How ‘Underground Justice’ Has Failed Americans

Prosecutors’ zeal for plea bargaining is one reason for the nation’s disturbingly high recidivism rates, says the author of a forthcoming book. The solution: change prosecutorial culture.

In a series of recent interviews, prosecutors were asked what role they believe they play in reducing recidivism.

The most common answers:

“None.”  

“Not my job.”

And the few who said they did have a role indicated that harsher punishment was the way to lower recidivism.

The interviews, conducted for a forthcoming book I co-authored with Robert Pitman, “Confronting Underground Justice, ” make one thing painfully clear:  We need to change the thinking of prosecutors regarding the roles they can and should play if we want to fix our broken justice system.

We have spent upwards of $1 trillion dollars over the past 45 years in direct criminal justice costs and another $1 trillion on the war on drugs—an investment that has resulted in recidivism rates of nearly 85 percent for state offenders and nearly 45 percent for federal inmates.

I don’t see how anyone can spin that into a positive. There’s a clear consensus that the U.S. justice system is a massive failure.

Focusing on changing the culture of prosecutors is one way to turn this thing around.

Here’s why.

The prosecutor is the most influential individual in the justice system. He or she is the key player in plea negotiation—the way that over 95 percent of criminal convictions are achieved.

The combination of broad prosecutorial discretion and plea negotiation effectively makes prosecutors the judge, jury and sentencer in most criminal prosecutions.  Prosecutors determine who to prosecute, what to charge, who is guilty and of what—and they are instrumental in determining the sentence, either directly (through sentence bargaining) or indirectly (through charge bargaining).

While plea negotiation was developed as a way to manage crushing caseloads and dockets, it has become the fast track to criminal conviction and punishment.  Punishment is the currency of the plea deal.  Time in prison, jail or on probation is what is negotiated.  Punishment is what prosecutors know and therefore that is what is delivered.

The problem is that punishment does little to reduce crime and recidivism.

The majority of individuals who enter the justice system have a mental health problem, a substance abuse problem, a neurodevelopmental and/or neurocognitive problem, and often co-morbidities of all three, as well as serious problems with employment, housing, and education, among others.

Punishment does little to alter any of these circumstances and conditions. In many cases, it exacerbates them.

Prosecutors are lawyers.  They are not psychiatrists, psychologists, neurologists or clinical social workers.  However, since they are the pivotal decision makers, it is important to help them make better decisions, in turn, improving short term and longer-term outcomes.

Therefore, true criminal justice reform must encompass providing ways in which prosecutors can make better decisions that have recidivism reduction as a primary consideration.  In a previous book (“From Retribution to Public Safety), we developed the concept of independent panels of experts—psychiatrists, psychologists and neurologists who can clinically screen and assess offenders when they enter the system, and then advise prosecutors regarding the best path forward for recidivism reduction and risk management.

Recidivism reduction involves intervention/treatment; and risk management requires supervision and control.

We tested this concept with the prosecutors we interviewed.  They nearly universally embraced the idea, as did the public defenders and judges whom we interviewed.

Plea negotiation also raises serious concerns about fairness, criminal procedure and due process. Examples include the risk of involuntary confessions (often the result of charge stacking, threats of greater punishment, and pre-trial detention), ambiguous standards of proof for conviction, limited discovery, not litigating the evidence, not considering criminal intent, and many more.

How do we mitigate these concerns and assure fairness?

Having defense counsel present is a very important step, but we need to appreciate that public defenders do not have the luxury of time and reasonable caseloads. We have plea negotiation because it meets the needs of prosecutors, judges and defense counsel to move cases.

We believe that a plea mediator, a neutral, independent third party similar to the mediator role in civil litigation, can serve to level the playing field, bring the process above ground, and assure that plea negotiation meets constitutional standards.

One of the ironies is that our failure to effectively reduce recidivism is the main reason dockets and caseloads are so extraordinarily high, and why we rely so heavily on plea negotiation.

Until prosecutors embrace recidivism reduction as one of their primary responsibilities, and until we provide prosecutors with expert tools to make better, fairer decisions, efforts at meaningful justice reform will fail.

See also: Do the Nation’s Prosecutors Need Help?

Bill Kelly

William R. Kelly

William R. Kelly is professor of sociology at the University of Texas at Austin, and the author of four books on criminal justice reform, including From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice ( Rowman and Littlefield, 2017), and Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Rowman and Littlefield, forthcoming, October 29, 2018).He welcomes comments from readers.

from https://thecrimereport.org

How ‘Underground Justice’ Has Failed Americans

Prosecutors’ zeal for plea bargaining is one reason for the nation’s disturbingly high recidivism rates, says the author of a forthcoming book. The solution: change prosecutorial culture.

In a series of recent interviews, prosecutors were asked what role they believe they play in reducing recidivism.

The most common answers:

“None.”  

“Not my job.”

And the few who said they did have a role indicated that harsher punishment was the way to lower recidivism.

The interviews, conducted for a forthcoming book I co-authored with Robert Pitman, “Confronting Underground Justice, ” make one thing painfully clear:  We need to change the thinking of prosecutors regarding the roles they can and should play if we want to fix our broken justice system.

We have spent upwards of $1 trillion dollars over the past 45 years in direct criminal justice costs and another $1 trillion on the war on drugs—an investment that has resulted in recidivism rates of nearly 85 percent for state offenders and nearly 45 percent for federal inmates.

I don’t see how anyone can spin that into a positive. There’s a clear consensus that the U.S. justice system is a massive failure.

Focusing on changing the culture of prosecutors is one way to turn this thing around.

Here’s why.

The prosecutor is the most influential individual in the justice system. He or she is the key player in plea negotiation—the way that over 95 percent of criminal convictions are achieved.

The combination of broad prosecutorial discretion and plea negotiation effectively makes prosecutors the judge, jury and sentencer in most criminal prosecutions.  Prosecutors determine who to prosecute, what to charge, who is guilty and of what—and they are instrumental in determining the sentence, either directly (through sentence bargaining) or indirectly (through charge bargaining).

While plea negotiation was developed as a way to manage crushing caseloads and dockets, it has become the fast track to criminal conviction and punishment.  Punishment is the currency of the plea deal.  Time in prison, jail or on probation is what is negotiated.  Punishment is what prosecutors know and therefore that is what is delivered.

The problem is that punishment does little to reduce crime and recidivism.

The majority of individuals who enter the justice system have a mental health problem, a substance abuse problem, a neurodevelopmental and/or neurocognitive problem, and often co-morbidities of all three, as well as serious problems with employment, housing, and education, among others.

Punishment does little to alter any of these circumstances and conditions. In many cases, it exacerbates them.

Prosecutors are lawyers.  They are not psychiatrists, psychologists, neurologists or clinical social workers.  However, since they are the pivotal decision makers, it is important to help them make better decisions, in turn, improving short term and longer-term outcomes.

Therefore, true criminal justice reform must encompass providing ways in which prosecutors can make better decisions that have recidivism reduction as a primary consideration.  In a previous book (“From Retribution to Public Safety), we developed the concept of independent panels of experts—psychiatrists, psychologists and neurologists who can clinically screen and assess offenders when they enter the system, and then advise prosecutors regarding the best path forward for recidivism reduction and risk management.

Recidivism reduction involves intervention/treatment; and risk management requires supervision and control.

We tested this concept with the prosecutors we interviewed.  They nearly universally embraced the idea, as did the public defenders and judges whom we interviewed.

Plea negotiation also raises serious concerns about fairness, criminal procedure and due process. Examples include the risk of involuntary confessions (often the result of charge stacking, threats of greater punishment, and pre-trial detention), ambiguous standards of proof for conviction, limited discovery, not litigating the evidence, not considering criminal intent, and many more.

How do we mitigate these concerns and assure fairness?

Having defense counsel present is a very important step, but we need to appreciate that public defenders do not have the luxury of time and reasonable caseloads. We have plea negotiation because it meets the needs of prosecutors, judges and defense counsel to move cases.

We believe that a plea mediator, a neutral, independent third party similar to the mediator role in civil litigation, can serve to level the playing field, bring the process above ground, and assure that plea negotiation meets constitutional standards.

One of the ironies is that our failure to effectively reduce recidivism is the main reason dockets and caseloads are so extraordinarily high, and why we rely so heavily on plea negotiation.

Until prosecutors embrace recidivism reduction as one of their primary responsibilities, and until we provide prosecutors with expert tools to make better, fairer decisions, efforts at meaningful justice reform will fail.

See also: Do the Nation’s Prosecutors Need Help?

Bill Kelly

William R. Kelly

William R. Kelly is professor of sociology at the University of Texas at Austin, and the author of four books on criminal justice reform, including From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice ( Rowman and Littlefield, 2017), and Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform (Rowman and Littlefield, forthcoming, October 29, 2018).He welcomes comments from readers.

from https://thecrimereport.org

Are Witnesses Still Needed in Modern Trials?

Not really, say two law professors. They argue in a Texas Law Review article that it’s time to rethink the centuries-old traditions of Western jurisprudence that have made witnesses the centerpiece of criminal and civil trials—and replace them with more dependable ways of arriving at the truth.

Witnesses are no longer key to arriving at the truth in modern trials and should only be used when no other evidence is available, argue two law professors.

In an article published in the Texas Law Review, Edward Cheng, of the Vanderbilt University Law School, and Alexander Nunn of the University of Arkansas School of Law, said it’s time to rethink the centuries-old traditions of Western jurisprudence that have made witnesses the centerpiece of criminal and civil trials.

Modern technology and practices can provide more authoritative “process” evidence, they wrote in the article, entitled “Beyond the Witness: Bringing A Process Perspective to Modern Evidence Law.”

“[The] witness-centered perspective is antiquated and counterproductive,” the professors wrote. “It is a deeply limited and ultimately distortive lens through which the legal system views the evidence available in the modern world.”

The authors said that the use of witnesses, a practice dating to the 12th century, emerged because there were few other ways for judges and juries to assess competing claims in trials. They used the example of a suit brought against an artisan who had made a defective piece of furniture.

A plaintiff might argue the artisan was negligent, and the artisan would then defend his work in court, bringing other witnesses to defend his judgment and his work.

But such competing assessments were crude and imperfect ways of discovering whether the artisan was truly responsible for the defective equipment, the professors wrote.

“In the modern world, particularly in commercial and technological contexts, systems and processes have replaced individual judgment,” wrote Cheng and Nunn wrote.

“Today, in a similar situation, the case would instead be brought against the entire production of the chair, rather than against a sole individual.

“One person was not solely responsible for the creation and production of a chair. The process by which the chair was created must be examined in court. One chair, one plaintiff and one artisan would no longer be the only parts of the case.”

Currently, both “process evidence” and witness evidence are given equal weight in court, but the authors say it’s time to develop a different way of collecting evidence, and a better legal framework for using it.

“Rather than compulsory process and cross-examination, process evidence may instead require enhanced discovery rules facilitating access to and testing of the process,” they explained.

Turning to the larger issue of trials in general, they wrote, “The focus of the legal system no longer should be on individuals and their testimony. After all, the reliability inquiry itself no longer depends on their actions or observations.”

Generally, process-based evidence is dependent on a process—design, manufacturing, production—rather than the conduct of an individual.

In some cases, discerning reliability of evidence comes from a witness, they conceded. But in other cases, it is arrived at from the process itself.

“We could learn about a bank deposit from the teller who accepted it, but it may make more sense to look at the computer database that recorded the transaction,” they wrote.

Process evidence, according to Cheng and Nunn, is more objective, standardized and mechanical. Because process evidence is collected differently, it should be analyzed differently.

In the latter part of their article, Cheng and Nunn argue “in favor of an expansion of the compulsory process and subpoena powers to allow litigants increased access to the underlying processes generating evidence.”

“For the legal system to focus on any individual witnesses is beside the point,” the article added. “Yes, one could call an employee to testify about [a company’s], but the key evidence is the policies themselves, not the employee’s testimony.”

The authors say the fixation with witnesses and how to assess their reliability has been “obsessed over” by legal experts.

But these legal arguments ultimately don’t address the key issue, namely that using the witness “framework” for jurisprudence is often an unreliable way of assessing responsibility or culpability.

They pointed out that ‘expert” witnesses were often employed just to provide a theatrical flourish.

They quoted a typical examination of photographic evidence in the courtroom goes as an example, from a court transcript:

Attorney: I’m going to show you Government’s Exhibit numbers 2 through 4. Take a look at those. Do you recognize those photographs?

Witness: I do.

Attorney: Do they fairly and accurately represent what you observed that day?

Witness: Yes.

Attorney: Your Honor, we’d offer Government’s Exhibits 2, 3, and 4 into evidence.

The Court: Any objection?

Opposing Counsel: No objection.

Calling on the legal community to “let the genie out of the bottle” and eliminate “the awkward legal constructs that result when the law demands witnesses for everything,” the authors said witness evidence should be treated only as a last resort when other forms of evidence were unavailable.

“Why should the legal system treat both [process-based evidence and witness-based evidence] on an even playing field?” they asked.

“[…]Rather than preferring witnesses, the legal system should prefer processes, and only where process-based evidence is unavailable should courts settle for an in-person testimony.”

A complete copy of the article can be downloaded here.

This summary was prepared by TCR news intern Lauren Sonnenberg. Readers’ comments are welcome.

from https://thecrimereport.org

Amid Democratic Boycott, GOP Keeps Moving Judges

As the Democrats refuse to take part, Republicans are barreling ahead confirming a parade of younger conservative judges like 36-year-old Allison Rushing, who could serve on the Fourth Circuit for 40 years given her youth.

A few Republican senators did something unusual on Wednesday: With the Senate not in session and no Democrats in sight, they convened the Judiciary Committee to advance a half-dozen of President Trump’s judicial nominees. For Republicans,  nothing matters more, Politico reports. They aren’t pitching a big visionary agenda. Senate Majority Leader Mitch McConnell’s primary focus is reshaping the courts. “I love the tax bill and a lot of the other things we did. But I think lifetime appointments — not only to the Supreme Court but to the circuit courts — are the way you have the longest lasting impact on the country,” McConnell says/

The GOP is barreling ahead confirming a parade of younger conservative judges like 36-year-old Allison Rushing, who could serve on the Fourth Circuit for 40 years given her youth. McConnell says 29 circuit court judges have been confirmed since Trump took office, which he described as a record pace “in any administration in history.” That’s 16 percent of the 179 appeals court seats. On Wednedsday, the Democratic side of the aisle was empty after the minority agreed to confirm 15 Trump judges in exchange for an early recess, a boycott a Democratic aide said was intentional. Republicans are betting that McConnell’s judicial hot streak will energize their base in this year’s conservative battleground states. With 51 seats and a generous Senate map this year, there’s an easy roadmap for the GOP to continue clawing back the more than 300 lifetime confirmations that Democrats oversaw during  the Obama presidency. White House counsel Don McGahn, who led the administration fight for conservative judges, resigned Wednesday and is expected to be replaced by Washington, D.C., attorney Pat Cipollone.

from https://thecrimereport.org

Survey Finds Justice-Involved Feel Disrespected by Courts, Cops

The controversy over Brett Kavanaugh’s Supreme Court nomination has focused attention on its potential impact on the Court’s legitimacy, but similar questions about the legitimacy of lower courts also need to be addressed, says the Center for Court Innovation (CCI).

The controversy over Brett Kavanaugh’s Supreme Court nomination has focused attention on its potential impact on the Court’s legitimacy, but similar questions about the legitimacy of lower courts  also need to be addressed, says the Center for Court Innovation (CCI).

In a new study, CCI examines how individuals who go through multiple components of the justice system (e.g., arrest, adjudication and incarceration) perceive whether they are receiving justice. 

Researchers administered surveys to 807 justice-involved people to determine their  overall feelings of fairness related to multiple criminal justice agencies, and also conducted interviews with 102 people who had significant experience with the police, the courts, and corrections.

They collected data in Newark, NJ and Cleveland, OH.

Overall, the majority of respondents felt that police officers did not treat them with respect, listen to them, or take their needs into account.

Yet despite generally reporting that police were not engaged in the community, were not respectful, and could not be trusted to arrive quickly if called to respond to a violent crime, more than half of respondents–58 percent– said they would call the police for help if they were in trouble.

Survey respondents’ perceptions of procedural justice during court appearances were more favorable: about four-fifths felt respected by the court officers and the judge and reported that they understood what was happening (e.g., court rules, procedures, case progress).

However, views of the local court system were not favorable among respondents, especially with regard to the court’s neutrality.

Of the interviewees, 50 percent felt that the poor and African Americans were treated worse than others by the courts. General views of the judges trended negative, with many respondents rating judges as out of touch and unfair.

Moreover, survey respondents had negative views about corrections. Many believed that correctional staff were too quick to use force against inmates and did not feel that staff were trying to protect and look out for inmates.

When respondents were asked about their overall general satisfaction with the police, prosecutors, defense attorneys, judges, the court system, and jail administrators, most of them admitted they were not satisfied– 3o percent of survey respondents reported high aggregate satisfaction with the criminal justice system, and 70 percent reported low-moderate aggregate satisfaction.

The CCI made the following policy recommendations:

  • Police-address neutrality and respect, police departments could mandate all officers to participate in trainings on implicit bias and effective and non-violent communication.
  • Courts-address understanding, courts could provide all defendants with materials that give detailed explanations of essential court processes (e.g., plea bargaining, bail payment), key terms (e.g., fines and fees), and legal rights. To address voice and respect, judges could use scripts with each defendant to ask if there is anything about the case or defendants’ personal circumstances they should know about before making a decision.
  • Corrections- increase respect and voice, jail and prison facilities could train correctional officers in effective and non-violent communication.

A full copy of the report can be found here.

This summary was prepared by TCR senior staff writer Megan Hadley.

from https://thecrimereport.org

L.A. Court Stops Suspending Licenses Over Unpaid Fines

Civil rights lawyers settled a lawsuit accusing the Los Angeles Superior Court of improperly ordering driver’s license suspensions for people who couldn’t afford to pay their traffic ticket fines. The court will notify drivers that they can ask a judge to evaluate their ability to pay.

Civil rights lawyers settled a lawsuit accusing the Los Angeles Superior Court of improperly ordering driver’s license suspensions for people who couldn’t afford to pay their traffic ticket fines, saying the court has agreed to notify drivers that they can ask a judge to evaluate their ability to pay, reports the Los Angeles Times. “Courts were required by law to look at a person’s ability to pay a fine before ordering the suspension of a driver’s license,” said Antionette Dozier of the Western Center on Law and Poverty. “In Los Angeles, they didn’t follow the law.” The lawsuit centered around Gloria Alvarado, who was fined $712 for not wearing her seat belt while in the car with her husband. Alvarado and her husband are disabled and living on fixed retirement and disability payments of $1,514 a month. When she explained her situation, the judge reduced the fine to $600.

She couldn’t afford that fine, so the court had her license suspended. Her attorneys said there are many others like her. “Tens of thousands of people, primarily poor African American and Latino residents, illegally lost their right to drive,” said Lisa James of the human rights group All of Us or None. “That meant they were prevented from fully living their lives, leading to lost jobs, missed doctor’s appointments, and other personal and family difficulties.” After the lawsuit was filed in 2016, the court agreed to notify people cited for traffic violations of their right to demonstrate their inability to pay a fine, according to the settlement. The court will also train employees on the ability-to-pay process and provide data to civil rights attorneys who will monitor compliance for a year.

from https://thecrimereport.org

Boston Globe Investigates Secret MA Court System

Newspaper reports on secret “show cause” sessions held by court clerks, who frequently opted not to issue charges, even after finding there was enough evidence to do so.

The Boston Globe explained how it reported on a secret court system in the state in which thousands of criminal cases disappear each year in secret hearings. Court officials frequently refuse to confirm or deny the existence of some cases, unless clerks decide to issue charges after a private hearing. One defense attorney said he has had trouble obtaining information about hearings involving his own clients. The Globe‘s Spotlight Team started with basic statistics showing that some clerks’ offices were far more likely to issue charges than others. The data also showed that clerks frequently opted not to issue charges, even after finding there was enough evidence to do so.

The newspaper asked dozens of police departments across the state for a list of cases that they had sent to court for closed-door “show cause” sessions. The State Police provided a spreadsheet with more than 30,000 charges they had asked clerk magistrates to approve. We eliminated the cases that resulted in criminal prosecution and, by deduction, the remaining cases on the list would likely be charges that clerks dropped in private sessions. The Globe visited more than 30 courthouses to find out the outcomes of the police requests. We eventually looked up about 600 different cases, and verified with police and court officials when possible whether the cases made it out of clerks’ hearings. White defendants appeared to have an edge in convincing clerks to reject charges, compared to minority defendants. Attorneys who accompanied clients to clerks’ hearings helped reporters understand how victims and defendants are treated, and provided details about what transpired inside the closed-door sessions. District attorneys also pointed us to a handful of cases where they had asked a judge to intervene after a clerk refused to issue charges.

from https://thecrimereport.org

Trust, But Verify: The Hazards of Police Body Cams

Cops have been known to manipulate body camera evidence to support their version of fatal encounters with civilians. That’s why video footage should be closely examined through courtroom questioning, argue two researchers.

Police officer statements captured through body camera footage should be permissible in court as evidence against a criminal defendant only if the officer making the statements testifies in court, argues a forthcoming article in the Fordham Law Review

The authors of the article, William and Mary Law School Professor Jeffrey Bellin and 13th Judicial Circuit of Virginia Law Clerk Shevarma Pemberton, made the recommendation as part of an analysis of preexisting laws governing hearsay evidence and the rising widespread use of police body cameras.

Police body cams typically produce audio and video recordings of police officer actions, observations and interactions with citizens, and while they are generally viewed as checks on police misconduct, they are also a tool for officers to collect evidence against citizens who later become defendants in criminal trials, the researchers say.

Since officers know the footage will be used as evidence, they could control and manipulate evidence during police-civilian interactions in a manner that incriminates civilians.

One way they can do so is through their oral statements. For example, an officer may shout “He is reaching for his gun,” or “He just threw something in the bushes,” when in fact no such actions occurred or at least aren’t corroborated in the video footage.

For that, they should testify and face cross-examination, the researchers say.

The study provides a list of recent events the authors say back up their concern. In Baltimore, police were accused of reenacting drug discoveries for their body cameras. Officers involved in shooting Stephon Clark muted their body camera audio shortly after the shooting. During the 2016 shooting of Alton Sterling, both officers’ body cameras were “dislodged.”

The researchers also found that 70 percent of officers violate body camera policies.

“This is particularly important because the footage produced by police body cameras will much more commonly be used to prosecute citizens than to document their abuse at the hands of police,” the authors wrote.

“This danger becomes particularly significant if police body camera statements are introduced at trial without the live testimony of the authoring officer. Such statements will be admitted with a veneer of reliability despite never having been subjected to an oath, or the “crucible of cross-examination.”

The authors proposed that officers must testify that they cannot fully and accurately recall the incident and vouch for the accuracy of the out-of-court statements. Furthermore, the oral statements in the video must exhibit “excited utterances,” as they are spontaneous and less likely to engage in “conscious fabrication than the reflective mind.”

The authors argued that the media and scholars of body camera footage coverage focused on holding police accountable for unlawful shootings and other uses of excessive force but have ignored examining the extent to which the audio track—specifically statements made in the audio track in body cam footage should be admissible against a defendant in a criminal prosecution.

The full study can be downloaded here.

This summary was prepared by J. Gabriel Ware, a TCR news intern. Readers’ comments are welcome.

from https://thecrimereport.org

Louisiana to Vote on Jim Crow-Era Split-Jury Law

Louisiana is the only state to allow nonunanimous verdicts in murder trials, which critics say has helped convict minority defendants in questionable cases. Voters on Nov. 6 will have a chance to require unanimous verdicts in felony cases.

When Glenn Davis of Louisiana was 19, he was sentenced to life in prison for murder without the possibility of parole even though the jury deciding his fate did not agree on his guilt. Because of a Jim Crow-era statute, a  Louisianan can be convicted of a felony and sentenced to prison, including life without parole, on a 10-2 or 11-1 verdict, reports the Los Angeles Times. Across the U.S. federal courts and 48 states require juries to be unanimous in felony verdicts. Louisiana is the only state to allow nonunanimous verdicts in murder trials. Only one other state, Oregon, allows split-jury verdicts in felony cases. Louisiana adopted the split-jury rule in 1880 after the 14th Amendment guaranteed all men, including former slaves, the right to vote and serve on juries.

Over the last decade, activists and attorneys have unsuccessfully filed more than 20 petitions to the U.S. Supreme Court challenging the rule on behalf of Louisiana inmates. The law could soon be overturned. On Nov. 6,  residents will be able to amend the state constitution and require juries to return unanimous verdicts in felony cases. Advocates for changing the law say the split-verdict rule has long made Louisiana one of the world’s prison capitals, and that the law has a disproportionate impact on minority defendants. In a review of nearly 1,000 Louisiana felony trials from 2011 to 2016, The Advocate found that about 40 percent of convictions by 12-member juries had one or two holdout jurors. Black defendants were 30 percent more likely to be convicted than white defendants. In Davis’ case, he was locked up on the basis of testimony from a single eyewitness with a history of drug abuse and a long criminal record. His conviction was overturned after Innocence Project New Orleans found the state had hidden evidence that linked another man to the crime.

from https://thecrimereport.org

Defenders Use Texting Services to Remind Clients

A firm called Uptrust is providing an enhanced messaging service to several public defender offices. Failure-to-appear rates have dropped from 15-20 percent to 5-6 percent, the company says.

A text-messaging service that reminds defendants of court dates holds great promise for reducing failure-to-appear rates and saving money in courtrooms,  reports Cleveland.com. In many cases, defendants don’t purposely skip out. They simply forget about their court date or, because they don’t have a stable address, miss notifications sent through the mail. “People want to come to court,” said Cuyahoga County Public Defender Mark Stanton. “They want to address their case.” That’s where a text-messaging service helps. Defendants may not read a letter, said Ohio Public Defender Tim Young, but they will look at their cell phones.

Missed court dates can be bad news for defendants, especially if the judge orders their arrest and they wind up behind bars. They can also be costly to taxpayers who may foot the bill for the extra police work and jail time. Text-messaging is a small part of a larger package of online services provided by the Ohio Public Defender’s Office across the state. The cost, he said, is minimal at three quarters of a cent per text. Texting defendants is catching on in other states. A firm called Uptrust is providing an enhanced messaging service to several public defender offices. Not only does it notify defendants of upcoming court dates, but it can also remind them to arrange for the necessary transportation and to line up childcare if need be. The defendant can respond to the text in a limited capacity, to say they are sick, for example, and can’t make court. Uptrust CEO Jacob Sills said failure-to-appear rates have gone from 15-20 percent to 5-6 percent with the help of Uptrust. The service is in use in Yolo, San Joaquin and Contra Costa counties in California; Baltimore; Richmond and Petersburg, Va.; Spokane County, Wa., and Luzerne County, Pa.

from https://thecrimereport.org