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Leniency Lunacy: Atlanta’s CBS News Tackles Recidivism, Judicial “Discretion,” and Fulton County Prosecutors Going Easy on Repeat Offenders

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Hat tip to Paul Kersey:

Atlanta CBS News Investigative Reporter Joanna Massey dissects the problems in the courts.  This is thoughtful reporting (here is part 2), and hopefully there will be follow-up on points raised by the story, such as:

  • Why is it that county prosecutors do not so much as try to enforce Georgia’s recidivism laws?  The prosecutor in the story tells the reporter that she uses her discretion in every case.  Well, if discretion means someone who has been arrested 69 times and accused of multiple violent crimes gets released back onto the streets again, then maybe discretion needs to be taken out of the hands of the Fulton County D.A.’s office in the form of a real recidivism law for Georgia.
  • Why, for that matter, don’t prosecutors have the mindset of seeking to impose the recidivism law in every possible case?  All victims deserve to be treated equally.  The law should be applied evenly.  Allowing criminals to get away with crimes inevitably tells them — especially impressionable juveniles and the mentally ill — that there will be no consequences for their actions.  Anybody who has lived with a three-year old knows the consequences of that.  The ethical culture of the D.A.’s office needs to change.
  • We’re not doing criminals any favors by letting them get away with — well, escalating patterns of violence until they get sent away for life.  Ricky Love, the offender profiled in the news story, does not appear to have a state prison record.  If that is true, it means that exactly none of his 69 arrests or multiple convictions got him state time — not robbery, not assault.  In other words, somebody in the D.A.’s office, the courts, or both, dropped the ball 69 times in a row.
  • What political motive lies behind Paul Howard continually insisting that his office does not need more resources?  Who is he trying to appease by saying that, when it is so obviously false?  The prosecutor in the news story appears to have been told not to acknowledge that her caseload prevents her from examining every defendant’s full record.  She sure looks caught out when she says:  “You deal with the facts that you have on that day, on that case, and you make a judgment call.”  The city needs more prosecutors, of course, if prosecutors don’t even have the resources to know who they are convicting.
  • Why did Judge Craig Schwall agree to release this offender?  He can pass the ball to the prosecutors, but he has discretion, too.  Every time I watch a judge suddenly getting tough on an offender, it reminds me of all the times they didn’t do it when nobody was watching.  There needs to be new standards for judging judges at election time, something a little more judgmental than “check incumbent box.”
  • And that will require information.  Data.  A new transparency at the Fulton County Clerk of Court’s office.  Why has nobody filed impeachment papers on Fulton Clerk Cathelene Robinson?  She is standing in the way of the residents of Atlanta gaining access to the records of criminal convictions, pleas, and non-prosecutions, records they will need to see in order to understand what is happening in the courts.  How to reform the dysfunctional Fulton Clerk of Court’s office?  The state body overseeing them is the Georgia Superior Court Clerk’s Cooperative Authority (GSCCCA).  More on this later…
  • Atlanta could easily take a page from Houston County, located in the center of the state.  The Houston County District Attorney provides immediate web access to all case events and sentencing outcomes, so people there can see precisely what the DA’s office is doing at every phase of a prosecution.  What would it cost to post these records in Fulton?  They must be databasing them internally, right?  People have a right to know what their prosecutor’s office is doing.
  • The Court Watch volunteers are heroes.  The Court Watch program in Atlanta needs to grow.  And while Paul Howard deserves a lot of credit for creating a court-watching program in conjunction with his office, I hope the Atlanta Court Watchers will also branch out and grow into an independent organization.  It is important to witness those cases where the nobody invites you to watch, too.

Murder by Anti-Incerceration Activism

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From a City Journal article by Heather Mac Donald.  How the murder of 17-year old Lily Burk could have been prevented:

The recent arrest of a vicious murderer in Los Angeles vindicates—tragically, only after-the-fact—several policing and sentencing policies that anti-law-enforcement advocates have fought for years. . .

On July 24 at around 3 pm., 17-year-old Lily Burk was walking down a midtown Los Angeles street on an errand for her mother. A 50-year-old homeless parolee with a three-decade-long rap sheet confronted the high school senior as she approached her Volvo. . .

At 4.52 pm, Samuel pulled the Volvo into a Skid Row parking lot at Alameda and 5th Street and abandoned it. Burk had already been murdered, her head beaten and throat slashed open with a broken bottle; her body was left in her car. . .

Samuel then walked nearly a mile through Skid Row, drinking beer from a paper bag in violation of L.A.’s open container law. Two LAPD officers on horseback stopped him for the public-drinking offense and questioned him. He told them that he was on parole and agreed to be searched, according to the police. They found a crack pipe in his pocket and arrested him. The post-arrest search of Samuel turned up a Volvo key and a cell phone. The next morning, a worker from a Skid Row business discovered Burk’s car with her body in it. Samuel’s prints were in the car; his clothes had blood on them.

Samuel’s apprehension shows the enormous power of broken-windows policing, which the American Civil Liberties Union has fought against on L.A.’s Skid Row and throughout the country.. . . When officers question people in high-crime areas for misdemeanor offenses, they regularly find warrant absconders and parole violators. In 1996, a New York police officer nabbed a young man jumping a subway turnstile, a crime that a decade earlier had been regarded as simply an inevitable response to poverty and too trivial for the police to worry about. The turnstile-jumper, John Royster, turned out to be wanted for an ongoing campaign of terror against women in New York that included murder, rape, and a nearly lethal beating; had he not been picked up for the subway offense, he undoubtedly would have gone on to assault more women.

Of course, the effectiveness of broken-windows policing in capturing Charles Samuel is only half of the story.  The other half is the story of how anti-incarceration activists, and their allies in the judiciary, kept Samuel out of prison in the first place, despite his brutal, violent, recidivist record of crime:

California’s “three strikes and you’re out” law is the most reviled sentencing policy in the country—reviled, that is, by the anti-incarceration lobby. It allows prosecutors to seek a sentence of 25 years to life against an offender who has already served time for two violent or serious felonies when he is convicted of a third felony.

Anti-law-enforcement advocates fancifully charge that the law’s main effect is to send away hapless sad sacks whose only misstep was to succumb to the urge for a pizza when they didn’t have enough change in their pockets to buy a slice. These advocates regularly lobby Sacramento to loosen or repeal the law.

Mac Donald is right: the only time the media writes about three-strikes, it is to push a questionable sob story.  There is no discussion of these laws when they are used to finally get a violent recidivist off the streets.  The media will bang the drums when some offender with a long rap sheet finally kills someone.  But then they go back to playing amnesiac and reflexively opposing the laws that could have prevented the crime in the first place.

In Atlanta, for example, it appears that everybody has forgotten about the various sentencing and judgment errors that ended in Eugenia Calle’s murder.  Apparently, there will be no professional consequences for the judge and prosecutor who let Shamal Thompson walk as a “first offender” (for the third time), rather than enforcing Georgia’s minimum mandatory law, as they were required to do by law.  Are we all just going to collectively forget what happened, until the next time the next recidivist captures our attention by killing someone?  No consequences for offenders and no consequences for the prosecutors and judges who fail to do their jobs and put them away: a perfect circle.  No wonder judges so frequently identify with offenders, and not with the rest of us.

Heather Mac Donald:

Samuel was a good candidate for a third-strike sentence, thanks to an earlier attack that foreshadowed Burk’s murder. In 1986, he walked up to an elderly man sitting on his porch in San Bernardino (in the so-called Inland Empire east of Los Angeles), grabbed the man’s cane and beat him with it, then forced him inside his home and demanded money. When the old man could only come up with ten dollars, Samuel commandeered the man’s car and drove the owner to an ATM. The terrified senior citizen was unable to withdraw any money, however, whereupon Samuel struck him with his cane again, punched him in the stomach, and threatened to kill him if he called the police, according to the Los Angeles Times.  Samuel pled guilty in 1987 to robbery, residential burglary, and car theft and was sentenced to six years. He became eligible for a three-strikes sentence in 1997, following a conviction for another San Bernardino burglary (the 1986 robbery and burglary charges counted as his first two felonies). But his rap sheet failed to note that the 1986 burglary was a residential burglary, as opposed to a non-residential break-in. Only residential burglaries count as “serious” felonies for three-strikes purposes; breaking into a store, office building, or commercial space is regarded as “non-serious” and can be repeated indefinitely without triggering a three-strike step-up in sentencing. (So much for the idea that the three-strikes law is blindly draconian; in fact, it makes careful—perhaps overly careful—distinctions between felonies.)

To make a long story short (I am quoting too much already: read the article, it’s good), Samuel managed to avoid three-strikes in 1997 because somebody did not accurately record his prior record, and no prosecutor caught the error (sound familiar?), and he avoided three-strikes again in 2006 because another prosecutor, bowing to anti-incarceration activism, did not request the sentence (sound familiar?).  Over the years, he got other breaks as well and was most recently sentenced to a “community drug treatment program” despite the routine insistence that violent offenders are not permitted to take advantage of such options.   Now a 17-year old girl is dead, brutally murdered.  How many other people did he get away with killing?

Much misinformation about three-strikes laws circulates in the media:

  • When activists say three-strikes laws offer no room for the get-out-of-jail card that is judicial (in)discretion, don’t believe them.  Even California, with by far the strictest three-strikes law in the country, still allows judges and prosecutors discretion to release violent, repeat offenders to the streets.  Georgia’s law is utterly toothless, with judicial discretion over-ruling virtually any consequences for crime by allowing judges to suspend all time to be served at the times of sentencing.
  • When district attorneys tell you they don’t need addition resources, they are playing politics with your safety.  Nobody seriously believes that any district attorney’s office has the resources to actually enforce the law.  The law has not really been enforced in this country for decades.  Every district attorney’s office is so short-staffed, in comparison to the real quantity of crime, that virtually every offense gets brief consideration by some harried prosecutor and then a generous plea deal.  Criminals know this and act accordingly.  Until that changes, no district attorney should go around claiming that he doesn’t need resources.  Paul Howard.
  • It is 2009.  Even I have learned to use computers, and I am a recalcitrant luddite.  The average computer tech could design a system during his lunch break that would record and database all prosecution, sentencing and incarceration outcomes.  By suppertime, the data could be available to the public on the internet.

However, if people really knew what was happening in the criminal courts, a lot of heads would roll.  Judges and prosecutors would find themselves answering for the leniency so ingrained at every level of the system that it seems natural — so long as you don’t look too hard, and it is not your daughter they are burying this week.

The Tech Crime Wave. What Can Be Done. What Can’t Be Done.

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What can be done about crime in the neighborhoods around Georgia Tech?  As reported by the AJC, the youths who have been arrested — and the ones who are yet to be caught — are perhaps the most dangerous type of criminal: immature and armed.  As James Fetig, an administrator at Georgia Tech, observed:

“[o]ne concern is the age of the criminals. Police tell us they are between 16 and 19,” Fetig said. “This is not a time when young men tend to consider consequences. We are very concerned that one of these robberies could go terribly wrong and have terrible consequences.”

Here is another concern: young men charged with gun crimes often walk out of courtrooms in Atlanta with little or no punishment — merely emboldened to commit more crime.  How often does this happen?  Nobody will say.  The DA’s office does not release such statistics.  The AJC has done nothing to produce such numbers.  The Fulton County Justices will not tell us.  The Clerk of Court?  Ha.

It is amazing that something so clearly in the public interest as the disposition and sentencing in criminal cases is secreted away from public scrutiny.  Yet, there it is.  And that is a major reason why people in Home Park and elsewhere throughout Atlanta will continue to live as prisoners in their own homes.

When you look at instances where prosecution and sentencing statistics have been released, it is easy to see why judges (and, sometimes, prosecutors) don’t wish for the public to know how they are spending their time.  In Orlando, Florida, which has an active court-watching culture, the Orlando Sentinel conducted this shocking study of sentences handed down for gun crimes:

The state’s 10-20-Life law — passed by state legislators and signed by then-Gov. Jeb Bush in 1999 — promised crime-weary voters that armed criminals would face long, no-bargain prison terms. Florida quickly spent $500,000 on newspaper, radio and TV ads spreading the message: “Pull a gun: 10 years. Fire a gun: 20 years. Shoot someone: 25 years to life.” . . .

[B]ut few suspects in Orange County get such tough mandatory penalties even as the campaign to end gun violence enters its 10th year, the Orlando Sentinel has found.

Only 5 percent of 7,437 suspects arrested in Orange County on gun charges from 2003 through 2007 received mandatory sentences, court and prison records show.

The record is even worse for suspects arrested with an AK-47 or other assault weapons, those military-style rifles that police officials say warrant the most serious punishment when misused. Just less than 2 percent of such cases in Orange County produced mandatory terms.

Do not believe that Atlanta is any different.  It may be worse.  It is the rule, not the exception, that offenders get a free pass on their first adult conviction.  It is the rule, not the exception, that most cases get pled down, usually a process involving prosecutors agreeing to redefine the charge to avoid minimum mandatory laws.  In Orlando:

Records show a third of all gun cases in Orange County were dropped by prosecutors who screen incoming cases. Additional cases were dismissed, bargained down or acquitted — casualties of evidence problems and the need to keep nearly 80,000 cases moving through justice system every year.

The vast majority of suspects receive very little punishment.

And when a defendant caught with a gun does not get charged, he may still qualify, the next time, for judges’ absurd passion for letting all “first time offenders” walk free.  Wouldn’t it be interesting to find out exactly how many times the Georgia Tech area defendants have been arrested and released, or allowed to plead down, as in the following?

What happened to Daryl Barndo Ford demonstrates why tough sentences are rare.

Four years ago, the 22-year-old was arrested in Orlando when drug agents seized a fully automatic assault rifle, a pistol and 16 grams of crack cocaine.

Because Ford was a felon with six prior arrests, state and federal laws prohibited him from having any type of firearm. When caught hiding under his mother’s bed, Ford had eluded three arrest warrants for weeks by sleeping in local motels rather than the family’s Clear Lake home.

The AR-15 rifle found in Ford’s locked bedroom had been converted illegally to fire automatically like a machine gun, according to police reports. Two ammunition magazines were taped together so the weapon could be reloaded instantly after firing a 20- or 30-shot burst.

As part of 10-20-Life, Ford faced a minimum three-year sentence if the office of Orange-Osceola State Attorney Lawson Lamar successfully prosecuted him as a felon with a firearm.

Problems arose when police did not want to disclose the identity of an informant who led them to Ford. And Ford’s mother would not say whether Ford had exclusive access to the locked bedroom. So prosecutors cut a deal.

Dropped were felony charges of dealing crack, possessing a machine gun, possessing a gun with altered serial numbers — a common sign of a stolen weapon — and possession of a firearm by a convicted felon.

Ford pleaded guilty to possession of drug paraphernalia, a misdemeanor.

His punishment: 23 days in jail.

Since then, Ford has been arrested six more times on drug and gun charges. His longest sentence to date: six months in county jail.

Ford has now accumulated a dozen known arrests for drug and gun charges.  He is a repeat felon.  And judges and prosecutors in Florida still have not obeyed state laws requiring them to sentence him to at least three, if not ten years behind bars.

How do people like Ford continue to walk?  Why do judges get away with ignoring the will of the people, who have decided, legislatively, that certain crimes require mandatory minimum sentences?  Usually, it appears, prosecutors simply do not try to put offenders away for the minimum time because they are overwhelmed by cases.  Pleas must be negotiated in nearly all cases if prosecutors are going to have the time to prosecute anyone.  Why is the system like this in the first place?  Because, contrary to what the mayor and academicians and newspapers will tell you, we have lots of crime and lots of criminals.

We also release criminals back to the streets every day because the criminal bar has succeeded in twisting the system until it simply does not resemble a rational search for the truth.  The ridiculous latitude in suppressing evidence, for example, efficiently and speedily re-delivers criminals to the streets,  No other country has a system so hell-bent on excluding evidence from scrutiny.

And so, Daryl Ford loose on the streets with his dozen convictions is what we get.  We get streets saturated with criminal activity, so much so that authorities are forced to simply throw up their hands and say: We know they’re guilty, but we have to let them go.  We know they will eventually kill innocent people, but we don’t have the resources to even begin enforcing our own laws as they are written.

And still, the Pew Foundation and the editorialists and many criminologists keep telling us that the problem is too much incarceration, too harsh sentencing.  These claims do not even begin to stand up to real evidence, of course:

Light sentences are no rarity in assault-weapons cases. In the 243 cases analyzed by the [Orlando] Sentinel that went to court, prosecutors won 112 convictions, but just seven suspects received the 10-20-Life penalties. In 43 cases, the state dropped the gun-related charges in return for pleas to lesser crimes, such as possession of drug paraphernalia.

Of those convicted, 83 served less than a year in jail. The median sentence was six months. . .

All charges were dropped in 40 percent of the 243 cases. Reasons for those 97 dismissals included insufficient evidence and problems with victims and witnesses.

The remaining 34 cases include defendants still awaiting trial, fugitives and seven defendants tried in U.S. District Court under federal law. Two of the federal suspects were acquitted over an invalid search warrant. The other five received sentences of five to 17 1/2 years.

Out of 243 cases of gun crime in Orlando in 2008 involving assault-weapons, only seven defendants received the minimum penalty required by law.  This is not the type of fact you will find in the highly influential Pew Center report urging lawmakers to cut back on incarcerating convicts — because we’re just too harsh on the poor guys.  It is not the type of fact you will find in most newspaper articles purporting to examine the criminal justice system.

It is the type of fact you should think about the next time you are staying late at the library and need to figure out how to safely make your way home.  And it is definitely what students should think about after they matriculate and leave the dangerous parts of town behind, because there are still children living in those places, without a way out.

What can Georgia Tech students and all the other beleaguered residents of Home Park do to make their streets safer, not just temporarily, or for this semester?  They should go to court.  They should go watch a day or a few days of processing violent criminals, and tell other people what they saw there.  They should take that Orlando Sentinel article and try to replicate that research in their own city — or pressure the newspaper to do so (newspapers being in the business of trying to get readers to read them these days), because catching gun-wielding criminals is only the first part of keeping them off the streets.

We don’t even know how bad it is in the courts.  We don’t know what we don’t know, and there is little excuse for not knowing it in a metro area with hundreds of thousands of undergraduates, thousands of professors, three law schools, and millions of residents.

Fulton County, Georgia to Put More Defendants Back on the Streets (Translation Provided)

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Why not spend the money actually trying the cases instead?  Why bother having a justice system at all?

Court Program to Save Fulton $5.5 Million

A program that began April 1 will increase the number of defendants given pretrial release is expected to save Fulton County taxpayers more than $5.5 million a year in jail costs.

That’s “savings” as in “we’re going to shuffle these costs further down the line in some crazed and futile attempt to get through this budget year, knowing full well that our deception will be papered over by our criminologist friends (thank you, Pew Center!!!) who are busy inventing statistics that don’t take into account the added costs arising from additional victimizations, additional police investigations, and additional court cases that will result from releasing offenders pre-trial — not to mention the overall effect of further reducing the dwindling consequences for committing crimes.”

The Superior Court of Fulton County’s Pretrial Services will operate the new Intensive Supervision Program (ISP) which was recently funded by the Fulton County Commission. The program will provide rigorous supervision of defendants who don’t qualify for release under existing criteria.

That’s “defendants who don’t qualify for release under existing criteria” as in “we already let a shocking number of people go before trial or case disposition — boy, you would probably be really surprised to see some of the people we let go — but we’re still so utterly disorganized and underfunded and distracted and in some cases, just lazy, that we’re going to swing open those prison gates just a little bit wider.”

Over the past decade the Court’s existing Pretrial Services program has racked up an impressive record of reducing jail costs while ensuring that over 95 percent of program defendants show up for all scheduled court hearings.

That’s “over 95% of program defendants show up for all scheduled court hearings” as in “5% of the people who do something serious enough to end up in jail don’t show up in court after we let them go before trial.  Since we have an acknowledged backlog of some 6,000 cases, that’s 300 absconders just from the cases that are backlogged.”

The new ISP will supervise about 150 additional defendants per month.

Candidates for the program are:

• Youthful defendants charged with non-violent crimes that the Judiciary deem appropriate for release if heightened supervision is available.

That’s “appropriate for release if heightened supervision is available” as in “since we already release juvenile offenders almost automatically, even if they have been involved in home invasions or gun crimes or assaults, these kids are really scary, but we’re going to let the go anyway if heightened supervision is available.

• Defendants whose community ties cannot be “verified” or those who have not established a six month residency in the Atlanta metropolitan area
•Defendants, with little or no criminal history, charged with property crimes who do not meet normal pretrial release criteria.

That’s “little or no criminal history” as in “pretty much everything is little criminal history these days, especially since we keep giving people first-offender status for their sixth or eighth crime” and “property crimes that do not meet normal pretrial release criteria” as in ” kicking down your front door and luckily nobody got killed.  This time.”

•Defendants referred to the ISP by a judge.

That’s “referred by a judge” as in “like the judge who let rapper T.I. free on a gun charge because he’s rich, or the judge who let murderer Shamal Thompson go because he said he was a wedding dress designer.”

ISP release requirements may include:

That’s “may include” as in “not will include or must include, but may include.  Or, thus, may not.”

•In-person office contact twice a week
•Weekly field visits to defendant’s home/employer
•Curfew
•Electronic Monitoring
•Seek full-time employment if not already employed.
•Attend in-house life skills programs or community service programs.
•Be employed or actively seeking employment or school
•Defendants without high school diploma must enter GED program
•Social service agency referrals where appropriate
•Immediate sanctions in response to program infractions

That’s “immediate sanctions” as in “is that anything like the sanctions attempted murderer Joshua Norris didn’t receive when he threatened two young women with a gun while he was out on bail for repeatedly shooting another person, as in, no sanctions, unless you count being praised for stayin’ in school and then having all your other violent gun charges reduced to community service by fawning court officers as a sanction?”

The ISP will notify the Court, District Attorney, and Defense Counsel of any violations of release conditions.

That’s “will notify . . . of any violations” as in “What?  They do this already, don’t they?”

***

Here is a troubling statistic: the Department of Justice reports that in 2002 (the latest figures available)  one-third of all defendants arrested for felony crimes were “active” in the system at the time of their arrest — in other words, on parole, probation, or pre-trial release.

Here is another troubling statistic: “[t]he Fulton county jail currently has a backlog of about 880 prisoners who have been awaiting trial — most for felonies like murder, rape or armed robbery.”

32% of the people booked into the system for new felony crimes are under court supervision yet on the streets when they commit those crimes, and most of the people currently incarcerated but available for pre-trial release in Fulton County are charged with felonies like murder, rape, and armed robbery.

Hypothetically, how much money could Fulton County save if it reduced the felony crime rate by 32%  –  by not letting people out of jail while awaiting trial or finishing their sentences?

Vaut mieux prévenir que guérir. Except, apparently, in the Fulton County Courts.

“Defendants Have the Right to Remain Silent. . . Victims Have the Right to be Heard”

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I found this quote on the website for the Larimer County, Colorado District Attorney’s office. It is a neat sentiment: well-intentioned, not overly ambitious. It is, in other words, a fitting description of the aims of victims’ rights laws.

It is also utterly untrue.

The “right to be heard” is not a right in the ordinary sense of the term. It is not actually enjoyed by the vast majority of crime victims. There is no criminal court where victims may go to plead with authorities to take up their case, if theirs is one of the vast majority of crimes that go un-prosecuted for any one of a hundred reasons.

Other than murder, there is far less than a guarantee that even serious crimes will be taken up by the court. And prosecution rates for murder are far less than most people would imagine: authorities in Houston last week announced that they were stepping up efforts to “do something” about 600 murder cases that had foundered despite identifying a suspect:

More than 600 accused killers from the past four decades have yet to see the inside of a Harris County courtroom for their crimes, according to the Harris County district attorney’s office.

Records show that a handful of those jumped bail, fleeing the area before they could be prosecuted. But most were suspects who were never arrested, said Assistant District Attorney Russell Turbeville. . .

The push to find the fugitives was sparked in part by the case of Tho Minh Quach, who was charged with murdering his neighbor more than 20 years ago, but who disappeared and now will never stand trial because investigators did not try hard enough to find him.

One county, forty years, six hundred un-prosecuted murder suspects. How can this be?

In reality, virtually all crimes result in nobody being held accountable, a situation that has taken an extraordinary toll on hundreds of millions (yes, hundreds of millions) of crime victims since criminologist Milton S. Eisenhower lamented the 1 1/2% incarceration-for-crime rate in 1969. Here is Eisenhower speaking in 1970, twenty-two years before crime rates peaked in the early 1990′s:

There remains one very obvious reason for mounting crime in our society: the increasing failure of law enforcement agencies to cope with it. Consider the grim statistics. Probably 10 million serious crimes were committed in the United States last year. About half of these crimes were never reported to the Federal Bureau of Investigation. Only 12 percent of those 10 million crimes resulted in the arrest of anyone. Only 6 percent resulted in the conviction of anyone, and this 6 percent included many pleas to lesser offenses. Only 1 1/2 percent resulted in the incarceration of anyone. And of those who were incarcerated, most will return to prison another time for additional offenses. As Lloyd Cutler . . . remarked on these statistics: ‘It would be hard to say that crime does not pay. The sad fact is that our criminal justice system, as presently operated, does not deter, does not detect, does not convict, and does not correct.’ (Violence: The Crisis of American Confidence, ed. Hugh David Graham, Johns Hopkins Press, 1971)

Hundreds of millions of victims of unresolved crimes walk the streets, and yet, virtually nobody, not even a fraction of a percent, resorts to vigilantism — this despite hysterical claims by mostly-liberal commentators that we must remain vigilant to hold back the horrifying threat posed to society by emotionally wounded, vengeful victims of crime.

I have long wondered why it is that so many people to the left of the political center despise and fear victims so much more than they despise or fear criminals themselves. Self-loathing, I think lies at the root of this phenomenon, self-loathing busked up by education at the hands of other self-loathing people who are entirely convinced that our justice system is over-reaching and cruel.

To say that the types of statistics mentioned above do not enter into classroom discussions of justice is to wildly understate the case. The only type of literature taken seriously in the classroom is the literature of the wrongly accused (too numerous to mention), or rightfully-accused-but-persecuted-anyway (Orestes, Oedipus Rex, The Crucible, The Stranger, One Flew Over the Cuckoo’s Nest, Clockwork Orange: how the mighty have fallen).

There is also the litmus test, administered with fierce regularity, that one must show the right type and quantity of empathy for criminals before you may speak about criminal justice at all. This is the price of the ticket — no similar admission fee exists regarding victims, save a few politically sanctioned types.

In the face of such orthodoxy, or rather, repression of facts, perhaps it isn’t surprising that so many people agree, with so very little evidence, that crime victims are too powerful, when they are actually legally powerless.

The exception to this powerlessness, now, consists of being allowed to offer a victim impact statement after the accused has been found guilty of the crime, during the time when his representatives may plead for lenience from the judge. Even this right, however, is strongly opposed by those who feel that the presence of victims in courtrooms represents a sort of perversion of pure justice. Character witnesses for the convict, such people argue, are only right, to keep the vengeful passions of the public in check, but character witnesses against them are — just awful.

When victim advocates began pushing for Victims’ Rights Laws in the 1980′s, reaction was extreme. These laws were written to provide extremely limited rights to the small fraction of victims whose cases actually made it into a courtroom, including the right to be notified about hearings, the right to be notified when one’s offender is up for parole or is being released, and the right to make a victim impact statement before the judge. Victims’ rights laws do not in any way impede on the vast rights afforded defendants before, during and after prosecution: in fact, their modesty underscores the degree to which victims have fewer rights than the public itself, let alone criminals.

Nevertheless, defense attorneys, law professors, and editorial writers (defenseattorneyslawprofessorseditorialwriters) behaved as if granting victims even extremely limited rights to speak in the sentencing phase of the judicial process was tantamount to bringing back witch-burnings, fueled, of course, with trampled copies of the Bill of Rights.

Tom Teepen, a nationally syndicated columnist based in Atlanta, compared the 1999 Victims Rights Amendment to a murderer stalking an innocent and endangered United States Constitution: “The Constitution has just ducked another bullet, but beware the ricochet”; “You can’t be sure this monster won’t walk again,” he wrote, and, nastily:

You almost have to feel sorry for the politicians working the law-and-order hustle. Crime has been falling sharply for several years. . . It is, in short, getting hard to sell criminals to the electorate.

This, in a year when there were 15,000 murders, 90,000 reported rapes, and nearly a million aggravated assaults.

Teepen never writes about criminals with such sneering contempt. His colleague, Cynthia Tucker, has written movingly about crime victimization at other times, but she called the Victims’ Rights Amendment “a crime in itself,” and accused victims of wanting too much:

The system has already kicked in on behalf of the victim — conducting an investigation, arresting a suspect, proceeding to take the suspect to trial.

Gee, thanks. Except when it doesn’t, which is nearly all of the time.

Tucker went on to accuse all politicians who speak up for victims of “pandering” to society’s hatefulness, prejudice, and barely-suppressed violence, then accused the public directly of wishing to undermine all rights of the accused. That the public, let alone victims, might be innocent of nefarious intentions until proven guilty is not the way this game gets played:

This latest bit of pandering by the vice president [Gore] is disgusting but not surprising. It has become an article of faith among centrist Democrats that a tough law-and-order stance in essential to win elections. . . . As hard as it is for most Americans to accept, a suspect is innocent of a crime until convicted by a jury of his peers (or until he pleads guilty).

In twenty years of advocating for and working with crime victims, I have never met a victim who wanted to undermine the justice system or see the wrong person go to jail for a crime. Such accusations are sheer hysteria, and like most hysteria, they arise from a reality that is inverse to the charge.

Tools for Activists: Just Say No (To Releasing Dangerous Inmates)

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With a hat tip to Chris, from the Atlanta Journal-Constitution: “Fulton Inmates to be Released Before Trial,” by Steve Visser.  It’s worth quoting extensively, to grasp precisely what is being done:

Fulton County court officials say they can save taxpayers $5.5 million a year by releasing suspected criminals from jail — inmates whom judges have balked at freeing because of the likelihood they would commit another crime before their trials.

How did they arrive at 5.5 million in savings?  Is it simply the difference between incarceration and probation for X prisoners for Y months?  What about the cost of anticipated new crimes — police, homeowner’s insurance, losses, new court dates, new attorney’s fees?  Pain and suffering?  Loss of public safety?

People won’t have to worry, said Superior Court Administrator Judy Cramer, because officials are starting a program Wednesday that ensures the bad boys will be watched a whole lot closer.

The county has hired five more staffers to closely supervise inmates who previously didn’t qualify for pre-trial release because of their character, lack of permanent address or who had weak community ties.

We know what some of the inmates who already qualify for release are capable of: what on earth are these people capable of?

The monitors will each carry a caseload of 35 released inmates they will meet with each week until the cases are resolved at trial, said court spokesman Don Plummer. The monitors will also meet regularly with family, employers or friends of the people they are supervising, Plummer said.

Five times 35 is 175.  Is that 175 armed robbers?  Aggravated assailants?  Since they have a set number already, then tell us the types of crimes this cohort is accused of committing. 

Plummer said the monitors would be able to meet the tough schedule of an average of seven meetings a day — along with other home and employment visits. “This isn’t going to be a featherbed job,” he said. “They are going to keep these people on a really tight leash.”

Imagine going to seven different appointments in one work-day.  Every day.  In Atlanta traffic.  Now imagine that half, or more, of your appointments are with people who do not have a permanent address and are prone to not show up for things because, well, they’re repeat offenders, and most of them have probably given a probation officer the slip before. 

Chief Jailer Riley Taylor doubted if a new supervised-release program would do much to take pressure off the jail — which is normally filled to its court-ordered capacity of 2,250 inmates — or off taxpayers’ wallets.

Thank you, Chief Taylor.  Thank you for talking to the public.  That’s what a public servant is supposed to do.  We could use some more of that.

“They want to fund the court system more to refine it more and they’ve tried that in the past and the math hasn’t worked out,” said Taylor. “Historically the jail population catches back up after new initiatives come into play.

“The whole system has to be retooled.”

So, basically, what the Chief Jailer is saying is that this won’t save $5.5 million dollars because the jail will just fill up again, which means that decisions are already being made to not incarcerate a certain percentage of law-breakers, or to release a certain percentage of law-breakers prior to trial, because the prison is already full.  And it’s not as if they’re going to start releasing high-risk prisoners without having released every possible allegedly low-risk prisoner first: what kind of sense would that make?  No, they’ve already released all the people who can cobble together a home address, or who haven’t committed a serious, violent crime yet — and they’re still beyond capacity, so they have to start releasing the people they know will commit more crimes, and have committed serious crimes.  And, yet, it “hasn’t worked before” (which means they have tried this before — at what human cost?).

The county has to find a way to resolve cases more quickly so that either jail inmates are freed or they are shipped to the prison system, Taylor said. More than 1,200 inmates — half the permitted population of 2,250 — have been in jail for more than a year without their cases coming to trial, according to county figures.

What has caused this backlog?

[Superior Court Administrator] Cramer acknowledged the “Intensive Supervision Program” won’t save any money if the jail beds remain full. He said it is among a several court-system initiatives designed to chip away at the county’s backlog of 6,000 unresolved, indicted cases.

The court system has just been funded to pay three retired judges to help clear up the backlog of murder, rape and robbery cases which now pack the jail, Cramer said. There is currently just one judge handling that workload.

Wow.  There is one judge handling murder, rape and robbery.  That’s crazy, especially in a county that has managed to waste million of dollars on corrupt boondoggles like FanPlex.  Oh, and this won’t work, but they’re doing it anyway.

The superior court has also dedicated one superior court judge to handle property crimes such as burglary and car theft, Cramer said, and is resolving most of those cases by pleas — often to probation — in less than two months, on average.

Break into somebody’s house, get probation.  Get out, break into somebody else’s house.  Pretty sweet.

The court system’s next aim is to get Superior Court judges — there are 19 in all — to develop uniform case-management standards for handling serious crimes that bog down in the court system, Cramer said.

Judges traditionally have run their courtrooms as they wished — with varying degrees of efficiency.

“Serious crimes” are “bogging down in the court system.”  That’s terrifying.  Since even breaking into someone’s home has been dumbed-down to a minor offense, what constitutes a serious crime these days? 

Enough is enough.  Fulton County Superior Court Judges need to come clean, now, about their efficiency rates.  Are they even working nine-to-five?  All of them?  If they are, and if they oppose this plan, the public needs to hear from them.  If there is a resource emergency in the courts (and there is), then why the silence from the judiciary?  Have they asked the legislature for money?  Have they appealed to the County Commission?  Do they have plans to request stimulus money instead of releasing felons to prey on the innocent?  Have they reached out to the public?  Why doesn’t the public know?  This is a situation begging for transparency.

In order to solve this problem, an essential mindset needs to change.  For far too long the courts have been an insular world, a closed loop in which scrutiny by the public is viewed with barely-concealed irritation, if not outright contempt.  ’If you’re not a lawyer, then what the heck are you doing asking questions,’ is the attitude I’ve sometimes (not always) encountered — and all lawyers must maintain good relations with judges, so don’t expect them to complain if they see a judge not keeping up with his or her docket, or just not working at all, or serially letting violent felons go free.  

In a circuit like Fulton County, some of these judges also practice far too much leniency with criminals, worrying exclusively about their needs, ignoring victims of crime.  It’s a predictable outcome of the culture of insularity and politics that exists in the judicial appointment process.  Victim advocates — and community members seeking accountability — are treated like peasants who must beg favors at the door.  Information is contained with Kremlin-like security.  

Atlanta has outgrown this system.  

It’s time for the Fulton County Courts to open their doors to citizen scrutiny in a meaningful way.  Of course, it would have been useful for some of the many law professors and criminologists in the city to take a lead on this, but in my experience, academicians are interested in only one question regarding the criminal justice system: how do we get prisoners out of jail?

So I wouldn’t count on the professorate to do the footwork needed to find out exactly how broken the courts are in Fulton County.  But citizens can do the job, first by opposing this mass release of dangerous prisoners, then by seeing what is really going on in the courts.

*** 

Call your county commissioner and the two “at-large” commissioners and demand a citizen review panel.  By non-lawyers, for obvious reasons.  And while you’re on the phone, tell your commissioner that you oppose the pre-trial release plan that’s been sprung on the public, fait accompli.  Think of all the people who have been killed recently in Atlanta by people who should have been behind bars at the time: Harish Roy.  Eugenia Calle.  Who else?  John Henderson?  Octavia Atkins?  Brutus Jones?  Chastity Jones?  The AJC cannot report on every murder, so surely there are more.  Here are the contact numbers for the Fulton County Commissioners:

At-Large Commissioners:

John H. Eaves, Ph.D. District 1 (At Large) Chairman Email John Eaves 404-730-8206 Chairman Eaves’ extended website 

Robb Pitts District 2 (At Large) Email Robb Pitts 404-612-8210

District Commissioners:

Lynne Riley  District 3 Email Lynne Riley 404-730-8213

Tom Lowe  District 4 Email Tom Lowe 404-612-8218

Emma I. Darnell  District 5 THE MIGHTY FIVE [sic] E-mail Emma  404-612-8222

Nancy A. Boxill  District 6 Email Nancy Boxill  404-612-8226

William “Bill” Edwards  District 7  Commission Vice Chairman Email William Edwards  404-612-8230

Don’t Know Your District?  Check the Commissioners’ websites. 

No Harm, No Foul? Why Aren’t More People Charged With Attempted Murder?

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Several recent crimes involving recidivists who had fired guns at people during previous assaults got me thinking about the charge of attempted murder.  Why is it that we almost never hear about an attempted murder case?  

Turns out I didn’t need to look far for an answer.  When I typed in the question, I found the most user-friendly prosecutor’s website I’ve seen.  District Attorney Kelly R. Burke, of Houston County, Georgia, posts articles about case outcomes in his district, funding issues, and explanations of Georgia law.  This level of transparency by a prosecutor’s office (or anyone else in the courts) is practically unheard-of. Burke clearly believes that the public has the right to know what is going on in their criminal justice system.  How odd of him. 

Houston County, Georgia is south of Macon and north of Unadilla, in the center of the state.  It is also closer to the Twenty-First Century than virtually any other prosecutorial district in any state.

Here is D.A. Burke’s explanation for the dearth of attempted murder prosecutions over the last thirty years, in Georgia, at least.  According to Burke, the state may see more attempted murder charges now that the law has changed.        

Attempted Murder is Back!

Attempted murder is back in the news. For years, one never saw the charge of “attempted murder” being lodged against someone who had shot or stabbed someone.

The reason was that Georgia law was a bit archaic in how it punished “attempted murder”, with a punishment that had a maximum of 10 years in prison. As a result, prosecutors instead went with aggravated assault or aggravated battery, which has a 20 year maximum prison sentence. Plus aggravated assault or battery is far easier to prove since all the prosecutor has to prove is intent to harm, not intent to kill. Long story made short, prosecutors simply never charged attempted murder because it wasn’t worth the trouble.

That has changed with the enactment of a new Georgia law that went into effect on July 1, 2007. As of that date, anyone charged with “attempted murder” is facing up to 30 years in the state prison system. Naturally you can expect prosecutors to be using attempted murder far more frequently than in the past because now the sentence fits the crime. The Legislature probably settled on 30 years for “attempted murder” since a defendant is now first eligible for parole on a murder conviction after 30 years (previously, it was 14 years).

So now you know why attempted murder was not charged before, but is charged more frequently now. 

***

This explains why there are only seven people serving state time for attempted murder in Georgia, compared to thousands serving time or on parole for aggravated assault.  

But there is another story lurking in the past and present inmate records of those convicted of attempted murder in Georgia, a story that challenges all the conventional wisdom about America being some police state where people are subjected to draconian sentencing for the slightest violation of the law.  Since the early 1970′s*, 47% of people convicted of attempted murder in Georgia and sent to state prison served less than a year in prison for the crime.  This number does not even include those who were never placed in the state system at all.  Given the brevity of many of these prison terms — one to three months is not uncommon — it is reasonable to assume that many people convicted of this crime did not get sent to state prisons at all.

Nor are the longer sentences handed down for this crime in any way harsh.  Since 1971, twenty people (26%) have been given sentences longer than five years for attempted murder in Georgia, and 12 of those people (15%) were sentenced to the maximum ten years**.  In addition to light sentences going in, until laws changed recently, every convict’s sentence was slashed before he or she even stepped into prison, usually to less that half of the sentence’s length.  Here are some sentences and time served:

  • 1971, 1 year sentence, served 1 month 
  • 1980, 2 year sentence, served 5 months
  • 1988, 10 year sentence, served 2 years, 10 months
  • 1999, 3 year sentence, served 1 year, 8 months
  •  2007, 5 year sentence, still serving time                                                                                                 

Both sentence length and time served for this crime began creeping up in the early 1990′s, though the small number of cases here makes it hard to draw too many conclusions.  And as DA Burke explains, prosecutors were using aggravated assault charges in virtually all cases that were actually attempted murders.  More clear is the gradual disappearance of the “one-year sentence/one month served” pattern that held through the 1970′s.  Nine of the 12 ten-year sentences for attempted murder have been handed down since 1988.

There is a lot you cannot know by looking at state-level inmate records.***  

But one thing is indisputable: the vast majority of people convicted of attempted murder in Georgia over the past 35 years have received a mere slap on the wrist for the crime.  When newspaper editorialists and anti-incarceration activists scream about the “disgraceful” size of our prison population or complain that three-strikes laws and minimum mandatory sentencing is cruel, vindictive and unusual punishment, remember this: it’s only unusual, not vindictive, nor cruel.  

In reality, it is shamefully unusual for violent criminals to be sentenced to prison terms that actually reflect the seriousness of their crimes.  Most of them get off easy, even when the charge is trying to kill someone. 

***

*The Georgia Department of Corrections website lists 78 people convicted of attempted murder.  All but two of these cases are from 1971 onward.  One conviction is from 1935 and one from 1952.  The 1935 case is an escapee.

**Two convicts were sentenced to twenty years for attempted murder.  Both had other, simultaneous, serious charges.  One convict was given two ten-year sentences for two attempted murders.  Of course, he is permitted to serve them concurrently, so he is actually serving time for only one of two crimes.

***Women, for example, are relatively over-represented among state convicts with attempted murder convictions.  There are many more men than women, but there is a higher percentage of women than other violent crimes.  So attempted murder is probably used to deal with cases of domestic violence — a contradictory and fast-changing area of law.     

Getting Away with Crime, Circa 1970

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(I will get to “Recommendations for the Courts” later in the week.)

Events are moving quickly for activists in Atlanta, a place where a weird confluence of crime, organizing against crime, and Internet connections have torn away the media curtain that ordinarily hangs between the public and public individuals’ experiences of crime and the courts — revealing the abject failure of those courts and our top elected officials to act on public safety.

At this odd moment, I want to offer a little historical perspective on the phenomenon of getting away with crime.

In 1968, President Lyndon Johnson responded to exploding crime rates in America’s cities by founding the National Commission on the Causes and Prevention of Crime.  Like many efforts of its time, the Commission was heavy on seeking psycho-social “root causes” for criminality.  Howard Zinn weighed in on how the “Pigs” should be in prison and the prisoners should roam the streets.  And so on.

But those were more civilized days among the elite, which of course included Howard Zinn, his demurral notwithstanding.  So the Commission’s report to the President offered a wide range of ideological views on the subject of crime, something that rarely happens in academic conferences today.

Milton S. Eisenhower was one of those old guys whose yellowing Brillo creamed black-and-white visages still stare out at us from office lobbies everywhere.  He was, in two words, widely respected.  He was the head of Johnson’s crime Commission, and the former President of Johns Hopkins University, and a member of UNESCO, and lots of other things.  Here is what Milton S. Eisenhower said to the National Commission on the Causes and Prevention of Crime in 1970:

We live in an urban society.  We live in an affluent society.  And we live in a society that is violent.  In the convergence of those three characteristics lies a central problem for America in the 1970′s.

The best estimate of the number of serious crimes committed in the United States each year is 10 million, of which more than 1.2 Million are violent crimes: homicides, aggravated assaults, forcible rapes, and robberies.  According to another estimate, more than 1 out of 100 Americans commits a major violent crime in any one year.

There remains one very obvious reason for mounting crime in our society: the increasing failure of law enforcement agencies to cope with it.  Comsider the grim statistics.  Probably 10 million serious crimes were committed in the United States last year.  About half of those crimes were never reported to the Federal Bureau of Investigation.  Only 12 percent of those 10 million crimes resulted in the arrest of anyone.  Only 6 percent resulted in the conviction of anyone, and this 6 percent included many pleas to lesser offenses.  Only 1 1/2 percent resulted in the incarceration of anyone.  And of those who were incarcerated, most will return to prison another time for additional offenses.  As Lloyd Cutler, eminent lawyer and executive director of the Violence Commission, remarked on these statistics: ‘It would hard to argue that crime does not pay.  The sad fact is that our criminal justice system, as presently operated, does not deter, does not detect, does not convict, and does not correct.’

Violence: The Crisis of American Confidence, ed. Hugh Davis Graham (Johns Hopkins Press, Baltimore, 1971)

In 1970, our nation’s best minds across the political spectrum agreed that fewer than 2% of those who commit a serious crime even served time for it.  That was forty years ago, and it hasn’t changed much.