An unknown number of those 500-plus facilities have also adopted “remote” video visitation, something akin to Skype, in which a “visitor” can communicate with an inmate via a computer, from any location. Unlike the in-facility video visitation systems, these remote setups come with charges of up to a dollar per minute, not counting account-deposit fees and set-up charges—expenses that can be quite burdensome for the often-poor families of inmates.
Despite the expense, however, the benefits cannot be ignored. Many visitors may conclude that driving to the jail is a waste of time and gas, and opt to pay. And jailers argue that video visitation has obvious security advantages and improves staff efficiency, as deputies don’t have to remove a prisoner from a housing unit or check visitors in.
Additionally, the revenues cannot be ignored either. Video chat systems make jailers—whether local governments or private corporations—the de-facto business partners of the companies, while enriching private-equity firms (which own many video-visitation providers) and their investors. “Video visitation is a link in the whole system that sees inmates as a revenue opportunity,” says Daniel Hatcher, a law professor at the University of Baltimore and the author of The Poverty Industry: The Exploitation of America’s Most Vulnerable Citizens. “It’s part of a larger system that sees the broader vulnerable family as a revenue opportunity, too.”
A LUCRATIVE BUSINESSReporter Brian Alexander says that inmate-communication services have proven to be a very lucrative business, and expensive phone charges borne by the families of prisoners have stoked controversy for years. In response, the Federal Communications Commission (FCC) capped per-minute rates in 2015. Prison-telecom companies sued. President Trump’s appointee to head the FCC, Ajit Pai, dropped the FCC’s defense of the rate-cap rules, and, in June, a court struck them down. Even so, the phone charges became a scandal and some in Congress vowed to take action. Administrators began to feel queasy about the rates.
The procedural hurdles and the outright bans on in-person visitation seem designed to nudge visitors to stay home and visit remotely. This not only benefits providers, but jails, prisons, and local jurisdictions too, which can use income from company commissions or profit-sharing to benefit the facility, a county’s general fund, or some other local cause. For example, the Prison Policy Initiative uncovered a contract between Securus and Maricopa County, Arizona, that provided for a 10 percent commission to the county of gross monthly revenues, but only if the number of paid video visits reached at least 8,000 for that month. If Securus grossed $2.6 million or more, the county’s percentage rose to 20 percent.
VIDEO VISITATION NO REPLACEMENT FOR IN-PERSON VISITS.
Alexander emphasizes that video visitation is no replacement for in-person visits. As an oft-cited Minnesota Department of Corrections study from 2011 showed, “prison visitation can significantly improve the transition offenders make from the institution to the community. Any visit reduced the risk of recidivism by 13 percent for felony reconvictions and 25 percent for technical violation revocations.” Also, a report by the National Institute of Corrections (part of the U.S. Department of Justice) similarly concluded that video visitation “cannot replicate seeing someone in-person, and it is critical for a young child to visit his or her incarcerated parent in person to establish a secure attachment.”
INVESTORS ARE PIQUED
Meanwhile, because the largest inmate telecom-and-video providers generate a healthy flow of cash, they’ve attracted the interest of private equity, or PE. The fees that flow upward from prisoners and their families find their way to these firms and their investors. In 2013, for example, Global Tel Link, another major inmate phone-and-video provider, borrowed $885 million to fund dividend recapitalizations at the behest of its PE sponsor, American Securities; that debt would be paid back with the proceeds from inmate calls and video visitations.
VIDEO CHAT: GOOD OR BAD?
Alexander says that even a critic like Hatcher, the author and law professor, believes that video visitation has the potential for good. Such a service can complement in-person visits. It could allow an inmate to see a child’s school performance. It could substitute for an in-person visit when weather makes travel to a jail or prison hazardous. But Hatcher fears that it’s being used to restrict contact and drain money from people who are often already poor.
Excellent news article by Dan Boylan of The Washington Times claims that the value of the shadowy digital currency known as Bitcoin has jumped to record highs this month, sending shock waves through America’s defense and intelligence agencies, which fear its growth signals a surge in use by terrorists, drug kingpins, white-collar criminals and Russian cybercriminals who don’t want to be tracked by the world’s governments.
Besides being created as a reward for mining, Bitcoin can be exchanged for other currencies, products, and services in legal or black markets.
As of February 2015, over 100,000 merchants and vendors accepted bitcoin as payment. According to research produced by Cambridge University in 2017, there are 2.9 to 5.8 million unique users using a cryptocurrency wallet, most of them using Bitcoin.
The currency’s unique power comes from its independency and lack of reliance on any single government for its legitimacy. Unlike regular money, digital or cryptocurrencies are not connected to banks or governments and allow anonymous purchases or money exchanges completely outside the realm of banks, credit card firms or other third parties. Instead, the coins exist because users “mine” them by lending their computing power to verify other users’ transactions.
CYBER TERRORISM & BITCOIN
In Britain, screenshots on social media showed National Health Service computer screens with messages demanding $300 worth of Bitcoin to regain access to files.
While cyberattacks have increasingly targeted businesses around the world, Bitcoin ransom attacks, especially in the U.S., are skyrocketing. The FBI’s Internet Crime Complaint Center reported it received 2,673 ransomware incidents last year — nearly double the figure from 2014.
Despite Moscow’s denials of meddling in the U.S. presidential election, major investigations also continue into Russian hackers suspected of using cyberattacks to undermine or influence the vote.
WORLD GOVERNMENTS STRIKE BACK AGAINST CYBER CRIMES AND BITCOIN
In an even more startling sign of the battle raging around Bitcoin, a FinCEN-led international illicit financing task force arrested a Russian “mastermind of organized crime” on a small beachside village in northern Greece less than two weeks ago.
Alexander Vinnik, who is accused of laundering more than $4 billion worth of illegal funds using Bitcoin accounts, operated BTC-e, one of the world’s oldest Bitcoin exchanges.
U.S. authorities accuse Mr. Vinnik of facilitating crimes including drug trafficking, public corruption, hacking, fraud, identity theft and tax refund fraud.
Mr. Vinnik was arrested amid worldwide cyberhavoc triggered by massive WannaCry’s Bitcoin ransomware attacks in May and June. The attacks forced a production shutdown at Renault auto plans, crashed computers at Britain’s National Health Service and targeted India’s ATM network.
A little-noticed provision of the law passed by Congress and signed by President Trump this month imposing new sanctions for North Korea, Iran and Russia mandated the formulation of a national security strategy to combat “the financing of terrorism and related forms of illicit finance.” Among those forms, according to the text of the law, were “so-called cryptocurrencies and other methods that are computer, telecommunications, or internet-based” for cybercrime.
America’s defense and intelligence agencies, FinCEN in particular, pride themselves on the U.S. government’s ability to track and disrupt the illicit financial networks that work through traditional banks and finance channels.
This summer’s crackdowns on illicit Bitcoin activity has been considerable, but the dramatic surge in the currency’s overall value poses even more challenges.
WHAT IS A BITCOIN WORTH NOWADAYS?
Over the past month, Bitcoin prices are up more than 30 percent. According to the CoinDesk Bitcoin Price Index, a bitcoin traded for more than $3,000 — a record high — this past weekend.
The surge follows a spinoff another cryptocurrency, Bitcoin Cash. Anticipation of the spinoff sent bitcoin values spiraling last month as market analysts predicted a “civil war” with the rival. The opposite appears to have occurred with the spinoff driving up Bitcoin’s value. Market analysts say the value surge demonstrated bitcoin’s resiliency in addition to a growing public appetite for cryptocurrencies.
On Thursday, bitcoins traded at $3,439.55 per coin, driving the overall market value of all existing bitcoins to $56 billion. Adding Bitcoin’s overall value to other cryptocurrencies such as Ethereum and Litecoin and the total market capitalization of such digital cash is roughly $120 billion.
HOW DO WE RESPOND TO THE INCREASED USE OF CRYPTOCURRENCIES?
“The national security concern is not that criminals will use this type of technology — they use all technologies,” Mr. Fanusie said. “The policy question is: How do you deal with something that governments can’t control?” He said the U.S. needs to engage with the cryptocurrencies as much as possible and pointed to Defense Department procurement experiments already underway.
“Bitcoin is like a rebellious teenager,” he said. “It wants to do its own thing. So what do you do? Do you ban it? No, you want to have a good relationship with it and influence how it develops.”
BUILDING A CRIMINAL DEFENSE
Virtual currencies like Bitcoin can play a central role in more traditional types of crime. Bitcoin trading enables some types of unlawful purchases that may be serious offenses, such as illegal purchases of weapons or drugs. One such high-profile case is that of Silk Road’s alleged owner, Ross Ulbricht, whose Bitcoin assets of over $28 million were seized in a criminal investigation into alleged illegal drug sales.
Even ordinary cash has a history of being used for nefarious ends, but digital currency transactions can make the courtroom defense of criminal charges more complex. When facing the possibility of fines, forfeiture, or even incarceration, it is best to find an attorney with the experience it takes to build a nuanced, creative defense.
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.
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 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.
In State v. Olsen, the WA Supreme Court held that although random urinalysis tests (UAs) do implicate the privacy interests of a defendant who is on probation (probationer), the testing does not violate the defendant’s Constitutional rights if the UAs purpose was to monitor compliance with a valid probation condition requiring the defendant to refrain from drug and alcohol consumption.
The facts are undisputed. In June 2014, defendant Brittanie Olsen pleaded guilty in Jefferson County District Court to one count of DUI, a gross misdemeanor offense under RCW 46.61.502. The court imposed a sentence of 364 days of confinement with 334 days suspended. As a condition of her suspended sentence, the court ordered that Olsen not consume alcohol, marijuana, or non prescribed drugs. Over defense objection, the court also required Olsen to submit to “random urine analysis screens … to ensure compliance with conditions regarding the consumption of alcohol and controlled substances.”
The State appealed, and the Court of Appeals reversed, holding that “offenders on probation for DUI convictions do not have a privacy interest in preventing the random collection and testing of their urine when used to ensure compliance with a probation condition prohibiting the consumption of alcohol, marijuana, and/or non prescribed drugs.
The WA Supreme Court addressed the issue of whether random UAs ordered to monitor compliance with a valid probation condition not to consume drugs or alcohol violate a DUI probationer’s privacy interests under article I, section 7 of the Washington Constitution.
COURT’S CONCLUSIONS & ANALYSIS
The Supreme Court held that the random UAs here were conducted with “authority of law” under article I, section 7 of our state constitution. Furthermore, although random UAs of DUI probationers do implicate privacy interests, the UAs here are narrowly tailored and imposed to monitor compliance with a valid probation conditions.
The Court reasoned that The Washington State Constitution says that no person shall be disturbed in his private affairs, or his home invaded, without authority of law. One area of increased protection is the collection and testing of urine.
“Compared to the federal courts, we offer heightened protection for bodily functions,” said the Court. It elaborated that our courts have generally held that for ordinary citizens, suspicionless urinalysis testing constitutes a disturbance of one’s private affairs that, absent authority of law, violates the WA Constitution.
“On the other hand, we have repeatedly upheld blood or urine tests of prisoners, probationers, and parolees of some cases without explicitly conducting an analysis under the WA Constitution,” said the Court. It elaborated that two questions must be answered in cases like this: (1) whether the contested state action disturbed a person’s private affairs and, if so, (2) whether the action was undertaken with authority of law.
a. UAs Implicate a DUI Probationer’s Privacy Interests.
“We have consistently held that the nonconsensual removal of bodily fluids implicates privacy interests,” said the Court. It further stated that UAs implicate privacy interests in two ways. First, the act of providing a urine sample is fundamentally intrusive. This is particularly true where urine samples are collected under observation to ensure compliance. Second, chemical analysis of urine, like that of blood, can reveal a host of private medical facts about a person, including whether he or she is epileptic, pregnant, or diabetic. “These privacy interests are precisely what article I, section 7 is meant to protect.”
However, the Court also said that probationers do notenjoy constitutional privacy protection to the same degree as other citizens.
“Probationers have a reduced expectation of privacy because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls,” said the Court. Therefore, the State may supervise and scrutinize a probationer more closely than it may other citizens. “However, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.”
The Court then addressed the State’s argument that UAs do not implicate Olsen’s privacy interests because probationers lack any privacy interest in their urine.
“We disagree,” said the Court. “Even though misdemeanant probationers have a reduced expectation of privacy, this does not mean that they have no privacy rights at all in their bodily fluids.” After giving a detailed analysis under the precedent of State v. Surge, the Court summarized that, even though probationers do not enjoy the same expectation of
privacy as other citizens, the UAs here still implicate their reduced privacy
interests under the WA Constitution.
b. Random UAs of DUI Probationers Do Not Violate the WA Constitution Because They Are Conducted with Authority of Law.
Next, the Court addressed whether the UA was performed with authority of law. In short, the Court decided that issue in the affirmative. It said the State has a strong interest in supervising DUI probationers in order to promote rehabilitation and protect the public, and elaborated that probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments.
It elaborated that probation is not a right, but an act of judicial grace or lenience motivated in part by the hope that the offender will become rehabilitated. To that end, a sentencing court has great discretion to impose conditions and restrictions of probation to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.
“As such, the State has a compelling interest in closely monitoring probationers in order to promote their rehabilitation,” said the Court. “As probation officers’ role is rehabilitative rather than punitive in nature, they must, then, have tools at their disposal in order to accurately assess whether rehabilitation is taking place.” Here, in the case of DUI probationers, the Court reasoned that monitoring and supervision ensure that treatment is taking place and serve to protect the public in the case that a probationer fails to comply with court-imposed conditions.
The court further reasoned that random UAs are narrowly tailored to monitor compliance with probation conditions, they are an effective monitoring tool and they are a permissible under these circumstances:
“Unannounced testing is, arguably, crucial if a court is to impose drug testing at all. Random testing seeks to deter the probationer from consuming drugs or alcohol by putting her on notice that drug use can be discovered at any time. It also promotes rehabilitation and accountability by providing the probation officer with a ‘practical mechanism to determine whether rehabilitation is indeed taking place.'”
Finally, the WA Supreme Court reasoned that random UAs, under certain circumstances, are a constitutionally permissible form of close scrutiny of DUI probationers. It found that
the testing here was a narrowly tailored monitoring tool imposed pursuant to a valid prohibition on drug and alcohol use. Random UAs are also directly related to a probationer’s rehabilitation and supervision.
With that, the Court concluded that the random UAs here were conducted with “authority of law” under article I, section 7 of our state constitution and affirmed the Court of Appeals decision to invoke them.
On November 8, 2012, the court imposed a 24-month suspended sentence. The court ordered 24 months of supervised probation and imposed fines and fees totaling $1,808.
Also on November 8, 2012, the court issued a No-Contact Order. The
order form was captioned as a post conviction domestic violence No-Contact Order authorized by RCW 10.99.050. The order directed Granath not to threaten, stalk, harass, or contact her estranged husband or keep him under surveillance, and not to knowingly come within 500 feet of him, his residence, his school, or his workplace. The order warned, “Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest.”
Notably, the order form includes a blank space for the expiration date:
4. This no-contact order expires on: __________. Five years from today if no date is entered.
In Granath’s case, the district court did not enter a date in the blank, so by
default, the order was set to expire on November 8, 2017.
At any rate, the district court “closed the case” in December 2014 after Granath paid the fines. At this point, the no-contact condition of her sentence no longer remained in effect.
Granath moved to have the No-Contact Order vacated on the ground that it expired when she completed her sentence. However, the district court denied the motion. The court characterized a No-Contact Order issued under RCW 10.99.050 as a “stand-alone” order and found that such an order can “survive on its own” for a full five years even if the underlying sentence is completed earlier.
Granath appealed to King County Superior Court. The superior court
affirmed the lower court’s decision. The Court of Appeals granted Granath’s motion for review.
The legal issue was whether the legislature Intended to criminalize violation of a post conviction No-Contact Order entered as a condition of sentence if the violation is committed after that sentence has been served.
COURT’S ANALYSIS & CONCLUSIONS
The Court summarized the parties’ arguments. It acknowledged that Granath contends that under RCW 10.99.050(1), the no-contact order expires at the same time as the sentence containing the no-contact condition. In her case, that was in December 2014. The State, however, argues the No-Contact Order expires five years after the sentence was imposed.
Ultimately, the Court of Appeals took issue with the State’s argument. It said that the State’s idea that a No-Contact order may remain in effect for a ‘statutory maximum’ of some kind is not expressed in RCW 10.99.050; it is derived from State v. Armendariz. In that case, though, the maximum duration of the No-Contact order was derived from felony sentencing statutes, not from RCW 10.99.050.
The Court found that Granath was found guilty of a crime, she was sentenced, and a condition of the sentence restricted her contact with the victim. The district court was required by the statute to record the condition of the sentence as a no-contact order. However, once Granath completed her sentence and her case was closed, the No-Contact condition of sentence expired. The separate no-contact order expired at the same time. The district court erred by denying Granath’s motion to vacate the No-Contact Order.
“We conclude a no-contact order authorized by RCW 10.99.050(1) must reflect a no-contact condition of the sentence actually imposed. The No-contact order terminates when the no-contact condition of sentence terminates.”
With that, the Court of Appeals reversed the District Court’s ruling that the No-Contact Order in this case be preserved for 5 years.
Interesting article by Stephen Dinan of The Washington Times claims that a stunning 22 percent of the federal prison population is immigrants who have either already been deemed to be in the country illegally or who the government is looking to put in deportation proceedings, the administration said Tuesday.
All told, the government counted more than 42,000 aliens in federal prisons as of June 24. About 47 percent already face final deportation orders, making them illegal immigrants, and 3 percent are currently in immigration courts facing deportation proceedings.
Almost all of the rest are being probed by federal agents looking to deport them.
Immigrants who commit serious crimes, even if they once had legal status, can have that status revoked and can be subject to deportation, which explains the high number of cases where an alien is still being probed by U.S. Immigration and Customs Enforcement.
The U.S. Marshal Service, meanwhile, is holding about 12,000 “self-reporting” aliens, and almost all of them have already been ordered deported.
Government officials said they’re still trying to collect information on the foreign-born population in state and local prisons and jails.
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?
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.
“Experts are telling me there’s more violence around marijuana than one would think and there’s big money involved,” Sessions said.
In April, Sessions promised the task force would “undertake a review of existing policies in the areas of charging, sentencing and marijuana to ensure consistency with the department’s overall strategy on reducing violent crime.”
That was after Sessions told reporters in February that the nation was seeing “real violence” around the “unhealthy practice” of marijuana use, according to POLITICO.
According to Santos, however, Mr. Sessions’ statements run contrary to the experience in Washington state, which became one of the first two U.S. states to legalize recreational marijuana use for adults in 2012.
Since voters approved Initiative 502, FBI crime statistics show lower rates of violent crime in Washington than before legalization. According to the FBI data, in 2011 there were 295.6 violent offenses reported per 100,000 Washington residents. In 2015, the most recent full year of data available, that rate had fallen to 284.4 violent offenses per 100,000 people.
Other data compiled by the Washington Association of Sheriffs and Police Chiefs showed some fluctuations in violent crime rates but still found no statistically significant increase. According to those reports, in 2012 there were 3.6 violent offenses per 1,000 state residents. In 2016, the state’s violent crime rate was 3.3 offenses per 1,000 people.
Santos writes that the downturn in violent crime in Washington is consistent with national trends. A Pew Research Center analysis of the FBI data found that nationwide, the rate of reported violent crimes in 2015 was roughly half what it was in 1993.
Still, Washington’s violent crime rate in 2015 was substantially lower than the national rate, according to the FBI data.
Neither the FBI data nor the data from the Washington Association of Sheriffs and Police Chiefs specifically tracks violent crime that might be related to marijuana. A spokeswoman for the Tacoma Police Department said her agency doesn’t track offenses that way, either.
“In Washington state, I think it would be a strain to correlate violent crime with marijuana usage,” said Mitch Barker, the executive director of the sheriff and police chiefs group. “I would struggle to believe that the legalization of marijuana or more legalization relates to violent crime — somebody would have to make that case to me.”
State Rep. David Sawyer, D-Tacoma and the chairman of the House committee that deals with marijuana, said some state officials initially expected crime to go up with marijuana legalization, especially since the state’s weed stores run entirely on cash.
That didn’t happen, Sawyer said.
“As far as I’m aware there is no credible study linking violent crime and marijuana,” he said. “I think what more people are realizing is violent crime is linked to keeping marijuana illegal . . . In general, legalization takes money out of the hands of criminals,” he said, referring to drug cartels.
Rivers said she still thinks it would be too costly and difficult for the federal government to try rein in states that have legalized recreational and medical marijuana. According to the National Conference of State Legislatures, eight states plus Washington, D.C. have legalized recreational use of pot, while 29 states have legalized medical-marijuana use.
Yet in May, Sessions asked Congress to lift a restriction that prevents the Justice Department from using federal money to interfere with states that have legalized medical marijuana. Sessions called the restriction on federal prosecutions “unwise… particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime,” according to reports by Massroots.com and The Washington Post.
Sawyer said he remains concerned that Washington’s system could be at risk.
“I think it’s a very real possibility,” Sawyer said. “But we’re going to see what the administration chooses to do.”
VIOLENT CRIME RATES IN WASHINGTON STATE
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.
In State v. Weyand, the WA Supreme Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. Walking quickly while looking up and down the street at 2:40 a.m. is an innocuous act, which cannot justify intruding into people’s private affairs.
On December 22, 2012, at 2:40 in the morning, Corporal Bryce Henry saw a car parked near 95 Cullum Avenue in Richland, Washington, that had not been there 20 minutes prior. The area is known for extensive drug history. Corporal Henry did not recognize the car and ran the license plate through an I/LEADS (Intergraph Law Enforcement Automated System) database. However, that license plate search revealed nothing of consequence about the vehicle or its registered owner.
After parking his car, Corporal Henry saw Weyand and another male leave 95 Cullum. As the men walked quickly toward the car, they looked up and down the street. The driver looked around once more before getting into the car. Weyand got into the passenger seat. Based on these observations and Corporal Henry’s knowledge of the extensive drug history at 95 Cullum, he conducted a Terry stop of the car.
After stopping Weyand, Corporal Henry observed that Weyand’s eyes were red and glassy and his pupils were constricted. Corporal Henry is a drug recognition expert and believed that Weyand was under the influence of a narcotic. When Corporal Henry ran Weyand’ s name, he discovered an outstanding warrant and arrested Weyand. Corporal Henry searched Weyand incident to that arrest and found a capped syringe. Corporal Henry advised Weyand of his Miranda3 rights, and Weyand admitted that the substance in the syringe was heroin that he had bought from a resident inside 95 Cullum.
After the hearing, the court concluded that the seizure was a lawful investigative stop. According to the court, Corporal Henry had reasonable suspicion to believe that Weyand was involved in criminal activity. The court found Weyand’s case distinct from State v. Doughty, because in this case there was actual evidence of drug activity at, as well as known drug users frequenting, 95 Cullum.
The court additionally found that Weyand knowingly, intelligently, and voluntarily waived his Miranda rights; thus, all post-Miranda statements were admissible at trial. Weyand waived his right to a jury trial and agreed to submit the case to a stipulated facts trial. Finding that Weyand possessed a loaded syringe that contained heroin, the court found Weyand guilty of unlawful possession of a controlled substance.
Weyand appealed, and the Court of Appeals affirmed the conviction. It reasoned that the totality of the circumstances, coupled with the officer’s training and experience, showed that the officer had a reasonable, articulable suspicion that justified the stop. Those circumstances included “the long history of drug activity at 95 Cullum, the time of night, the 20 minute stop at the house, the brisk walking, and the glances up and down the street.”
Whether the specific facts that led to the Terry stop would lead an objective person to form a reasonable suspicion that Weyand was engaged in criminal activity.
COURT’S ANALYSIS & CONCLUSIONS
The Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. It reasoned that under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant. There are, however, a few carefully drawn exceptions to the warrant requirement. The State bears the burden to show that a warrantless search or seizure falls into one of the narrowly drawn exceptions.
One of these exceptions is the Terry investigative stop. The Terry exception allows an officer to briefly detain a person for questioning, without a warrant, if the officer has reasonable suspicion that the person is or is about to be engaged in criminal activity. An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk.
The Court found that the totality of the circumstances did not justify a warrantless seizure. It reasoned that in order to conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop. To evaluate the reasonableness of the officer’s suspicion, Courts look at the totality of the circumstances known to the officer. The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty. The suspicion must be individualized to the person being stopped.
“Here, the trial court’s decision rested primarily on evidence that 95 Cullum was a
known drug location,” said the Court. “However, Corporal Henry did not observe current activity that would lead a reasonable observer to believe that criminal activity was taking place or about to take place in the residence.”
Also, the Court reasoned that reliance on ‘furtive movements’ as the basis for a Terry stop can be problematic. “Case law has not precisely defined such movements, and courts too often accept the label without questioning the breadth of the term.” It explained that ‘furtive movements’ are vague generalizations of what might be perceived as suspicious activity which does not provide a legal ( or factual) basis for a Terry stop.”
The Court quoted Judge Richard Posner in recognizing that “furtive movements,” standing alone, are a vague and unreliable indicator of criminality:
“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”
With that, the WA Supreme Court reasoned that simply labeling a suspect’s action a “furtive movement,” without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop. Furthermore, reasoned the Court, police cannot justify a suspicion of criminal conduct based only on a person’s location in a high crime area:
“It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation.”
Consequently, the WA Supreme Court reversed the Court of Appeals and hold that walking quickly and looking around, even after leaving a house with extensive drug history at 2:40 in the morning, is not enough to create a reasonable, articulable suspicion of criminal activity justifying a Terry stop.
My opinion? Excellent decision. I’m very impressed the Court addressed the term “furtive movements” and put it in perspective. Law enforcement officers regularly use this catch-phrase to describe suspicious behavior allowing them stop/search/seize people. Although officer safety is a primary concern and a very good reason to search people who are already in police custody and making “furtive movements” in the presence of officers, it cannot be a basis for stopping and searching people who are simply going about their business walking down the street. Great decision.
One evening in 2013, two intoxicated groups crossed paths on a Bellingham sidewalk. United States Navy sailor Lile (the Defendant) and his companions were walking in one direction on the sidewalk and another group moved toward them in the opposite direction. Lile’s group had recently left a party in which Lile had admittedly consumed alcohol over a period of about five hours.
Unfortunately, Mr. Lile’s group had negative interactions with the other group of individuals. This resulted in Liles being striking someone in the face, fracturing their jaw, knocking out some teeth, concussing the victim and rendering them briefly unconscious. Lile was pulled away by one of his companions. A nearby police officer witnessed the fracas and approached Lile, who ran away.
The matter was set for a January 22, 2014 pretrial status hearing. During the hearing, the judge orally granted a 1-week continuance, issuing a written order to that effect February 3, 2014.
On February 4, 2014, Lile’s attorney submitted a motion to sever, asking the court to order separate trials for Lile’s alleged assaults on Millman and Rowles from his assault on Officer Woodward.
During the February 6, 2014 status hearing, before Judge Uhrig ruled on the motion to sever, Lile’s attorney informed Judge Uhrig that Lile had filed an affidavit of prejudice against him.
Affidavit of Prejudice
For those who don’t know, an affidavit of prejudice (AOP) is a statutory pleading/device which gives either the Prosecutor of the Defense Attorney opportunity to dismiss/excuse a particular judge from deciding any issues on a pending criminal case. The AOP must be filed as soon as possible; preferably before the particular judge decides any issues on the case. Typically, AOP’s are not honored if they are filed after the judge has already made discretionary rulings on the case.
The Prosecutor asserted the affidavit was not timely because the judge’s ruling on the January 22, 2014 continuance motion preceded the affidavit and was discretionary. The judge agreed with the Prosecutor, indicating that the continuance ruling was indeed discretionary; as he had denied such requests in the past. As a result, he ruled the AOP untimely. He then denied Lile’s motion to sever. Lile did not later renew the motion to sever, an option provided by CrR 4.4(a)(2).
Months later, Lile’s case proceeded to jury trial, where a different judge handled the proceedings. Lile was convicted on all charges. Lile appealed to the WA Court of Appeals on a number of issues, however, the Court of Appeals affirmed his conviction. Afterward, Lile appealed to the WA Supreme Court.
For purposes of this blog entry, we focus on the issue of whether the joint continuance motion was discretionary, making Lile’ s affidavit of prejudice untimely and leaving the original judge qualified to hear the motion to sever.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court decided that a ruling to continue a case is, in fact, a discretionary ruling. For those who don’t know, a discretionary ruling is an official, substantive decision from the judge using reason and judgment to choose from among acceptable alternatives.
The court reasoned that under an AOP, a party has the right to disqualify a trial judge for prejudice, without substantiating the claim, if the requirements of the statute are met. The statute says, “no Judge of a superior court … shall sit to hear or try any action or proceeding when it shall be established … that said judge is prejudiced against any party or attorney.”
To establish prejudice, a party can file a motion supported by an affidavit indicating
that the party cannot, or believes that it cannot, have a fair and impartial trial before
such judge. In order to be timely, however, an AOP must be made ‘before the judge presiding has made any order or ruling involving discretion. The statute also provides that the arrangement of the calendar, the setting of an action, motion or proceeding down for hearing or trial, the arraignment of the accused in a criminal action or the fixing of bail shall not be construed as a ruling or order involving discretion.
The Court reasoned that a trial court’s ruling on an opposed continuance is discretionary because the court must consider various factors; such as diligence, materiality, due process, a need for orderly procedure, and the possible impact of the result on the trial.
Furthermore, the WA Supreme Court held that the judge’s continuance ruling was discretionary. It reasoned that continuances, even when unopposed, have a significant impact on the efficient operation of our courts and the rights of the parties, particularly in criminal proceedings. Correspondingly, CrR 3 .3(h) gives trial courts discretion in granting them. Here, the continuance ruling here impacted the “duties and functions of the court, and therefore involved discretion.
In conclusion, the WA Supreme Court held that the judge’s continuance ruling was discretionary; which made him qualified to rule on Lile’ s severance motion.
JUDGE MADSEN’S CONCURRING OPINION
Although Judge Madsen concurred with the opinion, her reasoning differed. She did, in fact, find that the judge did not make a discretionary ruling when granting the continuance.
She reasoned that whether an order is discretionary is not about the form of the motion, but about whether there was something substantive related to the case underlying the motion.
“In the present case, I would find that the continuance ruling was not discretionary for purposes of RCW 4.12.050 because the court’s ruling indicated no predisposition on the issues in the case,” she said. She elaborated that, admittedly, granting or denying a motion necessarily involves some type of discretion, but the same is true of the other preliminary matters that the majority distinguishes. “Arranging the calendar, setting a matter for hearing or trial, arraigning an accused, and setting an amount for bail are all discretionary acts in the sense that the judge has the general freedom to make those decisions,” she said. However, the legislature has dictated that these acts will not be construed as rulings involving discretion within the meaning of RCW 4.12.050(1).
“The same is true of the agreed continuance in this case. The motion occurred pretrial and was unopposed. It was a calendaring matter, not a substantive ruling on an issue in the case.”
With that, Judge Madsen held that the judge erred in denying Lile’ s affidavit of prejudice.
My opinion? I must agree with Judge Madsen’s concurrence. Like her, I believe that arranging the calendar, setting a matter for hearing or trial, arraigning an accused, and setting an amount for bail can be seen as discretionary, however, the legislature has dictated that these acts will not be construed as rulings involving discretion within the meaning of the statute.
At any rate, the Court’s decision in this case highlights the fact that AOP’s must be filed by Defense Counsel as soon as possible.