America's Most Fair-Minded Prosecutor:
Radley Balko interviews Dallas County District Attorney Craig Watkins, who is dramatically moving his office away from a traditional "convict at all costs" mentality, to a philosophy that the prosecutors' role is to pursue justice, not rack up convictions.
Balko suggests he's America's best prosecutor. I don't know about that, and the interview doesn't actual discuss his skills in prosecuting crimes. But Watkins certainly seems like a fair-minded breath of fresh air, who takes the biblical injunction "tzedek, tzedek tirdof" (justice, justice thou shalt pursue) seriously.
As you will note from the interview, the previous prosecutor was of the opinion that convictions were to be pursued even against those who were likely innocent. Surely we can agree that convicting people who are not actually guilty does not create justice and that a prosecutor who is careful not to prosecute cases where the evidence is flimsy or guilt is in doubt is doing what is right.
Unfortunately for you, this is not the view of the American Bar Association or the state of Texas (according to the article).
No, the presumption is that convicting everyone charged does not create "justice". Did you read the article?
Well, THAT's revealing.
Don't the Texas Rules of Professional Conduct, the ABA, the Texas Lawyers Creed, and nearly every state ethics court set this as the standard?
"After taking office, Watkins dismissed nine top-level prosecutors in the office. Nine others left voluntarily. "
Is a turnover of 18 top prosecutors in a large city DA office normal when the DA changes? It seems the interviewer did not ask about that.
"But if there are procedures available to increase the validity of a form of evidence, and police and prosecutors aren’t using it, then they’re deliberately increasing the chances of a wrongful conviction in order to get more convictions."
Without any detail, this seemed to me a rather disingenuous statement - for example, what if the police don't have the budget for training or equipment for these "procedures"? Are they still "deliberately" increasing the chances of a wrongful conviction? Or does he just mean simple things that should be SOP that investigators might not be doing?
Um, David, isn't that the wrong measure? It appears to assume that "successful prosecution" is the goal, and it would seem that is directly contrary to his stated intentions.
Only as long as they are criminals. There've been an awful lot of examples recently (Duke/Nifong for example) where the aim seems to have been to put someone behind bars, without a whole lot of concern about whether they actually committed a crime or not.
Prosecutor's offices do not run on outrage or ideology or some sort of fascistic sadism, they run on money--money that is appropriated by the county budgetary executive. This is but one constraint on a hypothetical "convict at all costs" mindset. Another is finite jail space. Another is the need to face the electorate every 4 years.
A "convict at all costs" (by which I assume is meant: "get the max punishment at all costs", since a conviction on a much lesser charge is almost always a given) prosecutor would be quickly out of money in any given fiscal year.
I have been a county prosecutor and I have dealt with them from the other side for many years. The vast majority are competent and mostly well-meaning people who are aware of the constraints mentioned above.
...And 18 prosecutors in an office the size of Dallas is, in and of itself, no big deal. Now if it was a staged en masse resignation of the 18 most experienced attorneys, that would be very significant. But then you need to ask whether they were a bunch of lazy deadwood or whether they had a legitimate grievance.
Those two lawyers and two investigators get a salary, and the lab that runs the DNA evidence gets a fee. Weigh that against the extrapolated cost of keeping however many people in jail for whatever their sentence was. Include trial costs and estimated appeals costs for going after a possibly innocent person on flimsy evidence (someone who would have been prosecuted under the old system, but not the new). Seems a bit murky, but there's surely some good quantitative analysis to be done here.
These "innocence projects" are a colossal waste of money, if you actually examine some of these supposed "exonerations" they turn out to be nothing of the kind. I agree that if convincing evidence of the accused's innocense falls into a DA's lap, he has obligations to do something about it. Where I would likely disagree with this Watkins guy is what constitutes evidence of innocence that is sufficiently substantive to merit looking into it. We all know that genuinely innocent defendants, let alone genuinely innocent *convicts*, are rare birds. For every "one-armed man" who really exists there are a million cock-n-bull stories pitched by guilty-as-hell defendants to their attorneys, jailors, and anybody who will listen to them.
As for Watkins' skill as prosecuting, it's great that he wants to prosecute only the guilty, but I wouldn't proclaim him America's best prosecutor unless I knew that he was very good at his job, too. Getting the bad guys off the street is part of his job, after all.
According to the article his predecessor (sp?) took pride in being able to convict the innocent. If I took over an office like that, I'd be VERY tempted to fire all of the experienced prosecutors, or at least anyone who indicated in the slightest that being able to convict the innocent was anything except disgustingly shameful.
In 2006, however, Dallas County had it's own mini-Democratic wave, with almost every contested Republican losing. Republcian judges, both good and bad, were swept from office. Watkins had only to ride this wave into office. And Dallas County is probably better for it.
I would suggest that there's another benefit besides the moral and the purely economic to freeing the innocent. When the poor and minorities (and that's mostly who gets convicted, both rightly and wrongly) see that there are heroic efforts to get it right, they're less likely to, for example, riot, shoot police officers, do drugs. They are more likely to take long term investments in themselves and their communities (college, starting businesses etc). If the poor and minorities truly believe that it all can be taken away from them just for being a black, hispanic, etc in the wrong place at the wrong time (and I guarantee you in many places they do) they are less likely to invest in themselves and their community, and more likely to engage in risky behavior (like dealing drugs).
cjwynnes;
A lot of my clients cannot tell a consistent story from one day to the next. I figure those folks probably are not telling me the truth. Some tell a consistent story from day one through trial. If they continue to tell one story, through years of appeals, I figure they're probably innocent.
In 2006, however, Dallas County had it's own mini-Democratic wave, with almost every contested Republican losing. Republcian judges, both good and bad, were swept from office. Watkins had only to ride this wave into office. And Dallas County is probably better for it.
Now THAT is good news-- I have a tort case in Dallas my firm needs to file suit on. Time to collect some justice!
Yet another reason this is my favorite site!
OT, I stipulate, but I am curious.
Has your state legisature passed a criminal statute regarding "depriving someone of his constitutional rights"? Does the federal section 1983 statute have a criminal analogue? Is RICO somehow involved?
Here are two candidates:
Conspiracy to Violate Civil Rights:
Willful Violation of Civil Rights Under Color of Law:
No, and neither did the interviewer ask about Watkins' predecessors' almost fanatical zeal to keep blacks off of any jury that might not convict a black defendant, to the extent that senior prosecutors had a laundry list of plausible, but false, non-racial excuses to keep blacks off of juries. Also, Dallas prosecutors prior to Watkins were notorious for viewing their obligation to disclose exculpatory evidence under Brady as an inconvenience, to be ignored in all cases. While I do not know who Watkins fired, or who left voluntarily, that office desparately needed a clean sweep. The deck is almost always stacked against any criminal defendants who cannot afford a ton of money to put up a meaningful defense, even when prosecutors follow the rules. Dallas record for false convictions, manufactured evidence, and prosecutors who regularly and willfully violated the law on disclosure of exculpatory evidence and racially discriminatory jury selection was abysmal before Watkins. While it was purely an accident of timing that he was swept in by a democratic tide in 2006, it was a fortuitous accident for Dallas County.
On a related note, Justice means victims won't always get closure and will often have to just suck it up and go on with life. That's justice.
So innocent until proven guilty is turned into "eh, as long as the prosecutor could lie better?"
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. U.S., 295 U.S. 78 (1935) (emphasis added)
The philosophy has never been stated beter than that. It is a bedrock principle of our criminal justice system, and an irrefutable answer to the regrettably common attitude expressed by the first commenter.
What's this? Racism in the justice system? Say it ain't so.
It's not to say that there isn't an effect, but many other things are much more measurable. This project would need a very discrete, limited scope, to avoid getting caught up in minutiae that may or may not affect the cost/savings of the new leadership in Dallas.
Let's make up a hypothetical murder. Suppose that in the 1980's, Delores was convicted of murdering Vicki by stabbing her ten times with a butcher's knife. Evidence demonstrating Delores's guilt includes the testimony of Vicki's neighbor who heard screaming coming from Vicki's house and shortly thereafter saw Delores' car driving away, the testimony of several witnesses who overheard Delores say "I'm gonna kill that bitch Vicki" earlier in the evening, Delores's boyfriend saw her throwing bloody clothes into the garbage the next morning, and so on. Now in addition to all that, the DA also presented evidence at the trial that along with Vicki's blood there was also blood on the knife that could not have come from Vicki. In closing argument, the DA makes an argument in passing that the mystery-blood on the knife is Delores's blood, and that she accidentally cut herself during the encounter. Years later, some law professor from Chicago comes along and gets a court order to test the knife for DNA. The result is that the mystery-blood could not have come from Delores.
Does this in any way *exonerate* her? Absolutely NOT, there are any number of ways that blood from some third party may have gotten on that knife, and it was only a small part of the state's case against her. Would a defense attorney have used that fact to create reasonable doubt and win her an acquittal had it been known at the time? Maybe. A reasonable person could argue that uncovering this sort of evidence ought to lead to a new trial, but no reasonable person could suggest that this proves *innocence*.
Only in the limited subset of cases wherein excluding a person from matching a DNA sample logically excludes them from having committed the crime (i.e. rape case in which the victim is absolutely sure that the perpetrator did not use a condom) can it be said that such new DNA evidence demonstrates actual innocence.
. . .
A prosecutor's primary obligation is not to secure convictions even if the prosecutor knows the defendant is guilty. His or her primary obligation is to do justice. Period. Now, certainly, in most cases doing justice means making sure a person who committed a crime is convicted of that crime. But that is not always the case.
No, they're not even close. Convicting an innocent person (even a misdemeanor with probation) is far worse than acquitting 1000 guilty people (even rapists and murderers and terrorists).
Unfortunately it seems a growing number of people no longer realize this. They'd rather have innocent people in jail than guilty people walking the streets, because innocent people who are locked up are not a threat to them. Never mind the threat that YOU might be locked up, although innocent. Yes, it could happen to you.
Cjwynes - Rather than posting hypotheticals, why don't you try using a real example to support your claim- since you claim to be so intimately aware of what really goes on with innocence projects.
In other words, as long as the prosecutor can come up with some slightly plausible story, we should assume that the people arent' innocent. I'm sorry, most of the times when I've heard of acquittals based on DNA it was not like Delores, it was a major cornerstone of their case. And, it's not as if most of the cases that are being overturned now had no DNA, but rather had inconclusive DNA, or DNA that indicated up to 12% of the appropriate ethnic population would fit, etc.
I'm not sure what your point is here. I was asking a question, not making a statement about the value of spending money or not spending money. But thanks to David Nieporent, for giving excellent examples of possible free things that could be done.
Scalia discusses some real cases in his concurring opinion in Kansas v. Marsh, cases that have been counted as exonerations but clearly are nothing of the sort.
Again, I think it's quite legitimate to argue, as some people do, that newly-discovered evidence sometimes creates enough doubt in the legitimacy of the verdict to merit a new trial, and to propose a procedure for such review. But the idea that there is a large number of factually innocent convicts rotting away in prisons across America is something that I think they have yet failed to demonstrate.
Also, I'm not sure what the numbers have to do with it. If there are innocent people in jail, whether it's a million innocent or a dozen innocent, what's wrong with innocence projects putting pressure on the system to find and release them? Obviously nothing.
What is the evidence for this? And how did Dallas compare to other metropolitan areas?
Turns out, Mr. Watkins is little more than a crook himself: failing to pay a slew of back taxes, and supporting a school board member convicted of spousal abuse. In the latter case, when Mr. Watkins was politely challenged on the issue, he said "Look, when you attack one of us, you attack all of us." Nice guy huh? Bet he doesn't have an agenda...Nooooo wayyy!
But none of them appear to be DNA cases. Certainly nothing at all like your hypothetical.
I don't get your point. An man was convicted of a crime he didn't commit, and latter exonerated. He was a bad man who had committed many other crimes, and committed more after he was released. Yes this is unfortunate, but what else would you have done? Is your argument that he should have been kept in jail solely because of his criminal history, which had already been punished? Perhaps your arguing that once someone has been in jail long enough they should be kept there indefinitely as they will assuredly have become a criminal, even if they weren't before?
I checked out your link. It said nothing about failing to pay a slew of back taxes. As far as supporting someone who has a past DV conviction, that's not a crime. You, and the newspaper reporter, may think its wrong, but that's what elections are for. If you think that the school board member needs out, vote him out. How exactly does this make Craig Watkins look bad?
Perhaps the sentences on the prior convictions were too lenient?
Wouldn't that be a problem with the sentences on the prior convictions, not the innocence project or worse yet the entire idea of an innocence project?
Seeing as how they raised an entire family of criminals, yes I do.
That was my very point.
Right now we've decided we must find people guilty "beyond a reasonable doubt". If you changed that to "beyond a doubt", many many truly guilty people would go free, and its likely they would damage society far more than the injury that happens to the innocents who are wrongly convicted... particularly if criminals could know they can act without any real likelyhood of being caught &punished.
My point was that the discussion was about the innocence project and what this guy did after being exonerated for a crime he didn't commit...not about the extent of punishment on whatever crimes he did commit.
I am just this guy Steve. IANAL. I find it plausible that I may be accused of something, sometime. I have been in too many jurisdictions where they matched who was in custody with open crimes to clear cases. I don't care if it bankrupts the entire country. If I didn't do, it I don't want to go to jail for it. Yes my freedom is worth trillions of taxpayer money.
I fear a prosecutor that KNOWS I'm "guilty of something" so whatever he has open is ok to pin on me. I would have to rake a public defender and the prosecutor would hype the charge to x so I would take plea bargain Most PDs are good but would not humiliate a DA because they have to work within that system
Unless you are that one. Steve if you are so worried about the cost to taxpayers go confess to something. Us innocent citizens have no desire to be convicted of anything at any price.
Moving the goalposts, are we? Looking at cjwynes' orignial comment:
You see that he was not making a DNA-specific criticism. Then who did? You merely need to scroll down to the next comment.
CJ in response to this provided a DNA-based hypothetical situation where having an adverse DNA result wouldn't be proof of innocence, but merely means that *one* of the many pieces of evidence failed to stand up to later scrutiny.
Now, a reasonable criticism of that hypothetical would be asking how likely that scenario would be... that innocence project folks wouldn't care about the rest of the evidence of guilt and instead focus on freeing a person who's probably guilty.
One could even imagine a person at the opposite extreme of Henry Wade, who might in the worst case indeed affirmatively *rely* on the fact that the rest of the evidence would decay (witnesses who die or move away, lost records) and just go for raw numbers of exonerations. He would justify his falsehoods to himself, thinking he's doing it for the greater good, to "shock the conscience" of America and make changes in how people are prosecuted.
But for some people, reasonable criticisms of the hypothetical just aren't good enough:
Of course, CJ's hypothetical included additional evidence like verbal threats to kill, bloody clothes, etc but who cares about such trifling details when you are on the side of the forces of light?
So, you dismiss CJ's hypothetical on grounds that rely on no one actually reading the hypothetical, and you dismiss his actual examples because it doesn't match a narrow category (DNA-based exonerations only) that one of his critics proposed.
Almost smells like an agenda in here.
From the level of fanaticism displayed here, it now looks we'll merely trade the assumption that everyone accused is guilty for its polar opposite, with no one trying to meet in the middle.
Make no mistake, prosecutors who don't knowingly convict the innocent is an unalloyed good. But we don't live in a world where you always know who's innocent and who's not... so how common is the "I know he's innocent and I'm going to convict anyway" rogue prosecutor, truly?
As commenters on this thread have shown, there are fanatics on both the "conviction at all costs" side and the "innocence projects are an unalloyed good and can do no wrong" side.
For example, the more ludicrous attacks on this apparently forbidden idea:
There are structural reasons you might want defense lawyers to ignore this dictum (to force prosecutors to always have their ducks in a row when convicting), but no moral reason why setting the guilty free is a good thing. To people with a functional moral compass, this is self-evident. Unlike:
Yeah, that's EXACTLY what Milhouse said. But the strawman is on the side of the forces of light and hope, so it passes entirely without note from anyone else.
Um, where did the "convicted of anything at any price" come from? Surely not Milhouse.
This one takes the cake, and demonstrates conclusively what previous comments only dared to hint at: that some don't want accuracy in the justice system... they immaturely want absolute proof of guilt in a world that does not provide it to the inhabitants.
Sacrificing accuracy of conviction in order to satisfy an ideological agenda or a person's career goals is abhorrent, and the polarity of the distortion matters not.
Better check your jurisdiction. See n guilty men, by a reasonably bright person who should be known to those who read this blog.
My problem (from a prosecution perspective) is how to weigh the items that tilt towards no proseuction or a really good offer, particularly when I am certain beyond a doubt the person did the crime. In the end it seems like porn, and I know it when I see it - but I wish there was something more certain (for the balancing of the interests that is - not the porn - I could care less about that). Any thoughts on how to make it more certain what merits a reduction/dismissal?
Smile and be happy whenever a guilty person is acquitted. It's a good thing. It means the government's power is not unlimited. It means the justice system is working (there are other considerations that outweigh mere accuracy). It means our rights are being protected. It means our freedoms are taken seriously. Whenever a guilty person goes free, it's cause for celebration. Systems that merely punish the accused by default have been around since the dawn of civilization, and at the end of the day they're no more accurate than ours. Those systems have a presumption of guilt and err on the side of conviction. Do you really contend such a system would be preferable to ours?
kiniyakki, I picked 1000 because the number of criminal statutes, the number of prosecutions, the number of prisons, and the number of incarcerated people has increased by more than a factor of 100 since the days of Blackstone. So, the 10 acquitted guilty people in Blackstone's day is equivalent to 1000 acquitted guilty people today, taking into account inflation of crime. Crime will always be affected by inflation because as long as it exists (and it always will), legislators will keep increasing criminal statutes, prosecutions, and penalties in response. Note that my "n" is in reference to an innocent person being incarcerated, rather than executed. Certainly, "n" is greater than 1000 guilty people if we're talking about executing an innocent person.
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"Smile and be happy whenever a guilty person is acquitted."
Sir, you just made Ryan's point better than he, or anyone else, could have.
The comment indicates that you exist--or at least reason--completely in the realm of abstraction.
When a guilty person gets acquitted, at least three bad things can be presumed to have happened:
1. Someone made a mistake. Either the prosecutor put on an improperly prepared case; or the judge excluded evidence improperly; or the jury failed in its duty.
2. The victim and/or the victim's family is again victimized. We cede the power to decide guilt and punish trangressions against us to the State in exchange for the promise from the State that, if we are victimized, the State will do what it can to vindicate our interest.
3. A sociopath (perhaps a psychopath) is free walking the streets to attack society again.
1. Some cases everyone does everything right, no mistakes are made, but the state simply can't prove it's case beyond a reasonable doubt. It was close, worth a shot, but the state just couldn't do it. They proved it beyond a preponderance of the evidence, they proved it beyond clear and convincing evidence, but not beyond a reasonable doubt. No mistakes were wade, the prosecutor was fully prepared.
2. Not all crimes have victims - in fact, since most crimes are drug crimes, the majority do not. And a guilty person being acquitted and still victimizing the victim is a plot from a dumb movie, it's not something that happens in real life.
3. All criminals are sociopaths? Hardly. In all my years of doing criminal defense I can tell you I have had only one client who may have been a sociopath, and it was a check fraud case (which the prosecutor agreed to dismiss if he made full restitution, which he did). He did not harm anyone, and while I'm not a psychologist, I think the guy is a sociopath for reasons I'll keep to myself. The vast majority of criminals are perfectly sane, they just made a mistake or were in the wrong place at the wrong time. Again, since most crimes are drug crimes, most crimes do not involve a victim, let alone require the state to show any intent beyond mere possession. 99.9% of criminals never "attacked" anyone.
It's unfortunate that our system is not 100% accurate, and if there were a way to make it 100% accurate I'd certainly be all for it. But until such time as doubt is completely removed from the criminal justice system, it is a GOOD THING when someone is acquitted. It means we're erring on the side of innocence despite the government's demand for a conviction. That's good, and there's nothing abstract about it.
When I was in college I actually learned that someone I knew was a drug dealer. (He was not a friend, just someone I ran into sometimes in college. After I learned this, I distanced myself from him.) I then learned from other people I knew that this guy would give people - college students - free cocaine, acting as a friend. He would hang out with them, invite them to try it, etc. He would do this until they became hooked. Then he would start charging them ever higher prices, and on at least one occasion demanding sex for the drug.
Now on one hand, people who tried his cocaine were making their own decision. But I would describe those who he hooked on cocaine as his victims.
I freely admit the statement was exxagerated, I was expecting the response to be something like "that's not what I meant."
But it's close enough to the truth that it illustrates the fundamental problem with what he proposed.
As noted earlier, a defense attorney has broader latitude to make arguments, be he is still ethically bound to refrain from making arguments or presenting evidence he "reasonably believes" to be untrue. Even further, he has the ethical duty to take reasonable remedial measures if he knows untrue evidence has been presented.
The prosecutor is (theoretically) held to a higher standard for a good reason. It is his obligation to prove that the defendant is guilty beyond a reasonable doubt. If you allow the prosecutor to advance any and all theories as long as they are "not reasonably believed to be untrue" you've fundamentally destroyed the concept of innocent until "proven" guilty, and turned it into a contest between who can more convincingly argue their theories.
Addiction is not one of the main reasons we penalize drug use. Even drugs that everyone concedes are not addictive are penalized. We penalize drug use because of religion and racism. Religious people want to preserve religion's monopoly on self-initiated euphoria. If religion has to compete with heroin and oxycodone and cocaine and methamphetamine, it will lose followers (and thus lose revenue). Secondly, we penalize drugs because most drugs come from countries and cultures of people with dark skin. Whether it's cocaine and marijuana from south america, or opium from Asia, drugs are imbued with the cultures of brown-skinned people. Thus they must be banned. But don't take my word for such a bold claim - research the history of drug prohibition leading up to the Harrison Act and you'll see what I mean.
1. If the verdict is "not guilty" someone presumptively (note that I did not say "always") made a mistake. Maybe e.g., the prosecutor overcharged the case. Granted there are unforeseen circumstances such as a witness dying or getting cold feet, that could in rare cases result in an acquittal. But the VAST majority of acquittals involve some substantial error on someone's part.
2. I do not know what you mean by "most crimes are drug crimes". It is certainly not the case that most specific state criminal statutes deal with drugs. It is also certain (at least in my jurisdiction) that most charged offenses do not involve drugs, unless you count alcohol.
Most crimes at the state level involve: alcohol; or alcohol and fighting; or stealing. Then, I would say, comes the drug crimes.
I believe that on the federal level you might be correct, but very little of the criminal justice in this country, AFAIK, is done at the federal level.
And this does not even address the argument on the proper definition of "victim" by treebeard, above.
3. I used the term "sociopath" as a non-psychologist, but I meant to denote a person who is, by inclination or compulsion, unwilling or unable to follow the rules of society and respect the rights of others. You seem to think that I meant the same thing as "psychopath". Sorry for the confusion.
Using that as a definition, I have met lots of defendants who are sociopaths. And my point was that it would not be an unwarranted presumption that an acquittal of a guilty defendant released a sociopath onto the streets.
Lastly, your use of the word "whenever" in the quote that I used, binds you to a universal statement. Clearly that statement is false.
1. If you've ever tried a criminal case, you'd know that both sides can do a perfect, error-free job and there's no way to guarantee the jury will make the (objectively) correct decision. This is particularly true when you have a high burden of proof to overcome, as a prosecutor does. While it's impossible to try a perfect case, and if you lose you can always think of things that could have been done differently in hindsight, your statement that the vast majority of acquittals involve a substantial error on someone's part implies that all defendants are guilty. Let me ask you flat out - do you believe all criminal defendants are guilty?
2. Go down to your nearest criminal court and look at the docket. Over half the cases will be drug crimes. Possession, distribution, manufacture, or conspiracy to make or distribute. Clearly you're not a lawyer and you've never stepped foot in a courtroom.
3. Not everyone who violates a statute is a sociopath. And not all criminal prohibitions protect the rights of others. Drug crimes being the best example. There are so many laws out there, the average person violates about 20 a day. If I were so inclined, and if I were being paid for my time, I assure you I could find a few felonies of which you are guilty. Are you a sociopath?
It is a horrendously unwarranted presumption that an acquittal of a defendant releases a sociopath onto the streets. First, you are assuming the acquitted defendant is guilty of the crime alleged. Second, you are assuming the defendant is a sociopath.
I don't see how an imperative sentence (telling you to smile whenever X occurs) can be either true or false. It was not a statement of fact, but rather a grammatical command. You may disagree with the propriety of following my imperative, but it's not clearly false. If you had a better understanding of the criminal justice system and didn't base your opinions on a presumption of guilt, you'd agree with me.
I sure as hell wouldn't want you on any jury of mine.
treebeard: the assertion that drug use has a victim leads to paradox. Since when do we punish the victim of a crime? In any case, the severity of the punishment may often exceed the severity of the "victimization".
I'm an average person. Name them. Seriously, name some laws I am likely to have violated today. If you can't because you don't know me, name some examples of laws that you think are often broken by the average person, generally.
Great Unknown: "the assertion that drug use has a victim leads to paradox. Since when do we punish the victim of a crime?"
Good point. I was responding to the notion that drug crimes are victimless crimes. But you're right, possessors are also accused of a crime. My own take, FWIW, is that illegal drug users are victims and not criminals, until their drug use becomes a danger to others (i.e. driving while high, neglecting their children, stealing to support their habit). But the drug pushers and dealers are certainly creating a class of victims.
Not all drug use becomes a danger to others. But i'm certainly gainst driving while under the influence of anything.
I have mutiple years experience both as a prosecutor and a defense attorney, to the extent that that matters.
Your statement was, to quote:
"Smile and be happy whenever a guilty person is acquitted"
YOU assume the hypothetical defendant is guilty.
Also, how else can that statement be read if not as a universal? "If (i.e., "whenever") X is a guilty person; and X is acquitted, then smile and be happy". Thus you are committed to the proposition that in every instance ("whenever")in which a guilty person is acquitted a celebration is in order.
I can not comment on the facts in your jurisdiction, but you are simply wrong that in every county in America, the majority of criminal filings are for drug offenses (again, I say that I exclude alcohol from the category of "drug offenses").
I have tried many criminal jury trials. And while it is possible that an acquittal can result even if the prosecutor tries the perfect case, this is by no means common.
And while I do not believe that all defendants are guilty as charged, almost every (90+%) person charged is guilty of some crime. I would be very surpised if many with extensive experience in law or law enforcement would disagree with that proposition.
And this justifies the idea that since "he" is guilty of something, it doesn't really matter that he is legally innocent (beyond reasonable doubt) of the specific crime in question?
Would you propose that if Attila the Hun was on trial for a crime he did not actually commit (he was too busy raping and pillaging to rob the 7-11), it would be ethical for the prosecutor to try to nail him on the robbery charge, despite strong indications that he was not actually guilty as charged?
Given that traffic infractions are by defintion not crimes, please take an educated guess as to the last crime (defined as an offense for which the statutory punishment includes possible jail time) your wife (or closest living female relative--just to choose an everyday person at random)committed.
I was referring more generally to two notions:
--there is often (usually?) a lesser included offense that the defendant is provably guilty of;
and
--I was responding to a direct question whether I thought all defendants are guilty. My answer was a qualified "yes". It was not meant to (and did not) advocate "star chamber" treatment of generally bad people.
IRL, drug dealers -- at the least the ones who want to be successful -- generally try to be at least slightly discreet. Indiscriminately handing out illegal contraband to potential witnesses is not a good way to be successful.
(It's a lousy business strategy; even if one could "hook" someone -- "drugs" don't really work like that -- there are no guarantees that the person will buy them from you. So you're talking all of the legal risks for a mere chance at benefiting the drug industry rather than you personally.)
There are continuing offenses to worry about, possession of drugs / fireworks is jail time in MA. I bet a creative DA could get me on all sorts of things (poss explosives, improper storage explosives, importation of explosives across state lines . . )
Then there are the truly mundane bullshit, my town makes it a crime (jail!) not to cut my lawn to their standards.
Furthermore, it has been my experience that nobody really sells drugs. Drugs sell themselves and, in every instance, it is enough to merely have the drugs and people will harass you non-stop in order to get them.
It wasn't an afterschool special, it was a real person. The woman he forced to have sex with him so that she could continue the habit was a friend of mine. She couldn't afford to pay his fee. Maybe according to you he wasn't a good (effective or smart) drug dealer. But he existed. And maybe those specials are right once in a while.
Prohibition inflates prices of cheaply produced products, and creates economic incentive for criminal trafficking. Prohibition itself makes such scenarios possible.
Traffic offenses are misdemeanors, just the lowest grade (at least here in Texas, they're class C misdemeanors). Just because there is no jail time doesn't mean it isn't a crime. As for the states that try to define certain low-grade crimes as "civil crimes" I don't buy that fiction - it's an oxymoron.
"Smile and be happy whenever a guilty person is acquitted"
YOU assume the hypothetical defendant is guilty.
Also, how else can that statement be read if not as a universal? "If (i.e., "whenever") X is a guilty person; and X is acquitted, then smile and be happy".
Yes for purposes of my hypothetical I'm not assuming the defendant is guilty, I'm stating outright that I'm talking about a factually guilty defendant who has been acquitted.
It is not a statement of fact, so I don't see how it can be universally true or false. "When your toilet clogs, get a plunger" is not a statement of fact, it's not true or false. It may be bad advice or good advice, but that's the extent of it.
Regarding "daily crimes" you have to keep in mind that I'm talking about offenses outside of the penal code. Though things like betting/gambling and sodomy (blowjobs) are quite common and usually in the penal code. During March, when "NCAA Championship" brackets are festooned across every wall of my office building, there is a mass, month-long continuing violation of the penal code.
I see people depositing $9,990 all the time, far more frequently than you'd think, to structure transactions to avoid federal currency transaction reporting requirements. They think they're clever (in reality the threshold is anything OVER $10k so a deposit of exactly $10k is not reported and not as suspicious as $9,999.99). I let someone borrow my Texas Crimes outside the Penal Code book, which lists about 6,500 extremely random crimes (water code, agricultural code, finance code, occupations code, government code, etc) outside the penal code in texas. You can go through it and you'd be amazed at how many odd, random things are crimes and how many are so frequently committed (or attempted/conspired/solicited).
Go read through Title 18, USC, and look at some of the odd things that are crimes. Section 48 - no windows wallpaper on your PC of of cats falling out of trees with the caption "HANG IN THERE BABY!" Giving your friend some seeds of a water chestnut plant is in violation of section 46. Melting pennies was recently made a federal crime since the metal is worth more than 1 cent. Mailing dentures/artificial teeth not made/cast by a dentist - violation of section 1821. These are all crimes punishable by incarceration, I should add. There are many other such insanely trivial crimes.
Anyone dealing with securities, whether a broker-dealer or registered rep or financial advisor is violating multiple statutes and regulations every time they talk, move, or breathe. They can only be in substantial complaince with no culpable mental state, but never full compliance. It's impossible.
Illinois State Law requires that bachelors be called 'master' when addressed by their female counterparts.
In Chicago it is illegal to eat in a building that is on fire.
Joliet makes it illegal ($5 fine) to mispronounce the town name.
I could go on, but, at least in Illinois, we have your precious Federal law licked.
My point is only that when you take state and federal laws, plus all the accompanying regulations and administrative codes, everyone violates at least 20 laws per day. Most are not serious felonies, though some certainly are.
Let me follow anyone around for a week, and I'll have enough evidence to indict that person for a multitude of state and federal offenses. So this theory that "all criminals are sociopaths" who "cannot or will not obey the rules of society" is incredibly shortsighted. We might get into an argument about there being some laws that we "mean" and some laws that we "don't mean" but tell that to the prosecutor. It would also violate due process to have some laws that we don't intend to enforce, as nobody could reasonably have adequate notice about which are which.
I've wrestled for a long time about whether drugs should be legalized (not that it matters what I think; it's purely an intellectual exercise). I agree with the view that if certain drugs were not prohibited, the black market would become irrelevant, prices would go down, and the incentives for crime (whether that of users, i.e. burglarizing to support the habit, or that of dealers, i.e. killing the competition) would to some degree disappear.
And yet... I think legalization would make drug use, especially among the young, more prevalent and acceptable. I would not want cocaine to become something as optional and easy to access as alcohol is now. And I would not want as many people to die from accidents caused by people driving stoned, as have died from drunk drivers. Etc.
But I am not on the "front lines," and don't have much experience in this aspect of the legal world. I just have opinions. I have known drug users in the past, and as I have mentioned I knew one drug dealer who was a very pernicious person. I also went through a period of my life where I was a pot-head, and am glad I moved on because I was beginning to be tempted by other drugs.
I've mentioned a friend of mine, a college girl who became a cocaine addict, and the one who had sex with her dealer. I'm not making that story up. She was an artist, and unfortunately drug use was encouraged among her crowd as a way to achieve creative expression. But the more she got into it, the more her life fell apart. She dropped out of school, and I don't know what became of her.
So could those of you have suggested that prohibition is the problem, or that drug users should not be treated as victims, write something in brief about what you think would work better than our present system? I fully agree that the "War on Drugs" has failed. I even remember reading with astonishment the issue of National Review devoted to legalizing drugs in the 90's. But at the same time, I don't want my city to become like Amsterdam. I've been there, and I saw the heroin users shooting up in the park. And I don't want more college students turning into my friend - her dealer's manipulation of her could perhaps be blamed on prohibition, but her use of the drugs cannot. If cocaine was legal, perhaps she would have been hooked earlier. I honestly don't know.
Anyway, please feel free to comment.
Also, there are studies that indicate that driving while (not terribly) stoned is no more dangerous than driving sober. Even if you don't believe this entirely, it's nowhere near driving drunk. Stoned drivers tend to be (over)cautious and consistently underestimate their own driving ability. Drunks think they are invincible, enough said. Link.
I do share your concern that legalizing now will create a tidal wave of drug use that wouldn't have happened absent prohibition from the beginning. I don't how that would play out, but at the current rate at which the war on drugs is going, we'll be there soon enough anyway.
Finally, I think that if we put a fraction of the money currently spend on prohibition towards rehabilitation, treatment and outreach, your friends may have had somewhere to go to help them kick (or control) their habit. Their lives fell apart because they were isolated from society's normal, stabilizing influence. The goal is to bring them back into the fold (and, quite honestly, help them learn to take a bump every once in a while without it turning into a bender).
Kinniyaki, you're probably not reading this thread anymore, but I hope you are. I must say that this attitude drives me absolutely nuts. I realize that you title these "items that weigh towards no prosecution" but lets be honest. What you mean is (usually, there will be exceptions) items that seem to indicate the defendant is honest. But, on the other hand, you personally are convinced that the person is guilty. So, you give them a sweetheart deal that they are likely to take. And let's face it, most people when faced with going to trial on a felony (even if they're likely to win) and accepting a misdo time served offer will take the offer even if they're innocent. HOW IS THIS JUST? Did you ever think that maybe the problem isn't with the evidence, but with your gut feeling that this person is guilty? You are a prosecutor. By definition, you assume people are guilty and go after them. Maybe if the evidence indicates serious doubts as to guilt, you should dismiss NO MATTER how convinced you are that they are guilty. Specifically because you are biased. (I'm not saying defense attorneys aren't biased the other way...of course we are).
Sorry, but like the previous commenter, I'm calling bullshit. I'm not saying that your friend didn't tell you this, but I bet she was BSing you. Or at least not telling you the whole story. It's unlikely to me that she couldn't have found another dealer. Just out of curiousity was she hitting you up for money at the time?
As to your claim in your first paragraph, I definitely disagree with you and agree with BruceM. Unless of course, you consider charging a crime that you can't prove a mistake. The burden is high. However, I will says that it seems that many prosecutors over-charge hoping that they can then plead down to whatever they think the client is guilty of anyway. I would consider this a mistake, but don't know if most prosecutors would disagre.
As to your second paragraph, it depends on what you mean by experience in law and what you mean by guilty of something. Yes, as BruceM says most people commit 20 to 30 crimes a day. But, if you interpret "guilty of something" to mean guilty of something reasonably similar (i.e., guy charged with rape probably sped that same day) then I would disagree. As to experince in law or law enforcement, I would agree that most cops think that if they charge someone they must be guilty...but this begs the question whether cops have a bias because of their job. Are you including defense attorneys in the "experience in law" portion?
treebeard: America was discovered and settled, the natives were defeated and practically wiped out, we defeated the British won our independence, we created a unique constitutional democracy that has served as an example for every country ever since, we pioneered the Industrial Revolution and expanded across the continent, we won World Wars I and II, and we became a world superpower all with drugs being perfectly legal and widely used by everyone. Drugs being legal and cheap and widely available is the normal state of things. Only over the past 75-or-so years has America (and soon thereafter the rest of the world, due to us forcing our drug laws upon everyone else) prohibited drug use. And things have been shitty ever since.
I'm not saying every problem with currently have is due to drug prohibition, but most can be traced to it. Moreover, any claim that society will fall apart if drugs are legalized is false, and demonstrably so. It's not an experiment to legalize drugs, it's an experiment (and a failed one at that) to prohibit them. And they had morphine and heroin and cocaine back in the pre-prohibition days, so please don't tell me things are different now because we have much more powerful drugs. It's just not so.
Every dog wasting time sniffing for drugs is one less dog that could be sniffing for bombs, or biological/chemical weapons. Every cop wasting time on drug crimes is one less cop that could be handling/preventing a real crime. Every dollar that goes into the hands of criminals is a dollar that could go into the US Treasury. We could get rid of the income tax, the IRS, and DEA, and still have our government bring in more tax revenue than it currently does. We could save billions on prisons, since we'd only have about 200,000 people in prison instead of 2 million plus people. We could reduce the non-drug related crime rate because nobody would commit crimes to get drugs or drug money if you could buy a pound of cocaine or heroin at Walmart for $9.95 (plus a few bucks in drug taxes). Less people would use alcohol and thus less people would be obese and have liver damage if better, more pleasant drugs could be easily and legally acquired. We would be more productive since amphetamines (stuff like Adderall) would be available over the counter, stigma-free. Nobody would "have to have sex" for drugs when they could be acquired as easily and inexpensively as a pack of cigarettes. Cigarettes are just as addictive (and more deadly) than any drug, yet nobody whores themselves out for a pack of Marlboros. Why not? Because they're legal. If drugs were legal nobody would overdose or get harmed from tainted/adulterated drugs because the FDA would ensure that all drugs, from heroin to cocaine to LSD to Ecstasy, would be 100% pure and sold in measured, known amounts - no guessing how much is in one tablespoon or one line or one pill. The Constitution will cease to be violated since it's impossible to enforce a law that prohibits people from possessing powders, pills, and plants without violating the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments. Everyone will be happy except the people in the prison, drug testing, and drug rehab industries who lose their jobs - jobs which should have never existed in the first place. Poor little DEA agent will lose his shiny badge, wwwwaaaahhhh waaah.
But you still think drugs like cocaine shouldn't be as available as alcohol? Alcohol is much worse for you than cocaine is. Alcohol is more intoxicating, more toxic to the human body, and makes its users more annoying to be around than any other drug. There is no way to justify drug prohibition but not alcohol prohibition. And we know prohibition of both alcohol and other drugs does not work. It's an undisputed, provable fact.
I don't mean to sound snippy here. I really don't. But the answer to the question of drug legalization is so simple and so straightforward, there is just no debate about it. There's no longer anything to discuss. There are not two reasonable sides. There's no question about maybe legalizing marijuana but not other drugs. Drug prohibition is a failure every way you look at it, and the only viable alternative - legalize everything and sell it everywhere -
I agree with the rest except for the conclusion. I would legalize everything except for meth/pcp/heroin. My theory is the market for the latter two will evaporate (since the whole infrastructure will vanish) and the former ought to be a crime only so that the addicts can be forced into treatment (no jail time, that would make it worse).
Why keep heroin banned but legalize stronger opioids like fentanyl and oxycodone and dilaudid and numorphan? Makes no sense.
I don't think there's ever been much of a market for PCP, and if it were legal I'