Monthly Archives: November 2010

The Sentencing Project Releases New Publication on Prison Deterrence

Good reading!  The report addresses a key concern for policy makers regarding whether deterrence is better achieved by increasing the (1) likelihood of apprehension, or (2) severity of sanctions.  The report, titled Deterrence in Criminal Justice: Evaluating certainty vs. the Severity of Criminal Punishment is written  is written by Valerie Wright, PhD.

Overall, the report concludes that:

•    Enhancing the certainty of punishment is far more likely to produce deterrent effects than increasing the severity of punishment.

•    There is no significant public safety benefit to increasing the severity of sentences by imposing longer prison terms, particularly at high levels of incarceration.

•    Policies such as “three strikes and you’re out” and mandatory minimum sentences only burden state budgets without increasing public safety.

•    Evidence-based approaches would require increasing the certainty of punishment by improving the likelihood of detection.

My opinion?  The report seems accurate.  I’ve blogged numerous times on this topic, particilarly the need for the criminal justice system to seek rehabilitation instead of incarceration for many crimes, especially drug crimes.  At a time when fiscal concerns have propelled policymakers to consider means of controlling corrections budgets, the findings on deterrence suggest that a focus on examining harsh sentencing practices is long overdue.

State v. Hirschfelder: Sexual Relations Between a Student and a School Employee

Interesting opinion.  In short, the term “minor” includes students between the ages of 18 and 21, rather than just those under 18.

Here, defendant Matthew Hirschfelder was  employed as a choir  teacher at Hoquiam High School.  He had sexual intercourse in his office with a member of the high school choir, A.N.T., several days prior to her graduation in 2006.   At the time, Hirschfelder was 33 and A.N.T. was 18.  Hirschfelder was charged with sexual misconduct with a minor in the first degree under former RCW 9A.44.093(1)(b).   That statute provided in relevant part:

A person is guilty of sexual misconduct with a minor in the first degree
when:  . . . the person is a school employee who has, or knowingly causes
another person under the age of eighteen to have, sexual intercourse with a
registered student of the school who is at least sixteen years old and not
married to the employee, if the employee is at least sixty months older than
the student.

The case made its way to the WA Supremes.  They reasoned the statute was not ambiguous in its meaning.  They also stated that several sexual misconduct  laws focus on the special  relationship between a perpetrator and a victim, even where the victim is over 18 or even 21.  “For example, we criminalize sex with vulnerable adults or adults over whom the perpetrator has supervisory authority, RCW 9A.44.050, and sex between employees of custodial institutions and those in custody.  RCW 9A.44.160.   That the legislature saw fit to criminalize sex between school employees and high school students — even those who reach the age of majority while registered as students — is a policy choice that recognizes the special position of trust and authority teachers hold over their students.”

Justice Johnson, is his dissenting opinion, stated the statute “should not criminalize conduct between two consenting adults where the legislature has expressly provided otherwise.”  He also stated the former statute did not criminalize sexual intercourse between a school employee and an 18-year-old adult student.

Like I said, interesting . . .

Bellingham Council Decides To Adopt Cameras Without a Public Hearing

The plot thickens.

City Council members have decided they want to install red-light and speed-zone cameras, and they won’t hold a public hearing before voting on them, the council president said.

The decision reverses the council’s 6-0 vote on Sept. 27 to hold a hearing on the topic.

The council decided there was no point in going through the “charade” of a public hearing if it was set on approving it anyway, he said. The council’s No. 1 goal is public safety, and members have already heard from the police department, which wants the cameras.

A crash recently killed a little girl near a school, and the city has had other crashes in school zones, Knutson said. Red-light running has long been a problem here, he said.

“We have not heard a lot about this issue from our citizens,” he said. “We’ve been getting bombarded by Tim Eyman and his crew.”

Political personality Tim Eyman is an anti-tax activist who also fights agsint red-light cameras.  He blasted the city’s decision to skip a public hearing.

“That is so sleazy,” Eyman said. “And they wonder why people distrust government. My gosh. They wonder why our initiatives are so popular.  This is just socialistic. This is authoritarian, dictator-type of decision making that doesn’t even give the imaginary illusions of public input,” Eyman said. “You’ve got to admire the audacity of it, it’s just ‘Who cares what the citizens think?'”

My opinion?  I must agree with Eyman.  True, there is no “on-point” legal precedent stating a public hearing is legally required for decisions like this.  However, when a city council has made up its mind, it will usually hold a hearing to at least give the impression it’s being open-minded.  There are deeper reasons for the lack of public hearing.  First, the recent death of the young girl who was struck by a car near Bellingham High School probably prompted a greater public outcry FOR traffic cameras than AGAINST cameras.  Second, the City sees these cameras generating revenue for City coffers.

Being a staunch supporter of due process, I nevertheless believe the City Council should have adopted a hearing on the subject.  Trust me, Government fails when it skips steps and avoids processes.


State v. Werner: Who Let The Dogs Out?

Good case.

A defendant is entitled to a jury instruction on self-defense in the prosecution for first degree assault after accidentally discharging a firearm when confronted by a neighbor’s pack of dangerous dogs.

“Victim” Daniel Barnes moved to the property next door to to defendant Gary Werner. Almost immediately, Werner and Barnes  began an ongoing property dispute concerning a shared easement.  Barnes kept seven dogs on Barnes’s property, including a Rottweiler and pit bulls. At least  three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs.

The property dispute  intensified.  On the day of the incident, Werner was on his property in the easement area when one of Barnes’s pit bulls approached him, baring its teeth. Werner noticed six other dogs with the pit bull, including the Rottweiler and other pit bulls.  The dogs started circling Werner.  He pulled out his pistol, thinking he could scare the dogs, and started yelling for Barnes to call off the dogs.  Werner panicked and called 911 on his cell phone, but due to his arthritis, the gun went off, discharging into the ground.  The police were contacted.

The State charged Werner with Assault First Degree and Malicious Harassment. The jury acquitted him of the Malicious Harassment charge but found him guilty of Assault First Degree.  He appealed.  The case ended up before the WA Supremes.

The Court reviewed the law on self-defense.  “To prove self-defense, there must be evidence that (1) the
defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted).

The Court reasoned that here, Werner stated that he was afraid. That fear was arguably reasonable, given that he was facing seven snarling dogs, including several pit bulls and a Rottweiler.  Pursuant to State v. Hoeldt, 139 Wn. App. 225, 160 P.3d 55 (2007), a pit bull can be a deadly weapon under RCW 9A.04.110(6). There is evidence that Barnes’s friend refused requests to call off the dogs. By that conduct, Werner could reasonably have believed that Barnes’s friend personally posed a threat through the agency of a formidable group of canines that were under his control.

As to the firing of the weapon, the WA Supremes beleived Werner’s accounting that it was an accident.  They found sufficient evidence of both accident and self-defense to warrant instructing the jury on self-defense.  “Since the outcome turns on which version of events the jury believed, the failure to give a self-defense instruction prejudiced Werner.” Accordingly, the WA Supremes reversed Werner’s conviction.

My opinion?  Good decision.  A pack of wild dogs surrounding and growling at you definitley warrants self-defense.  That’s a no-brainer!  The “victim” is lucky none of his dogs were killed.

State v. Garcia-Salgado: DNA Swab is Unlawful if State Lacks Warrant Supported By Probable Cause

WA Supremes hold that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.

Petitioner Alejandro Garcia-Salgado was convicted of rape in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial.  He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights.  The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A.  Garcia-Salgado appealed this decision to the Supreme Court of Washington.

The Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body.  A search that intrudes into the body may be made  pursuant  to  an order entered under  CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a  reasonable manner.

Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause.  “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA.  We reverse the Court of Appeals and remand.”

My opinion?  Heinous as the crime was, the WA Supremes decided correctly.  Defendants have rights, plain and simple.  The criminal justice system must conduct investigations in accordance with these rights.  If the process is shortcutted or made sloppy, then convictions cannot stand.  Here, the State failed to get a warrant for the DNA swab.  Consequently, they should not be allowed to present the DNA evidence at trial.  Good opinion.