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A Pivotal Season For Justice, Or Just More Talk?

By Ted Gest

Will this Fall prove to be a pivotal one for criminal justice in the United States, or just another flurry of talk with little decisive action?

Yesterday, the Senate Judiciary Committee advanced its most significant bill in years on federal crime, one that could roll back many categories of mandatory sentences that have helped pack prisons and strain the Justice Department's budget.

A few hours later, President Barack Obama welcomed to the White House a new group of police chiefs and prosecutors who have vowed to support  steps that would reduce mass incarceration. Next week, as part of a national tour on justice issues, the President will address the largest law enforcement organization, the International Association of Chiefs of Police (IACP).

His speech promises to be far different from a presidential address exactly 21 years ago this month to the same group. At that time, President Bill Clinton sought the police chiefs' support for a massive federal crime bill that would bring more police officers, prison cells, "three strikes and you're out" penalties, and capital punishment.

Now, crime rates are much lower, violence isn't as big a political issue as it was in the early 1990s, Washington has less money to spend, and Clinton has expressed regret for parts of the law he championed.

Based on what Obama said yesterday and in his weekly address last weekend, the first chief executive to visit federal prisoners will ask the police chiefs for a more balanced approach that pays as much attention to the lives of those who end up behind bars as the nation has to the process of locking them up.

He'll likely get a good reception when he meets the chiefs in his home town of Chicago, but how far will they really go to support his ideas?

The city's Police Commissioner, Garry McCarthy, will enthusiastically back Obama. McCarthy is co-chair of the new Law Enforcement Leaders to Reduce Crime & Incarceration. "Good crime control policy does not involve arresting and imprisoning masses of people," McCarthy said this week.

On Wednesday, he declared that the new movement among law enforcers doesn't spell the end of "broken windows" policing, which calls for officers to address many minor offenses, but rather to concentrate on "locking up the right people for the right reasons."

Yet the IACP, although it sent a representative to take part in the new organization's initial meetings, has yet to endorse its principles, a spokesperson told The Crime Report.

Prosecutors, many of them elected on get-tough-on-crime platforms, have been blamed for many of the policies that have led to mass incarceration. Their main organization, the National District Attorneys Association, also took part in Law Enforcement Leaders' meetings this week but has not formally backed the new organization either.

Many district attorneys apparently aren't comfortable calling for the end of mandatory minimum sentences, believing they are appropriate for many "career criminals."

One of the new organization's main principles is that police and prosecutors "should divert people with mental health and drug addiction issues away from arrest, prosecution and imprisonment and instead into proper treatment."

It sounds good but how should the principle be applied in specific cases?

New York City Police Commissioner William Bratton was supposed to be a headliner at this week's criminal justice events in Washington, D.C., surrounding the new organization.

He couldn't make it because one of his officers was killed this week, allegedly by a man with a long rap sheet. Bratton and his boss, Mayor Bill de Blasio, denounced a judge for having released the suspect to one of the diversion programs that the new Law Enforcement Leaders group favors.

That is one of the big challenges that faces criminal justice reformers now. Violent crime totals in many big cities are rising, not to the levels that faced Bill Clinton in the 1990s, but enough to give some pause about how far current proposals to change the system should go.

This week, testifying to the Senate Judiciary Committee on the federal sentencing bill, Heather Mac Donald of the Manhattan Institute in New York City said that, "With pedestrian stops, criminal summons, and arrests falling precipitously in urban areas, criminals are becoming emboldened.  While I do not think that the current crime increase is a result of previous changes in federal sentencing policy, it behooves the government to tread cautiously in making further changes."

Her views may have more resonance in the more conservative House of Representatives. There, departing speaker John Boehner favored some kind of justice reform, but it's not clear in the current turmoil over his successor where the crime issue will end up.

Advocates contend that just the fact that issues like "overcriminalization" and long prison sentences are being talked about seriously at high levels of government is promising.

And it's indisputable that many states have adjusted their punishment systems and improved their prisons, whether motivated by economic issues, lawsuits, or research showing what works in preventing crime.

How legislative bodies nationwide, as well as police chiefs, prosecutors and other key actors in the justice system, act in the coming election year may tell the story of whether the U.S. will make significant changes in criminal justice or will suffice with a few token "reforms."

Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. He welcomes your comments.

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What We Need to Know About Domestic Violence

By Carol Corden

In New York City on any given night, almost 15,000 adults and children are homeless due to abuse by an intimate partner. Since October is National Domestic Violence Awareness Month and November is National Homelessness Awareness Month, it’s an ideal time to reflect upon the connection between domestic violence and homelessness.

Family homelessness is a growing problem nationwide—with more families living doubled up, in cars and vans, motels, and shelters, and a significant portion of the family homeless population is comprised of domestic violence victims.  A November 2014 report by the New York City Independent Budget office identified “domestic violence” as second only to “evictions” as a generator of family homelessness.  

Homelessness and domestic violence together exact a huge cost on our society.

Homeless shelters cost significantly more than permanent housing without providing any of the same benefits to their users. Homeless individuals and domestic violence victims are more likely to interact with the police, the criminal justice system, and hospital emergency rooms.

Homeless children, meanwhile, are less likely to attend school or to receive consistent medical care and are more likely to have physical and mental health problems. Because of the dual stigmas of poverty and homelessness, they are less likely to realize their potential as adults and more likely to continue the cycle of poverty. Children who have been exposed to domestic violence have a greater probability of becoming batterers or victims of abuse as adults.

While crisis shelter is important, it is not a long-term solution to the problems facing low-income survivors and their children.

In New York City, which has one of the largest specialized shelter systems for domestic violence survivors, far too many victims find themselves homeless and still at risk of abuse after a relatively short shelter stay—a discouraging outcome given the city’s significant investment in shelters. Many victims and their children find themselves doubled up with relatives and friends, seeking entrance to the general homeless system, or back with their batterers.

Permanent housing is the critical need that must be addressed if low income survivors and their families are to achieve long-term stability and safety.

For survivors with some economic resources or with the capability to become self-supporting, rapid rehousing may be the most cost-efficient and beneficial way for them to leave a dangerous situation. The U.S. Department of Housing and Urban Development has recognized rapid rehousing as an important tool for preventing or reducing homelessness. Providing survivors with assistance—including short-term rental subsidies—to find and qualify for existing affordable housing is a model that has been implemented in several parts of the country with positive results.

The success of this model depends upon linkages to landlords who have affordable housing and are willing to accept applicants, a mechanism for pre-screening and referring applicants, and the availability of voluntary support services once applicants are placed in housing.

For many homeless low-income domestic violence survivors, most of whom have children, success in permanent housing will require access to on-site services to help them remain stable and violence-free in their housing. Survivors often have never lived on their own, are socially isolated, and are still struggling with the trauma of abuse—as are their children.

Maintaining permanent housing—always a challenge for low-income households—is even more difficult for previously homeless victims of domestic violence who, after a short stay in shelter, find themselves in a new section of the city with no social network, while still involved with court cases and child custody issues.

Supportive housing—permanent housing with on-site services—has been successfully used for over 20 years to help chronically homeless individuals with disabling medical conditions remain stable in permanent housing. While the cost of providing intensive on-site services is high, advocates of this model have successfully argued that supportive housing is much less expensive than the cost to the public of homeless individuals who drain resources from emergency rooms, the police, the criminal justice system, and homeless shelters.

Supportive housing can be tailored to address the wide range of issues that victims of domestic violence confront.

An example of what works is the affordable rental housing provided by my organization, the New Destiny Housing Corporation, a New York City nonprofit that works to end the cycle of violence for low-income families at risk of homelessness and domestic violence by connecting them to safe, permanent housing and services. Since 1994, Destiny has developed ten permanent housing projects with units set aside for homeless domestic violence victims and their children. The essential elements of our service-enriched housing model can easily be replicated elsewhere.

They include:

  • A mix of populations—homeless domestic violence survivors and individuals and families from the general population—that does not stigmatize survivors and contributes to a non-institutional environment;
  •  Voluntary services that are client-centered and adapted to the needs of individuals and families who have experienced domestic violence;
  • A focus on housing stability, safety, and rebuilding social networks; and
  • Flexibility in adjusting services as needs change over time.

Given the diversity among victims of abuse, no single housing type will work for all homeless domestic violence survivors.

Rental subsidies, set-asides in public housing and in publicly funded new construction, and supportive housing are all necessary to reduce homelessness caused by domestic violence.

But there should be little doubt that permanent housing linked to voluntary supports remains the key service that homeless domestic violence survivors and their children need in order to move beyond crisis to long-term stability and security.

Carol Corden is Executive Director of New Destiny Housing Corporation in New York City. 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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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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How ‘Sloppy’ Fire Science Sends Innocents to Prison

By Paul Bieber

For George Souliotes, this 4th of July was an Independence Day like no other.  It was his first full day of freedom, after 16 years behind bars in California for crimes he did not commit.  Seventeen hundred miles away in Texas, Ed Graf spent his 4th of July in the same manner he has for the past 27 years—an innocent man confined in a state prison.  His celebration of freedom will have to wait.

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New Hope for Victims of Crime

By Mai Fernandez

“Vision 21: Transforming Victim Services,” is a not only a sweeping, ambitious achievement but a call to action for the victim services field.

Only once before in our history (with OVC’s New Directions from the Field: Victims’ Rights and Services for the 21st Century in 1998) has the field so thoroughly assessed its status and recommended steps to advance its work. Vision 21 revisits the 1998 recommendations, evaluates our progress, and creates a detailed blueprint for transforming victim services in the decades ahead.

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After Newtown: Dealing With the Grief

By Mai Fernandez

Right now, the nation is rightly focused on the victims’ families. News reports have paid tribute to the six courageous teachers who died trying to save the children in their care.  We have also seen touching accounts of the twenty young children who tragically lost their lives. Such attention to the victims, rare in so many crimes, sheds a spotlight on the impact of all homicides.

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