Archive for the ‘Courts’ Category

Court

Presentence investigations have been an important aspect of the criminal sentencing process for many years. Listen to my audio post below to learn about who writes PSIs, what goes into a PSI, and how judges use that information.

Click the arrow on the player above to listen to the podcast.

For more information about PSIs and how they’re used, check out:

What is a presentence report?

Law and legal definition

Federal Probation Presentence Investigation Unit

American Probation and Parole Association Position Statement on the PSI

One state’s rules about PSIs

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In his short story, The Minority Report, Philip K. Dick predicted a future in which crime was non-existent, everyone lived in complete safety, and the government had established an all-encompassing social order. In this imagined future, society had devised a way to prevent all crime before it ever occurred by identifying, arresting, and prosecuting “perpetrators” before they could do any harm.

While we’re not there yet, we’re edging ever closer to that reality all the time.

Image courtesy of hyena reality / FreeDigitalPhotos.net

Image courtesy of hyena reality / FreeDigitalPhotos.net

On a national scale, you don’t have to look much further than the current NSA controversy to see this idea of safety-through-divination playing itself out in everyday life. The federal government, with its own cryptically named precogs, – PRISM, DISHFIRE, PINWALE, etc. – is earnestly striving to identify and predict the next terrorist attack. And, when they make a prediction, people will be detained, killed, or otherwise stopped before they can commit any crime.

That’s what society demands of its security-industrial complex at the moment.

And, why not? The idea of an entirely safe, crime-free society is a compelling one. In our safety-saturated culture, stopping crime completely – especially terrorism – is a goal that most people would heartily support. In fact, it would sound insane to argue somehow that a certain amount of terrorism is good or necessary. It’s definitely neither.

Terrorism aside, though, the idea of predicting criminality raises troubling questions about the relationship between a government and its citizens in a free democracy.

Image courtesy of Stuart Miles / FreeDigitalPhotos.net

Image courtesy of Stuart Miles / FreeDigitalPhotos.net

When is the government justified to intervene in the lives of people who have not been charged or convicted of any wrongdoing? I’m not talking here about would-be terrorists conspiring to kill or maim the masses. I’m talking about people being profiled and labelled “high risk” and then subjected to government intervention and heightened surveillance in an effort to prevent them from engaging in criminal behavior.

Chicago, for example, has developed a “heat list” of people it predicts will commit a crime at some point in the near future:

With the help of mathematical analysis, Chicago police hope to home in on people it believes are most at risk of shooting someone or being shot themselves. The strategy calls for warning those on the heat list individually that further criminal activity, even for the most petty offenses, will result in the full force of the law being brought down on them. At the same time, police extend them an olive branch of sorts, an offer of help obtaining a job or of social services.

In a free society, is a mathematical algorithm – no matter how well crafted or intended – just grounds for “warning” people about their future behavior? Is it enough to single them out and subject them to the “full force of the law,” even for minor infractions? If so, what’s to stop the government from applying this same approach to the full spectrum of deviance? Should we send IRS agents out to warn those who match a certain “tax cheater profile” to report all their income, or FBI agents out to do pre-emptive audits of companies that are predicted to engage in fraud?

Image courtesy of MR LIGHTMAN/ FreeDigitalPhotos.net

Image courtesy of MR LIGHTMAN/ FreeDigitalPhotos.net

Would you want a police officer knocking on your door and telling you that a mathematical process had identified you, or someone in your family, as a potential criminal?

Some would argue that if Chicago’s approach saves even one person’s life, it’s entirely worth it. In the abstract, I would definitely agree. I don’t want to see anyone needlessly harmed in any way. But, as we carry that argument out to its potential endpoint, it becomes less and less palatable and more nonsensical.

To create perfect safety, we could establish government assessment units that evaluate every citizen on a regular basis, from childhood on, to determine their statistical probability of engaging in crime, and then provide customized interventions to prevent deviant behavior. Perhaps we could even develop a High Risk Person (HRP) registry that would map out where these future offenders live, work, and play, so that we could all keep an eye out for them. And, of course, if any of these HRPs balked and didn’t follow through with their prescribed interventions, we could arrest and incarcerate them for non-compliance. All in the name of safety.

Sounds like something out of a PKD novel, doesn’t it?

Chicago’s individualized approach to prediction is taking us in this direction. As a  society, we need to decide if that’s where we want our system to go. I would argue that we don’t want to tip the balance of power away from individual freedoms and toward more government intervention in our lives, even if doing so might give us an increased margin of actual or perceived safety.

What are your thoughts? Leave and comment and share your opinions!

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I’ve written before about the important role that canines play in policing, as well as the need to protect them from harm to the maximum extent possible. I definitely believe these dogs are valuable tools when used with proper training and under the appropriate guidance of a responsible human partner.

Image courtesy of Maggie Smith/ FreeDigitalPhotos.net

Image courtesy of Maggie Smith/ FreeDigitalPhotos.net

But, a pair of stories in recent weeks raises some concerns about use of force when it comes to canines.

First  up, a jury in Atlantic City recently awarded damages to a man assaulted by a police officer during an encounter in 2008. The officer involved in that incident, Sterling Wheaten, was held personally liable and ordered to pay half of the $500,000 damage award himself.

As it turns out, that same officer is also being sued in at least five other cases, including one in which he allowed his canine to severely bite a man in June of this year. The video of that incident is below, and it offers a gritty view of what appears to be abusive police behavior by Wheaten.

Watch for yourself.

Atlantic City Incident

The video (starting at 3:10) appears to show a man being subdued by four Atlantic City officers, who eventually wrestle him to the ground to take him into custody. Just as he appears to be coming under control, Wheaten pulls up and releases his canine, which is then allowed to mercilessly attack the man, even biting his neck at one point.

You can see in the video how the officers, who are already on top of the arrested man, have to literally move out of the way to avoid being bitten by the dog themselves.

The man, Connor Castellani, required 200 stitches as a result of the dog attack, which appeared, in my opinion at least, to have been a completely disproportionate police response to the situation. That will ultimately be up to a jury to determine, however.

hqdefault

And, before you think that the decision might be a slam dunk based on the video, juries have sided with canine officers in similar cases in the past, even in situations in which video footage appears to show excessive force being used.

In December 2013, Stafford Brister, an officer with the Wilmington Police Department in North Carolina, was cleared by a grand jury in a use of force case involving the officer and his canine partner.

The below video of the incident shows officer Brister lifting his canine into a suspect’s vehicle after a police chase. If you look closely, you can see that the man appears to have submitted at that point by raising his hands in the air.

Nevertheless, the canine can be seen attacking the man.

Wilmington Incident

Now, I’m no apologist for fleeing suspects, and I don’t condone drinking and driving, damaging property, or any of the other crimes this suspect was later charged with committing, but I do believe that shoving the dog into the car after the suspect had stopped and apparently given up was potentially an excessive use of force.

To my mind, it would be akin to one police officer helping another officer enter the car for the sole purpose of attacking someone. Once inside the car, the dog is under only tenuous control, at best, and it certainly doesn’t have the reasoning capabilities of a human officer in terms of stopping or reducing the attack at any point where maximum force is no longer required.

If the video showed a human officer being hoisted through the window and then viciously attacking the suspect, I think we’d all agree that would be excessive. So, I’m not seeing how doing the same with a canine partner is any different in this situation.

The District Attorney also felt it was a close enough call to get a grand jury involved, and they ultimately decided that excessive force was not used.

old-oak-entrance-door-ot-grand-jury-room-in-crown-court

Grand jury proceedings are secret, so we will likely never know what information they received or the exact reasoning behind their decision. But, we can look to some other sources to potentially help with understanding canines and use of force.

According to the U.S. Police Canine Association, use of police canines is subject to the same three-part test as other use of force situations. Officers must consider:

  • The severity of the crime at issue;
  • Whether the suspect poses an immediate threat to the safety of law enforcement officers or others;
  • And whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Also, according to the same Supreme Court decision that generated the above test, Graham v. Connor (PDF), the court had this to say about use of force during arrest:

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

In the Wilmington case, the behavior involved was potentially a felony, the suspect had allegedly posed a significant threat to officers (he was driving recklessly and dangerously), and he had reportedly been resisting arrest in the moments prior to the encounter with the dog. All of that may have been influential in the grand jury’s decision not to indict Brister.

Further, it’s important to note that the Supreme Court, in applying the reasonable officer standard, made the point that use of force decisions must be evaluated from the perspective of an officer at the scene, not someone able to calmly judge it after the fact by watching a video of the incident, for example.

In the Atlantic City case, on the other hand, Castellani was suspected of only misdemeanor behavior, appeared to pose only a minimal threat to officers (especially since there were four officers present initially), and he was no longer resisting at the point Wheaten arrived and released his dog.

I don’t think any reasonable officer at the scene would have concluded that it was reasonable or necessary for Wheaten to use his canine to attack and bite Castellani the way he did.

But, maybe I’m wrong. What are your thoughts?

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It’s been a great first year, and I want to thank all of you for taking the time to read, post, comment, share, and otherwise support this blog. I especially want to thank Brittius.com for all the reblogs of our content and the comments they’ve shared over the past months. Much appreciated, friends. You can read their blog here.

Image courtesy of jannoon028 / FreeDigitalPhotos.net

Image courtesy of jannoon028 / FreeDigitalPhotos.net

Our blog began simply as an information project, primarily to help my students. I referred them here for more info on topics that commonly came up in our discussions and the other work we were doing together. Not only was it helpful to them, and a springboard for further discussion and learning, but I soon found that other people were interested in these topics as well.

That lead to additional topics, some guest posts, experiments with different approaches, and even a shot at a podcast (I plan to revive that in the new year). We also upped the game with a new and improved research blog, also supported by the company that sponsors this blog – Æquitas Educational Services – and a new weekly news site for parents: Social Web Safety.

Our Blog — Æquitas Educational Services 2013-12-14 08-28-44

So, to wrap things up, I’ve pulled together the top ten posts from Crime & Justice in terms of views, comments, and reblogs for 2013. I look forward to another year of growth and experimentation in 2014, and we’ll continue striving to provide you with the types of content you’re seeking.

If you have suggestions, story ideas, or just some feedback you’d like to share, let me know. And, as always, please spread the word about our blog and what we’re up to.

Top Ten Posts of 2013
  1. How Many Innocent People are in Prison?
  2. Why do Non-violent Felons Lose the Right to Bear Arms?
  3. Female Sex Offenders – Hidden in Plain Sight?
  4. Compliance with Authority and The Strip Search Prank Call Scam
  5. What is Cognitive Behavioral Therapy?
  6. The Legal System’s Non-Response to “Revenge Porn” (Updated 11/7/13)
  7. Friday Crime Vids – The Failed War on Drugs
  8. Why Therapeutic Jurisprudence?
  9. Does Privacy Still Matter?
  10. Kratom – Wonder Drug or Potential Health Threat?

Thanks again, and have a happy and safe holiday season!

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I ran across a disturbing blog post recently about police involvement in a roadside research study currently being conducted by the federal National Highway Safety Traffic Administration (NHTSA) in Texas.

King-of-Prussia-PA-DUI-lawyer-checkpoints

According to a news story by the local NBC affiliate in that region:

Some drivers along a busy Fort Worth street on Friday were stopped at a police roadblock and directed into a parking lot, where they were asked by federal contractors for samples of their breath, saliva and even blood. It was part of a government research study aimed at determining the number of drunken or drug-impaired drivers.

If true, this raises a number of troubling ethical and legal questions.

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I listened to a couple of fascinating stories this week on This American Life about false confessions. You’ve likely heard of this before, but it’s still hard to believe it actually happens.

 Image courtesy of Naypong / FreeDigitalPhotos.net

Image courtesy of Naypong / FreeDigitalPhotos.net

In one of the cases, it came to light that the suspect confessed mainly due to conscious and unconscious behaviors by the police, including feeding the suspect information, grilling her for hours on end, and then providing subtle cues to help her “remember” details about the crime that she never actually experienced in the first place.

According to the show’s summary:

Former DC police detective Jim Trainum tells reporter Saul Elbein about how his first murder investigation went horribly wrong. He and his colleagues pinned the crime on the wrong woman, and it took 10 years and a revisit to her videotaped confession to realize how much, unbeknownst to Jim at the time, he was one of the main orchestrators of the botched confession.

The woman referred to in that case was only a teenager at the time, which may have had something to do with her inability to stand up against the interrogators and their tactics.

The reasons behind why people falsely confess are not well understood, though, nor are there any solid numbers on how often this occurs. But, according to one article in Psychology Today:

…a review of one decade’s worth of murder cases in a single Illinois county found 247 instances in which the defendants’ self-incriminating statements were thrown out by the court or found by a jury to be insufficiently convincing for conviction.

This week’s vids feature stories about others, both children and adults, who falsely confessed to crimes that they actually had no part in committing.

National Geographic

One for Ten Films

CBS News

Have a safe weekend!

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I read an excellent blog post over the weekend by Rick Horowitz, “I’m a Prosecutor. This is What We Do,” that lays out a clear argument against the mindless, overzealous enforcement of the law by some prosecutors. His point was that, too often, thoughtless actions on the part of the State’s attorney can result in serious injustices that not only do real harm to individuals, but also erode public confidence in the system’s ability to functional at all.

Court

It’s not just prosecutors, though, who can act like “energizer bunnies,” to use Horowitz’s term for those who too aggressively pursue a barely articulated goal of “justice.” It’s also the police officer who oversteps his authority and injures or kills someone without just cause. It’s the judge who hides behind his robe when handing out sentences he knows are disproportionate to the crimes committed. It’s the correctional officer who uses excessive force just because he can.

We (meaning criminal justice practitioners) can all too easily forget that the justice system is operated by human beings for the purpose of protecting and serving other human beings. Inherent in that is the idea that our humanity should shine through, no matter the situation. Undoubtedly, this is messy work with few clear answers. Pretending, however, that the answer is to simply maximize the vengeful impacts of our limited role as a way to bring predictability and structure to the chaos is wrong-headed.

It will only serve to steer us further away from the goal of seeking justice. On this point, Horowitz concluded:

We, the People — not “the People” as mouthed by prosecutors and judges in the show trials that make up 95% of courthouse trials these days, but we, the actual People — need to wake up. When prosecutors forget that “not merely to convict” is intended to be a brake on vengeance, a reminder that true justice requires looking at the bigger picture, to see how we can make the world a better place, it is not merely the convict who suffers. Our whole society is dragged down by this attitude.

None of this is to say that police officers, prosecutors, judges, or correctional workers are inherently bad. They’re not. They’re essential, in fact, to maintaining public safety. At the same time, though, we need to look more deeply at what we’re doing as a whole, not just at what goes on within the self-enforced vacuum of our own little silos.  We need to look beyond the arbitrary boundaries we’ve established and work together to improve society overall through our actions.

So, how do we do that?

One place to start is to give more attention to integrated approaches to justice, such as Therapeutic Jurisprudence, a term coined by legal scholar, David Wexler, in the 1980s to describe what he referred to as:

a perspective that regards the law as a social force that produces behaviors and consequences. Sometimes these consequences fall within the realm of what we call therapeutic; other times antitherapeutic consequences are produced. Therapeutic jurisprudence wants us to be aware of this and wants us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected.

While this is most typically applied to the court room, there’s no reason that it needs to be limited to any one part of the justice system. What if all elements of the system focused on increasing therapeutic effects while reducing harm to the maximum extent possible? What if we all operated not from a retributive perspective, but from a rehabilitative one as well?

Would that be more just and more likely to instill confidence in the system as a whole?

What are your thoughts? Leave a comment below and share your perspective.

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This week, officers in DC shot and killed a woman who rammed a barrier at the White House with her car and then lead police on a chase near some Capitol buildings. The woman was reportedly unarmed, as it turned out, which raises the question for some as to whether police can legally shoot a person under such circumstances.

Fox News Report

In general, the police cannot shoot a fleeing felon simply to prevent their escape. But, there are important exceptions to this restriction.

In 1985, the U.S. Supreme Court held in Tennesse v. Garner that a state law authorizing police officers to use “all force necessary,” including deadly force, to apprehend a fleeing individual was unconstitutional.

Deadly force in that context, the court decided, was a violation of the fleeing person’s Fourth Amendment rights against unlawful seizure.

They further concluded, however, that an officer “may use deadly force to prevent escape only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

This week’s vids provide some examples to consider. Note, however, that these cases may or may not be justified shootings. That’s for the courts and juries to officially decide, not me or youtube.

Take a look and decide for yourself, though.

Iowa Police Shooting

Wisconsin Police Shooting

Have a safe weekend!

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Think you’re having a bad week? Well, cheer up. Whatever’s bugging you is probably not nearly as bad as what happened the night in 2010 when Felix Booker was pulled over by police while riding in a car with expired plates and ended up being temporarily paralyzed by an ER doc so he could perform a non-consensual rectal exam.

Yeah, that really happened.

Image courtesy of Salvatore Vuono / FreeDigitalPhotos.net

Image courtesy of Salvatore Vuono / FreeDigitalPhotos.net

A PDF of the full ruling on the case by the Sixth Circuit Court of Appeals is available for your reading enjoyment (and it is pretty entertaining disturbing), but here’s the case in a nutshell: The police pulled over the car, developed information that poor Felix had stashed narcotics in his rectum, and eventually transported him to the hospital for treatment by an emergency room doctor.

Here’s the doctor’s testimony about what happened next:

A: I told him that I needed to do a rectal exam. I asked him if I could do so. Initially he said, no. I explained to him that at this point in the Emergency Room he really did not have a choice because if my suspicion was high enough to think that he had some sort of dangerous substance in his rectum, then it was my duty to get it out. And that we could do it a number of different ways. I told him that I would prefer if he cooperated and allow me to do the rectal exam, but if he did not cooperate, then I was going to be forced to administer medications to relax him so that I can do the rectal exam. I further explained that if that did not work, then I would have to go to the extreme and actually paralyze him in order to do the rectal exam. I told him that I did not want to go that far. I would rather that he cooperate and we just do the rectal exam and get it over with. At that point he agreed to do the rectal exam.
. . . .
Q. What happened during this exam?
A. The patient got into the proper position. I prepared to do the rectal exam. He would not allow me to do so. He contracted his anal and rectal muscles so that I could not get my finger inside of his rectum.
Q. This was absent any sort of sedation?
A. Correct.
Q. Then what happened?
A. As I initially told him, if he did not cooperate, I was going to have to give him medication to sedate him in order to do the exam. After the initial attempt to do the exam which failed, I then ordered the nurse to administer ten milligrams of a drug called Midazolam which usually sedates an adult enough to relax all of their musculature so I can do the exam.
Q. Did you in fact sedate the defendant?
A. I did.
Q. What happened after he was sedated?
A. I waited approximately ten to 15 minutes for the medicine to take full effect. I reattempted the rectal exam.
Q. What happened on your reattempt?
A. I was more successful in getting into his rectum at that point because he was sedated and with the tip of my finger I could feel a foreign object in his rectum. He was still conscious enough to contract his muscles enough so that I could not do a complete rectal exam and remove the object.
Q. So what step did you take next?
A. At that point I was convinced beyond any doubt that there was something in his rectum and that I had to do whatever was necessary to get it out. I went to the next step which I had explained previously to the patient and that was to do paralysis. I administered a combination of medications which paralyze every muscle in the body and I also had to stick a tube down his lungs in order to take over his breathing, basically to control his physiology and keep him alive while he was paralyzed.

Wow, this doc does not mess around when it comes to sorting out rectums.

Not too surprisingly, the court decided that this was an illegal search in violation of Booker’s Fourth Amendment rights, and also that the doctor had committed medical battery against Booker by paralyzing him and conducting an invasive procedure against his will.

So, whatever’s got you down in the dumps at midweek, take heart that your rectum is safe, at least in the Sixth Circuit, from unreasonable police intrusion.  And, to my mind, that’s something to be thankful for 🙂

Have a great rest of the week!

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Whether you agree with the New York judge’s decision to abolish “stop and frisk” practices by the New York City police department, some of the specific requirements of the ruling are pretty interesting. One that hasn’t received much attention yet is a requirement that some officers wear a body camera to record interactions with citizens. The mandate is only for a pilot project at this point, but both politicians and police unions there oppose it.

Actual police encounter captured by a police body camera

Mayor Bloomberg himself has spoken out against the cameras. His arguments are pretty vague, though, if not illogical, given that his administration fully supports widespread use of public surveillance cameras in the city.

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