Thursday, January 30, 2014

jesse ryan loskarn's explanation

On YouTube, I saw a compilation of videos of terrible traffic accidents; I was shocked at the violence. Cars overturned, bodies thrown from vehicles, and all caught on camera. I started to turn it off but I returned to it. The next accident wasn't as bad so I kept watching. I didn't like watching but I watched for several minutes before stopping. Some of the videos go on for nearly an hour, accident after accident. (I couldn't find the video again to link to it; you can search for something like it yourself. I don't recommend it.)

Watching child porn must be something like that. An initial revulsion, subsequent curiosity, possible fascination.

A suicide letter left by Jesse Ryan Loskarn, a young man charged with possession and distribution of child pornography, talks about why he looked at child porn.
Everyone wants to know why. 
I’ve asked God. I’ve asked myself. I’ve talked with clergy and counselors and psychiatrists. I spent five days on suicide watch in the psychiatric ward at the D.C. jail, fixated on the “why” and “how” questions: why did I do this and how can I kill myself? I’ve shared the most private details of my life with others in the effort to find an answer. There seem to be many answers and none at all.

The first time I saw child pornography was during a search for music on a peer-to-peer network. I wasn’t seeking it but I didn’t turn away when I saw it. Until that moment, the only place I’d seen these sorts of images was in my mind.

I found myself drawn to videos that matched my own childhood abuse. It’s painful and humiliating to admit to myself, let alone the whole world, but I pictured myself as a child in the image or video. The more an image mirrored some element of my memories and took me back, the more I felt a connection.

This is my deepest, darkest secret.
There are many, many reasons someone might look at child porn. It is not hard to imagine that some are disgusted by the images but cannot look away.

Jesse Ryan Loskarn suffered so much shame from being discovered and outed that he killed himself.
The news coverage of my spectacular fall makes it impossible for me to crawl in a hole and disappear. I’ve hurt every single human being I’ve ever known and the details of my shame are preserved on the internet for all time. There is no escape.
On Althouse, the blog where I first read the letter, commenter Valentine Smith said,
He did the honorable thing, I'll give him that.
Honorable. How is it honorable to cause family and friends such grief over the death of someone they loved? How is it honorable to kill oneself without trying to atone for your wrongs?

How can it be honorable to be so deep in despair that suicide seems reasonable?

His family still suffers. His death doesn't diminish their grief; it only adds to the wild storm of emotions they must be feeling. They will never experience the joy of seeing him come out of his terrible agony.

I am sorry for Jesse and the torments that drove him to do what he did. I am sorry for his family and the torments they are left with. The only way to make such a sad situation better is to get through it.

In a world where Jesse's crime would have forever followed him by way of the sex offender registry, getting through it is difficult. In a world where people like Jesse are treated as if they have or will molest children, getting through it is humiliating and painful.

Jesse closes his letter with an apology:
And last, to the children in the images: I should have known better. I perpetuated your abuse and that will be a burden on my soul for the rest of my life. 
Ah, Jesse. Of course you should have known better. Sometimes people do bad things. Most of the time, those people can change their ways. I wish Jesse had been able to do that.

Jesse could have been a man who stopped looking at child porn. There is no shame in that.

There is honor.

Wednesday, January 29, 2014

500-mile radius

The Bureau of Prisons says:
The Bureau attempts to designate inmates to facilities commensurate with their security and program needs within a 500-mile radius of their release residence.
Family support, which includes the ability to visit the inmate, is an important element that reduces the likelihood of reoffense after release from the BOP.

The idea of keeping inmates close to home is good but the 500-mile radius policy is widely seen as a cruel joke.

On a recent trip to visit my husband 1000 miles away, I met several other families who traveled 800, 900, even 1200 miles to the prison. These are families who want to keep the  inmate in their lives, families who sacrificed a great deal to make the trip. Imagine how expensive it is to travel 1200 miles with six children. No matter how many children the inmate has, there is a good chance that since his incarceration, the family is living on a greatly reduced income. Travel becomes a luxury.

The difficulty of placing inmates close to home is made worse by overcrowding. The BOP simply cannot place inmates close to home if nearby facilities are full.

Overcrowding would be alleviated if fewer people were incarcerated. Not every crime deserves a prison sentence and not every criminal needs prison time.

Families who want to stay together deserve support. Moral support, many times financial support, and they also need the support of a prison system that acts on the belief that inmates are better off when they can remain close to family.

Tuesday, January 28, 2014

audit reveals errors in national DNA database

The FBI maintains a database of DNA samples, taken from convicts, suspects, and crime scenes. A recent audit showed errors in nearly 170 profiles. In a database that holds 13 million profiles, 170 seems a small number though the importance is crystal clear to those whose cases may have been affected.

To those who have been exonerated or convicted because of DNA evidence, the realization that DNA evidence isn't infallible must be mind-blowing. How does it feel to sit in prison wondering if a typo or bad handwriting were part of the reason for your conviction? 
The discoveries, submitted by the New York City medical examiner’s office to a state oversight panel, show that the capacity for human error is ever-present, even when it comes to the analysis of DNA evidence, which can take on an aura of infallibility in court, defense lawyers and scientists said.
In a world where the majority of defendants accept a plea agreement, the prosecution doesn't need to prove anything to a jury. When the prosecutor can pin a defendant between a mandatory minimum sentence and a plea agreement--and going to trial can add years to one's sentence--the prosecution can be confident that anything they say about DNA evidence will not be challenged.

A prosecutor's best tool is supposed to be evidence that the defendant committed this particular crime. Instead, his best tool is the mandatory minimum sentence.

This is not a reliable path to justice.

Saturday, January 18, 2014

substance abuse can pay off

The only program available to shorten a federal inmate's sentence is RDAP, Residential Drug Abuse Program. An inmate who successfully completes that rigorous program can have a year knocked off his or her sentence. This is the only time I know where being an addict is a benefit.

I have heard that the program can be very good and I am glad for the inmates who do benefit from it.

Inmates who do not abuse drugs or alcohol have no comparable way to shorten their sentences.

During my husband's pre-sentencing interview, he was encouraged to claim a substance abuse problem; the person doing the interview even prodded a little to see if he wanted to claim a problem with prescription drugs. At the time, we thought it odd that they were pushing him to say something untrue. If we had known, would we have tried to gin up a good story about alcoholism?

No, we would not.

Friday, January 17, 2014

how bad law happens

Virginia State Sentator Tom Garrett proposed legislation to protect the children.
Garrett recently introduced legislation to amend and re-enact Virginia’s notorious crimes-against-nature statute, which court rulings have rendered a nullity. The bill renews the prohibitions against oral or anal sex with minors or in public, while stipulating that such acts between consenting adults in private do not violate the law.
Garrett wanted to punish adults for having oral or anal sex with minors. I don't know why existing laws that prohibit sex between adults and children don't apply to oral and anal sex; perhaps legislators always do things the hard way in Virginia. 

Protecting the children is a noble objective, except when protecting the children isn't the result.
Virginia law lets 17-year-olds marry. But if those 17-year-olds then had oral sex, under Garrett’s original bill they would be committing felonies.
Legal to marry but illegal to have a kind of sex that would be legal for older married couples or for older unmarried couples. 

Garrett's legislation also doesn't show much clear thinking about penalties. 
Genital sex between an adult and a 17-year-old remains a misdemeanor, but merely to solicit oral sex with a 17-year-old would be a felony.
How does legislation like this come about?
“I tried to draft the simplest bill possible,” Garrett wrote in an email to “I would be open to amendment, and may even amend it myself, to say that any act is only a crime when one participant or solicitor is an adult, and the other a minor. Honestly, the idea of outlawing acts between minors isn’t something I had contemplated...."
Contemplated? If Mr. Garrett had taken the time to contemplate his legislation, he may have noticed the obvious flaws. Instead, his fervor to protect the children kept him from thinking clearly.

A more cynical understanding would say that Mr. Garrett doesn't care about the children so much as he wants to be able to say he passed a law. Any law.

Saturday, January 4, 2014

another reason for alternatives to incarceration

Prisons are training grounds for criminals.
If prison reformed criminals, illegal earnings once people were released ought to have gone down. But if prison was a "finishing school" for criminals, illegal earnings after serving time should have increased.
"Spending time in prison leads to increased criminal earnings," Hutcherson says. "On average, a person can make roughly $11,000 more [illegally] from spending time in prison versus a person who does not spend time in prison."

This is a good argument for shorter sentences, as well as an argument for punishment other than incarceration.

If we want criminals to leave prison and lead better lives, we need to consider what they are learning while in prison.

Friday, January 3, 2014

why I admire defense attorneys

Radley Balko interviewed longtime Louisiana defense attorney Sam Dalton for an August 2013 article on prosecutorial misconduct. As his final Huffington Post piece (before moving to the Washington Post), Balko published the whole Dalton interview.
Dalton is something of a legend in Louisiana courtrooms. He has just entered his seventh decade of practicing law. In that time, he has defended more than 300 death penalty cases. Of those, he spared 16 defendants from execution -- this in a state that's rather fond of executing people. He has also been a voice for civil rights, he chartered a model public defender system, and he's currently leading a charge to impose some accountability on Louisiana's more egregiously misbehaving prosecutors. My favorite thing about him: Outside his office door there's a "welcome" mat that reads: Come back with a warrant.
Talking about why prosecutors still try to avoid handing exculpatory evidence over to the defense, even though it has been the law for 50 years, Dalton said:
[Y]ou have to look at what the system rewards. The best way to get attention for yourself as a prosecutor is to put a lot of people in jail. There's no votes to be won for deciding not to prosecute someone in the interests of justice. No prosecutor runs for higher office by touting the charges he didn't bring, or the fairness he showed to those accused of terrible crimes. You put those two problems together, and you get a culture that encourages deliberate indifference, especially once they're publicly invested in a particular suspect. 
Anyone who has watched someone go through the meat grinder of our justice system knows this already. It is a sad time when prosecutors fear being accused of being fair. We also know the Department of Justice is publicly invested in a particular type of suspect--drug offenders for one, sex offenders for another. These offenses are easy to detect, easy to prosecute, easy to convict. I would note, too, it is easy for law enforcement to entrap someone for these offenses.

Now that Colorado and Washington have legalized marijuana for recreational use, it seems clear that public opinion will support further legalization. Perhaps that is why federal law enforcement has increased its investment in catching those who download child pornography--easy pickings will make it possible for a prosecutor to continue to boast the number of convictions on his watch.
I think it's a mistake for a defense attorney to define success by how many acquittals he wins. I define it by whether I've forced the state to do its job, and to do it fairly and in compliance with the Constitution. 
But let me say something about convictions. Convictions are important. And it's important for attorneys to represent even clearly guilty people. There's the obvious reason -- that everyone deserves a fair trial. 
But here's a less obvious reason: Ask yourself, what contribution do convictions make to criminal case law? The answer is that they're responsible for almost all of it. When you're acquitted, you don't appeal. Only convictions are appealed. And it's on appeal that you argue that your client's rights were violated. Appeals are where the appellate courts enforce the Constitution. At least where they're supposed to. It's only because someone was convicted that we have the rules in place today that protect the accused. There's a kind of beautiful symmetry to that. It's because of convictions that we have the rules that protect the innocent.
I had not thought before about the role convictions play in the important battle to change laws. Dalton makes me see them differently, though I have to wonder if Dalton overlooks the fact that when prosecutors have been given the power to pin a defendant between a plea agreement and a mandatory minimum sentence, convictions lose that importance. 

Plea agreements often require the defendant to waive his right to appeal. No appeal means no way to argue that rights were violated, even when it is clear that a plea is less about admitting guilt than about avoiding the mandatory minimum.

Dalton talks about punishment:
We focus too much on retribution, and too little on protecting society from harm. 
Let me give you an example. Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened. 
In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life. 
Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded. 
So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous. [My emphasis.]
Sex offenders and their families know this well. The majority of those convicted of sex offenses are unlikely to commit another sex offense and yet they are sentenced according to the fear engendered by the term sex offense instead of any rational evaluation of danger.

Punishment should include alternatives to incarceration because incarceration is often a training ground for criminals and because the United States prisons are overcrowded. Another reason to avoid incarceration when possible is to avoid giving more people power over others.

Though Dalton is talking about judges and prosecutors, his warning also applies to correctional officers:
Power is insidious. It will creep up on even the most decent people. Always be aware of that, and be vigilant against it.
Read the whole interview. Defense attorneys take a lot of heat for their part in letting criminals go free but they stand between us and unjust convictions. I have great admiration for attorneys who defend the obviously guilty and especially those obviously guilty of terrible crimes.

Obvious guilt should be defended just as fiercely as innocence is.