Criminal Justice

Page's Blog Has Moved

CEM — Wed, 10 Mar 2010 13:20:25 -0600

Page Croyder has created a new website for her blog, where all future entries will be posted: pagecroyder.blogspot.com

Thanks, Page, for your contributions to our site. Best of luck as you continue your work!

The Greatest Part-time Job in the World

CEM — Wed, 17 Feb 2010 17:02:02 -0600

Wanted: Qualified person to work 20-30 hours a week, depending on assignment.

Salary: $127,000 plus per year.

Benefits:

—Nearly 7 weeks in vacation and personal days.

—12 holidays.

—Unlimited sick time.

—A pension worth 2/3 of the current salary after 16 years of service at age 60, and a pro-rated pension for fewer than 16 years.

—And every time the current salary is raised, the pension goes up by the same 2/3 ratio.

Too good to be true? Welcome to the world of a Maryland District Court judge.

District Court judges handle the least serious criminal and civil cases, the majority of cases in the state. They are the judges that most people encounter if they must appear in court as a witness or defendant.

But the District Court fails to do its share of criminal justice work. That was immediately apparent when I first practiced criminal law in Baltimore 23 years ago. And last spring I spent a day at each of the three Baltimore District courthouses to see whether anything had changed.

Nope.

At the Wabash Avenue court Judge Miriam Hutchins easily had the heaviest docket with 52 cases. She took the bench at 9:30 and was done by 10:35, not to return again until the 2 p.m. afternoon docket. Nearly every morning docket at the Wabash courthouse finished within 90 minutes, and the afternoon dockets lasted no more than an hour.

It was much the same at the Eastside court the next day, where most of the morning courts concluded by 10:40 and the afternoon courts by 3 p.m. One judge with five cases on her docket spent only 20 minutes on the bench and left for the day at 9:30.

And then there was the Hargrove courthouse on Patapsco Avenue. Judge Askew Gatewood, the “duty” judge for the day—the one who is supposed to be available for things like search warrant applications from police officers—didn’t even drive into the parking lot in his Mercedes convertible until 9:15 for his 9 a.m. docket. After the morning session he left for a two-hour lunch while police officers waited to see him. Arriving 20 minutes late for his 2 p.m. docket, Gatewood was still finished by 3:30.

(Gatewood is the judge convicted in 2008 for dumping waste into the Patapsco River and who runs a real estate business “on the side.” See A Judge Above the Law.)

Judge Charlie Chiapparelli—he of the restaurant Chiapparelli’s in Little Italy—switched dockets with a retired visiting judge so that he didn’t have an afternoon docket, a little trick I saw more than once. He then raced through his docket of traffic tickets by ensuring that no one got any points against their driving record, no matter what their driving history. Chiapparelli finished in the courtroom at 11:22 and drove off for the day at 12:15.

But I didn’t feel too sorry for the visiting judge who got stuck with Chiapparelli’s docket because he had to be there “all day” anyway to get paid. He was done in the morning by 10:15 (as were most of the courtrooms), and after a pleasantly long lunch returned for one hour of work in the afternoon.

Not once in my three days of courtroom visitation did I see a trial. And the things that went on would take a book to describe. (See The American Right to Drive…No Matter What as just one example.) The culture remained almost exactly as I experienced it two decades before. I saw public defenders leaving for personal errands at 10:30, and a senior prosecutor postponed a case with a defendant in jail because she had made a doctor’s appointment for the late morning.

The District Court compiles “bench times,” the amount of time judges spend on the bench each day. Baltimore judges, handling the heaviest caseload in the state, averaged a little over three hours on the bench per day in the last fiscal year. Only three of its more than two dozen courtrooms averaged four hours or more per day. But judges who really need extra work on their golf game should go to western Maryland, where judges average two hours, 44 minutes in court for an entire day.

And it’s not as though District Court judges are buried under paperwork the rest of the time. They don’t handle complicated pleadings and motions, or issue written decisions. They sign orders (prepared by court clerks), read probation reports (written by agents), and not much more. The bulk of their work is performed on the bench in the courtroom—what you see is what you get.

One might expect an attitude of humility and appreciation for this life of relative judicial ease, but instead the judges exhibit a tremendous sense of entitlement. The Annapolis administrative court once tried to create a split afternoon docket in Baltimore County (for example, one at 2 p.m. and one at 3 p.m.). This would reduce waiting time for defendants and witnesses. A judge protested, “But that’s the only time most of us have to see our children play sports!” This must explain why Baltimore County judges average less than 3 hours on the bench each day, second lowest in the state.

The courtroom at Baltimore’s Central Booking Facility (*) is a particular boon to family life because there’s so little afternoon work to do. Judge Katie O’Malley, once announced that she intended to finish early because she was taking her kids to the zoo. Another judge needed to stop by Nordstrom’s before picking her kids up from school. Still another bought her children tickets to a 3 p.m. show. They announce these plans in front of regular working stiffs with no sense of inappropriateness.

And now judges are assigned to Central Booking for a month at a time so they can plan all kinds of personal activities on the taxpayer dollar.

That is, when they are even scheduled for court.

In 2009, the 26 trial judges of Baltimore’s district court averaged over eight weeks scheduled out of court. That number doesn’t include sick days or snow days taken after the schedule came out, or any of their 12 holidays. While some judges probably took some administrative leave for training, fully half the judges were scheduled off for 40 days or more, and four were gone for 55 or more days.

One judge took off 49 consecutive court days. Absences like these are usually for medical reasons, but unlike regular employees judges aren’t required to use up other leave (or buy disability insurance) for such lengthy absences. This judge was gone another 47 days during the year for a total of 96 paid days out of court.

And now the Judicial Compensation Commission wants to raise District Court judicial salaries to $167,110 and their pensions to $111,295.

But it isn’t the bloated benefits that come with the part-time job that bothers me so much. It’s the fact that the District Court is of so little use to the criminal justice system.

And the responsibility for that lies not with the judges but with Maryland lawmakers.

I’ll explain in Part II.

*In the originally published version of this article I wrote that as mayor Martin O’Malley insisted that the courtroom at Central Booking be built and staffed by District Court judges. In fact, what O’Malley insisted upon was that District Court judges staff the Early Disposition Court at Central Booking. I have eliminated the entire sentence, and regret my error.

Raises for Judges

CEM — Mon, 01 Feb 2010 13:39:25 -0600

Maryland judges are hoping that Maryland legislators forget about them next month. If they do, the judges will get nearly $40,000 in raises apiece.

Every four years the Judicial Compensation Commission is charged with recommending judicial salaries. Whatever it recommends, Maryland law requires the governor to include that amount in his budget, and the General Assembly must do likewise at the start of the legislative session. Unless the Assembly takes action to delete or modify any raises within 50 days, they go through.

That’s what happened in 2005 when judges got raises of $15,000 to $30,000 even though the Assembly had intended to reduce those raises to smaller amounts. Legislators just forgot to act. Oops.

Last year, after the Judicial Compensation Commission recommended a whopping $39,858 raise for every judge, legislators managed to postpone consideration until 2010 because the economy was so bad. So now it’s back on the table, with the economy still bad.

How did the Judicial Compensation Commission, which is made up of appointees by the governor, assembly leaders, and Maryland State Bar, conclude that these raises were justified?

Easy. The judges told them so.

Judges Robert Bell, Clayton Greene, and Ben Clyburn, appearing before the Commission, claimed that too many judges were retiring before the mandatory retirement age of 70, and that raising their salaries would stop this. Who are they kidding?

The pension system, not the salaries, encourages judges to retire before age 70. They can collect two-thirds of their salary after 16 years as judges beginning at age 60. Then they sit on the bench up to 90 days a year and make up the rest of their former salary. They trade in full-time work for 90 days at the same income level. And since their pensions are always tied to the salaries of active judges, they have no incentive to keep working past retirement eligibility. If active judges get a raise, they get a raise.

The judges also claim that large raises will promote “diversity” among judges. More women? No. More minorities? No. “Diversity” means more appointments from the ranks of highly paid lawyers who otherwise have no interest in public service. How about that for a twist on “diversity“?

Then they argue that they are losing judges to the federal bench. There are 265 Maryland state trial judges, and only 25 federal judges currently on the U.S. District Court for Maryland. Four of these federal judges came from the state bench and were appointed over a 17-year period. This is a run on the Maryland judiciary?

With this kind of reasoning, I now understand why I have so often scratched my head at decisions handed down by the Maryland appeals courts.

Fundamentally, what the judges really believe is that they should be paid just like federal judges. Not other state judges, where they currently rank 13th amongst the states (and 6th for Chief Judge Bell.) . Federal judges.

They offer no analysis for this. No justification. It’s just a claim.

I think a case can be made for increasing the salaries of many of the judges by some appropriate amount. It’s too bad that the Judicial Compensation Commission didn’t make that case. They just swallowed what the judiciary told them and recommended obscene increases at a time when state employees are being furloughed.

Salaries ought to be tied in some way to what judges actually do, what the stakes are for the parties who appear before them, and to the impact their decisions have on the public. And if the Judicial Compensation Commission was the least familiar with what happens in the Maryland District Court, they wouldn’t recommend any raises at all for its 112 judges. In fact, they would tell the General Assembly that unless it gives the District Court meaningful work to do in criminal court, it’s a colossal waste of money.

I’ll explain why in the next two articles.

Attorney General Douglas Gansler recently wrote a piece in the Baltimore Sun arguing that no judges should be elected. Presumably this would de-politicize the selection of judges.

Immediately Governor Martin O’Malley undercut this argument with his appointment of Thomas V. Miller III, son of Senate President Thomas “Mike” Miller, as judge. Young Miller applied to be a judge in Anne Arundel County and was left off the list of recommended candidates sent to the governor by the county judicial nominating commission. O’Malley tore up the list and demanded another, which just happened to include Miller. (See The Politics of Picking Judges.)

After several members of the nominating commission resigned in protest, O’Malley laid low for a year. But last week he quietly appointed Miller to the Anne Arundel County bench.

We don’t need elections to infuse judicial selections with politics. We’ll always have governors looking to seek or grant political favors.

And what will Senate President Miller do now that son Judge Miller’s salary is in his hands?

The Guilford Robberies & more

CEM — Thu, 21 Jan 2010 16:37:35 -0600

The Guilford Robberies

Leave it to Margaret T. Burns to once again victimize the victim of a crime.

John Couplin robbed Christine Dolde at knifepoint in 2008, and Dolde, who had given a detailed description, identified his photo. Burns called Dolde’s identification “minimal” evidence.

This is the same Burns who ignited a firestorm in 2008 when she described Zach Sowers, the victim of a fatal beating, as a “sleeping baby” when taken to the hospital, and attributed his injuries to falling between two cars. Her comments caused his widow, Anna Sowers, great mental anguish.

Likewise, Dolde told me that reading Burns’ comments in the paper “really hurt. No one ever told me the case was weak.” In fact, she said she was told how good a witness she would be.

Burns lacks humanity and respect for the truth. State’s Attorney Patricia Jessamy, her boss, lacks imagination and accountability.

Let’s take John Couplin.

Couplin has been accused of recent armed robberies in the Guilford neighborhood, including a chilling kidnapping that evokes memories of Dontay Carter, a notorious murderer of two decades ago. Couplin hasn’t killed yet, but he’s following the same trajectory.

At the time of the new crimes Couplin was on probation for the 2008 armed robbery of Dolde, the case that Burns claims had “minimal” evidence. What many may not know is that in 2006 Couplin was charged with trying to rob another woman at knifepoint as she walked toward the school where she worked, the same school he had attended before he was kicked out.

When the woman convinced him she had no money he fled, but was caught shortly thereafter based upon her detailed description. Police found the knife on him, and Couplin admitted his crime.

Even Burns (who is not an attorney) could win that case. Couplin, who was 16 at the time, was charged as an adult. His attorney asked the judge to transfer his case to juvenile court, but court records show no ruling on the request.

The records do show that Couplin was being held at the Mountain Meadow Youth Center in Grantsville, Maryland, a substance abuse facility for youths.

After several postponements, the prosecutor dismissed the case. I asked Burns’ office for the reason. No response.

So I called the victim in the case to find out what she knew. She said that she was asked not to press charges because they were going to give Couplin some kind of treatment. She agreed to this though she was skeptical about the results. She heard at work that Couplin had robbed another woman two weeks before he tried to rob her. She also heard that he and other family members had been in lots of trouble. Treatment didn’t sound promising.

Then I checked on the court recording. Prosecutors dropped the case because they recharged it in the juvenile system.

Now according the Sun, Couplin had 17 juvenile arrests and two “convictions” for armed robbery. I have to presume those convictions were for the two 2006 incidents. We don’t know for sure because juvenile records are supposed to be secret.

But we are left to wonder why prosecutors, who had a great case on an armed robber with a horrible juvenile record, decided that a juvenile substance abuse program was in order. Prosecutors throw away strong cases at their peril, or should I say the public’s peril. I understand the motivation to reform a juvenile, and am not prepared to say their decision was unjustified without knowing all the facts. But there may have been alternatives in the adult system that would have accomplished the same purpose and better protected public safety.

So here comes Couplin wielding a knife again in 2008. Prosecutors had to know how dangerous he was now, but they were afraid they would lose their case without evidence to corroborate Dolde’s identification. So they took the conviction on a plea bargain and settled for probation.

I get this. While the position Jessamy has taken in the past is awful--that she won’t try cases based on a single witness--the fact is that it would have been a tough case to prove to a jury beyond a reasonable doubt. That would not have excused failing to try the case if Couplin would not take a deal, but it does explain a plea bargain. It may be upsetting to citizens, especially in hindsight, but prosecutors have to decide what would be in the best interest of public safety. If they felt that Couplin would beat the charge, it made sense to take a bird in the hand.

But only if the plea deal provided some protection for the community. And here’s where Jessamy utterly failed because she just continues to do business the same old way. Once Couplin, this repeat armed robber, went on his merry way, the prosecutor’s office didn’t care about him any more. He was just another person for the probation office to handle.

Couplin was arrested for theft in Baltimore County and allowed by a county judge to post bail of $7500. What did city prosecutors do? Nothing. They weren’t tracking him.

Couplin’s probation agent notified the probation judge, John Howard, of this arrest. Howard issued a warrant for Couplin, but instead of holding him without bail Howard set a $500 cash bail, which Couplin posted. Where was Jessamy’s probation unit, the one that is supposed to focus upon violent offenders? Just waiting for his hearing. Which, by the way, is at the end of this month.

Free again, Couplin was arrested for trespassing and released without having to post any bail. City prosecutors then dropped the trespassing case. And still did nothing about Couplin being on the street.

And then came the Guilford robberies, a clear indication that Couplin, if he’s the right man, had escalated his assaults from knives to guns and tossing his victims into car trunks. Jessamy thinks she did everything right. She did, according to the old formula. Take a plea, wait for a probation hearing. So much for focusing her resources on violent offenders.

And judges continue to do business the same old way. Judge Howard’s explanation to the Sun for the original plea deal was reasonable. The deal was driven by the prosecutor. But Howard’s handling of the probation was not.

In The Empty Threat of Probation I pointed out that probation judges frequently ignore the crimes for which defendants are on probation and only pay attention to the new charges. Couplin is Exhibit A. That he was a dangerous, repeat armed robber was so obvious he should have been yanked off the street at the first deviation from the rules. Otherwise, what point was there to getting a conviction through a plea deal? But Howard gave Couplin a low bail on his violation of probation warrant because his new crime was merely theft.

As for the prosecutor, I understand his desire to get what he perceived as a sure conviction. It demonstrates what was lost, however, when he tossed the 2006 case into the juvenile system.

But reporters failed to ask the key follow-up question of Burns, Howard and Jessamy: if getting the conviction was so important that it justified probation, why didn’t they do something meaningful when Couplin was arrested again while on that probation?

Because they were doing business the same old, same old way.

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Juvenile record confidentiality

The reason that juvenile records are secret is to allow young people the chance to turn their lives around. I get that and I support that.

But once a juvenile is convicted as an adult the reasoning falters. Why should Couplin, a convicted armed robber, someone who didn’t learn from his juvenile mistakes, have a confidential juvenile record? Why should we be prevented from understanding how he was handled in the juvenile system?

The law on juvenile record confidentiality needs to be changed to open the records upon an adult conviction. They also should be open in every circumstance to those in the criminal justice system who have to make public safety decisions.

This is not to say that those records should be available on employee background requests. I will offer my opinion on that issue at some time in the future.

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Kudos

The Couplin case isn’t without some encouraging signs. First, Couplin was kept off the street for nearly a year while his 2008 armed robbery case was pending thanks to Judge James L. Mann, Jr., who held him without bail. Somebody recognized the danger.

And the Division of Probation and Parole seems to be making progress in changing their culture, even if it took a few weeks to notify Judge Howard of Couplin’s new arrest for theft. In the past agents routinely requested “no action at this time” for new, non-violent arrests. This time they recommended a warrant. Too bad it didn’t lead to Judge Howard taking him off the street.

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Mea Culpa

Recently I complained about people who don’t read my articles carefully and make erroneous interpretations of what I write. So I must own up when my own carelessness creates a wrong impression.

In Endless Refrains I referred to an article in the Wall Street Journal, A Crime Myth Exploded. I had just read the article, found it interesting, and intended merely to pass it along. But my context might have caused people to assume that I endorsed the article’s premise.

I don’t. The main point of the article was that since crime rates have not risen in a receding economy or fallen in an expanding one, it’s a myth that crime has its roots in poverty and social inequality.

While the statistics were interesting I don’t buy the conclusion, it’s too simplistic for the complex world of crime. I understand the thinking, though. Take a recent murder that occurred in East Baltimore. A young man, Danell Freeman, got into a physical fight with another young man. A third young man retrieved a gun from a house and shot Freeman dead.

For what? Not money. This wasn’t an economic crime, it reflects a mentality. A mentality where non-deadly force is met with deadly force, where disagreements an insults are handled with gunfire.

But you can’t tell me that poverty and social inequality didn’t play a huge role in the creation of that mentality. It’s no coincidence that gangs and the violent drug culture have largely taken root in poor, urban, non-white areas.

What was most interesting to me about the article was the argument that good policing has an effect even in the midst of social ills. We can work on better policing and crime response at the same time that we are working on social issues.

Speaking of crime response, I’ve recently read a book on the subject that’s thoughtful, comprehensive, and balanced. It handles all the tough subjects--guns, drugs, juvenile crime, incarceration rates, racial disparities--and does it with research, data, historical perspective and a non-ideological view. At some future date I will summarize its conclusions for those who don’t have the time or inclination to read a scholarly book about crime. But for those who are interested it’s called The Challenge of Crime: Rethinking Our Response, by Henry Ruth and Kevin R. Reitz.

Endless Refrains

CEM — Thu, 07 Jan 2010 11:20:12 -0600

The headline on a mid-December Sun news story read: Endless refrain of ‘bad guy with a gun.’ The story chronicled the all-too-familiar story of a convicted murderer who despite many new arrests was free to shoot two more people before police officers fatally shot him. Frustrated and angry, Police Commissioner Fred Bealefeld railed about the failure of the criminal justice system to keep these criminals off the street.

In direct response to the article, a Hopkins professor wrote a piece which, to be consistent, the Sun should have headlined, Endless refrain of ‘better prevention.’ (“Arrests aren’t enough,” December 27.)

Each time someone calls for a more effective criminal justice system, someone else calls for better jobs, education, and so forth. That’s okay, it’s just a different issue. (And those interested in that issue should take a look at A Crime Theory Demolished, published January 5 by the Wall Street Journal. It suggests that income inequality may not lie at the root of crime.)

At least the professor acknowledged the need to “get good convictions and get long sentences for ‘bad guys with guns.’” But we don’t need any more Endless Generalizations about problems and solutions. We need specifics. So let me provide one example that specifically illustrates some fundamental problems with the criminal justice system and why bad guys with guns are on the street.

One day last October a young man named Jonathan Miller was, according to witnesses, acting as a lookout while an accomplice was attempting to jimmy a car’s ignition. When a witness approached the accomplice fled, but Miller pulled a gun and pointed it at the witness before retreating into his own house on the same block. When police arrived they found damage to the car’s lock and ignition, and arrested Miller when he answered their knock on his door.

(Here I have to pause the narrative and compliment the police, because their next step was to get a search warrant to search Miller’s house. Too often have I seen the police make an arrest at this point and decide their job was done, failing to pursue further evidence.)

When police served the search warrant they did not find the gun but did find dozens of small vials containing suspected cocaine residue inside his bedroom ceiling. So now we have a description of Miller pointing a gun together with evidence that Miller is in the drug-dealing game, a combination that, along with his youth (age 18), screams out violent threat.

Miller’s bail was initially set at $50,000. But Judge Jack Lesser learned at Miller’s bail review that Miller was pending an assault case in Baltimore County and was on three juvenile probations. Remarkably, Lesser held Miller without bail, an atypical judicial response to this set of facts.

The police did not analyze the drug residue by the November trial date, which caused the prosecutor to request a postponement. Miller was equally unready to proceed because his lawyer was out of the country and the lawyer’s associate had just met Miller in court that day. But curiously, the need for delay was treated as the State’s alone. The unprepared defense attorney said that if the judge was “inclined” to grant the State’s postponement request would he please set a bail of $50,000. Translation: Miller can make this bail, and he ought to be set free rather than allow the State to hold him in jail when it isn’t ready for trial.

The prosecutor could have asked for a short postponement and demanded that the police analyze the drugs. She could have argued that Miller was such a danger that he still needed to stay in jail while the State obtained the lab results. She could have decided to try the case without the drugs, in which case Miller would have certainly requested a postponement or a jury trial and delayed the case himself.

But she sat mute. Judge Nathan Braverman proceeded to review the bail and asked about Miller’s juvenile record. The conversation went approximately like this:

Prosecutor: I don’t have his juvenile record, but the defendant said he is on juvenile probation.

Defense attorney: I don’t have it, either. (Turning to client.) What are you on probation for?

Miller: Marijuana.

Defense attorney: Marijuana, your Honor. No violent crimes or anything like that.

So the only “evidence” about Miller’s juvenile record came from Miller. And no one mentioned that Miller was pending an assault in Baltimore County, a fact that was sitting in the court file for the judge to see.

Judge Braverman set an even lower bail (by half) than Miller wanted and he went free that day. Oh, I almost forgot: Braverman set a curfew of 8 p.m., telling Miller that if he didn’t obey the curfew he would go back to jail with no bail. Braverman didn’t say a word about who was supposed to check on Miller. It was the honor system.

So off Miller went. And less than a month later, a few days before Christmas, he was arrested for the stabbing murder of Joshua Hargrove at a party at the Great Blacks in Wax Museum. A party that took place, of course, after Miller’s curfew.

Perhaps Hargrove might have been murdered without Miller’s presence at the party, since according to police Miller was one of several that attacked Hargrove. We’ll never know. But we do know that the criminal justice system had its chance to keep Miller from the scene and fumbled the ball.

The Hopkins professor who wrote “Arrests aren’t enough” called for an end to “finger-pointing.” When it comes to politicians blaming each other, I quite agree. But when it comes to public officials who repeatedly undermine public safety, we need more finger-pointing, not less. What did Judge Lesser understand that Judge Braverman didn’t? That young men in the drug business who point guns and have repeated arrests and probations spell D-A-N-G-E-R.

State’s Attorney Pat Jessamy deserves finger-pointing, too. Her attorneys clearly don’t have the records that they need, and they lack the training to recognize and properly handle threats like Miller. This is something Jessamy could have fixed years ago and still hasn’t. Yet soon she will be running around Annapolis telling the 2010 General Assembly all the things she could do with more criminal laws.

And let’s not leave the police department off the hook. I thought they had that old problem with late laboratory reports solved. Apparently not.

But the missing lab report didn’t justify the release of Jonathan Miller to the street. Commissioner Bealefeld is right to be outraged at the way that bad guys with guns are handled. Don’t talk to him about prevention programs. Miller was in school, working part-time, and living with a mother who owned her own home. Yet his criminal behavior fell to Bealefeld and his police officers to handle, and then to the courts. And once there, the system failed. Again.

And we know why. Miller’s case is not unusual. We have judges and prosecutors who don’t recognize what individuals need special attention. Knowing the cause, the problem can be addressed.

Will it? Or will we have more endless refrains?

Ideological Blindness

CEM — Mon, 04 Jan 2010 10:28:00 -0600

No sooner do I write in Reflections on 2009 that some advocates have a hard time perceiving what other people are saying than Mary Joel Davis steps up to prove my point.

Davis founded and runs Alternative Directions, a non-profit agency that works with prisoners and attempts (commendably) to integrate ex-offenders back into society. She began her attack on my article with, “Can anyone say conspiracy theory?” Um, conspiracy with whom to do what?

We never find out. But she stated as fact that I am “completely against diminution credits for prisoners and the state’s system of mandatory release from prison…”. In all my writings on the parole system, I never said such a thing. I don’t believe such a thing. What a ludicrous interpretation to make.

In Early Release for Bad Behavior I criticized a system that awards good-time (diminution) credits to prisoners before they earn them. I also criticized the Department of Correction (and later the Parole Commission) for consistently failing to revoke good-time credits for bad behavior.

This is vastly different from opposing all good-time credits. But to a passionate advocate, criticizing any part of a system apparently is the same as rejecting all of it.

In my article I stated that a parolee named Charles Owens was released from prison early after he got to keep all of his good-time credits despite several serious prison infractions. Ms. Davis claims that this was an attempt to “make it sound” like the Parole Commission exercised its discretion to parole Davis, rather than being released because he had enough credits. Huh?

Then she claimed that the Parole Commission had “no sound basis” to keep Owens in prison on a parole violation. Here she unwittingly underscored the point I was making. “No sound basis” is a euphemism for a minor parole violation. While the Violence Prevention Initiative tries to keep violent offenders off the street using minor violations, parole commissioners often will not. Owens, after parole commissioner David Blumberg changed his warrant for arrest to a subpoena, went out and shot someone with a gun.

And when I mistakenly called that shooting a murder instead of an attempted murder—and corrected it immediately on my own initiative—Davis assigned to me a deliberate intent to “spin” my own agenda, even though the difference between murder and attempted murder made no difference to my illustration.

One of these days I hope that some advocate will take off the ideological blinders, carefully read my articles, and simply disagree with what I actually am saying, rather than distorting my statements. For example, how about saying, “I disagree with Page’s position that violent offenders should be locked up for minor violations of parole or probation, and here’s why.” Wouldn’t that be refreshing? Wouldn’t that actually contribute to a meaningful public discussion of an issue?

What I find the most interesting about Ms. Davis’s response to my article, however, is the fact that she, who is not an employee of the state Department of Public Safety, was obviously fed information about Charles Owens that state officials will not release to the press or public, citing Maryland law. In other words, some officials will obey the law if they can hide their actions behind it, but feel free to leak information to mouthpieces like Davis if they think it will justify them. (This seems to happen when I mention Blumberg in an article.)

Well, on to 2010. Human nature will not change. But perhaps some things can be changed in the coming year to improve public safety. My New Year’s wish is that it won’t take some monstrous tragedy to do it.

For example, notice how the abduction and murder of an Eastern Shore girl has led to a proposal to disallow good-time credits for child molesters because the suspect is a convicted child molester? It’s a wrong-headed response. But it’s what we get when we tragedies and political responses drive reform rather than thoughtful consideration.

Reflections on 2009

CEM — Mon, 21 Dec 2009 10:16:18 -0600

After I retired from the Baltimore prosecutor’s office I went to the Baltimore Sun with a proposal to write a series of articles on the criminal justice system and why it wasn’t working. When I submitted my first piece on a violent criminal who was repeatedly set free, an editor took out the names of all the officials involved and wrote that the criminal had “slipped through the cracks” of the criminal justice system.

I’m sick of that stupid, journalistic cliché. The criminal justice system wasn’t a good system with a few cracks. It’s been a giant mud hole in which the wheels of justice spin without going anywhere. It’s had no direction, no goals, and no ability to evaluate itself.

I was also astonished by the editor’s refusal to name names. What kind of accountability can citizens expect when officials operate in the dark?

So I withdrew the article and began this blog. And I was quickly struck by how illiberal certain liberal advocates can be. They seem to have a hard time listening to other points of view, or even to perceive what someone else is really saying. Those who pressured Marc Steiner to take me off his website because they don’t like my viewpoint ought to feel ashamed. I want to thank Marc for supporting free speech and diversity of thought.

Contrary to the belief of those who think I want to lock up every criminal up and throw away the key, I have never advocated such a thing. I want the system to focus on the right people, the ones who pose a violent threat and cannot be safely supervised on the street.

How are we doing with that? Here are a few thoughts as 2009 winds down.

Baltimore State’s Attorney’s Office. As a former career prosecutor, I wish I could say the office was the bright light it could and ought to be. But it is led by Patricia Jessamy, who has surrounded herself with sycophants who won’t tell the emperor she has no clothes. In fact, her closest advisors wear the same invisible clothes. Jessamy suffers from a debilitating insecurity that has made her ego more important than her results. She’s done little to change prosecutorial practices, undermines the police department, and rides the coattails of other agencies that have shown initiative and innovation. Unfortunately, we’re stuck with her.

The Judiciary. At December’s Baltimore Criminal Justice Coordinating Council the outgoing chair, Judge John Miller, was presented with several citations for his service to the council. Too bad I couldn’t tell from two years of attending his council meetings exactly what Judge Miller did to change the judicial culture and its enormous impact on the criminal justice system.

U.S. Attorney’s Office. I have given a lot of credit for Baltimore’s reduced murder/shooting rate to U.S. Attorney Rod Rosenstein, and I still feel that way. He has blazed the way in focusing resources and creative techniques on catching the bad guys. But the departure of his point man, Jason Weinstein, has hurt the inter-agency efforts that Weinstein was so good at leading. We will see how 2010 unfolds.

Mayor’s Office on Criminal Justice. This office, headed by Sheryl Goldstein, has tried to show innovation through programs such as Gunstat, which tracks gun cases and tries to hold police and prosecutors more accountable for results. If only Goldstein and the police department had a true partner in the prosecutor’s office…

Department of Public Safety. Here the left and right hands are working at cross-purposes. On the one hand there is the Violence Prevention Initiative, Governor O’Malley’s attempt to stamp his imprint on crime efforts. Unlike prior bad O’Malley ideas this one has merit. Parole and probation agents are supposed to get violent parolees and probationers off the street when they don’t obey even minor conditions of their freedom.

But prison officials and parole commissioners continue to march to their own tune, failing to take good-time credits from misbehaving prisoners or revoking parole when they fail to follow the rules. A recent case in point is Charles Owens, on parole for felony drug and handgun convictions. (These are the deadly duo, drugs and guns, but many in the criminal justice system still don’t get it.) Despite prison infractions for drug possession, rioting, and assault on prison staff Owens got to keep all of his good-time credits and was released after serving less than two years on a three year sentence.

It didn’t take long for parole agents to request a warrant for his arrest. But a month after it was issued the chair of the Parole Commission, David Blumberg, changed the warrant to a subpoena, leaving Owens on the street. Two months later, Owens was arrested for attempted murder and using a handgun in a violent crime, and was convicted this past November.

Owens didn’t slip through any cracks. He represents how our system still works.

All agencies have to be on the same page. It isn’t good enough if only one agency, or part of one agency, gets it.

But at least some are trying. And that’s a good thing to bring to a new year.

December 9, 2009 - Hour 2

CEM — Wed, 09 Dec 2009 17:39:57 -0600

For our second hour, we talk with Alexandra "Sascha" Natapoff, Associate Professor of Law at Loyola Law School in Los Angeles. Marc talks with Prof. Natapoff about her new book, Snitching: Criminal Informants and the Erosion of American Justice. We explore, through several case histories, if the practice of snitching is helping or hindering criminal justice in the United States.

The Sad Truth Behind the Statistics

CEM — Wed, 09 Dec 2009 13:31:53 -0600

Baltimore State’s Attorney Pat Jessamy has gotten very, very good at torturing her law enforcement partner, the police department. She can take an insult and make it sound like a compliment. And she continues to wield statistics like a hammer.

The most recent example can be found in a story reported by the Baltimore Sun. Police, prosecutors working better together, Jessamy says. (Nov. 27) Jessamy says that police and prosecutors are collaborating better together because her statistics show that fewer criminal cases have been dropped for “legal insufficiency.”

Her statistics show no such thing. And just by making the claim she reveals how much she intends to control public perception of police performance, hardly the thing any true collaborator would do.

In truth, the working relationship between ordinary police officers and prosecutors hasn’t changed much over the years. Only the relationship at the top has changed, the one between Jessamy and whoever happens to be the police commissioner. It changed because Jessamy attacked the police department as a way to fight her feud with Mayor Martin O’Malley nearly 10 years ago, and it proved so politically fruitful for her that she just can’t stop. Jessamy’s word for the police-prosecutor relationship is “schizophrenic.” That is what she and she alone has made it.

A great example of her “schizophrenia” can be seen in the very article in which she claims to give us positive news. First she claims progress has been because fewer cases have been dropped. Translation: the police are doing a better job. Then she gives them the back of her hand, stating that “we still have a long way to go” because of a handful of police no-shows in court. In other words, any problems that exist all lie with the police. And she, and only she, can report on when they are doing well and when they are not.

If Jessamy’s statistics really could be used to assess police performance, that would be one thing. But they can’t. Jessamy’s favorite term to describe why she drops cases is “legal insufficiency,” and this she always puts on the police. But legal insufficiency can mean anything, including witnesses who recant, lab tests that come back negative, police officers who are deployed to Iraq and can’t testify. These have nothing to do with police performance. And I have seen as many lazy prosecutors who refuse to try a case they ought to try as I have lazy police.

So “legal insufficiency” is in the eye of the beholder and the beholder is Jessamy. But what is she even beholding? Not once during my years of gathering statistics for Jessamy did she meet with any supervisors to discuss the significance of the statistics. What did they say about individual prosecutors? About the office and how it handled certain types of cases? Did all prosecutors even turn in their statistics? (No.)

Jessamy conducts no internal analysis and holds no one in her own office accountable. She creates statistics only to interpret them for others, knowing that no one reads or understands them.

But I do. And when I see a claim that the collaboration between police and prosecutors is improving because only 42 cases were dropped through August compared with 113 in all of 2008 I did a double take. What Jessamy’s statistics really say is that 75 cases have been dropped through June for what she calls legal insufficiency. That projects to 150 for the year—nearly a third more than in 2008.

So beware of Jessamy’s compliments of the police. Based on the same faulty premise as her criticisms, they serve only as a form of control, a bone thrown with one hand while the other wields a whip.

There will be no true police-prosecutor collaboration as long as Jessamy remains in office. And that’s the real truth behind her statistics.

Real Facts, Real Costs

CEM — Tue, 24 Nov 2009 16:00:38 -0600

Tuesday’s Baltimore Sun opinion section featured one of its periodic
pieces that flows from Doug Colbert, a practicing defense attorney who
also teaches law at the University of Maryland. Written by students in
his Access to Justice clinic, the “High Cost of Pretrial Jailing”
article sounded Colbert’s persistent theme: people are locked up
waiting for trial when the money spent on their incarceration could
better be spent on alternatives.

Colbert is particularly interested in having all persons represented by
lawyers during the entire bail process, believing this would make a
huge difference. While he (like his students in their article) point
out the cost of incarceration, I have yet to see his estimate for the
cost of providing immediate free lawyers to all arrested offenders 24
hours a day throughout the state. It would be, needless to say,
enormous. And whenever citizens are presented with the “cost” to
incarcerate someone, they should remember it usually includes include a
fixed overhead that would be present whether or not a particular
individual is locked up.

So I find incredible the claim by Colbert’s students that letting 300
persons out of pretrial detention per month would save taxpayers $10
million a year. Not only does such an estimate include fixed costs
that would not be saved, it omits the costs associated with increased
supervision and representation. And it utterly ignores the number of
people who commit more crimes while waiting for trial, and the costs
for that.

If I thought that universal legal representation at bail proceedings
would actually make a difference, I might be more persuaded that it was
a good thing to do, assuming we knew the real costs. I happen to
believe that our current bail system discriminates against the poor and
could be improved.

But there isn’t enough time at the bail stage to do the “investigation”
necessary to confirm much information about arrestees. The bail
process moves quickly to minimize the time that most people are
detained. For the minority who remain in jail after bail review, a
government agency already exists to help them: the Public Defender’s
Office, whose attorneys in the district offices are under-whelmed with
work. If they spent a little of their excess time on bail issues after
bail review, perhaps they could make a difference.

Citizens—and journalists--presented with the Colbert’s bail reform
proposals should read him very carefully. As I pointed out in Lots of
Money, Little Justice Colbert, as an advocate, is not above omitting
the other side of the story.

And listen carefully to his students, who use Colbert’s style of
attaching a sympathetic description to each offender and minimizing key
facts: “The defendant, a veteran of Iraq, never failed to appear for
court and had only one previous conviction for using marijuana, which
resulted in his current probation. But he was still
incarcerated…simply because he could not afford his $1,000 bail.”

Naturally, we aren’t told any of the facts of the new charge for
marijuana possession, which judges find important. But a key fact,
carefully minimized by the students, is that the offender is already under supervision on the street for the same charge. Judges might resaonably feel that further supervision on the street is not appropriate.

Then
there’s the 63-year-old “husband” jailed for nine days because he
“missed court and could not make the $100 bail.” (I guess being a
husband was the only positive thing they could come up with in his
case.) But this guy—whose criminal record is tellingly omitted by the
students—was only locked up because he failed to appear in court,
wasting court and police time. Colbert never includes these costs in
his calculations.

I appreciate Colbert’s advocacy and zeal. I am more sympathetic to
reforming the bail system than he thinks. But when it comes to
throwing public money at “good ideas” to solve problems I have become
very conservative, having spent two decades observing waste in the
criminal justice system. Let’s get all the real facts and all the real
costs, and then we can make the best decisions.

***

Speaking of costs, another article in Tuesday’s Sun was a follow-up to
the hubbub over the 100% salary pension for part-time legislators in
Baltimore County (“Balto. County councilman acts to limit pensions.”)
I am glad to see there’s a hubbub and that someone is trying to do
something about it.

But there’s another waste of money that’s been quietly going on for
decades, and that’s the resources poured into the district criminal
courts. The fact that the Public Defender’s office is under-occupied
in the district court is just one of the symptoms. I will write more
extensively on this after Thanksgiving.