a defense of John Grisham

Radley Balko steps in to remind us that John Grisham is not a lunatic who cares nothing for justice even though Grisham himself has apologized for his earlier statements about child pornography sentences.

Grisham's apology:

"Anyone who harms a child for profit or pleasure, or who in any way participates in child pornography -- online or otherwise -- should be punished to the fullest extent of the law," the author said in a statement. "My comments made two days ago during an interview with the British newspaper The Telegraph were in no way intended to show sympathy for those convicted of sex crimes, especially the sexual molestation of children. I can think of nothing more despicable. I regret having made these comments, and apologize to all."

Balko's defense of Grisham, which is a longer and much more thoughtful piece than my blog post: 

Grisham certainly could have chosen his words better. But he isn’t wrong, and the invective he’s receiving right now is both misinformed and wildly over the top. There are Twitter users calling him a pervert, or for his hometo be raided by the FBI. It isn’t all that different than suggesting that people who criticize the drug laws must be doing or selling drugs. [My emphasis.]

Take this quote out of context, and one could make Grisham look like he thinks the biggest problem with the criminal justice system is that old white guys are getting locked up for looking at child porn. But context is important. Grisham has spent a great deal of time, money, and influence advocating for criminal justice reform. He helped found the Mississippi Innocence Project, and sits on the board of directors for the Innocence Project in New York. He wrote a nonfiction book about a wrongful conviction, and helped another get published. He testified before Congress about the need for reforming the forensics system, addressing the problems he’s seen firsthand in Mississippi.

Balko's piece is heavy on the links because the information he presents about Grisham is important. Grisham has a history of being on the side of justice. 

The reality is that John Grisham has done far, far more to actually address racial bias in the criminal justice system than the self-righteous pundits mocking him have done or will likely ever do. But because he had the temerity to stick up for a friend — and a middle-aged white male friend at that — the rush is on to disregard all of Grisham’s prior work, exaggerate the indignation, and reduce the man to a caricature....

This dressing down of Grisham by Jessica Goldstein at ThinkProgress pieceis pretty typical. There’s no mention of Grisham’s criminal justice activism. Just a lot of scolding, belittling, and berating. Worse, much of it is factually inaccurate.

Balko goes on to point out several inaccuaracies and then takes issue with the usual arguments about child porn.

I don’t disagree that children depicted in child porn videos continue to experience harm as those videos are distributed. I’m also certain that viewing the ISIS beheadings causes trauma to the families of the victims. Yet I’m not ready to start putting people in prison who, for whatever reason, decided to watch those videos. I’m skeptical of the supply and demand argument, particularly when the suspect hasn’t bought or traded any porn. But even if it’s true that merely viewing child porn provides a market for more child porn, it’s also far from clear that harsh sentencing laws are the answer. We’ve been tossing people in prison for viewing child porn for decades now, yet both the United Nations and the Justice Department say that the online supply of child pornography is only growing. [My emphasis.]

Read all of the Balko piece; I covered only part of it. It will be worth your time. 

If only John Grisham had been better-prepared to argue what his good sense--and his sense of justice--knows to be true: Sentences for child porn offenses are too harsh.

the effect of violence on children and the need to do something about it

In an opinion piece in the Omaha World-Herald, Nebraska US Attorney Deborah Gilg talks about the need to recognize how violence affects children. She writes:

More than half of America’s children and teens are in some way exposed to violence in their homes, schools and neighborhoods every year, according to a 2009 U.S. Department of Justice study. Many are victims of violence themselves, but many more will witness violent crimes or share the trauma when their families, school friends or neighborhoods are targets of violence and abuse. Unfortunately, many of these young people will experience violence from multiple sources, compounding the trauma and its effects. 

The consequences of this kind of exposure can be difficult to measure, but the harm is real.

We know that children and teens exposed to violence are more likely to experience anxiety, depression and post-traumatic stress. They are more likely to abuse drugs and alcohol. They are also more likely to fail at school, be absent from school and experience learning difficulties. These children are also more likely to enter into, and stay in, abusive relationships. They are also at higher risk of going on to commit crimes themselves.

It comes as a surprise to find that I agree so strongly with a US Attorney. Witnessing violence or being in the middle of it can have long-lasting effects on children. We should do more to protect children from violence.

A good place to start for all of us is by listening to young people and being engaged in their lives. 

Well, now...that seems a tepid approach to the problem she describes. Wait, though. She has more:

If you’re interested in learning more about the effects of violence on children, the U.S. Department of Justice has produced a video series Through Our Eyes: Children, Violence, and Trauma, available at www.ovc.gov/pubs/ThroughOurEyes/index.html. The DOJ also has launched the Defending Childhood initiative to address the exposure of America’s children to violence as victims and as witnesses.

A video? I would have preferred a more robust response but she is a busy woman. Maybe she doesn't have time to think of more effective ways to lessen the violence that surrounds children. If it isn't too presumptuous of me to think that I can help, I came up with a few ideas. Maybe she can use her powerful voice as US Attorney to promote ideas that would have a more immediate impact on reducing violence than, say, a video.

Stop shooting the family dog. When I was small, I witnessed a neighbor drive over and kill one of our dogs. It was an unfortunate accident but it was a terrible thing for a small child to see. Imagine how terrifying it must be for children to see a law enforcement officer--someone who is supposed to protect and serve--shoot their family dog. 

Stop sending SWAT teams into homes where children are present when that level of force is not necessary. People, including the children, have been hurt and killed in those raids. Watch this video of a SWAT raid in Columbia MO and try to imagine being a child in that home. Radley Balko estimates law enforcement agencies carry out over 100 SWAT raids every day across the country. How many children are affected by violence in their homes perpetrated by law enforcement?

Stop putting so many people in prison. The United States has 2.2 million prison inmates. According to Families Against Mandatory Minimums (famm.org), one in 28 children have a parent in prison. This doesn't count the kids who have a sibling or other family member in prison. How does that affect children? 

Stop relying on mandatory minimum sentences to push a defendant into taking a plea agreement and start proving your cases in court. Introducing mandatory minimum sentences has increased sentence length even for crimes that do not carry a mandatory minimum. Tearing families apart is traumatic for all family members. Tearing them apart for longer than necessary is cruel. 

Children in homes with a drastically reduced income, children with a parent struggling to be everything to everyone--prison spouse, mother and father--in the midst of his or her own grief, children grieving for the family member in prison, children unable to visit the prison because distance and expense are too great...these children suffer a violence that the US Attorney does not address. 

questioning child pornography laws

It isn't enough to sit back and assume that those making the decisions about law and punishment are doing it effectively. Thinking citizens must question and they do. Arguments about effective laws and proper consequences are a permanent fixture in our national discourse.

There is a robust debate about the laws governing copyrights. The death penalty continues to generate controversy because people have such strong opinions about it. Immigration law inflames opinions on both sides of the issue. Nearly everyone has a firm idea about whether abortion should be legal or not. People feel strongly about whether red light cameras are a good way to stop people from running red lights.

Examine the state of the justice system to see if it does more harm than good. Should X be against the law? Should Y be the punishment for breaking the law? These are fair questions.

These are the questions I ask about child pornography laws. Questioning child pornography laws does not say child porn is acceptable any more than questioning drug laws says it is acceptable for someone to use cocaine.

When Congress questioned the disparity between sentences for powder cocaine offenses and crack cocaine offenses and then took action to lessen the disparity, they were not approving the use of cocaine in any form.

It makes sense to look at drug laws and consider carefully whether those laws and those consequences are doing anything to diminish the use of illegal drugs. Our prisons are full of people convicted of drug charges and each inmate costs us around $26,000 a year to house. Families and whole neighborhoods are torn apart because so many people are doing time or have done time because of drug charges. Gang violence flourishes because gangs rule the underworld where the drug industry operates. After spending $51 billion annually to combat illegal drug use, illegal drugs remain readily available.

The United States is headed toward the same wild spending to prevent something equally impossible to control with laws: availability of child pornography.

Why is child porn illegal? If it is illegal because we think the laws will stop people from looking at child porn, we would see decreasing numbers of child porn convicts instead of increasing.

If it is illegal because the person looking at a photo harms the person in the photo, photos of other crimes would cause distress worthy of prison, too.

If it is illegal because the idea of someone using child porn is so appalling that we want to punish that person for doing something abhorrent, we are formulating laws based on emotion instead of reason.

It is hard not to react emotionally to the thought of images that involve very small children or images of violent crimes. Images that a 17-year-old might send to a 19-year-old boyfriend or girlfriend, however, rarely enrage people. People generally think the teen was foolish and would agree a prison sentence is not warranted and yet those images are considered child pornography, too.

In the movie Crazy, Stupid Love, a high school girl takes naked pictures of herself to send to a an older man. The photos are intercepted by the the girl's mother and much hilarity ensues. The audience finds it funny to think of the girl doing such a foolish thing and they find the parents' horrified reactions funny.

In real life, the parents could go to prison for possessing those photos of their daughter. In real life, the daughter could end up on the sex offender registry for producing child pornography.

Is that really what we want the laws to do? This is a question worth discussing.

If someone goes to a counselor and asks for help to stay away from child porn, the counselor is mandated to report that person to law enforcement. Is this what we want the laws to do? Wouldn't it be better to encourage child porn users to avoid using child porn and let them get help to do that? It would certainly save taxpayer money to keep them out of prison.

If the goal is to diminish the availability of child pornography, laws prohibiting child porn don't work. That much is clear. No matter how many people are incarcerated for possessing, receiving, or distributing child porn images, the images are still there. Again: Why are the images illegal? What good does the prohibition do?

Prohibiting the images does not prevent child sexual abuse.

Some say that punishment is reason enough to prohibit the images but many--including federal judges who are bound by the mandatory minimum sentences--think the sentences are too long.

On one side of the debate, many federal judges and public defenders say repeated moves by Congress to toughen the penalties over the past 25 years have badly skewed the guidelines, to the point where offenders who possess and distribute child pornography can go to prison for longer than those who actually rape or sexually abuse a child. In a 2010 survey of federal judges by the Sentencing Commission, about 70 percent said the proposed ranges of sentences for possession and receipt of child pornography were too high. Demonstrating their displeasure, federal judges issued child porn sentences below the guidelines 45 percent of the time in 2010, more than double the rate for all other crimes. [My emphasis.]

If we incarcerate people for doing something society abhors--looking at child porn--are we making it easier or harder for those people to rejoin society and its norms? Incarceration isolates. The sex offender registry isolates. Homeless, unemployed offenders are not safer than offenders who have homes and jobs. Do we want offenders to accept societal norms or do we want to encourage them to reject those norms?

Child pornography laws do not diminish the supply of child pornography, do not reduce the incidence of child sexual abuse, do not reduce the number of viewers but only satisfy an emotional need to convey strong disapproval...that approach to lawmaking will not be limited only to child pornography.

What will be the next activity that needs strong disapproval? Will those laws do any good or will they simply fill our prisons as the child porn laws do?

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.

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.

speak up; speak out

My Christmas gift to you: a call for common sense. 

In 2006, Congressman Robert Scott of Virginia begged Congress to think carefully before the vote on the Adam Walsh Act.

[T]he crimes committed against the children named in the bill, those not named, and the suffering of their families is a tragedy for all of us, yet this does not release us from the responsibility to legislate on a sound and reasoned basis. I believe the situation is serious and grave enough to warrant a bill that is based on approaches that have been proven to reduce this scourge in our society, not on sound bites that will merely pander to our emotions.

You already know that pandering to our emotions carried the vote. Nevertheless, it is refreshing to hear his words even years later.

Now, with no more basis than we had before, just the name of the crime and the continuing political appeal of appearing tough on sex offenders, we are again greatly increasing penalties with more death penalties and increased mandatory minimums, including more mandatory minimums for teenagers having consensual sex. ...

 Rather than taking such cases [teenagers having consensual sex] out of the bill, we are told that we should simply trust the prosecutor.

He mocks the idea that mandatory minimums are a good idea because mandatory minimums require blindly trusting the prosecutor.

Don't trust the Sentencing Commission's discretion to set guidelines designed to reflect what sentence should be based on the facts and circumstances of the case or the background and role of the offender, rather than simply the name of the case, the name of the provision. And don't trust judges to look at the facts and circumstances of the case, the offender's role and background and guidelines to arrive at an appropriate sentence after hearing all of the evidence at trial. Take the discretion away from these officials and trust prosecutors to decide when to ignore law requiring a 10-year mandatory minimum sentence. And trust there are no prosecutors who can be affected by issues such as local political influences.

He points out the obvious:

The problem with mandatory minimum sentences is that they defy common sense. If you deserve the mandatory minimum, you can get it. If it violates common sense, you have to get it anyway. 

Congressman Scott made sense. Stopping to consider how the Adam Walsh Act, once enacted, would play out could have prevented a lot of heartache in the years since. Instead, Congress stuck its collective fingers in its collective ears and passed the Adam Walsh Act.

The good news is that Congressman Scott spoke out. One of these days, another Congressman or Senator will have the courage to speak out on behalf of common sense. Perhaps more than one and perhaps more than one at a time. 

Senators Rand Paul and Patrick Leahy have proposed legislation that would reduce the impact of mandatory minimum sentencing, an important step in the right direction.

In England, something even more spectacular happened. 

Helen Reece, a reader in law at the London School of Economics, called on Theresa May, the Home Secretary, to relax rules which automatically ban sex offenders from caring for children, saying that this could breach their human rights.

We must continue to speak out. You never know when something we say will prove to be the impetus for real change. 

Former offenders who speak up at city council meetings to protest residency restrictions, who speak to state legislators about sex offender laws, who explain to neighbors the effects of the sex offender registry--those former offenders set great examples of courage for the rest of us.

They are to be admired and emulated. Speak out and be heard. 

rand paul wants to give judges a way to ignore mandatory minimum sentences

Exciting to see Rand Paul doing something to lessen the impact of mandatory minimum sentences. Heck, it's exciting to see someone in the Senate acknowledging that there is a problem.

Judges will tell you that current federal sentencing laws — known as mandatory minimums — don’t actually do anything to keep us safer. In fact, judges will tell you that mandatory minimums do much harm to taxpayers and to individuals, who may have their lives ruined for a simple mistake or minor lapse of judgment. 

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington’s habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

He focuses on how mandatory minimums affect drug offenses because so many people in prison are there on for that reason.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right. 

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion. 

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Prosecutors use mandatory minimums to force a defendant to accept a plea agreement. The plea agreement means the case avoids trial and the prosecutor avoids having to prove the case in court.

It would be best to abolish mandatory minimum sentences and this bill wouldn't do that, though it is an encouraging start.

child porn sentences now included on FAMM site

Families Against Mandatory Minimums (FAMM) has done good work focusing on the problems presented by mandatory minimum sentencing. When I first found FAMM, there was no mention of child pornography charges on their site. Evidently I wasn't the only one asking them to change that: FAMM now has a page about mandatory minimum sentencing for child porn charges.

Penalties for child pornography offenses have skyrocketed in recent years. Congress has increased statutory penalties and issued directives to the U.S. Sentencing Commission to increase the guideline sentences.  The result? In 1997, child pornography offenders received a mean sentence of 20.59 months. In 2010, the mean sentence grew to 118 months. This change represents a 500 percent increase in the mean sentence imposed for this class of offenders in just 14 years. 

The rapid increase in sentence length, driven mostly by Congress and not empirical evidence, has led judges to depart form the guidelines at an increasing rate. Some judges have also expressed concern that not all offenders are equally culpable and therefore do not deserve the harsh one-size-fits-all penalties that usually apply. (My emphasis.) 

Thank you, FAMM, for including families like mine in your cause. 

Update: Changed "child porn charges" to "child porn sentences" in the heading.