Prisons, Mental Health Policy and Incarceration Rates

At Lawyers, Guns and Money, we're reminded of this prison's extremely high incarceration rates and the resulting costs to states. The Detroit Free Press explains the cost to Michigan:

Before the nation hits two in 100 behind bars, which seems inevitable, it's time for a national debate on corrections and criminal justice policies that will lead to a more rational, humane and cost-effective system. The nation has gotten far too little for its enormous investment in locking people up. Violent crime rates are higher than they were more than three decades ago, when tough-on-crime policies, including mandatory sentencing laws, created a prison-building boom.

States can no longer afford to divert so many resources from education, health care and other pressing needs. Michigan, for example, with one of the nation's highest incarceration rates, spends $2 billion a year on corrections, or 20% of its general fund. It is one of four states spending more on corrections than higher education. In today's economy, spending more on prisons than college is a recipe for failure.

If you've been reading this weblog for a long time, you have a sense of my position on this - "... before we get "tough" on them by throwing away tens of thousands of taxpayer dollars on their repeated stints behind bars, perhaps we should take a long and hard look at what we are doing and, for those cases where it isn't working, what we can and should do differently." Our nation's legislators irresponsibly toss billions of dollars at prisons without any sense of whether incarceration works, or whether there are more effective or more cost-effective alternatives.

A while back, an interesting graph was put up at the Volokh Conspiracy, illustrating our nation's prison and mental institution incarceration rates. Short of saying "correlation is causation", the illustration makes it hard to miss a connection between the closing of state-funded mental hospitals and the exploding incarceration rates in jails and prisons. I'm not arguing for reopening state mental hospitals and mass "mental health" incarceration as an alternative to prisons. But I am saying this: We had a lousy mental health policy that was followed by a paradigm shift (community-based mental health, self-determination) that was not adequately funded and supported, followed by misguided budget-slashing in states like Michigan which closed many of the state's remaining mental health facilities, followed by a willful blind eye to the fact that jails and prisons were filling up with people who were mentally ill, and otherwise untreated or given a lot less community-based support than they need.

I'll renew my call for evidence-based public policy.

Accuracy and Police Lineups

Many years ago a drunken houseguest of a homeowner down the block from my father's house went down the streets trying doorknobs, and stole items from houses which he discovered to be unlocked. He entered my father's house and came face-to-face with my brother. He fled, but was quickly picked up by the police with a significant number of stolen items.

On the date of his preliminary examination, my brother was asked to show up early and speak to the detective in charge of the case. I was asked to come in as well, as some of my belongings had been stolen. My brother was told that he might be asked to identify the defendant from a line-up. The detective asked my brother a series of questions about the defendant's appearance, and seemed to grow slightly more exasperated with each answer. He left for a few minutes then came back and informed my brother that the defendant had agreed to enter into a plea deal, and that no line-up would occur.

As we were leaving the detective's office we saw a man being taken to court in a jail jumpsuit. My brother said, "That's him." I looked at him and said, "He doesn't look anything like you said he looked." My brother replied, "I know. But it's him."

I remembered that story when reading TalkLeft's post about the Innocence Project's proposals to make line-ups more accurate. One aspect of the proposal:

Selecting lineup fillers according to the witness’s description of the perpetrator as opposed to based on their similarity to the police suspect, thereby lessening the chances that the suspect will stand out.

Had that been done in my brother's situation, the defendant would have stuck out like a sore thumb.

I think this highlights something that the proponents of this idea have overlooked, or perhaps have chosen to overlook. People are pretty good at recognizing faces that they have seen before. But that doesn't mean that they are particularly good at describing what somebody looked like. While a defense lawyer may have had fun with a description from my brother, and might have even been able to use it to impeach the line-up, that would not have made the defendant any less guilty. Realistically, it would probably have caused the police to cancel the line-up... which happened anyway. But, given that my brother was in fact able to accurately identify the defendant when he saw him, would that in fact benefit an innocent defendant?

What? Australia's No Longer a Penal Colony?

New criminal law policy from the Blair government:

Tony Blair launches an unprecedented assault today on the legal and political establishment, accusing it of being 'out of touch' with the people - and pledges new moves to 'hassle, harry and hound' suspected criminals from Britain.

* * *

He outlines controversial new steps, ranging from seizing assets from suspected drug dealers - which could see anyone stopped with more than £1,000 having the money confiscated - to draconian new restrictions on the movements of those suspected of involvement in organised crime.

Will that include tourists?

... By The Skin Of Their Teeth

Had the U.S. Attorney's Office not backed off, this could have given a whole new meaning to "grilling" a suspect.

According to court documents and attorneys ... [the defendants] were told the government had a warrant to seize the grills from their mouths and that they were being taken to a dentist in Seattle for removal. ...

Grills, made popular by rappers such as Nelly, are customized teeth caps that are typically made of precious metals and jewels. The cost for a full set can run from hundreds to thousands of dollars. Some styles of grills can be snapped onto the teeth somewhat like an orthodontic retainer, while others are permanently bonded to the teeth. ...

Federal prosecutors, who presented the seizure warrant to a U.S. District Court judge on March 29, said they did not know that the grills were permanently bonded to the defendants' teeth.

Membership as Probable Cause

CrimProf Blog describes a recent 9th Circuit decision:

The 9th Circuit Court of Appeals, in U.S. v. Gourde, No. 03-30262, ruled that mere membership in a pornographic website that contains both legal and illegal porn is enough to authorize the FBI to search a home computer.

I think the opinion can be read more narrowly - the court specifically references the affidavit in support of the search warrant, "The affidavit left little doubt that Gourde had paid to obtain unlimited access to images of child pornography knowingly and willingly, and not involuntary, unwittingly, or even passively", and the facts set forth in the affidavit make it exceptionally unlikely that Gourde would become and remain a member of the site without the intention of downloading images of minors. Still, it would be nice if the Court had been more explicit in its holding, for reasons Judge Kleinfeld describes in his dissent.

Is the holding of the majority opinion that if a person has subscribed to a site that has legal and illegal material, that suffices as probable cause for a search warrant? That if a person has paid money to look at material that is illegal to possess, he probably possesses it? If the holding is narrower than these formulations, everyone’s computer would be safer were the narrowing restrictions made clear. If it is not, the majority opinion is dangerous to everyone’s privacy.

It's a short step from "paid member" to "member" - broadly constructed, if you knowingly download P2P software, and know in using it that you can download pirated music files, software, copyrighted images, and probably also illegal pornography, would that be enough for a warrant? What if the authorities could also demonstrate that you had used the P2P software to access a hard drive which stores some unlawful material, had run searches which caused unlawful material to appear among your results (whether or not you downloaded it), or had downloaded illegal material (even though that might not have been apparent from the file name)? Even with paid membership, how much illegal content must be present on the site and how obvious must it be before you can potentially be the subject of a search warrant?

This assertion by the majority also raises my eyebrow:

Thanks to the long memory of computers, any evidence of a crime was almost certainly still on his computer, even if he had tried to delete the images. FBI computer experts, cited in the affidavit, stated that “even if . . . graphic image files[ ] have been deleted . . . these files can easily be restored.”

Is the FBI agent assuming an unsophisticated computer user who thinks that dragging icons into the trash "deletes" the associated file? Is that a reasonable assumption? And to say "easily" seems glib. I know a law firm which could have used that FBI agent a while back, when they accidentally deleted a large folder of documents from their server and somehow rendered the files unrecoverable (short of pulling the hard drive and submitting it to a data recovery service).

The "Method Acting" Defense?

What is it with prima donna celebrities throwing telephones at people? Do you think it would work if she argues, "But your honor - I am trying out for the role of Russell Crowe in an upcoming biopic. I know I was out-of-line, but I was just that deeply into character."

I like this,

[Defense attorney David] Breitbart called the [prosecutor's] request for $3,500 bail "an insult," saying his client's Park Avenue apartment is worth more than $3 million and she earns "more than six figures on a regular basis."

Would an appropriate response be, "Would your client find a $1 million bail less insulting?"

(It appears that Ms. Campbell has been previously accused of similar acts.)

Would You Take The Case?

You're offered the opportunity to take a very high-profile double murder trial... triple if you count the fact that one of the victims was pregnant... if you agree to work for free. Court TV will likely cover the trial, which will all-but-certainly end with your client's conviction and sentence to mandatory life without parole. If you wish to present any sort of mitigation of your client's guilt, you will probably have to expend a considerable amount of your own money for expert witnesses. But in the interim you'll get tons of publicity.

By my calculation, it isn't worth it. Would any of the lawyers reading this beg to differ?

Is This The Model For The U.S. To Follow?

An interminable trial ends with the death of the incarcerated defendant. Does this mean that, assuming we apply the rules of a trial by ordeal, Milosevic was innocent?

Oh, sure, it wasn't intended to be a trial by ordeal, but the Milosevic trial hardly stands as a model of international justice done right.