Drug laws and the great deleveraging

In what seems to be part of a somewhat encouraging trend of reducing the criminal penalties for minor offenses, the legislature is looking at proposals to drop a variety of drug offenses from felonies to misdemeanors. As it stands, this is framed as a much needed attempt to reduce prison expenditures in Colorado which have grown out of control:

Colorado lawmakers are proposing reduced penalties for some drug possession offenses in a move that supporters say is aimed at ensuring offenders get treatment instead of long prison sentences.

The bill introduced in the Senate Tuesday would drop some offenses from felonies to misdemeanors and represents another attempt by lawmakers to decrease the prison population and cut expenses in the Department of Corrections.

This is a good step in the right direction, especially considering the devastating human costs and limited benefits of lengthy penalties for drug offenses. This sort of bill should slant the penal system in a more rehabilitative direction, which would be good.

The other benefit of something like this is it slants the procedural aspects of the criminal case away from the prosecution to a greater extent. When the threat of a conviction for a relatively minor drug offense is five or more years in jail, taking the case to trial doesn’t sound particularly enticing. That’s made worse by the massive discrepancy between the plea offers and the maximum sentences at trial. Sometimes a plea can result in mere probation (and you can get your record sealed for certain drug offenses) while a conviction at trial can result in a multi-year prison sentence with no chance at a record-sealing.

So this is a win-win. Reducing the sentences will not only reduce the amount of people in prison, it will also increase the ability of defendants to exercise their rights to a trial without the threat of a massive sentence in the event of a conviction.

One way to take a stand against prison overcrowding

In Colorado prisons and prisons across the country, overcrowding is a massive problem. Part of that is because of drug laws, many carrying mandatory prison sentences even for non-violent or minor first-time offenders. However, another issue is how plea bargaining pushes defendants into accepting prison sentences where the evidence of their guilt may have been tenuous at best. Although prosecutors do not have the resources to push all these cases through trial, they are able to convince defendants to plead out because the possible sentences at trial are so dramatic that defendants are unwilling to accept the risk. This causes two separate but equally disconcerting problems: the prosecution’s case is frequently not put to the test. Additionally, all the folks that are sent to prison without even a peep of voiced resistance (a mere allocution is the entirety of their day in court) are filling up the prisons and contributing to the overcrowding problem. One activist proposed a solution in yesterday’s New York Times:

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

This seems to be a pretty ethereal solution to a problem that is a lot more pressing than proposed. When the proposed solution does nothing beyond “create chaos,” what in the world is the end-game? How do we know the response won’t be to simply abolish jury trials through constitutional amendment (there’s a pretty strong pro-punishment sentiment still)? In Colorado, the response to the rising costs of prosecuting traffic tickets in some jurisdictions was to just abolish discovery and plea bargaining.

The other problem is a dramatic ethical dilemma for those who would organize this protest. Obviously no defendant is going to be the first to volunteer to risk a longer sentence to go to trial and screw up the system. Somebody has to be in charge of setting the whole thing up. And it would almost have to be attorneys: the lawyers who advise defendants and whom defendants trust to give them good legal advice. The problem here is that attorneys have ethical obligations of competence to the individual client. An attorney could not ethically be part of a movement to give advice that leads a client to a worse outcome for a greater larger movement.

Dealing with juveniles in prison

Given the rather miserable conditions afforded today’s prisoners, in Colorado prisons and prisons across the country, it makes sense to worry also about how the numerous juveniles in prison are faring. In a world where juveniles are increasingly treated as adults in the criminal justice system, it’s important to make sure they aren’t treated quite as poorly as adults. After all the goal of the justice system for juveniles is supposed to be to treat them as maleable beings who can be rehabilitated. Even if that’s something rehabilitation is something that’s largely absent from prisons as a whole. As such, it’s good to see progress for a bill like this:

If enacted into law, HB 12-1139 will help to protect the human rights of the state’s children accused of crimes, Human Rights Watch and the American Civil Liberties Union said. Youth in adult jails and prisons are extremely vulnerable to physical and sexual abuse and have a developmental need for protection, education, and other services to fully mature into adulthood. HB 12-1139 would require authorities to hold youth under age 18 who are subject to pre-trial detention for criminal offenses in facilities designed to hold juveniles, unless a judge decides otherwise in a hearing. Colorado currently houses such youth in jails designed to house adults, often in prolonged solitary confinement.

Now naturally this is just a small and nearly administrative change, but a lot of this stuff is more about attitude than actual policy changes. Long before prisons and crime policy became draconian tot he point of approaching a human rights violation, the “tough on crime” rhetoric racheted up to an extreme level. Similarly, even though this is an unopposed action, it’s not like humane treatment of juveniles is always a slam dunk case in the court of public opinion. There is always pressure to try and treat juveniles as adults, so the assembly should be applauded for taking action like this.

Can you sue for this?

Both the civil justice system and the penal code make it pretty hard for prisoners to sue about anything relating to the conditions of their confinement. There are difficulties with standing, differing standards for lawsuits involving inmates, and also the fact that judges just generally don’t like prisoners. That’s why it’s fairly remarkable when prisoners do manage to win a lawsuit like Plata. But is suing a viable way of affecting change in the prison system? A Colorado prisoner is about to find out with a rather unorthodox lawsuit, alleging that she was incorrectly classified as a man and deserves damages due to abuse incurred while housed in men’s facilities:

Jasmine Martinez, 39, says she was born with male and female reproductive parts. She refers to her condition as intersex or a hermaphrodite. She was born Jose Ruiz.

Her adult criminal record lists run-ins with police starting at age 18. They lead to many stays in jails and Colorado prisons. Martinez, living as Ruiz at the time, pleaded guilty to theft over $15,000 in 2002 and convicted of sex assault on a child in 2007.

Martinez was locked up as a man in county jails and in prison.

My first thought here is that it is simply going to be incredibly difficult to prove damages.While she almost certainly suffered a ton of anguish in prison, she would have to prove that if she hadn’t been housed in men’s facilities she would not have suffered that abuse. And although that may not be that difficult to prove, it seems that a general assertion that there is less abuse in women’s prisons would not be enough. That would give rise to a claim by every man in jail or prison. So she would have to prove that she suffered greater abuse than a normal man (or normal sex offender) because of the incorrect classification. And that’s not even getting into the issue of whether the classification was correct or not.