Are Drug Courts A Fraud?

There is a hot debate brewing on the validity of drug courts. According to the National Drug Court Institute, Drug courts is a voluntary program for persons who are charged with drug related crimes. These programs, built around the judicial system, provide for diversion of individuals from traditional criminal courts to an intensive interactive program involving criminal justice professionals including the judges themselves who work on an intense one and one basis with drug offenders in an attempt to change their ways. The conventional wisdom is that these programs are working well. Recently a controversy has errupted about their efficacy.

Crime and Consequences has a guest post written by Steven K. Erickson entitled “The Drug Court Fraud”in which the author challenges the overall sucess rates of these programs. Mr. Erickson correctly challenges some flaws in this sucess reporting statistics, but moves from this position to write a blistering indictment on these programs generally. Texas Attorney Jamie Spencer has done a succinct job in criticizing Mr. Erickson’s analysis.

I don’t doubt that there may be some puffery on statistics.  Mark Twain said that there are lies, damn lies, and statistics.   I have, however, seen drug courts in action and they definitely have some successes.   I am aware of the danger of andectodal evidence however I strongly believe that any program that provides personal attention and a support network to those with drug problems is a useful enterprise.  I also think that making judges a partner in rehabilitation will help bring home the defendant’s humanity and help judges remember at sentencing time that the people in front of them are just that and not file numbers.

A Witch Hunt for Sex Offenders

As Bloggers Douglas Berman, and Norm Patis (at Crime and Federalism) have noted, numerous states have been passing laws trying to ban sex offenders from participating in Halloween. Mr. Patis correctly notes that this ban is ironic because State Legislatures around the country have very much treated accused sex offenders very similarly to the way that alleged witches were treated in Salem. As detailed in articles from New York and Tennessee and Texas everyone is trying to keep sex offenders from participating in the holiday. This form of ineffectual legislation serves no useful purpose and is a classic game of one upmanship.

En Banc Sixth Circuit Upholds Death Penalty Conviction Where Counsel Lied About His Experience

Yesterday’s New York Times reported on a recent decision of the United States Court of Appeals for the Sixth Circuit upheld a death penalty conviction in a very deeply disturbing case.

James Earl Slaughter (really “James Leonard,” but Slaughter was the name used throughout the proceedings) was sentenced to death in 1983 for the stabbing death of a Louisville store owner. Mr. Slaughter’s attorney lied about his experience as a capital defense attorney (he stated he handled four prior death penalty cases when in fact this was his first), he did no investigation of the client’s background, and in fact could not even properly spell or pronounce his client’s name.

A U.S. District Court judge granted the writ. 186 F. Supp. 2d 755 (WD Ky, 2001), but the conviction was reinstated by a divided panel of the Sixth Circuit. Slaughter v. Parker, 450 F.3d 224 (CA 6, 2006).

The other day, an en banc panel of the Sixth Circuit voted 7-7 to declined to rehear the case. While condemining the representation that Mr. Slaughter received, the majority seems content to say that the favorable testimony which counsel did not offer would not have changed anyone’s mind because Mr. Slaughter had no compelling facts. What is particularly troubling about this assertion is the fact that a juror on the case filed an affidavit that she would have voted the other way had she known these facts. Unfortunately, juror affidavits about what they would have done are deemed less trustworthy than judicial or attorney speculation about what they would have done.

Ninth Circuit Recognizes that a Defendant Who Pled Guilty Can Be Actually Innocent

In most people’s minds, an innocent man would never plead guilty to an offense. A recent decision of the United States Court of Appeals for the 9th Circuit calls this assumption into question.

In Smith v. Baldwin, 04-35253 (9th Cir., Oct. 24, 2006), a divided Ninth Circuit panel found that a defendant who pled guilty to an offense could assert his actual innocence in challenging his conviction. There, Roger Smith pleaded guilty to felony murder after a burglary turned deadly. Eyewitness testimony established that either Smith or his buddy Jacob Edmonds committed the murder, and the killer did so entirely outside the presence of the other burglar. Although there was evidence pointing to Edmonds as the killer, he was the first to make a deal and he agreed to testify against Smith. After prosecutors confirmed that Edmonds had passed a polygraph, Smith decided to cut his losses and plead guilty to felony murder based on his participation in the burglary.

Edmonds later recanted, admitting that he was the killer and suggesting that Smith knew nothing of his violent intentions (in which case felony murder arguably would not apply). And that polygraph that Edmonds took? It turned out that the results were borderline at best. Smith sought habeas relief, but Oregon prosecutors threatened to revoke Edmonds’ deal if he agreed to testify. In more bad news for Smith, his federal petition was likely barred because he had failed to comply with all of the procedural requirements under the Anti-Terrorism and Effective Death Penalty Act (”AEDPA”).

Thankfully for Mr. Smith the AEDPA has a safety valve for claims of actual innocence. The Ninth Circuit found that the recantation was sufficient evidence of “actual innocence” to allow Mr. Smith’s habeas claim to proceed. The Court found that the prosecution’s effort to prevent Edmonds from testifying is a sufficient basis for presuming that Edmonds is now telling the truth. Accordingly, it concludes that Smith has made a preliminary showing of actual innocence and remands for an evidentiary hearing on his habeas claim.
A virgorous dissent was lodged by Judge Bybee who noted that once a defendant pleads guilty to an offense, he gives up the right to assert his innocence. Further, a prosecutor did not commit error when he “reminded” the informant of his agreement under the plea.