To follow is an excerpt from the CQ Researcher issue "Cameras in the Courtroom" by Kenneth Jost on January 14, 2011
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Retired justice Sandra Day O'Connor, the first woman to serve on the Supreme Court, was back in the courtroom last fall and liked what she saw. “It was absolutely incredible,” O'Connor recalled during a Dec. 13 program at the John F. Kennedy Library in Boston. Three women on the bench: one on the far right, one toward the middle, one on the far left. “I just think that the image that Americans overall have of the court has to change a little bit when they look up there and see what I saw,” O'Connor said.
Moderator Linda Greenhouse quickly noted that the sight was not as accessible as O'Connor suggested. “Not that many people actually get the chance to see” the Supreme Court in action, said Greenhouse, The New York Times' former correspondent at the court and now journalist in residence at Yale Law School in New Haven, Conn. [Footnote 11]
In fact, except for the working press, members of the Supreme Court bar and invited guests, all visitors to the Supreme Court face a time-consuming process in trying to see the justices in action. Would-be spectators typically line up hours in advance to claim one of the 250 seats available for the general public. At least 50 spectators are allowed to stay for an entire, hour-long argument, but others are ushered in for only a few minutes.
Camera-access advocates have been making their case over the past decade in large part by emphasizing the public's limited access to the courtroom. “There is no reason why in the 21st century the American people should not be able to watch their democracy in action, and the Supreme Court should not be an exception,” says Nan Aron, president of the liberal Alliance for Justice. The alliance was part of a 46-group coalition led by the American Civil Liberties Union (ACLU) that urged the lame-duck Congress last year to pass legislation either requiring or calling on the Supreme Court to permit live TV coverage.
The pressure from Congress and outside groups has helped prompt the court to make audio recordings of arguments available sooner and more widely than in the past. But the justices have not allowed camera coverage of proceedings, whether live or delayed.
The three justices vocally opposed to cameras — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — warn that TV coverage could hurt collegiality on the court and endanger the justices' personal security. Scalia has also complained that TV coverage would reduce the Supreme Court to “entertainment.”
Critics and skeptics of TV coverage of the court echo those concerns. “I do not see a good case for cameras in the courtroom and think it will inflict some real costs,” says Edward Whelan, president of the Ethics and Public Policy Center, a conservative think tank in Washington, and a former Scalia law clerk. Jonathan Adler, a conservative law professor at Case Western Reserve University in Cleveland, agrees, though with some ambivalence. “I understand what they're afraid of,” says Adler. “Their fears may be completely overstated, but I understand them.”
The media organizations and other advocacy groups in favor of camera access discount the fears that cameras would affect either the justices or the lawyers. In particular, they say fears of grandstanding by lawyers will not materialize. “Oral advocates are going to get up there and do their best, and so are the justices,” says RTDNA counsel Kirby.
C-SPAN counsel Collins says the cable network's experience with coverage of other appellate courts shows that lawyers do not play to the cameras, as opponents fear. “They don't, and it's very simple why they don't,” says Collins. “The only person who's going to determine the rights of their client are the judges. So they play to the judges. They do it respectfully and within the rule of law.”
Whelan disagrees. “No one behaves exactly the same way when a camera is on him,” he says. “It adds an additional element. It is not at all clear that it's a desirable element.”
C-SPAN, supported by other media organizations, stepped up its requests for TV access to the court in advance of the two cases that resolved the Bush v. Gore presidential election contest in 2000. By letter, the late Chief Justice William H. Rehnquist responded that “a majority” of the justices remained opposed to TV cameras. But the court did take the then-unprecedented step of releasing audio tapes of arguments in the two cases immediately after the conclusion of each session.
The court followed that procedure in a dozen or so cases over the next decade. The new practice, adopted at the start of the current term in October, makes the recordings of all arguments available, but only at the end of the week. “They wanted to get out of the business of making a case-by-case decision,” Collins says.
Prospects for congressional legislation may be dim after the defeat of Pennsylvania Sen. Arlen Specter, the Republican-turned-Democrat who sponsored legislation calling for camera coverage and closely questioned Supreme Court nominees on the issue during confirmation hearings. In any event, it is unclear whether Congress has the power to require the court to let cameras in.
Collins says the court itself will have to change before cameras are allowed. “I think the court will be televised eventually, but it will be a result of generational change,” he says. “There have to be enough justices who've had broad experience with video in their lives to be comfortable with it for them to open up.”
The Issues:
* Has television coverage of state courts been a success?
* Should federal courts permit television coverage of trials, including criminal cases?
* Should the Supreme Court permit live audio and video coverage?
For more information on the CQ Researcher report on "Cameras in the Courtroom" [subscription required] or purchase the PDF.
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Footnotes
[11] An excerpt from the Dec. 13, 2010, program, “A Conversation With Justices Sandra Day O'Connor and David Souter,” was posted on You Tube: www.youtube.com/watch?v=e4D9RTCOD9E.
Should the Supreme Court permit live audio and video coverage?
Examining Forensics
Are new research and oversight needed?
By Kenneth Jost, July 17, 2009
Crime-scene investigations play an important role in gathering evidence for criminal trials — from fingerprints and blood samples to DNA and digital data. 
But expert witnesses known collectively as forensic scientists or criminalists must analyze the evidence to help the judge and jury determine a defendant's guilt or innocence. A congressionally mandated study, however, says major changes are needed to strengthen forensic science. The reliability of some identification techniques used in court is unproven, the report says, and even established techniques such as fingerprint analysis are less certain than commonly believed. In addition, crime laboratories are underregulated, underfunded and understaffed — and may have a conflict of interest because they are tied to law enforcement agencies. Criminal-defense lawyers are applauding the report, as are some forensics experts. But resistance from law enforcement agencies and crime labs themselves may slow or block reforms.
The Issues
* Does misuse of forensic evidence contribute to wrongful convictions?
* Should judges adopt stricter standards on the use of forensic science?
* Should crime laboratories be independent of law enforcement agencies?
To read an excerpt of the report click here.
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Overview of the report on Examining Forensics, July 17, 2009
By Kenneth Jost
George Rodriguez spent 17 years in a Texas prison for a rape he did not commit. Scientific evidence helped put him behind bars. Scientific evidence got him out.
Now, Houston is being ordered to pay Rodriguez $5 million for a wrongful conviction that a federal court jury blamed on “deliberate indifference” to systemic problems at the city's crime laboratory. It was erroneous testimony from the director of the crime lab's biology unit, James Bolding, that helped convict Rodriguez in 1987 of the kidnap-rape of a teenage girl. And it was DNA testing years later that helped prove Rodriguez was innocent and another suspect — wrongly cleared by Bolding's evidence — possibly the perpetrator. [1]
The June 25 verdict and seven-figure damage award in Rodriguez's civil trial came after years of controversy over mismanagement and alleged misconduct at the Houston crime laboratory. “They had a policy of inadequate supervision and training,” says Mark Wawro, one of Rodriguez's attorneys in the eight-day civil trial. “It was an absolute mess.”
The trial also played out against the backdrop of a larger national debate not only about crime labs but also about the role that scientific evidence plays in criminal trials. Crime labs around the country, understaffed and overworked, are facing criticism for being too closely tied to law enforcement. At the same time, many of their techniques — including seemingly well-established methods such as fingerprinting and ballistics analysis — are being critically examined as inadequately grounded in true science and routinely presented to juries and courts as more precise and more reliable than they actually are.
In a 255-page report released in February, the National Academy of Sciences' National Research Council (NRC) called for major changes in the way that forensic science is practiced, studied and governed in the United States. The report calls for:
*Mandatory accreditation of forensic science laboratories;*Removal of public forensic laboratories from administrative control of police or prosecutors' offices;
*Individual certification of forensic science professionals;
*New standards and quality control procedures; and
*Creation of an independent National Institute of Forensic Science to help fund research and oversee the profession. [2]
Forensic science — derived from the Latin word for “forum” to refer to the use of scientific evidence in court — is receiving increased attention in the United States these days thanks to the highly rated “CSI” family of television shows focusing on crime-scene investigations in Las Vegas, Miami and New York City. The mastery of forensic techniques used by TV crime lab examiners to unravel the most puzzling of crimes has led prosecutors and defense lawyers alike to talk of the “CSI effect” in criminal trials. The supposed effect is said either to help prosecutors if they present convincing forensic evidence as part of their case or to help the defense if the prosecution's case is short of the kind of compelling evidence found on the fictitious TV shows.
The NRC's report notes that advances in forensic science — especially DNA technology — have helped law enforcement identify and convict many criminal offenders. But it also says that in some cases “faulty forensic analyses may have contributed to wrongful convictions of innocent people.”[3]
Rodriguez is one of four men released from prison in recent years because of belatedly found errors in trial testimony by Bolding or other Houston crime lab examiners. In 1987, Rodriguez was one of two suspects Houston police were investigating for the abduction and rape of a teenage girl after one of the assailants confessed but refused to identify his accomplice.
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Police charged Rodriguez after Bolding said an analysis of pubic hair found on the victim excluded the other suspect, Isidro Yanez, but not Rodriguez. Bolding later testified to the same effect in Rodriguez's trial.
That testimony, Bolding conceded during Rodriguez's civil trial for damages, was wrong, but he claimed he thought it was right at the time. Rodriguez's lawyers argued that it was more than wrong. They contended there was no scientific basis for excluding the other suspect — blood-typing analysis is not that precise — and that Bolding had to have known that at the time.
Fifteen years later, the Innocence Project took up Rodriguez's case. The New York City-based legal center has led the efforts to apply DNA testing to exonerate death-row inmates and other prisoners wrongfully convicted in the years before the more sophisticated identification technique became widely available. Tests showed the DNA evidence in the case did not come from Rodriguez but could have come from Yanez. Based on that evidence, Rodriguez was freed from prison in 2004 and his conviction set aside by the Texas Court of Criminal Appeals the next year. [4]
Representing Rodriguez in the civil trial, Wawro and Innocence Project co-founder Barry Scheck argued the city was blind to the risk of constitutional violations from shoddy work by the crime lab. Lawyers for the city blamed the wrongful conviction on Bolding, who resigned his post in 2003, as well as on bad lawyering by both the prosecutor and Rodriguez's attorney in his criminal trial.
After initially reporting a deadlock, the eight-person jury agreed that the city had been “deliberately indifferent” to the risk of constitutional violations from problems at the crime lab. The $5 million award to Rodriguez, 48, who is now working in construction in Houston, represented compensation for lost earnings and pain and suffering. The city's lawyers say they will review the trial transcript before deciding whether to appeal.
William C. Thompson, a professor of law and criminology at the University of California-Irvine who investigated problems at the Houston crime lab for the local television station KHOU, calls the verdict “a costly but important lesson” for the city and for other crime labs. “Verdicts of this type show government officials that failure to maintain oversight and quality control can be expensive,” he says.
Like Thompson, many other legal experts on forensic science are praising the National Research Council's (NRC) report for focusing attention on problems in the field that many practitioners have either minimized or denied. “There's quite a lot of problematic forensic science,” says Jennifer Mnookin, a professor at the University of California-Los Angeles (UCLA) Law School and coauthor of a recently published legal treatise on expert evidence. “We need a significantly more substantial research basis for all this science.” [5]
The president of the American Academy of Forensic Science agrees. “A number of very important forensic theories and methods that have been sending people to prison have never been scientifically validated,” says Thomas Bohan, a forensic science consultant in Peaks Island, Maine. But Bohan is also quick to note that forensic science practitioners were among those who called on Congress in 2005 to ask for the National Research Council study.
Bohan agrees with many of the recommendations in the report, including the removal of forensic science laboratories from control by law enforcement or prosecutorial agencies. The controversy in Houston has led to proposals, unacted on so far, to create an independent, regional crime laboratory. “It would be a good thing to get them out of police departments,” Bohan says, “but I don't think it's going to happen.”
Criminal defense lawyers are also praising the NRC report. “It's a great report,” says Betty Layne DesPortes, a lawyer in Richmond, Va., and vice chair of the National Association of Criminal Defense Lawyers' forensic evidence committee. “It's a strong call for reforms.”
Crime lab directors and prosecutors, however, temper any praise for the report with sharp criticism of many of its recommendations. “Overall, the community really embraces the report,” says Dean Gialamas, director of forensic science services for the Orange County (Calif.) Sheriff-Coroner's Office and president of the American Society of Crime Laboratory Directors. But he disagrees with the report's call for more scientific validation of forensic techniques now used in courtrooms. “The community feels that there's enough science in what we do,” he says.
“There are many, many good and positive things that can come from the report,” says Scott Burns, executive director of the National District Attorneys Association. But Burns says some of the proposals would be “crippling to the criminal justice system.” And he strongly defends the integrity of crime labs. “I very much disagree with the conclusion that they are not independent, not efficient, not professional or well-regulated,” Burns says. “I would say they are all of these things.”
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The two opposing criminal-law groups differ on the role forensic science has played in the wrongful convictions that have been uncovered in the past — more than 200 of them as a result of DNA testing. They also differ on the need for judges to be more assertive in policing the use of forensic evidence in criminal trials. The report faults judges for allowing the use of forensic evidence without “fully understanding” the limitations of some forensic science disciplines. But it also concludes, “Judicial review, by itself, cannot cure the infirmities of the forensic science community.”
The Issues
*Should judges adopt stricter standards on the use of forensic science?
*Should crime laboratories be independent of law enforcement agencies?
Footnotes
[1]For coverage, see Roma Khanna, “Jurors: 17 years worth millions,” The Houston Chronicle, June 26, 2009, p. A1. Some background drawn from daily trial coverage by Khanna or Mary Flood. For background on the Houston crime lab, see Jim McKay, “Houston PD Crime Lab Upgrades After Critical Investigation,” Texas Technology, April 28, 2008, http//www.govtech.com/
[2] “Strengthening Forensic Science in the United States: A Path Forward,” National Research Council, National Academies Press, February 2009, http://www8.nationalacademies.org/
[3] Ibid., p. S-3. For background, see these CQ Researcher reports: Steve Weinberg, “Wrongful Convictions,” April 17, 2009, pp. 345–372 and Kenneth Jost, “DNA Databases,” May 28, 1999", pp. 449–472.
[4]The Innocence Project's account is at http://www.innocenceproject.org/Content/246.php.
[5]David H. Kaye, David E. Bernstein and Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence (2004).
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Reproductive Ethics
Should fertility medicine be regulated more tightly?
By Marcia Clemmitt, May 15, 2009
Nadya Suleman, an unemployed, 33-year-old, single mother from Southern California, felt her six children weren't enough. Last January, after a fertility doctor implanted six embryos she had frozen earlier, Suleman gave birth to octuplets — and was quickly dubbed “Octomom.” Many fertility experts were shocked that a doctor would depart so far from medical guidelines — which recommend implantation of only one, or at most two, embryos for a woman of Suleman's relatively young age. Although multiple births often do result from in vitro fertilization (IVF) and other assisted-reproduction technologies, the number of multiples has dropped over the past few years, they point out. Other analysts note, however, that government statistics show a large percentage of clinics frequently ignore the guidelines on embryo implantation. In response, lawmakers in several states have introduced proposals to increase regulation of fertility clinics.The Issues:
- Should fertility medicine be regulated more vigorously?
- Should parents be allowed to choose their babies' characteristics, such as gender?
- Should doctors be able to refuse assisted reproductive technologies (ART) services to gay, older or single people?
To read the Overview of the report click here.
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Judicial Elections
Are races for judgeships bad for justice?
By Kenneth Jost, April 24, 2009
The United States is the only country in the world that requires most judges to face popular elections to gain or hold office. Today, as in the past, most judicial elections attract little attention. Over the past three decades, however, political parties and interest groups have spent millions of dollars on targeted races for state supreme courts in order to change the tribunals' political or ideological composition. 
Business groups succeeded in recent elections in West Virginia and Wisconsin in backing candidates who defeated incumbent justices and tilted the courts toward business interests. Defenders of judicial elections say they help make sure courts are accountable and responsive to the public. Critics say the special-interest funding and misleading campaign tactics of many judicial campaigns threaten the integrity of the justice system. Proposals for change, however, are making little headway. Meanwhile, the U.S. Supreme Court is considering whether to require judges to bow out of cases involving major campaign supporters.
The issues:
- Should states take new steps to control campaign contributions or spending in judicial elections?
- Should states adopt stricter rules for judges to recuse themselves?
- Should states with judicial elections modify their rules for selecting judges?
Judicial Elections: Overview from the April 24, 2009 CQ Researcher Report
By Kenneth Jost Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court is well known not only at home but also across the country as an advocate for judicial independence. But when Abrahamson learned she would face an opponent for reelection to a fourth 10-year term, she pulled out all the political stops. The 75-year-old Abrahamson hired a veteran political operative to head her campaign, collected endorsements from across the political spectrum and raised more than $1.3 million. “She came into the race prepared,” says Charles Franklin, a political science professor at the University of Wisconsin in Madison. Abrahamson had reason to take seriously the challenge by Randy Koschnick, an outspokenly conservative circuit court judge in Milwaukee. Just a year earlier, a conservative challenger had knocked off one of Abrahamson’s fellow liberals on the bench with a hard-hitting, multimillion-dollar campaign financed in part by the state’s business lobby. Michael J. Gableman’s election as justice in April 2008 gave conservatives a 4-3 majority on the Wisconsin court. One year later, however, Abrahamson’s political efforts paid off on April 7 with a 59 percent to 41 percent victory over Koschnick. “I ran a good race and kept it clean,” Abrahamson told Milwaukee’s Journal Sentinel afterward. But she added that her financial advantage over Koschnick – who spent only $180,000 – was critical. “That makes a big difference in how you can get your message out.” For most of the world, Abrahamson’s victory would not be as remarkable as the fact of the election itself. Except for Japan and Switzerland, the United States is the only country that requires judges to face popular election to gain or hold office. Even though federal judges serve life terms after nomination by the president and confirmation by the Senate, 39 out of 50 states use some form of election for judgeships either at the trial or appellate level or both. The elections vary from traditional partisan contests to nonpartisan races to so-called retention elections in which incumbent judges run without an opponent and remain in office unless a majority votes to remove them. Today as in the past, most judicial elections attract little attention. Most vacancies are initially filled by gubernatorial appointment, and virtually all incumbents remain in office whether they face “contestable” or retention elections. Over the past 30 years, however, judicial elections in a handful of states have become high-cost, bare-knuckle political battles. In particular, the U.S. Chamber of Commerce’s decision in 2000 to dive into state judicial politics in a big way has led to multimillion-dollar campaigns like Wisconsin’s 2008 contest that have succeeded – as in Wisconsin – in tilting some state supreme courts toward business interests on civil litigation and some other issues. The Chamber – which now generally avoids direct comment on judicial election issues – said at the time it wanted to counteract political influence in the judicial selection process by trial lawyers’ groups. Business groups like the Chamber, the National Association of Manufacturers and the American Tort Reform Association blame the plaintiffs’ bar for a history of favorable rulings on personal injury suits only recently being cut back in some states. The increasing cost and the deteriorating tone of judicial election campaigns worry many bar associations, traditional court reform organizations and liberal advocacy groups. “Over the last 20 years, and especially in the past seven years, we’re seeing a race to the bottom with respect to financing and campaigning in judicial elections,” says Seth Andersen, executive director of the American Judicature Society, a 95-year-old court reform organization that created the retention-election systems now used in 19 states. “Judicial elections are now posing the single, greatest threat to fair and impartial courts,” says Tommy Wells, a Birmingham, Ala., lawyer and president of the American Bar Association. The ABA along with state and local bar associations has been the major interest group supporting retention-election plans. Wells and others fear that campaign contributions from businesses and from lawyers with cases before courts are undermining public confidence in judges’ impartiality. “There’s a real fear that money alone can be tipping scales of justice,” says Bert Brandenburg, executive director of Justice at Stake, a Washington-based coalition of liberal-leaning legal advocacy groups. Judicial elections are strongly defended, however, by an assortment of Republican officials and leaders, business lobbies and conservative advocacy groups and experts. They emphasize that judges, especially state supreme court justices, have the power to make law in their respective jurisdictions – in some cases with no effective review by the federal judiciary. “Judges are making law, and it’s only appropriate for the people to choose judges,” says James Bopp, a lawyer in Terre Haute, Ind., who has represented Republican and anti-abortion groups among others in campaign-speech cases at the U.S. Supreme Court and in lower federal courts. “The whole idea of popular sovereignty supports judicial elections.” Bopp and others profess little concern about the impact of increased campaign costs and spending by businesses and other interest groups. “If you are going to elect your judges, then you pretty much have to allow much of the same trappings that you do for any other election,” says Sean Parnell, president of the Center for Competitive Politics, a Washington-based organization critical of campaign finance regulations. Michael DeBow, a law professor at Samford University’s Cumberland School of Law in Birmingham, Ala., and a member of the conservative-libertarian Federalist Society, says the public supports judicial elections despite concerns about the impact of contributions on judges’ decisions. “They don’t want to let go of judicial elections,” DeBow says. The debate over the impact of campaign contributions and spending is now pending at the U.S. Supreme Court. The justices are being asked to decide whether constitutional due process may require judges to step out of a case – in legal parlance, to recuse themselves – because of campaign contributions or spending by a party, lawyer or other individual with a stake in the outcome. The issue reached the justices in a case brought by the president of a now defunct coal company in West Virginia who says state supreme court justice Brent Benjamin should have recused himself from ruling on the $50 million award the company won against a rival coal business. Benjamin refused to recuse himself even though the president of the rival company had spent more than $3 million to help Benjamin during his successful campaign for the supreme court seat in 2004. Benjamin eventually cast a critical vote in the 3-2 decision in March 2008 overturning the award. Stricter standards on recusal are among the reforms the ABA, Justice at Stake and other public-interest groups are urging to try to counteract what they see as the negative effects on public confidence in the judiciary due to judicial elections. They also express interest in public financing of judicial campaigns – a system now on the books in two states, North Carolina and New Mexico. From the opposite perspective, judicial election supporters say stricter recusal standards may undermine elections by deterring campaign contributions or spending. They similarly argue that public campaign financing – accompanied by overall limits on candidates’ spending – will reduce the amount of information for voters in judicial contests. The arguments over judicial elections are drawing only limited attention from state legislators, who would have to be involved in making any changes in selection or election methods or campaign finance regulations. The general public also is largely unengaged on the issue. Indeed, despite public support for judicial elections in general, voter turnout is traditionally low in judgeship races. Wisconsin’s relatively high-profile supreme court race in April 2008 drew 830,000 voters – fewer than one-third of the nearly 3 million state voters in the presidential election in November. 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In the News: Senate Votes to Postpone Digital TV Switch
After Obama administration aides raised concerns over the nation’s readiness to switch from analog-to-digital televisions, the Senate voted Monday to postpone the deadline for the changeover to June 12. The House, however, voted against the measure, putting the current Feb. 17 switch date in limbo. House Republicans have argued that postponing the date would confuse consumers and cost millions for broadcasters who have already planned for the transition. The Nielsen Co. estimates that more than 6.5 million U.S. households that rely on over-the-air broadcast signals are not prepared for the transition.
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In the News: Connecticut to Permit Same-Sex Marriage
Connecticut began issuing marriage licenses to gay couples after the state Supreme Court ruled on Oct. 10 that excluding same-sex couples from marriage was unconstitutional. The court said gay marriages could officially be performed starting Nov. 12. Connecticut voters recently decided against holding a convention to amend the state’s constitution, which could have offered supporters of traditional marriage a chance to ban same-sex marriage in the state. In 2005 Connecticut legalized civil unions, which offer similar rights and benefits for gay couples. Meanwhile, California voters recently approved Proposition 8, which amended the state constitution to restrict the definition of marriage to a union between a man and a woman. The vote overturned a California Supreme Court decision allowing gay marriage.
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The New Report: Juvenile Justice
By Peter Katel, November 7, 2008
Are sentencing policies too harsh?
As many as 200,000 youths charged with crimes today are tried in adult courts, where judges tend to be tougher and punishments harsher -- including sentencing to adult prisons. But with juvenile crime now on the decline, youth advocates are seizing the moment to push for major changes in iron-fisted juvenile justice systems nationwide. Above all, they want to roll back harsh state punishments -- triggered by the crack cocaine-fueled crime wave of the late 1980s and early ‘90s -- that sent thousands of adolescents to adult courts and prisons. Many prosecutors say the get-tough approach offers society the best protection. But critics say young people often leave prison more bitter and dangerous than when they went in. Moreover, recent brain studies show weak impulse control in young people under age 18, prompting some states to reconsider their tough punishments. Prosecutors respond that even immature adolescents know right from wrong.
* Should states roll back their tough juvenile crime laws?
* Did tough laws lower crime rates?
* Does the prospect of facing the adult court system deter juveniles from crime?
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Overview of the New Report on Juvenile Justice
Washington, D.C., lawyer Matthew Caspari has developed some strong feelings about punishing teenage criminals since last August. That’s when he wrestled with a knife-wielding 17-year-old who’d been harassing one of his neighbors on Capitol Hill.
Caspari had been taking a walk with his wife and their 6-month-old daughter when he saw a neighbor in trouble. As he was calling 911, the young man threatened him, and they began to fight. When Caspari’s dropped cell phone picked up his wife’s screams, police raced to the scene and arrested the man.
But what happened afterwards was equally disturbing, Caspari told a City Council hearing in October. After a Family Court judge released the youth while he awaited sentencing, he was back on the street hanging out with a tough crowd, Caspari said. That’s why he said he opposed legislation to rescind the U.S. attorney’s sole power to try teenagers 15 and older in adult court for violent crimes.
“Family Court is no deterrent,” said Caspari. “Punishment and consequences are simply not taken seriously by the offenders. If you want to instill a sense of accountability in these teens and provide therapy and services -- there’s no reason why you can’t provide that in the adult system -- while protecting the community.”
Democratic Councilman Phil Mendelson, who is co-sponsoring the proposal to reign in the U.S. attorney, says statistical evidence shows adult-court prosecution tends to reinforce -- rather than diminish -- young offenders’ criminal tendencies.
“The inclination is, if somebody commits a crime, particularly a violent crime, then lock ‘em up,” Mendelson told the hearing. “And the research shows that is statistically counterproductive.”
Mendelson’s comment echoed the views of a growing number of juvenile justice experts and activists. With violent juvenile crime trending downward for the past 13 years, they say it’s time to replace the tough sentences that state lawmakers enacted in the 1980s and ‘90s and handle more youth cases in juvenile court. The hard-line policies reflected skyrocketing juvenile crime and the prediction -- later proved baseless -- that violent, young “superpredators” would take over the nation’s inner cities.
The get-tough measures eased the transferring of juveniles to adult courts where they faced tougher sentences. Some states allowed prosecutors to “direct file” juvenile cases in adult court; others left the decision to a judge, or made transfers automatic for certain charges.
But standards differ on when courts legally recognize that adulthood begins. In most states -- especially those striving for more rehabilitation -- 18 is the threshold age. In 10 states -- Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas and Wisconsin -- teens become adults at 17; in New York and North Carolina, it’s 16.
Experts say they haven’t determined how many convicts are serving time for crimes committed before they were 18. But the Campaign for Youth Justice, a Washington-based advocacy group, estimates that on any given day 7,500 youths under 18 are in jail or awaiting trial or transport to prison or juvenile detention.
Adult court sentences often are tougher than those in juvenile courts. Until 2005, they could include the death penalty, which the U.S. Supreme Court then banned for anyone who committed a capital crime before turning 18.
The backdrop to that decision was a decline in youth crime, and the drop continues. According to the most recent statistics, the 2007 arrest rate for youths ages 10-18 was down to fewer than 300 per 100,000 -- the same level as in 1982.
To counter assertions by prosecutors that tougher laws brought crime rates down, opponents of harsh penalties point to studies showing that juveniles tried as adults come out of prison more dangerous than when they went in, and hence more prone to become adult criminals. A nationwide Task Force on Community Preventive Services, appointed by the U.S. Centers for Disease Control and Prevention, concluded in late 2006: “Overall, available evidence indicates that use of transfer laws and strengthened transfer policies is counterproductive for the purpose of reducing juvenile violence and enhancing public safety.”
Indeed, at a recent conference on juvenile rehabilitation at the Brookings Institution, Bart Lubow, director of programs for high-risk youth at the Annie E. Casey Foundation, said the punitive laws of the 1980s and ‘90s had “resulted in the criminalization of delinquency.” The Baltimore-based nonprofit is advising 100 cities and counties on how to reorganize their juvenile systems so that they rely less on incarceration.
Many prosecutors say they also want to channel more juveniles into detention alternatives -- but not all of them.
In Oregon, says Clatsop County District Attorney Joshua Marquis, “We went from an extreme -- ‘everyone needs a hug and cup of Ovaltine’ -- to a more nuanced system. Delinquents who need a minimum of incarceration and a maximum amount of structure get treated one way. And then there are the young criminals who for all intents and purposes are young adults -- they don’t act like children, don’t respond like children and you can’t treat them like children.”
Oregon voters approved the present system in 1994, when the tough-on-crime approach was sweeping the nation. Measure 11 stiffened sentences for certain violent offenses and applied them to defendants as young as 15.
By 2003, 31 states had passed laws requiring juveniles charged with certain crimes to be tried as adults. Also during the ‘90s, 13 states lowered the top age for juvenile court jurisdiction to 15 or 16. As a result, the number of inmates serving life without parole for crimes committed when they were under 18 began climbing; today 2,484 youthful offenders are serving such sentences.
But rollback advocates have scored a few successes. Connecticut last year raised its age threshold for adult court from 16 to 18. In 2006, Colorado abolished juvenile life without parole. In addition, several states have restricted adult-court transfers, and advocates are readying legislation for introduction in other states next year.
Hard-liners can claim some victories as well. This year, a California proposal to abolish life without parole for juveniles failed to get the required two-thirds majority needed for passage. And in Colorado, Democratic Gov. Bill Ritter Jr., a former district attorney, vetoed a bill that would have stripped prosecutors of their sole authority to charge juveniles in adult court.
“They wanted to take away our discretion -- there’s still a movement in our state to do that,” says Denver District Attorney Mitch Morrissey. “They wanted to have more hearings and more experts and cost a lot more money.”
Morrissey and other supporters of tough laws argue that prosecutors use them sparingly. In the suburbs of Minneapolis-St. Paul, Dakota County Prosecutor James C. Backstrom tells of resisting heavy pressure in 2006 to press for life without parole for two 17-year-olds who gunned down one of the boys’ parents in cold blood. Instead, the prosecutor accepted pleas to a charge that didn’t carry the no-parole proviso, giving them a chance to apply for release after 30 years.
“They knew right from wrong; there was no question they should be convicted of first-degree murder,” Backstrom says, “but they had no criminal history whatsoever. I just did not feel that locking them up for the rest of their natural lives was the right thing to do. They’ll have a chance to salvage some part of their lives. There were some strong disagreements, even from the victims’ family.”
Prosecutors everywhere can recall horrendous cases that warranted tough sentences. But rollback advocates argue such cases tend to obscure the fact that more than half of juvenile cases that end up in adult court don’t involve crimes against people.
“You could certainly say that when you expand the use of adult court transfer you are likely to capture more serious offenders,” says Jeffrey A. Butts, a research fellow at the University of Chicago’s Chapin Hall Center for Children. “But it’s a blunt instrument, so you pull a lot of youth into that pathway in the attempt to grab all serious offenders.”
According to the Justice Department’s Office of Juvenile Justice and Delinquency Prevention (OJJDP), about 51 percent of all 6,885 juvenile cases transferred (“waived”) to adult court in 2005 (the most recent figures available) involved “person” offenses -- that is, crimes against individuals. The rest were property crimes (27 percent), drug offenses (12 percent) and public order violations (10 percent), such as weapons, sex or liquor violations.
No national statistics exist on the total number of juveniles tried in adult court. The closest estimate, based on calculations by Butts, is 200,000 a year.
To be sure, statistics don’t capture the nitty-gritty of crime in the streets. Lawyer Caspari says the teen who pulled a knife on him wasn’t eligible for transfer to adult court because Caspari was never cut or stabbed. But he could have been.
That’s why Caspari opposes allowing judges -- instead of prosecutors -- to send cases to adult court. The relative speed of the present system, he says, tells young offenders that they’ll be held accountable quickly. “The practical reality is the defendant’s lawyer can gum up the system by requesting it go back down to juvenile court, and that’s another nine months,” he says. “Is that the message you want to send to these kids?”
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The New Report: Gun Rights Debates
By Kenneth Jost, Oct. 31, 2008
Should restrictions on firearms be relaxed?
The Supreme Court gave gun rights advocates a major victory on June 26, recognizing for the first time an individual right under the Second Amendment to own and possess firearms. The 5-4 decision struck down a handgun ban adopted by the District of Columbia in 1976. Gun rights advocates the very same day began challenging similar bans in Chicago and elsewhere. In his majority opinion, Justice Antonin Scalia said the decision did not invalidate laws establishing qualifications to buy weapons, limiting the carrying of weapons in “sensitive” places or barring possession by felons or the mentally ill. Dissenting justices argued the ruling misinterpreted the history of the Second Amendment and would lead the court into striking down many gun laws. Gun control groups hope the ruling sets the stage for more reasoned debate over gun regulations by removing the specter of confiscation of weapons. But gun owners plan to use the ruling to challenge licensing schemes and to urge state legislators to ease restrictions on carrying weapons in public.
* Should laws restricting ownership of firearms be relaxed?
* Should laws regarding concealed weapons be relaxed?
* Should criminal penalties for gun-related offenses be relaxed?
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In the News: Two Students Shot and Killed at Arkansas School
Two students were shot and killed at Central Arkansas University outside a residence hall on Oct. 26. Police charged four men with capital murder for what they say may have been a random shooting; another student was injured. The men apparently drove up to a group of students near the Arkansas Hall dormitory and fired at least eight rounds from at least one semiautomatic pistol. The university cancelled classes the next day but resumed on Oct. 28, when more than 300 students, faculty members and local residents attended a memorial for the slain students.
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, 20080215 (Feb. 15, 2008)
Overview of the New Report on the Gun Rights Debates
Joseph Tartaro, the longtime executive editor of Gun Week magazine, looked out at a meeting room filled with hundreds of gun owners and gun rights advocates and announced that, at last, good times had arrived.
Thirty years earlier, Tartaro told the Second Amendment Foundation’s annual conference in Phoenix on Sept. 28, only four states allowed the carrying of concealed weapons in public. And the District of Columbia had just enacted one of the strictest gun control laws in the country.
Today, explained Tartaro, the foundation’s president, more than 40 states have so-called “shall issue” laws that allow carrying concealed firearms in public. And three months earlier -- on June 26 -- the Supreme Court had struck down Washington’s handgun ban. The precedent-setting decision established an individual right to own and possess firearms for self-defense, at least in one’s home.
“We’ve reached the good days,” Tartaro continued. More handguns are being sold than at any other time in history. Long gun sales would be up too but for the bad economy. “People have discovered,” he said, “that guns are not as scary as they thought they were.”
“Law-abiding people should be able to defend themselves, their families and their communities,” Tartaro concluded.
Gun rights advocates indeed have much to celebrate thanks to the Supreme Court’s District of Columbia v. Heller decision, which transforms a decades-long dispute over the meaning of the Second Amendment. The awkwardly phrased 27-word provision proclaims: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Following a 1939 Supreme Court decision, federal courts had ruled all but uniformly for more than 60 years that the amendment’s opening clause limited its scope to protecting the states’ rights to organize militias. But the amendment did not establish an individual right to own or possess firearms, courts held. Under the so-called collective-right view, Congress and state and local governments remained largely free to regulate guns as they saw fit.
Gun rights advocates stepped up their efforts to challenge that doctrine in the 1960s and ‘70s. Over time, they gained support for their claim that the amendment established an individual right -- first from many politicians, then from some academics and eventually from the general public.
The Supreme Court finally took up the issue after the federal appeals court for the District of Columbia struck down the D.C. gun ban in March 2007. The high court’s 5-4 ruling gave gun rights advocates the victory they had awaited for so long.
Writing for the majority, Justice Antonin Scalia said the amendment established an individual right for “law-abiding, responsible citizens to use arms in defense of hearth and home.” D.C.’s ban on handguns -- the “quintessential self-defense weapon” -- was invalid, he said, along with the law’s provision requiring that any weapons in the home be either disassembled or trigger-locked.
Writing for the four dissenters, Justice John Paul Stevens said the ruling upset a “settled understanding” that the Second Amendment allowed virtually unlimited regulation of civilian use of firearms. He said the D.C. gun ban could be “just the first of an unknown number of dominoes to be knocked off the table.”
Leading advocates and experts disagree on the likely impact of the ruling. “Many laws [regulating guns] will be upheld -- the laws that make more sense,” says Alan Gura, the Alexandria, Va., lawyer who successfully represented D.C. private security guard Dick Heller and other plaintiffs in challenging the gun ban. “But laws that serve no legitimate governmental purpose but merely serve to harass gun owners, laws that make gun owning difficult or expensive -- those laws are going to be struck down.”
Gun control advocates are playing down the possibility that lots of gun regulations are now in constitutional jeopardy. They emphasize passages in Scalia’s opinion that limit the Second Amendment right to weapons “in common use” and that leave standing laws setting “conditions and qualifications” on the commercial sale of arms.
“We’re actually quite encouraged by comments that the majority made in the course of that decision offering some reassurance that some very broad categories of gun laws . . . are what the court called presumptively lawful,” says Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence in Washington, the non-partisan policy arm of the Brady Campaign to Prevent Gun Violence, a political action committee.
A leading gun rights lawyer for the National Rifle Association (NRA) somewhat similarly plays down the likely impact of the ruling. “It’s not as though all the gun regulations in the country are going to go by the wayside,” says Stephen Halbrook, author of a number of pro-gun rights books and articles. But Halbrook says the court’s decision represents “a “tremendous moral defeat” for gun control advocates.
Other academic experts disagree. “In practice, the legislatures are not that limited in the kind of gun controls they can pass,” says Gary Kleck, a professor at Florida State University’s College of Criminology and Criminal Justice in Tallahassee, who describes himself as a supporter of “a moderate amount” of gun control. “They can do virtually everything they could before the decision.”
But Philip Cook, a professor of economics and sociology at Duke University in Durham, N.C., and a supporter of stronger regulation, says gun control supporters are engaging in “happy talk” when they minimize the ruling’s potential effects. “The decision has been a litigation magnet,” says Cook. “At this point it remains hard to say how far the Supreme Court and the [federal] circuit courts are going to push this.”
The Second Amendment Foundation, in fact, filed the first post-Heller lawsuit on the same day of the decision, challenging a Chicago handgun ban similar to the D.C. law. The NRA followed with a package of suits challenging handgun bans in Chicago and several nearby suburbs. Separately, the foundation and other gun rights groups challenged a San Francisco provision banning handguns in public housing.
Criminal defendants in federal courts are also citing the Heller decision to try to set aside sentence enhancements under federal provisions increasing prison terms for use or possession of guns by offenders. So far, judges appear to be rejecting those arguments. But the Supreme Court is set to hear arguments on Nov. 10 testing a federal law making it a crime for someone convicted of domestic violence to own a gun.
The ruling is also renewing the debate touched off by the Virginia Tech shootings in April 2007 over college and university rules prohibiting possession of firearms on campuses. A student group advocating the right of licensed students to carry concealed weapons on campus claims to have attracted more than 30,000 members -- but is also drawing criticism from gun control groups that say increasing the number of firearms will make campuses less instead of more safe.
In Washington itself, the city council quickly responded to the Supreme Court decision by establishing a registration system for handguns while retaining other restrictions, including the requirement to store weapons disassembled or trigger-locked. The council adopted a significantly revised interim measure in September under the threat of a bipartisan measure in Congress to strip the district of all authority to regulate firearms. The new “emergency” legislation permits registration of semiautomatic pistols as well as single-shot pistols and eliminates the trigger-lock requirement. Those provisions are expected to be included in a permanent law to be adopted later.
The Heller decision came at a time of relative quiet in the gun control debates -- debates that often seem to be as much clashes of cultures and values as disagreements on law and policy. Gun control has receded as an issue over the past two years in Congress and state and local legislative bodies. Both major party presidential candidates endorsed the Supreme Court ruling to recognize individual rights under the Second Amendment: Republican John McCain strongly, Democrat Barack Obama more ambiguously.
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New Report: Gay Marriage Showdowns
By Kenneth Jost, September 26, 2008
Will voters bar marriage for same-sex couples?
The California Supreme Court gave gay rights advocates a major victory in May, ruling the state’s constitution guarantees same-sex couples the same marriage rights as opposite-sex pairs. Thousands of same-sex couples from California and around the country have already taken advantage of the decision to obtain legal recognition from California for their unions. Opponents, however, have placed on the state’s Nov. 4 ballot a constitutional amendment that would deny marriage rights to same-sex couples by defining marriage as the union of one man and one woman. Similar proposals are on the ballot in Arizona and Florida. The ballot-box showdowns come as nationwide polls indicate support for some legal protection for same-sex couples, but not necessarily marriage equality. In California, one early poll showed support for the ballot measure, but more recently it has been trailing. Opposing groups expect to spend about $20 million each before the campaign ends.
* Should same-sex couples be allowed to marry?
* Should state constitutions prohibit marriage for same-sex couples?
* Should states recognize same-sex marriages from other states?
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Overview of the New Report on Gay Marriage Showdowns
Jennifer Pizer and Doreena Wong met on their first day at New York University Law School in 1984. They graduated in 1987 and moved to California together three years later.
Jenny and Doreena were still together on May 15, 2008, when the California Supreme Court issued its stunning, 4-3 decision establishing a constitutional right to marriage for same-sex couples in the state. As one of the Lambda Legal Defense and Education Fund lawyers in the case, Pizer spoke at a press conference in San Francisco after the decision was released and then flew home to Los Angeles for a rally in the heart of gay West Hollywood.
“You’re not going to do anything funny, are you?” Doreena asked Jenny in the car as they drove to the rally. Pizer feigned ignorance even as she was thinking that the event was the perfect time to pop “the question.”
So, as she finished her remarks, Pizer looked down toward her partner’s face in the crowd and said, “Now, I’d like to ask a question I’ve waited 24 years to ask: Doreena Wong, will you marry me?”
“Yes, of course,” Wong replied. Standing at the microphone, Pizer relayed the answer to the cheering crowd: “She said yes!”
Television cameras recorded the moment, but Pizer admits months later that she has yet to see the full video clip. For even as gay rights advocates are celebrating the victory – and Jenny and Doreena are planning their Oct. 5 wedding in Marin County – opponents of gay marriage are working hard to reverse the state court’s decision.
Less than three weeks after the decision, opponents won legal approval to put a state constitutional amendment on the Nov. 4 ballot that would allow marriage in California only “between a man and a woman.” If accepted by a simple majority of the state’s voters, Proposition 8 would prohibit marriage for gay and lesbian couples in California and bar recognition of same-sex marriages from other states as well.
“Marriage has always been understood as the union of one man and one woman by California citizens and by other people in the country,” says Mathew Staver, founder and chairman of Liberty Counsel, a Christian public-interest law firm, and one of the lawyers who argued against gay marriage before the California Supreme Court. “That provides the best environment for society.”
“We absolutely agree that marriage is a special word for a special institution,” Pizer responds. “We disagree that the social institution should be available only in a discriminatory manner and that it serves any social purpose to exclude gay and lesbian couples.”
The debate over the ballot measure has not deterred but in fact has encouraged gay and lesbian couples in California to get to the altar – or to city hall. By one estimate, some 5,000 same-sex couples got married in California within the first week after the court ruling became effective on June 17. The first-week spike receded, but the weddings are continuing – spurred by the widespread assumption that marriages performed before Nov. 4 will remain valid even if Proposition 8 is approved.
Hollywood celebrities have been among those tying the knot, including TV talk show host Ellen de Generes and ex-”Star Trek” actor George Takei. De Generes wed Portia de Rossi, her girlfriend of the past four years, in an intimate, picture-book ceremony at their Beverly Hills home on Aug. 16. Takei and his longtime partner Brad Altman exchanged self-written vows in a more lavish ceremony at the Japanese American National Museum in downtown Los Angeles on Sept. 14. “May equality long live and prosper,” Takei said as he left the ceremony amid a horde of photographers and well-wishers.
Most of the newlyweds, however, are non-celebrities, many of them in long-term relationships that had already been registered under a 2003 California law as domestic partnerships with nearly complete marriage-like rights and responsibilities. “There’s almost no change” over domestic partnership status, explains David Steinberg, news desk copy chief at the San Francisco Chronicle, who married his longtime partner Gregory Foley in July. Steinberg says he and Foley, a nurse at Kaiser Permanente, decided to get married anyway “because they might take it away.”
The state high court decision made California the second state, after Massachusetts, to allow marriage for same-sex couples. The Supreme Judicial Court of Massachusetts issued a 4-3 decision in November 2003, holding that the state had “no constitutionally adequate reason” for denying same-sex couples the legal benefits of marriage. The court gave the legislature 180 days to respond but later issued an advisory opinion saying that civil union status would not be an adequate substitute for marriage. When the legislature failed to act by the deadline, the high court decision took effect, and same-sex marriages began in Massachusetts on May 17, 2004.
The California Supreme Court ruled similarly but more directly that the state’s constitution guarantees a “fundamental right to marry” to “all Californians, whether gay or heterosexual, and to same-sex couples as well as opposite-sex couples.” The majority opinion – written by the Republican-appointed chief justice, Ronald George – specifically rejected civil union or domestic partnership status.
The ruling invalidated a statutory initiative to define marriage as between one man and one woman approved by slightly over 61 percent of the state’s voters as Proposition 22 in March 2000. Gay marriage opponents had already begun circulating an initiative to write the “one-man, one-woman” definition of marriage into the state constitution. By June 2, they had submitted petitions with approximately 1.1 million signatures – sufficient for the secretary of state to certify the proposed constitutional amendment for the Nov. 4 ballot.
The state Supreme Court added to the urgency of the opposition by declining to stay its decision pending the Nov. 4 vote. Same-sex marriages began in California on June 17. The first marriage license in San Francisco went to two longtime lesbian activists, Del Martin and Phyllis Lyons, who had been together for more than 50 years. San Francisco Mayor Gavin Newsom officiated at the ceremony. Martin died 10 weeks later – at age 87.
Besides Massachusetts and California, eight other states and the District of Columbia permit some legal recognition for same-sex couples, including four that permit civil unions with virtually the same rights and responsibilities as marriage. On the opposite side, 26 states have constitutional amendments that prohibit marriage for same-sex couples, and another 17 have similar statutory bans. In addition, the federal Defense of Marriage Act – known as DOMA – prohibits federal recognition for same-sex marriages. The 1996 law also provides that states need not recognize same-sex marriages from other states.
Massachusetts recorded approximately 11,000 same-sex marriages in the three years after the state high court ruling, according to demographer Gary Gates, a senior research fellow at the Williams Institute, UCLA School of Law. He says an exact count is not possible in California because marriage licenses are no longer recording the parties’ sex, but a projection based on the increased number of marriages in the months after the state high court ruling indicates more than 5,000 same-sex couples married in the first week after the decision.
All told, Gates and his colleagues at the institute – which studies sexual-orientation policy and law, primarily funded by a gay philanthropist – estimate that 85,000 same-sex couples have taken advantage of recognition provisions in those states permitting that status. But a higher percentage of same-sex couples are opting to marry than are registering for civil union or domestic partnership.
Supporters of marriage equality say the growing number of same-sex couples in legally protected relationships is eroding opposition to gay marriage. “We’re seeing a growing public understanding that ending gay couples’ exclusion from marriage helps families and harms no one,” says Evan Wolfson, executive director of Freedom to Marry, self-described as a gay and non-gay partnership advocating marriage rights for same-sex couples.
Opponents disagree. They point to the gay marriage bans already enacted as the better gauge of public attitudes on the issue. “Supporters of same-sex marriage have a real uphill climb if they hope to undo what has been accomplished in the past 10 years by supporters of traditional marriage,” says Peter Sprigg, vice president for policy at the Family Research Council, a Christian organization based in Washington, D.C., promoting traditional marriage.
An initial poll in California indicated the ballot measure was ahead, but statewide surveys in August and September showed the proposition trailing by at least 14 percentage points. Two other states – Arizona and Florida – will be voting on similar constitutional amendments on Nov. 4. Arizona’s measure needs a majority vote; Florida requires a 60 percent vote for a state constitutional amendment.
In addition to those three ballot measures, Arkansans will be voting on a statutory initiative to prohibit unmarried couples – whether same-sex or opposite-sex – to adopt or take foster children. The initiative was proposed after a regulation barring adoption or placement with same-sex couples was overturned in court.
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