrian mall. The Anti-Defamation League has labeled the Rise Above Movement as an extremist white supremacist group consisting of “several dozen loosely affiliated neo-Nazis and racist skinheads,” some of whom have violent criminal backgrounds.


Right and Left Face Off in OR; Harsh Words but Few Injuries

A protest face-off in Portland between the right-wing Patriot Prayer and left-wing antifascists resulted in little violence. A few injuries were reported when police used flash-bang grenades to disperse a crowd.

The concussive crack of stun grenades echoed through the streets of downtown Portland Saturday as groups on opposing sides of the political spectrum took to the streets. But despite weeks of heated rhetoric, the protest — which was organized by right-wing Patriot Prayer and countered by groups on the left — resulted in little violence between the two groups, reports the Oregonian. The protest, billed as a rally for free speech and campaign event for Joey Gibson, the leader of Patriot Prayer and Republican U.S. Senate candidate from Vancouver, Wash., saw hundreds of his supporters, many of whom came from out of state, bussed in from across the border decked out in helmets, crash pads and shields festooned with the Confederate battle flag.

They were met by counter-protesters from a coalition of organizations on the left including a group called Popular Mobilization, which formed recently specifically to counter Gibson’s protest, another group dressed up as clowns and a cadre of antifascist activists commonly known as antifa. Police kept the groups separated–close enough to hurl insults, but too far to throw punches. The biggest dust-up came when police in riot gear ordered a group of counter-protesters to disperse around 2 p.m. Officers used flash-band grenades and rushed the crowd, shoving some protesters out of the street. Some projectiles were thrown at police, one of which hit Eder Campuzano, an Oregonian reporter. Several people claimed injuries, and Police Chief Danielle Outlaw said Sunday each claim would be investigated.


Has High Court Privacy Ruling ‘Future-Proofed’ the Fourth Amendment?

This month’s decision requiring police to obtain a warrant for cellphone data represented the opening stage of a legal movement to protect Americans’ privacy from big-data surveillance technologies, says law professor Andrew Guthrie Ferguson. But future digital tests are still to come.

The Supreme Court has effectively “future-proofed” the Fourth Amendment against threats to privacy posed by the expansion of data surveillance technology, according to a leading commentator on Internet law.

Andrew Guthrie Ferguson, a professor at the University of the District of Columbia’s David A. Clarke School of Law, called the court’s majority ruling this month in Carpenter v. United States a landmark decision that “signals a new openness to ensure that the Fourth Amendment protects the digital lives of citizens.”

The narrow 5-4 decision requires police to obtain a probable cause warrant in most cases to access cellphone data. The defendant in the case, Timothy Carpenter, said police had violated his constitutional protections against unreasonable searches and seizures when they obtained records of his movements through cell-site location data held by his private cellphone company.

Writing in his blog for the Harvard Law Review, Ferguson said the Court’s decision recognized that a cellphone provider’s automatic retention of cell-site location information (CSLI) merited the same kind of privacy protection traditionally granted to an individual’s private papers and communications.

The ruling effectively “began the process of future-proofing the Fourth Amendment” against “encroaching big data politicking technologies,” Ferguson wrote.

“In an age of growing big data surveillance technologies capable of monitoring individuals and groups across entire cities, this systems update to the Fourth Amendment is a significant marker of the Court’s future intent,” he added.

Ferguson noted that the decision sets an important precedent for other legal tests likely on authorities’ use of digital technology, such as facial-recognition software and “smart-car” data, in their investigations.

But he also pointed out that the dissenting opinions in the case, which turned on “analog” interpretations of the Constitution that appeared to exclude information held by a third party, also opened the way for a debate about what constitutes a “reasonable expectation of privacy.”

Ferguson noted that the newest Justice, Neil Gorsuch, suggested that the traditional use of the third-party doctrine to define the kind of “property” that police and courts can obtain through  subpoena powers needs to be reexamined.

The Carpenter ruling declares that courts will be required to ask whether individuals have a reasonable expectation of privacy for personal data held outside their control.

At the same time, the ruling has left “more than a few loose ends for lawyers and law professors to puzzle through in the coming years,” wrote Ferguson.

“But, given a path to choose between the past and the future, the Supreme Court chose to bring the Fourth Amendment into the digital future and protect against growing technologically enhanced police surveillance powers.”

See also: High Court Ruling a Victory for Privacy Rights, says ACLU.

The full version of Ferguson’s blog can be downloaded here.


Millions Lose Driver’s Licenses Over Court Debts

More than 7 million people nationwide may have had their driver’s licenses suspended for failure to pay court or administrative debt, a practice that advocates say unfairly punishes the poor, the Washington Post calculates from public records requests. Some states are trying to reduce the number of suspensions.

More than 7 million people nationwide may have had their driver’s licenses suspended for failure to pay court or administrative debt, a practice that advocates say unfairly punishes the poor, the Washington Post reports. The total number could be much higher based on the population of states that did not or could not provide data. At least 41 states and Washington, D.C., suspend or revoke driver’s licenses after drivers fail to pay traffic tickets or appear in court to respond to such tickets. Driver’s license suspensions were criticized by anti-poverty advocates after a 2015 federal investigation focused on Ferguson, Mo., showed that law enforcement used fines to raise revenue for state and local governments. Last year, the nonprofit Equal Justice Under Law filed class-action lawsuits against the states of Michigan and Montana for what they call  wealth-based suspension schemes, and filed another suit this year against the state of Pennsylvania for suspending licenses solely because of drug related offenses. According to the organization’s director Phil Telfeyan, a former civil rights attorney for the Department of Justice, Michigan suspended 397,826 licenses in 2010 alone for failure to pay court debt or failure to appear.

See also: Too Poor to Drive?

Suspensions can keep unsafe drivers off the road, but they can also prevent people who haven’t committed serious crimes from working, getting their children to school and getting out of debt, according to advocates for the poor. The Post sought records from 49 states and D.C. (Louisiana wouldn’t release the information without a records request that cost hundreds of dollars). Some states are trying to reduce their numbers of debt-related license suspensions. California Gov. Jerry Brown signed a law in June to prevent people from losing licenses because of unpaid traffic fines. Then-Virginia Gov. Terry McAuliffe signed a bill in May last year that made it easier for drivers with suspended licenses to establish payment plans. The D.C. Council is considering a bill that would prevent residents who earn less than $39,000 a year from losing their licenses for not paying court debt. Ariel Levinson-Waldman of Tzedek DC, a nonprofit that represents low-income D.C. residents, said the city was “on the front end of a wave” of a national effort to restructure suspension policies after the Ferguson report.


Will Sessions’ New Justice Strategy Turn the Clock Back on Civil Rights?

Fifty years after the Kerner Commission set in motion a national effort to fix racial inequities in the justice system, a draft strategic plan crafted by the Attorney General threatens to reopen all our old wounds—and perhaps create new ones, say two reform advocates.

It has been difficult to keep track of an administration that cut its teeth on reality TV—an administration that seems to have an endless supply of daily distractions and made-for-TV scandals.

In addition to degrading the office of the president, these distractions draw our attention away from misguided, consequential policy that can impact millions. A draft version of Attorney General Jeff Sessions’ five-year strategic plan for the Department of Justice (DOJ), obtained by the Huffington Post, is one example.

Pivoting away from civil rights, human rights and criminal justice reform, all of which were central to former Attorney General Eric Holder’s previous plan, the DOJ under Sessions will focus on aggressive counterterrorism, securing the borders and enhancing immigration enforcement, and promoting respect for First Amendment rights.

Sessions’ strategy is based on the false premises that violent crime is rising, that conservatives aren’t allowed to freely peddle hate speech on college campuses, and that immigrants are dangerous.

His plan would force federal prosecutors to seek maximum penalties for non-violent drug offenses, unnecessarily increase the federal prison population, and lead to increased criminalization of immigrants and more deportations.

These are all strategies that tear families apart. They won’t do anything to make our communities safer.

And they will inevitably lead to people of color being even more disproportionately harmed by the criminal justice system.

In order to compensate for the inevitable increases of mass incarceration, one of the very first orders of business for Sessions’ DOJ was repealing a directive by then-President Barack Obama to decrease the Bureau of Prisons’ reliance on privately run prisons.

In many ways Sessions’ wish list is already being carried out. Immigration and Customs Enforcement arrests of immigrants with no previous criminal conviction increased by 146 percent last year.

Moreover, Sessions is trumpeting a blatantly misleading narrative that claims undocumented immigrants are causing a so-called ‘spike’ in violent crime.

It is a painful historic irony that Sessions is leading a contemporary assault on civil rights on the 50th anniversary of the Kerner Commission, which President Lyndon Baines Johnson established in the wake of Dr. Martin Luther King’s assassination to examine and provide recommendations for addressing the discrimination and violence facing black Americans.

Upon Sessions’ nomination to a federal judgeship in 1986, Coretta Scott King warned Congress:

The appointment of Jefferson Sessions to the federal bench would irreparably damage the work of my husband…and countless others who risked their lives and freedom over the past twenty years to ensure equal participation in our democratic system.

Sessions was rightfully kept off the bench back then, but is now threatening to undo the critical and hard-fought civil rights progress achieved over the last 50 years, and particularly the gains made under the Obama administration.

On this anniversary of the Kerner Commission, we should be reminded that black men in our country receive sentences that are 20 percent longer than white men for the same exact crimes. Put simply, our country has failed to provide African Americans equal protection under the law.

Brent Cohen

Brent Cohen

As a result, the share of blacks in U.S. prisons or jails has almost tripled since 1968, and there are more black men behind bars or under the watch of the criminal justice system than were enslaved in 1850.

After decades of advocacy, including by people directly impacted by the justice system, the federal prison population fell under Obama for the first time since Jimmy Carter was in office.

Marc Schindler

Marc Schindler

Under Sessions’ directives, the federal prison population will certainly begin to grow again.

Americans concerned about justice and fairness must cut through the noise to protect the civil rights advances of recent years—and not let this administration turn back the clock by pressing forward this type of strategic plan under the radar.

Brent Cohen is Interim CEO and Vice President of JustLeadershipUSA. He previously served as Senior Advisor to the Assistant Attorney General in the Office of Justice Programs at the U.S. Department of Justice. Marc Schindler is Executive Director of the Justice Policy Institute. He previously served as General Counsel and Interim Director of the DC Department of Youth Rehabilitation Services. They welcome readers’ comments.


Prosecutors and Wrongful Convictions: ‘Pay Now or Pay Later’

Three big-city prosecutors who have formed special units to review—and correct—errors made by their offices say a “cultural shift” is necessary to persuade politicians, police and their own attorneys that it is more important to avoid mistakes than to simply win convictions.

Three big-city prosecutors who have formed special units to review—and correct—errors made by their offices say a “cultural shift” is necessary to persuade politicians, police and their own attorneys that it is more important to avoid mistakes than to simply win convictions.

“My pitch to (county) commissioners is ‘pay now or pay later,’” says Kim Ogg, the District Attorney for Texas’ Harris County, noting that settlements for civil rights suits or wrongful convictions often end up costing more than the money spent on units dedicated to reviewing faulty cases after they’ve already happened.


Brooklyn NY District Attorney Eric Gonzalez and Harris County DA Kim Ogg

“It requires changes in every aspect of our policies and practices that support the search for the truth.”

According to Brooklyn (NY) District Attorney Eric Gonzalez, the Conviction Review Unit formed by his predecessor Ken Thompson has sent signals to both young assistant district attorneys and veteran lawyers in his office that their job performances will no longer just be tied to the number of convictions they win.

“It’s a cultural shift,” says Gonzalez. “They get as much credit for pointing out errors and mistakes as for securing trial convictions.”

In Baltimore, where investigators are now looking into thousands of cases—some of them years old—which may have involved wrongful or illegal behavior by police, State’s Attorney Marilyn Mosby tells her prosecutors that the “only way to better the system is to learn from errors.”

All three elected prosecutors, speaking at the John Jay/Harry Frank Guggenheim Symposium on Crime in America at John Jay College last week, said it was often an uphill battle to get the resources to fund an approach that is far from popular among justice and law enforcement professionals.

And they made clear that one of the primary values of such conviction reviews was to prevent mistakes from being repeated in future cases.

“When I was a young prosecutor, I was taught that there are no wrongful executions or exonerations in Texas, and that no one in prison was innocent,” said Ogg, who was elected DA last year in Harris County, which includes Houston.

But, she added, prosecutors across America should now be governed by a mindset that “we’re responsible for cases forever, and to ensure the integrity of convictions forever.”

She added that the “worst fear” of any prosecutor should be that someone is wrongfully convicted in their jurisdiction.

“We are the guardians of constitutional protection,” she said. “Without public trust, people won’t participate (and they) will take justice in their own hands.”

Ogg, whose office recently vacated thousands of convictions that were discovered to be the result of faulty evidence or the misuse of lab tests, said she was in the midst of persuading the 94 separate law enforcement jurisdictions in her county to adapt better evidence collection and storage methods—“one police chief at a time.”

“I haven’t had to invoke the nuclear option, which is to say you can present me a case, but I won’t necessarily try it,” she said, noting that her targets included police unions, which resist having their members singled out for justice system errors.

In Brooklyn, where the alleged misconduct of a detective put into doubt hundreds of cases, the Conviction Review Unit now occupies an entire floor of attorneys who do nothing but review old cases, with an annual budget of more than a million dollars.

“Not only do we have to get (wrongfully convicted) people out of prison, we have to learn the lessons about what can wrong in the justice system,” Gonzalez said.

“I tell (our City Council) at budget hearings that every time someone is wrongfully convicted, it’s a very expensive mistake,” said Gonzalez. “So give us the money to make sure we get it right the first time.”

Marilyn Mosby

Baltimore State’s Attorney Marilyn Mosby

He added: “Public safety is paramount, but we also have the obligation to do justice.”

Mosby said her office of 212 prosecutors was already working on 50,000 cases a year, so it was a “political” challenge to persuade state and local authorities to dedicate separate resources to conviction reviews.

“You have to think outside the box,” said Mosby, who recently secured a $219,000 grant from the Innocence Project in partnership with the city’s defense attorney bar to help pay for the city’s conviction integrity unit.

Mosby said it was equally important to develop resources to help exonerated individuals navigate their path back to civilian society.

She cited one case in which a person died three months after being released from prison after 17 years for a murder he didn’t commit.

“There’s nothing in place (now) to help those who were wrongfully exonerated,” she said.

Ogg said she had also won support from victims’ groups.

“I never met a victim yet who wanted the wrong person prosecuted,” she said.

TCR Deputy Editor Victoria Mckenzie contributed to this report. The complete panel can be viewed here. Readers’ comments are welcome.


Illinois Set to Bar ‘Gay Panic Defense’ for Attacks

The state joins California in banning the use of a rare criminal defense that uses a victim’s sexual orientation as justification for a violent crime. Similar legislative measures will be introduced in other states in 2018.

Starting in January, Illinois will bar a rare criminal defense allowing the use of a victim’s sexual orientation as justification for violent crime, a ban gay rights advocates say they will attempt to replicate in about half a dozen states in 2018, reports the Associated Press. Defense attorneys will no longer be able to mount the so-called “gay panic defense” in Illinois, the second state after California to prohibit the tactic. It isn’t common, but one study shows it has surfaced in about half of all U.S. states and has been used with some success. Advocates say bans are necessary because crimes against gay and transgender people are on the rise, but some attorneys remain skeptical, calling the ban politically motivated and unnecessary because the old-fashioned defense wouldn’t hold up in court today.

The Illinois ban sailed through the Legislature in May with no opposition, and Republican Gov. Bruce Rauner signed it into law without comment. Supporters called it a major victory for LGBTQ rights. There are variations, but it generally goes like this: A person doesn’t realize someone is gay or transgender and engages in a flirtation, then discovers that person’s sexual orientation and that discovery triggers a passionate involuntary response such as murder.


ACLU Lawsuit Claims Nevada Violates Indigents’ Right to Counsel

Nevada has “abdicated” its duty under the Constitution to ensure rigorous legal representation for indigent defendants, according to a class-action suit filed today by the American Civil Liberties Union (ACLU).

Nevada has “abdicated” its duty under the Constitution to ensure rigorous legal representation for indigent defendants, according to a class-action suit filed today by the American Civil Liberties Union (ACLU).

The ACLU, joined by its state branch, argues that in 11 of Nevada’s 16 counties, the right to legal help for indigent defendants established by the 1963 Supreme Court’s Gideon v. Wainwright ruling has not been fulfilled.

The suit argues that insufficient resources and lack of oversight by the state have caused these rural counties to use contract attorneys in place of a functional public defense system.

“The right to counsel is the lifeblood of the criminal justice system,” the complaint declared, noting that the Supreme Court’s ruling established that indigent defendants are covered under Sixth Amendment guarantees of due process, including the right to legal counsel.

“The principles of equal justice and due process rest on fulfillment of this (Constitutional) duty,” the ACLU added.  “Yet the public defense system in Nevada’s rural counties is plagued with serious systemic deficiencies that the state and the governor have long known about and persistently failed to remedy.”

In Nevada, contract attorneys are paid through a system of de facto flat fees, where they receive the same amount of money regardless of the effort and time invested. As a result, the suit says, they tend to neglect cases they receive from the county—oftentimes ignoring these clients for months, pressuring them into pleading guilty to charges they have not investigated, or failing to advocate effectively for clients at sentencing.

Moreover, according to the suit, many contract attorneys in Nevada are not required to have training, experience, or education relevant to criminal defense.  In many cases, these attorneys have private clients whose cases compete for their time and effort against the far less profitable and underfunded public defense cases.

The suit notes that the current situation is especially worrying, considering that Nevada was among the first states to establish an equal right to counsel regardless of a defendant’s ability to pay.  In In re Wixom (1877), the Nevada Supreme Court ruled that “the failure to appoint counsel to the poor in a criminal case was a valid reason to overturn convictions on direct appeal.”

It was not until 86 years later that the U.S. Supreme Court affirmed this in Gideon v. Wainwright (1963).

Nevada’s state government has been on notice for the last ten years regarding this issue.

The Nevada Supreme Court’s Indigent Defense Commission, established in 2007, commissioned a report titled “Reclaiming Justice,” which documenting the shortcomings of public defense in Nevada’s rural counties. The report was issued in 2013 by the Sixth Amendment Center.

Franny Forsman, who served as the federal public defender in Nevada for more than 20 years, is co-counsel in the suit.

This lawsuit will mark the ACLU’s eighth regarding states’ and counties’ inadequate public defense.

Nevada joins Fresno County, California; Grays Harbor County, Washington; Luzerne County, Pennsylvania; Orleans Parish, Louisiana; Idaho; Missouri, and Utah.

The ACLU has also filed lawsuits claiming systematic Sixth Amendment violations by courts in Beaufort and Bluffton, South Carolina; and Miami-Dade County, Florida.

Brian Edsall is a news intern with The Crime Report. Readers’ comments are welcome.


Sessions on Charlottesville: ‘We’re On This Case’

Attorney General Jeff Sessions says the Justice Department is investigating the Virginia violence over removal of a Confederate monument. President Trump is expected to address the issue today, after he was widely criticized for citing violence “on many sides.”

Attorney General Jeff Sessions says “too much has been read into” President Trump’s statement Saturday amid violence at a protest in Charlottesville, Va., related to the removal of a Confederate monument. Sessions told NBC’s “Today” that Trump had “explicitly condemned” violence and that “he totally opposes” the values espoused by white supremacy organizations, the Associated Press reports. Trump cited violence “on many sides.” Sessions said he expects Trump to say more, saying “I think you’ll hear that again today.”

Sessions said that he and FBI officials have a meeting scheduled with Trump today, saying “we’re on this case.” Trump, who has been at his New Jersey golf club on a working vacation, was set to make a one-day return to Washington to sign an executive action on China’s trade practices. Senior White House aides were dispatched to the morning news shows, yet they struggled at times to explain the president’s position on Charlottesville. A White House statement on Sunday explicitly denounced the Ku Klux Klan and neo-Nazi groups, but it was attributed to an unnamed spokesperson and not the president himself.