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The Pope’s “European” Approach to Criminal Justice

By Saska Cvetkovska

When he addressed the United Nations during his visit to the U.S. last month, Pope Francis touched on many of the issues he has put high on his agenda elsewhere—especially in his visits to European nations.

Speaking to the European Union parliament last year, for example, he discussed the challenges posed by the huge migrant flows from the Middle East, the struggle against poverty and inequality, and the crisis in human values.

But in the U.S., he spent time on criminal justice—an issue he has hardly mentioned in other  papal visits. Speaking to the U.S. Congress, he condemned the use of the death penalty and, in a visit to a Philadelphia jail, he called for greater attention to the rehabilitation of prisoners.

The difference in focus—to a European like myself—was hard to miss.

There’s a good reason why criminal justice has never been part of the Pope’s homilies in Western Europe. 

The death penalty, for example, is abolished in every European country—with the exception of Belarus. Russia put the death penalty under moratorium in 1996, with an act signed by former President Boris Yeltsin. The last Russian execution happened that year.

The European Union has one of the strongest positions among the global community against the capital punishment.  No nation can enter the EU unless it strikes capital punishment from its criminal code. The EU’s anti-capital punishment position was the first human rights guideline adopted by the European Council in 1998.

Things weren’t always so clear-cut in Europe.  Although bans on capital punishment were introduced in some regions as early as the 18th century (Tuscany in 1748), during the interwar years the death penalty was applied widely by fascist regimes. After World War 2, however, a continent that was emotionally and physically damaged no longer wanted the state to be an executioner. By the middle of the last century, nearly all Western European countries had abolished the death penalty—and they were soon followed by the former Communist satellites in eastern Europe.

As for prisons, while Europeans and Americans agree in principle that they serve as tools for ensuring the protection of society, European policies are dramatically different.

The figures make it clear. According to the U.S. Bureau of Justice Statistics, 716 Americans were incarcerated for every 100,000 people in 2012.  Most European nations come nowhere close. According to EUROSTAT (the European Union Statistics Agency), the EU-28 average stood at 128 prisoners per 100,000.

In many countries it is much lower. In the Netherlands, for example, the incarceration rate is around ten times less than the U.S.: 76 prisoners per 100,000 in 2013,  according  to the  UK-based International Center for Prison Studies.

The Dutch Ministry of Justice announced in 2014  plans to close 19 prisons because of  the lack of prisoners, and the Dutch have taken their entrepreneurial spirit a step further by renting some of their empty cells to other European countries, such as Belgium, that have a shortage of prison space—earning millions of euros for the “service.”

(At the same time, the number of crimes recorded in the Netherlands declined by 35 per cent between 2005 and 2012.)

The Dutch are not “soft” on crime, as they might say in the U.S. But their criminal justice system is focused on rehabilitation.  Offenders convicted of less serious crimes can choose electronic tagging instead of incarceration, which enables them to work.

Many minor crimes are handled with fines adjusted to income. A similar approach has been adapted in Germany.

German prison conditions would sound odd to any American. John Jay College President Jeremy Travis and Nick Turner, head of the Vera Institute of Justice, wrote the following in a recent New York Times Op Ed essay after they participated in a tour of the German prison system:

The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers. They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.

There is nothing special about the German approach. You can see similar scenes even in the former Communist countries of the Balkans, as I found when I visited a prison in Slovenia during research on a story for the Macedonian TV magazine “Eurozoom.”

A few critics say some countries have gone too far. A few years ago, photos of Norwegian prisoners relaxing on a lakefront beach in Norway triggered accusations that offenders were living in “luxury.” Those prisoners, in any case, were closely guarded.

But let’s put aside the cozy furniture, the beaches and the hot showers. The key difference in the European approach is the emphasis on rehabilitation and re-socialization. Most of Europe’s correctional systems offer prisoners opportunities to study, to work, to train, and to learn new skills or improve old ones.

There is still plenty to criticize. Not every state in Europe has postcard prisons. While our homicide rates are low in Macedonia, we struggle with the inhuman practices that sometimes lead to torture in our prisons.

It might be our communist past or our uncertain future, but in my career in journalism I have lost count of the number of articles I’ve written on the abuses that still exist. When my own country, Macedonia, became a candidate country for membership in the EU in 2005, we had to  introduce serious reforms in our justice system.

We’re still a long way from fulfilling the human rights principles that the Pope called on us to observe.

But we are also a long way from the U.S. approach. Even as I am impressed by the efforts underway here to focus on rehabilitation, and to close prisons, I believe Americans could take some lessons from Europe in this regard.

Many Americans argue that the situations are very different, and even reformers concede that reducing prison populations here will require some tough choices.

The discussion has preoccupied U.S. criminologists, legislators and advocates. But only the emergence of a popular consensus to make those hard choices—-as there has been in Europe—will make reform a reality.

It may take an outsider like the Pope to encourage more ordinary Americans to go outside their comfort zone on criminal justice issues—just as he has pushed Europeans to overcome their prejudices and stereotypes about migrants.

“This time in your life can only have one purpose,” he told prisoners at the Philadelphia jail. “To give you a hand in getting back on the right road, to give you a hand to help you rejoin society.”

Europeans have long since accepted the point. Will Americans?

Saska Cvetkovska is an investigative journalist from Skopje, Macedonia. She is currently working with the Center on Media, Crime and Justice at John Jay College on a four-month IREX journalist fellowship. She welcomes comments from readers.

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When Death Comes Later, Can a Murder Charge Stick?

By Robin L. Barton

Suppose an individual attacks a person, who’s seriously injured but doesn’t die. The individual may initially be charged with aggravated assault or attempted murder. If the victim later dies from his injuries, the prosecution may then charge the defendant with murder or manslaughter, depending on the circumstances.

In typical cases, the length of time between the defendant’s criminal actions and the victim’s subsequent death isn’t very long, ranging from hours or days to perhaps weeks.

But what if the victim of an assault doesn’t die until years later? Is it still legal to charge the defendant with murder at that time?

This issue recently arose after the death of James Brady. In 1982, Brady, the White House press secretary at the time, was shot in the head and seriously wounded during  John Hinckley Jr.’s attempt to assassinate President Ronald Reagan.

Hinckley was found not guilty by reason of insanity of federal and District of Columbia charges, including attempted assassination of the President of the United States, attempted murder, assault and weapons charges. He remains a patient in a mental hospital in Washington, DC.

After Brady passed away on Aug. 4, 2014, the Virginia medical examiner ruled his death a homicide, tying the cause of death to the gunshot wound he suffered more than 30 years earlier.

In January 2015, federal prosecutors announced that they wouldn’t pursue new homicide charges against Hinckley. U.S. Attorney Ronald Machen said that Hinckley wouldn’t be charged partly because prosecutors are barred from arguing now that Hinckley was sane at the time of the shootings.

The Brady case is a high-profile example of so-called delayed murder charges—but such cases are more common than you might think.

For example, sometime in the late 1950s, Antonio Ciccarello was stabbed in the back on the streets of New York’s Lower East Side as he was on his way to work. He went to the hospital but never filed a police report.

When Ciccarello died in September 2014, the medical examiner determined that his death was connected to the stabbing more than 50 years ago. The police have opened a homicide investigation and could bring murder charges even after all these years. But with no leads, evidence or witnesses, it’s unlikely that the investigation will lead to any arrests.

It wasn’t that long ago that homicide charges in cases such as these couldn’t be brought.

The common-law rule was that homicide charges could be filed only if the victim died within “a year and a day” from the initial attack. For instance, another reason murder charges weren’t pursed in the Brady case is that D.C. courts before 1987 didn’t allow homicide cases to be brought if the victim died more than a year and a day after the injury.

The year and a day rule was necessary because, at the time, forensic science wasn’t capable of establishing cause of death to any degree of certainty beyond that time frame.

But the rule has been abolished in most states, while others have extended the time limit. California, for instance, has a rebuttable presumption that a killing isn’t a homicide if the death occurs three years and a day after the initial criminal assault.

In July 2001, the U.S. Supreme Court decision in Rogers v. Tennessee upheld that state’s abolishment of the rule. The defendant stabbed James Bowdery, who died some 15 months later. Rogers was convicted of second degree murder. He appealed, arguing that the common law “year and a day rule” barred his conviction.

In affirming Roger’s murder conviction, the Tennessee State Supreme Court abolished the year and a day rule, finding that the reasons for it no longer existed. The U.S. Supreme Court agreed, stating that “as practically every court recently to have considered the rule has noted, advances in medical and related science have so undermined the usefulness of the rule as to render it without question obsolete.”

I appreciate the rationale for permitting delayed homicide charges. After all, if someone shoots, stabs or otherwise injures a person and that person subsequently dies, should it matter if that death occurs an hour, a day, a month or even years later?

But it still troubles me that someone could be prosecuted for murder when there’s a decades-long time gap between the assault and the subsequent death, especially if that person has already pleaded guilty or been convicted and served his or her time.

It’s important to note that double jeopardy doesn’t bar delayed murder charges. That’s because the crime the defendant was initially prosecuted for—assault, attempted murder, etc.—is different from the subsequent homicide charges he faces later when the victim dies.

So are we punishing people for their actions or the results of their actions—no matter how remote?

The criminal law does, in fact, address the issue of remoteness. To prevail in a case of delayed murder charges, the prosecution must connect the dots and prove that the initial assault or injury ultimately resulted in the victim’s subsequent death.

It’s similar to a concept in civil tort law called “proximate cause.” The idea is that if the link between negligent or intentional misconduct and injury to a plaintiff is too attenuated, the defendant won’t be held responsible for it.

Here’s how the concept works: Say I run a red light and hit another vehicle, injuring the other driver’s back. That driver could sue me for damages, arguing that my negligent driving caused his back injury—and he’d likely win.

But suppose the driver must go to physical therapy to recover from the back injury I caused. While at the therapist’s office, the driver sits in a chair that collapses, causing him to fall to the ground and break his arm.

Can he sue me for damages related to his arm injury?

The driver would argue that “but for” the back injury he suffered at my hands, he wouldn’t have needed to go to physical therapy and thus wouldn’t have sat in the defective chair. However, this argument is unlikely to be successful because the link between my negligent driving and the collapsing chair is too remote to hold me responsible for the driver’s broken arm.

The application of the concept of proximate cause to delayed murder charges is discussed in detail in an article in the American Journal of Forensic Medicine & Pathology.

The article explains that in delayed deaths, there typically is an interposing immediate cause, such as pneumonia, which may result from natural diseases as well as due to an injury. So one must link the death to the immediate cause and link the immediate cause to the initial injury.

Both links must be made to a reasonable degree of medical certainty to certify the death as a homicide. However, certification by a medical examiner that the death is a homicide isn’t the same as the determination by a judge or jury that the accused is guilty of a homicide.

Proving beyond a reasonable doubt the connection between an assault and a subsequent death can be difficult, especially if the period of time between these events is lengthy.

For example, in 1966, William J. Barnes shot a Philadelphia police officer, Walter T. Barclay Jr., leaving him paralyzed. Barnes served 20 years in prison for the crime. In 2007, Barclay died from a bladder infection, a condition from which paralyzed individuals commonly suffer.

The district attorney pursued murder charges against Barnes, arguing that he was to blame for the infection that ultimately killed Barclay. But the jury acquitted Barnes. The prosecution had failed to prove that there was an unbroken connection between Barnes’ shooting of Barclay in 1966 and his death 41 years later because Barclay had reinjured his spine several times since the shooting, and hadn’t gotten adequate medical care.

So to answer my own question: Yes, we punish people for the consequences of their actions. But protections have been built into the criminal law to protect defendants from punishment for those consequences that are too remote or disconnected from their criminal conduct to justify additional prosecution.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes comments from readers.


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How to Restore Trust in the Police

By Anne Milgram and Frank Straub

We have seen that the police can be remarkably adept and creative when it comes to fighting crime. What would it look like for law enforcement to deploy that creativity and innovation to build better relationships with the citizens and neighborhoods they serve?

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Police Body Cameras: Will They Really Protect Citizens?

By Roberta Stellick

I recently watched the video of the University of Cincinnati’s officer-involved shooting of Samuel DuBose, which played a role in the officer’s indictment. The incident was one of many over the past year that triggered commentary about how such cameras affect police actions and decision-making.

But discussions about how such cameras will affect the actions and decisions of the citizens the police come into contact with are still hard to find.

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