White-Collar Crime: Keeping Cases Out of the Courtroom

A white-collar defense attorney explains how “pro-active” engagement with prosecutors has helped his clients avoid going to trial or at least present evidence that could change a case’s outcome. He calls it “trying a case in a prosecutor’s office.”

Several years ago, a philatelist was being investigated for securities fraud based on an alleged false valuation of collectible stamps that were used as collateral for investments.

At a meeting with a formidable team of agents, prosecutors and Securities and Exchange Commission litigators, the client made a presentation describing how these stamps are valued, auctioned, privately sold, etc. The presentation included exhibits from auction house catalogues, completed sales and commercial offerings for sale and purchase.

Weeks passed while the government digested the materials.

Eventually, the government team decided that the art of valuing collectible stamps was too subjective to be amenable to a “beyond a reasonable doubt” analysis and did not bring the prosecution.

That points to an unassailable truth. The best result possible for the target of a criminal investigation is never to be charged with a crime.

Law is like medicine in that regard: The earlier you are involved in a case, the more opportunities exist to cure or restrain the spread of the disease.

When and how much engagement is appropriate depends on the particular circumstances of each matter. There is no one-size-fits-all strategy.

As soon as the authorities are aware that your client is represented by counsel all attempts to contact him, get statements and physical evidence directly will cease. Montego v. Louisiana holds that all contact by the authorities with a person must cease upon his invocation of his desire to be represented by counsel.

Not only does this eliminate the potential of harmful statements being secured, it also protects the client from unwelcome and unpleasant encounters with the authorities.

Once a relationship is established with the prosecution, a request to be allowed to present evidence to the grand jury should be instituted.

Department of Justice regulations require that a prosecutor put substantial evidence which negates guilt before a grand jury. [DOJ Manual §9-11, 122(a) 9-268 (1992-1 Supp.)] In New York, a demand to be a witness before a grand jury when “a person is being or is about to be or has been submitted to a grand jury…” must be honored [CPLR 190.50 5(a)].

This will result in learning whether or not a grand jury is considering the matter and if so an opportunity to influence its outcome. Whether or not one actually makes such a presentation is again fact-specific.

Since grand juries are totally controlled by the prosecutor, a determination always has to depend on the nature and quality of the evidence, and whether it is better to be withheld and used later, or if it could have an effect on the proceeding.

In addition to the grand jury aspect of the investigation, a proactive relationship with the prosecution can result in making an attorney’s proffer to wit: meeting with them and putting forth evidence that will benefit the client. The proffer is pursuant to an agreement that nothing put forth by the attorney can be used as evidence by the prosecution in their case.

However, leads from such information can be used to find additional evidence. Therefore, it is essential that only exculpatory information be transmitted.

Such engagement during the investigative stage is akin to “trying the case in the prosecutor’s office.” Supplying them with exculpatory evidence creates a broader understanding of the facts, and increases the prosecution’s awareness of the difficulties they will have in proving their case as well as making them aware of any mitigating circumstances that are favorable to the client.

Another of our clients was arrested by a police officer who saw a gun protruding from under his jacket as he was walking down the street. After stopping him and determining that he did not have a license to carry a weapon he was arrested. The DA believed this was a slam dunk for conviction.

But after agreeing to our request to allow the defendant to testify in the grand jury no charges were brought. The client testified that he had been visiting an apartment building he owned where he found the gun in a garbage can and was on his way to the police precinct to turn it in, when stopped by the police officer.

After hearing his testimony, the grand jury refused to indict.

Since this testimony would have been the same at trial there was nothing to lose by putting it before the grand jury.

Proactive engagement during the investigative stage requires balancing whether or not the information put before prosecutors is better saved for trial. This is often determined by whether you believe that advance notice of the information will give the prosecution time to develop a way to ameliorate the effectiveness of it.

For example, making a potential witness available to the prosecution will give them time to investigate that person as well as lock them into statements. On the other hand, if the statements they make will be the same at trial and an investigation will be favorable to the client, this may have a salutary effect.

In the event charges are brought (often less than originally intended), one can usually work out a surrender of the client to the authorities. This avoids the embarrassment of a public arrest at home or the work place. A voluntary surrender also will be considered by the Court as evidence that the client has shown his intent to abide by the Court’s orders and is not a bail risk.

Title 18 §3142(9) 3A includes the factors to be considered for bail, and there are conditions of release…” that will reasonably assume the appearance of the person…” the “…record concerning appearance with court proceedings;”.

This is typically reflected in low bail as part of the surrender package. In addition to decreasing the amount of time the client spends incarcerated upon arrest, it can also affect geographic, economic and other terms and conditions of bail.

By interacting with the prosecution during the investigation we often receive early discovery.

In addition to being able to rebut and/or explain such information to the investigators, the building blocks to a trial defense including finding fact witnesses, documents and expert testimony can begin.

Another positive affect of pre-arrest negotiations is discovery of the prosecutor’s case at the earliest time. This allows for informed decision making i.e. whether or not to accept a plea deal or move forward to trial is always best decided early.

A better deal is typically available early in the process.

Knowing the prosecutor’s case helps determine whether the matter can be put to trial when balancing it against the plea offer. Even when the prosecution decides to move forward with charges, they will often offer a much more reasonable resolution based on the information they received from the defense.

In most white collar prosecutions, the defendant’s state of mind is a relevant factor.

In Elonis v. United States (2018) Chief Justice John Roberts wrote that” the basic principle that ‘wrongdoing must be conscious to be criminal’ and that a defendant must be “blameworthy in mind before he can be found guilty.”

After Elonis, it remains “the general rule” that evidence that a defendant acted with “a guilty mind” is “a necessary element in the indictment and proof of every crime” even if a statute omits that element. [Source: The Supreme Court on Mens Rea: 2008-2015 by Paul Yarkin, Jordan Richardson and John Michael Seibler.]

Usually the government uses circumstantial evidence to support a mens rea requirement. If an attorney senses that the prosecution is having trouble with this issue, it may be wise to have the client submit to a private polygraph test.

The attorney can then determine whether or not to use the result based on the polygrapher’s report. While such evidence is not admissible, a favorable result often convinces the investigators that the client was not acting with bad motives.

Jeffrey Hoffman

Jeffrey C. Hoffman

This results in a more critical re-evaluation of the evidence supporting the case and often results in a better disposition.

In short, “early diagnosis and treatment” will result in the best outcome.

Jeffrey C. Hoffman is Counsel at Windels Marx, a Manhattan-based law firm. He has been involved in a large number of white collar cases, including banking fraud, money laundering and Medicare/Medicaid fraud. Readers’ comments are welcome.

from https://thecrimereport.org

How Safe are ‘Sanctuary Cities’?

For Amanda Morales, an undocumented immigrant from Guatemala who has taken refuge in a New York church with her family, it’s a question of life or death. Identified in an ICE database after a driving offense, she is subject to deportation and a return to a homeland where she believes her children’s lives would be in danger.

Many undocumented immigrants living in the U.S believe so-called “sanctuary cities” provide protection against the heightened risk of deportation by Immigration and Customs Enforcement (ICE).

But are they wrong?

Even in New York, where Gov. Andrew Cuomo banned ICE arrests in state buildings and Mayor Bill De Blasio urged the NYPD not to assist immigration enforcement, undocumented immigrants are vulnerable.

Sanctuary cities, which some prefer to define as “safe cities,” limit their cooperation with immigration enforcement agents in order to protect low-priority immigrants from deportation. (They still turn over those who have committed serious crimes.)

But here’s the reality: if an undocumented individual, or an immigrant with a green card or temporary work visa, comes into contact with law enforcement, he or she is entered into a database system accessible by the federal agency, which acts effectively as a guidepost to locate individuals who might otherwise have escaped notice.

Under the Trump administration, which has stepped up the already-aggressive policies begun under the Obama administration of detaining and deporting undocumented immigrants found to have broken US laws, the fate of individuals who may have committed offenses at some point during their stay in the US has become even more uncertain.

Take, for example, Amanda Morales.

A mother of three living without documents in New York City for 14 years, she was involved in a minor accident while she was driving in 2012. When a police officer checked her documents, she had no driver’s license—a typical predicament for undocumented immigrants who fear making themselves known to authorities.

Once her name was automatically entered into a database, ICE was alerted.

Today, she’s a wanted fugitive, living in a church on Manhattan’s Upper West Side with her three children—two girls and a little boy, who were born in the US and are US citizens—where (she hopes) she’ll be protected from ICE agents.

Morales’ case is not unusual.

Significantly, traffic stops, particularly driving while under the influence, were the number one reason undocumented persons were deported in 2017.

Amanda Morales and her family have been “guests” of the Holyrood Episcopal Church in New York, since the ICE identified her as an undocumented immigrant subject to deportation following a driving offense. Photo by Megan Hadley/TCR

The family has made Holyrood Episcopal Church-Iglesia Santa Cruz, a self-declared “sanctuary church,” into a home of their own, where they eat, sleep, go to the bathroom, play, and essentially try to lead normal lives.

The children race around the pews while Amanda talks with church staff and volunteers.

But when the congregation leaves the church at night, Morales becomes sad and depressed.

“I like the hustle and bustle of church during the day”, she told The Crime Report. “There are people singing, piano lessons being taught, people coming in and out to pray, and volunteers and staff working here.”

Amanda does not leave the church for fear of deportation, making the small library into a sort of prison.

“I don’t open the door for people I don’t know,” she said. “I’m scared.”

The Morales’ small bedroom in the church. Photo by Megan Hadley

All because she was driving without a license.

There are several states that allow undocumented immigrants to obtain drivers licenses. New York is just not one of them.

In California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Mexico, Utah, Vermont and Washington, immigrants can provide a foreign birth certificate, a foreign passport or a consular card, and evidence of current residency in the state.

According to Amanda Armenta, an expert on policies and practices of local law enforcement, if you don’t have a license, you are more likely to be arrested because you are “a suspicious person.”

“Once arrested, even the most liberal and progressive police departments cannot stop ICE from using criminal justice content for whatever they want to use it for,” she acknowledged.

“But obviously there are things police departments can do to help ICE more or less,” she continued.

“Unfortunately for most police departments, the ways they funnel people to deportation are invisible to them,” she said. “Police departments either don’t know… or choose not to know.”

Whether or not the New York Police Department knows it’s aiding immigration enforcement with the names of illegal immigrants, the number of Latin American, Hispanic, and African-American persons they pull over during traffic stops remains high.

In 2017, New Yorkers were stopped by the police 10,861 times. Some 58 percent of those people were black and 23 percent were Latino.

Only nine percent were white.

In conservative states, traffic stops are even more of a worry for undocumented immigrants, who may be arrested by ICE officials on the side of the road, said Armenta, an assistant sociology professor at the University of Pennsylvania.

“Those kinds of things are ‘illegal detentions,'” she said, “but (they) still happen.”

Ordinarily, that would not happen—or should not happen—in a city with a sanctuary policy, where police have been specifically told not to inquire about immigration status or to inform ICE about these run-of-the-mill police stops, she noted.

Critics argue that this is precisely what has contributed to cases in which undocumented individuals who have been convicted of serious crimes are allowed back on the “streets” only to commit new crimes.

But immigration advocates point to statistics that show undocumented individuals commit far fewer crimes than legal residents.

But there’s another side to the story.

Amanda braids her daughter’s hair in the church pews.

Driving without a license, as in Morales’ case, is a misdemeanor offense. For a U.S. citizen or legal resident, the penalties can be stiff. An offender in New York State could be fined between $75 and $300, but could also be imprisoned for up to 15 days.

When an undocumented immigrant is convicted of a similar offense, however, the penalty is effectively deportation—not necessarily because of an assessment that the individual is a threat to the community, but simply on the grounds that he or she is in the U.S. illegally.

A recent session at the federal immigration court on Varick Street in New York, presided by immigration judge Mimi Tsankov, made that starkly clear.

The defendant stood before the judge with three Driving Under the Influence (DUI) convictions on his record. (His last DUI in November was an aggravated DUI.) His lawyer argued he would stop drinking, go to rehab, and never drive again.

The judge wasn’t buying it. She denied a bond hearing, and declared that whether or not the defendant is deported will be decided at a later appeal court date.

As I sat in the back with the defendant’s family, the defendant’s eleven year old son was crying on his aunt’s shoulder, unsure if his father would be deported to Mexico, or remain in the states to watch him grow up.

The defendant’s lawyer was not surprised by the outcome. But he was disheartened.

“Seeing the little boy cry made me want to break down in tears,” the lawyer, who asked that his name, and his client’s name, remain anonymous, said after the hearing.

The ICE officer I interviewed later that day, who also asked that his identity remain anonymous, agreed with Judge Tsankov.

“Criminals who are set free and released into the streets are a danger to the public,” he said simply.

An Asian American in his mid-30s, whose family immigrated legally, the agent said that “the goal of immigration enforcement is to catch criminals, and sanctuary cities hinder law enforcement’s ability to do so.”

“Sanctuary cities are a horrible idea… they make for the harboring of criminals,” he added.

For individuals like the defendant in Judge Tsankov’s court and Amanda Morales, the notion of “sanctuary” has little relevance.

According to Katrina Long, a senior immigration attorney at Cella and Associates, LLC, it’s a common misconception that undocumented immigrants are being deported for minor crimes, such as traffic violations and low level drug offenses.

The fact is, she argued, they are being deported because they are here illegally.

“When you cross border… you know you have no standing in U.S,” she told The Crime Report. “When you overstay your visa, you know you’re doing an unlawful act.”

Immigrants are being identified for minor crimes, she said, but at the end of the day, they are being deported because they have no legal standing here.

However, Long did acknowledge that for most undocumented immigrants, such as Amanda Morales and her family, being hunted by ICE officials is better than living in their homelands, which may be impoverished and violence stricken.

“If the quality of life improved in immigrant’s home countries, they wouldn’t be drawn to United States,” said Long, citing the gang violence perpetrated by drug cartels as one of the principal drivers of undocumented immigration from Central American nations like Guatemala.

“We can’t expect to solve immigration issues in the U.S and for everything to be perfect—no problem is isolated.”

Once identified on U.S. soil, an undocumented immigrant has some rights under existing laws, she said. Some may be eligible to have deportation proceedings cancelled if a child or family member is a U.S. citizen.

According to Long, an individual in those circumstances can apply for a green card, on the grounds that a dependent would suffer if he or she is removed from the country.”U” visas are also available for victims of crime who are willing to assist authorities with catching the perpetrator.

But these legal protections offer slim comfort to women like Morales, who fear taking the risk of subjecting themselves to a legal process they do not understand, and which could end in disaster—especially if they have been identified in a data base for a criminal offense.

For those among the 1.2 million undocumented immigrants living in New York who do not qualify for cancellation of removal, and who have exhausted all the mercies of the justice system, seeking refuge in a local church seems like the best alternative.

“Living in this church is much better than living in Guatemala,” Morales said, adding that in her country gangs preyed on anyone who they believed had money, in some cases kidnapping childen for ransom.

“You cannot even sleep thinking about people coming to get your kids,” she said.

“At least,” she added, “in the church you can sleep safe.”

But whether she can remain indefinitely as a fugitive—even in a city that offers itself as a “sanctuary”—is an open question.

Megan Hadley is a reporter for The Crime Report. She welcomes readers comments.

from https://thecrimereport.org

Spending on Inmate Mental Health Cuts the Cost of Crime: White House Study

Programs that focus on addressing mental health and substance abuse issues of inmates can reduce the burden of crime on American taxpayers, according to a policy brief issued the White House Council of Economic Advisers (CEA).

Programs that focus on addressing mental health and substance abuse issues of inmates can reduce the burden of crime on American taxpayers, according to the White House Council of Economic Advisers (CEA).

In a policy brief issued this month, the CEA suggested that every dollar spent on prison reform in these programs could save between $0.92 and $3.31, and up to $1.96 on long-term incarceration costs alone.

The study was undertaken as part of the Trump administrations efforts to improve prison reform and re-entry programs that would result in lower recidivism.

Noting that the heaviest share of the crime burden is accounted for by high re-arrest rates, the CEA concluded “there is an empirical evidence base to support programs that focus on the prisoner’s mental health or substance abuse to prevent future crime.”

But it added that there is less evidence suggesting other types of programs, such as those aimed at educating inmates, are cost-effective.

It called for “increased investment” in generating such evidence.

The policy brief is available here.

from https://thecrimereport.org

Why Did Mark Inch Quit as U.S. Prison Director?

Mark Inch resigned with no public explanation on the same day that White House adviser Jared Kushner commended him for his work on prisoner rentry. A House panel has been examining staff problems in the prison agency.

Mark Inch, director of the federal Bureau of Prisons, abruptly announced his resignation Friday, USA Today reports. The Justice Department gave no reason for the departure of Inch, who had started only last September. Inch oversaw 122 detention facilities, 39,000 staffers and 186,000 inmates.

At a White House summit on prison reform Friday, White House adviser and President Trump’s son-in-law Jared Kushner commended Inch for his work on the Federal Inter-agency Reentry Council; it was not clear whether he was aware of Inch’s resignation.

Hugh Hurwitz, assistant director of the BOP’s Reentry Services Division, will serve as acting prison director. Hurwitz who began his BOP career as a law clerk in the Office of General Counsel in 1988, returned as the Senior Deputy Assistant Director of the Information, Policy and Public Affairs Division. In 2017,  he was named Assistant Director for the Reentry Services Division. In the interim, he has worked for the Food and Drug Administration (FDA), the U.S. Department of Education, and NASA’s Office of Inspector General.

For the last year, the Bureau of Prisons has been the focus of a review by the House Oversight and Government Reform Committee, which has been examining allegations of sexual harassment, management retaliation against staffers and staffing shortages.

Those shortages have routinely thrust nurses, teachers, food service workers and others to take up guard duty in under-staffed prison yards and solitary confinement wings. Hundreds of non-custodial staffers were tapped last year to fill guard posts because of acute officer shortages and overtime limits.

The moves were made despite repeated warnings that the assignments placed unprepared employees at risk. The practice has continued for years even though the agency has been rebuked by Congress and federal labor arbitrators.

Inch’s original appointment raised questions among justice reformers.

from https://thecrimereport.org

Federal Offenders Re-Arrest Rates High, says Sentencing Commission

A new study by the United States Sentencing Commission found that 72.8 of federal offenders had been previously convicted, mainly for public order offenses and violent offenses.

Most individuals sitting in federal prison have offended before, according to a report released by the United States Sentencing Commission (USCC).

The USCC, in its first-ever compilation of convictions of all federal offenders sentenced in a fiscal year, found that 72.8 percent of those sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.

The report, titled “The Criminal History of Federal Offenders,” found the most common prior offenses were public order offenses (43.7 percent) and violent offenses (39.5 percent).

Details on previous offenses and a defendant’s criminal history are critical to judges’ sentencing decisions, said the report.

Congress codified this approach with the passage of the Sentencing Reform Act (SRA) of 1984, which was created to ensure consistency during federal sentencing. The act requires federal courts to consider the history and characteristics of the defendant when imposing a sentence.

The code provides guidelines, or a point system, to help in sentencing.

According to the study, of the violent offenders, assault was the most common charge, (29.5 percent), followed by robbery, (8.1 percent), and rape (4.4 percent).

Just under two percent of offenders with criminal history had a prior homicide offense.

Significantly, the data also showed most firearm offenders, 91.7 percent, had at least one previous conviction compared to about half of those convicted of fraud (52.4 percent), and child pornography (48.2 percent).

Firearms offenders were most likely to have violence in their criminal histories: 62 percent of firearms offenders with a previous conviction had a violent previous conviction.

A full copy of the report can be found here.

from https://thecrimereport.org

Getting Juvenile Probation Right

Nearly 400,000 young people are put on probation each year, pulling them deeper into the justice system without support or guidance that could divert them to a better path. Introducing a new report by the Annie E. Casey Foundation, two juvenile justice experts suggest an agenda to get them there.

Our nation’s juvenile justice systems have made a lot of progress. We’ve reduced detention at the front end of the process and incarceration at the back end, raised the age of criminal responsibility and expanded the use of evidence-based practices—all while preserving public safety.

But this encouraging wave of improvement has yet to influence the most common disposition in juvenile justice: probation.

Handcuffed by conflicting and often unrealistic expectations, and beset by overwhelming caseloads, juvenile probation remains deeply flawed both in concept and execution.

Despite the best efforts of probation professionals, probation often pulls young people deeper into the system without offering the support and guidance that would put them on a better path.

But it doesn’t have to be that way.

Given research on adolescent behavior and brain development, and evidence about interventions that consistently reduce delinquency, the knowledge exists now to get juvenile probation right. As the most common disposition in juvenile justice, with nearly 400,000 young people put on probation every year, turning that knowledge into action presents an enormous opportunity for improving the entire juvenile justice system.

Turning this opportunity into reality, however, will require far more sweeping changes than have been considered to date. Current reform strategies are beneficial as far as they go, but they ignore several critical areas.

As the Annie E. Casey Foundation has detailed in a new report, probation requires a fundamental transformation with new and expanded priorities.

A Clear Mission

 Probation suffers a crippling lack of clarity around mission and goals. Is it compliance, rehabilitation, behavior change? The answer varies from state to state, and even officer to officer.

Probation transformation cannot succeed until probation leaders and key partners resolve to refashion probation into a targeted, purposeful and developmentally appropriate intervention aimed at promoting personal growth, behavior change and long-term success — not a catch-all disposition focused on surveillance and compliance.

Divert Far More Youth From Formal Processing

 We must start by diverting more youth from juvenile court.

Community organizations, human service agencies and families — not the courts — should be responsible for responding to low-level offenses committed by young people. As the Council of State Governments Justice Center notes, “Juvenile justice systems can do more harm than good by actively intervening with youth who are at low risk of reoffending.”

Yet, many youth placed on probation today have limited or no previous court histories and pose little risk to public safety. That needs to change.

Emphasis on Rewards, Not Sanctions

 For generations, juvenile probation has imposed long standardized lists of probation rules, then threatened punishment (including incarceration) for youth who fail to comply.

Research makes clear that this approach is fundamentally backwards. Youth respond far better to rewards and incentives for positive behavior than to the threat of punishment for misbehavior.

Commitment to Racial and Ethnic Equity

 Probation plays a significant role in perpetuating the vast over-representation of African-American, Latino and other youth of color in juvenile justice. Indeed, 68 percent of youth held in residential custody in 2015 for a technical violation —breaking probation rules — were youth of color.

Yet surveys find that few probation professionals regularly analyze data to determine where disparities are occurring, and few develop new strategies with their colleagues to reduce disparities. This is unacceptable; probation has a duty to lead in the search for solutions.

Stronger Family and Community Partnerships

 The most powerful influences on court-involved youth for the long term come from their families and from others in their communities. Yet relationships between probation departments and families are often fraught, and meaningful partnerships between probation and community organizations are scarce.

The significantly smaller caseloads made possible by the increased use of diversion should enable probation officers not only to develop close, caring and positive relationships with all youth on their caseloads, but also to work intensively with young people’s families.

Meanwhile, probation departments must overcome their longstanding insularity and begin to forge meaningful partnerships with community organizations rooted in neighborhoods, especially those where large concentrations of youth on probation reside.

More Positive Youth Development Opportunities

 Youth involved in the juvenile justice system often live in communities where safe recreational spaces and constructive activities are scarce. Yet juvenile probation typically focuses on imposing rules and monitoring compliance, and perhaps providing treatment for young people’s problems, rather than working with community partners to connect youth with positive role models and provide them opportunities to explore their interests and develop their talents.

Probation transformation means focusing on helping young people build their strengths.

In all these areas, glaring gaps persist between current practices in juvenile probation and the best available information about what works and should work with court-involved youth. We have the knowledge necessary to close these gaps.

Most youth who engage in delinquent conduct, even in serious offending, are amenable to change.

For the sake of our young people, it’s time to get probation right.

Nate Balis directs the Juvenile Justice Strategy Group at the Annie E. Casey Foundation. Stephen Bishop is a senior associate at the Casey Foundation and former probation officer. They welcome comments from readers.

from https://thecrimereport.org

Prosecutor-Led Diversion Programs Lead to Reduced Incarceration, Re-Arrest

A study issued by the National Institute of Justice found that diversion programs benefit not only prosecutors, who save time, money and resources that could be spent on more serious cases, but also defendants, who avoid conviction and re-arrest.

Prosecutor-led diversion programs can lead to reduced conviction and incarceration, as well as reduced re-arrest rates, according to a study issued by the National Institute of Justice.

The study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs.

Authors found that conviction rates among diversion and comparison cases were nine percent vs. 74 percent in Milwaukee’s Diversion program; 16 percent vs. 64 percent in Chittenden County’s Rapid Intervention Community Court (RICC), and three percent vs. 61 percent among felony defendants in Cook County’s Drug School.

Notably, all five programs also achieved at least some reduction in the use of jail sentences.

In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition.

Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed, relieving the defendant of jail time and the latter consequences of a criminal record.

Diversion programs are beneficial not only to defendants, but to prosecutors as well, who save time, money and resources that could be allocated towards more serious and complex crimes, said the authors.

Now, prosecutor-led diversion programs are one of several increasingly popular “front-end” interventions targeting cases early in case processing, often before a case reaches the court, they noted.

“Our study confirmed a broader trend towards diverting cases to treatment or services at an extremely early juncture in criminal case processing,” the authors concluded.

Here are some of the other main findings in the study:

  • Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude.  All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).
  • Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth).  The fifth site did not change re-arrest outcomes.
  • Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings.  Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers.  All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.

This study was implemented as a collaboration among the Center for Court Innovation, the RAND Corporation, the Association of Prosecuting Attorneys, and the Police Foundation. A full copy of the report can be found here.

Megan Hadley is a staff writer with The Crime Report. She welcomes readers’ comments.

from https://thecrimereport.org

MS-13 Gang Databases Sweep Up Innocent Youth: Report

Profiling young Latinos as “gang members”—often with little evidence beyond a suspect tattoo— has “devastating” consequences for individuals and their communities, according to a study by the City University of New York (CUNY) School of Law.

Profiling young Latinos as “gang members”—often with little evidence beyond a suspect tattoo— has “devastating” consequences for individuals and their communities, according to a study by the City University of New York (CUNY) School of Law.

Authors of the study concluded that databases and information-sharing among federal immigration authorities and local law enforcement often resulted in collecting names of individuals with no connection to MS-13, a notorious gang which has been associated with murders and drug dealings across the U.S., reports Voices of NY.

The study, based on a survey of 43 immigration lawyers and immigration advocates in New York State, notes that allegations of gang membership have been used to deny asylum or legal residents, and as a pretext to deny applications for benefits or to arrest immigrants.

A young person can be branded as a gang member just because he or she happens to know someone in a gang or connects to a gang member via social media, and the suspected name can be added to a gang database without knowing it, said Babe Howell, a CUNY law professor in a conference call discussing the study’s findings.

The study was co-produced by the CUNY School of Law Immigrant & Non-Citizen Rights Clinic and the New York Immigration Coalition.

The authors called for setting “stringent” requirements for adding names to a  gang database, including limiting subjects to individuals 16 and over, and who have been convicted for violent offenses or gang-motivated felony offenses.

Criteria for inclusion should be published and publicly available, and periodic audits of databases by neutral third parties should be conducted, with a view to expunging names when new information becomes available.

from https://thecrimereport.org

Anti-Homeless Laws ‘Criminalize’ Poverty, says Colorado Study

Colorado’s three largest cities experienced a “stark” rise in the enforcement of ordinances aimed at moving homeless individuals out of public places since 2016, according to a University of Denver study. But researchers said the state has done little to address the roots of homelessness, while increasing the burden on taxpayers.  

Colorado has stepped up measures to force homeless individuals off the streets, even though many police and municipal authorities concede such measures do little to address the poverty and high housing costs that fuel the state’s homelessness “crisis,” according to a study by the University of Denver Sturm College of Law.

“Despite some city officials acknowledging that issuing citations does nothing to solve the homeless crisis, our research reveals that city actors continue to criminalize homelessness,” the study said.

The study, a follow-up to a 2016 report by the same research group that detailed the rising cost to Colorado taxpayers of anti-homeless measures, found that the state’s three major cities—Denver, Boulder and Colorado Springs—had experienced a “stark rise in enforcement of anti-homeless laws, and [in] the disproportionate and inhumane impact they have on the day-to-day lives of people experiencing homelessness.”

The three cities now have at least 37 ordinances that target behavior considered a direct consequence of poverty and the rising cost of housing, said the authors of the study, published this month as part of the university’s Homeless Advocacy Policy Project.

The ordinances are effectively enforced by “move-on” orders issued by police for individuals who are camping, sitting, or loitering in public property.

“At first glance, these move-on orders may seem like a viable alternative to outright issuing citations,” the study said. “However, with the extreme decline in affordable housing and the lack of emergency shelter space to accommodate Colorado’s growing homeless population, these move-on orders leave homeless people with nowhere to go.

“Instead, they are merely pushed from one place to the next.”

In Boulder, for example, the lack of adequate shelter beds to house the homeless population traps individuals told to “move on” in a cycle that inevitably leaves them vulnerable to arrest for violating the expanding number of anti-homelessness municipal ordinances.

Boulder now spends about $1.8 million per year in the enforcement of anti-homeless ordinances alone.

The practice has accelerated despite objections from local enforcement.

“I don’t believe any community can enforce their way out of homelessness,” the report quoted Boulder Police Chief Greg Testa as saying. “The police are often called to address illegal behavior, and giving a warning or writing a summons modifies behavior, but it doesn’t solve homelessness.”

The use of these “move-on” orders also gravely endangers homeless individuals—by forcing them into dangerous areas, threatening their health, and pushing them further away from resources that could help them, the study said.

“As homeless people are forced into the shadows, extremely harmful consequences usually follow,” said the study.

The authors noted that just 12 percent of a sample of police-targeted homeless individuals interviewed by the Homeless Advocacy Policy project reported they were advised where they could go for further help.

Cities have often pointed to public health concerns as a motivator for anti-homeless ordinances such as authorizing sweeps of homeless camps, barring citizens from occupying a highway median, or public urination.

But in Denver, like many cities, there are no 24-hour bathrooms, leaving the homeless with few options but to break the law.

Meanwhile, housing prices in all the three cities reviewed in the study have risen in recent years.

“Research shows a $100 increase in rent is associated with an increase in homelessness of between six and 32 percent,” the study said.

Researchers utilized Open Records Requests to access data on the enforcement of anti-homeless laws in the three cities.

The study, entitled “Too High A Price 2: Move On To Where?,” was led by professors Nantiya Ruan and Elie Zwiebel , who supervised a team of students working at the Homeless Advocacy Policy Project: Michael Bishop, Bridget Dupey, Nicole Jones, Ashley Kline, Joshua Mitson, and Darren O’Connor.

According to the study, there was a 539 percent increase in the number of individuals contacted through move on orders, also categorized as “street checks,“ from 2014 to 2017.

Researchers reported that on an average night, Denver’s metropolitan homeless population amounts to more than 5,000 people.

“Included in this total, 924 are unsheltered on any given night, and nearly 2,000 individuals may be housed in emergency shelters with the remaining individuals sheltered in transitional housing,” the study found.

Data collected from the Colorado Springs Police Department showed a marked increase in citations issued since 2016 relating to camping in public parks, and entering or remaining in public parks after hours. Enforcement of these two ordinances went from “31 citations in 2014, to 200 citations in 2017, which amounts to a staggering 545 percent overall increase,” said the study.

The study called for the repeal of municipal camping bans and similar ordinances, noting that such laws have been subject to constitutional challenges.

It also recommended keeping public bathrooms open night and day, and suggested that Colorado invest in a messaging campaign that instructs the public to respect the dignity of those experiencing homelessness.

“Residents of our communities that are un-housed remain members of our community,” the authors said.

“They are valuable citizens who have voices. Public service announcements aimed at inclusivity and dignity could go a long way toward combatting the shunning and discrimination that homeless citizens experience on a daily basis.”

The full report can be downloaded here.

This summary was prepared with files from TCR news intern John Ramsey. Readers’ comments are welcome.

from https://thecrimereport.org

The Rising Cost of Incarcerating the Elderly

The number of older adults in prison and jail is projected to  grow to a “staggering” 400,000 people by 2030, according to a report released Thursday by the Osborne Association. The aging prison population requires a shift in how the U.S. addresses incarceration, the report says.

At least one-third of the U.S. prison population will be over 50 by 2030, according to a white paper released Thursday by the Osborne Association.

The association, a New York-based advocacy group that works with justice-involved people and their families, cited figures showing that even as states are working to reduce prison populations, the number of older adults in prison and jail is projected to grow by a “staggering 4,400 percent” in the 50-year period between 1980 and 2030—to an estimated 400,000 people.

According to statistics quoted by the researchers, adults over 50 comprised just three percent of the total incarcerated population in 1993, representing 26,300 individuals.

“Justice isn’t served by keeping elderly people locked up as their bodies and minds fail them and they grow infirm and die,” said Elizabeth Gaynes, president and CEO of the Osborne Association, which advocates for improved conditions in prisons and jails, better discharge planning, and expanded compassionate release of the elderly and infirm.

“It’s both inhumane and inefficient.”

reportAccording to the report, entitled “The High Cost of Low Risk: The Crisis of America’s Aging Prison Population,” extreme sentences doled out during the tough- on-crime era, as well as limited mechanisms for compassionate release, have driven what is now a costly and inhumane crisis that the corrections system is unequipped to manage.

The medical costs of caring for a burgeoning elderly population behind bars alone will add to the strains of resource-strapped corrections systems, many experts have said.

According to data analyzed by the American Civil Liberties Union, it costs twice as much to incarcerate someone over 50; in some cases, it may cost up to five times more when medical costs are added.

Between 40 percent and 60 percent of prisoners over 50 have some type of mental illness or cognitive impairment, according to data from the Bureau of Justice Statistics. Some prisons are setting up makeshift hospice wings and opening nursing wards for people with serious cognitive degeneration.

Elsewhere, inmates suffer from such pronounced dementia that they are unable to follow rules, and may not remember why they are incarcerated. For many with cognitive, visual, or hearing loss, a diminished capacity leads to behaviors that are mistaken for disobedience, subjecting them to punishments such as solitary confinement.

See also: Solitary Confinement Policies at ‘Tipping Point’ in U.S., say Reformers

Prisons were never designed to be geriatric care facilities and this surging elder incarceration comes at a high cost,” wrote the authors of the Osborne report.

At the same time, research by the Pew Center on the States shows that incarcerated people over 50 pose little public safety risk, and have the lowest recidivism rate as any other inmate demographic.

The authors argue that addressing this crisis requires what they call a “new paradigm of justice,” involving a shift in how we respond to violence.

The majority of people graying in detention were arrested for violent crimes in their teens, 20s and 30s, according to the report, Yet, it adds, “the low risk of recidivism for older people described earlier holds true for people who are convicted of the most serious acts of violence, particularly homicide-related offenses.”

See also: When Should Older Americans with Alzheimer’s Lose Access to Guns?

The report cites several victims advocates who argue against incarceration as a primary response to violent crime, since it fails to address underlying causes of individual violence in society, including poverty, trauma, isolation and inequity.

“Exposure to violence is especially prevalent amongst those aging behind bars, though decades may have elapsed since such harm was both survived and committed,” a fact that underscores the potential for preventative interventions that address trauma, wrote the authors.

As one example of a more targeted approach to violence, Michigan last year “became the third state in the country to offer a trauma center for victims of crime within a hospital in Flint to promote healing and prevent future crime.”

Health and Accelerated Aging

The report also calls for improved conditions in prisons and jails, including universal guidelines and training for prison staff to help them recognize age-related issues.

Those who are aging in prison have a higher rate of serious medical issues compared to the general population, in addition to health problems correlated with socioeconomic factors. Communicable and chronic diseases such as hepatitis, HIV, tuberculosis, arthritis, hypertension, ulcer disease, prostate problems, respiratory illnesses, cardiovascular disease, strokes, Alzheimer’s, and cancer are far more prevalent in the older prison population compared with the overall prison population.

While there is more bipartisan support for decarceration when it comes to nonviolent offenders, the urgent need for a new approach to violent crimes is underlined by the runaway cost of housing elderly inmates: now an estimated $16 billion-a-year burden on taxpayers, and growing.

Narrow doorways, stairs, and lack of handrails all pose architectural problems for inmates with limited mobility, as do facilities like cafeterias and medical units, which can be spread far apart. The report also notes that older individuals may struggle getting to and from their beds, especially a top bunk; and that geriatric incontinence and other physiological issues that accompany old age “can be extremely difficult to handle with dignity in an environment lacking privacy, leading to harassment and feelings of shame, isolation, and depression.”

Upon release, older adults face greater rates of homelessness, low employment, increased anxiety, fragmented community and family ties, chronic medical conditions, and increased mortality rates, according to the report.

Policy Recommendations

“The issue of aging people in prison can be interpreted through several lenses: an unintended consequence of ‘tough-on-crime’ policies, a human rights crisis, a matter of economic urgency, a public health crisis, an extension of a racialized punishment paradigm, or a reflection of the critical shortcomings of our criminal justice system,” write the authors.

“Any serious and sustainable attempt to resolve this crisis must address the needs of those aging in prison,” in addition to shifting our response to violence away from mass incarceration and long sentences.

In support of a solution, the Osborne Association makes a number of specific policy recommendations, grouped into five clusters:

  • Improve conditions inside of prisons and jails for those aging within them,
    including strengthening staff capacity to recognize and address aging issues, and
    adopting policies and practices that are age-considerate;
  • Improve discharge planning and reentry preparation for older people within
    correctional facilities;
  • Expand specific release mechanisms for older people;
  • Improve the reentry experience of older returning citizens by increasing
    community supports and receptivity, including addressing their housing, medical/
    health, mental health, post-incarceration, financial, family, and employment needs;
  • Shift our response to violence by expanding the range of services offered to
    victims and survivors of crime, and by reducing excessively long sentences for all crimes
    of conviction, including for violent crimes, that drive the crisis of aging in prison.

These recommendations and the full report can be explored in more detail here.

This summary was prepared by TCR Deputy Editor Victoria Mckenzie. Readers’ comments are welcome.

from https://thecrimereport.org