An Idea That Has Run Its Course -- Prison Population Explosion

Federal judges in California have ruled that the state must cut its prison population by 40 percent, possibly requiring the early release of 58,000 prisoners. CNN's story is here:

http://www.cnn.com/2009/CRIME/02/10/california.prisons/index.html

The court says that the prison population explosion has resulted in unsafe and unsanitary conditions that threaten the health and lives of prisoners and corrections personnel.

At the same time, California's budget crisis have led many to wonder if capital punishment is worth the cost. The California Commission on the Fair Administration of Justice, a bipartisan group created by the State Senate, reported last summer that the death penalty process is "dysfunctional." At that time, the Los Angeles Times reported:

Although commissioners strongly disagreed on some issues, they were unanimous in concluding that the current death penalty system was failing and in agreeing that a large amount of money was needed for significant change. The report offers alternative proposals for reform.

The commission did not advocate abolishing the death penalty but did note that California could save $100 million a year if the state replaced the punishment with sentences of life in prison without possibility of parole. Death row prisoners cost more to confine, are granted more resources for appeals, have more expensive trials and usually die in prison anyway, the commission said in its 117-page report.

The full story is here: http://articles.latimes.com/2008/jul/01/local/me-death1

The costs have become so staggering that even in Marin County, which stands to gain from the proposed construction of a new death row facility at San Quintin, the local paper advocates abolishing capital punishment on cost grounds:

In these times of unprecedented budget shortfalls and financial crisis, it's important to understand how the state is spending that $250 million on the death penalty:

- $117 million is for the extra costs of death row housing, attorneys for the prosecution and defense, and court costs. These are the extra expenses we pay every year to have the death penalty in California-expenses that would disappear if we replaced the death penalty with permanent imprisonment (which has no opportunity for parole), but expenses that are required as long as we have a death penalty.

- $136 million is to begin construction of a new death row facility. We are forced to build a new death row because our current facility is overcrowded and broken down. The total estimated cost for completing the project is now $400 million and the costs for running the facility are estimated at $1 billion for the first 20 years.

The full Marin Independent Journal editorial is here: http://www.marinij.com/opinion/ci_11441239

This is not just a California phenomenon. The criminal justice system in the United States is based upon the application of two ideas -- mass incarceration and capital punishment -- that have repeatedly failed to achieve the goals of rehabilitation or deterrence.

It's time for a fresh, no-holds-barred analysis of what we CAN do, after a person is proved to have broken the law, to keep our communities safe, restore the offender to a society, and heal their victims.

New ideas, anyone?

Truth Hurts, Senator Leahy: Let The Prosecutions Begin

From the AP via FindLaw, this story (http://news.lp.findlaw.com/ap_stories/a/w/1152/02-09-2009/20090209092005_38.html) about a possible Truth Commission proposed by Senator Leahy which would prevent prosecutions of former Bush officials for abuses of power:

The chairman of the Senate Judiciary Committee is proposing a "truth commission" to investigate abuses of detainees, and politically inspired hirings and firings at the Justice Department during the Bush administration.

Sen. Patrick Leahy said Monday the commission's primary goal would be to learn the truth rather than prosecute former officials.

* * * *

The Vermont Democrat said rather than seeking prosecutions, the government needs to conduct "a fair minded pursuit of what actually happened."

I couldn't be more opposed to this idea. Look at the millions of incarcerated prisoners in this country, and tell me that someone who breaks into a store at night to feed his or her family is more blameworthy than a professional who violated the rights of his or her fellow citizens by spying, reckless or unfounded prosecutions, or destruction of the DOJ's nonpartisan mandate to do justice.

Don't be afraid of prosecuting white-collar criminals, Senator Leahy. They do as much damage as any other law-breaker.

Does Death Penalty Defense Really Pay?

As you may realize, the Blogspot web manager allows a blog like mine to sponsor ads. Google picks the ads based on some computer program that matches the content of the blog with the ad. So lately, the ads in my World feature several lawyers who advertise, "Facing the Death Penalty? Call me, yada, yada, yada."

Some helpful information for the folks posting the ads:

1. People facing the death penalty rarely have access to the Internet.

2. People facing the death penalty rarely have funds to hire lawyers.

3. Lawyers who try to get paid privately for handling death penalty cases rarely know what the hell they are doing.

In any event, if you or your loved one ARE facing the death penalty in Mississippi, don't call these slobs. Just ask your local PD to have the Mississippi Office of Capital Defense Counsel represent you. (www.capdefcounsel.com) . Andre deGruy, the Executive Director of the Office, is the best trial lawyer handling capital cases in the State. He's free, and you or your loved one are probably eligible to hire him.

I guess I won't get much ad revenue on this thing. Oh well.

Don't Listen to Them, Mr. President

The President is facing near-unanimous Republican opposition to his economic policy. But he doesn't need to stare too much at his rear-view mirror -- the Republicans he left in the dust last November are still there. Jason Linkins on The Huffington Post reports a new ABC News poll that shows that 67% of Americans approve of President Obama's plan to use public spending to stimulate the economy. That means, of course, that at least 13-14% of Americans who voted against the President are in his corner on the need for the stimulus. The same poll shows 58% disapproval of Congressional Republicans' stonewalling. 51% of those polled consider the plan's passage to be "critically important," with "Only 16% say it is 'not that important.'"

Linkins' excellent report (http://www.huffingtonpost.com/2009/02/09/poll-obama-stimulus-effor_n_165206.html) also explains that the "moderate Senators' plan" does NOT cut "pork," but instead reduces funds for State governments and school construction:

Senators Ben Nelson and Susan Collins have been allowed to skate by and issue fundamental falsehoods about what they have done to the bill. . . . . [t]he two Senators claim to have "funded education," and have ensured that the bill will contain "robust spending on infrastructure to create jobs, $87 billion in assistance for states, and assistance to schools, especially for special education and Pell grants." [But in fact their plan includes]:

* Elimination of $25 billion in flexible funding for state governments.

*Cut $7.5 billion in funding for "state incentive grants" to help states make progress toward No Child Left Behind goals.

* Eliminated $19.5 billion in construction aid for schools and colleges.

* Reduced new aid for the Head Start early childhood program by $1 billion.

Nowhere in their statement do [Senators] Nelson and Collins make any effort to justify these decisions. Indeed, they don't even seem prepared to admit that they made these decisions.

Don't stop now, Mr. President. Remember that it was the Republicans who would only vote for the Bush Bailout after $100 billion in pork was added to the Fall package. Take care of the people and we'll take care of the GOP doomsayers.

With Enemies Like This, Who Needs Friends? (Part Two)

Another story from North Mississippi. Courtesy of the blog Folo (www.folo.us), I read this story on The Daily Mississippian about an astonishingly light sentence for a defendant accused of stabbing his victim in the back five times:

http://smc.olemiss.edu/?p=509

(The Folo story is here: http://www.folo.us/2009/02/06/i-cant-blame-scott-white-for-being-aggravated/)

As the Daily Mississippian reports:

The new Lafayette County Assistant District Attorney, Thomas C. Levidiotis, has cleared approximately 120 circuit court cases since he assumed his position on the first of this year. But in clearing so many cases at once, one former Lafayette County resident said a major mistake was made.

Scott White was a victim of a violent multiple stabbing in April 2007 by his neighbor, 29-year-old Jerami Tubbs of Aberdeen.

Mississippi does not have a law against attempted murder, so authorities arrested Tubbs on charges of aggravated assault. While assault charges could land a criminal in jail for 20 years, Tubbs worked out a deal which got him only one year of house arrest followed by four years of probation.

According to White, the District Attorney’s office didn’t inform him the deal was happening until after Tubbs pleaded guilty.

“As a result, the person who stabbed me, an unarmed man, in the back five times without provocation does not spend a day in jail for his crime, and I was deprived of my right under the law to express my concerns in court,” White said.

Oh yes, you remember correctly. I've talked about Mr. Levidiotis before:
http://jimcraigsworld.blogspot.com/2009/01/uncle-toms-courtroom.html

It seems that Uncle Tom gets fantastic results for criminal defendants -- when he's the attorney for the State of Mississippi??

Am I the only one who wonders if we don't know the whole story here? The Daily Mississippian tried to find out, but Lafayette County's newest public servant couldn't be bothered to be accountable. The paper reports:

Levidiotis declined to comment on his failure to inform White of the plea bargain by saying, “That does not fit my recollection, but I will not comment on something told to The Daily Mississippian about a case I have handled.”

He did point out that the defendant was sentenced for five years, but with four suspended, leaving one year to be served via house arrest.

Thanks. I feel safer now.

With Enemies Like This, Who Needs Friends?

The Northeast Mississippi Daily Journal reports that nobody has written letters to U.S. District Judge Biggers requesting leniency for Tim Balducci, the wire-wearing witness in the USA v. Scruggs et al., case. The DJ story is here: http://www.djournal.com/pages/story.asp?ID=285622&pub=1&div=News

The DJ tells us this:

Not one person's letter was in the U.S. District Court file asking leniency for former New Albany attorney Timothy Balducci.

* * * *

Balducci and former state Auditor Steven Patterson face a Feb. 13 sentencing before Senior Judge Neal Biggers Jr. for their roles in a conspiracy to bribe Circuit Judge Henry Lackey of Calhoun City.

It's unclear whether Biggers will show any leniency to Balducci for his key cooperation or to Patterson, deemed a bit player by the government when he pleaded guilty in January 2008.

Today, their pre-sentence letter files were opened to four media organizations, who asked to see them. Balducci's contained only two letters, apparently copies from other letters written generally about the others.

But despite Balducci's empty "pre-sentence letter file," he should expect strong recommendations of leniency from the United States Attorney. The wiretapping and video cameras in Judge Lackey's chambers never captured any statements by Richard Scruggs. Without Balducci's cooperation, the Government only had a case against . . . Balducci.

If I had to choose between: (1) a file containing five hundred letters from bishops, coupled with the enmity of the US Attorney, and (2) an empty letter file and a positive recommendation from the US Attorney, I wouldn't think long. Give me #2, anytime . . .

NOTE: In the interest of full disclosure, recall that my partner Frank Trapp headed the legal defense team for Sid Backstrom, on which I was happy to contribute.

The Difference a Choice of Words Makes

The Jackson Free Press, the ever-vigilant watchdog during the Melton Administration, tells us about a critical issue raised toward the end of jury selection today in United States District Court. The story is here: http://www.jacksonfreepress.com/index.php/site/comments/jordan_expected_to_select_jury_today_in_melton_trial/

As the JFP relates:

In today’s proceedings, defense attorneys and prosecutors questioned the final potential jurors and clashed over the use of the term “bad purpose.” Cynthia Stewart, Recio’s attorney, used the term during her line of questioning, in describing to potential jurors what constitutes a “willful” act. Jurors must decide whether or not Melton and Recio acted “willfully” in depriving Ridgeway duplex resident Evans Welch and owner Jennifer Sutton of their Constitutional rights. Federal prosecutor Mark Blumberg objected to the term “bad purpose.”

“My ruling said that the instructions on this law will have to define the term ‘willful’ as a conscious intent to do wrong and deprive a right protected by the Constitution,” Jordan said. “What I am hearing is that the two sides have a different concept as to what a conscious purpose to do wrong means.”

The Clarion-Ledger story is here:
http://www.clarionledger.com/apps/pbcs.dll/article?AID=200990206017

The C-L adds this point:

Quoting 5th U.S. Circuit Court of Appeals precedent, Blumberg said jurors must decide whether Melton and his former bodyguard, Michael Recio, acted "voluntarily and purposefully" in violating the law. Defense attorney Cynthia Stewart said the language should be limited to whether the defendants acted with "bad purpose."

Stewart said she would ask for a mistrial or a delay if Jordan changed his ruling at such a late date. Jordan said he believed his ruling was broadly worded enough to proceed with jury selection, but both sides indicated the precise wording to jurors in how to define the actions of the mayor and his bodyguard is central to their cases.

This is no small matter. Recall that in the State Court trial over the same incident, the jury was instructed that it had to find that Mayor Melton acted "with evil intent" in order to be convicted. Those words gave attorneys Dale Danks, Jr., and Merrida Coxwell the chance to defend the case on the basis of the Mayor's desire to stop crime in Jackson.

Cynthia Stewart and John Reeves obviously want to use the same defense in the Federal case, and the comments made by prospective jurors indicate they would be sympathetic to it.

But if the jury only has to find that the Mayor acted "wilfully," with a "conscious purpose to do wrong and deprive a right protected by the Constitution," evidence that "Melton wants to do right, he just got carried away" might not even be admissible.

The ultimate question, though, is why "conscious purpose to do wrong" would be in the instruction. If the Federal agents doing post-9/11 surveillance had no "purpose to do wrong," (because, like Vice President Cheney, they thought extra-legal measures were needed to stop terrorism), but knew they were depriving Constitutional rights, isn't that enough to convict?

The instruction should allow the jury to convict if they find the Mayor acted "willfully, with a conscious purpose to deprive a right protected by the Constitution."