Reason Magazine - Topics > Criminal Justice

That's Not the Ticket

jsullum@reason.com (Jacob Sullum) — Thu, 15 May 2008 17:25:00 EDT

Whether out of ineptness or malice, Dallas police officers sometimes add charges to a traffic citation after they've handed the driver his copy. The driver finds out after he sends in his fine (for a burned-out tail light, say) and later receives a notice threatening him with arrest if he fails to pay the fine for some other offense he did not even realize he'd been accused of committing (failing to wear a seat belt, say). This is not only irritating but unconstitutional: It violates the Sixth Amendment right "to be informed of the nature and cause of the accusation." Although Dallas Police Chief David Kunkle told The Dallas Morning News "he does not believe the department has a widespread problem" with ex post facto ticket alteration, the truth is he has no way of knowing:

Several things can happen when people discover an officer has cited them with a violation that doesn't appear on their copy of the ticket.
Some complain to the courts and the additional charges are dropped, but don't file complaints with the police department. Some pay the fines without complaint, and some can't prove a ticket has been tampered with because they do not save their copies.
These things make it difficult to assess the scope of such ticket-writing practices...
"We write about 400,000 tickets a year," [Kunkle] said. "We don't know the numbers of these [illegally altered citations] because the tickets are going to look normal to us coming in."
"You're only going to see the problem if you try to look at the copy of the citation the citizen got vs. the one that went to the municipal court system," Chief Kunkle said.

Having received a speeding ticket in Dallas, I can testify that it's nearly impossible to decipher one of the city's citations (or figure out how big your fine is) even if the officer remembers to mark down all the charges. Here's a solution that might address both problems:

The department is also working on a long-range plan to move to a system where tickets are filed electronically, with a printout handed to the ticketed person, thereby limiting the chance of any errors or tampering.

The short term looks less promising:

After receiving inquiries from The News, police officials said they plan to issue a memo reminding officers that altering charges on a citation isn't acceptable.

[Thanks to Michelle Shiinghal for the tip.]

Homicide Conviction for Stillbirth Overturned

jsullum@reason.com (Jacob Sullum) — Thu, 15 May 2008 15:44:00 EDT

In 2001 Regina McKnight, a 24-year-old South Carolina woman, was convicted of "homicide by child abuse" because she was a cocaine user whose baby was stillborn. She received the minimum sentence for that crime, 20 years, with eight years suspended. The conviction, the first of its kind, was outrageous for several reasons:

1) If McKnight had deliberately killed her baby by obtaining an illegal abortion, the maximum sentence she could have received would have been two years.

2) There was no solid evidence that McKnight's baby died as a result of her cocaine use, and even the general connection between cocaine and stillbirth had been called into question.

3) Although tobacco use is also associated with stillbirth, women who smoke during pregnancy are not prosecuted for homicide when their babies die (unless they smoke crack).

This week the South Carolina Supreme Court unanimously overturned McKnight's conviction, finding that her attorney had not made an adequate effort to present evidence on the latter two points and had failed to challenge confusing jury instructions regarding intent. The court said McKnight's lawyer should have introduced into evidence the autopsy report (which mentioned two factors in addition to cocaine as contributing to the baby's death), called an expert witness to question the state's conclusion about the cause of death, and questioned "the adverse and apparently outdated scientific studies propounded by the State's witnesses to find additional support for the State's experts' conclusions that cocaine caused the death of the fetus." The court said the defense should have presented testimony regarding "recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor."

Even if we accept the legal theory behind this prosecution, the government would have to show that cocaine use during pregnancy is independently associated with stillbirth, once confounding variables such as prenatal nutrition, health care, and use of other drugs are taken into account (the sort of problem that pervades the literature on the effects of prenatal cocaine exposure). Even if a general risk has been established, it is very difficult, if not impossible, to show beyond a reasonable doubt that a particular factor caused a particular stillbirth. Finally, the magnitude of the risk matters. If the risk to the fetus posed by the mother's cocaine use is comparable to that posed by various habits for which pregnant women whose babies die are not prosecuted, it's clear the government is irrationally discriminating against cocaine users.

Forget about cocaine for a moment. Do we want to accept, as a general principle, the idea that women who unintentionally cause harm to their fetuses by doing (or failing to do) certain things during pregnancy should not only be held criminally liable but prosecuted for homicide if the fetus does not survive? Such a rule is plainly inconsistent with the law regarding abortion, and it probably would deter many pregnant women from seeking medical care, thereby further endangering them and their babies. More to the point, a stillbirth is not a murder, and a woman who experiences this tragedy, even if her own behavior may have inadvertently contributed to it, deserves sympathy, not prosecution and prison. The fact that anyone needs to state this explicitly speaks volumes about the extent to which anti-drug hysteria has warped our system of justice.

The South Carolina Supreme Court ruling is here. The Drug Policy Alliance's press release on the case is here.

Reforming Forensics

rbalko@reason.com (Radley Balko) — Wed, 14 May 2008 23:09:00 EDT

Fairleigh Dickinson Professor Roger Koppl argues for a significant overhaul of forensics in the U.S. in the current issue of Forbes. Forbes editor William Baldwin was alarmed enough at Koppl's examples of forensics malfeasance to write a sharply-worded editorial of his own.

Koppl wrote a study on forensics reform for the Reason Foundation, and wrote a summary of the study for the November issue of reason. Koppl and I have also co-written an article touching on similar themes that will appear in an upcoming issue of Engage, a journal published by the Federalist Society.

Koppl's work deserves more attention. Controlled studies have shown that the bias forensic experts absorb even by such seemingly innocuous interactions as speaking with police and prosecutors before running tests can have a disturbingly significant impact on their results. This bias exists even in well-intentioned, professional scientists. That's bias that's independent of the more egregious examples such as Dr. Hayne in Mississippi, or cases where prosecutors put ethically dubious pressure on forensics experts to tailor their findings to help the prosecution's case.

Koppl's proposals employ competition, proper incentives, and strategic manipulation of information (that is, separating information about the crime from the analysis of the evidence) to produce more accurate results—results less likely to be influenced by unintended bias, and that also would also go a long way toward uncovering the more egregious offenders. Koppl estimates that the cost of implementing his ideas would be less than the cost of just a couple wrongful convictions.

The most urgent of Koppl's reforms is the idea of giving forensic vouchers to indigent defendants. We need a Gideon v. Wainwright for forensics. Until defendants are given access to their own experts, far too many criminal cases will feature testimony only from state forensic scientists, and all the problems that come with that. When only one guy with letters after his name is testifying, jurors are going to tend to put quite a bit of faith in what he says. We've seen this even when what the expert is saying is absurd, and scoffed at by just about everyone else in the scientific community. When poor defendants aren't given access to their own experts, then, it calls into question whether we really have an adversarial criminal justice system.

Unfortunately, too many people think all of the country's forensic labs work like the ones they see on CSI. I'm not sure it's enough to merely ask that judges take a more aggressive approach to weeding out the frauds. First, judges can be duped, too. Second, even competent, professional forensic scientists can make mistakes. The changes need to be more radical. Another of Koppl's suggested reforms essentially applies the idea of peer review to the criminal forensics process. That would go a long way toward cutting down on mistakes, intentional and otherwise.

The Drug War in Black and White

jsullum@reason.com (Jacob Sullum) — Thu, 08 May 2008 15:29:00 EDT

In yesterday's column, based on a recent report from the New York Civil Liberties Union, I noted how racially skewed the Giuliani-Bloomberg anti-pot crusade has been. Two studies published this week highlight the racially disproportionate impact of the war on drugs generally. Between 1980 and 2003, the Sentencing Project reports, the rate of drug arrests rose by 70 percent among whites and 225 percent among blacks. Looking at data for 34 states, Human Rights Watch finds that "a black man is 11.8 times more likely than a white man to be sent to prison on drug charges, and a black woman is 4.8 times more likely than a white woman."

Drug warriors presumably would argue that such disparities reflect blacks' greater propensity to be involved in the illegal drug trade. Human Rights Watch is a bit evasive on that point. "Although whites commit more drug offenses," it says, "African Americans are arrested and imprisoned on drug charges at much higher rates." Or as the group's senior counsel, Jamie Fellner (who wrote the report), puts it, "Most drug offenders are white, but most of the drug offenders sent to prison are black."

It's true that blacks and whites are about equally likely to use illegal drugs. Whites, being the majority, therefore commit "more drug offenses" and account for "most drug offenders." This comparison is directly relevant in evaluating the fairness of New York City's crackdown on pot smokers: As I noted in my column, blacks are much more likely than whites to be arrested for marijuana possession in New York even though they are no more likely to be pot smokers (and therefore, presumably, no more likely to be carrying small quantities of marijuana in public). But comparable drug use rates do not mean that blacks and whites are equally likely to commit the sort of drug offenses for which people tend to go to prison. For a variety of reasons, including a lack of appealing economic alternatives in inner-city neighborhoods, blacks are disproportionately represented among the low-level drug dealers who are most conspicuous and easiest to catch. That's the main reason they're disproportionately represented among drug offenders who get arrested and go to prison.

If, instead of going after street dealers, police raided homes at random throughout the country, the drug offenders (including users) they nabbed would be more representative of the general population. Needless to say, this is not a change in strategy anyone should be advocating for the sake of racial justice. As Fellner says, "The solution is not to imprison more whites but to radically rethink how to deal with drug abuse and low-level drug offenders."

In a 2006 review of Nate Blakeslee's book about the Tulia, Texas, drug bust scandal, I argued that the drug war's racial impact is just one aspect of a broader injustice.

Addendum: Bill Piper of the Drug Policy Alliance points out that a 2000 Human Rights Watch report cited data on the prevalence of drug dealing among blacks vs. whites:

During the period 1991-1993, SAMHSA [the Substance Abuse and Mental Health Services Administration] included questions about drug selling in the annual NHSDA [National Household Survey on Drug Abuse, which has since been replaced by the National Survey on Drug Use and Health]. Although the responses are best seen as a rough approximation of drug selling activity, they are nonetheless highly suggestive. On average over the three-year period, blacks were 16 percent of admitted sellers and whites were 82 percent.

So it may well be that whites (currently about 80 percent* of the U.S. population) are just as likely to sell drugs as blacks (about 13 percent of the population) yet much less likely to be caught doing it, perhaps because they are less likely to do it frequently (the survey question asked whether the respondents had sold drugs at all in the previous year), less likely to do it in public, and/or less likely to do it in neighborhoods with a heavy police presence.

[*This figure includes Hispanics who do not identify themselves as black or African American.]

Philly Mayors Says Cops Were Wrong in Beating

gillespie@reason.com (Nick Gillespie) — Thu, 08 May 2008 09:22:00 EDT

The actions of a throng of [Philadelphia] police officers shown on a videotape kicking and punching three shooting suspects during a traffic stop were inappropriate, Mayor Michael Nutter said Thursday.
A sergeant and five officers have been removed from street duty as authorities investigated the footage. More than a dozen officers were involved, and Police Commissioner Charles Ramsey said investigators were having the videotape enhanced to try to identify how many were actually striking the suspects. Information will be sent to prosecutors, who will determine whether to press charges.
"It absolutely shows inappropriate behavior," Nutter said in an interview on ABC's "Good Morning America." "There is a way to take people into custody ... and there (are) not acceptable ways of taking people into custody."

More here. The police commissioner has said something similar, and it's refreshing to see authorities not working overtime to defend beserker cops.

Watch the video of the beating and decide for yourself.

And then check out Paulville.org, whose goal is to establish "gated communities containing 100% Ron Paul supporters and or people that live by the ideals of freedom and liberty." (To be honest, I don't know if that means that such police beatings would be totally illegal or an everyday occurence, especially if neighborhood associations embraced the early '90s ideas of Paul advisers/ghostwriters Murray Rothbard and Lew Rockwell [whose takeaway from the police beating of Rodney King was fear of videocameras].)

Tracy Ingle: Another Drug War Outrage

rbalko@reason.com (Radley Balko) — Wed, 07 May 2008 10:45:00 EDT

About a month ago I got a call from a reporter for the Arkansas Times inquiring about my research into paramilitary drug raids. He'd been reporting on a raid in North Little Rock involving a 40-year-old man named Tracy Ingle. When he told me the story over the phone, I was floored, even given all the abuses and mistakes I've reported and read about over the last few years. What makes the case especially egregious is not that the police may have gotten the wrong home, that they shot a man, or that they were covering it up or going silent. We've seen all that before. What's mind-blowing about this one is that they've continued abusing the poor guy, even after it should have been clear for some time now that they made a mistake.

From the outset, it should be noted that Tracy Ingle has had some trouble with the law in the past, though nothing violent, and nothing drug-related. He has had a couple of DWI's, and a citation for failing to appear in court. He apparently also agreed to do some repair work on a friend's car that later turned out to be stolen.

That said, what's happened to him over the last few months is pretty outrageous.

Here's the Arkansas Times piece, which I'd encourage you to read in full. And here's a follow-up interview with North Little Rock Police Chief Danny Bradley about SWAT tactics.

I've since spoken again to the reporter and to Tracy Ingle's sister, Tiffney Forrester, who herself is a former sheriff's deputy. I've also had a chance to review the warrants and return sheets (pdf).

The North Little Rock Police Department wouldn't discuss the case with me.

Here's a quick rundown:

• On January 7, 2008 a paramilitary police unit in North Little Rock, Arkansas conducted a drug raid on Tracy Ingle's home. Ingle says he had fallen asleep for several hours, and was asleep when the raid happened. He awoke when the police took a battering ram to his door. Another team of officers approached form the outside of the house, and shattered the window to his bedroom.

• When he awoke, Ingle says he thought his home was being invaded by armed robbers. He reached for a broken gun, a pretty clear indication that he had no intention of killing anyone, but rather was trying to scare away the intruders. When he grabbed the gun, an officer inside the house fired his weapon. The bullet hit Ingle just above the knee, shattered his thigh bone, and nearly severed his lower leg. When the outside officers heard the shot, they opened up on Ingle, hitting him four more times. According to Ingle's sister, one bullet still rests just above Ingle's heart, and can't be removed.

• Ingle was taken to the hospital, and spent a week-and-a-half in intensive care. He was then removed from intensive care—still in his hospital pajamas—and taken to the North Little Rock police department, where he was questioned for five hours. He was not told he was suspected of a crime, and his family wasn't allowed to speak with him. After the interrogation, he was arrested and transferred to the county jail.

• Ingle spent the next four days in jail. He says he was never given his pain medication or his antibiotics. Though hospital nurses told him to change his bandages and clean his wounds every 4-6 hours, Ingle told the Arkansas Times that jail officials changed them only twice in four days. Ingle's wounds became infected during the time he was in jail.

• Police found no illegal drugs in Ingle's home. They did find a scale, which Ingle's sister tells me was an extra she was given when she worked at a medical testing facility. She used it in her jewelry-making hobby. They also found a bunch of small plastic bags. Again, Ingle's sister says these were part of her business. "I was leaving the country for a while, and I stored a lot of my stuff at his house," she told me. "The scale and bags were mine, and are both common things to have for anyone who makes jewelry." Police also found the broken gun and a broken police scanner.

• From those items, the police charged Ingle with running a drug enterprise. They also charged him with assault, for pointing his broken gun at the police officers who had just barged into his home. The judge set Ingle's bail at $250,000, explaining that it had to be set high because Ingle had engaged in a shootout with police—never mind that Ingle didn't fire a shot. Ingle was able to sell his car to pay a bail bondsman. But with no car, his injuries render him basically immobile. He had to walk two miles on crutches and an infected leg to his hearing last week.

• The police obtained a no-knock warrant for Ingle's home about three weeks prior to the raid. The warrant itself (pdf) reads like boilerplate, with no specific references to Ingle (other than his address), or why he specifically posed a risk to police safety, or of disposing of drugs before coming to answer the door. It mentions no controlled buys. It doesn't even mention an informant. In fact, someone scratched out "crack cocaine" and hand-wrote in "methamphetamine" on the type-written warrant, suggesting a cut, plug, and paste job. The Supreme Court has ruled that police must show case-specific evidence of exigent circumstances in order to be issued a no-knock warrant. The mere fact that it's a drug case isn't enough. The warrant for Ingle's home contains no such specific information.

Many times, information specific to the investigation is contained in the affidavit the investigating officer files for the search warrant, not in the warrant itself. Forrester says she has called the North Little Rock Police Department more than 20 times in an effort to obtain a copy of the affidavits. She says they at first refused to return her phone calls. When she was finally able to speak with a lieutenant, he became angry when she told him she had contacted the media. She then says he told her to "dream on" when she asked for copies of the affidavits.

• According to Forrester, Ingle's neighbor had a direct line of sight into the bedroom, and saw the entire raid. His account initially matched Ingle's. But that changed. "We have a witness, a next door neighbor that saw the entire incident," Forrester told me. "He came forward on his own to give a statement to the family. Police never questioned him until a month or so after the shooting, at my insistence. They kept this neighbor in his home, and questioned him for at least four hours, refusing to let the man's wife come home, of for other people to see him. When the police finished intimidating the man, they told him specifically that 'he did not see what he thought he saw.' The neighbor is now afraid to talk to the media." I have not yet been able to speak with the neighbor.

• Ingle's family was able to put up $1,000 to retain an attorney, but can't afford the extra $6,000 the attorney has asked to represent Ingle. Ingle is therefore still looking for representation. He has no health insurance, and no money to pay for medication, or to continue treatment of his injuries.

• Last week, after the Arkansas Times article appeared, the judge in the case issued a gag order, preventing Ingle and any future attorney he may have from talking to the media about what happened to him. This is puzzling. Before today there had been exactly two articles about this case—not exactly a media circus. It's hard to understand why a gag order was necessary. It's only real purpose is to prevent more people from learning about what's increasingly looking like a railroading. And it's only effect is to lend more support to the possibility that it is, in fact, a cover-up and railroading.

As noted, the police aren't talking. And the prosecutor is now bound by the gag order. Perhaps there's some piece of information damning to Ingle I'm not yet aware of—though it's hard to imagine what that might be.

Barring that, what's happening to Tracy Ingle is pretty outrageous.

UPDATE: The Arkansas Times reports that the gag order request in Ingle's case was withdrawn late yesterday. I don't know that this will make the police or prosecutors any more likely to talk about the case, but if I have time this afternoon, I'll try again to give them a call.

UPDATE II: Several people asked in the comments about donating to Ingle's legal defense. You can now do so directly via PayPal at: http://www.justicefortracy.com.

To Catch a Leaf

jsullum@reason.com (Jacob Sullum) — Wed, 07 May 2008 07:00:00 EDT

In 2001, shortly before Michael Bloomberg became a candidate for mayor of New York, an interviewer asked him if he'd ever smoked marijuana. "You bet I did," he said, "and I enjoyed it."

Yet as mayor, Bloomberg has presided over what a recent report from the New York Civil Liberties Union (NYCLU) calls a "marijuana arrest crusade," seeking to punish pot smokers for an activity he enjoyed with impunity. This little-noticed crackdown, which began under Rudy Giuliani, has disproportionately affected young black and Hispanic men, engendering resentment, distrust of the police, and disrespect for the law.

While marijuana arrests have risen between two- and three-fold nationwide since 1990, the increase in New York has been much more dramatic. "From 1997 to 2006," sociologist Harry Levine and drug policy activist Deborah Small note in the NYCLU report, "the New York City Police Department arrested and jailed more than 353,000 people simply for possessing small amounts of marijuana. This was eleven times more marijuana arrests than in the previous decade."

Based on their analysis of arrest data and their interviews with police, arrestees, and public defenders, Levine and Small conclude that the pot busts are largely a byproduct of the NYPD's aggressive "stop and frisk" tactics. The U.S. Supreme Court has ruled that police may briefly detain people they suspect of involvement in criminal activity and, as a precautionary measure, pat them down for weapons. Taking advantage of this Fourth Amendment loophole, New York City police stopped and frisked people more than half a million times in 2006.

In the vast majority of cases, these stops do not result in arrests. But sometimes people are carrying small amounts of marijuana. Since police cannot legally search for drugs without probable cause, Levine and Small found, they typically trick or intimidate people into revealing their pot, at which point they can be arrested.

Such trickery not only exposes the contraband; it changes the nature of the offense. Under state law merely possessing a small amount of marijuana (up to 25 grams, about seven-eighths of an ounce) is a citable offense similar to a traffic violation. But having marijuana "in public view" is a misdemeanor.

The NYPD makes about 35,000 such arrests each year. Although marijuana possession is either the only or the most serious charge in these cases, the arrestees are nevertheless handcuffed and taken to a police station, where they are fingerprinted and photographed, and they usually spend a night in jail, an uncomfortable, degrading, and often frightening experience.

Contrary to what you might expect, Levine and Small found that people arrested for marijuana possession in New York generally are not smoking pot in public. "Before being approached by the police," they note, "most people arrested for misdemeanor marijuana possession...were actually not guilty of what they were charged with."

Why do police waste time and resources manufacturing crimes? Levine and Small note that busting pot smokers is a relatively safe and easy way to pad arrest figures, which creates the illusion of productivity, and generate overtime pay, a practice known as "collars for dollars."

From the collars' perspective, getting arrested for a trivial, victimless offense, which saddles them with criminal records that can impair their ability to obtain an education and make a living, is humiliating and embittering. It is especially rankling because police seem to be targeting poor black and Hispanic men for treatment that would not be tolerated if it were aimed at affluent white New Yorkers.

Survey data indicate that among 18-to-25-year-olds, the age group where the pot busts are concentrated, whites are more likely than blacks or Hispanics to smoke marijuana. Yet Levine and Small found that in New York blacks and Hispanics are, respectively, five and three times as likely to be arrested for marijuana possession.

For pot smokers caught in the NYPD's dragnet, is Bloomberg's position on marijuana—"I enjoyed it; you'd better not"—hard to accept? You bet it is.

Ancient Aztec Ritual Harshed by Narcs

matt.welch@reason.com (Matt Welch) — Tue, 06 May 2008 17:46:00 EDT

Huge drug bust at San Diego State -- a six-month undercover DEA investigation into seven fraternity houses nets 96 arrests (75 of them students), plus "4 pounds of cocaine, 50 pounds of marijuana, 48 hydroponic marijuana plants, 350 ecstasy pills, psilocybin (mushrooms), 30 vials of hash oil, methamphetamine, various illicit prescription drugs, one shotgun, three semi-automatic pistols, three brass knuckles and $60,000 in cash."

This DEA quote caught my eye:

"Our children are our biggest asset and absent a safe, drug-free learning environment, their chances of succeeding are greatly diminished," said Ralph W. Partridge, special agent in charge of the Drug Enforcement Administration in San Diego. "The university police and SDSU administration are to be commended for their swift actions in confronting the drug use problem on campus."

Funny, I thought that cheap access to frat-boy drugs were the whole point of SDSU.... At any rate, if having illegal narcotics in your post-high school learning environment "greatly diminishe[s]" your chances at success, then California has been doomed to failure since what, 1959? Somehow the state, and its college graduates, manage to muddle through.

More seriously, I always wonder what happens to these guys who are arrested in their early 20s for meeting a sliver of the insatiable undergraduate demand for pot-smoking. I was never any dealer, nor much of a user, but I've known and worked with quite a few perfectly successful people who dealt drugs in college. I have also known a couple who were unlucky (and/or careless) enough to get carted off to jail, but those guys I lost track of. (Though through the magic of Google I see one former mushroom-dealing colleague running a successful business in Texas, so hopefully it all turned out well.)

So I leave the question open to the floor: What ever happened to your drug dealing friend or aquaintance who got arrested in or around college? And by what year in our glorious future will the act of purchasing marijuana be a perfectly legal transaction between consenting adults?

Should Prosecutors Who Withhold Exculpatory Evidence Face Criminal Charges?

rbalko@reason.com (Radley Balko) — Mon, 05 May 2008 12:28:00 EDT

First, have a look at this video, from last night's episode of 60 Minutes:

Brady v. Maryland was the Supreme Court case that made it illegal for prosecutors to withhold exculpatory evidence from defense attorneys. The problem is that there's rarely if ever any punishment for breaking the rule, even when it has led to wrongful convictions and imprisonment.

Dallas County District Attorney Craig Watkins, featured in the above video, is now publicly advocating that prosecutors who knowingly violate the rule (that is, who knowingly break the law) should face criminal charges, not just professional sanctions (which also rarely happen).

"Something should be done," said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. "If the harm is a great harm, yes, it should be criminalized."
Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.
Such ideas could not be more at odds with the win-at-all-costs philosophy that was the hallmark of legendarily hard-line Dallas County District Attorney Henry Wade and, to a lesser extent, of subsequent administrations.
It is rare for a prosecutor to advocate strict penalties for misconduct – even when it's intentional, said Mr. Gershman, a former New York prosecutor. "I couldn't give you five cases in the last 40 years of criminal charges against prosecutors," he said.

The Duke lacrosse case was great in that it brought national attention to the possibilty of wrongful prosecutions and prosecutorial misconduct. But it may have also fostered the misconception that prosecutors like Mike Nifong are routinely punished when they make the same mistakes he made. In truth, it almost never happens. Still, it's fun to watch law-and-order, "the law is the law" prosecutors backpedal when asked why they themselves shouldn't face charges when they violate the law.

Watkins, by the way, is a rock star. Read my interview with him here.

Updates in Mississippi

rbalko@reason.com (Radley Balko) — Mon, 05 May 2008 10:17:00 EDT

A few new items on the Dr. Steven Hayne debacle in Mississippi.

• The Hattiesburg American—Mississippi's second-largest newspaper—asks DAs around south-central Mississippi if they're still using Dr. Steven Hayne to perform autopsies, in spite of the allegations against him to come out over the past several months. Not surprisingly, all of them said they have no problem with Hayne, and plan to keep using him. At this point, I think you could make a pretty good case that continuing to use Hayne amounts to a breach of ethics.

The paper's editorial board was concerned enough about the responses that they fired off a separate editorial denouncing the prosecutors.

This strikes as three ostriches putting their heads in the sand. How can these DA's be at all confident in Hayne's work given the information that has come out about the pathologist?
The DA's have been asked by the Innocence Project to turn over any documents pertaining to Hayne, including official reports on autopsies.
We hope they are complying. They must, if they believe in justice.
Meanwhile, the Legislature has funded $500,000 this year for a state medical examiner. The state has been without one since 1994 and if more of Hayne's work is found to be faulty, the state will have no one but itself to blame.

Again, it's not surprising. If any of these prosecutors were to admit to having reservations about Hayne, they'd have to admit his testimony may have tainted some of their convictions. Additionally, Hattiesburg is in Forest County, Mississippi. That's the home of Dr. Michael West, who was also once coroner of Forest County. The good ol' boy network runs thick in what locals call the "Pine Belt." One of the DAs interviewed for the article, Jon Mark Weathers, used Hayne in at least one civil before he became a prosecutor.

• Another case has surfaced in which Hayne issued a questionable autopsy report. A woman was jailed for more than a year and lost custody of her kids after Hayne determined her infant daughter died of alcohol poisoning. Hayne based that diagnosis on a toxicology report showing the child died with an astonishing blood-alcohol level of 0.4.

Problem is, a review of Hayne's work by Dr. Leroy Riddick of Alabama determined that there were no other signs of alcohol poisoning, and that Hayne had every reason to question the results from the lab. Subsequent tests showed much, much lower blood-alcohol levels, as low as .02. Riddick says the child died of interstitial pneumonia and myocarditis. The mother was to be charged in the death of her son. I'm told that the charges will now likely be dropped.

• Finally, there's more detail on an odd case of swapped bodies in Clarksdale, Mississippi. In that case, a mother who'd had lingering suspicions about the body county officials told her was her daughter's finally succeeded in having the body exhumed and DNA tested. Testing showed the body was not her daughter, and in fact may have been of a different sex. Hayne performed the autopsy, which also had the daughter's height off by half a foot. To be fair, while something clearly went very worng with Mississippi's autopsy system, here, it isn't yet clear if the mistake was Hayne's. It's at least possible that the county coroner mixed up the bodies before delivering them to Hayne.

Oliver Diaz, Jr.

rbalko@reason.com (Radley Balko) — Sun, 04 May 2008 08:50:00 EDT

In Mississippi, state supreme court justices are elected, not appointed. They serve eight-year terms, but can serve multiple terms if they're reelected. Yesterday Associate Justice Oliver Diaz, Jr. announced his plans to run for reelection.

Diaz may face a tough campaign, due in part to the fact that he's one of the more liberal justices on the court. He's also the only justice on the court who seems to give a damn about the sham that is Mississippi's criminal justice system. Diaz was instrumental in building a coalition to throw out Dr. Steven Hayne's absurd two-hands-on-the-gun testimony in the Tyler Edmonds case. My sources in Mississippi tell me the court initially was planning to uphold Hayne's testimony and Edmonds' conviction. Diaz not only succeeded in turning that around for a 8-1 vote for a new trial, he wrote a blistering concurring opinion stating that Dr. Hayne should never testify in Mississippi's courts again (disclosure: he cited my reason article on the Cory Maye case in that opinion). Unfortunately, Diaz wasn't able to convince a majority of his colleagues of his opinion of Dr. Hayne, and so Hayne continues to do the bulk of the state's autopsies.

The other reason Diaz may face an uphill battle for reelection is because several years ago, he was indicted by the Bush Justice Department on public corruption charges. Diaz, a former Republican now backed by Democrats, maintained his innocence throughout the ordeal, refused to plea or resign his seat on the court, and was eventually acquitted on all charges. The Bush Justice Department then indicted him again. And he was acquitted again. His case is now being investigated by Congress to see if it was one of a series of overtly political and questionably meritorious prosecutions of Democratic public officials led by Bush-appointed U.S. attorneys (other prosecutions under investigation include those against former Alabama Gov. Don Siegelman and Pennsylvania medical examiner Cyril Wecht).

One other thing: The federal charges against Diaz stemmed from his relationship with Paul Minor, a plaintiff's attorney in Mississippi who got rich off the tobacco settlement. As Harper's Scott Horton points out, the case against Diaz, Minor, and others was part of a GOP backlash in Mississippi against the rise and enormous influence of trial lawyers in that state. But interestingly, while Diaz is often painted as a friend of the plaintiff's bar, it's worth noting that Dr. Hayne is also a favorite of trial lawyers in Mississippi. Part of Hayne's success stems from the fact that he has managed to win over both the state's prosecutors and the state's trial lawyers (and the county coroners, who often go out of their way to please both). Talk to any medical malpractice defense attorney in Mississippi, for example, and they'll rant about Hayne's absurd testimony in various tort cases for a good ten minutes (I'll have more on this next week).

Diaz's blistering opinion singling out Hayne in the Edmonds case, then, was actually a blow to the state's trial lawyers—the very group for whom the feds and the state's GOP accuse of Diaz of being a shill. His continued presence on the court is important to keep the pressure on the state to do something about Hayne.

It would be unfortunate if South Mississippi's voters were to take Diaz off the bench due to what looks like an overtly political federal prosecution. Right now, at least on criminal justice issues, he's the only justice on the Mississippi Supreme Court who seems to even realize Mississippi has a problem.

New York City's 'Marijuana Arrest Crusade'

jsullum@reason.com (Jacob Sullum) — Wed, 30 Apr 2008 11:36:00 EDT

In an eye-opening new report for the New York Civil Liberties Union (noted by Radley Balko earlier this morning), sociologist Harry G. Levine and drug policy activist Deborah Small call attention to a "marijuana arrest crusade" in New York City that began under Rudy Giuliani and continues under Michael Bloomberg:

From 1997 to 2006, the New York City Police Department arrested and jailed more than 353,000 people simply for possessing small amounts of marijuana. This was eleven times more marijuana arrests than in the previous decade, and ten times more than in the decade before that.

Marijuana arrests have been rising nationwide since the early 1990s, but the increase in New York City has been much more dramatic. Levine and Small say the surge in arrests is largely a byproduct of an aggressive "stop and frisk" program in which police pat down young men they (supposedly) suspect of criminal activity, ostensibly to make sure they're not carrying weapons. The targets of these pat-downs are disproportionately black and Hispanic, and so are the people arrested for marijuana possession. Between 1997 and 2006, blacks, who represent 26 percent of New York's population, accounted for 52 percent of the marijuana arrests; Hispanics, about the same share of the population, accounted for 31 percent of the arrests; and non-Hispanic whites, about 35 percent of the population, accounted for just 15 percent of the arrests. Yet survey data indicate that, if anything, whites smoke pot at higher rates than blacks and Hispanics.

Although New York State decriminalized possession of small amounts of marijuana (less than seven-eighths of an ounce) in 1977, Levine and Small report, New York City marijuana busts typically result in a trip to the police station, fingerprinting, and a night in jail. Instead of charging people who are carrying a little pot with possession, a citable offense simlar to a traffic violation, police typically accuse them of having marijuana "open to view," a misdemeanor, often after tricking or intimidating them into revealing their stash. In the vast majority of cases, the arrestees are not caught smoking pot in public, and the marijuana charge is the most serious offense.

Levine and Small note several incentives that encourage police to hassle pot smokers:

Narcotics and patrol police, their supervisors, and top commanders in the police department benefit from the marijuana possession arrests. The arrests are comparatively safe, allow officers and their supervisors to accrue overtime pay, and produce arrest numbers that show productivity. When needed, commanders can temporarily shift narcotics police off making the misdemeanor possession arrests and assign them to other duties, which provides considerable flexibility. The marijuana arrests are also the most effective means available for obtaining information (including fingerprints, photographs, and potentially DNA samples) from people never before entered in the criminal justice databases.

For the arrestees, by contrast, getting busted is not only humiliating, expensive, inconvenient, and embittering; it gives them a criminal record that can hamper their educational and employment prospects for the rest of their lives.

Jackson's Clarion-Ledger Confronts Dr. Hayne

rbalko@reason.com (Radley Balko) — Mon, 28 Apr 2008 10:40:00 EDT

Over the weekend, Mississippi's largest newspaper confronted controversial medical examiner Dr. Steven Hayne about some of the inconsistencies and inaccuracies in his CV. First, there's the matter of his alleged "board certification." If you'll remember, Hayne told a Jackson TV station last fall that he was board certified in forensic pathology but "couldn't remember" the name of the organization that had certified him. Since then, he's been clinging to an organization called "The American Board of Forensic Pathology," which sounds much like the organization he should have a certification from, but that actually no longer exists.

The American Board of Forensic Pathology sounds official in name but doesn't appear on a list of possible certifications put out by the National Association of Medical Examiners. A Google search for the board turned up only 10 listings.
When the board did exist in the early 1990s, it was administered through a little-known organization, the American Academy of Neurological and Orthopedic Surgeons, whose Web site includes a link to books of Persian poetry written by its chairman.
But in 1995, the academy decided to limit its certification to clinical orthopedic surgery, clinical neurosurgery, neurology and clinical spinal surgery.
All other boards and the certifications the academy offered went away, said Nick Rebel, the academy's executive director.
Hayne said he didn't know the American Board of Forensic Pathology ceased to exist.
But when questioned in a 2004 murder trial if he knew the academy no longer offered board certification in forensic pathology, he replied, "I'm aware of that."
Rebel said no one these days can claim to be "board certified" by the American Board of Forensic Pathology.
Hayne said he believed the board's nonexistence had no effect on his qualifications.

The doctor who proffered the test to Hayne was neurologist, not a forensic pathologist, and was later stripped of his medical license. The article then moves to Hayne's failure to pass the forensic pathology exam of the American Board of Pathology, universally regarded as the only legitimate certifying organization for medical examiners.

This board certified Hayne in anatomical and clinical pathology, but he failed the exam for forensic pathology in 1989. About 80 percent of first-time test takers pass the examination, according to board officials.
Hayne said he failed because he angrily walked out of the exam.
"The questions were absurd, counselor, ludicrous, absolutely absurd," he testified in the 2004 trial. "I convey to the jury the last question, the final straw that broke the camel's back. ... The question was specifically: 'What color is most associated with death?' And it included the color black or white, the color red, the color green.
"In Western civilization, black is associated with death. In the Orient, white is associated with death. Green is a color of decomposition, certainly associated with death. ... Blood is obviously associated with death ... To me, it was just the final absurd question. So I got up, handed my paper to the proctor and said, 'I leave, I quit. I'm not going to answer this type of material.' "
After reading Hayne's version of this event in The Clarion-Ledger, board officials contacted the newspaper.
"As the executive director of the American Board of Pathology I was surprised by Dr. Hayne's description of the 'stupid question' (related to colors associated with funerals) on his forensic pathology examination that caused him to walk out of the exam," Dr. Betsy Bennett said by e-mail. "Dr. Hayne took the forensic pathology examination in 1989. I pulled the text of this examination from our files, and there was no question on that examination that was remotely similar to Dr. Hayne's description."
Hayne responded, "She is flat wrong. She doesn't know what she's talking about."
He said he would stake his reputation and career on that question appearing on the test, saying, "It's like remembering where you were when men landed on the moon."

I would think this would be a pretty easy thing to prove, particularly if copies of the exam are still around. If there's no such question, Hayne's lying, and has been using the "color question" as an excuse for his failing the exam. Of course, even if the question was on the test, it doesn't excuse his misleading statement given thousands of times in court that he's "board certified" in forensic pathology when in fact he failed the exam given by the only organization understood by his colleagues to be the gold standard for certification in the field.

My expose of Hayne for reason here. List of prior articles and blog posts on Hayne here.

Suing the DA

rbalko@reason.com (Radley Balko) — Thu, 24 Apr 2008 12:00:00 EDT

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor.

Goldstein served 24 years before his conviction was thrown out when the main witness against him was shown to have lied. That witness was a lifelong criminal who was given a deal on his own charges in exchange for testimony that Goldstein confessed to him in a jail cell. Goldstein alleges that the district attorney's office that prosecuted the case routinely used the testimony of so-called "jailhouse snitches" prosecutors knew or should have known weren't reliable.

Goldstein's case is unusual because he's not suing the prosecutor who convicted him, but John Van de Camp, the district attorney who supervised that prosecutor. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, causing the U.S. Supreme Court to agree to hear it.

Goldstein's lawsuit stems from federal law 42 U.S.C. 1983, which states that "…[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

But there are exceptions to Section 1983 suits. In the 1976 case Imbler v. Pachtman, the U.S. Supreme Court carved out a wide exception to the law to exempt prosecutors. The Court said common law tradition grants prosecutors have what's known as "absolute immunity" from civil rights suits, meaning that they can't be sued, provided they're acting in their capacity as prosecutors. Few people enjoy such protections in their own line of work (judges have absolute immunity as well).

But this complete shield from accountability is especially problematic when we're talking about prosecutors. It's a job that's already plagued by incentive problems. We tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds.

It's a recipe for abuse.

Generally speaking, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they'll pursue charges. If we hamstring prosecutors into factoring potential lawsuits into determining whom to charge, we run the risk of bringing politics or the wealth and status of the accused into what should be a question of law, context, and propriety (any more than these things are already factor into such decisions, anyway).

But you could make a good case that absolute immunity takes this idea too far. Even police officers are given what's called "qualified immunity" from civil rights suits, which in 1983 the Supreme Court determined meant, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

That sets a hurdle for lawsuits against the police, but not a wall (some would argue that this hurdle is also too high). It might be time to consider applying that standard to prosecutors, too.

But the Goldstein case doesn't even seek to overturn the 1976 decision in Imbler. That would take an act of Congress—and again, perhaps that's something Congress should consider.

Instead, the suit targets Mr. Van de Kamp as the manager of the district attorney's office. It says that he's guilty of negligently overseeing his office, and allowing his subordinates to use unreliable, uncorroborated testimony from prison inmates.

Given the current makeup of the Supreme Court, I'd be pleasantly surprised if they allowed Goldstein's lawsuit to go forward. But they should.

More broadly, we need to reconsider the idea of absolute immunity for prosecutors.

There's plenty of evidence that this shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in reason magazine quite similar to the Goldstein case. In 2006, Church Point, Louisiana resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants.

Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses — who were offered time off from their own sentences in exchange for their testimony — claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

U.S. Attorney Donald Washington's office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

Ann Colomb is now suing Washington's office. Whether her suit will be permitted to go forward may depend on what the Supreme Court does in the Goldstein case. As it stands, the family is broke from their criminal case. Though they were cleared of all charges, the government has yet to even apologize to them, much less compensate them for the five years they were under suspicion, of the four months they served in prison.

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed—if uncomfortable—sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

Radley Balko is a senior editor for reason. A version of this article originally appeared at FoxNews.com.

Criminal Justice Roundup

rbalko@reason.com (Radley Balko) — Wed, 23 Apr 2008 17:03:00 EDT

The bad....

• The Supreme Court unanimously rules that evidence seized during arrests that are illegal under state law can still be used at trial.
• The city of Memphis is seizing the automobiles of suspected Johns. Not convicted, just suspected.
• The Ninth Circuit becomes the second federal appeals court to allow federal agents to snoop around in the laptops of people entering the country, even without probable cause that a crime has been committed.

The good...

• Argentina decriminalizes drug consumption. I'm trying to remember the last time the government of Argentina got anything right.
• Alaska appeals court says it will no longer tolerate "implicitly coercive" searches during traffic stops.
• Virginia's Supreme Court tosses out two drug cases in which police conducted searches without probable cause.

The Long and the Short of Prison Sentences

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 15:07:00 EDT

New York Times legal writer Adam Liptak digs a little deeper into the story of America's astonishingly high incarceration rate and finds that the main explanation is longer sentences, as opposed to more frequent sentences or a higher crime rate:

People who commit nonviolent crimes in the rest of the world are less likely to receive prison time and certainly less likely to receive long sentences. The United States is, for instance, the only advanced country that incarcerates people for minor property crimes like passing bad checks...
Efforts to combat illegal drugs play a major role in explaining long prison sentences in the United States as well. In 1980, there were about 40,000 people in American jails and prisons for drug crimes. These days, there are almost 500,000.
Those figures have drawn contempt from European critics. "The U.S. pursues the war on drugs with an ignorant fanaticism," said [prison researcher Vivien] Stern of King's College....
It is the length of sentences that truly distinguishes American prison policy. Indeed, the mere number of sentences imposed here would not place the United States at the top of the incarceration lists. If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher.

Burglars in the United States serve an average of 16 months in prison, according to Mr. Mauer, compared with 5 months in Canada and 7 months in England.

The longer U.S. sentences are due largely to legislators who pass mandatory minimum statutes and judges (frequently elected) who err on the side of severity. Both groups are responding to a perceived public demand for tough-on-crime policies.

While any sentence for nonpredatory "criminals" such as drug offenders is too long, it's less clear whether U.S. penalties for crimes such as burglary and robbery are excessive. As Liptak notes, "there is little question that the high incarceration rate here has helped drive down crime," whether through incapacitation, deterrence, or both. Liptak quotes former federal judge Paul G. Cassell, a conspicuous critic of draconian drug sentences, who writes that "a good case can be made that fewer Americans are now being victimized" as a result of harsher sentences. Cassell says the evidence "should give one pause before too quickly concluding that European sentences are appropriate."

In a column last month, I discussed the Pew Center's recent report on incarceration rates, upon which Liptak draws heavily. Several years ago in reason, I noted criminologist John DiIulio's acknowledgment that the cost-effectiveness of incarceration depends on the system's ability to distinguish between predatory criminals and "drug-only" offenders.

Think of It As a Lifectomy

jsullum@reason.com (Jacob Sullum) — Wed, 23 Apr 2008 07:00:00 EDT

In his recent Supreme Court opinion upholding Kentucky's execution method, Chief Justice John Roberts says the state's lethal injection procedure passes constitutional muster because it does not pose "a substantial risk of serious harm." You might think serious harm would be hard to avoid with a procedure that's designed to take someone's life.

Roberts, of course, is not talking about the harm that inevitably occurs when someone dies; he is talking about the possibility of pain on the way to that final destination. This strange fastidiousness about making murderers as comfortable as possible when we kill them suggests that capital punishment in this country is ultimately doomed.

It's not doomed because it violates the Eighth Amendment's prohibition of "cruel and unusual punishments," contrary to what Justice John Paul Stevens now seems to think. As Justices Antonin Scalia and Clarence Thomas point out in their concurring opinions, a penalty explicitly envisioned by the Constitution (which refers to capital cases and says the government may not take someone's life without due process) can hardly violate the Constitution.

No, capital punishment is doomed because most Americans, including many who ostensibly support it, are not truly at ease with the idea of killing a man in cold blood. On balance, that is probably a good thing.

This discomfort with executions is reflected in what initially seems to be a needlessly complicated lethal injection process. In Kentucky, as in the vast majority of the 36 states with death penalties, condemned prisoners receive three different drugs: sodium thiopental, a barbiturate that would be fatal on its own in a large enough dose, to knock them out; pancuronium bromide to paralyze their muscles; and potassium chloride to stop their hearts.

The Eighth Amendment challenge to this procedure was based on the possibility that a prisoner might not get enough of the barbiturate to be fully unconscious. In that case, he would experience suffocation from the pancuronium bromide and severe pain from the potassium chloride without being able to communicate his suffering.

One solution to this potential problem, recommended by the two Kentucky murderers who brought the case, is to eliminate the pancuronium bromide so that the illusion of unconsciousness won't be mistaken for the real thing. In his opinion, Roberts cites two reasons why a state might nonetheless decide to continue using the paralytic agent.

"First," he writes, "it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death."

It's clear from these justifications that the state is trying to prevent discomfort not in the condemned prisoner (who, after all, is supposed to be unconscious) but in the people who witness the execution and, by extension, the general public. "Preserving the dignity of the procedure" is code for maintaining the illusion that a man the government executes is really just undergoing a medical procedure with a very high risk of fatal complications.

In the ebb and flow of American death penalty fashions, from hanging and firing squad through electrocution and the gas chamber to lethal injection, Roberts sees "an earnest desire to provide for a progressively more humane manner of death." I see an earnest desire to soothe an increasingly squeamish public.

As Fordham University law professor Deborah Denno has noted, the execution methods that are less unpleasant to watch are not necessarily less painful. "To me," she told The New York Times a few months ago, "the firing squad is the most humane and perceived to be the most brutal."

Around the same time, the Chinese government said it planned to switch from executions by gunshot to executions by lethal injection, which "is considered more humane," according to an official of the Supreme People's Court. Should that count as progress?

Cain't Say No

jwalker@reason.com (Jesse Walker) — Mon, 21 Apr 2008 08:00:00 EDT

Pasolini's lost western:

Authorities have charged a western Oklahoma sheriff with coercing and bribing female inmates so he could use them in a sex-slave operation run out of his jail.

Custer County Sheriff Mike Burgess resigned Wednesday just as state prosecutors filed 35 felony charges against him, including 14 counts of second-degree rape, seven counts of forcible oral sodomy and five counts of bribery by a public official....

The lawsuit, filed by 12 former inmates, alleges the sheriff's employees had them engage in wet T-shirt contests and offered cigarettes to those who would flash their breasts.

One prisoner alleged she became a jail trusty with more freedom after agreeing to perform a sex act on Burgess, but lost that status when she later refused.

Burgess also faces two counts each of sexual battery, rape by instrumentation and subornation of perjury, and one count each of engaging in a pattern of criminal offenses, indecent exposure and kidnapping.

[Hat tip: John-David Filing.]

Supreme Court Upholds Lethal Injection

jsullum@reason.com (Jacob Sullum) — Wed, 16 Apr 2008 15:26:00 EDT

Today the U.S. Supreme Court upheld lethal injection, the execution method used by nearly every state with capital punishment, against a challenge by two Kentucky murderers who argued that it violates the Eighth Amendment. Seven justices agreed that the three-chemical lethal injection method, which involves a barbiturate for anesthesia, pancuronium bromide to paralyze the muscles, and ~~sodium~~ potassium chloride to stop the heart, is not "cruel and unusual punishment." But they disagreed about the proper standard to apply in reaching that conclusion.

The plurality opinion by Chief Justice John Roberts, which was joined by Justices Anthony Kennedy and Samuel Alito, says Kentucky's execution method passes muster because it does not pose a "substantial risk of serious harm": Although it's true that a condemned man will experience suffocation and pain if he is not given an adequate dose of the anesthetic, the odds of such a mistake seem to be pretty low. In a concurring opinion, Justice Stephen Breyer says there is not enough evidence to conclude that the three-drug method poses even "a significant risk of unnecessary suffering," a more easily satisfied test for cruel and unusual punishment. While expressing reservations about the use of pancuronium bromide (which, among other things, prevents the prisoner from signaling his discomfort if he does not get enough of the barbiturate) and about the death penalty generally, Justice John Paul Stevens agrees that there isn't enough evidence on the record to overturn the procedure. Justices Antonin Scalia and Clarence Thomas say an execution method violates the Eighth Amendment "only if it is deliberately designed to inflict pain." The two dissenters were Justices Ruth Bader Ginsburg and David Souter, who favored remanding the case for consideration of whether Kentucky's failure to adopt safeguards used by other states to make sure the prisoner is unconscious "poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Here is my last comment on the subject, which includes links to earlier reason coverage.

Good News in Mississippi?

rbalko@reason.com (Radley Balko) — Tue, 15 Apr 2008 11:34:00 EDT

The Innocence Project seems to think so.

Governor Haley Barbour has appointed Steven Simpson, a judge from the Gulf Coast, to head up the state's Department of Public Safety. That's the agency that oversees the crime lab and the medical examiner's office. The new appointee has promised to make it a priority to get both agencies in order.

Judge Simpson is a former prosecutor and law enforcement officer. He comes from one of just a couple of areas of the state that hasn't regularly used Dr. Steven Hayne for autopsies. Though I'm told the guy they do use down there is nearly as bad, my sources in Mississippi say that on the whole, Simpson's appointment is probably good news.

The other news is that the state legislature has appropriated (pdf) a barely-adequate budget to fund the state medical examiner position, something they haven't done in more than a decade. The total budget for salaries, benefits, supplies, and so forth is just under $1 million. That should be at least enough to attract some decent candidates for the head position and run a bare-bones office, though probably not enough to adequately staff it.

Rep. Bob Evans' amendment that would have withheld funding from the entire Department of Public Safety until a new state medical examiner is hired didn't make it through the conference committee.

Still, if the new salary is high enough to at minimum attract a qualified, professional candidate with some integrity, it would likely spell the end of Dr. Steven Hayne's autopsy practice. That's a step in the right direction.