Category Archives: Studies

Alcohol Abuse On The Rise

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Excellent article by John Tozzi of Bloomberg claims that Americans are drinking more than they used to, a troubling trend with potentially dire implications for the country’s future health-care costs.

The number of adults who binge drink at least once a week could be as high as 30 million, greater than the population of every state save California, according to a study published on Wednesday in JAMA Psychiatry. A similar number reported alcohol abuse or dependency.

Between the genders, women showed the larger increase in alcohol abuse, according to the report.

“This should be a big wake-up call,” said David Jernigan, director of the Center on Alcohol Marketing and Youth at the Johns Hopkins Bloomberg School of Public Health, who wasn’t involved with the research. “Alcohol is our number one drug problem, and it’s not just a problem among kids.”

Tozzi reports that while underage drinking has declined in recent years, adult consumption increased across all demographics. The jump was also especially large for older Americans, minorities and people with lower levels of education and income.

The rise is “startling,” said Bridget Grant, a researcher at the National Institute on Alcohol Abuse and Alcoholism and lead author of the paper. “We haven’t seen these increases for three or four decades.”

The share of adults who reported any alcohol use, high-risk drinking or alcohol dependence or abuse increased significantly between when surveys were conducted in 2001-02 and in follow-up surveys during 2012-2013. Researchers personally interviewed tens of thousands of people with similar questions, offering a robust, nationally representative look at how American drinking habits have evolved in the 21st century.

About 12.6 percent of adults reported risky drinking during the previous year in 2012-13, compared with 9.7 percent in 2001-02. Behavior was considered high-risk if people surpassed the government’s guidelines for excessive alcohol intake, set at four drinks in one day for women and five drinks for men, at least once a week.

That 3 percentage point increase may not seem like a huge jump, but given an adult U.S. population of about 250 million, it represents roughly 7 million more people binge drinking at least once a week.

The increase in alcohol abuse or dependence was even greater: Some 12.7 percent of respondents reported such behavior in the 2012-13 period, compared with 8.5 percent in 2001-02. That percentage increase is roughly equivalent to 10.5 million people at the current population. The surveys assessed abuse or dependence using standard diagnostic criteria (PDF), with questions such as whether people had difficulty cutting down on drinking, or if they continued drinking even when it caused trouble with family and friends.

There’s no single explanation for the increase. Researchers point to economic stress in the aftermath of the Great Recession; more easily available alcohol at restaurants and retailers; and the diminished impact of alcohol taxes. As a percentage of average income, alcohol is cheaper today than at any point since at least 1950.

Pervasive marketing by the alcohol industry and new products such as flavored vodkas or hard lemonade and iced tea may also be driving some of the increases among women and other demographics, said Jernigan.

The consequences for health care, well-being and mortality are severe. Excess drinking caused on average more than 88,000 deaths in the U.S. each year from 2006 to 2010, the Centers for Disease Control estimates—more than twice the number of deaths from prescription opioids and heroin last year. The total includes drunk-driving deaths and alcohol-linked violence, as well as liver disease, strokes and other medical conditions. The CDC says drinking too much is responsible for one in 10 deaths among working-age Americans.

The estimated cost of excess alcohol consumption is almost $250 billion a year in the U.S.

“We pay for all of it,” said Jürgen Rehm, senior director of the Institute for Mental Health Policy Research at the Centre for Addiction and Mental Health in Toronto. The costs show up in higher health-care needs, lost productivity and prosecuting alcohol-fueled crimes, from drunk driving to homicide.

Rehm said alcohol doesn’t command the attention of policymakers the way tobacco, illicit drugs or prescription opioids have. “The response of society should be commensurate to the level of the problem,” he said. Yet there is no national strategy in the U.S. that matches recent, high-profile efforts to combat opioids, smoking or illegal drugs. “Alcohol,” Rehm said, “we just tend to overlook.”

My opinion? Alcohol is a factor in roughly 70% – 80% of my cases. DUI crimes are most commonly associated with alcohol use, but it doesn’t stop there. Assault, domestic violence and sex offenses also overwhelmingly involve alcohol in some way, shape or form. And although voluntary intoxication is a valid defense in some cases, juries and judges tend to be pessimistic of its viability. This is because previous research finds that Americans tend to consider excess drinking a character flaw rather than a medical problem.

Fortunately, in some cases Prosecutors can be persuaded to give some leeway to those who obtain alcohol evaluations and undergo treatment. These actions show the defendant is taking accounability for the alleged crimes they committed while under the influence of alcohol, and that the incident may have been isolated to those particular circumstances.

If you have received a DUI or any other crime involving alcohol use/abuse, you should contact an experienced attorney who can help you through the various requirements from the courts, prosecutors, judges, probation and the Department of Motor Vehicles. You should have a alcohol evaluation done promptly, and have your attorney prep your thoroughly before hand.

Reducing Recidivism

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In an article titled, “The Nearly Perfect Recidivism Machine”David J. Krajicek, a contributing editor with The Crime Report, discusses a book written by Texas criminologist William R. Kelley.

“One would have to look far and wide to find a greater public policy failure than the American criminal justice system,” says Kelly in the opening chapter of his new book, From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice (Rowman & Littlefield).

William R. Kelly

Krajicek writes that Kelly, a University of Texas-Austin sociology professor, has long been one of the country’s toughest justice critics. In this book, he offers a plan for top-to-bottom transformation of the system, in collaboration with federal judge Robert Pitman and psychiatrist William Streusand.

Kelly suggest reforms to rein in the charging powers of prosecutors. He recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.

“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.

In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.

The Crime Report: What is the impact of the country’s justice policy failures?

William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.

What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.

TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?

Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…

We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.

TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?

Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”

Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.

TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?

Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?

TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?

Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.

TCR:  Who’s to blame for the state of “correctional malpractice” you say we are in?

Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.

But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.

Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.

TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?

Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.

TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?

Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.

Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.

TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.

Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.

When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.

TCR: What do the rest of us in a presumably civilized society owe these damaged people?

Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.

TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well.  You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?

Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.

Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.

 TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.

Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.

We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.

The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.

TCR: And this is the “disruptive innovation” of your book title?

Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.

We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.

TCR: And how might it be greeted by prosecutors, who hold all the power right now?

Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.

The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.

TCR: You say these changes will force us to redefine success in our justice system. How so?

Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.

TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.

Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.

The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.

TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversionsomehow informed the book’s content.

Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.

I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.

**Excellent article, and excellent book by Mr. Kelly.

Marijuana and Violent Crime

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The Federal Bureau of Investigation reports violent crime rate in Washington has declined since voters here legalized recreational marijuana use in November 2012. The FBI numbers are based on crimes reported to law enforcement agencies.

2010: 313.5 offenses per 100,000 city inhabitants

2011: 294.6 offenses per 100,000 city inhabitants

2012: 295.6 offenses per 100,000 city inhabitants

2013: 289.1 offenses per 100,000 city inhabitants

2014: 285.8 offenses per 100,000 city inhabitants

2015: 284.4 offenses per 100,000 city inhabitants

The state’s rate of violent crime in 2015, the most recent year of data available, also was substantially lower than the national average, according to the FBI. Nationally, the estimated rate of violent crime was 372.6 per 100,000 inhabitants in 2015.

Crime & Safety in America

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According to an article from the Crime Report, U.S. violent crime rates are lower than they have been for four decades, and prisons’ impact as a crime deterrent “is minimal at best.” Apparently, the Vera Institute of Justice gave two new briefing papers which countered the political rhetoric and unfounded assumptions which influence criminal justice policy.

The Prison Paradox

In The Prison Paradox, author Don Stemen summarizes the weak relationship between incarceration and crime reduction, and highlights proven strategies for improving public safety that are more effective and less expensive than incarceration. He writes that, despite its widespread use, research shows that the effect of incarceration as a deterrent to crime is minimal at best, and has been diminishing for several years.

“Indeed, increased rates of incarceration have no demonstrated effect on violent crime and in some instances may increase crime,” writes Stemen. “There are more effective ways to respond to crime—evidenced by the 19 states that recently reduced both their incarceration and crime rates.”

The report suggests that policymakers should adopt “crime reduction strategies that seek to engage the community, provide needed services to those who are criminally involved, and begin to address the underlying causes of crime.”

Measuring Public Safety

In Measuring Public Safety, author Bruce Frederick examines erroneous conclusions about current crime trends—using both existing and original research—and describes how to avoid common pitfalls when interpreting statistics on violent crime.

“With a few hyper-localized exceptions that require targeted attention, violent crime rates are lower today than they have been at any point over the past four decades,” says Frederick. “However, this era of public safety has been misrepresented by some media reports and public commentary concluding that violent crime increases in a few cities equal a sweeping national problem.”

Apparently, over-generalizing data on homicides from a small sample of major U.S. cities has led to premature conclusions being drawn about a nationwide reversal of the general decline in violent crime.

Such reports were “unfounded,” the Frederick says, adding that today’s relatively lower crime rates are “not a cause for complacency because some of our communities are experiencing significant increases in violent crime.”

My opinion? It’s important for criminal defense attorneys to be informed and aware of crime trend data. Oftentimes, our judiciary mistakenly cites unproven or misinterpreted data when they hand down lengthy prison sentences to citizens convicted of crimes. Therefore, it’s important to “fact check” and assist our judiciary in making clear, reasonable decisions whenever possible using studies like those mentioned above.

Life Sentences Increase

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Article by Samantha Michaels of Mother Jones discusses how one out of every nine prisoners in the United States is currently serving a life sentence—a record high—even as the overall prison population has fallen.

That’s according to a depressing new report by the Sentencing Project, an advocacy group that’s been tracking life sentences since 2004. Almost 162,000 people are now serving life behind bars, up from 132,000 about a decade ago and 34,000 in 1984.

To put that in perspective, for every 100,000 people in America, 50 have been locked up for life. That’s roughly the total incarceration rate—including inmates whose sentences are just a few months—in Scandinavian countries like Denmark, Sweden, and Finland.  And it doesn’t even account for the tens of thousands of Americans handed sentences of 50 years or more, which are considered “de facto life sentences,” says Ashley Nellis, a senior research analyst at the Sentencing Project who co-authored the report.

What’s driving the uptick? It’s not a rise in violent crime or murder—both have dropped substantially since the mid-1990s. Nor is it an increase in the number of criminals behind bars: A majority of states saw declining overall prison populations from 2010 to 2015.

According to Michaels, the continuing rise in lifers is a legacy of three-strikes laws and mandatory minimum sentencing.

“It may also be related to the shift away from capital punishment,” she says. She further elaborates that in some states that no longer allow executions, elected officials like governors and prosecutors have championed life-without-parole sentences—which account for the biggest increase in life sentences nationally—as a way to appear tougher on crime.

“Going forward, we will have a system that allows us to put these people away for life, in living conditions none of us would want to experience,” Connecticut Gov. Dannel Malloy, a Democrat, said in 2012 when his state abolished the death penalty. But these lengthy punishments probably aren’t keeping the public safer. “The impulse to engage in crime, including violent crime, is highly correlated with age,” the Sentencing Project notes. “Most criminal offending declines substantially beginning in the mid-20s and has tapered off substantially by one’s late 30s.”

The biggest losers of all this? Minorities. Of all the lifers and de facto lifers in the country, almost half are African American. What’s more, 12,000 of the total are locked up for crimes they committed as kids, though some are eligible for release thanks to recent court decisions.

In 2010, the Supreme Court ruled that life-without-parole sentences are unconstitutional for juveniles who didn’t commit homicide. In 2012, the justices went further, saying that mandatory life-without-parole sentences for kids, including those who committed homicide, are also unconstitutional. Nineteen states and DC now ban any kind of life-without-parole sentence for juveniles.)

Finally, according to Michaels, it’s important to remember that many of the prisoners serving these long sentences never actually hurt anyone: Two-thirds of lifers or de facto lifers in the federal system committed nonviolent crimes—and one-third of them are serving time for drug crimes.

With Attorney General Jeff Sessions at the helm of the Justice Department alongside his team of tough-on-crime advisers, there’s a good chance that won’t be changing anytime soon.

My opinion? I couldn’t agree more.

Students, Not Suspects

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Interesting article by Claudia Rowe of the Seattle Times describes a report from the American Civil Liberties Union (ACLU) saying says that police officers patrolling school hallways brings significant costs to the learning environment and finances of our schools.

“We were surprised by the degree to which officers have almost unfettered ability to enforce in school discipline,” said Vanessa Hernandez, youth policy director at the ACLU who wrote the “Students Not Suspects” report. “That’s a pretty dangerous road to go down, to have student discipline in an educational environment handed to a law enforcement agent, and it really sends a troubling message to students about how we perceive them.” The advocacy organization examined data from the 2013-14 through 2015-16 school years in more than 100 districts.

National data show a strong correlation between placing officers in schools and increased youth referrals to the criminal justice system. And in Washington, state law makes it a misdemeanor to cause a disturbance within school walls. “Any student misbehavior — from talking back to a teacher, to making an off-color joke, to throwing spitballs — could be treated like a crime,” Hernandez said.

Thirty years ago, few schools used police to respond to misbehavior. But in recent decades the number of officers patrolling the halls has ballooned — from fewer than 100 nationally in the late 1980s, to an estimated 17,000 today. Yet no state agency systematically tracks police in schools, or the impact on students. Most commonly, officers are contract employees who report to their police departments, not district administrators.

In Washington, Hernandez added, at least 3,400 kids were either arrested on campus or referred to law enforcement for prosecution during in the 2013-14 school year, which is the most recent data available.

In a time when state lawmakers are wrestling with a multibillion dollar hole in funding for education, schools are spending millions on police officers, the report found.

Seventeen districts pay the entire cost of their school police, covering salaries, benefits and even, in two cases, leasing patrol cars. On average, schools contribute about $62,000 annually for each full-time officer, and up to $125,000 at the high end.

 That adds up fast in districts that use officers in multiple schools. Spokane, for example, paid more than $1 million for school officers during the 2014-15 school year, the report says. And Kent — which is facing an $18 million budget hole — spent almost $500,000 in 2015-16. (Seattle’s school police officers are covered by the city, not the school district budget.)

Other approaches, like restorative justice and trauma-informed teaching, have been shown to reduce disciplinary incidents by addressing the underlying causes of misbehavior, and the ACLU suggests that money for police might be better spent on school psychologists, social workers or teaching assistants.

Yet momentum has moved in the opposite direction. Nationally, 24 percent of elementary schools and 42 percent of middle- and high schools routinely hire police officers, according to the report.

But not all schools have police officers. In high-poverty schools — whether urban or rural — police are a much more routine presence. In small-town Walla Walla, for example, the alternative school where 80 percent of kids are low-income, has an officer. But the regular comprehensive high school, where only 45 percent of students are low-income, does not. Even the tiny Liberty district, with about 450 students, has a police officer on staff, the ACLU found.

Race Bias Video for Jurors

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The King County Bar Association Bulletin reported recent efforts to tackle the problem of race bias in juries. In U.S. District Court Produces Video, Drafts Jury Instructions on Implicit Bias, Judge Theresa Doyle of the King County Superior Court discussed how our federal courts created an instructional video on race bias to be viewed by potential jurors.

RACE BIAS 

For those who don’t know, racial biases are a form of implicit bias, which refers to the attitudes or stereotypes that affect an individual’s understanding, actions, and decisions in an unconscious manner. These biases, which encompass unfavorable assessments, are often activated involuntarily and without the awareness or intentional control of the individual. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.

“We all have biases,” writes Judge Doyle in her article. “These unconscious, instantaneous, almost automatic judgments can help us get through the day. However, when those unconscious biases stereotype a person because of race, gender, national origin, sexual orientation, age or other qualities, they are no longer helpful but harmful to the right to a fair trial.”

She discusses how results from the Implicit Association Test (IAT) and other research show a high and nearly universal preference of whites over blacks. Even with African-American test-takers, 40 percent showed a pro-white preference. “Jurors bring these biases to court when they report for jury service,” said Judge Doyle. “However, where race is never mentioned but lurks in the background, e.g., where a party in a case . . . is a person of color, that racial or ethnic bias is most likely to rear its ugly head.”

BACKGROUND TO THE CREATION OF THE VIDEO

Judge Doyle described how in 2015, then-Chief Judge Marsha Pechman of the Federal U.S. District Court of Western Washington appointed a committee to develop an answer to the question of what should courts do about the biases and prejudices that jurors bring with them to court.

Apparently, at the same time, the federal defenders were conducting a criminal trial. During jury selection, the federal defenders showed a videotape that dealt with potential race bias. After the trial was concluded, the committee spoke to Judge Jones, the federal prosecutors, defense lawyers and some of the jurors.

Judge Doyle said that based on all of the committee work, including the interviews, the committee developed a script and worked with a production company to produce a video presentation on the nature and impact of implicit or unconscious bias.” In February, after nearly two years of work, the video was finished and the committee had developed pattern jury instructions on implicit bias for use in criminal cases; which were adopted by the Court. “The instructions incorporate language regarding unconscious bias into a preliminary instruction, the witness credibility instruction, and a closing instruction,” said Judge Doyle.

THE VIDEO

A link to the video and jury instructions is here. It features Judge Coughenour, defense attorney Jeffery Robinson, and Annette Hays, acting U.S. attorney for the Western District of Washington. “These three explain how such automatic preferences and biases can influence our perceptions and decisions, threatening the constitutional right to fair trial and due process, and jeopardizing public confidence in the legal system,” says Judge Doyle. “Research shows that awareness of unconscious biases is key to minimizing their effects on perceptions and decision making.”

My opinion? My hat’s off to the judges and attorneys involved in the creation of this video. During jury selection, I’ve struggled to introduce these controversial and galvanizing topics. Talking about race is a difficult needle to thread. It can raise suspicion that defendants are trying to “play the race card” on behalf of my Client, which is exactly untrue: I’m trying to take the “race card” off the table. Fortunately, this video – a tool from the courts, and not an advocate – educates the jury and approaches the subject of race bias from a more objective place.

Kudos to the federal courts. Good work. I’m proud of you.

Another Study Finds Few Consequences For Prosecutor Misconduct

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Blogger Radley Balko of the Washington Post describes how a large-scale study from the New England Center for Investigative Reporting discovered that systemic prosecutor misconduct in Massachusetts dated back to 1985.

The report found more than 1,000 cases in which misconduct was alleged by criminal defendants and 120 in which a state appeals court reversed conviction due to misconduct. The group found an additional 134 verdicts reversed or thrown out due to misconduct after reviewing data from the state bar.

Balko says it’s difficult to draw conclusions from the raw number of incidents because most prosecutor misconduct goes unreported. He says the failure to turn over exculpatory evidence often becomes apparent only once a defendant has exhausted their appeals, after which the defense gets access to the prosecutor’s files. But by this point, many defendants no longer have legal counsel.

Additionally, Balko poignantly describes why defense attorneys intentionally do not report prosecutorial misconduct:

“When defense attorneys do find misconduct by prosecutors, there are also some strong incentives against reporting it. Most criminal defense attorneys will also have several other clients being prosecuted by the same office, perhaps even the same prosecutor. Reporting misconduct could jeopardize the attorney’s ability to bargain for those clients. Often, the more enticing option is to use the discovery of misconduct as a bargaining chip to get a better deal for the defendant in that case and perhaps earn favor from the prosecutor in others.”

The topic is not new to Mr. Balko. He summarized a handful of similar studies in a piece for the Huffington Post a few years ago.

“There are a handful of ways to keep wayward public officials honest,” says Balko.  He believes in the success of electoral accountability as a viable option. Still, relying on voters to keep prosecutors honest is a risky proposition. “The groups more likely to be victimized by excessive prosecutors are also the groups with the least amount of political power.”

The Most Charged Crime

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Apparently, the most commonly charged crime in Washington State – Driving While License Suspended in the Third Degree (DWLS III)- shouldn’t be a crime at all, the state chapter of the American Civil Liberties Union argues in a new report.

In “Driven to Fail: The High Cost of Washington’s Most Ineffective Crime – DWLS III” the report describes the costs of enforcing this law, explores how it burdens individuals and communities, and calls for policies that address the harm of driving with a suspended license without criminalizing it. According to the ACLU, taxpayers spend more than $40 million a year to prosecute cases of DWLS III.

“Not every social problem needs to be treated as a crime,” said Mark Cooke, the ACLU of Washington’s Campaign for Smart Justice Policy Director. “DWLS III enforcement costs taxpayers millions of dollars, yet does little to improve public safety. The crime is largely punishing people for being poor, not because they are scofflaws or dangerous drivers,” said Cooke.

Typically, a DWLS III charge comes about this way: A driver receives a ticket for a moving violation (such as speeding or rolling through a stop sign) and for various reasons does not follow through by paying the ticket or showing up in court to contest it. Hundreds of thousands of people in Washington have had their license suspended for not responding to a ticket for a moving violation. Those who continue to drive once their license is suspended may be arrested and charged with DWLS III.

The report estimates that Washington taxpayers have spent more than $1.3 billion enforcing this crime between 1994 and 2015. These costs stem from the filing of nearly 1.5 million DWLS III criminal charges, resulting in nearly 900,000 convictions. In 2015, there were nearly 40,000 DWLS III charges filed, costing taxpayers $42,199,270. The report also shows that the law is applied unequally across the state and disproportionately impacts people of color, the young, and the poor.

The report recommends that the crime of DWLS III should be taken off the books. Short of that, law enforcement, prosecutors and courts can exercise their inherent discretion and treat DWLS III as a civil offense and offer relicensing programs. Civil remedies and relicensing can be more effective and use fewer criminal justice resources. The data in the report also shows that some jurisdictions, such as the cities of Yakima and Seattle, have started to treat DWLS III as a non-criminal offense.

My opinion? It’s no mystery that DWLS III allows police to arrest people with suspended licenses. However, most don’t know that it allows police to search people’s vehicles after arrest.  Therefore, any contraband, guns or other illegal items found in people’s cars can be lawfully seized. Additionally, the defendant will face unlawful possession charges for whatever contraband found during the search. In my opinion, this is the essence of an unlawful pretextual search. And for that reason, DWLS III should be a civil infraction which circumvents the need for arrest and searches. It should not be a crime.

New Federal Data Shows Decrease in Drunk Driving Rates

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According to reporter Christopher Ingraham of the Washington Post, new federal statistics show that the rate of drunken driving in the United States fell to a 13-year low in 2014, the latest year for which data is available. The rate of driving under the influence of illicit drugs has not changed meaningfully in recent years but remains slightly lower than it was in 2008 and 2009 at the start of the Obama administration.

Here’s a summary of some other findings:

  • In 2014, 27.7 million people aged 16 or older (11.1 percent) drove under the influence of alcohol in the past year, and 10.1 million (4.1 percent) drove under the influence of illicit drugs in the past year. About 7.0 million (2.8 percent) drove under the influence of alcohol and illicit drugs in the past year, including 5.9 million (2.4 percent) who drove under the simultaneous influence of alcohol and illicit drugs in the past year.
  • The percentage of people driving under the influence generally increased with age through the young adult years and then declined with age thereafter; percentages were higher among males than females.
  • The percentage of people aged 16 or older who drove under the influence of alcohol in 2014 (11.1 percent) was lower than the percentages in 2002 through 2012 (ranging from 11.8 to 15.3 percent).
  • The percentage of people aged 16 or older who drove under the influence of illicit drugs was lower in 2014 (4.1 percent) than in 2002 through 2006 and in 2009 through 2010.
  • The percentage of people aged 16 or older who drove under the simultaneous influence of alcohol and illicit drugs was lower in 2014 (2.4 percent) than in 2002 through 2010 (ranging from 2.9 to 3.4 percent).

Ingraham reported that although experts caution that while the trend is heading in the right direction, there’s still a lot of work to be done. “Although it is heartening to see a downward trend in levels of driving under the influence of alcohol, it still kills thousands of people each year and shatters the lives of friends and loved ones left behind,” said Frances Harding, director of the Center for Substance Abuse Prevention at SAMHSA, the agency that produces the survey.

The SAMHSA survey showed that young adults — particularly men ages 21 to 25 — had by far the highest impaired driving rates. More than 1 in 5 men ages 21 to 25 drove drunk in 2014, nearly 1 in 7 drove under the influence of other drugs, and roughly 1 in 12 drove while simultaneously drunk and drugged.

One the other hand, young adults have also seen the greatest reductions in drunken driving prevalence over the past 13 years. Since 2002, the drunken driving rate fell by fewer than three percentage points among drivers age 26 and older. But the rate among drivers ages 21 to 25 dropped by more than 10 percentage points. And the prevalence among the youngest drivers, ages 16 to 20, fell by more than half.

Ingraham reports there’s no single factor driving the decline in drunken driving rates. The Centers for Disease Control and Prevention credits interventions like strong drunken driving laws, public awareness campaigns, and ignition interlock systems that don’t allow drunk drivers to start cars.

Some states are experimenting with innovative programs that essentially take away the right to drink alcohol, period, for people convicted of certain alcohol-related crimes. There’s also evidence that ride-sharing services like Uber can reduce drunken driving rates, although not all researchers agree on this.

My opinion? This is extremely good news. Although it’s important to save lives by reducing traffic accidents through education, prevention, and all other possible measures; it’s equally important that defendants facing these criminal charges hire capable and competent defense counsel as soon as possible to protect their rights, review the evidence and ensure a fair trial when necessary.

Contact my office for a free consultation if you, a friend or family member face DUI or related charges.