Great article by Lizzie Crocker of the Daily Beast says that reports of sexual assault on college campuses have surged dramatically in the past 15 years, according to a new federal study, while all other reported on-campus crimes have decreased.
Importantly, Crocker acknowledges that the 205 percent increase in reports of sexual assault — from 2,200 in 2001 to 6,700 in 2014 — does not necessarily confirm the campus rape epidemic narrative perpetuated by high profile cases like that of convicted rapist Brock Turner and Alec Cook, who was recently expelled from the University of Wisconsin after being charged with sexually assaulting multiple women.
In fact, the Education Department’s new study may indicate progress in combating the stigma of silence around sexual assault on college campuses.
Conducted by the National Center for Education Statistics and the Justice Department, the new study looked at data collected under the Clery Act, a law which requires colleges and universities to report to the federal government all sex crimes on or adjacent to campus that are reported to school authorities.
Crocker reports that because sexual assault is one of the most underreported crimes, some advocates say that these figures likely underestimate the prevalence of sexual assault on campus.
“They’re similar to law enforcement statistics on sex offenses in that they’re not an accurate representation of the magnitude of the problem,” said Christopher Krebs, lead author of the National Institute of Justice’s’ 2007 Campus Sexual Assault Study—the source of the widely cited “one in five” figure that has since been challenged. (Krebs himself has previously said that the number is “not a nationally representative statistic.”)
Krebs has since co-authored the Campus Climate Survey Validation Study (CCSVS), which surveyed 23,000 students at nine colleges from 2014 to 2015 and compared their findings to Clery Act data. Released last January, the study found that participants reported 2,380 rapes compared to the 40 rapes reported under the Clery Act by the same nine schools during that 2014-2015 period.
“770 of these rapes occurred on campus, and only 160 of them were reported to authorities who would have been required to report them under the Clery Act,” said Krebs.
Crocker reports that when weighing their data against Clery Act requirements, which only counts reported rapes that occured on or adjacent to campuses, the CCVS survey counted only 60 rapes—not a significant difference from the 40 rapes reported by the nine schools in Clery Act data.
According to Krebs, the discrepancy between the 2,380 rapes reported by CCVS survey participants at nine schools and the 40 rapes reported under the Clery Act by those schools shows that the law’s standards are too narrow.
“To fully grasp the prevalence of campus sexual assault, you need survey data that are collected in a reliable and methodologically rigorous manner,” he said.
“We’ve always emphasized that zero is a red flag, and we know that the reported incidents are just the tip of the iceberg,” said Anne Hedgepeth, the AAUW’s government relations manager. “Schools are out of touch with reality if they continue to claim that they have no sexual violence on their campuses,” she added. “It simply doesn’t square with a lot of research on campus sexual assault.”
Still, Hedgepath emphasized that the increased reports of sexual assault in the latest Education Department study—which included “fondling” in its definition of sexual assault for data collected between 2014 and 2015—suggests victims feel increasingly safer reporting campus sexual assault.
“There may still be a lot of ‘zero incidents’ on college campuses, but it’s a positive thing that more students are coming forward to report their assaults,” she said.
Crocker reports that both Hedgepath and Krebs stressed that climate surveys about campus sexual assault conducted by universities (or looking closely at specific universities) can shed light on the most effective methods of combat sexual violence within those communities.
“Asking students about their experiences can show schools where their Clery Act numbers may be falling short on what’s really happening on their campuses,” said Hedgepath Indeed, sexual assault statistics vary across universities just as they vary across in cities across the country. According to federal data, Brown University
“It’s really easy for media outlets to pick a number like the ‘one in five’ statistic” as indicative of campus sexual assault on a national scale, said Krebs. But that figure differs from school to school.
“Universities need to understand sexual assault in their individual communities to adequately address it, and rigorous survey data are the only thing that accurately reflect the scope of the problem.”
My opinion? Rape is awful. Our college youth who experiment with drugs and alcohol unknowingly create a party atmosphere which can lead to sexual assaults. Fortunately, colleges know that educating students is the most important steps toward prevention. If you, a friend or family member are accused of sexual assault, then immediately contact an experienced criminal defense attorney. Chances are, the matter is being investigated by police. Hiring experienced counsel can preserve your rights and ensure your defenses in the face of these terrible accusations.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In State v. McClure, the WA Court of Appeals held that extortion was satisfied by evidence that the defendant attempted to obtain valuable intangible property – a promise from the victim that he would not pursue criminal charges or a civil remedy against the defendant for the damaged property.
BACKGROUND FACTS
In late 2013, Williams and McClure entered into an agreement under which McClure would reside in a double wide trailer Williams owned that needed repairs. McClure would perform the repairs. In return, he would live in the trailer rent free for one year and then he would start paying rent. After a year, Williams contacted McClure and told him that if he did not pay rent, Williams would evict him.
McClure responded by threatening to destroy the trailer if Williams evicted him.
McClure did not pay his rent and Williams began the eviction process. Williams visited
the trailer on the day McClure was to be evicted and discovered that the sliding glass door, the front door, the kitchen cabinets, and the wood stove had been removed. In addition, pipes were ripped out of the ceiling and electrical lines had been cut. Williams contacted the sheriff.
A few days later, Williams returned to the trailer and observed people on the property who were removing siding, electrical wire, plumbing, appliances, and fixtures from the trailer and portions of his shed. A deputy sheriff informed Williams that someone had taken out a Craigslist ad inviting people onto the property to take what they wanted. Williams sent a text message to McClure asking him to remove the ad. McClure texted a response:
“I will pull the ads if you take a letter . . . signed and notarized by both you and Lisa (Williams’ wife) that will not allow any charges to be placed against me or my wife for
anything related to the property. I don’t need the hassle. I will also not have the signs placed that I made for the same purpose.” After Williams again asked McClure to remove the ad, McClure texted, “A simple letter will take you 15 minutes and it will be done.”
McClure appeals only his first degree extortion conviction on the issue of whether that “promise” sought by the defendant constituted valuable intangible “property” supporting an extortion conviction or merely involved coercion under RCW 9A.36.070 – Williams abstaining from conduct that he had the legal right to engage in.
ANALYSIS & CONCLUSIONS
The Court of Appeals reasoned that under RCW 9A.56.120(1), a person is guilty of first degree extortion if that person commits “extortion” by means of specific types of threats. “Extortion” means “knowingly to obtain or attempt to obtain by threat property or services of the owner.” “Property” means “anything of value, whether tangible or intangible, real or personal.”
It further reasoned that McClure clearly was seeking a promise to not pursue criminal charges for a crime that involved financial loss to Williams – the cost of repairing damaged property. As a victim of a crime under RCW 9.94A.753(5), Williams would have the ability to receive restitution in a criminal proceeding for the property damage McClure caused.
“This ability to receive restitution for property damage had value to Williams,” reasoned the Court of Appeals.
Furthermore, McClure also arguably was seeking a promise not to pursue any civil remedy for the property damage McClure caused. That is how Williams interpreted the threat. He testified that McClure demanded Williams’ agreement “not to hold me responsible or press any charges for the damage that was done to your property.”
Finally, the Court of Appeals reasoned that this ability to hold McClure responsible for the property damage in a civil lawsuit had value to Williams:
“A reasonable jury could have inferred from the evidence that McClure was attempting to obtain something intangible that had value – Williams’ promise not to pursue compensation for the property damage that McClure caused.”
Accordingly, the Court of Appeals held that the State presented sufficient evidence to support McClure’s conviction for first degree extortion.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
Last week, Gov. Jay Inslee and State Attorney General Bob Ferguson both drafted a letter saying Sessions recently made many allegations that are outdated, incorrect, or based on incomplete information. Later, key lawmakers involved with setting the state’s marijuana policy — including two Republicans — followed up with their own letter. They, too, said Sessions is off base.
Sessions claims this report raises serious questions about the efficacy of marijuana ‘regulatory structures’ in Washington State. Here are some of Sessions’ key assertions that Washington state officials are disputing and why.
CLAIM #1: LEGAL MARIJUANA LABS ARE EXPLODING – LITERALLY.
According to Inslee and Ferguson, Sessions’ repeatedly fails to distinguish between marijuana activity that is legal and illegal under state law.
“Instead, it conflates the two in a manner that implies that state-legal marijuana activity is responsible for harm actually caused by illegal marijuana activity,” Inslee and Ferguson wrote. One example is when Sessions cites 17 explosions at THC extraction labs in Washington state. (THC, short for tetrahydrocannabinol, is the psychoactive ingredient in marijuana.)
“…None of these explosions were at labs operating legally under state license,” Inslee’s and Ferguson’s letter says. “In the history of our licensing system, no legal extraction lab has ever had an explosion.”
CLAIM #2: WASHINGTON STATE IS ALLOWING A BLACK MARKET TO THRIVE.
Inslee and Ferguson cite similar problems with Sessions’ assertion that marijuana from Washington has been diverted to 43 other states. They say that statistic covers years before Washington’s recreational sales began “and reveals nothing about whether the sources of the marijuana were legal or illegal.”
Rivers, Sawyer, Keiser and Condotta add that Sessions is ignoring the effects of the state’s move in 2016 to eliminate unlicensed medical-marijuana dispensaries in Washington state, as well as to start carefully tracking medical marijuana. The 2016 report that Sessions cited about the state’s marijuana market came out before those reforms went into effect.
CLAIM #3: YOUTH USE OF MARIJUANA HAS INCREASED.
In short, the lawmakers say the notion that minors’ marijuana use increased after legalization is inconsistent with the available facts. As evidence, the lawmakers cite the state’s 2016 Healthy Youth Survey, which found that rates of teen marijuana use have remained steady despite the legalization of marijuana in 2012. The lawmakers also say that marijuana businesses have better rates of complying with laws banning sales to minors than businesses that sell liquor.
CLAIM #4: MOST DRIVERS DON’T THINK MARIJUANA IMPAIRS THEM.
Here, Sessions had cited a statistic that 61.9 percent of drivers do not believe marijuana makes a difference in their driving ability. However, the study that Sessions references doesn’t actually say that. Instead, it found that 97 out of 893 drivers surveyed reported having previously used marijuana within 2 hours of driving. While 61.9 percent of that group said marijuana didn’t hinder their driving ability, that number reflected only 6.7 percent of all the 893 drivers surveyed.
CLAIM #5: YOU CAN COMPARE VEHICLE CRASH RATES BEFORE AND AFTER LEGALIZATION.
Inslee and Ferguson disagree with Sessions’ assertion that driving while under the influence of marijuana has increased in Washington state since marijuana legalization. Those statistics aren’t reliable, Inslee and Ferguson say, because testing for THC during DUI stops used to be much rarer.
“Prior to marijuana legalization, blood testing for THC at suspected DUI traffic stops was substantially less common,” Inslee and Ferguson’s letter reads. “Consequently, comparable statistics do not exist.”
My opinion? Misinformation and exaggeration are tools used by many who rail against Washington’s legalization of marijuana. Hopefully, the current administration won’t take any adverse actions such as conducting federal investigations and/or prosecutions of citizens in Washington state who ingest marijuana. And hopefully, other states also legalize. Perhaps some momentum in that direction would persuade the feds to not be so aggressive in demonizing and outlawing marijuana.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
Wonderful article by Brian Alexander of The Atlantic claims that private companies have much to gain from installing and maintaining video technology connecting inmates with visitors.
VIDEO CHAT TECHNOLOGY
Over the past decade, many prisons have outsourced video chat the systems to private corporations, often as part of a package that includes phone services. As of 2014, according to a report by the nonprofit Prison Policy Initiative, over 500 jails and prisons in 43 states had adopted video visitation.
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.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
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.
BACKGROUND ON BITCOIN
For those who don’t know, Bitcoin is a worldwide cryptocurrency and digital payment systeminvented by an unknown programmer, or a group of programmers, under the name Satoshi Nakamoto. It was released as open-source software in 2009. The system is peer-to-peer, and transactions take place between users directly, without an intermediary. These transactions are verified by network nodes and recorded in a public distributed ledger called a blockchain. Since the system works without a central repository or single administrator, bitcoin is called the first decentralized digital currency.
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.
“Just as new computer technologies continue to change the way we engage each other and experience the world, so too will criminals subvert these new technologies to serve their own nefarious purposes,” Brian Stretch, U.S. attorney for the Northern District of California, said about BTC-e.
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?
Yaya Fanusie, a former counterterrorism analyst for the CIA, is credited with identifying the first verifiable instance of a terrorist organization attempting to use bitcoin to raise funds. He now runs analysis for the Center on Sanctions and Illicit Finance at the Foundation for Defense of Democracies and told The Washington Times in an interview that the increased volume of bitcoin trading in itself is not the concern.
“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.
Unfortunately, Identity Theft can play a part of these cryptocurrency transactions.
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.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
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.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
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.
BACKGROUND FACTS
The facts are undisputed. In June 2014, defendant Brittanie Olsen pleaded guilty in Jefferson County District Court to one count of DUI. 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.”
Olsen appealed to Jefferson County Superior Court, arguing that the random UAs requirement violated her privacy rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. She contended a warrantless search of a misdemeanant probationer may not be random but instead “must be supported by a well-founded suspicion that the probationer has violated a condition of her sentence.” The court agreed, vacated Olsen’s sentence, and remanded to the district court for resentencing without the requirement that Olsen submit to random urine tests.
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.
ISSUE
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.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In State v. Granath, the WA Court of Appeals held that the lower court erred by refusing to lift a post-conviction No-Contact Order when the defendant fulfilled all the conditions of her sentence.
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.
ISSUE
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 State fails to come to grips with the plain language of RCW 10.99.050(1),” said the Court. It also criticized the State’s arguments as wrongfully interpreted policy arguments under LAWS OF 1979, 1st Ex. Sess., ch. 105, § 1; RCW 10.99.010.
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.
My opinion? Good decision.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
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.
President Trump requested the numbers as part of his initial immigration executive orders. The 22 percent is much higher than the population of foreign-born in the U.S. as a whole, which is about 13.5 percent.
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.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
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 diversion somehow 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.
My opinion? Excellent article, and excellent book by Mr. Kelly.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
