Criminal Sentencing


How serious do Americans think our incarceration crisis is? Their word choice provides a clue.

How serious do Americans think our incarceration crisis is? Their word choice provides a clue.

It may be wonkish and nerdy to admit, but I enjoy the etymological side of public policy quite a bit.

Wait, that sentence itself is pretty incomprehensible. So let me start again.

We may all know “mass incarceration” when we see it (especially in the United States). But where did the term come from? Who used it first? And is it a neutral phrase, or laden with ideological baggage?

That is the conceptual adventure a reader embarks on when they begin a recent article on the Brennan Center website titled “Just Facts: Quantifying the Incarceration Conversation.

In the article, Oliver Roeder explains the roots of the term mass incarceration. That alone makes the article worth your time.

But of special interest is the kind of research that a digitized knowledge base allows us. The existence of digitized articles and scholarship permits talented people like Roeder to track trends in word use. Because of that, he’s able to explain, among other things, how use of the phrase ramped up, and to compare it to the increasing size of our prison population. Here is an example of one of his tables:

Mass incarceration table Brennan Center

Roeder earned his economics Ph.D. at the University of Texas in Austin. Perhaps not coincidentally, Texas is one of the states trying to make inroads in the mass incarceration challenge.

A few years ago, I wrote a story about the possibility for altered sentencing laws in Arizona. It appeared way back in 2012, when the prospects had brightened and then dimmed.

But if Roeder’s analysis shows anything, it is that the concept of mass incarceration has entered the collective consciousness. Supporters and detractors both understand that they must wrestle with the propriety of a historically large prison population.

So maybe it’s time for an updated look. What do you think?

Ak Chin Justice Center, whose ribbon-cutting occurred June 6, 2014. Maricopa, Ariz.

Ak Chin Justice Center, whose ribbon-cutting occurred June 6, 2014. Maricopa, Ariz.

Maricopa, Arizona, was the site of a June 6 community gathering that marked the opening of the Ak-Chin Indian Community Justice Center. The 56,000-square-foot building houses the tribal police department, court and detention center, as well as offices for public defenders, prosecutors and probation staff.

That’s the opening to my news story that will be published in the July/August Arizona Attorney Magazine. That’s also where we’ll include a smattering of photos.

But who doesn’t like more photos? So here are a few in this post. And you can see the whole set on our Facebook page here.

Have a great—and justice-filled—weekend.

Basket-weaving, an important component of the Ak-Chin culture, is apparent in the Ak-Chin Justice Center's design and appointments. The photo shows how the design influences the light fixtures.

Basket-weaving, an important component of the Ak-Chin culture, is apparent in the Ak-Chin Justice Center’s design and appointments. The photo shows how the design influences the light fixtures.

Tribal Judge Brian Burke describes features of the new courtroom space at the Ak-Chin Justice Center, June 5, 2014.

Tribal Judge Brian Burke describes features of the new courtroom space at the Ak-Chin Justice Center, June 5, 2014.

Shawn C Marsh, Ph.D.

Shawn C. Marsh, Ph.D.

Bias? Why should the legal profession be concerned about bias—explicit or implicit?

As surprising as it might be to hear attorneys utter those words, they represent a position firmly held by some.

Meantime, on May 8, lawyers who thought otherwise packed two rooms—in Phoenix and Tucson—to hear an expert discuss implicit bias in the legal profession.

Hosted by the State Bar of Arizona, the presentation by Dr. Shawn Marsh answered my opening question handily: Because, perhaps even more than other professions, the legal profession and the legal system are peppered with decision points, each of which may go horribly awry because human beings are susceptible to bias.

First, let me give you the good doctor’s bio:

“Shawn C. Marsh, Ph.D., is the Chief Program Officer of Juvenile Law at the National Council of Juvenile and Family Court Judges. Dr. Marsh is a social psychologist with research and teaching interests in the areas of psychology and the law, adolescent development, trauma, and juvenile justice. His background includes working with youth in detention and correction settings as an educator and mental health clinician, and he is a licensed school counselor, professional counselor, and clinical professional counselor. Dr. Marsh is affiliated with several academic departments at the University of Nevada, and his publications include numerous articles in scholarly journals such as Youth Violence and Juvenile Justice and Victims & Offenders, as well as chapters in textbooks such as Correctional Psychiatry and Juvenile Crime and Justice.”

His May 8 presentation to a standing-room-only room at the University Club explored the many ways our important decisions are steered by our biases. Spoiler alert: We cannot eliminate them; they are rooted in everyone’s cognitive processes. But we can be more mindful of them, and in so doing, work to minimize their effects.

His approach was humorous and non-confrontational. He shared the many ways we may be seeing the world through skewed eyes. Here is one humorous example that he offered:

Snoop Martha Stewart sterotype

So, Snoop and Martha Stewart give us pause. Excellent. Because pausing before we act is one of the strategy Marsh recommends as you make your way as a human. (Marsh listed about 14 strategies.)

Take a few minutes. Take the Implicit Association Test (which retired Chief Justice McGregor also recommends.) Educate yourself. Expose yourself to other cultures and people.

That last point led to one of the more intriguing anecdotes he shared. He explained that research has shown that relatively brief exposure to praiseworthy individuals in groups that are not yours (“out-group exemplars”) may lead us all to see the entire “other” group in a much more positive light. In fact, even a 30-second positive focus (perhaps in a news or sports story) may yield attitude and behavior changes that last 24 hours.

How can we maximize that effect? Marsh said at least a few courts have uploaded slideshows to serve as the screen-savers on the computers of judges and court staff. In a nation that exhibits disparate treatment (even in sentencing) based on race, viewing a continual slideshow of admirable people of color may have a long-term effect.

(That and other strategies are listed in this National Center for State Courts report.)

Finally, Marsh points out that though attitudes matter, so do behaviors. And those behaviors are often exhibited through our selection of words. So I leave you, as he did, with a great short video on the power that words may have on the actions of us and those around us.

 

 

JAGC tour of superior and municipal courts, May 8, 2014.

JAGC tour of superior and municipal courts, May 8, 2014.

This morning, I am pleased to share a news story that was sent my way by attorney Debbie Weecks. It involves a visit by members of a Judge Advocate General Corps to a civilian court.

If you have law-related news you’d like to share, send it to me at arizona.attorney@azbar.org.

Here’s Debbie:

Our Luke AFB’s JAGC Corps broke with its quarterly Friday classroom from its own court setting and tradition this week. The JAGC instead enjoyed a local field day morning with a tour of the courts on Thursday, May 8. The group kicked off at Surprise Municipal Court at 7:45 a.m., where the Honorable Presiding Judge Louis Frank Dominguez gave a formidable overview of the municipal court system. Judicial Administrative Supervisor Lynn Mikus assisted in creating an instructional handout.

Next, the JAGC was greeted at Superior Court by the Honorable Presiding Judge Eilleen Willett for an overview of operations and court departments. Judge Willett was kind enough to lend her clerk out for the balance of the tour, so the members enjoyed the company and some insights courtesy of clerk John Charles Laws (a 3L at Summit Law). Thanks go out to all four NW Superior Court judges for spending time greeting and on Q&A (Judge Willett, and also Judge Jose Padilla, Judge Michael Kemp, and Commissioner Jacki Ireland), and to all their staff who pre-arranged and facilitated the tour.

The Maricopa County Sheriff’s Office graciously provided its escort, which gave the JAGC the opportunity during a snack break between courtrooms to learn about courtroom and courthouse security from Deputy Tony Jacobs. (A thanks is due to the Surprise location Paradise Bakery’s manager Cheryl for the cookies!)

The Self Service Center is an important service member resource when pro per, so the brief instructional by SSC clerks Marta and David was very useful!

Farther down the hallway, the JAGC was greeted by a prior JAGC officer, now Justice of the Peace, Gerald Williams. The four hour-plus tour ended with the JAGC members observing brief proceedings and interacting with North Valley J.P. Judge Williams and Hassayampa J.P. Judge Chris Mueller. With Judge Williams’ background prior to civilian life, the JAGC members were provided a comparative analysis of how certain matters are treated in the two court systems, including prepared handouts and thorough explanations on some more subtle criminal charge matters. Judge Mueller invited everyone to observe an interpreter in-custody plea bargain.

Overall, a great day for all involved!

Al Jazeera America logo AJAMBeginning this Sunday, May 18, cable news channel Al Jazeera America launches an all-new original documentary series that “explores the state of our legal system.”

Titled “The System with Joe Berlinger,” the eight-part series is directed by documentary filmmaker Joe Berlinger.

The series begins with an examination of the justice system’s use of confessions. The other topics will be: mandatory sentencing, forensics, eyewitness identification, juvenile justice, policing strategies, parole and prosecutorial integrity.

Joe Berlinger

Joe Berlinger

More information is here.

Before I hear from concerned readers (whose hackles may rise at mention of the Al Jazeera brand), I add: I have not been privy to any preview tape, so I cannot prejudge whether and how a balanced presentation is achieved. The director, Joe Berlinger, is an experienced journalist, so I’ve got my fingers crossed.

You may want to read a Q&A with Berlinger.

Here is a trailer for the series. (It is long on production values and short on substance, so it may not tip your viewing habits one way or the other.)

By entering your ZIP Code on the website, you can determine if the channel is available in your viewing area.

Do any of you intend to watch? I am (gasp!) cable-free, so I am unlikely to find a way to see it. But if you do watch it, I’d appreciate hearing your response to the first one that airs Sunday. Write to me at arizona.attorney@azbar.org.

Pima County Bar Association logo

Law Day events continue across Arizona and the nation. Today, I share news of what is happening this weekend in Tucson.

There, the Pima County Bar Association is offering free consultations with lawyers. Surely, you or someone you know could benefit from a conversation about legal issues.

The “Meet a Lawyer” legal clinic will be held on Saturday, May 3, at the Tucson Mall, from 10:00 am to 2:30 pm. There, you and others can have your legal questions answered for free.

As the PCBA says:

“Attorneys will be available to assist individuals one-on-one, for brief, 15-minute intervals. Legal help is on a first-come, first-serve basis. Attorneys will cover a variety of legal topics, yet we cannot guarantee that all legal areas or questions can be addressed throughout the event. Helpful legal resources & handouts will also be available.”

You can download a flier here.

And here is a snapshot of the legal areas and when they will be represented at the clinic:

Pima County Bar Association Law Day will provide free legal advice on many topics.

Pima County Bar Association Law Day will provide free legal advice on many topics.

More information is available at the PCBA website or by calling 520-623-8258.

And be sure to tweet something about #LawDay – let’s get the term trending on Twitter, at least in Arizona!

Does you have privacy rights in what's stored in your cellphone? Supreme Court cases raise the issue.

Do you have privacy rights in what’s stored in your cellphone? Supreme Court cases raise the issue.

A quick question for you on Monday morning: How private is your cellphone?

That simple question underlies some cases facing the U.S. Supreme Court this Term. There, the justices must wrestle with issues of search and seizure when it comes to the ubiquitous cellphone.

When you are asked to empty your pockets (following, we suppose, establishment of probable cause or at least a Terry stop), is your phone entitled to no more privacy than, say, the wad of tissues, or the spare change?

Here is how one news story about the cases opens:

“Two Supreme Court cases about police searches of cellphones without warrants present vastly different views of the ubiquitous device.”

“Is it a critical tool for a criminal or is it an American’s virtual home?”

“How the justices answer that question could determine the outcome of the cases being argued Tuesday. A drug dealer and a gang member want the court to rule that the searches of their cellphones after their arrest violated their right to privacy in the digital age.”

“The Obama administration and California, defending the searches, say cellphones are no different from anything else a person may be carrying when arrested. Police may search those items without a warrant under a line of high court cases reaching back 40 years.”

“What’s more, said Donald Verrilli Jr., the administration’s top Supreme Court lawyer, ‘Cellphones are now critical tools in the commission of crimes.’”

Read the whole story here.

And let me know where you stand on the privacy rights attendant on that phone in your pocket.

Maricopa County Justice Museum and Learning Center Foundation logo

What could be a better match for Change of Venue Friday than the promise of a cellblock tour?

I’ve written about the unique cellblock and its museum here. It is a remarkable reuse of a space that other states and cities might have boarded up and left forever. As the museum’s website describes the former Maricopa County jail:

“This unique museum opened in 2012 and is centered around a restored cellblock on the sixth floor of Maricopa County’s Historic old Courthouse—the Courthouse has been renovated to its 1929 grandeur. While visiting the museum you will get a sense of Maricopa County’s legal history, its court cases and important elements of the Rule of Law, including individual rights and liberties guaranteed in the United States and Arizona constitutions. To our knowledge, it is the only such museum in an active courthouse in the county.”

The museum is located at 125 W. Jefferson, Phoenix, and is open from noon to 1:00 pm Monday through Thursday.

So I promised news about taking a tour. Information about that is here.

And take a few minutes to watch a video about this unique experiment in architecture and legal history.

Have a great—and incarceration-free—weekend.

Bills of mortality preceded modern death certificates, and they suffer from similar challenges.

Bills of mortality preceded modern death certificates, and they suffer from similar challenges.

Years ago, in a job-related field trip, I attended a tour of the medical examiner’s facility in Clark County, Nevada. As the chief office of the pathologist for Las Vegas and its environs, it was a busy place.

Like most of the living, I had never given much thought to the multiple tasks that must be performed on the dead—especially if they died under suspicious circumstances or not under the care of a doctor.

As I learned that day, the task of the M.E. is often a complex one. And nothing is more complex than the element that is often the sole source of interest for others: affixing the single cause of death.

I was reminded of that challenge during a State Bar of Arizona CLE a few weeks ago. There, a pro-con was staged on the legalization of marijuana. Though the wider acceptance of medical marijuana may suggest we’re approaching legalization, the topic is still a thorny one, as evidenced by the vehement dialogue at the CLE.

Sure as no-rain in Arizona, though, a recent death was raised, one that may suggest more questions than answers.

As background, we recall the oft-repeated position of marijuana advocates that not one death has ever been attributed to pot—and compare that with the millions killed by cigarettes and alcohol.

It’s a compelling statistic, one that continues to irk enforcement advocates. And that may be why we have heard advocates mention a Colorado death a lot the past few weeks.

The story (reported here by the Denver Post) is about a young man who jumped to his death after eating marijuana-infused cookies. Here’s the story lede:

“A college student visiting Denver jumped to his death from a hotel balcony after eating marijuana-infused cookies, according to a coroner’s report that marks the first time authorities have publicly linked a death to marijuana since legal sales of recreational cannabis began in Colorado.”

“Levy Thamba, a 19-year-old student at Northwest College in Powell, Wyo., died last month at a Holiday Inn in northeast Denver. On Wednesday, the Denver coroner released a report concluding that Thamba’s death was caused by ‘multiple injuries due to a fall from height.’”

“The coroner also listed ‘marijuana intoxication’ from cannabis-infused cookies as a significant condition contributing to the death. The report classifies the death as an accident.”

At the Bar CLE, Maricopa County Attorney Bill Montgomery alluded to the death, saying that it punches a hole in his opponent’s argument.

But does it?

An article this month in the New Yorker would suggest any coroner’s conclusion is a more nuanced one. In “Final Forms: What death certificates can tell us, and what they can’t,” Kathryn Schulz explores the history of one of civil society’s most ambiguous documents (you can read some of her great article here; sorry, but a subscription wall prevents you from reading the whole thing). And resting your argument on such a piece of paper may not tell the whole story.

Huckleberry Finn had many skills, but determining causes of death was not one of them.

Huckleberry Finn had many skills, but determining causes of death was not one of them.

Schulz opens by describing the meandering history of “bills of mortality” and the coroners who wielded them. The shift from the publicly published bills to the modern-day death certificates has been accompanied by increasing professionalism—but they still may not be the scientifically accurate document the certainty-loving may hope for.

Along the way, Schulz notes, coroners have been known to alter a cause of death to protect reputations or to soften the blow felt by grieving families of means. But if death certificates may be used to protect the dead, could they also be used politically to throw aspersions on the dead? Sure, but that’s not even the biggest challenge.

The toughest nut to crack for M.E.s may reside in the question posed by us lay-people: “Finally, what was the one thing that killed him?

As Schulz writes, “The why of death remains elusive—practically, philosophically, above all emotionally. And, the more extensively we attempt to document it through death certificates, the stranger and more troubled that project comes to seem.”

So if the accuracy of death certificates faces numerous challenges—as Schulz shows—a primary one “is how we decide what counts as a good answer.”

In that exploration, I was extremely pleased to see her turn to Mark Twain, specifically a passage from Huckleberry Finn. It involves a conversation between the stubborn Huck and the Wilks sisters, who are having none of his malarkey.

“One afternoon,” writes Schulz, “while chatting with the Wilks sisters, Huck spontaneously invents a new disease—a form of mumps so virulent that, he claims, a neighbor is in danger of dying from it.”

One sister objects, but Hucks doubles down, saying it can kill the neighbor because it’s “mixed up with other things,” from “yaller janders” to “brain fever.”

Susan Wilks—whom I hope inspires M.E.s everywhere—will have none of it, reminding Huck that it is therefore not the mumps that may cause the neighbor’s demise:

“A body might stump his toe, and take pison, and fall down the well, and break his neck, and bust his brains out, and somebody come along and ask what killed him, and some numskull up and say, ‘Why, he stumped his toe.’ Would ther’ be any sense in that? No. And ther’ ain’t no sense in this, nuther.”

I leave you with Schulz’s point: “This is precisely the problem posed by death certificates; when filling them out, how far back should we chase the causal chain?

That chain could, I suppose, end with a cookie. But I suspect Susan Wilks would arch an eyebrow at that supposition.

prison_green haven NYYou may not have known that a Prison Awareness Club was a thing. But in a nation apparently committed to that growth industry, it only makes good sense that college students might engage on the topic of corrections.

This Friday, March 28, the third annual Prison Education Conference will be staged at ASU.

The all-day event is sponsored by the Department of English, the School of Social Transformation, and the College of Liberal Arts and Sciences. The free event (open to the public) will include speakers, discussion panels and the screening of what looks to be a compelling film.

Writer Sought

I may be able to attend, but I currently have a conflict. If you are a law student, student of the law (most generally defined), or a lawyer—and you are NOT one of the event organizers—I invite you to contact me to discuss a guest blog post. It might cover the entire event, or perhaps be just a review of the film Zero Percent. Write to me at arizona.attorney@azbar.org.

Keynote Speaker

The conference includes a keynote by author Marshall Frank. As a news story describes his work:

“This year’s conference features keynote speaker Marshall Frank, a retired police captain from Miami, Fla., who led more than a thousand homicide investigations during his career and has since written hundreds of op-eds and articles about the state of America’s justice system.”

“In his most recent book ‘Criminal InJustice in America,’ Frank explores inequities of the prison system, “a multi-billion-dollar industry, which would collapse if there was a sudden downturn in inmate residency.” Perhaps that’s why the United States has 5 percent of the world’s population, but a staggering 25 percent of its prisoners. Critics have hailed ‘Criminal InJustice’ as ‘challenging,’ ‘thought-provoking’ and “daring.’”

Read the complete ASU News story here.

Panels Cover Prison Education

The complete agenda is here.

Among the speakers will be a representative from the Arizona Department of Corrections, and his compatriot from the New Mexico prison system. The organizers also feature the insights of educators from three Arizona prison complexes.

A second keynote will be Sean Pica, head of Hudson Link for Higher Education in Prison. And it is the Hudson connection that may yield one of the day’s most enlightening aspects—a film.

Zero Percent Film To Screen

The film trailer for Zero Percent explains—a little—about the challenges faced by incarcerated individuals. Watch the trailer here.

More information about Hudson Link is here. And you can follow their posts on Facebook too.

The event location is the University Club on the ASU campus. A scalable map is here.

RSVP: peac.org@asu.edu

flier Prison Education Conference 2014_opt

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