Westword
When you've spent close to three decades as one of America's leading opponents of capital punishment, you develop an understanding of what states truly have the will to execute their condemned.
And Sister Helen Prejean, the Dead Man Walking author who's in Aurora tonight for a public talk on vengeance, forgiveness and reconciliation, has reason to believe that the death penalty may be on its last legs in Colorado.
The Catholic nun's bestselling account of her encounters with an inmate on Louisiana's death row has since been transformed into a play and an opera, as well as a hit film that won an Oscar for Susan Sarandon. It's been followed by a second book, The Death of Innocents, examining two dubious executions in Texas. And Prejean has gone on to work with death penalty activists across the country; her appearance tonight is cosponsored by Coloradans for Alternatives to the Death Penalty and St. Michael the Archangel Catholic Church.
Prejean sees many similiarities between Colorado, where legislation to abolish the death penalty was defeated by just one vote in 2009, and Oregon, where Governor John Kitzhaber recently ordered a moratorium on executions.
"Colorado's not a serious killing state, like my home state of Louisiana, or Texas, or other states in the Deep South," she says. "You have an expensive death machine, but mostly it's just kept in the garage. The state doesn't use it. The only ones who go to the garage are the ones who want to be killed anyway."
Although Colorado currently has three inmates on its puny death row, the state's had only one execution in more than forty years: the 1997 lethal injection of Gary Davis, one of the so-called "consensual executions" because Davis preferred death to life imprisonment and pushed to speed up the appeals process.
Prejean credits the aggressive defense provided by Colorado's public defender system, which she discusses in her second book, for the state's low execution rate. She suggests that the reeling economy and severe cutbacks in state budgets will ultimately prompt more states to follow Oregon's lead -- and, perhaps, abolish the practice entirely.
"Colorado's in a little holding pattern right now," she says. "But I don't see any momentum to expand the death penalty. The time is going to come when people are ready, and the money will drive it."
Advocates of the death penalty often argue that society "owes it" to the victims of horrendous crimes to impose the ultimate punishment, but Prejean says she's encountered an increasing stream of victims' groups in support of abolition -- people who find the constant media attention and the drawn-out, uncertain execution process more of an orderal than a consolation.
"When states are cutting education and still spending money on the machine, it's a practical consideration," she says. "But how you use public money is a very moral question, too. Do you use it for life or for death?"
Prejean will be speaking at 7:00 p.m. tonight, November 30, at St. Michael the Archangel Catholic Church, 19099 East Floyd Avenue in Aurora, and signing books afterwards. Admission is free.
Wednesday, November 30, 2011
Former Arapahoe Sheriff Arrested for Meth Dealing Charges
The Denver Post
Former Arapahoe County Sheriff Patrick Sullivan was arrested Tuesday on suspicion of trying to trade drugs to a man for sex, as investigators monitored the deal.
Drug task-force officers were "visually monitoring" the deal when the 68-year-old former national Sheriff of the Year delivered methamphetamine to an Aurora home and sought sex in return, said current Arapahoe County Sheriff Grayson Robinson.
"This shows that no one is above the law, particularly a current or a former peace officer," Robinson said.
Robinson said Sullivan had an ongoing relationship with the man as well as other men he had a history of bonding out of jails in the metro region.
Sullivan is being held on $250,000 bail in the jail that bears his name, the Patrick J. Sullivan Jr. Detention Facility. He was sheriff from 1984 until his retirement in 2002.
A call left at his family home in Littleton on Tuesday night was not returned. Sullivan's adult daughter told TV reporters outside her parents' home that the family was in disbelief and asked for privacy.
The former sheriff was being held in an isolation cell Tuesday night and could appear in court as early as Wednesday morning, Robinson said.
The investigation is ongoing, and more charges and arrests are expected.
Robinson said investigators received a tip earlier this month that Sullivan was involved in meth distribution, sparking the investigation that culminated in his arrest and staggering fall from grace.
Sullivan had retired from law enforcement to become director of safety and security for Cherry Creek Schools in 2002, retiring from there in 2008. He was hired in the aftermath of security concerns following the deadly Columbine rampage of 1999.
Former Arapahoe County Sheriff Patrick Sullivan was arrested Tuesday on suspicion of trying to trade drugs to a man for sex, as investigators monitored the deal.
Drug task-force officers were "visually monitoring" the deal when the 68-year-old former national Sheriff of the Year delivered methamphetamine to an Aurora home and sought sex in return, said current Arapahoe County Sheriff Grayson Robinson.
"This shows that no one is above the law, particularly a current or a former peace officer," Robinson said.
Robinson said Sullivan had an ongoing relationship with the man as well as other men he had a history of bonding out of jails in the metro region.
Sullivan is being held on $250,000 bail in the jail that bears his name, the Patrick J. Sullivan Jr. Detention Facility. He was sheriff from 1984 until his retirement in 2002.
A call left at his family home in Littleton on Tuesday night was not returned. Sullivan's adult daughter told TV reporters outside her parents' home that the family was in disbelief and asked for privacy.
The former sheriff was being held in an isolation cell Tuesday night and could appear in court as early as Wednesday morning, Robinson said.
The investigation is ongoing, and more charges and arrests are expected.
Robinson said investigators received a tip earlier this month that Sullivan was involved in meth distribution, sparking the investigation that culminated in his arrest and staggering fall from grace.
Sullivan had retired from law enforcement to become director of safety and security for Cherry Creek Schools in 2002, retiring from there in 2008. He was hired in the aftermath of security concerns following the deadly Columbine rampage of 1999.
Solitary Confinement in Colorado Prisons
Huffington Post
Colorado could "significantly reduce" the unusually high percentage of its prison inmates held in long-term solitary confinement by instituting several low-cost reforms, corrections experts said in a state-ordered report released last week.
Nearly 7 percent of Colorado state prisoners are held in long-term solitary confinement, compared to a national average of 1-2 percent. Roughly a quarter of these inmates suffer from serious mental illness, and 40 percent of them are released directly from solitary confinement into the community.
The report raises the possibility that Colorado prison officials are prepared to institute serious reforms and bring the state closer in line with solitary confinement policies in other states, said Mark Silverstein, legal director of the American Civil Liberties Union in Colorado.
"The very existence of this report may signal that the Colorado Department of Corrections is ready for a significant change," said Silverstein. "It's change that's long overdue."
A disturbing number of Colorado prisoners are "warehoused for years and years" in solitary, he said. "Some have been there since the 1990s."
In a statement, the Colorado Department of Corrections said it was "reviewing the final report and will be moving forward with recommended strategies to improve our system."
Colorado prison authorities have faced criticism over their heavy use of solitary confinement for years, but the push for reform received a major boost in 2009 with the introduction of legislation in the Colorado Senate to dramatically restructure the state's solitary confinement policies. Sen. Morgan Carrol of Aurora, a Democrat, described the bill as a "human rights issue."
A hearing on the legislation earlier this year featured testimony by Anne Lawlor, a Colorado woman sentenced to five years for check fraud, who was held in solitary confinement for a year after she said prison authorities accused her of speaking in code with her husband during a visitation.
Colorado could "significantly reduce" the unusually high percentage of its prison inmates held in long-term solitary confinement by instituting several low-cost reforms, corrections experts said in a state-ordered report released last week.
Nearly 7 percent of Colorado state prisoners are held in long-term solitary confinement, compared to a national average of 1-2 percent. Roughly a quarter of these inmates suffer from serious mental illness, and 40 percent of them are released directly from solitary confinement into the community.
The report raises the possibility that Colorado prison officials are prepared to institute serious reforms and bring the state closer in line with solitary confinement policies in other states, said Mark Silverstein, legal director of the American Civil Liberties Union in Colorado.
"The very existence of this report may signal that the Colorado Department of Corrections is ready for a significant change," said Silverstein. "It's change that's long overdue."
A disturbing number of Colorado prisoners are "warehoused for years and years" in solitary, he said. "Some have been there since the 1990s."
In a statement, the Colorado Department of Corrections said it was "reviewing the final report and will be moving forward with recommended strategies to improve our system."
Colorado prison authorities have faced criticism over their heavy use of solitary confinement for years, but the push for reform received a major boost in 2009 with the introduction of legislation in the Colorado Senate to dramatically restructure the state's solitary confinement policies. Sen. Morgan Carrol of Aurora, a Democrat, described the bill as a "human rights issue."
A hearing on the legislation earlier this year featured testimony by Anne Lawlor, a Colorado woman sentenced to five years for check fraud, who was held in solitary confinement for a year after she said prison authorities accused her of speaking in code with her husband during a visitation.
Sunday, November 27, 2011
Report on Colorado prisons recommends restricting inmate isolation
The Denver Post
A growing number of mentally ill inmates in Colorado are held in isolation cells and 40 percent of segregated inmates are released directly to the streets without transitional programming, experts found.
A report recently completed by outside consultants recommended that the Colorado Department of Corrections restrict how many inmates go to isolation and cycle them faster back into general population cells.
The consultants, Dr. James Austin of the National Institute of Corrections and Emmitt Sparkman, deputy commissioner of the Mississippi Department of Corrections, noted that Colorado prisons have nearly seven times more inmates in segregation than the national average.
DOC commissioned the review, which began with site visits to several high-security prisons in August, following complaints that mentally ill inmates were being warehoused in Colorado segregation cells.
"The department is committed to sound correctional management practices that promote both institutional safety and community safety," DOC executive director Tom Clements said.
DOC staff will review the findings and recommendations of the report by Austin and Sparkman and make changes accordingly, said Katherine Sanguinetti, DOC spokeswoman.
The report confirmed that now more than one out of five inmates in isolation are mentally ill. On average, Colorado inmates remain in an isolation cell for about two years, and only one in four are there as a result of violence directed at staff or other inmates.
The study came following outside complaints that DOC was using administrative segregation as a long-term holding strategy for mentally ill inmates.
"There are far too many people held in solitary confinement in Colorado and they are held there far too long," said Mark Silverstein, legal director for the American Civil Liberties Union of Colorado.
A growing number of mentally ill inmates in Colorado are held in isolation cells and 40 percent of segregated inmates are released directly to the streets without transitional programming, experts found.
A report recently completed by outside consultants recommended that the Colorado Department of Corrections restrict how many inmates go to isolation and cycle them faster back into general population cells.
The consultants, Dr. James Austin of the National Institute of Corrections and Emmitt Sparkman, deputy commissioner of the Mississippi Department of Corrections, noted that Colorado prisons have nearly seven times more inmates in segregation than the national average.
DOC commissioned the review, which began with site visits to several high-security prisons in August, following complaints that mentally ill inmates were being warehoused in Colorado segregation cells.
"The department is committed to sound correctional management practices that promote both institutional safety and community safety," DOC executive director Tom Clements said.
DOC staff will review the findings and recommendations of the report by Austin and Sparkman and make changes accordingly, said Katherine Sanguinetti, DOC spokeswoman.
The report confirmed that now more than one out of five inmates in isolation are mentally ill. On average, Colorado inmates remain in an isolation cell for about two years, and only one in four are there as a result of violence directed at staff or other inmates.
The study came following outside complaints that DOC was using administrative segregation as a long-term holding strategy for mentally ill inmates.
"There are far too many people held in solitary confinement in Colorado and they are held there far too long," said Mark Silverstein, legal director for the American Civil Liberties Union of Colorado.
Saturday, November 26, 2011
Second Chance for Teen Killers
The Denver Post
The message arrived in my e-mail box late on a Friday night. It was an update from Curt Jensen, a good friend and a proud father.
Curt's son, Erik, is entering his junior year in college studying pre-medicine. He is a prolific writer, and will have soon completed his fifth book in an adventure fantasy series. He's engaged to be married, and a leader in efforts to help inmates get out of gangs. He was just featured in a French TV documentary and will soon be profiled in a book written by a best-selling author.
What parent wouldn't be proud? Sadly, key details radically transform the picture. Erik is behind bars for life. Absent changes to current law or exceptional political willpower by Colorado's elected officials, including Gov. John Hickenlooper, or the federal government, Erik will never know a day again outside prison.
Erik is just one of what activists call the "Forgotten 40," a group of Colorado teens sentenced to life without the possibility of parole for crimes committed as teens. Some are there for killing abusive parents, others for cold-blooded murder. A handful, like Erik, were never convicted of killing a person, but instead made life-altering decisions after being at the wrong place at the wrong time. Prosecutors argued that Erik helped a friend attempt to cover up a murder after it had already been committed.
Just this month, the U.S. Supreme Court announced it will consider a set of cases that could ban life sentences for any inmate convicted of a crime committed at the age of 14 or younger. Alternatively, the court could go much further, banning juvenile life sentences altogether, viewing such sentences as a violation of the Eighth Amendment's protection against cruel and unusual punishment.
The message arrived in my e-mail box late on a Friday night. It was an update from Curt Jensen, a good friend and a proud father.
Curt's son, Erik, is entering his junior year in college studying pre-medicine. He is a prolific writer, and will have soon completed his fifth book in an adventure fantasy series. He's engaged to be married, and a leader in efforts to help inmates get out of gangs. He was just featured in a French TV documentary and will soon be profiled in a book written by a best-selling author.
What parent wouldn't be proud? Sadly, key details radically transform the picture. Erik is behind bars for life. Absent changes to current law or exceptional political willpower by Colorado's elected officials, including Gov. John Hickenlooper, or the federal government, Erik will never know a day again outside prison.
Erik is just one of what activists call the "Forgotten 40," a group of Colorado teens sentenced to life without the possibility of parole for crimes committed as teens. Some are there for killing abusive parents, others for cold-blooded murder. A handful, like Erik, were never convicted of killing a person, but instead made life-altering decisions after being at the wrong place at the wrong time. Prosecutors argued that Erik helped a friend attempt to cover up a murder after it had already been committed.
Just this month, the U.S. Supreme Court announced it will consider a set of cases that could ban life sentences for any inmate convicted of a crime committed at the age of 14 or younger. Alternatively, the court could go much further, banning juvenile life sentences altogether, viewing such sentences as a violation of the Eighth Amendment's protection against cruel and unusual punishment.
University of Denver clinic has students acting as attorneys for prisoners
The Denver Post
The first time Keenan Jones, an aspiring attorney, met with a client, it involved a bit of travel.
Down 110 miles of Interstate 25, past tall gates fringed in razor wire, through a rigorous security screening and into a concrete room, where, behind a glass partition, sat a man just about no attorney in the country wanted to represent.
His name is Mohammed Saleh. He was convicted in connection with the 1993 World Trade Center bombing and locked up in the federal Supermax prison because the government considered him so dangerous. He had filed a lawsuit challenging the conditions of his incarceration.
And Jones, then a 22-year-old second-year law student at the University of Denver, was, for all intents and purposes, his lawyer.
"The Constitution has to be something that protects us in our hardest times, not just when things are great," said Jones, now in his last year at the law school. "I like the idea of being involved and making sure the Constitution is protecting even the most hated and the most despised."
Jones had another reason, though, for taking the case. As part of a group of students working with DU's Civil Rights Clinic, he was gaining the kind of real-world legal experience that can't be found inside a lecture hall. Students at the clinic, with supervision from law professors, basically act as real attorneys. They research cases, conduct depositions, file motions and argue before judges.
The clinic is one of several hands-on legal programs at DU. While the approach has been in place at the school for decades, the Civil Rights Clinic got its start in 2004, when professor Laura Rovner joined the DU faculty.
Rovner said that in learning about Colorado courts, she came to believe there was a need for prisoner-rights attorneys. But because so few lawyers generally take such cases, the field was ripe for a student clinical program.
The first time Keenan Jones, an aspiring attorney, met with a client, it involved a bit of travel.
Down 110 miles of Interstate 25, past tall gates fringed in razor wire, through a rigorous security screening and into a concrete room, where, behind a glass partition, sat a man just about no attorney in the country wanted to represent.
His name is Mohammed Saleh. He was convicted in connection with the 1993 World Trade Center bombing and locked up in the federal Supermax prison because the government considered him so dangerous. He had filed a lawsuit challenging the conditions of his incarceration.
And Jones, then a 22-year-old second-year law student at the University of Denver, was, for all intents and purposes, his lawyer.
"The Constitution has to be something that protects us in our hardest times, not just when things are great," said Jones, now in his last year at the law school. "I like the idea of being involved and making sure the Constitution is protecting even the most hated and the most despised."
Jones had another reason, though, for taking the case. As part of a group of students working with DU's Civil Rights Clinic, he was gaining the kind of real-world legal experience that can't be found inside a lecture hall. Students at the clinic, with supervision from law professors, basically act as real attorneys. They research cases, conduct depositions, file motions and argue before judges.
The clinic is one of several hands-on legal programs at DU. While the approach has been in place at the school for decades, the Civil Rights Clinic got its start in 2004, when professor Laura Rovner joined the DU faculty.
Rovner said that in learning about Colorado courts, she came to believe there was a need for prisoner-rights attorneys. But because so few lawyers generally take such cases, the field was ripe for a student clinical program.
Friday, November 25, 2011
Inmate found dead in cell at Sterling prison
The Denver Post
Prison officials at Sterling Correctional Facility are holding an inmate for investigation in the suspicious death of another inmate.
The victim's body was found in his cell at 4:15 a.m., said Katherine Sanguinetti, spokeswoman for the Colorado Department of Corrections.
The names of the victim and the suspect have not been released.
The cell was in a minimum security cellblock of the prison, which also houses the state's death-row inmates, Sanguinetti said.
The suspect was placed in segregation and DOC's Inspector General's Office is investigating the man's death, she said.
Unit 3 of Sterling is currently in lockdown while the death is being investigated, she said. Other inmates will be fed in their cells during the investigation.
Prison officials are withholding the name of the victim pending notification of family members, she said.
In January 2010 another inmate was murdered in his cell at Sterling.
Prison officials at Sterling Correctional Facility are holding an inmate for investigation in the suspicious death of another inmate.
The victim's body was found in his cell at 4:15 a.m., said Katherine Sanguinetti, spokeswoman for the Colorado Department of Corrections.
The names of the victim and the suspect have not been released.
The cell was in a minimum security cellblock of the prison, which also houses the state's death-row inmates, Sanguinetti said.
The suspect was placed in segregation and DOC's Inspector General's Office is investigating the man's death, she said.
Unit 3 of Sterling is currently in lockdown while the death is being investigated, she said. Other inmates will be fed in their cells during the investigation.
Prison officials are withholding the name of the victim pending notification of family members, she said.
In January 2010 another inmate was murdered in his cell at Sterling.
Wednesday, November 23, 2011
The Big Bitch
Westword
On the Saturday before Easter 2010, Dennis Pauls got it into his head to give his ex-wife a plant. It was an Easter lily, a Christian symbol of suffering and renewal; tradition says white lilies bloomed where Christ's sweat fell to the ground in the garden of Gethsemane, a sign of the resurrection to come.
Chambers involve non-violent crimes.
Pauls thought the plant made a perfect farewell gesture, a benediction and peace offering. He was 57 years old, an age when many people are preparing for their dream retirement. But Pauls had embalmed his dreams in alcohol. He'd once been a successful producer of audio-video materials for nonprofits and small businesses. He'd voted Republican, lived on a golf course in Lone Tree and been a benefactor of the local symphony orchestra. His drinking had changed all that, costing him his marriage, his friends, the house on the golf course — even his freedom.
On the day he saw the Easter plant on sale at Safeway, Pauls was making plans to leave Colorado for good. He'd just completed parole after serving several months in prison for forging checks on his ex-wife's account to pay for food and booze when he was on a bender. He considered himself a recovering alcoholic now, although he still had lapses when the thirst hit him.
He left the plant on his ex's porch with a note: Good Lord, it is Holy Week. Happy Easter. I am proud of you and Chloee. Chloee, the couple's beloved Chesapeake Bay retriever, was something else drinking had cost him. His ex had gone to court for a restraining order to keep him from bothering either one of them.
Within a few hours, Pauls began to feel anxious about what he'd just done. Leaving the plant was a violation of the restraining order. He thought about rushing back to the house to retrieve it before his ex found it, but what if someone saw him there? Better to fix a Scotch and get busy on his move to Florida.
Four months later, while in the throes of what he would later describe as a panic attack, Pauls made a frantic phone call for help from his new home in Naples, Florida. Local police did a welfare check and ran his name through their records, which turned up an arrest warrant in Colorado for the plant business. He spent three weeks in the local lockup, until Arapahoe County deputies arrived to escort him back to their jail.
Pauls didn't understand why the county was bothering with extradition over such a minor offense. He'd incurred violations of the restraining order before, calling his wife to track down tax returns and other mundane stuff — nothing violent or threatening — and he knew that such conduct was considered a misdemeanor or less.
It was only when he met with a public defender in the Arapahoe County jail that Pauls realized he was in deep trouble. He was being charged with felony stalking, the attorney explained. Pauls already had three felonies on his record: the forgery case and two drunk-driving convictions in Kansas, as well as a deferred sentence for harassment in a dispute with a neighbor. Being found guilty of a fourth felony would make him eligible for what's known in legal circles as the Big Bitch — a finding that he's a habitual criminal and thus required to be sentenced to four times the maximum of what a felony stalking rap would usually bring. (The Little Bitch, which can be applied to a defendant with two prior felonies, triples the maximum sentence.)
His lawyer told Pauls that he was looking at either 24 or 32 years in prison if the Arapahoe County district attorney pursued the habitual charge. Prosecutors were offering a twelve-year deal if he agreed to plead guilty right now instead of going to trial.
Some deal. To Pauls, twelve years in prison didn't sound any more survivable than 32, especially at his age. He was facing a potential life sentence for the crime of delivering a plant to a woman he'd been married to for decades.
"I told him there was no way I could plead guilty to stalking, something I hadn't done, and go away for twelve years," Pauls recalls. "Where is the justice in that?"
Yet the kind of lose-lose choice Pauls was offered — agree to a plea carrying an absurdly long sentence or get "bitched" — is what often passes for justice for repeat offenders in Arapahoe County. The campaign to bitch just about anybody who can be bitched in the southeast suburbs has prompted some criminal defense attorneys to refer to the place as Arapahell: an infernal region that, strictly speaking, doesn't stop at the county line. Under the leadership of District Attorney Carol Chambers, the entire 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties, has become an experiment in prosecutorial overkill unlike anything else in Colorado.
Because the consequences of a habitual criminal sentence can be so grave, most prosecutors use the statute sparingly. In many districts, it's usually reserved for people who commit multiple violent crimes or career crooks, such as burglars, who may be getting caught only a few times while committing dozens or hundreds of crimes. "We see the bitch scheme as a tool to get significant prison sentences for people who need to be incarcerated for a long period of time to protect the community," says Boulder District Attorney Stan Garnett.
The Big Bitch
The secret behind long sentences handed out to repeat offenders in the 18th Judicial District
Chambers involve non-violent crimes.On the day he saw the Easter plant on sale at Safeway, Pauls was making plans to leave Colorado for good. He'd just completed parole after serving several months in prison for forging checks on his ex-wife's account to pay for food and booze when he was on a bender. He considered himself a recovering alcoholic now, although he still had lapses when the thirst hit him.
He left the plant on his ex's porch with a note: Good Lord, it is Holy Week. Happy Easter. I am proud of you and Chloee. Chloee, the couple's beloved Chesapeake Bay retriever, was something else drinking had cost him. His ex had gone to court for a restraining order to keep him from bothering either one of them.
Within a few hours, Pauls began to feel anxious about what he'd just done. Leaving the plant was a violation of the restraining order. He thought about rushing back to the house to retrieve it before his ex found it, but what if someone saw him there? Better to fix a Scotch and get busy on his move to Florida.
Four months later, while in the throes of what he would later describe as a panic attack, Pauls made a frantic phone call for help from his new home in Naples, Florida. Local police did a welfare check and ran his name through their records, which turned up an arrest warrant in Colorado for the plant business. He spent three weeks in the local lockup, until Arapahoe County deputies arrived to escort him back to their jail.
Pauls didn't understand why the county was bothering with extradition over such a minor offense. He'd incurred violations of the restraining order before, calling his wife to track down tax returns and other mundane stuff — nothing violent or threatening — and he knew that such conduct was considered a misdemeanor or less.
It was only when he met with a public defender in the Arapahoe County jail that Pauls realized he was in deep trouble. He was being charged with felony stalking, the attorney explained. Pauls already had three felonies on his record: the forgery case and two drunk-driving convictions in Kansas, as well as a deferred sentence for harassment in a dispute with a neighbor. Being found guilty of a fourth felony would make him eligible for what's known in legal circles as the Big Bitch — a finding that he's a habitual criminal and thus required to be sentenced to four times the maximum of what a felony stalking rap would usually bring. (The Little Bitch, which can be applied to a defendant with two prior felonies, triples the maximum sentence.)
His lawyer told Pauls that he was looking at either 24 or 32 years in prison if the Arapahoe County district attorney pursued the habitual charge. Prosecutors were offering a twelve-year deal if he agreed to plead guilty right now instead of going to trial.
Some deal. To Pauls, twelve years in prison didn't sound any more survivable than 32, especially at his age. He was facing a potential life sentence for the crime of delivering a plant to a woman he'd been married to for decades.
"I told him there was no way I could plead guilty to stalking, something I hadn't done, and go away for twelve years," Pauls recalls. "Where is the justice in that?"
Yet the kind of lose-lose choice Pauls was offered — agree to a plea carrying an absurdly long sentence or get "bitched" — is what often passes for justice for repeat offenders in Arapahoe County. The campaign to bitch just about anybody who can be bitched in the southeast suburbs has prompted some criminal defense attorneys to refer to the place as Arapahell: an infernal region that, strictly speaking, doesn't stop at the county line. Under the leadership of District Attorney Carol Chambers, the entire 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties, has become an experiment in prosecutorial overkill unlike anything else in Colorado.
Because the consequences of a habitual criminal sentence can be so grave, most prosecutors use the statute sparingly. In many districts, it's usually reserved for people who commit multiple violent crimes or career crooks, such as burglars, who may be getting caught only a few times while committing dozens or hundreds of crimes. "We see the bitch scheme as a tool to get significant prison sentences for people who need to be incarcerated for a long period of time to protect the community," says Boulder District Attorney Stan Garnett.
Monday, November 21, 2011
Boulder judge denies new trial for mother of fatally injured infant
The Denver Post
A Boulder judge this afternoon denied Molly Midyette a new trial on her role in the death of her 10-week-old son in 2006.
"Ms. Midyette had a full and fair trial in December 2008, and the public should know that Colorado trial procedures are very fair to a defendant in a criminal case," Boulder County District Attorney Stan Garnett told the Boulder Daily Camera.
During a nine-day hearing that ended Thursday, Midyette's lawyers said she was denied a fair trial because she was unable to defend herself, because she was afraid of her husband and his wealthy family. She accused her former mother-in-law of altering evidence and lying to the grand jury in the case.
Now divorced, Midyette was still married to Alex Midyette at the time of her trial in 2008. Alex Midyette was later convicted of criminally negligent child abuse resulting in death for causing 20 broken bones that caused the death of Jason Midyette.
Molly Midyette was convicted of child abuse resulting in death for failing to get help for the child in time.
They both received sentences of 16 years in prison.
A Boulder judge this afternoon denied Molly Midyette a new trial on her role in the death of her 10-week-old son in 2006.
"Ms. Midyette had a full and fair trial in December 2008, and the public should know that Colorado trial procedures are very fair to a defendant in a criminal case," Boulder County District Attorney Stan Garnett told the Boulder Daily Camera.
During a nine-day hearing that ended Thursday, Midyette's lawyers said she was denied a fair trial because she was unable to defend herself, because she was afraid of her husband and his wealthy family. She accused her former mother-in-law of altering evidence and lying to the grand jury in the case.
Now divorced, Midyette was still married to Alex Midyette at the time of her trial in 2008. Alex Midyette was later convicted of criminally negligent child abuse resulting in death for causing 20 broken bones that caused the death of Jason Midyette.
Molly Midyette was convicted of child abuse resulting in death for failing to get help for the child in time.
They both received sentences of 16 years in prison.
Lawyer accuses Denver cops of lying to protect themselves
The Denver Post
Ex-Denver police officer Charles Porter, who was fired for stomping a 16 year-old boy, said Monday that he didn't know how the teen was hurt and that he told another cop to report any force used in the arrest.
Nathan Chambers, Porter's lawyer, said that the second officer, Cameron Moerman, and another, Luis Rivera, lied when they blamed Porter for beating the teen.
Porter, 44, appeared before a three-member Civil Service hearing panel to appeal his termination by former Safety Manager Al LaCabe.
LaCabe fired all three of the officers in 2010, believing they all beat Juan Vasquez after a foot chase through a north Denver alley in April, 2008.
A jury acquitted Porter, who was the only one charged with a crime in the incident. Denver paid Vasquez, whose kidneys and liver were damaged, $885,000 to settle a civil suit in the case.
Vasquez, who had been drinking, ran when Moerman and another officer pulled to the curb nearby.
Porter testified that he fell behind his partners in the chase and that by the time he caught up with Vasquez, the teen was handcuffed and laying on his stomach. The boy was complaining that he couldn't breathe.
Ex-Denver police officer Charles Porter, who was fired for stomping a 16 year-old boy, said Monday that he didn't know how the teen was hurt and that he told another cop to report any force used in the arrest.
Nathan Chambers, Porter's lawyer, said that the second officer, Cameron Moerman, and another, Luis Rivera, lied when they blamed Porter for beating the teen.
Porter, 44, appeared before a three-member Civil Service hearing panel to appeal his termination by former Safety Manager Al LaCabe.
LaCabe fired all three of the officers in 2010, believing they all beat Juan Vasquez after a foot chase through a north Denver alley in April, 2008.
A jury acquitted Porter, who was the only one charged with a crime in the incident. Denver paid Vasquez, whose kidneys and liver were damaged, $885,000 to settle a civil suit in the case.
Vasquez, who had been drinking, ran when Moerman and another officer pulled to the curb nearby.
Porter testified that he fell behind his partners in the chase and that by the time he caught up with Vasquez, the teen was handcuffed and laying on his stomach. The boy was complaining that he couldn't breathe.
Sunday, November 20, 2011
Solitary Confinement: Isolating Prisoners if Overused in Colorado
Westword
A study by researchers at the National Institute of Corrections has found that Colorado's approach to locking down its most unruly prisoners in 23-hour-a-day isolation is "basically sound" -- but could be used a lot less. Instead, even as the state's prison population is declining slightly, the use of "administrative segregation," or solitary confinement, continues to increase.
The Colorado Department of Corrections houses close to 1,500 prisoners in "ad-seg," about 7 percent of the entire state prison population. That's significantly above the national average of 2 percent or less -- and if you factor in the additional 670 prisoners who are in "punitive segregation" as a result of disciplinary actions, the CDOC figure is closer to 10 percent. And four out of ten of the prisoners in solitary have a diagnosed mental illness, roughly double the proportion in 1999. The state's heavy reliance on ad-seg, including building a second supermax prison to house the overload, has put Colorado in the center of a growing national controversy over whether isolating prisoners creates more problems in the long run.
NIC researchers James Austin and Emmitt Sparkman were invited by DOC to prepare an external review of its ad-seg policies and classification system. Among other points, the pair found that the decision to send prisoners to lockdown has little review by headquarters; that "there is considerable confusion in the operational memorandums and regulations on how the administrative segregation units are to function;" that the average length of stay in isolation is about two years; and that 40 percent of the ad-seg prisoners are released directly to the community from lockdown, with no time spent in general population first.
A study by researchers at the National Institute of Corrections has found that Colorado's approach to locking down its most unruly prisoners in 23-hour-a-day isolation is "basically sound" -- but could be used a lot less. Instead, even as the state's prison population is declining slightly, the use of "administrative segregation," or solitary confinement, continues to increase.
The Colorado Department of Corrections houses close to 1,500 prisoners in "ad-seg," about 7 percent of the entire state prison population. That's significantly above the national average of 2 percent or less -- and if you factor in the additional 670 prisoners who are in "punitive segregation" as a result of disciplinary actions, the CDOC figure is closer to 10 percent. And four out of ten of the prisoners in solitary have a diagnosed mental illness, roughly double the proportion in 1999. The state's heavy reliance on ad-seg, including building a second supermax prison to house the overload, has put Colorado in the center of a growing national controversy over whether isolating prisoners creates more problems in the long run.
NIC researchers James Austin and Emmitt Sparkman were invited by DOC to prepare an external review of its ad-seg policies and classification system. Among other points, the pair found that the decision to send prisoners to lockdown has little review by headquarters; that "there is considerable confusion in the operational memorandums and regulations on how the administrative segregation units are to function;" that the average length of stay in isolation is about two years; and that 40 percent of the ad-seg prisoners are released directly to the community from lockdown, with no time spent in general population first.
Friday, November 18, 2011
Breakthrough in US Drug Sentencing Reform
The Sentencing Project
In August 2010 U.S. President Barack Obama signed into
law the Fair Sentencing Act, legislation that limits the harsh
punishments that were enacted during the 1980s for lowlevel
crack cocaine offenses. At the Oval Office signing
ceremony Obama was joined by Democratic and Republican
congressional leaders who had championed reform.
That day the President’s press secretary, Robert Gibbs,
told a reporter, “I think if you look at the people that were
there at that signing, they’re not of the political persuasions
that either always or even part of the time agree. I think that
demonstrates … the glaring nature of what these penalties
had … done to people and how unfair they were.”1
Gibbs was referring to the five- and ten-year mandatory
minimum sentences prescribed under federal law for defendants
caught in possession for personal use or with the intent to
sell as little as five grams of crack cocaine. The drug penalties
were the harshest ever adopted by Congress and were set at
the height of the nation’s “war on drugs,” a time of significant
concern — and misunderstanding — about crack cocaine.
In August 2010 U.S. President Barack Obama signed into
law the Fair Sentencing Act, legislation that limits the harsh
punishments that were enacted during the 1980s for lowlevel
crack cocaine offenses. At the Oval Office signing
ceremony Obama was joined by Democratic and Republican
congressional leaders who had championed reform.
That day the President’s press secretary, Robert Gibbs,
told a reporter, “I think if you look at the people that were
there at that signing, they’re not of the political persuasions
that either always or even part of the time agree. I think that
demonstrates … the glaring nature of what these penalties
had … done to people and how unfair they were.”1
Gibbs was referring to the five- and ten-year mandatory
minimum sentences prescribed under federal law for defendants
caught in possession for personal use or with the intent to
sell as little as five grams of crack cocaine. The drug penalties
were the harshest ever adopted by Congress and were set at
the height of the nation’s “war on drugs,” a time of significant
concern — and misunderstanding — about crack cocaine.
Tuesday, November 15, 2011
Hate Crimes Down Thirty Percent in Colorado
The Denver Post
Colorado law enforcement agencies reported 154 hate crimes last year, down from 218 a year earlier. In 2008, 164 bias-motivated offenses were logged across the state.
The annual accounting is required by the federal Hate Crimes Statistics Act of 1990.
Hate crimes are classified as those motivated by biases based on race, religion, sexual orientation, ethnicity, national origin or disability.
The FBI cautioned media and others from ranking states based on the data, because of many variables that could draw inaccurate contrasts, especially population and the number of participating law enforcement agencies.
In Wyoming, for instance, two agencies reported a total of two hate crimes in 2010. Forty-four agencies participated in Colorado's report.
Reported hate crimes in Colorado fell almost 30 percent between 2009 and 2010, according to a national report released by the FBI today.
Colorado law enforcement agencies reported 154 hate crimes last year, down from 218 a year earlier. In 2008, 164 bias-motivated offenses were logged across the state.
The annual accounting is required by the federal Hate Crimes Statistics Act of 1990.
Hate crimes are classified as those motivated by biases based on race, religion, sexual orientation, ethnicity, national origin or disability.
The FBI cautioned media and others from ranking states based on the data, because of many variables that could draw inaccurate contrasts, especially population and the number of participating law enforcement agencies.
In Wyoming, for instance, two agencies reported a total of two hate crimes in 2010. Forty-four agencies participated in Colorado's report.
Experts Say NY City Police Dept. Isn't Policing Itself
NY Times
Seven narcotics investigators are convicted of planting drugs on people to meet arrest quotas. Eight current and former patrol officers are charged with smuggling guns into the state. Another is charged with making a false arrest, apparently as a favor for his cousin. Three more are convicted of robbing a perfume warehouse.
All these cases involved New York City police officers and unfolded or were resolved in recent months. But beyond the fact of criminal charges against those sworn to protect the public, they all had another thing in common: Each case was uncovered by an outside agency, not the Internal Affairs Bureau of the New York Police Department, the unit responsible for unearthing and investigating officers’ wrongdoing.
This spate of unrelated corruption prosecutions, and what some see as the Internal Affairs Bureau’s spotty record of uncovering major cases involving crooked officers, raise questions about the department’s ability to police itself, said nearly a dozen current and former prosecutors who have handled corruption cases, as well as some current and former Internal Affairs supervisors and investigators.
Seven narcotics investigators are convicted of planting drugs on people to meet arrest quotas. Eight current and former patrol officers are charged with smuggling guns into the state. Another is charged with making a false arrest, apparently as a favor for his cousin. Three more are convicted of robbing a perfume warehouse.
All these cases involved New York City police officers and unfolded or were resolved in recent months. But beyond the fact of criminal charges against those sworn to protect the public, they all had another thing in common: Each case was uncovered by an outside agency, not the Internal Affairs Bureau of the New York Police Department, the unit responsible for unearthing and investigating officers’ wrongdoing.
This spate of unrelated corruption prosecutions, and what some see as the Internal Affairs Bureau’s spotty record of uncovering major cases involving crooked officers, raise questions about the department’s ability to police itself, said nearly a dozen current and former prosecutors who have handled corruption cases, as well as some current and former Internal Affairs supervisors and investigators.
Sunday, November 13, 2011
A Special Kind Of Justice: Can Veterans Courts Keep Former Soldiers Out of Jail
No matter whom you talk to, U.S. prisons are described as overcrowded and penitentiary systems are overtaxed. Enter the collaborative court system, a series of court programs around the country aimed at keeping certain types of prisoners from entering the prison population to begin with.
You may have heard the phrase "drug courts," but special courts for military veterans are also on the upswing, especially in states like California, which has a penal code that explicitly allows for veterans with Post-Traumatic Stress Disorder or similar problems to earn "credit" for time spent in court-ordered treatment programs.
For many, veterans' courts are a welcome combination of sentencing and treatment, requiring that veterans arrested for particular crimes make reparations by attending court sessions every one to three weeks for a period of 18 months, as well as following a specific treatment path.
A much praised example of these courts is part of the California Superior Court in Orange County, where Judge Wendy Lindley presides. Their clients are provided with peer mentors, counseling and other services, all of which is said to keep recidivism down, although the stats aren't officially in yet.
You may have heard the phrase "drug courts," but special courts for military veterans are also on the upswing, especially in states like California, which has a penal code that explicitly allows for veterans with Post-Traumatic Stress Disorder or similar problems to earn "credit" for time spent in court-ordered treatment programs.
For many, veterans' courts are a welcome combination of sentencing and treatment, requiring that veterans arrested for particular crimes make reparations by attending court sessions every one to three weeks for a period of 18 months, as well as following a specific treatment path.
A much praised example of these courts is part of the California Superior Court in Orange County, where Judge Wendy Lindley presides. Their clients are provided with peer mentors, counseling and other services, all of which is said to keep recidivism down, although the stats aren't officially in yet.
Colorado Bill Would Give Schools More Discretion
The Denver Post
Educators would have more discretion over expulsions and police referrals under legislation that might be introduced in the 2012 session.
Over the summer, a state task force that included both victim advocates and state legislators developed recommendations to end a trend some experts describe as the "school-to- prison pipeline." In the past decade, Colorado schools made 100,000 referrals to law enforcement.
On Tuesday, the Colorado Legislative Council, a bipartisan panel of members from the House and Senate, voted 11-7 to greenlight the introduction of the legislation.
If passed, the legislation would eliminate zero-tolerance policies and also afford parents more transparency in the disciplinary process.
"The object of discipline is correction, not criminalization," said Rep. B.J. Nikkel, R-Loveland, a member of the legislative committee who voted yes. She also was on the task force.
House Speaker Frank McNulty, R-Highlands Ranch, voted against the proposed legislation.
"Based on explanations about the amount of work that needs to be done on this bill, there's no way for me to tell whether it fits within the committee's charge, so my response was 'no,' " he said.
Educators would have more discretion over expulsions and police referrals under legislation that might be introduced in the 2012 session.
Over the summer, a state task force that included both victim advocates and state legislators developed recommendations to end a trend some experts describe as the "school-to- prison pipeline." In the past decade, Colorado schools made 100,000 referrals to law enforcement.
On Tuesday, the Colorado Legislative Council, a bipartisan panel of members from the House and Senate, voted 11-7 to greenlight the introduction of the legislation.
If passed, the legislation would eliminate zero-tolerance policies and also afford parents more transparency in the disciplinary process.
"The object of discipline is correction, not criminalization," said Rep. B.J. Nikkel, R-Loveland, a member of the legislative committee who voted yes. She also was on the task force.
House Speaker Frank McNulty, R-Highlands Ranch, voted against the proposed legislation.
"Based on explanations about the amount of work that needs to be done on this bill, there's no way for me to tell whether it fits within the committee's charge, so my response was 'no,' " he said.
Friday, November 11, 2011
Youth in Foster Care, Juvenile Justice Systems, Struggle After Age 18.
Foundation center
Youth in foster care and on probation in Los Angeles County are faring poorly under the current system and face severe challenges in education, employment, health, mental health, and earnings potential, a study funded by the Conrad N. Hilton Foundation finds.
Led by Dennis P. Culhane, a professor of social policy at the University of Pennsylvania, the study, Young Adult Outcomes of Youth Exiting Dependent or Delinquent Care in Los Angeles County (125 pages, PDF), examined youth in foster care or on probation in L.A. County in 2002 or 2004 and linked them to records of public service usage from 2005 to 2009 across seven county departments and two state agencies. The report found that "crossover" youth — those who were involved in both the foster care and juvenile justice systems — averaged almost three times the per-person cost in terms of public service dollars as youth only in foster care. According to the foundation, the study underscores the importance of a new state policy that allows young adults to remain in foster care until age 21; foster care benefits for California youth currently expire at 18.
The report also found that costs associated with the criminal justice system accounted for the largest share of average public costs in adulthood, and that a quarter of former foster youth and two-thirds of crossover youth spend some time in jail as young adults. The average cumulative cost of those jail stays over four years ranged from $18,430 for a foster youth to $33,946 for a crossover youth. In addition, jail time affected the earning potential of youth in the system, with one-third of former foster youth and half of crossover youth experiencing a period of extreme poverty and extremely low earnings during their young adult years.
"This study provides compelling evidence that these young adults, especially the crossover youth, should be targeted with housing support, education, employment services, and mentoring, if the county and the state are to avoid a lifetime of public dependence by this highly vulnerable population," said Culhane. "The good news is that this is a population that can easily be targeted with assistance and that current costs to the county could be potentially offset by reduced incarceration and public assistance costs."
Youth in foster care and on probation in Los Angeles County are faring poorly under the current system and face severe challenges in education, employment, health, mental health, and earnings potential, a study funded by the Conrad N. Hilton Foundation finds.
Led by Dennis P. Culhane, a professor of social policy at the University of Pennsylvania, the study, Young Adult Outcomes of Youth Exiting Dependent or Delinquent Care in Los Angeles County (125 pages, PDF), examined youth in foster care or on probation in L.A. County in 2002 or 2004 and linked them to records of public service usage from 2005 to 2009 across seven county departments and two state agencies. The report found that "crossover" youth — those who were involved in both the foster care and juvenile justice systems — averaged almost three times the per-person cost in terms of public service dollars as youth only in foster care. According to the foundation, the study underscores the importance of a new state policy that allows young adults to remain in foster care until age 21; foster care benefits for California youth currently expire at 18.
The report also found that costs associated with the criminal justice system accounted for the largest share of average public costs in adulthood, and that a quarter of former foster youth and two-thirds of crossover youth spend some time in jail as young adults. The average cumulative cost of those jail stays over four years ranged from $18,430 for a foster youth to $33,946 for a crossover youth. In addition, jail time affected the earning potential of youth in the system, with one-third of former foster youth and half of crossover youth experiencing a period of extreme poverty and extremely low earnings during their young adult years.
"This study provides compelling evidence that these young adults, especially the crossover youth, should be targeted with housing support, education, employment services, and mentoring, if the county and the state are to avoid a lifetime of public dependence by this highly vulnerable population," said Culhane. "The good news is that this is a population that can easily be targeted with assistance and that current costs to the county could be potentially offset by reduced incarceration and public assistance costs."
Thursday, November 10, 2011
Expert will help sort denver police use of force documents
the Denver Post
So many police internal affairs files and use of force documents have been turned over to lawyers suing the Denver Police Department for alleged police brutality that a federal judge today decided to appoint a special master to help coordinate discovery.
"There is an enormous amount of information coming out of the city," said David Lane, a lawyer representing James Moore. Moore contends that on March 23, 2008 Denver police beat him without provocation so severely that he lost consciousness and CPR was needed to revive him.
The city turned over the documents after Senior U.S. District Judge John Kane repeatedly ordered the city to release them to the lawyers representing Moore.
The city still is providing the lawyers representing Moore additional documents. Kane has ordered the city to turn over eight years' worth of police excessive-force complaints and all details on the follow-up investigations for both the Denver Police Department and the Denver Sheriff's Office.
Lane said he and the other lawyers representing Moore still are trying to determine how to "find the needle in literally hundreds of thousands of pages of documents."
Assistant City Attorney Thomas Bigler told the judge that the city has provided to Moore's lawyers 105,000 pages of documents and 2,300 CDs and DVDs so far, with more material coming.
Kane said he wants the lawyers for both sides to suggest a special master, preferably one with skills in interpreting databases, to help come up with a way to analyze the records and determine how to proceed.
Kane originally ordered the city to produce the documents in another excessive-force case involving one of the same police officers Moore has accused. The city settled that lawsuit, in which Jason Graber alleged police unnecessarily grabbed him by the neck and kicked his feet out from under him, causing him to fall to the ground and injure his knee and elbow.
Despite the $225,000 settlement in the Graber case, Kane has continued to order the city to provide the documents in the lawsuit filed by Moore.
So many police internal affairs files and use of force documents have been turned over to lawyers suing the Denver Police Department for alleged police brutality that a federal judge today decided to appoint a special master to help coordinate discovery.
"There is an enormous amount of information coming out of the city," said David Lane, a lawyer representing James Moore. Moore contends that on March 23, 2008 Denver police beat him without provocation so severely that he lost consciousness and CPR was needed to revive him.
The city turned over the documents after Senior U.S. District Judge John Kane repeatedly ordered the city to release them to the lawyers representing Moore.
The city still is providing the lawyers representing Moore additional documents. Kane has ordered the city to turn over eight years' worth of police excessive-force complaints and all details on the follow-up investigations for both the Denver Police Department and the Denver Sheriff's Office.
Lane said he and the other lawyers representing Moore still are trying to determine how to "find the needle in literally hundreds of thousands of pages of documents."
Assistant City Attorney Thomas Bigler told the judge that the city has provided to Moore's lawyers 105,000 pages of documents and 2,300 CDs and DVDs so far, with more material coming.
Kane said he wants the lawyers for both sides to suggest a special master, preferably one with skills in interpreting databases, to help come up with a way to analyze the records and determine how to proceed.
Kane originally ordered the city to produce the documents in another excessive-force case involving one of the same police officers Moore has accused. The city settled that lawsuit, in which Jason Graber alleged police unnecessarily grabbed him by the neck and kicked his feet out from under him, causing him to fall to the ground and injure his knee and elbow.
Despite the $225,000 settlement in the Graber case, Kane has continued to order the city to provide the documents in the lawsuit filed by Moore.
Tuesday, November 08, 2011
Three Steps Forward and A Couple Steps Back For Drug Reform
Huff Post and podcast
In 2010, Colorado lawmakers took a meaningful step towards drug law reform by passing House Bill 1352, which nibbles at the edges of the disastrous War on Drugs by amending some of Colorado's controlled substance statutes (see my HuffPost piece on HB 1352).
And while lawmakers continued that reform momentum this year, those efforts were tempered by other bills that expanded an already intrusive and expensive drug law regime that returns questionable public safety value.
For instance, the 2011 Colorado Legislature voted overwhelmingly to create new drug felonies (and thus new drug felons) by passing Senate Bill 134 which added synthetic cannabinoids and the naturally occurring Salvia Divinorum as Schedule I illicit drugs under Colorado's Uniform Controlled Substances Act.
The Legislature in 2011 also involved itself in human resource decision making by local school districts by passing House Bill 1121, which among other things bars those convicted of a drug felony from employment with a school for five years from the time of conviction. This despite a lack of any evidence that the hiring of drug felons by school districts is a problem in Colorado.
But in the same session where Colorado lawmakers expanded the scope and reach of Colorado's drug laws, they also passed several drug law reforms.
In this ivoices.org podcast, I interview Christie Donner about these reforms, and what they are meant to accomplish. Besides being the Executive Director of the Colorado Criminal Justice Reform Coalition, Christie is also on the Drug Policy Task Force of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). The three bills were generated out of recommendations of the CCJJ and all have been signed into law by Governor Hickenlooper. The bills are:
Senate Bill 96, which excludes Class 6 felony drug possession convictions as a qualifying offense to be convicted under Colorado's habitual offender statute.
House Bill 1064, which establishes a presumption in favor of granting parole to an inmate who is parole eligible and serving a sentence for a drug use or possession felony that was committed before August 11, 2011 (inmates must meet other criteria related to their behavior in prison and criminal history to be eligible for the presumption).
House Bill 1167, which shortens the time frame people convicted of certain drug crimes (schedule is staggered based on the seriousness of the offense) must wait before petitioning the court to seal that criminal record.
For a more thorough explanation of these reforms give a listen here.
In 2010, Colorado lawmakers took a meaningful step towards drug law reform by passing House Bill 1352, which nibbles at the edges of the disastrous War on Drugs by amending some of Colorado's controlled substance statutes (see my HuffPost piece on HB 1352).
And while lawmakers continued that reform momentum this year, those efforts were tempered by other bills that expanded an already intrusive and expensive drug law regime that returns questionable public safety value.
For instance, the 2011 Colorado Legislature voted overwhelmingly to create new drug felonies (and thus new drug felons) by passing Senate Bill 134 which added synthetic cannabinoids and the naturally occurring Salvia Divinorum as Schedule I illicit drugs under Colorado's Uniform Controlled Substances Act.
The Legislature in 2011 also involved itself in human resource decision making by local school districts by passing House Bill 1121, which among other things bars those convicted of a drug felony from employment with a school for five years from the time of conviction. This despite a lack of any evidence that the hiring of drug felons by school districts is a problem in Colorado.
But in the same session where Colorado lawmakers expanded the scope and reach of Colorado's drug laws, they also passed several drug law reforms.
In this ivoices.org podcast, I interview Christie Donner about these reforms, and what they are meant to accomplish. Besides being the Executive Director of the Colorado Criminal Justice Reform Coalition, Christie is also on the Drug Policy Task Force of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). The three bills were generated out of recommendations of the CCJJ and all have been signed into law by Governor Hickenlooper. The bills are:
Senate Bill 96, which excludes Class 6 felony drug possession convictions as a qualifying offense to be convicted under Colorado's habitual offender statute.
House Bill 1064, which establishes a presumption in favor of granting parole to an inmate who is parole eligible and serving a sentence for a drug use or possession felony that was committed before August 11, 2011 (inmates must meet other criteria related to their behavior in prison and criminal history to be eligible for the presumption).
House Bill 1167, which shortens the time frame people convicted of certain drug crimes (schedule is staggered based on the seriousness of the offense) must wait before petitioning the court to seal that criminal record.
For a more thorough explanation of these reforms give a listen here.
Crack cocaine offenders sentences reduced under new federal rules
The Denver Post\
It's been five years since Kira Mackey was able to visit her brother without going through security screening.
Five years since she could talk to him without someone in uniform standing nearby.
But that changed Friday, when Mackey's brother, Mario, walked out of federal prison in Fort Worth, Texas, as one of hundreds of people released nationwide in the past week after their federal sentences for crack-cocaine offenses were reduced.
"I'm very excited," said Kira Mackey, a native of Denver now living in Chicago. "There's not words to describe the feelings I have for him to come home."
The sentence reductions came as part of an effort to bring crack-cocaine penalties closer to those of powder cocaine. In the late 1980s, when crack was closely linked with street violence, lawmakers raised the penalties for even nonviolent crack offenses. The disparity between crack- and powder-cocaine punishments grew so wide that an offender had to possess 100 times more powder cocaine to trigger the same kind of prison sentences that crack cocaine brought.
The disparity received extra scrutiny because people sentenced to harsher crack-cocaine sentences were overwhelmingly black.
"Crack-cocaine sentences were widely understood to overstate the seriousness of crack-cocaine offenses," said Mary Price, vice president of Families Against Mandatory Minimums, which campaigned for the sentencing changes. ". . . There was a great deal of injustice."
Congress last year passed the Fair Sentencing Act, bringing crack sentences down to an 18-to-1 ratio with powder-cocaine sentences. The U.S. Sentencing Commission then decided to apply those new rules retroactively, making roughly 12,000 federal inmates eligible to apply for sentencing reductions when the rules went into effect Nov. 1. Those who are eligible will have an average of three years shaved off their sentences, Price said.
In Colorado, federal prosecutors and defense attorneys have so far identified close to 30 inmates whose cases originated in the state and are likely in line for sentence reductions, said Jeff Dorschner, a spokesman for the U.S. attorney's office in Denver.
It's been five years since Kira Mackey was able to visit her brother without going through security screening.
Five years since she could talk to him without someone in uniform standing nearby.
But that changed Friday, when Mackey's brother, Mario, walked out of federal prison in Fort Worth, Texas, as one of hundreds of people released nationwide in the past week after their federal sentences for crack-cocaine offenses were reduced.
"I'm very excited," said Kira Mackey, a native of Denver now living in Chicago. "There's not words to describe the feelings I have for him to come home."
The sentence reductions came as part of an effort to bring crack-cocaine penalties closer to those of powder cocaine. In the late 1980s, when crack was closely linked with street violence, lawmakers raised the penalties for even nonviolent crack offenses. The disparity between crack- and powder-cocaine punishments grew so wide that an offender had to possess 100 times more powder cocaine to trigger the same kind of prison sentences that crack cocaine brought.
The disparity received extra scrutiny because people sentenced to harsher crack-cocaine sentences were overwhelmingly black.
"Crack-cocaine sentences were widely understood to overstate the seriousness of crack-cocaine offenses," said Mary Price, vice president of Families Against Mandatory Minimums, which campaigned for the sentencing changes. ". . . There was a great deal of injustice."
Congress last year passed the Fair Sentencing Act, bringing crack sentences down to an 18-to-1 ratio with powder-cocaine sentences. The U.S. Sentencing Commission then decided to apply those new rules retroactively, making roughly 12,000 federal inmates eligible to apply for sentencing reductions when the rules went into effect Nov. 1. Those who are eligible will have an average of three years shaved off their sentences, Price said.
In Colorado, federal prosecutors and defense attorneys have so far identified close to 30 inmates whose cases originated in the state and are likely in line for sentence reductions, said Jeff Dorschner, a spokesman for the U.S. attorney's office in Denver.
Monday, November 07, 2011
Reefer Madness
New York Times
MARIJUANA is now legal under state law for medical purposes in 16 states and the District of Columbia, encompassing nearly one-third of the American population. More than 1,000 dispensaries provide medical marijuana; many are well regulated by state and local law and pay substantial taxes. But though more than 70 percent of Americans support legalizing medical marijuana, any use of marijuana remains illegal under federal law.
When he ran for president, Barack Obama defended the medical use of marijuana and said that he would not use Justice Department resources to override state laws on the issue. He appeared to make good on this commitment in October 2009, when the Justice Department directed federal prosecutors not to focus their efforts on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
But over the past year, federal authorities appear to have done everything in their power to undermine state and local regulation of medical marijuana and to create uncertainty, fear and confusion among those in the industry. The president needs to reassert himself to ensure that his original policy is implemented.
The Treasury Department has forced banks to close accounts of medical marijuana businesses operating legally under state law. The Internal Revenue Service has required dispensary owners to pay punitive taxes required of no other businesses. The Bureau of Alcohol, Tobacco, Firearms and Explosives recently ruled that state-sanctioned medical marijuana patients can not purchase firearms.
United States attorneys have also sent letters to local officials, coinciding with the adoption or implementation of state medical marijuana regulatory legislation, stressing their authority to prosecute all marijuana offenses. Prosecutors have threatened to seize the property of landlords and put them behind bars for renting to marijuana dispensaries. The United States attorney in San Diego, Laura E. Duffy, has promised to start targeting media outlets that run dispensaries’ ads.
President Obama has not publicly announced a shift in his views on medical marijuana, but his administration seems to be declaring one by fiat. The head of the Drug Enforcement Administration, Michele M. Leonhart, a Bush appointee re-nominated by Mr. Obama, has exercised her discretionary authority to retain marijuana’s classification as a Schedule I drug with “no currently accepted medical use in treatment in the United States.” And the pronouncements on marijuana, medical and otherwise, from Mr. Obama’s top drug policy adviser, R. Gil Kerlikowske, have been indistinguishable from those of Mr. Bush’s.
MARIJUANA is now legal under state law for medical purposes in 16 states and the District of Columbia, encompassing nearly one-third of the American population. More than 1,000 dispensaries provide medical marijuana; many are well regulated by state and local law and pay substantial taxes. But though more than 70 percent of Americans support legalizing medical marijuana, any use of marijuana remains illegal under federal law.
When he ran for president, Barack Obama defended the medical use of marijuana and said that he would not use Justice Department resources to override state laws on the issue. He appeared to make good on this commitment in October 2009, when the Justice Department directed federal prosecutors not to focus their efforts on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
But over the past year, federal authorities appear to have done everything in their power to undermine state and local regulation of medical marijuana and to create uncertainty, fear and confusion among those in the industry. The president needs to reassert himself to ensure that his original policy is implemented.
The Treasury Department has forced banks to close accounts of medical marijuana businesses operating legally under state law. The Internal Revenue Service has required dispensary owners to pay punitive taxes required of no other businesses. The Bureau of Alcohol, Tobacco, Firearms and Explosives recently ruled that state-sanctioned medical marijuana patients can not purchase firearms.
United States attorneys have also sent letters to local officials, coinciding with the adoption or implementation of state medical marijuana regulatory legislation, stressing their authority to prosecute all marijuana offenses. Prosecutors have threatened to seize the property of landlords and put them behind bars for renting to marijuana dispensaries. The United States attorney in San Diego, Laura E. Duffy, has promised to start targeting media outlets that run dispensaries’ ads.
President Obama has not publicly announced a shift in his views on medical marijuana, but his administration seems to be declaring one by fiat. The head of the Drug Enforcement Administration, Michele M. Leonhart, a Bush appointee re-nominated by Mr. Obama, has exercised her discretionary authority to retain marijuana’s classification as a Schedule I drug with “no currently accepted medical use in treatment in the United States.” And the pronouncements on marijuana, medical and otherwise, from Mr. Obama’s top drug policy adviser, R. Gil Kerlikowske, have been indistinguishable from those of Mr. Bush’s.
Sentencing Shift Gives New Leverage to Prosecutors
The New York Times
Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.
Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.
Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.
Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.
Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.
The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.
The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.
But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.
Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances. And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.
These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades. They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.
The ‘Trial Penalty’
In the courtroom and during plea negotiations, the impact of these stricter laws is exerted through what academics call the “trial penalty.” The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.
By RICHARD A. OPPEL Jr.
GAINESVILLE, Fla. — After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.
Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms. By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12. The decline has been even steeper in federal district courts.
Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was arrested here last year, accused of beating his girlfriend and threatening her with a knife, the prosecutor offered him a deal for two years in prison plus probation.
Mr. Guthrie rejected that, and a later offer of five years, because he believed that he was not guilty, his lawyer said. But the prosecutor’s response was severe: he filed a more serious charge that would mean life imprisonment if Mr. Guthrie is convicted later this year.
Because of a state law that increased punishments for people who had recently been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he could have resolved for a two-year term could keep him locked up for 50 years or more.
The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.
The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.
But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.
Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances. And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.
These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades. They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.
The ‘Trial Penalty’
In the courtroom and during plea negotiations, the impact of these stricter laws is exerted through what academics call the “trial penalty.” The phrase refers to the fact that the sentences for people who go to trial have grown harsher relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and is used to punish defendants for exercising their right to trial, some legal experts say.
Saturday, November 05, 2011
Thursday, November 03, 2011
The Appeal of the Death Penalty
the Atlantic Monthly
As an Orange County jury debated in 2009 whether the white supremacist Billy Joe Johnson should live or die for murdering a fellow gang member, he asked to be sent to death row. Not because he felt any sudden remorse for the five people he’d killed over the years—“I commit crimes when people piss me off,” he once explained, matter-of-factly—but because Johnson believed he’d have better living conditions, including liberal phone privileges, a bigger cell, and daily human interaction, at San Quentin’s death row than he would at Pelican Bay, one of the state’s toughest maximum-security prisons, where he was serving a 46-year-to-life sentence, primarily in solitary confinement.
He also knew that the odds were good that he might never be executed. Bogged down by constitutional challenges and appeals, California’s system takes an average of 20 years to move a prisoner from conviction to execution.
Experts on both sides of the death-penalty debate have long agreed that California’s system is the nation’s costliest and least efficient. This June, a landmark report by Paula M. Mitchell, a professor at Loyola Law School, and Arthur L. Alarcón, a senior judge on the Ninth Circuit Court of Appeals, unearthed new data that reveal just how bad the system is.
Their report showed that since the current death-penalty statute was enacted in 1978, taxpayers have spent more than $4 billion on only 13 executions, or roughly $308 million per execution. As of 2009, prosecuting death-penalty cases cost upwards of $184 million more each year than life-without-parole cases. Housing, health care, and legal representation for California’s current death-row population of 714—the largest in the country—account for $144 million in annual extra costs. If juries continue to send an average of 20 convicts to San Quentin’s death row each year, and executions continue at the present rate, by 2030 the ranks of the condemned will have swelled to more than 1,000, and California’s taxpayers will have spent $9 billion to execute a total of 23 inmates.
“I was stunned by the report,” said Loni Hancock, a Democratic state senator from Oakland and a member of the senate budget committee. Hancock had spent the previous five months agonizing over deep cuts to California’s general budget, and “it broke my heart,” she said. “That’s when I decided the time had come for Californians to reconsider the death penalty.”
As an Orange County jury debated in 2009 whether the white supremacist Billy Joe Johnson should live or die for murdering a fellow gang member, he asked to be sent to death row. Not because he felt any sudden remorse for the five people he’d killed over the years—“I commit crimes when people piss me off,” he once explained, matter-of-factly—but because Johnson believed he’d have better living conditions, including liberal phone privileges, a bigger cell, and daily human interaction, at San Quentin’s death row than he would at Pelican Bay, one of the state’s toughest maximum-security prisons, where he was serving a 46-year-to-life sentence, primarily in solitary confinement.
He also knew that the odds were good that he might never be executed. Bogged down by constitutional challenges and appeals, California’s system takes an average of 20 years to move a prisoner from conviction to execution.
Experts on both sides of the death-penalty debate have long agreed that California’s system is the nation’s costliest and least efficient. This June, a landmark report by Paula M. Mitchell, a professor at Loyola Law School, and Arthur L. Alarcón, a senior judge on the Ninth Circuit Court of Appeals, unearthed new data that reveal just how bad the system is.
Their report showed that since the current death-penalty statute was enacted in 1978, taxpayers have spent more than $4 billion on only 13 executions, or roughly $308 million per execution. As of 2009, prosecuting death-penalty cases cost upwards of $184 million more each year than life-without-parole cases. Housing, health care, and legal representation for California’s current death-row population of 714—the largest in the country—account for $144 million in annual extra costs. If juries continue to send an average of 20 convicts to San Quentin’s death row each year, and executions continue at the present rate, by 2030 the ranks of the condemned will have swelled to more than 1,000, and California’s taxpayers will have spent $9 billion to execute a total of 23 inmates.
“I was stunned by the report,” said Loni Hancock, a Democratic state senator from Oakland and a member of the senate budget committee. Hancock had spent the previous five months agonizing over deep cuts to California’s general budget, and “it broke my heart,” she said. “That’s when I decided the time had come for Californians to reconsider the death penalty.”
Chart: One Year of Prison Costs More Than One Year at Princeton - The Atlantic
Chart: One Year of Prison Costs More Than One Year at Princeton - The Atlantic
One year at Princeton University: $37,000. One year at a New Jersey state prison: $44,000.
Despite these shortcomings, this chart helps illustrate a large discrepancy in this country: America has the highest incarceration rate by population, but is only 6th in the world when it comes to college degrees. Our government's spending reflects that fact accordingly.
One year at Princeton University: $37,000. One year at a New Jersey state prison: $44,000.
Prison and college "are the two most divergent paths one can take in life," Whereas one is a positive experience that increases lifetime earning potential, the other is a near dead end, which is why Staten found it striking that the lion's share of government funding goes toward incarceration.
The comparison between higher education spending and correction spending highlighted in the following chart is not perfect. Universities have means to fund themselves; prisons rely on the government. So it makes some sense that a disproportional amount of money flows to the correction centers. Also, take note, comparing African Americans in college and African Americans in dorms is not completely fair. For one, college implies an 18-22 age range, and incarcerated adults can be of any age. Also, it doesn't take into account African Americans who commute to school.
Ft. Collins MMJ supporters may seek another election
The Coloradoan
Opponents of a ban on medical marijuana businesses in Fort Collins narrowed the gap but couldn't overcome the lead supporters had in Tuesday's election.
Final unofficial re-sults released Wednes-day afternoon by the Larimer County Clerk's Office showed Question 300 - which would ban medical marijuana dispensaries, grow operations and manufacturers of marijuana-infused products from the city - passing with 52 percent of the vote to 48 percent.
The difference in the final tally was 1,490 votes. Initial results released Tuesday night had the measure passing by 2,348 votes.
Supporters of the ban were "thrilled" with the final results, said Bob Powell, chairman of the Concerned Fort Collins Citizens, which placed the measure on the ballot.
But opponents of the ban said they are not giving up the fight to have marijuana dispensaries in Fort Collins and may try to bring the issue back to voters in 2012.
Opponents of a ban on medical marijuana businesses in Fort Collins narrowed the gap but couldn't overcome the lead supporters had in Tuesday's election.
Final unofficial re-sults released Wednes-day afternoon by the Larimer County Clerk's Office showed Question 300 - which would ban medical marijuana dispensaries, grow operations and manufacturers of marijuana-infused products from the city - passing with 52 percent of the vote to 48 percent.
The difference in the final tally was 1,490 votes. Initial results released Tuesday night had the measure passing by 2,348 votes.
Supporters of the ban were "thrilled" with the final results, said Bob Powell, chairman of the Concerned Fort Collins Citizens, which placed the measure on the ballot.
But opponents of the ban said they are not giving up the fight to have marijuana dispensaries in Fort Collins and may try to bring the issue back to voters in 2012.
Colorado Supreme Court removes attorney-client confidentiality from children in some cases
the Denver Post
In a decision that child advocates are calling landmark, the Colorado Supreme Court has ruled that conversations between children and the attorneys who represent them in custody and neglect cases are not protected by attorney-client privilege.
The decision, which stems from a 2005 case involving alleged sexual assault on a child, has divided normally unified children's advocates.
Some say the ruling will erode the crucial trust between a child and a guardian ad litem. Others argue that the decision confirms that the attorneys' duty is to do what's best for the child, even if the child doesn't agree.
"I think where we come down on this is disappointed," said Stephanie Villafuerte, executive director of the Rocky Mountain Children's Law Center, which represents children, primarily those in foster care.
Villafuerte said she feared the ruling would have a "chilling effect" on what troubled and abused kids — many of whom already have had their trust betrayed by adults — will confide in their attorneys.
"Kids are going to be mortified," she said.
But Linda Weinerman, executive director of the Office of the Child's Representative, a state agency that contracts with the state's 234 guardians ad litem, said the Oct. 24 ruling affirms the approach her office has used throughout its 11 years.
Weinerman said that as a guardian ad litem, her approach was, "I'd tell kids I'm representing you and I will not tell things you don't want me to tell unless I think they are things that will affect your safety. My job is to protect your safety."
In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected, or is in foster care. In some instances, they are appointed for kids who have been accused of crimes or are at the center of a custody fight.
In the majority opinion, Justice Nathan Coats wrote that a guardian ad litem does not represent litigants on opposite sides of a case "or even the demands or wishes of the child. . . . The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child."
Chief Justice Michael Bender and then-Justice Alex Martinez dissented.
Jeff Koy, an attorney at the Children's Law Center, said his organization argued in a brief filed in the case that children should be recognized as people entitled to legal representation.
But had the court ruled that way, Weinerman said, she could envision an attorney recommending a judge not return a child to his or her parents but being unable to explain why because the recommendation is based on something a child confided.
The case that produced the ruling illustrates the complex issues surrounding the guardians ad litem relationship with the children they represent.
In a decision that child advocates are calling landmark, the Colorado Supreme Court has ruled that conversations between children and the attorneys who represent them in custody and neglect cases are not protected by attorney-client privilege.
The decision, which stems from a 2005 case involving alleged sexual assault on a child, has divided normally unified children's advocates.
Some say the ruling will erode the crucial trust between a child and a guardian ad litem. Others argue that the decision confirms that the attorneys' duty is to do what's best for the child, even if the child doesn't agree.
"I think where we come down on this is disappointed," said Stephanie Villafuerte, executive director of the Rocky Mountain Children's Law Center, which represents children, primarily those in foster care.
Villafuerte said she feared the ruling would have a "chilling effect" on what troubled and abused kids — many of whom already have had their trust betrayed by adults — will confide in their attorneys.
"Kids are going to be mortified," she said.
But Linda Weinerman, executive director of the Office of the Child's Representative, a state agency that contracts with the state's 234 guardians ad litem, said the Oct. 24 ruling affirms the approach her office has used throughout its 11 years.
Weinerman said that as a guardian ad litem, her approach was, "I'd tell kids I'm representing you and I will not tell things you don't want me to tell unless I think they are things that will affect your safety. My job is to protect your safety."
In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected, or is in foster care. In some instances, they are appointed for kids who have been accused of crimes or are at the center of a custody fight.
In the majority opinion, Justice Nathan Coats wrote that a guardian ad litem does not represent litigants on opposite sides of a case "or even the demands or wishes of the child. . . . The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child."
Chief Justice Michael Bender and then-Justice Alex Martinez dissented.
Jeff Koy, an attorney at the Children's Law Center, said his organization argued in a brief filed in the case that children should be recognized as people entitled to legal representation.
But had the court ruled that way, Weinerman said, she could envision an attorney recommending a judge not return a child to his or her parents but being unable to explain why because the recommendation is based on something a child confided.
The case that produced the ruling illustrates the complex issues surrounding the guardians ad litem relationship with the children they represent.
Tuesday, November 01, 2011
A Duty Of Effective Counsel
New York Times
The vast majority of criminal cases are resolved by plea bargains: 94 percent in state courts, 97 percent in federal. For defendants, accepting a prosecutor’s plea deal is less risky than going to trial and possibly being convicted on a more serious charge with a stiffer sentence.
Defendants offered plea deals need effective counsel to ensure that their decisions are well founded and voluntary, not coerced. Under the Sixth Amendment, the Supreme Court said last year, a plea is legitimate only if a defendant has had assistance of counsel while considering it.
In a case before the court on Monday, Galin Frye of Missouri clearly lacked effective counsel at a crucial stage in the felony case against him for driving with a revoked license. The state presented his lawyer a choice of pleas: Mr. Frye could plead guilty to the felony and the prosecutor would ask the judge that he serve 10 days in jail; or he could plead guilty to a misdemeanor, with a request he serve 90 days, although his sentence could be a year.
The lawyer did not tell Mr. Frye about the offer. Three months later, after the offer expired, Mr. Frye pleaded guilty to the felony and was sentenced to three years in prison. A month later, with Mr. Frye in jail, his new lawyer learned about the plea offer. Mr. Frye said he would have taken the misdemeanor deal. He made a motion in a Missouri court to withdraw his guilty plea, which was denied. The Missouri Court of Appeals reversed that ruling.
The vast majority of criminal cases are resolved by plea bargains: 94 percent in state courts, 97 percent in federal. For defendants, accepting a prosecutor’s plea deal is less risky than going to trial and possibly being convicted on a more serious charge with a stiffer sentence.
Defendants offered plea deals need effective counsel to ensure that their decisions are well founded and voluntary, not coerced. Under the Sixth Amendment, the Supreme Court said last year, a plea is legitimate only if a defendant has had assistance of counsel while considering it.
In a case before the court on Monday, Galin Frye of Missouri clearly lacked effective counsel at a crucial stage in the felony case against him for driving with a revoked license. The state presented his lawyer a choice of pleas: Mr. Frye could plead guilty to the felony and the prosecutor would ask the judge that he serve 10 days in jail; or he could plead guilty to a misdemeanor, with a request he serve 90 days, although his sentence could be a year.
The lawyer did not tell Mr. Frye about the offer. Three months later, after the offer expired, Mr. Frye pleaded guilty to the felony and was sentenced to three years in prison. A month later, with Mr. Frye in jail, his new lawyer learned about the plea offer. Mr. Frye said he would have taken the misdemeanor deal. He made a motion in a Missouri court to withdraw his guilty plea, which was denied. The Missouri Court of Appeals reversed that ruling.