Public Defender Arrested in Court!

So, this happened today: Two guys were arraigned for petty theft charges. Cops showed up and started asking them questions about an unrelated robbery and taking their pictures. The defense attorney intervened, and this is what transpired:


A short version of what happened, including my commentary, is already on the Chronicle. Since people already know about this, and I therefore can't use it for the perfect exam question that it is, here's my analysis:

A. Did the cops violate the clients' constitutional rights?

A. 1. Sixth Amendment. 

In "criminal prosecutions", that is, after a person is formally charged, he or she is entitled to legal representation. This means, under Massiah v. U.S., that once the person has retained a lawyer, the police is not allowed to elicit information from him/her. But: The Sixth Amendment is offense-specific, which means the cops *can* approach the person regarding an unrelated offense. So far, what the cops did was kosher.

A. 2. Fifth Amendment

But people also have a privilege against self-incrimination, and when under custodial interrogation, they should be Mirandized so that they know they may remain silent and consult with an attorney. Was this "custodial interrogation"? sticky. On one hand, these guys are not under arrest; they are merely standing in the court hallway. On the other hand, the cop says, "you'll be free to leave when we're done", which presumably means they are not free to leave at the moment. And, does asking for names and taking pictures count as "interrogation"? does it produce "testimonial evidence"? If so, they should have been Mirandized. My instinct, lamentably, is that it doesn't. No custody, questionable interrogation.

B. Was the lawyer allowed to intervene?

Even assuming that there was a violation of the clients' privilege against self-incrimination, under Moran v. Burbine the privilege belongs to the client, not to the lawyer. The clients should have stopped the interrogation and asked for the lawyer, not vice versa. Of course, this is ridiculously unrealistic--who better than the lawyer to help people with their rights? But there you have it.

C. Should the cops have arrested the lawyer?

Even if the lawyer did not, constitutionally, have a right to intervene, the arrest is ridiculous. There's an argument there, but the lawyer is not being violent or disruptive in any way. The cops clearly got carried away.

All the other stuff that is going on in the political chatter--racial profiling, zealous representation, yada yada--strikes me as nothing more than political flourish. The bare bones of the legal situation are, I think, as I stated above. Thoughts?

Upcoming Conference: Policing on Trial

Does It Matter Whether People Support the Death Penalty?

Yesterday's Asahi Shimbun reported a drop in support for the death penalty in Japan:

In a sign of wavering support for capital punishment, the first decline in the percentage of Japanese who support the death penalty has been noted, although the support rate remains about 80 percent, according to a Cabinet Office survey released Jan. 24.

The decline in support is the first since the survey, which is conducted every five years, began in 1994, it added.

The high percentage in the survey apparently shows the public's continuing sympathy for victims of violent crime.

Now, 80 percent is still a lot, and we should keep in mind that death penalty law varies fairly dramatically across Asian countries. But here's something interesting: there is considerable support for the death penalty even in countries that abolished it long ago, like the UK. Here's an assortment of studies on public opinion in various abolitionist and retentionist countries.

It's important to point out that, in most abolitionist countries, a majority of citizens was in favor of the death penalty at the time of abolition. I have three thoughts about this:

(1) Abolishing the death penalty is a top-down move, not one that typically calls for broad populistic support. For more on this, read Pieter Spierenburg's The Spectacle of Suffering.
(2) Using the financial crisis to abolish the death penalty nationwide in the United States is possible and worth doing, regardless of popular support. Once it goes away, it won't come back.
(3) Over time, the arc of justice bends toward abolition. Whether or not a country has abolished it, and whether or not its citizens are in the throes of inertia, support wanes. That's a good thing.

-----------
Props to Jonathan Marshall for the link.

Prop 47 Reaps Rewards

Wonderful news via KPCC:

Los Angeles County probation officials reported Thursday that Los Angeles County's jail population is at its lowest level since realignment sent it soaring in 2012 - and they expect it to keep dropping. They credit voter-approved Proposition 47, which lowered penalties for drug crimes.

In a status report to the county Board of Supervisors, officials said L.A. County's jails had fewer than 16,000 inmates at the end of 2014. Just two months earlier, there were more than 19,000 inmates.

L.A.'s jail population was last under 16,000 inmates in 2011. The numbers began to climb when the state launched its massive "realignment" effort. That policy called for sentencing non-serious, non-violent, and non-sexual offenders to county jail, rather than state prison, which led to overcrowding in the county's jails.

Proposition 47 passed in November and has effectively erased the crowding caused by realignment.

Officials said the drop has allowed them to keep more offenders incarcerated for larger portions of their sentence. They still don't have enough space to keep everyone for their entire sentence.

But officials expect the jail population to keep dropping.

About 2,500 jail inmates are likely eligible for re-sentencing and early release, according to the probation department. Inmates must apply for re-sentencing, and have it approved in court.

A few comments:

(1) This is further proof that it pays off to be cheap on crime.
(2) It's beautiful to see Prop 47 do what the realignment could not - put people out of incarceration in the first place, rather than shift them across jurisdictions - and cure some of the financial and physical bulges created by realignment.
(3) I'm now sitting and waiting for the other shoe to drop--the stories analyzing the impact of Prop 47 on crime rates. When these start coming through, be mindful of research quality; a lot has happened since the recession, and since the realignment, that needs to be controlled for.
(4) Plenty of the L.A. jail inmates are pretrial detainees, who of course are not affected by the passage of Prop 47. How about alleviating some of that unnecessary crowding via sensible bail reform?


------------
Props to Francine Lipman for the link.

Bringing to Light: Invisible Abuses in Prison

Today I attended the Hastings Women's Law Journal symposium Bringing to Light: Invisible Abuses against Women and LGBT People in Prison. The symposium had three panels: reproduction, family, and specific issues concerning trans inmates.

The main theme that stood out for me was the question of choice and alternatives, and especially the inability to offer good alternatives in the context of a prison regime. Surely we can do better than the quality of health care that is offered to pregnant women, but that requires a lot of thought and working within difficult constraints. The first panel was held, of course, in the shadow of the horrifying discoveries about sterilizations in California prisons, and many of the panelists referenced that incident, as well as other horrors involving the management of pregnancy and birth in prison. The birth process itself and the immediate separation from the child are obvious problems. But what about, for example, the practice in Riverside of having pregnant women wear neon orange bracelets? The intent is probably good--to ensure that they are handled with extra care and safety--but what about a woman who wants to terminate her pregnancy and does not necessarily wish for the pregnancy to be common knowledge?

The same issue reverberated in the last panel, the one about trans inmates. The options for classification are fairly limited: a trans woman, for example, could be exposed to atrocious forms of abuse on the part of inmates and guards if placed in a men's prison, but would also be ostracized in a women's prison. And, as it turns out, different trans people have different preferences in this regard--some involving their safety and some involving their desire to form intimate relationship (which is very human and understandable and, in my opinion, deserving of the same amount of respect.) Isolation may protect one from some forms of abuse, but open other avenues of abuse, and has its own huge detriments. So what's to be done?

Subjecting people to regimes of incarceration inherently robs them of a modicum of autonomy about their lives, and the choices are not abundant or good. Even when there are good intentions--and that is not always the case--they can be distorted by misunderstandings and generalizations. Advocating for special populations under these circumstances can be extremely fraught, and I'm very grateful to have learned more about this from the folks at the front line of advocacy.

New Jails: If You Build It, They Will Come?

Yesterday's interesting L.A. Times editorial addresses the plan to build a new jail in Los Angeles, which prison activists have been resisting for a long time. When I visited Los Angeles at the ACLU of Southern California's invitation, our conversation about the plan was fraught with misunderstandings. The Sheriff's Office's position was that a new jail was necessary because conditions in the existing jail were horrific, particularly with regard to treatment for mentally ill inmates.

Can't argue with them on that point, of course; the County Jail is America's largest psychiatric ward. Indeed, recently the authorities have finally started to question the wisdom of jailing the mentally ill and come up with alternatives, but there's still a long way to go. There are some things that the jail gets right, such as when they properly use strategic segregation, as Sharon Dolovich explains here and here. But some of its effects are harmful and problematic, and the need for change is something we can all agree on.

But what sort of change? Yesterday's editorial posits the plan as follows:

The Los Angeles County Board of Supervisors spent the last decade putting off those questions. Then, in May, it adopted a $2-billion plan to demolish the complex and build a new 4,800-bed downtown jail designed around the clinical needs of the large number of inmates with mental health and substance abuse problems, as well as the security requirements of inmates who pose a high risk of harm to others. Also part of the plan is a 1,600-bed campus-like women's jail in Lancaster.

The supervisors chose the plan from among several presented by Vanir Construction Management Inc., a firm in the business of building such facilities. The price tag makes the construction project the most expensive in county history.

The updated design would certainly be an improvement over the current jail, yet it remains rooted in questionable estimates and bygone practices. It ignores the conclusions of a 2011 jail population study commissioned by the board, then for all practical purposes forgotten.

Rather than go with the spirit of Prop 47 and reduce incarceration, this plan may perpetuate the problem. The editorial goes on to say:

In pushing forward with a new jail that could keep as many people locked up as were, say, two years ago, the Board of Supervisors is in effect making an astounding policy statement: The current jail population is the correct one, despite the theoretical embrace of mental health diversion, the ability to authorize some no-bail, pretrial releases, and the recent reduction of sentences for some crimes. And the $2 billion — or perhaps twice that, when including bond interest — should all be spent on incarceration rather than more effective, and cost-effective, alternatives.

I tend to think of prison construction like road construction: traffic congestion increases with road development because it creates an incentive for more private vehicle transportation. This is why activists oppose the new plan. Let's solve the overcrowding problem by, well, not overcrowding the jail with people who are far better off treated in the community for their underlying mental health problems.