The Exonerated

Last Friday night, my wife and I saw a production of “The Exonerated” which consisted of five stories of people who sat on Death Row for crimes they did not commit. It was real. It was moving. And it renewed one’s belief in the strength of the human character under the most difficult of adversities. Present at the theatre was Juan Rivera who was sat on Death Row in Illinois for seventeen years and was tried three times for a crime someone else committed. His story alone is not only inspiring but urges everyone who hears it to stand up when a wrong is being done and scream to the roof top that it must be righted. 

The production runs on Friday and Saturday nights through May 5 at the Josephine Louis Theatre at Northwestern. It is a must see.

 

Thomas C. Brandstrader

Interesting new case on blood taking and dui’s……

MISSOURI v. McNEELY

certiorari to the supreme court of missouri

No. 11–1425. Argued January 9, 2013—Decided April 17, 2013

Respondent McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sample. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated hisFourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757 , in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ ” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unreasonable searches of his person.

Held: The judgment is affirmed.

358 S. W. 3d 65, affirmed.

     Justice Sotomayor delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Pp. 4–13, 20–23.

     (a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218 , applies here, where the search involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation. One recognized exception “applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.’ ” Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398 . Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while officers transported the injured suspect to the hospital and investigated the accident scene. Pp. 4–8.

     (b) The State nonetheless seeks a per se rule, contending that exigent circumstances necessarily exist when an officer has probable cause to believe a person has been driving under the influence of alcohol because BAC evidence is inherently evanescent. Though a person’s blood alcohol level declines until the alcohol is eliminated, it does not follow that the Court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451 . Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385 . Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy, 412 U. S. 291 , BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain a trained medical professional’s assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is obtained. The State’s rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically. Pp. 8–13.

     (c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. Pp. 20–23.

     Justice Sotomayor, joined by Justice Scalia, Justice Ginsburg, and Justice Kagan, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119 –125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. Pp. 15–20.

     Sotomayor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which Scalia, Kennedy, Ginsburg, and Kagan, JJ., joined, and an opinion with respect to Parts II–C and III, in which Scalia, Ginsburg, and Kagan, JJ., joined. Kennedy, J., filed an opinion concurring in part. Roberts, C. J., filed an opinion concurring in part and dissenting in part, in which Breyer and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.


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Jennifer Del Prete

The two previous posts highlight the tragedy of the innocent in prison. While i know that our criminal justice system is made up of human beings, most trying to do their best, it is infected with a win at all costs attitude in many places whose obligation should be to see that justice is done no matter the outcome.

The uncovered letter in the Medill post is a perfect example of this attitude. The lead detective being told that the first doctor to examine the baby did not believe it was “Shaken Baby” yet goes on to encourage the prosecution’s “hired gun” expert to find otherwise and expresses his personal  comfort in knowing that she would eventually make things “right”.

The expert in Del Prete specialty was investigating child abuse. She employed a power point in  Del Prete that she used in every one of her SBS cases. During the trial she had to apologize to the court when the power point presentation,  supposedly prepared for the Del Prete case,  had obviously been used in other cases despite her assurances to the contrary.

Over thirty people testified for Jennifer. More at sentencing. Each one swore that the Jennifer Del Prete would never harm an infant or anyone else. The woman who ran the day care, who had the most to lose, testified at trial and at sentencing, and stated each time she was absolutely sure Jennifer did not harm the infant.

Never in thirty three years of criminal practice have I been involved in a matter where the person charged with the offense was more obviously innocent of the charge. I represented Jennifer on appeal of her conviction. I was bound by the record and thus was stuck with the presumption that the  trial court was deemed to only have considered relevant evidence. This is a difficult presumption to overcome and the circumstances of the decedent generated an unbreachable wall of sympathy. 

I filed the petition for post conviction relief for Jennifer. It was dismissed in the first stage by the same trial judge as merit-less  As I never had subpoena power (due to the petition never being docketed under the statute)  I was unable to possibly uncover the letter recently found by Medill. The failure of the prosecution to turn over this letter was a breach of Jennifer’s due process rights as it obviously indicates that the first state “expert” did not see SBS in his observations. I wonder why that professional did not stick to his guns? I am going to venture to say pressure was applied by those who had to win at all costs. 

Jennifer Del Prete is innocent. It is not that she is not not guilty….She is innocent. It is not that the State failed to prove her guilty…it is that she is innocent. She has been in jail for years for doing nothing more than trying to save a sick baby in her care…a baby that had been abused by someone else at a prior time…Jennifer has a  child too…there are many victims in this case…Jennifer is one of them….

Thomas C. Brandstrader

 

This woman is in prison yet she did nothing wrong….

The Medill Justice Project probes expert witnesses in ‘shaken-baby’ murder conviction

March 19, 2013

Undergraduate journalism students at Northwestern University investigating a former Chicago-area day care worker’s first-degree murder conviction are raising questions about the role of expert testimony in a 2005 Will County, Ill., trial. Jennifer Del Prete is accused of violently shaking a 3 ½-month-old infant at a Romeoville, Ill., day care, causing head injuries that led to her death nearly a year later.

Students in a winter investigative journalism class led by Prof. Alec Klein, director of The Medill Justice Project, formerly the Medill Innocence Project, report in a story published today on www.medilljusticeproject.org that:

• The defense’s expert medical witness was drastically unmatched in his qualifications compared to the prosecution’s expert witness, a nationally acknowledged child-abuse expert. The defense expert, who was not board certified in pediatrics and had not worked in a pediatric family practice in 22 years, appeared to miscalculate the timing of the infant’s injuries. It was a key assertion that has since been undermined by a battery of medical experts for the defense and prosecution who now acknowledge the infant’s chronic brain bleed began two to three weeks—or perhaps even weeks earlier—before she became unresponsive under Del Prete’s care. That means the infant’s injuries could have been sustained before she was under Del Prete’s care. In a sidebar, the students detail new medical evidence which has emerged since Del Prete’s trial about eight years ago.

• Two years before Del Prete’s trial, in a letter The Medill Justice Project obtained through the Freedom of Information Act, a Romeoville, Ill., Police detective warned the state’s expert of a “twist” in the case, telling her of his concern that the forensic pathologist conducting the infant’s autopsy “does not agree with SBS [shaken-baby syndrome], and has testified for the defense in two DuPage County SBS cases.” The forensic pathologist ultimately concluded the child’s injuries were the result of abusive head trauma, testifying that his opinion relied heavily on the prosecution’s expert witness. That expert testified the nature of the child’s eye injuries could only have been the result of child abuse, although studies in recent years have shown there could be other causes.

• For the first time, The Medill Justice Project was permitted to record on-camera prison interviews. The project, which is airing videos of two prisoners, has been investigating Del Prete’s case for nearly a year and inmate Pamela Jacobazzi’s case since October, publishing investigative findings in December. Both women are former day care workers convicted in shaken-baby syndrome cases and maintain their innocence.

The Medill Justice Project is also working to create the nation’s first shaken-baby syndrome criminal case database available to the public. As medical experts increasingly question the traditional understanding of shaken-baby syndrome, the specter arises that parents, nannies, day care providers and others may have been imprisoned for crimes they did not commit.

Aside

e Justice System’s Imprisonment of Innocent Citizens -By Anthony Gregory |HuffPost

11OCT

It is frequently said that a civilized people would rather let ten guilty men go free than put one innocent person in prison. I would revise the ratio, myself, yet we are starting to get a glimpse into just how often innocent people are convicted in this country.

Damon Thibodeaux is the 300th convict exonerated through DNA evidence. He is an innocent man who was threatened and intimidated into giving a false confession that never withstood a cursory comparison to the facts. Not only was he innocent, but one of the crimes to which he confessed — sexual abuse — appears never to have happened to the murder victim.

These releases have blown a hole in the myth that the justice system almost never damns the innocent. Some would suggest that the return of these individuals’ freedom shows the system is working — yet for years they have been deprived of their birthright of liberty, and rarely ever receive retribution. Moreover, many more remain imprisoned and are likely never to be released.

Thibodeaux’s ordeal reminds us that even when the facts appear to clearly prove the prosecution’s case, behind-the-scenes criminal justice shenanigans often obscure the picture seen by jurors. The Washington Post reports that among exonerations in the last five years, “as many as a quarter of the cases involved a false confession.” This might shock Americans who have never learned about the way police interrogators can psychologically manipulate suspects, breaking them down hour by hour, until the suspects no longer have any conception of reality or identity.

Research out of the University of Michigan indicates a 2.5 percent to 4 percent error rate in capital cases. And in June, “researchers examining biological evidence from hundreds of Virginia rape convictions between 1973 and 1987 determined that new DNA testingappeared to exonerate convicted defendants in 8 percent to 15 percent of cases.”

This means that for the 140,000 on death row or serving life imprisonment alone, “many thousands of innocent individuals could be in prison for crimes they didn’t commit.” In some categories of offenses, it would seem the U.S. is getting awfully close to an error rate that would mean letting everyone out of prison would satisfy the moral standard that imprisoning an innocent person is worse than letting ten guilty people go. This sounds crazy, but that is the degree of injustice our system has wrought.

Unfortunately, most innocent people will probably never be released, since the vast majority of cases resulting in DNA-based exoneration involve rape where there is DNA evidence to test. There are many more cases in which confessions and eyewitness testimony — two notoriously unreliable forms of proof — are the main ways prosecutors secure convictions. Compounded by the highly problematic reliance on plea bargains, and we see how things can get so awful.

It is almost a certainty that thousands of innocent Americans are behind bars, potentially subject to brutal conditions, violence, and very often rape. This of course does not even touch on those who are punished for peaceful acts that should not be crimes in a free society — like drug or gun ownership or illegal immigration — nor does it take account of the many property criminals who would be more humanely and justly handled through restitution to their victims rather than imprisonment; nor does it consider the hundreds of thousands imprisoned on petty parole and probation violations where no one was actually hurt. Maybe if the criminal justice system were only focused on violent crime, it could better ensure that fewer innocents were locked up, but even this would require eternal vigilance on the part of the people.

Despite the criminal justice system comprising one outrageous injustice mounted atop another, this gets very little attention in mainstream discourse. Why?

Finally….someone might be waking up to why we have more people in prison than any other country on earth…

Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced”

The title of this post is the headline of this notable new press release now available at the website of Senator Patrick Leahy. Here is how it starts:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator Rand Paul (R-Ky.) introduced bipartisan legislation Wednesday to allow judges greater flexibility in sentencing federal crimes where a mandatory minimum punishment is considered unnecessary.

The bipartisan Justice Safety Valve Act of 2013 expands the so-called “safety valve” that allows judges to impose a sentence below the mandatory minimum in qualifying drug cases to all federal crimes.  By giving judges this greater flexibility, they will not be forced to administer needlessly long sentences for certain offenders, which is a significant factor in the ever-increasing Federal prison population and the spiraling costs that steer more and more of the justice budget toward keeping people in prison, rather than investing in programs that keep our communities safe.

“As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep criminals off the street and deter those who would commit violent crime,” Leahy said.  “Our reliance on mandatory minimums has been a great mistake.  I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them.  A one-size-fits-all approach to sentencing does not make us safer.”

Paul said that “Our country’s mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the Constitutional Separation of Powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer.  This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

Because Senator Leahy is doing some notable work today on the drone and immigration reform fronts, I suspect that today’s introduction of the Justice Safety Valve Act of 2013 will not get as much attention from the MSM as I might think it merits.   That said, I expect (and hope) that this story will get some broader attention due to the fact that GOP rock-star Senator Rand Paul is the other big initial player in this important federal sentencing reform effort.  (To start, I am very pleased to see that John Gramlich has produced this lengthy and informative piece about the bill in CQ Roll Call.)

Not surprisingly, the folks at Families Against Mandatory Minimums are excited about this development, and this new FAMM press release details some additional notable content that FAMM has produced in conjunction with this new bill.  Here are excerpts and links:

FAMM President Julie Stewart today hailed the introduction of The Justice Safety Valve Act of 2013 (S. 619), a bipartisan federal bill that would save taxpayer dollars by reserving scarce federal prison beds for the most dangerous offenders.  The bill creates a “safety valve” that allows federal courts to impose sentences below the mandatory minimum sentence under specific conditions. The legislation was introduced on March 20 by Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, and Senator Rand Paul (R-KY), and referred to the Senate Judiciary Committee for consideration.

Stewart also announced the release of a new FAMM report entitled, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money.” The report details how eight states have embraced sentencing safety valves as a way of reducing prison populations and saving money, while at the same time protecting public safety….

The report concludes by recommending a safety valve that is similar to the Justice Safety Valve Act sponsored by Senators Paul and Leahy. FAMM plans to distribute the report to state legislators across the country who sit on crime-focused legislative committees.”

For a comprehensive overview of the Justice Safety Valve, including the bill text, a summary of its benefits, profiles of individuals who would have been eligible for relief, and likely questions and answers, click here

To download FAMM’s report, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money”, click here.

Will Paul Ryan read this article?

<nyt_headline version=”1.0″ type=” “>Blessings of Low Taxes Remain Unproved

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By 

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The proposition that low tax rates produce higher economic growth has been a central plank of the Republican platform since I was a teenager.

In 1980, “The Blues Brothers” were making the jump from “Saturday Night Live” to cult status on the silver screen when Representative Jack F. Kemp of New York, an economic adviser to President-elect Ronald Reagan, warned that taxes were “strangling the ability of the private sector and the American people to grow and expand and invest and save.” He laid out a plan to cut taxes, pare loopholes in the tax code and curb federal spending.

In 1996 Steve Forbes, the magazine publisher, donned the low-tax mantle just in time for Yahoo’s I.P.O. and La Macarena. Running for the Republican nomination on the promise of a “pro-growth, pro-family tax cut,” he cornered the eventual nominee, Robert Dole, into promising cuts of his own.

Since then, we have had a dot-com bubble and a housing bust. The new standard-bearer for lower tax rates, Representative Paul Ryan of Wisconsin, is for the first time younger than I am.

But while the message has not changed, the track record of the last three decades does not bear out the core proposition of Republican economic doctrine.

The argument has proved extraordinarily successful. Under Republican presidents, the top income tax rate fell as low as 28 percent, less than half the 70 percent level it was in 1980.

The top corporate income tax rate was 46 percent when President Reagan took office. Today it is 35 percent. Taxes on investment income, which primarily flows to the wealthy, are even lower. In laying out his plan for a balanced budget by 2023, Mr. Ryan has trotted out the same three elements of Mr. Kemp’s formula: drastic curbs on spending, paring loopholes in unspecified ways and cutting tax rates even further, well below the roughly 40 percent top rate on income that was reintroduced by President Obama’s recent tax increase.

“The goal of tax reform should be to curb or eliminate loopholes and use those savings to lower tax rates across the board — not to fund more wasteful government spending,” Mr. Ryan’s budget plan states. Echoing Mr. Forbes, he called the new Republican proposal “a pro-growth tax system that benefits families and businesses.”

Problem is, there is little evidence that tax cutting has worked as advertised.

Thomas L. Hungerford, an economist with the Congressional Research Service, got into trouble with Republicans last year when he published a study suggesting that the sharp drop in top tax rates since 1945 did little to lift economic growth but probably did contribute to soaring income inequality.

And there’s no clear evidence that lower tax burdens have helped the United States grow faster than other advanced industrial nations with higher tax rates and much heavier tax burdens. Economic growth per person in the United States was a little faster than in France or Australia over the last 40 years. But it was a little slower than in Austria, Germany and the Netherlands, according to data from the Organization for Economic Cooperation and Development, a research organization for the world’s richest countries.

While high taxes do have an effect on variables that affect growth, many other factors are much more significant and overshadow whatever taxes do.

In high-tax European countries as varied as Germany, France, Britain and Denmark, productivity — or output per worker, the most important measure of a nation’s ability to generate wealth — grew faster than in the United States over the last 40 years. If income per person didn’t grow much faster it’s because people in those countries chose to devote much of their extra productivity to more leisure.

The average American worker spends 1,700 hours a year on the job, 100 fewer than in 1970. The average French worker, by contrast, works about 1,500 hours, 500 fewer than 40 years ago. Meanwhile, until the financial crisis struck, labor participation grew faster in the United States than in other rich countries, including Germany, Sweden and France.

Taxes probably played a role in this, most economists agree. Indeed, higher tax rates can reduce economic output because they change the decisions of workers, employers and investors. Income taxes reduce the rewards of work, potentially blunting the incentive to take a job. They can discourage paying for a costly higher education by reducing lucrative professions’ take home pay.

Higher corporate taxes at home can encourage American businesses to invest money abroad rather than in the United States. Differential tax rates pull investments into low tax sectors of the economy at the expense of others that might be more productive. Broadening the tax base by eliminating preferences and exemptions — an objective that Democrats and Republicans say they share — would reduce some of these distortions.

The crucial question, however, is how big an effect taxes have, compared with the other forces affecting the economy. Edward C. Prescott, an economist at the Federal Reserve Bank of Minneapolis, has argued that higher income taxes account entirely for the difference in working hours between the United States and Europe.

A Harvard economist, Martin Feldstein, President Reagan’s chief economic adviser in the early 1980s, agrees. “Lower marginal tax rates lead to more labor input in the economy,” he pointed out. “More people working more hours, more effort, more productive occupations, etc.”

But there are many other factors at play, including strict labor market regulations in Europe and generous pension systems that encourage earlier retirement.

What’s more, it’s only natural that many people, given the opportunity, would take longer vacations as they became richer. As Olivier Blanchard, chief economist at the International Monetary Fund, told me: “There is plenty of evidence that Europeans like leisure, and leisure has become much more attractive.”

Even Glenn Hubbard of Columbia, who as President George W. Bush’s chief economic adviser helped shape the tax cuts that were partially reversed for the rich in January, noted: “It’s always hard to know what to make of correlations between tax shares in G.D.P. (or tax rates) and growth, as so many factors influence both.”

Recent history may even suggest the economy thrives when taxes are higher. Despite President Bush’s tax cuts, the economy during his administration grew only about 17 percent, half as much as during that of his predecessor, Bill Clinton, who had raised them.

In 1996, the economists Jonathan Skinner of Dartmouth College and Eric M. Engen of the Federal Reserve Board tested Mr. Kemp’s and Mr. Forbes’s claims about the impact of taxes on growth. They concluded that a tax cut that reduced top rates by 5 percent and revenues by 2.5 percent of gross domestic product would add roughly 0.2 to 0.3 percent to annual economic growth.

They could not tell whether this effect would persist forever or peter out after 10 to 15 years. In any event, Mr. Skinner told me, the effect would be tiny relative to other factors, like education, regulatory policies and the quality of infrastructure.

This raises an additional point. Government spending — on things like education, infrastructure and basic research — can contribute to growth, too. “Higher taxes that finance good projects help growth,” said Peter Diamond, a Nobel laureate at the Massachusetts Institute of Technology. The nation’s dilapidated infrastructure and its slippage down the international education rankings are testament to the costs of underfinancing these public goods.

As in the early 1980s, the economy today remains well below its capacity. And Republicans are again calling for lower tax rates as a tonic for faster growth. But if lower taxes do not deliver higher growth, why should the nation pursue them?

“It’s hard to say for sure what our economic trajectory would have looked like with higher taxes,” said Alan Auerbach, an expert on the economics of taxation at the University of California, Berkeley. “Some of the disappointment that our low taxes haven’t had a more obvious impact comes from overblown claims of tax cut supporters.”

They don’t get it……

“The Conservative Case Against More Prisons”

Mar-apr-cover-archiveThe title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:

Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.

Prisons, of course, are necessary.  In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.”  As long as there are people, there will be conflict and crime, and there will be prisons.  Prisons, however, are not a source of pride.  An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.

There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution.  The alternatives are also less costly.  Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending.  None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.

This argument is increasingly made by prominent conservatives.  Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles.  They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani.  Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective.  Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind.  Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.

Some light on the horizon….A Court finally addresses the problems with eyewitness identification,,,,

Innocence Blog

Oregon Supreme Court Establishes New Procedures to Determine the Admissibility of Eyewitness Identification Evidence

Posted: November 29, 2012 5:45 pm

In State of Oregon v. Samuel Adam Lawson, the Oregon Supreme Court established new procedures to determine the admissibility of eyewitness identification evidence today. The case revised previous reliability tests and will now require that courts review eyewitness testimony in a manner consistent with the vast research in the area of eyewitness identification andmemory. The court’s ruling reflected many of the legal arguments set forth by the Innocence Network in its friend-of-the-court brief.
 
Lawson, who will now receive a new trial, was convicted of murder based largely on an eyewitness’ account from the victim’s wife two years after the incident. The identification was aided by the lead investigator in the case who showed her a picture of Lawson and then escorted her to a pre-trial hearing so she could get a second look.
 
The Oregon Court of Appeals found Hilde’s identification to be valid based on a 33-year-old case, State v. Classen. However, the Supreme Court unanimously disagreed in an 80-page opinion by Justice Paul J. De Muniz citing serious concerns regarding the reliability of the identification. TheOregonian reports:

“In light of current scientific knowledge regarding the effects of suggestion and confirming feedback,” De Muniz concludes that questions about the reliability of the ID evidence admitted at trial are impossible to ignore and remands the case to trial court for a new trial.

 


Among Classen’s many problems, De Muniz notes, is that the law’s “burden-of-proof structure improperly requires defendants who have filed pretrial motions to exclude eyewitness identification evidence to first establish than an identification procedure was suggestive, even though the state — as the administrator of that procedure — controls the bulk of the evidence in that regard.”

The ruling comes soon after a similar landmark decision from New Jersey’s Supreme Court required major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The Oregon decision goes further than the New Jersey court in protecting againstwrongful convictions based on misidentification in several important respects.  The new Oregon test shifts the burden to the state to establish that the evidence is admissible. If the state satisfies its initial burden, the court charges that judges may still need to impose remedies, including suppressing the evidence in some circumstances, to prevent injustice if the defendant establishes that he or she would be unfairly prejudiced by the evidence.   
 
Read the full article.
 
Read the full opinion