The opioid crisis has very little to do with prescription drugs, says a leading researcher. Patients treated for chronic pain with opioids–many of them elderly—are not dying from overdoses, and they shouldn’t be treated like addicts.
Anyone who watches TV news will know that America has a major public health problem concerning drug addiction and opioid overdose deaths. In this context, we sometimes hear terms like “prescription opioid epidemic” and “over-prescribing” thrown about indiscriminately.
Hidden inside the hype and misinformation are several inconvenient truths. Public policy on the drug crisis cannot be remotely effective until we embrace such truths and act on them.
The largest and most ignored truth is that our present opioid crisis has very little to do with prescription drugs─and data published by the CDC prove it. People with addiction disorders and patients treated by doctors for chronic pain with opioid pain relievers are largely separate demographic groups.
This is worth saying again. As recently noted in The Crime Report, when medical opioid prescribing rates per hundred population are plotted against opioid-related deaths per hundred thousand, we get what is a “splatter pattern.”
There is no trend in this data, no correlation, and certainly no cause-and-effect relationship. None.
The contribution of medically managed opioid analgesics to opioid mortality is lost in the noise. Our death toll is instead dominated by street drugs─heroin, imported fentanyl, diverted methadone and morphine─not prescriptions written by doctors for their patients.
The number of opioid prescriptions written in 2016 was the lowest it has been in 10 years, while overdose deaths continued to climb.
[SEE TABLE 1]
Table 1 courtesy Richard Lawhern
If over-prescribing of opioid analgesics was a major cause of our ever-increasing overdose-related deaths, then we would expect demographic groups with the highest rate of prescriptions to also display the highest mortality. But this is clearly not happening.
The next chart [TABLE 2] is a plot of US national prescribing rates per hundred population versus age group, using data from the Centers for Disease Control and Prevention (CDC) 2017 Annual Surveillance Report of Drug Related Risks and Outcomes. Predictably, the data show us that opioid prescribing rates among minors and young adults are lowest among all age groups, while prescribing among seniors is highest.
TABLE 2 courtesy Richard Lawhern
Now compare opioid prescribing rates with overdose mortality over time, extracted from the CDC Wonder database and aggregated by age group. Mortality for youth and young adults has soared since 1999 and is now six times the mortality in seniors over age 50.
After an initial rise in 1999 to 2006, mortality in people of middle age (36-50) leveled off into a narrow range. Tellingly, overdose death among people over age 50 remained stable throughout this 17-year period. The group most often exposed to medical opioids and who benefitted most during the 1990s from easing of prescription policy and treatment of pain as “the fifth vital sign” has shown no increase in mortality risk.
But you will almost never hear this inconvenient truth from anti-opioid partisans.
TABLE 3 courtesy Richard Lawhern
The US Congress is currently debating hundreds of bills which claim to “solve” various aspects of our opioid crisis. But much of this frenetic activity is a mad dash down an “Alice in Wonderland” rabbit hole that will solve nothing and instead make conditions much worse for both addicts and people in pain.
Most of the proposed legislation derives from the false narrative that “the problem” was caused by over-prescription and can be solved by reducing medical opioid supply. This narrative is untrue, and the medical evidence of the charts above confirms that it is untrue.
What is actually occurring in our public life is that misdirected opioid policy is killing thousands of patients by driving them into disability, medical collapse, and increasingly suicide.
Richard A. Lawhern
Public policy has become a war against pain patients, not against drugs.
It is time to declare a ceasefire in this phony war, and to reexamine the medical evidence on cause and effect in addiction and opioid-related deaths, before our legislators do even more harm.
Richard A. Lawhern, PhD, is co-founder and corresponding secretary of the Alliance for the Treatment of Intractable Pain. A non-physician patient advocate and writer with 20 years of volunteer public service, he has written for The Journal of Medicine, National Pain Report, Pain News Network, and other online media. His wife and daughter are pain patients. He welcomes comments from readers.
When exonerated individuals finally leave prison, they are often free in name only. For many of them, the struggle to find employment, housing and mental health treatment is the “stuff of nightmares,” writes a former Baltimore public defender.
Earlier this year, Richard Phillips—wrongfully convicted and locked up for 47 years— was finally exonerated and released at the age of 72. His reentry into society should be a happy occasion, but Phillips now faces an entirely new set of challenges.
When the state makes such a grave mistake, you would assume there would be a protocol to help Phillips transition back into the real world.
Phillips said there are programs in place for former prisoners, but when you have been declared not guilty “You’re on your own.” Since his release, Phillips has been slowly trying to rebuild his life. He has applied for financial assistance as well as new IDs, since his were all lost while he was incarcerated.
Richard Phillips. Photo from Massachusetts Department of Corrections
Phillips’ dilemma raises a larger issue regarding the lack of support for those exonerated of crimes they did not commit. While not all states impose ongoing restrictions on exonerees, most do little to help exonerees get back on their feet after prison.
This leaves many struggling to find employment, housing and, most of all, mental health treatment. The state has a fundamental obligation to help exonerees return to society. They should be doing more to uphold this obligation.
The mental health burdens on the wrongly convicted are tremendous, as case after case demonstrates.
After his exoneration, Gary Gauger—who was wrongfully sentenced to death in 1994 for the murder of his parents—wouldn’t leave home unless forced to do so.
Another exoneree named Earl Charles—who described his wrongful conviction as a “scar,”committed suicide in 1991 by walking into oncoming traffic. Darryl Hunt, who spent 19 years in prison for a murder he didn’t commit, killed himself in a parking lot. Roy Criner, who spent 10 years in prison before being exonerated, says he has attempted suicide three times.
Exonerees struggle to find employment, as they are not entitled to their former jobs and their arrest record can still appear on background checks. They often speak of lacking a social support system and suffering from post-traumatic stress disorder and other chronic health conditions.
Unlike parolees and probationers, exonerees often don’t have services to help them re-enter society. Only three states have dedicated re-entry services for the exonerated. Given that exonerees shouldn’t be “re-entering” in the first place, this makes no sense.
Given the challenges we know the formerly incarcerated face when they return to society, this state of affairs is appalling. While we can never truly right the wrong of placing an innocent person behind bars, at the very least, we should provide compensation and re-entry services to help these individuals get back on their feet.
And we certainly should not continue to supervise them when they should never have been behind bars in the first place.
Most Americans seem willing to accept that opioid addiction should be treated as a disease rather than a criminal offense. But the wide variety and quality of treatment and rehab facilities in the US means we should now double down on efforts to investigate which ones really perform, says an addiction expert.
When most people think of rehab they think of Alcoholics Anonymous (AA) and its Twelve Steps, a quasi-religious, incremental process in which addicts must accept that they are helpless in their addiction; accept God and ask him to remove their addiction and other related flaws; make a list of those they have wronged and try to make amends to them; and live their life according to this message and carry it to other addicts.
Judges have continued to order people into AA, Narcotics Anonymous, and similar 12-step programs, despite two major objections.
First, multiple courts have ruled that such an order violates the Establishment Clause of the First Amendment because of the explicit mentions of God (sometimes camouflaged as a “higher power”).
Second, 12-step programs are not really rehabs. They are not evidence-based or scientific, and there are no trained professionals directing therapy or treatment. They are more like support groups—a fellowship of addicts—sharing personal stories and camaraderie to help each other avoid relapsing.
Because of their anonymity, their success rate is hard to determine, but it may be as low as five percent.
It is laudable that judges want to save money and avoid sending addicts to prison, but CAAIR programs, according to the Center for Investigative Reporting’s Reveal, are “little more than lucrative work camps for private industry.”
CAAIR is being sued by three of its former “Chicken Farm” inmates in effect for slave labor (the addict workers are not paid, seemingly in violation of at least Arkansas state law). CAAIR was an alternative to a traditional prison sentence, and if an addict couldn’t work due to factory-related injury, they were sent to prison after all.
Clearly, AA, NA, and CAAIR are not rehabs, but even treatments considered as traditional rehab don’t have an official definition. Most rehabs do share some conventions, however.
There are at least two kinds of rehabs: residential, or inpatient, and non-residential, or outpatient. In residential rehabs, the patient with an addiction is expected to remain in the facility for a set period of time—usually a week, a month, or three months—depending on the severity of addiction and ability to pay. Non-residential treatment takes place for a certain period during the day, but the patient returns home at night.
Ideally, an evidence-based rehab for substance abuse should offer medically monitored detoxification, medical staff, behavioral therapists and counselors trained in addiction medicine, medication-assisted treatment (MAT)—drugs such as methadone or buprenorphine to help wean addicts off other, harmful drugs such as heroin—and follow-up monitoring and therapy known as aftercare.
Rehab also can offer many other non-evidence-based alternative treatments as additions or alternatives, from spiritual to philosophical, exercise to meditation, even yoga and so-called equine therapy (basically riding a horse).
In some states, such as Florida, anybody qualified to be a landlord can open a sober home, a residence for recovering addicts receiving outpatient addiction treatment elsewhere.
$35 Billion Industry
The rapid increase in drug rehab facilities and insurance coverage—it has become a $35 billion industry—has led to what even the National Association of Addiction Treatment Providers (NAATP) admits are “bad actors” who attempt to take advantage of the addicted, their families, the insurance companies, and the federal and state governments by engaging in practices such as “patient brokering”, paying fees or “kickbacks” for referrals regardless of the appropriateness of the rehab. With that much money in play, it is inevitable.
The problem is that this new way of looking at addiction, as something more like a disease than a lack of willpower or a moral failing, is new to the nation as a whole. Addiction medicine is a relatively new specialty. Law enforcement and the courts seem to favor punishment; it’s in their natures.
How much of addiction is a choice, if it should be treated instead of punished, is still a new concept to a populace more conditioned to send problem drinkers to Alcoholics Anonymous and drug addicts to prison.
Even worse are “body brokers” who recruit addicts to fill a rehab bed to bilk the insurance company. Far from trying to help addicts into recovery, body brokers actively maintain their addiction, supplying them with drugs and milking them for frequent and unnecessary laboratory tests of their urine (which, because of insurance reimbursement, is sometimes known as “liquid gold”). Some of these addicts were even used for prostitution. Not surprisingly, some of these addicts overdose and die.
Florida sober home operator Kenneth Chatman has been convicted, but there are many more. Rehabs with warm weather, ocean views and other vacation resort-type amenities are the major culprits, such as in Florida and California, but questionable rehab clinics have been found in other locations, such as New York and Massachusetts.
NAATP endorses (“values”) “a comprehensive model of care that addresses the medical, bio-psycho-social and spiritual needs of individuals and families impacted by the disease of addiction” using “research-driven, evidence-based treatment interventions that integrate the sciences of medicine, therapy and spirituality.”
NAATP seems to favor inpatient or residential care, or at least says nothing about outpatient care (naturally), although the success rate seems to be about the same for both.
One Size Doesn’t Fit All
Drug rehab is not one size fits all. The treatment that works for one person won’t necessarily work for another. Most people who become addicted to a substance don’t require help to stop—you don’t hear much about them because they don’t become a societal problem—but “no help” isn’t a solution that will work for all addicts. (Some, such as AA, don’t even consider such individuals addicts because they were able to stop.)
The problem of catching and shutting down “bad actors” is another matter. Some politicians and courts want to rely too heavily on abstinence-only (“Just Say No”) or the Twelve Steps or forced labor such as CAAIR (it gives them a “work ethic”). Studies show MAT works better, but “that’s just exchanging one addiction or drug for another”, say these critics.
No, not any more than diabetics are exchanging one drug (insulin) for another (sugar). Addiction is a chronic brain condition like a disease that is caused by many factors, including a genetic predisposition. If medications such as methadone or buprenorphine will keep an addiction under control, allow the person with an addiction to keep a job and function in society without getting high, then it won’t hurt if they are on the medication for a week or 10 years.
Other harm reduction solutions, such as needle exchanges and safe-shooting sites (with testing to make sure that the drugs aren’t contaminated or laced with fentanyl), also save more lives than prison.
There also aren’t enough rehabs or qualified people to staff them. If every addict wanted help, they couldn’t find it. Doctors must be encouraged to add addiction medicine to their training.
Law enforcement, too, must be trained in recognizing and dealing with addicts. Drug Recognition Experts are a start, but they’re only focused on arresting someone who they perceive is intoxicated.
Vigilance by the friends and family of the addicts also is required. Warning signs of a bad actor, according to law enforcement, include offers to pay for travel to a faraway rehab or to waive fees, co-pays and sober home rent. If it sounds too good to be true, it might be. Give that gift horse a thorough oral exam.
Increased scrutiny of the drug addiction treatment industry is needed, according to West Palm Beach attorney Susan Ramsey, by law enforcement—she’s already seen it cause some bad actors to close—the insurance companies who are being defrauded—Chatman was under investigation by the Federal Bureau of Investigations for two years because of a tip about insurance fraud but was caught because someone OD’d—and by the industry itself.
NAATP may be trying better self-regulation now. At its annual meeting last month it announced its new Quality Assurance Initiative “designed to confront abuses in the treatment field, establish operational competence, and restore public trust in addiction treatment.”
It’s about time. In 2016, Marvin Ventrell, then executive director of NAATP, warned that “If our procedures for self-policing and transparency aren’t improved, the industry is going to be seriously harmed.”
Those chickens may have come home to roost.
Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.
Every dollar invested in correctional education reduces future criminal justice costs by five dollars. But despite studies bearing this out, policymakers hesitate even to revive programs that were scrapped in the tough-on-crime era, says a leading prison reformer.
Education reduces crime, plain and simple.
The RAND Corporation underscored the positive impact of education in its 2013 review of the research reports on correctional education over the last couple of decades. Bottom line from their reports: providing education programs for incarcerated men and women significantly reduces future crime all by itself, separate from any other treatment they receive.
Combined with other effective programs, such as drug rehabilitation and mental health counseling, education can help to reduce crime and recidivism even more effectively.
RAND also demonstrated clearly that an education program pays for itself several times over. Every dollar invested in correctional education creates a return of five dollars in the reduction of future criminal justice costs.
So why are we not spending more criminal justice dollars on education? We literally spend billions on the most expensive—and least effective—option: locking folks behind bars in record numbers.
Let’s take a brief look at the large numbers of people incarcerated in the US and the cost in dollars the American taxpayer must bear. Here are some facts from research and data collected by the US Departments of Justice and Education:
Approximately 2.3 million people are incarcerated in the U.S., more than in any other developed nation by number and percentage of population;
Educational attainment levels among prisoners are far below the national average;
A lack of education is a major predictor of future crime;
Over two-thirds of those incarcerated are African American and Latino, predominately men;
95 percent of prisoners will eventually be released from prison with 600,000 released each year;
The annual budget for federal, state and local correctional agencies totals $80 billion.
Most criminologists understand the effectiveness of education and other programs but, because of the American “tough on crime’ campaign going all the way back to the late 1980s, less money is spent on rehabilitation than incarceration.
If we know this is counter-productive, why do our federal leaders, as well as many state leaders, continue to spend little for correctional education programs? Why aren’t they re-directing funding from prison beds to schools and classrooms instead of building more cells?
Research tells us that 95 percent of those incarcerated today will be released within five years. Within three years the majority of those currently behind bars will be returning to society. We are not likely to reduce sentence lengths or parole for most of these people so why don’t we take this opportunity to educate them while behind bars?
Oddly, the study focused mostly on mental health and substance abuse and did not cite the extensive research report conducted by the RAND Corporation in recent years. The CEA report, however, did say, “We calculate that educational programming needs only a modest impact on recidivism rates of around 2 percent in order to be cost effective.”
The RAND study on correctional education, however, estimated the real impact to be 13 percent, much higher than the two percent needed to be effective.
Research also shows more appalling statistics about the education deficits of the prison population. Most incarcerated people are drop-outs, with more than half of them lacking a high school education. The lack of education does not in itself cause crime but it is highly correlated with other social problems such as criminal behavior, drug addiction, homelessness and poverty. Because under-educated people do not qualify for jobs with a living wage, many resort to illegal ways to support themselves.
So why not redirect more of the correctional budget currently spent on cells to fund more education programs?
It makes simple economic sense if education reduces future criminal behavior. Some advocacy groups are getting the message. For example, the conservative Koch brothers are launching Safe Streets and Second Chances, pilot programs in four states to provide career education, substance-abuse programming and counseling to 1,000 prisoners who will then be released.
This project exemplifies the bipartisan nature of the current movement for the expansion of programs to reduce recidivism and return prisoners to society as productive workers.
If programs for inmates, who lack basic academic and vocational skills, were increased and more people left prison with diplomas and career certifications, researchers could confidently predict a significant drop in future crime. Why can’t we begin remodeling our jails and prisons into educational institutions by re-purposing space with high school completion and job skills programs? If there is no appropriate space, why not move some portable classrooms behind the fence or into the yard?
Research also seems to indicate that higher levels of achievement result in even less crime. There is data indicating that inmates who participate in college commit future crime at even lower levels. Shouldn’t we support college level courses as well? For years the public has generally supported high school education for the incarcerated but not college.
Times have changed and we know that a high school education is no longer sufficient to obtain decent employment. The new standard is at least a two-year degree or a career technical certificate.
Some people believe it is too late to turn adult criminals around to lead a positive life. In fact, inmates do participate and achieve in school behind bars even if they are simply required to attend.
Testimony from former inmates clearly demonstrates how academic success changed their perception of themselves along with their own personal goals. College teachers who work in both the free community and in prisons will tell you that incarcerated students generally do much better than those in the community.
As we know in the free world it is never too late to complete school and to graduate. Lifelong learning really works for most everyone.
Maybe a little history will help explain why we are spending so little on education and more on incarceration. In 1994, with violent crime and drug abuse growing fast, federal and state governments got much tougher on crime, passing laws instituting numerous and more strict sanctions against offenders of all kinds.
Before then, inmates were eligible for Pell grants. Most states had robust college programs for inmates. In a swirl of frenzy and false accusations of fraud about fly-by-night colleges stealing federal money, Congress ended inmate eligibility for Pell grants and severely limited the federal funding levels even for high school, vocational and adult education programs as well.
When many of us were seeking support in our struggle against these foolish cuts I hoped to affect the negative attitudes in the press and contacted columnist George F. Will who agreed to visit a college classroom of Maryland prison inmates using Pell grants. In a Jan 30, 1994 article published in the Detroit Free Press and theWashington Post, entitled “Do Pell grants for prisoners work?,” Will posited that Baltimore’s streets “…may be safer than they would be if he (an inmate nicknamed “Peanut”) had not acquired some social skills with the help of his Pell grant.”
In a discussion the day before releasing the article, Will told me that he would be happy to consider revisiting the issue of correctional education when better research studies documenting the effectiveness of correctional education were available.
In the next several years better research became available, and thanks to the studies noted above that were conducted by Dr. Lois Davis and her research team at the RAND Corporation, many research studies were rigorously reviewed. The RAND publication noted above concluded that “for every dollar spent on correctional education, five dollars are saved on three-year re-incarceration costs.”
The research had meticulously reviewed every quality research study completed over the last two decades. RAND researchers wrote that the estimate of reduction was conservative and they had not been able to measure other positive results, such as job acquisition, improved family and community conditions and conditions of confinement.
What has been the impact of this study? Has the study resulted in the growth of educational budgets for the incarcerated? Have state and federal correctional education budgets begun to grow as legislators take into account the effectiveness of correctional education? Hardly!
The RAND study had actually pointed out opposite trends in funding. Federal and state budgets for correctional education have been significantly reduced since the 2008 recession, in some states by as much as 20 percent, even while prison populations continued to grow. In an age of soul searching about how to spend tax dollars wisely on cost-effective social programs with high impact, one would hope political leaders would do some serious thinking and take heed of cost-effective research by non-partisan corporations like RAND.
The Obama administration had disseminated and publicized the conclusions of the RAND study and encouraged the adoption of its recommendations. But as it has with so many other important issues, Congress has failed to act on research it originally funded.
With the notable exception of Georgia and California and a few other states, there have been little or no changes in state funding in recent years for the education of the incarcerated. Ever since the mid-1990s, most states have continued to trim education programs in prisons.
One example is California. After he was elected in 2003, California Governor Arnold Schwartzenegger’s administration decided to drastically cut correctional education programs drastically. Ironically in the last few years, partly as a result of the RAND research, California has dramatically expanded academic and career technology as well as post-secondary programs. For example, inmates also now qualify for free community college tuition while incarcerated.
Another exception is the normally conservative state Georgia. It has also taken to heart the RAND research and re-designed its entire correctional education system and also increased state funding dramatically. A post for a statewide superintendent of prison schools was created. Many more teachers were hired and programs implemented. And an investment was made in educational technology to modernize instruction and teach computer skills necessary for today’s job market.
While now admitting the RAND research is solid, most politicians continue to say no to additional funds because there are more pressing needs. Never mind that we were simply asking for redirection of current budgets, not additional outlays of public funds.
Fortunately for the US, some leaders have begun to rethink the costly and mostly ineffective “Get Tough on Crime” movement of the last 30 years. That terribly misguided effort to stem the rise of murder, violence and the drug epidemic resulted in the so-called “Three Strikes and You are Out” legislation signed by President Bill Clinton and then copied into state law by many governors and state legislators.
Literally, millions of people have been incarcerated for longer periods of time at the cost of billions of dollars with additional and terribly negative impacts on our communities and families. Only when it had become apparent that the US could no longer pay for the upkeep and maintenance of the criminal justice system have political leaders started taking a serious look at the negative results of the draconian and unjust crime reduction laws.
President George W. Bush and other political leaders had begun to realize the folly of the “Three Strikes and You Are Out” laws of the 1990s. Bush recommended the passage of the Second Chance Act of 2002 in one of his early State of the Union addresses. The momentum has slowly grown since and reformation has become a bipartisan issue. Instead of spending billions on incarceration some are beginning to look at less costly rehabilitation programs and reentry as a way to reduce future crime.
There are now strong efforts (at the federal level to rethink how we are doing correctional business. Those of us in the education, drug rehabilitation and mental health areas are working to persuade political leaders to bring about change in the laws and priorities in budgets.
Ironically, one of the most recent examples at the federal level is the fight within the White House between Attorney General Sessions and Jared Kushner over the basic philosophy of corrections and the role of prisons to build programs that reduce recidivism. An article in the New York Times illustrates the strong feelings among political leaders, particularly in the Senate, about the direction of prison reform.
Kushner, partly as a result of his own father’s incarceration in the federal Bureau of Prisons, believes in the need for more rehabilitation and reentry programs. Sessions, unfortunately, remains one of the most steadfast believers in longer sentences and tough drug laws.
Positive change can be painfully slow. However, when the US does become interested in a particular issue, it is amazing how quickly it can retool and redirect its resources. For those of us old enough to remember, we did it by putting a man on the moon when the Russians threatened US leadership in the space race.
Hopefully, we can redirect ourselves again to help change the direction of the lives of so many people returning to society after years of incarceration.
Education is not rocket science.
We already know how to teach people to read, write, do math and train for jobs. For the sake of the incarcerated and, literally, for our own health and safety, let’s build and open more school programs in our prisons and jails. Education does reduce recidivism!
We must accept the reality that to confine offenders behind walls without trying to change them is an expensive folly with short term benefits — winning battles while losing the war. It is wrong, it is expensive, it is stupid.
Finally, I hope that since we now have the solid research George Will asked for, he might consider looking at correctional education programs again, take to heart the RAND conclusions, and write a follow-up to article about “Peanut”.
We continue to need serious political writers, both liberals and conservatives, to urge government and courts to get really “tough on crime” and sentence criminals to do their time in school to straighten out their lives.
We need to literally “throw the book at them.”
Stephen J. Steurer, Ph.D, is currently the Reentry Advocate for the non-profit CURE National, one of the founders of the non-profit Maryland Correctional Education Enhancement Associates, the volunteer Education/Reentry Coordinator at the Howard County Detention Center in Maryland , and a consultant to the Council of State Governments Justice Center. He has served as a consultant to the Vera Foundation for Pathways post-secondary education project in New Jersey, North Carolina and Michigan, to the RAND Corporation on evaluation of correctional education programs, and as Executive Director of the Correctional Education Association. He welcomes comments from readers.
Some police manuals suggest lying to suspects during interrogations is a useful law enforcement tool. But it can trap the innocent as well as the guilty, argues a professor at Israel’s College of Law and Business.
Lying is generally perceived as reprehensible. But lying to suspects during police interrogations is considered a necessary evil—a useful law enforcement tool—and is even dubbed by some an “art.”
Some police training manuals[i] suggest that lying to suspects concerning the incriminating evidence against them, such as telling them falsely that an accomplice incriminated them, or that forensic evidence suggesting their guilt was found at the scene of the crime, is a recommended tactic. It’s often justified by the old adage, “it takes a liar to catch a liar.”
In fact, the tactic violates essential rights guaranteed under the Constitution—rights that were upheld and interpreted under the Miranda Rule, named for the 1966 Supreme Court ruling in Miranda v Arizona that has governed US police procedure for the past half-century and required police to protect suspects from incriminating themselves by telling them they have the right to remain silent, and to have a lawyer present.
Nevertheless, it’s time to take a closer look. Apart from moral arguments militating against the creation of a “culture of lies,” and a double standard under which police officers are allowed to lie but suspects are not, police lying creates a tangible risk of the incrimination of innocent individuals.
A study on the “Ethics of Deceptive Interrogation,” by Richard Leo, was one of several that have demonstrated that the strength of real or perceived incriminating evidence is a central factor in the decision to confess.
Why should innocent suspects confess in the face of incriminating evidence?
First, memories can be manipulated and contaminated. Innocent suspects, who are not aware of whether there is “incriminating” evidence against them, experience the undermining of reality and may believe they suppressed committing the offense.
Second, innocent suspects may become persuaded that their claims of innocence are fruitless, persuading them to confess out of despair or the belief that it may somehow reduce police pressure on them and lessen their punishment at trial.
Laboratory studies have shown that lies concerning incriminating evidence increase the risk of false confessions and internalization of imagined guilt. Thus, for example, in a study conducted by Robert A. Nash and Kimberly A. Wade, participants in a computerized gambling experiment were asked to return counterfeit money to the bank after providing a wrong answer, and to take counterfeit money from the bank after providing a correct answer.
After exposure to fake video which suggested they took money from the bank, all the participants admitted guilt when accused of cheating on one occasion, and 93 percent continued to admit guilt even when accused of cheating three times.
This result is not surprising. The very presentation of false evidence constitutes both a threat and a concealed temptation. It conveys a message to suspects that they will be convicted in any case, without gaining the benefit resulting from their collaboration in lessening their punishment.
Besides, interrogation, in the course of which the accusation is hurled at the suspect again and again, is a traumatic experience. The mere ending of the interrogation after confession is an immediate benefit. Every suspect understands this, even without a banner hanging in the interrogation room, as in China, stating “better treatment for confessing and worse treatment for resisting.”
Actually, every lie may lead to emotional breakdown or to the belief that conviction is inevitable and that even fake video, manufactured fingerprints or DNA samples are unequivocal proof of guilt. False statements by eyewitnesses led the five suspects in the 1989 Central Park Jogger case to falsely confess about causing grievous bodily harm and committing rape.
The ‘Neutral Lie’
Moreover, even a “neutral” lie, which does not implicate the suspect, such as an equivocation about fingerprints found at the scene, without explicitly stating the fingerprints belong to the suspects, may propel, counter-intuitively, false confessions.
Saul M. Kassin, a professor of psychology at John Jay College of Criminal Justice, provides examples of innocent suspects who confessed to murder after hours of interrogation, and after being told that a DNA sample had been taken from the scene, out of certainty that the DNA test would prove their innocence.
In a laboratory study conducted by Jennifer T. Perillo and Saul M. Kassin, approximately 27 percent of the innocent participants admitted having cheated during an examination. All the confessors admitted after being told that a camera placed in an adjacent room had filmed the course of the examination, and that a video technician would retrieve the data from the hard disk in a few hours. Most of the confessors assumed that their innocence would soon become apparent anyway.
The trust they demonstrate in clearing their name is compatible with a more general phenomenon of innocent suspects who mistakenly do not treat an out-of-court confession as significant.
The studies mentioned above show that the lie’s net catches a considerable number of innocent individuals.
If intelligent participants in these laboratory studies admitted so easily to have cheated, one can only imagine the potential effect of lies during the pressures of police interrogations, and let alone during custodial interrogations, on suspects’ inclination to confess.
From this it’s hard not to conclude that lies harm suspects’ ability to make decisions by distorting the information at their disposal and by changing their cost-benefit evaluation of a confession.
Silence is a Defense Strategy
Silence in the face of weak evidence is a reasonable defense strategy given that innocent suspects might implicate themselves if they choose to make a statement because of their proximity to the event or because of forgetfulness, lack of concentration, and stress. In contrast, when suspects are “persuaded” that the incriminating evidence against them is strong, abandoning silence can be a logical step, based on the assumption that without providing their own version of events to counter the evidence there is no chance of avoiding being brought to justice.
Although interrogators are under no obligation to disclose incriminating evidence to suspects, police interrogators’ falsehoods not only deprive suspects of the possibility of addressing the true incriminating evidence, but also force them to shape a defense to rebut fake evidence, and push them to conclude there is no point in denying guilt or maintaining silence.
The constitutional protections of Miranda ought to extend the bar to the use of lies concerning incriminating evidence against suspects. Such lies clearly violate the Fifth Amendment right to remain silent.
Rinat Kitai-Sangero is a professor at the College of Law & Business, Israel, where she teaches criminal procedure and criminal law. This op-ed article is based on “Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence”, which was published in 54 San Diego Law review 611 (2017).
[i] Meghan Morris, The Decision Zone: The New Stage of Interrogation Created by Berghuis v. Thompkins, 39 Am. J. Crim. L. 271 (2012) (referring in footnote 101 to Fred E. Inbau et al., Criminal Interrogation and Confessions 290-292 (4th ed. 2004) and to Charles E. O’hara & Gregory L. O’hara, Fundamentals of Criminal Investigation 142-44 (6th ed. 1994)
Since the federal legislation was passed in April, three women have been murdered and dozens more are missing. That was inevitable when the shutdown of sex sites like Backpage forced sex workers back on the street and into the clutches of pimps, writes an advocate for decriminalization of prostitution.
The bill would allow the government to prosecute websites which knowingly help or promote sex trafficking, and also allow users to sue those websites.
Although the Department of Justice went on record warning that FOSTA/SESTA would make it more difficult to prosecute sex trafficking cases, the bill was framed and sold as an anti-trafficking measure.
FOSTA/SESTA effectively modified section 230 of the Communications Decency Act, passed in 1996, which exempted websites from criminal charges for the actions of their users.
For example, even though crimes such as murder and sex trafficking have undoubtedly been planned in Facebook groups, posts, or messages, Facebook could not be held criminally liable for the murders or sex trafficking. Now all that has changed: Any website that is used to facilitate prostitution can be prosecuted for sex trafficking.
Although advocates claim that FOSTA/SESTA was aimed at taking down the Backpage.com site, Backpage was actually seized by the Department of Justice and its owners arrested and criminally charged before FOSTA/SESTA passed.
Backpage was, allegedly, violating laws that already existed.
There has been a lot of social science research on how to reduce sex trafficking, how to reduce violence and exploitation in the sex industry, and the impacts of various policies with regards to sex work and sex trafficking. An example worth exploring is New Zealand, which has almost completely eradicated sex trafficking by decriminalizing prostitution. One case of trafficking was reported in 2015—the first since 2003—and another in 2017.
There are other examples. Amnesty International conducted research into the impacts of sex trafficking and prostitution policy in Papa New Guinea, Norway, Argentina, and Hong Kong, and found that the only way to protect the human rights of people in the sex industry is the complete decriminalization of every aspect of consensual adult sex work.
Similar policy positions are held by Human Rights Watch, the World Health Organization, the Global Commission on HIV and the Law, the UN Special Rapporteur on the Right to Health, the United Nations Development Programme, UN Women (the United Nations body focused on gender equity), and UNAIDS.
All over the world, when prostitutes and sex trafficking victims are criminalized, they are denied access to the equal protections of criminal and labor law and become easy targets for violence, exploitation, and trafficking. In countries where sex trafficking victims and their clients, coworkers, and others they might come into contact with are able to report sex trafficking without being arrested themselves, there is virtually no sex trafficking.
When Craigslist, a simple, low-barrier internet advertising forum in the US facilitated many sex workers moving indoors from the street, according to the authors of the 2017 study noted above, the female homicide rate dropped by 17.4 percent.
FOSTA/SESTA was not based on research, or even consideration of its impacts. A report from the House Committee on the Judiciary explained the background and need for the legislation: websites “have become one of the primary channels of sex trafficking,” and advancements in technology “allow[s] traffickers to post advertisements of minors for a world of customers” and therefore we must stop websites which “facilitate prostitution.”
Throughout the report sex trafficking is treated as synonymous with the sex trafficking of children.
Let’s unpack that. How much online prostitution involves sex trafficking?
Let’s use a number that was widely circulated during FOSTA/SESTA lobbying efforts: Backpage is said to have hosted one million prostitution advertisements per day. How many of those million ads were for sex trafficking victims? A nationwide FBI initiative with agents in every state, Operation Innocence Lost, as well as hundreds of state and local task forces, a dozen or so sex trafficking hotlines, and numerous religious groups were able to identify 595 cases of sex trafficking in 2016, the last year for which the data is available.
Of those cases, 46 involved minors. Since we know sex trafficking is under reported by its criminalized victims and by witnesses who are most often criminalized, let’s just round those numbers up and, say, double them. That would give us 1,200 sex trafficking victims, 100 of them children, per year. In that case, by their own numbers, our government just put one million Americans out of work because one in 833 of them is a victim, and one in 10,000 is a child victim.
The effects of FOSTA/SESTA were immediate and extreme. The day that it passed the Senate, cityvibe.com deleted itself and all its escort ads. Reddit deleted sex work-related forums like r/hooker, and there were reports of Google drive deleting content of users who were sex workers.
The next day, TheEroticReview.com removed ad boards for the US (a few days later they blocked access from the US entirely). Craigslist deleted its personals section, and a popular screening website—used by escorts to warn each other about violent clients and to check whether those inquiring to be new clients have blacklist reports or not—took down a majority of its content.
Over the next three weeks, almost every escort advertising, screening, and website building site in the US went down. The remaining sites and new sites hosted outside of the country have yet to be found by most of those one million advertisers or the majority of clients.
Sex trafficking victims were sent back to work on the streets, where they face higher rates of violence and make less money. Sex workers also turned to the streets and to pimps to find customers. The St. James Infirmary in San Francisco reported a fourfold increase in street-based sex work in the first week after FOSTA/SESTA passed.
NOTE: Because sex workers are often in the closet, and it is seen as counterproductive to tell police that a murder victim or missing person is a sex worker, it will take a little longer for the hard data to be sorted.
I asked one sex trafficking survivor, who is still dealing with the effects of criminalization, what she thought about FOSTA/SESTA. She responded:
I want to know, how are they supposed to rescue these girls if they don’t know where to find them? It’s real messed up that they think that every female is being sex trafficked and wants to be saved and so they take the only means of making money away.
Take me for instance: I have a full-time job with overtime, so I never get to see my kid. Because not only do I have the son that I’m paying child support on [back child support from when she was incarcerated] I also work to be able to pay the bills. (I’m) never able to save anything, and live in a studio apartment with my eight-year-old.
Now if I could go on a few calls and then be able to save and get a two-bedroom that would work but no, that is not allowed. I feel like we’re stuck in a vicious cycle of never going forward. Like one big giant hamster wheel.
In a blog post entitled, “After Fosta, It’s like Hunger Games on Sex Workers,” a Rhode Island sex worker rights group called COYOTE RI gives a snapshot of emerging data. Of 260 sex workers they surveyed, 77 percent used sex work for their sole income and 75 percent were supporting one to three dependents. Within two weeks of Backpage going down, a quarter said they were unable to support themselves or their dependents, six to 10 percent were facing eviction, 30 percent had stopped screening clients, and 60 percent had taken sessions with unsafe clients they would not have normally seen.
A million Americans have lost their livelihood and face increased violence while dozens are reported to be missing and probably murdered because politicians believe that all or most of them are that one in 10,000 that is a child victim of sex trafficking.
This incongruency has caused some to hypothesize that the government is not worried about children; rather, it is horrified by people having sex.
Meanwhile, the government has failed to address its own child trafficking problem. A 2016 Senate report found that the Department of Health and Human Services (DHHS) placed unaccompanied minor immigrants in homes without doing background checks of the adults in the homes or even visiting the homes. In one case, DHHS placed “a number” of children with a group of sponsors who were neither background-checked nor prevented from “accumulating multiple unrelated children.”
Those children were trafficked to work 12 hours a day, six to seven days a week, on an egg farm. Following the report, the DHSS and the Department of Health and Human Services agreed to establish joint procedures for placing unaccompanied migrant children within one year.
More than 17 months later, the agencies have not completed the procedures and DHHS reports that it has “lost track” of 1,475 children. That’s 32 times the number of children who were confirmed to have been sex trafficked in 2016.
Perhaps it is time for a law that would hold government actors responsible for the fates of the children they are responsible for—or the murders of sex workers and sex trafficking victims in the wake of FOSTA/SESTA.
Tara Burns lives in Alaska, where she’s a board member of the Community United for Safety and Protection. She is the author of the Whore Diaries series, and has written about sex worker issues for AlterNet, Vice, The New Inquiry and others.
MS-13 has committed heinous acts of violence, but the Trump administration’s attempt to make the gang a symbol of the supposed threat posed by immigration dehumanizes all immigrants and could make them more vulnerable to exploitation, writes an anti-violence researcher.
On May 21, the White House issued a statement that repeatedly used the word “animals” to describe people involved in the MS-13 gang. Two days later, at a public forum on Long Island, this language was repeated and reinforced.
MS-13 (the initials for Mara Salvatrucha) originated in Los Angeles in the 1980s through a complex interplay of people fleeing El Salvador’s civil war, Mexican gangs in southern California, and US immigration policy.
They have committed heinous acts of violence and instill fear in communities across Central America. They are also decidedly not animals. They are sons, fathers, brothers, mothers, sisters, daughters. They are, at times, coerced; they are often terrified; and they can be terrifying.
And in Suffolk County, Long Island, they have not been associated with a single homicide for more than a year.
Our work at the National Network for Safe Communities involves working with cities across the country and, increasingly, the world to address their most serious violence problems. The MS-13 issue has been framed as an immigration issue. There is, of course, a flow of immigration into the United States, and some MS-13 members have participated in that movement. But in none of the two dozen active U.S. city partnerships where we work has MS-13 arisen as a major driver of violence
Indeed, research has shown that as communities increase their immigrant population, they tend to see lowering rates of violent crime.
There absolutely are hot spots nationally of MS-13 activity. The MS-13 affiliate currently getting the most attention is on Long Island, New York, and for good reason. In 18 months from 2016 to mid-2017, the gang was responsible for 17 murders on Long Island, including one quadruple homicide. Yet MS-13 represents a miniscule proportion of migrants and an even smaller number of the overall population.
From October 2015 to June 2016, Long Island received 1,800 unaccompanied minors from Central America. This was more than the year before, but much below the 3,046 who came in 2014. That’s thousands of highly vulnerable and traumatized youth. These numbers don’t include adults or immigrants already residing in Long Island. And yet even with these thousands of people, Suffolk County officials estimate there are fewer than 500 MS-13 members residing there, nearly half of whom are “associates” rather than “confirmed members.”
The vast majority of immigrants from Central America, whether documented or not, are decidedly–empirically–not MS-13 members. More to the point, despite the hundreds of MS-13 members that are present, there have been no murders associated with MS-13 in Suffolk County since April 2017.
It is easy to believe that those who do terrible things are terrible people. But even Secretary of Homeland Security Kirstjen Nielsen noted that some confirmed MS-13 members have been forced to collaborate, motivated by fear, debt and threats to their family members.
There are real costs to be paid for wrongly impugning whole populations as somehow subhuman.
Recent research has demonstrated a link between the dehumanizing of certain populations and increased popular support for “measures such as torture and targeting civilians…in battle.” The same study showed a decrease in support of immigration for groups that had been dehumanized.
Indeed, the White House is coupling its rhetoric with immigration crackdowns, including efforts that are resulting in the increased criminalization of anyone who appears to be Central American. There is clear—and awful—historic proof of how significant the consequences of dehumanization can be. Populist leaders, throughout history, have used this tactic to condemn entire populations, thereby enabling state-sponsored violence and repression. The Nazis in Germany referred to Jewish people as vermin; the Khmer Rouge in Cambodia referred to their enemies as worms; the Interahamwe in Rwanda referred to Tutsis as cockroaches.
The repercussions of systemic dehumanization on individuals of African descent are still felt in our own criminal justice system today.
Such measures can give genuinely dangerous individuals the room they need to operate. Our work in El Salvador and across the US demonstrates that those most likely to fall victim to MS-13 are also those most able to support efforts to address this violence. Both in the US and in Central America, MS-13 targets its own communities, extorting small businesses and charging “protection” fees. Those being extorted are unlikely to report or seek help from law enforcement if they risk deportation or discrimination.
Similarly, when youth who are not gang-involved are castigated by the authorities, their sense of alienation and fear of the state will grow, reducing the likelihood they will share knowledge about potential violence with authorities.
If the administration is serious about addressing violence associated with MS-13, there are definite steps that could and should be taken. Most critically, it should involve work with local and state partners to implement policies and strategies that demonstrate actual evidence of lowering violence.
These include practices known as street outreach work, focused deterrence, and cognitive-behavioral therapy. Critically, they have as central tenets respect for offenders’ humanity and rationality: they will respond to the expectation of sanction, they will abandon toxic ways of thinking and acting, they are involved in street dynamics not of their own making. In essence, while they may be at high risk for doing terrible things, they are very much human.
There are also strategies that have a clear track record of not lowering violence: sweeping enforcement, “scared straight” and mano duro (the “iron fist” enforcement strategy currently being used in El Salvador).
Instead of bringing to bear effective anti-violence efforts, the administration is adopting strategies that have consistently failed to protect people from very real threats of violence.
If this continues, we will see more crowded prisons, an empowered MS-13, deteriorated relationships between communities and the government and, ultimately, less safety and greater fear.
Rachel Locke is the Director of International Interventions at the National Network for Safe Communities; a Research Center affiliated with John Jay College of Criminal Justice, which works in partnership with communities, law enforcement and local government to reduce violence. She is currently overseeing research on violence in El Salvador, and welcomes comments from readers.
Up next for the First Step Act will likely be a much more hostile reception in the Senate.
Here’s why senators should swallow their doubts and pass it.
The First Step Act is not a magical elixir. It won’t solve every problem facing our criminal justice system. But it will immediately make a difference in the lives of as many as 4,000 inmates the day after it is signed into law.
I support the First Step Act because it allows inmates staying out of trouble and participating in programming to serve out the remainder of their sentences somewhere (anywhere) other than prison. Not only would people go home earlier; they would go home earlier after participating in programming that teaches them coping and job skills, which in turn will help them reenter society as citizens more capable of productive reentry.
I support the First Step Act for one even more powerful reason.
Being kept in boxes outside of a prison is better than being kept in boxes inside of a prison.
When I was in prison, I saw people violently attacked for reaching across the table for salt, for starting a conversation without following the correct protocol, and for being gay.
I saw new inmates violently extorted, assaulted, and “recruited” (the kindest way to put it) into gangs. I saw the weak punished and strength defined solely by the willingness to engage in brutality.
Being in prison is a process of constantly having to watch your back (and your front). When trouble comes, it comes quickly and seems to inevitably sweep bystanders into the vortex.
So, in addition to allowing inmates to more quickly reconnect with children and family members, find gainful employment, and build a productive life at less cost to US taxpayers, the First Step Act will reduce the number of human beings subject to the vagaries of prison violence.
Second, since over 95 percent of all people in prison will come home again, early release to community corrections is much more successful at reducing recidivism than prison is and, as Jason Pye of FreedomWorks, put it:
The (First Step Act) is the lowest hanging fruit of criminal justice reform. Efforts in the states have passed with little to no opposition because there is universal agreement that reducing recidivism, or offenders’ likelihood of reoffending, is the key to promoting public safety.
We are a better America when we embrace our empathetic tendencies.
We are a better America when we see prison sentences as a last resort, to be used only when we know for a fact it is the best way to generate safe outcomes.
Some also worry that the Act will further reinforce Attorney General Jeff Sessions’ harsh approach to crime and punishment. But it’s unclear how legislation that uses unconditional language about mandated reform somehow would make the lives of prisoners worse or his power greater.
Sessions will not remain Attorney General forever, and with criminal justice reform gathering supporters on both sides of the aisle, the likelihood can only grow that in the future we will have a true reformer in the position.
I suspect the real fear is that Jeff Sessions will use some of the provisions of the Act in ways that are racially disparate, while at the same time sentencing continues to over-punish people of color. This is a weighty concern, and we should fight every day to address racial disparities in sentencing and remain incredibly vigilant.
But this is not a new concern, nor is it something the First Step can make worse.
Some also object to the use of risk assessment tools to inform sentencing decisions, arguing they can be used in a biased way.
Yes. Risk assessment tools are biased (they are constructed by human beings).
Prisoners of the Federal Bureau of Prisons are judged entirely on records made up only by correctional officers and unit counselors which are inherently more subjective, less testable over time, and based on less outcomes-based data, than risk-assessment tools.
What About Sentencing Reform?
Much of the opposition to the First Step Act has focused on the notion that prison reform without sentencing reform would be hollow.
While I fully support sentencing reform, I believe reducing numbers on the back-end of incarceration still results in a total reduction in Mass Incarceration (simple math).
We can and must still work together to make sentencing reform a reality as soon as possible.
I hate legislative carve-outs (exceptions built into legislation excluding particular “kinds” of prisoners) but when lives are on the line, we can’t make perfect the enemy of the good.
If the people who are left behind by criminal justice reform will be in no better or worse shape than they were before a particular piece of legislation is passed, we should still help as many people get home as we possibly can.
So sad to see the Terror Attack in Paris. At some point countries will have to open their eyes & see what is really going on. This kind of sickness & hatred is not compatible with a loving, peaceful, & successful country! Changes to our thought process on terror must be made.
President Trump is right. We must begin to change our thought process about terrorism.
What requires changing, however, is America’s general lack of awareness and understanding about the true nature of the terrorism threat.
First, the risk of terrorist victimization in the US is exceptionally low. Specifically, between 2002 and 2016, 190 people (including the terrorist attackers) were killed in the US due to terrorism, or an average of 13 people per year.
Third, the asymmetry observed between actual terrorist victimization risk and perceived terrorist victimization risk matters in two important ways:
Heightened fears of terrorism contribute to a weakening of national security. Importantly, national security is composed of both physical and psychological dimensions. The psychological dimension refers to how safe we as Americans feel.
The primary target of terrorist groups like ISIS is America’s psychological security and not its physical security. In effect, their goal is to spread fear within a target population in hopes that it will lead to government acquiescence or overreaction. The former is very unlikely, and the latter often back-fires, causing governments to throw their resources around recklessly (and often counter-productively).
Fear of terrorism is also politically consequential for voters.
Put another way, citizens think and act differently when they are anxious than when they are not anxious about a particular issue. Research on political anxiety and terrorism shows that when the information environment is emotionally powerful (e.g. violent and graphic), people are more likely to support policies that are framed as protective[i] .
More precisely, citizens who are more concerned about terrorism are more likely to adopt hawkish foreign policy views (e.g. have increased support for the Iraq war, defense spending, and militarism).
The Media Matters
The media can have a substantial influence on the way political attitudes are shaped over terrorism through how they frame and/or sensationalize terrorism related reporting. Human beings are innately attracted to threatening news because for millennia it was advantageous for our survival.
In other words, we want to know about threats to our own mortality.
Naturally, the media reinforces the human tendency to seek out threatening information by supplying viewers and readers with a steady stream of fear-inducing story lines in an attempt to captivate and grow audiences. The rarity of terrorism in the US affords people little opportunity to ever encounter terrorism first-hand or learn about it through vicarious peer experiences.
This leads the media and also public officials to be the primary sources for all terrorism- related events.
Given the disparity between actual and perceived risk of terrorist victimization, neither the media nor the government has done a sufficient job at accomplishing this task. However, such a task may realistically be insurmountable.
Human beings are intuitively quite poor at assessing risk due to a series of cognitive biases that affect our judgement.
Arguably the most influential one that influences our understanding of terrorism is known as the “availability heuristic”: the process of judging frequency by the ease of which instances come to mind. Events that are dramatic and vivid tend to be easier to recall than statistics.
If researchers and practitioners who study or combat terrorism do not do our part to apprise the public to the best of our ability about the true nature of the terrorist threat, we run the risk of allowing these horrendous incidents to produce their intended effects.
Consequently, we become part of the problem.
After all, we are the ones best equipped to teach the public, and to push back against inflammatory political rhetoric that is often misguided or deliberately construed in order to advance a variety of other political objectives.
[i] Gadarian, S. K. (2010). The politics of threat: How terrorism news shapes foreign policy attitudes. The Journal of Politics, 72
Joseph Dule is a Research & Teaching Fellow at the University of New Haven, where he is completing his Ph.D. in Criminal Justice. Previously, he worked as an All-Source Intelligence Analyst in the U.S. Air Force, where he worked on Counter-Terrorism issues while assigned to the 320th Special Tactics Squadron, located in Okinawa, Japan. He welcomes comments from readers.
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 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.