Criminal Law and Policy News and Events for the University of Arizona Community

The U.S. Commercial Bail Bonds Pretrial Release System:

Globally, for-profit pretrial release systems are a rarity, the U.S. and the Philippines being the exceptions.  The New York Times has an interesting article that looks at the pros and cons of our system and takes an in-depth look at one bondsman's business.  Of the commercial bail bonds system, Temple University professor of criminal justice John Goldkamp said, "It’s really the only place in the criminal justice system where a liberty decision is governed by a profit-making businessman[.]"  In some instances corruption has plagued the system, and bail bondsmen are lightly regulated and at times even operate outside the realm of defendants' Constitutional protections.  Moreover, 2 out of 5 defendants are eventually acquitted or charges against them are dropped, but in order to stay out of jail they must pay the bondsman's nonrefundable fee of 10%.  Yet the numbers do not lie:  amongst the various pretrial release methods, surety-bond-using defendants have an increased likelihood to show up in court (see the article's accompanying graph and bar chart).  The percentage of the use of surety bonds has doubled since the early 90's, but KY, IL, OR and WA have opted for systems in which payments are made directly to the courts.  Lots of pros, lots of cons.

LCJSP speaker, Wed., Jan. 30

LCJSP speaker, Wed. Jan. 30:

Robert Hirsh, Chief Deputy Pima County Public Defender, Improving Arizona's Criminal Justice System.

CLE certificate: Download lcjsp_certificate_s08.doc

This week's trials in Pima County Superior Court

This week's Superior Court Criminal trials are shown here:

http://www.pcao.pima.gov/press.htm

Atkins: After 10 Years Defense Attorney Breaks Silence, Claiming Prosecutorial Misconduct; Atkins' Death Sentence Commuted

In the landmark case Atkins v Virginia (findlaw.com), the Court barred executions of the mentally retarded, but it did not decide whether or not Atkins was mentally retarded.  For ten years, co-defendant Jones' attorney heeded VA Bar's ruling that he could not go public with accusations that the prosecutor "coaxed and coached" Jones to testify in a fashion consistent with forensic evidence, thereby bolstering the prosecution's case against Atkins.  VA Bar clears defense attorney to come forward; judge commutes Atkins' death sentence.  Coverage by the Post (washingtonpost.com) and the Times (nytimes.com).

Erroneously Released Man Kills Wife

Here's a terrible story about a convict in jail in Los Angeles who was allowed out pending sentencing for kidnapping his wife.  The Probation Report said he was too dangerous to be released, but the Assistant D.A. covering the case did not have or read the recommendation. He was released, and then killed his estranged wife and himself.  The judge can only decide based on what the parties tell the court.  The defense lawyer is generally ethically required to do what the client asks.  But the prosecutor is responsible for protecting the public safety, which includes keeping dangerous people in, where necessary.

This week's trials in Pima County Superior Court

This week's Superior Court Criminal trials are shown here:

http://www.pcao.pima.gov/press.htm

Scholarship from Arizona: Jack Chin on Yick Wo v. Hopkins

Professor Jack Chin has posted this essay entitled Unexplainable on Grounds of Race: Doubts About Yick Wo Here's the abstract: Yick Wo v. Hopkins is simultaneously celebrated as a classic equal protection case, establishing the rule against discriminatory prosecution, and lamented as both the first and last case in which the Supreme Court invalidated a prosecution as racially motivated. This essay explores why Yick Wo proved to be a dead end. It proposes that the traditional view of Yick Wo is mistaken: Yick Wo was about neither race discrimination nor prosecution. Yick Wo turned on the Court's treatment of the conduct at issue, operating a laundry, as a constitutionally protected property right. Therefore, a forgotten but large body of cases from the Jim Crow-era holds Yick Wo categorically inapplicable to prosecutions for conduct the state has the power to criminalize. In addition, because the property interest at stake was constitutionally protected, Yick Wo's race was irrelevant to the decision; a white person or corporation deprived of property would have had precisely the same claim. In fact Yick Wo's race was a barrier to rather than a basis for relief: He could raise a property claim only because he had a treaty right to operate a laundry on the basis of equality with others. When the treaty was inapplicable, the Supreme Court upheld race-based economic discrimination against Chinese and other Asians. Yick Wo is famous because it apparently foreshadows the anti-racist jurisprudence of the post-Brown era. Read in the context of the jurisprudence of its own time, it is completely consistent with Plessy v. Ferguson, and stands for only the mundane point that a valid treaty trumps inconsistent state law.

Criminal Law Scholarship from Arizona: Therapeutic Jurisprudence and Readiness for Rehabilitation

Here's a recent paper from professor David Wexler: Therapeutic Jurisprudence and Readiness for Rehabilitation, 8 Florida Coastal Law Review 111.  The abstract: After about a quarter of a century, we seem finally to have turned the correctional corner, leaving behind a nothing works mentality, and finally embarking upon a more promising path. Empirical research is indeed suggesting that certain rehabilitative programs can have real value, and correctional authorities are taking note.

Even with such programs in place, however, real success should follow only if incarcerated persons are motivated to participate and to engage fully in the enterprise. What makes for motivated inmates? There is now an emerging body of research on responsivity to treatment or readiness for rehabilitation.

This essay looks through a therapeutic jurisprudence lens at how the LAW - more precisely, how the behavior of lawyers and judges - may impact help-seeking behavior and willingness to undertake rehabilitative efforts.

Jack Chin on Entrapment

Professor Jack Chin is quoted in this provocatively titled article Topless Woman Lured Perverts in Police Sting.  Video included.  Article on the Supreme Court's leading entrapment case here.

Scholarship from Arizona: Marc Miller on Prosecutorial Discretion

Professor Marc Miller and Professor Ron Wright currently at Wake Forest have published this article: Dead Wrong (Utah Law Review, Vol. 2008). The abstract: DNA-driven exonerations offer many lessons for police, for prosecutors, and for legislatures. Many scholars have focused on novel procedures to identify and remedy wrongful convictions after they occur. Scholars have also concluded that in our administrative criminal justice system we need prosecutors who are driven less by testosterone and more by a balanced search for the truth.

In our view, the most enduring changes to the work of prosecutors will focus not on softening their adversarial perspective, but on enhancing and staying true to the traditional core of their work on the front end of the process¿the charging decisions.

In our view, accuracy and honesty in criminal systems face mortal danger when a prosecutor decides what charges to file based on his or her individual assessment of the moral worth of criminal defendants or victims. We believe that errors flourish when the prosecutors' sentencing recommendations aim above all to reach a deal with the defendant to avoid trial, rather than pricing the specific crime that the evidence might prove.

To flesh out these assertions about prosecutors and outcomes we turn to a case study: two stories from Dallas, Texas. The first episode involves the work of the current District Attorney in Dallas to cooperate with the efforts of Innocence Projects as a remedy for an especially high rate of DNA exonerations from the office in recent years. We describe his efforts and explore the limits of after-the-fact remedies.

The second episode from Dallas came to light in a remarkable set of articles from the Dallas Morning News. These reports indicate that prosecutors in Dallas go forward with murder cases in too many cases that deserve lesser charges or no criminal charges at all. At the same time, the office requests probation as the sentence for a murder conviction far more often than other jurisdictions in Texas. In short, the charges and sentences in murder cases in Dallas appear to be both too high and too low. This pattern of outcomes in homicide cases is dead wrong.

We believe that unreliable charging is intimately related to the sort of injustice that drives the innocence movement. Put another way, the two episodes from Dallas are connected. The high level of DNA exonerations we find in Dallas grows out of a fixation on guilty pleas and an indifference to consistent and accurate application of the criminal code. We glimpse the same forces at work in the pattern of original charges and sentences in murder cases. Full text here.