Friday, December 19, 2008

Dynamics of Overcriminalization

Last weekend I wondered aloud why the first response in this country to every social problem always seems to involve more cops, courts and punishments. So later in the week I was delighted to see some of those themes more ably developed in two top-notch posts by criminal defense attorneys Mark Bennett and Scott Greenfield, both of whom offered useful and important discussions that, taken togther, at least partially explain the overcriminalization dynamic.

Greenfield, a criminal defense attorney out of New York, laments the decline of the mens rea requirement in crimnal law, which is the principle that punishment requires personal fault. He rightly argues that:
legislative bodies have exhausted every possible permutation of malum in se offenses, the ones everyone knows or should know are wrong without having to be told in explicit detail, they have increasingly crafted malum prohibitum to be used as a regulatory framework to control more behavior that isn't inherently wrong, but that they have decided for whatever reason shouldn't be done. These offenses don't necessarily involve any moral fault on the part of the perpetrator, but rather a choice between various options, one or more of which has been denominated a crime.
Bingo! It's exactly that dynamic that causes a state like Texas to wind up with eleven different oyster-related felonies on the books!

Greenfield properly dislikes "The fact that the conduct was innocent or negligent no longer seems to deter the demand for punishment. It's all about the outcome and that every harm must have a crime to combat it."

Meanwhile, at his excellent blog Defending People, Mark Bennett opines on modern tradeoffs between freedom and safety, drawing on sources as disparate as philosophical debates among the Founding Fathers to modern brain science and the impact of fear and anxiety on policymaking. Bennett grants that safety, to an extent, is a prerequisite for liberty, but argues that the threshold after which liberty becomes the more important value is an extremely low one:

Do we have to have a degree of safety to enjoy freedom? Sure. The bottom level on Maslow’s Hierarchy has to be satisfied. But guess what: there’s no sabretooth breathing down your neck. The barbarians are not at the gates of your condo, which is fortunate because if they are you’re on your own — the government is busy popping hookers and crack users, and won’t show up when you call.

The costs of relying on government to keep us safe are manifold. We have to pay for it, which is in itself a deprivation of liberty; since government is inefficient and blows dangers out of proportion we pay a lot more than it would cost us to do it ourselves. We have to give up freedom from governmental intrusion in our own lives, because government can’t discriminate ab initio between the good guys and the bad guys and requires the power to meddle as much in our affairs as in those of the ones who might do us harm.

There's a lot more great stuff in both pieces and I'd encourage you to read them both. These are discussions which are almost impossible to imagine occurring in the mainstream media, so thank God for the blogosphere where the only limits on discourse are the boldness, knowledge, and imagination of the writer, not any ideological filter.


Anonymous said...

Great post. People often warn of the USA becoming a police state. I submit we already are and have been for quite some time. Being a police state is more than just unbridled power of police. It is exactly the subject at hand. Criminalization of nearly everything. Careful examination of nearly anyone's daily activities could most likely result in the them being charged for some crime somewhere. It's time for this to stop. I admire the Greeks. A 15-year old was killed by police and they take to the streets. When has ANYTHING remotely resembling that happened here considering the incredibly continuing stories in injustice and police/government abuses in this country. Revolution now!

Anonymous said...

Thanks for the kind words. The synergies we're creating in the blawgosphere really do provide a deeper, more meaningful, discussion of these important issues.

Anonymous said...

Careful, your starting to sound like a cynical veteran police officer.

Anonymous said...

Friedrich Nietzsche said: "Mistrust those in whom the urge to punish is strong." Lysander Spooner said that "[v]ices are not crimes" because they lack the intent to harm others. Go to Eklektik: and see what I have to say about the tyranny of our present governmental mindset.

Anonymous said...

12/19/08, 10:07 pm post by anonymous was supposed to be by D.M. Mitchell. I must have "clicked on" the wrong "button."

FleaStiff said...

How much overcriminalization is really a subsidy for a particular industry? Surely the enactment and enforcement of motorcycle helmet laws constitutes an impingement on people's freedom that serves primarily to help the industry acquire and maintain a tamer reputation.

Anonymous said...

I remember stumbling upon the quote below but can’t remember who made it:

“Show me a land with many laws and I will show you one corrupted land.”

GritsforBreakfast - I have been following your blogs on the criminal justice system and this article in particular really caught my attention.

I bet the average ordinary citizen never thinks about this until it’s too late. Did I ever think about? No, not really. I mean I would hear of certain things that people were being arrested on and remember thinking to myself, “Dang, they were arrested for that? How crazy can you get??!!” Then all of a sudden out of know where….BAM….it’s on your doorsteps. Oh no hang on…’s in your living room!

Four years ago my family had the rudest awakening ever. The scariest thing I learned from this “Year-of-Hell” when my oldest son was arrested for a crime he didn’t commit. He was misidentified out of a photo line up. (Long story short for now…besides the fact of losing around 50 grand and costing my son his first year in college …he was in the area for only 4 short weeks…2 of those weeks he was in classes. Of course we had no choice but to withdrawal him from college and move him back home because of the type of charges that were made against him. To sum it up: He was offered a plea bargain …but hang on a second…..why would an innocent person take a plea bargain??? Ha….I will explain that one some other time.

There is absolutely no doubt in my mind that my son is by far and few one of the luckiest young men alive……three weeks before my son’s trial….the real perpetrator was caught. All the charges on my son were dropped and we were able to have everything expunged.

To this day there are times I wish it had gone to trial. Number one maybe, just maybe my son would have received the justice he deserved. Let alone the fact of all the evidence we had, plus the evidence our Private Investigator had. At first I was SO relieved until I read the reasons that were listed on why the charges were dropped: “Not enough evidence to prosecute.” All I asked for was a decent retraction, all I got was: “You are not the victims here.” Oh yeah??????? Just ask anyone in this day and time how easy it is to prove your innocence if you are falsely accused of child abuse, domestic violence, or some type of sex-offense (even if it’s a streaking incident, urinating on the side of the road, and oh yes the biggie that hangs thousands of young men……consensual sex)!!! Oh mercy! Talk about guilty until proven innocent!

So how does all this lead to over criminalization? You see most people who are falsely accused on the types of crimes I mentioned in the above paragraph end up accepting a plea bargain. The biggie in Texas is “Deferred Adjudication”. By law…it is NOT a conviction……BUT…..that law is being broken every single day and with no ramifications to those who are breaking it! I thought ignorance of the law is no excuse? Well ignorance within the laws IS no excuse either!

Interesting testimony that explains how non-convictions are being criminalized:

Testimony of: Rob Sandifer Co-founder, TAJLR
To: Senate Interim Charges Hearing
Date: June 5, 2008

Deferred Adjudication Under Indictment!

To almost 2 million Texas citizens (plus their families), the negative consequences of having to live with a criminal record associated with a deferred adjudication plea is horrific and unending.

People who took and successfully completed deferred adjudication currently face a lifetime of employment discrimination, housing discrimination, broken families, and an endless cycle of poverty and misery.

Being proactively "tough on crime" by overseeing those individuals who have a criminal record is the approach that the Texas state legislature and courts have taken for a number of years now. All of this sounds good on paper, until one begins to investigate and "drill down" into what deferred adjudication really is and what it was originally intended to do
and what it has become.

What deferred adjudication is NOT:

• DA is not a finding of guilt
• DA is not a conviction

What deferred adjudication is:

• A plea bargain agreement between a defendant and the state
• A "contractual agreement" between a defendant and the state
• A court agreement between a defendant and the state in which the state will postpone or “defer" a final finding of guilt pending the defendant's success in following all of the court's sanctions and guidelines. If a defendant successfully completes all the court's requirements, then the case is dismissed with no final finding of guilt and no conviction imposed.

What was deferred adjudication originally intended to do?

In the words of Williamson county Prosecutor John Bradley, stated in part:

"...Originally, deferred adjudication was meant to give first offenders an opportunity to avoid a criminal record and prove themselves worthy of avoiding a formal conviction. However, over the years since its inception, amendments to the laws have diluted those worthy intentions..."

In a press statement released on June 24, 2003, Senator Royce West said, stated, in part

"... The original intent was to give those charged with lesser crimes the opportunity to "wipe the slate clean" and make a fresh start..."

Previous to serving in the capacity as an elected Texas state senator, Mr. West was a felony prosecutor in Dallas, TX. Mr. Bradley and Mr. West, both of whom have served as respected prosecutors in the state of Texas, freely admit that deferred adjudication, as it was originally written, and as it has been explained to defendants in Texas for almost 30 years to Texas defendants by their respective attorneys, was meant to allow deserving Texas citizens who completed all the requirements of their court sanctions the ability to not have a criminal record for a first time offense.

Sadly, this has not taken place because the state of Texas has not kept its end of the contractual agreement which it signed with each and every one of the approximately 2 million Texas citizens who have taken, and successfully completed court ordered deferred adjudication over the past 30 years.

Part of the deferred adjudication "contractual agreement" that the state of Texas signed with the approximate 2 million Texans is stated, in part, as found in Texas Criminal Code 42.12 Section 5(c):

"...Except as provided by Section 12.42(g), Penal Code,
a dismissal and discharge under this section may not
be deemed a conviction for the purposes of disqualifications
or disabilities imposed by law for conviction of an offense..."


Texas Criminal Code 42.12 Section 20:

"... If the judge discharges the defendant under this section, the
judge may set aside the verdict or permit the defendant
to withdraw his plea, and shall dismiss the accusation,
complaint, information or indictment against the defendant, who
shall thereafter be released from all penalties and
disabilities resulting from the offense or crime of which he
has been convicted or to which he has pleaded guilty..."

Effectively, these provisions in 42.12 emphatically and undeniably state that not only is a successfully completed deferred adjudication NOT to be deemed a conviction, it is in no way allowed to be treated in the same respect with regards to penalties and disqualifications that a conviction is to be treated. This law is very, VERY specific in the delivery and purpose of the intent of the law.

Not only has statutory law carefully made the statement that a successfully completed deferred adjudication is not a conviction and is not to be treated as a conviction, but recent case law (Donovan vs. State of Texas No. 1310-00 Court of Criminal Appeals ruled on January 20, 2002), has even declared that a deferred adjudication is NOT a finding of guilt! To wit:

"... Under the deferred adjudication scheme, a judge does not make a "finding of guilt"; instead the judge makes a finding that the evidence "substantiates the defendant's guilt" and then defers the adjudication. (8) Appellant argues that a finding that the evidence substantiates guilt is a finding of guilt. But this construction of Art. 42.12 §5 is inconsistent with our holdings on the meaning of deferred adjudication. A deferred adjudication is often referred to as a deferral of a finding of guilt. (9) Trial courts routinely say, upon adjudication, that they "find (the defendant) guilty." (10) A defendant on deferred adjudication has not been found guilty. (11) That is one of the signal benefits of deferred adjudication as opposed to, for instance, regular community supervision. When adjudication is deferred, there is no "finding or verdict of guilt." Because there is no finding or verdict of guilt, there is nothing that can be set aside so as to create an occasion for implementation of Rule 21. ..."
In other words, the Texas Court of Criminal Appeals has ruled, once and for all, that a
successfully completed deferred adjudication is NOT an affirmation of guilt; a defendant on deferred adjudication has NOT been found guilty and has not been convicted!

And if all of this is not enough, then let us all agree to carefully defer to what US Supreme Court Justice Stevens had to say on the subject of deferred adjudication in a US Supreme Court case of a "Denial of Writ of Certiorari" which was ruled on by the US
Supreme Court on October 10, 2006 in the case (Caldwell/Martinez vs. Texas Department of Criminal Justice Decided October 10, 2006 Case No. 05-10671)

"...The whole point of [the deferred adjudication probation] statute is to avoid having to formally adjudicate the defendant's guilt unless and until he demonstrates that he cannot abide by the terms of probation set by the court. If the defendant successfully completes his probation, his offense is essentially expunged..."

-- US Supreme Court Justice John Paul Stevens

(Currently the most senior sitting Associate Justice of the US Supreme

Members of the committee, there you have it. One of the top prosecutors in the state of Texas, John Bradley has spoken. The Texas Criminal Code Procedure found in 42.12
has spoken. The Texas Criminal Court of Appeals has spoken. And most recently, the
most senior sitting Associate Justice in the highest court in the United States has openly declared that a successfully completed deferred adjudication is an expungement.

Members of the committee, in light of the overwhelming preponderance of legal evidence given to you in this presentation, given to you in the form of statements made by a chief Texas prosecution source, given to you in the recitation of current law governing the execution of legally binding deferred adjudication contracts between Texas defendants found in Texas Criminal Code 42.12, evidence given to you in recent, fixed case law ruled on in the Texas Court of Criminal Appeals, and finally, the overwhelmingly convincing opinion recently issued by US Supreme Court Justice Stevens, we, honest, and law abiding...and voting citizens of the state of Texas ask you to remove the legal disqualification which currently bars deserving, one-time offending, and law abiding Texas citizens the right to expunction. This bar to expunction must be removed to satisfy the legal mandate handed down by section 42.12 which plainly states that:

"...a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense..."

Members of the committee, the presentation of our grievance is very clear. Statutory
law and case law regarding this matter are very clear. The powerful, undeniable, and unimpeachable opinion issued by Justice Stevens is very clear. And at the end of all this testimony and presentation, it should also be unmistakably clear to this committee that the only ethical and proper legal course of action is remove the bar to expunction (found in Texas Criminal Code 55.01) for any and all Texas defendants who executed a legally
binding deferred adjudication contract between themselves and the state of Texas which
is governed by statutory law as codified in Texas Criminal Code 42.12.

Having said all of that, we, the citizens of Texas request the following grievances be fully addressed during the next legislative session by drafting an expunction reform bill to be submitted for authorizing signature by the Governor of the State of Texas to be made law when the next legislative session convenes in 2009. This bill shall contain the following provisions:

List of Grievances and Requested Relief:

(1) Amend Texas Criminal Code Procedure 55.01 so that any and all successfully completed cases of deferred adjudication (covered under sections 42.12 and 42.13 which have been dismissed by a criminal court are to be statutorily expunged within 30 days of written application to the court and the court will provide official notice of expunction to the defendant within 15 days of expungement. Expungements will be automatic and as mandated by law. This expungement action is not available as a discretionary power of the presiding criminal court judge. The judge's only action in the expungement process is to verify that the expungement process is expedited and the judge's written signature/stamp will be affixed to the expungement order and will see to it that the expungement order is executed and carried out.

(2) Amend the Texas Administration Code and all other state/county/municipal statutory/legal/administrative codes so that all successfully completed deferred adjudications are no longer a barrier to employment, professional/occupational licensing, etc.

(3) Include a provision in this expunction reform bill which will provide a significant criminal penalty (felony) for any person, company, state agency, or any other private or public entity who knowingly retains and disseminates criminal records that have been expunged under this act.

Anonymous said...

Thanks for the post Beverly. I've been having a discussion on another forum about the problems associated a new state trend of posting criminal histories online.

The information comes from the law enforcement arena not from the traditionally used court records. So in many states no distinction is made between charges and convictions.

"States increasingly put criminal records online"

"You get everything we have, except anything ordered sealed or expunged by a court: descriptive data of the person physically, everything about the charge and the arrest, regardless of whether it's dismissed or the charges weren't pursued, the court action, information on incarceration," said Martha Wright, chief of user services for the Florida Department of Law Enforcement, which maintains that state's online criminal histories Web site.

It appears that not only is overcriminalization a real threat but within that the zealousness with which states are seeking to publish any and all acts having merit or not is appalling. It seems to me that this is a crime in itself.

Anonymous said...

Kudos to Beverly Lanfear and Rob Sandifer! They are telling the truth regarding our "justice system" We have no justice system anymore; what we have is a corrupt, greedy system where winning takes over lives of all involved. The District Attorneys and Judges are just about winning regardless of the outcome to families, children and even friends of those who are crucified by the criminal justice system in the name of greed!!

We need to clean house, starting with DAs, Judges and especially those corrupt defense attorneys who don't care about the truth only about how and when they are going to get paid.

Our prisons are full and over capacity and the BPP is a laugh. There should be special requirements met for someone to be hired for a position on the Board of Pardons and Paroles, including a mental assessment. If they have the lives of those who come before them in their hands, they should be capable of being able to see the good in people and not continue to punish those who are not guilty of anything but got caught in the legal "mess" of the justice system.

Pray that our Legislators make good decisions and start clean house this next session; it is about time we stop using Inmates as cheap labor and start truly trying to get the lives back of those who got caught in the lies and web of deception that thrives today.