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Posted 11/30/08

HOW MANY LAWYERS DOES IT TAKE...

The weight of the Feds falls on a misguided Missouri mom

     For Police Issues by Julius (Jay) Wachtel.  How many lawyers does it take to convict someone of a misdemeanor?  That’s what inquiring minds want to know.  On November 26, after a five-day Federal court trial, a team of three prosecutors led by Thomas P. O’Brien, United States Attorney for the Central District of California convicted Lori Drew, 49 of three misdemeanor counts of accessing My Space computer servers without authorization.

     Why did the Feds unleash three top guns on a middle-aged Missouri mom?  Rewind to October 2006 when Megan Meier, a troubled 13-year old girl hung herself after receiving a My Space message from someone that she met online.  That was the horrific outcome of a plot concocted by Drew to take revenge on Megan for spreading malicious online rumors about Drew’s own 13-year old daughter.  Drew enlisted Ashley Grills, 18, to help.  Grills created a My Space profile for a fictitious 16-year old boy and started sending Megan flirtatious messages.  When Megan got infatuated and pressed to meet the boy Grills broke it off with a “the world would be a better place without you” message.  That unexpectedly drove Megan, who was on anti-depressants, to commit suicide.

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     Unable to find a State or local law to fit the situation local authorities eventually declined to press charges, leaving the matter to be settled in the civil courts.  That’s when the intrepid O’Brien came to the rescue, breathlessly announcing that he was stepping in to protect potential victims everywhere:  “If you are going to attempt to annoy or go after a little girl and you’re going to use the Internet to do so, this office and others across the country will hold you responsible.”

     How could an L.A. prosecutor criminalize nasty doings in Missouri?  It so happens that My Space computer servers are physically located in L.A. County, bringing Drew’s use of the service within O’Brien’s jurisdiction.  For the precise offense he turned to Title 18, Section 1030, a confusingly worded and complex statute that penalizes “fraud and related activity” in cyberspace.

     Then things got curioser and curioser.  Instead of letting his worker bees run with the ball, as is common practice in even the most serious crimes, the US Attorney personally injected himself into the case, going so far as to travel to Missouri to conduct interviews.  Grills, who admitted she set up the My Space account and composed most messages got a sweet deal: immunity in exchange for testimony.  Assured of a compliant witness, O’Brien had Drew indicted on conspiracy, a felony even if the object is a misdemeanor, and three instances of intentional, unauthorized access to a computer, charged as felonies under Sec. 1030(c)(2)(ii) because their alleged purpose was to commit a “tortious act,” meaning a harm under civil law.

     Excoriated in the national media, in the bulls-eye of one of the most intensive Federal investigations in recent memory, with her husband out of work and her daughter in hiding, Lori Drew finally came to trial.  And that’s when the Government’s house of cards began to crumble.  After attentively listening to all the Government’s men and all the Government’s witnesses, jurors hung on the most serious charge, conspiracy.  And while they did convict Drew on three counts of unauthorized access (under Federal law aiders and abettors are liable as principals) they chose the misdemeanor rather than felony variant.

     There followed a groundswell of criticism, but not because the verdict was too lenient:

“What happened to Megan Meier was a tragedy, not a crime...This verdict is a loss for civil liberties and leaves all Internet users at risk of prosecution under federal law. It is a prime example of overcriminalization.” (Andrew Grossman, legal analyst, Heritage Foundation)

“This is troubling because it could have a chilling effect on free speech on the Internet. There is a long tradition of anonymous free speech in this country and the tech leaders on the Internet are trying to come up with some good way to balance anonymity with accountability.” (Sheldon Rampton, research director, Center for Media and Democracy)

“What they [Drew and Grills] did was cruel and incredible. A grown woman harassing a kid, for heaven's sake? But there's always been a problem, in my view, of holding Drew legally responsible for an unintended consequence....”  (Barb Shelly, Kansas City Star columnist.)

“As a result of the prosecutor’s highly aggressive, if not unlawful, legal theory, it is now a crime to ‘obtain information’ from a Web site in violation of its terms of service. This cannot be what Congress meant when it enacted the law, but now you have it.”  (Matthew L. Levine, former Federal prosecutor, now a defense lawyer.)

     As one might expect, Drew’s lawyer, H. Dean Steward, delivered his own tongue-lashing, going so far as to accuse US Attorney O’Brien of “grandstanding” to enhance his chances of being reappointed under the new Administration.  Steward’s not done.  Federal Judge George Wu will soon be ruling on his motion to quash the verdicts because what made the intrusion unauthorized -- Drew’s failure to heed My Space’s terms of service -- couldn’t have been “intentional” as the statute specifically requires since she didn’t set up the website and never read the guidelines.

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     Legal technicalities aside, this case highlights a fundamental concern about the proper role of the criminal law.  Would Lori Drew’s admittedly abominable acts have been better handled through the civil courts?  People are always doing nasty things to each other, occasionally with catastrophic consequences, yet we rarely expect the Government to step in, preferring in a democracy to keep the State’s reach from becoming overbroad.  When officials such as an all-powerful US Attorney manage through clever lawyering to invoke a statute clearly intended for a different purpose, we must be doubly cautious so that the fine line between the people’s interest and a zealous prosecutor’s self-interest isn’t breached.

     And there’s another problem.  Miscarriages of justice are far more likely to occur when resources are, as in this case, terribly imbalanced.  Few of us have the means to hold off a Federal steamroller, and ganging up on a person of such modest means as Lori Drew with three high-powered prosecutors and a pack of Federal agents smells much more like persecution than prosecution.  Even if she “deserved it” you’ve got to wonder: who’s next?

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WHY THE DROP?

Crime has been falling.  Does anyone know why?

“...There will continue to be crimes of passion and anger. And it is important to note that crime in Los Angeles has dropped precipitously in the last decade.  Even with the increase in homicides, management of violent crime is moving in the right direction...”

     For Police Issues by Julius (Jay) Wachtel.  Continuing its love-fest with LAPD Chief “Hollywood” Bill Bratton, that’s how the L.A. Times explained away the murders of eleven persons over a single weekend, with nine shot dead, at least six in gang-related incidents.  And remember last month’s six shootings in six hours?

     Recent events aside, homicide does seem to be on a downward trajectory.  Preliminary FBI data indicates that in 2007 Los Angeles had 390 murders, a 19 percent reduction from 2006 when 480 were recorded.  If this figure holds up there were 40 percent fewer murders in 2007 than in 2000, when killings reached a decade-high peak of 654 (statistics derived from UCR Table 8.)

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     And wait, there’s more!  Between 1999 and 2007, a period when L.A.’s population increased by more than two-hundred thousand, the number of violent crimes fell by 41 percent, from 46840 to 27801.  Using the 2001 peak of 52243 as a base, that works out to a stunning reduction of 47 percent.

     Now if only we knew why.  The following charts compare changes in homicide and violent crime rates per 100,000 population for the three largest California cities -- Los Angeles, San Diego and San Francisco -- with rates in New York City and the U.S. as a whole.

     As America’s gang capital, L.A.’s been beset by criminality, but in the last decade its murder and violent crime rates have plunged, actually landing below San Francisco’s.  What’s the reason?  The Times knows:  it’s that we’re doing a better job “managing” crime.  Unfortunately their explanation stops there, but it’s safe to say that the miracle is largely attributed to Chief Bratton, and particularly his much-ballyhooed Compstat program, a computerized pin-map that uses current data to alert commanders to crime trends and hot spots.

     Bratton was appointed in October 2002, replacing Bernard Parks, a man who was viewed as so heavy-handed in administering discipline that many officers reportedly gave up interacting with thugs for fear of being punished.  A cop’s cop, the new chief is far more popular among the rank and file.  Could it be that a renewed sense of mission invigorated officers and got them working again?

     It’s an appealing thought.  But while the fall in murder coincided with the change in leadership, the violent crime rate was already going down when Bratton came on the job.  In truth, L.A. may simply have too few cops to proactively battle violence.  As these pages have reported, compared to New York, the city is dramatically under-policed, with half the ratio of officers to population and, given the much higher population density in the Big Apple, a far smaller visible presence.

     Other than Compstat and better leadership, what else could account for L.A.’s “success”?

• Crime’s been on a prolonged downtrend in most areas, with a recent moderate leveling.  Check out New York, whose overall drop in violent crime is nearly the same as L.A.’s, though perhaps not as dramatic.
   
• Although there is controversy about the long-range benefits of harsh sentencing, there’s no question but that California’s mandatory minimums and three-strikes laws have incapacitated offenders for longer periods.  If that was the main reason for the disparity, though, we would expect drops in San Diego and San Francisco as well.
   

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• During the past decades the racial composition of South Los Angeles has dramatically changed, from predominantly African-American to mostly Hispanic.  It’s reported that many Black gang members have moved to Antelope Valley and parts East (Riverside, San Bernardino).  If it’s true, as some claim, that they are the more violent, their absence may account for some of the drop.
   
• FBI and DEA have been applying racketeering statutes against L.A. gangs, sending many top “shot-callers” to long stays in the Federal big house.  But without conducting a study, whether that’s had an effect on homicides and violence is impossible to say.
   
• National crime stats come from the police, the same agencies whose effectiveness the data supposedly measures.  Many reporting problems have surfaced over the years.  Bookkeeping errors (unsurprisingly, usually leading to undercounts), differences in categorization, even purposeful jiggling -- they’ve all taken place.  Suffice it to say that cooking the books is eminently possible, and no one’s watching.

     Do you have any ideas?  Please pass them on!

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I DRINK, YOU LOSE

Wine is still alcohol.  And alcohol kills.

     For Police Issues by Julius (Jay) Wachtel.  When’s the last time that someone in authority encouraged you to drink?  For us that happy occasion took place on June 4, 2008 at the Beckman Center of the National Academy of Sciences, when Dr. Francisco Ayala, Bren Professor of Biological Sciences at U.C. Irvine lectured on “Elixir of Life: Wine and Health.”  Enlivened by Power Point slides of ancient Egyptian wine jars, pretty grapes and the occasional statistical U-curve, Dr. Ayala’s talk was, as the Center’s website promised, all about the benefits of the fruity beverage:  “Wine grapes are one of the major human food crops, and there is now overwhelming evidence that drinking wine in moderation is beneficial to human health” (emphasis added.)

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     Back home, we used online tools to check out the current literature.  We found considerable but not “overwhelming” agreement that alcohol might benefit the cardiovascular system.  Although Dr. Ayala contended that wine held a distinct advantage, a recent article concluded that once researchers controlled for the fattier diets of beer guzzlers the foamy brew offered as much of an advantage as wine.

     What Dr. Ayala didn’t mention is that the American Heart Association, the nation’s go-to source on cardiovascular issues, “does not recommend drinking wine or any other form of alcohol to gain [cardiovascular] benefits.”  Unlike Dr. Ayala, who encouraged consuming as many as four or five glasses of (preferably red) wine a day, the AHA discourages nondrinkers from getting started and cautions those who do to limit their intake to no more than two servings.  It also questions the science.  Since there have been no “direct comparison trials” -- administering controlled doses of alcohol to a randomly selected group over time, then comparing their health to an equivalent group of nondrinkers -- the reported effects of booze could be due to lifestyle or other factors.

     Neither did Dr. Ayala reveal that drinking is frowned on by the American Medical Association.  Why they’re such spoilsports is obvious.  According to an article published in the authoritative AMA Journal, alcohol consumption was the third leading cause of death in the U.S. in 2000, following tobacco and poor diet/physical inactivity.

     But let’s not quibble.  Probably the most notable thing about Dr. Ayala’s address was what he left out.  Extolling the virtues of drink for a full hour, he said virtually nothing about its downsides, and absolutely nothing about the effects of drinking on others.  For example, it’s well established that even small amounts of alcohol can impair judgment and motor skills, with deficiencies in cognition lingering even as BAC (blood alcohol concentration) decreases.

• It’s not just “drunk” drivers who are the problem.  According to the California DMV, the chances of having an accident are five times higher after having only a single drink.
   
• A report by the National Highway Traffic Safety Administration (NHTSA) concluded that there is “strong evidence that impairment of some driving-related skills begins with any departure from zero BAC” (emphasis added).
   
• NHTSA data also revealed that in 2006 more persons died in alcohol-related crashes where a driver had been drinking but wasn’t legally drunk (17,602 deaths with BAC between .01 and .08) than where a driver was legally drunk (15,121 deaths with BAC of .08 and above).

     Alcohol also turns out to be a crucial factor in crime, especially assaultive offenses.  According to  the Bureau of Justice Statistics, more than one-third of convicted offenders under supervision in 1996 were drinking when they committed their crimes.

     Well, back to the lecture hall.  After an hour’s hard work it was time for...you guessed it, a drink!  Above and beyond the usual post-lecture fare of fruit, cheese and sweets the Academy was serving complimentary glasses of wine.  Imagine a couple hundred seniors, many of whom can’t drive that well when sober, getting behind the wheel after a snort or two.  Oh, did we mention it was in the evening? (Full disclosure: this writer’s pushing the big six-oh.)

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     Dr. Ayala informed his audience that he and his wife own a vineyard in Northern California and supply grapes to major wine producers.  Perhaps that might explain why he at times seemed much more the cheerleader than the dispassionate scientist.  And as much as we appreciated the disclosure, revealing a conflict of interest doesn’t really resolve it.

     Perhaps in the future the good doctor might leave it to someone else to extoll the benefits of imbibing.  And to the Academy: please -- no more free samples!

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SAFE AT HOME -- NOT!

The presence of guns can instigate violence

     For Police Issues by Julius (Jay) Wachtel.  On February 5, 2008 a 20-year old San Fernando Valley man with mental problems and a history of violence shot and killed his father and two brothers at the home they shared, called 911 to let the police know, then killed a SWAT officer and seriously wounded his partner when officers, thinking there were victims to rescue, rushed in.  The assailant, who was armed with a shotgun and a handgun, was shot dead.

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     Less than three weeks later, in a prosperous Orange County community about forty miles away, a 41-year old man shotgunned his family, killing his wife, their two girls, ages 8 and 9, their 5-year old boy, and finally himself.  A sixth victim, a 14-year old son, was also wounded but is recovering.  Police were alerted by neighbors who heard gunfire.  The couple had separated in the past and were apparently having financial problems.

     Two days later, in a working class L.A. suburb about sixteen miles away, a 28-year old man with mental problems used a handgun to shoot and kill his mother.  He then broke into the house next door, killed a woman and her child and wounded two other children, one critically.  He was arrested by police while standing on the street with the gun in his hands.

     It’s not just California.  Consider Tennessee.  On February 27, in a rural town that prominently bills itself “a good place to live,” a romantically distraught 26-year old man armed with a .45 pistol visited his ex-girlfriend’s apartment under a pretext.  He shot and killed the young woman’s mother, a current boyfriend and two other adults, then fled and committed suicide as police closed in.

     Eleven days later, officers responding to a call by a concerned relative discovered six persons -- two men, two women and two children under five -- shot dead in a Memphis home.  Two other children and an infant were found in extremely critical condition.  The shootings, which police said occurred hours earlier, were overheard by neighbors but ignored as gunfire was not  uncommon.  On March 8 police arrested one of the occupant’s brothers, who had just been released from prison afer serving a term for murder.  Authorities said that the slayings were motivated by an argument.

     What’s to be done?  Online gun retailer Eric Thompson, who sold ammo magazines to N.I.U. shooter Steven Kazmierczak and a pistol to Virginia Tech killer Seung-Hui Cho, has a ready solution: guns for everyone!  But would the N.R.A.’s main prescription for domestic tranquility really help?  Shootings in public places, such as on school grounds, usually take place quickly and with no forewarning.  If a madman suddenly strikes, would armed citizens have the opportunity let alone the skill and presence of mind to engage the shooter effectively, and without placing innocents at risk?  Preventing massacres in private residences seems well-nigh impossible.  Must mom, dad, the kids, everyone down to the family dog pack a gun while watching T.V.?  (“Honey,” she says, a thin smile crossing her lips, “please don’t change the channel!”)

     In December 1791, when the Second Amendment went into effect, a “handgun” wasn’t a .40 caliber Glock with a fifteen-round magazine.  It was a bulky, muzzle-loading single-shot flintlock that could take nearly a minute to prepare for a second round.  Such weapons, even those newly manufactured, aren’t considered to be firearms under Federal law (18 USC 921[a][3] and [16]).  No matter the N.R.A.’s glib assertions, the combination of gun lethality and human fallibility make the idea of a ubiquitously armed citizenry intolerable.  Exactly how many incidents of road rage with a gun -- or any rage with a gun -- are we willing to accept?

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     Academic studies have demonstrated that exposure to violence can lead to aggressive behavior.  Is it too far a stretch to suggest that guns might do the same?  That they’re not merely instruments of violence, but can actually instigate it?  Anyone who’s spent time on the streets knows that firearms create their own atmosphere.  It’s another kind of climate change we’d be smart to avoid.

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A TALE OF THREE CITIES

Declines in manufacturing are associated with crime

     For Police Issues by Julius (Jay) Wachtel.  “The drug economy is the economy.”  So said New Jersey prosecutor Joshua Ottenberg as he bemoaned the sad state of affairs in Camden, where stretches of its once-thriving downtown resemble the hollowed, bombed-out cities of World War II.  Bucking a national trend of decreasing violence, with America’s three leading metropolitan areas, New York, Chicago and Los Angeles enjoying record-low homicide rates, the city of less than 80,000 suffered forty-five murders in 2007, thirteen more than in the previous year.  (If anyone’s counting, that’s a forty-one percent increase.)  The surge came despite a declining population.  Census figures reveal that between 1990-2006, Camden lost nearly nine percent of its residents, while a stunning thirty-six percent -- more than one-third -- lived below the poverty level.

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     It’s a similar story in Baltimore, where murders soared from 133 in 2006 to 155 in 2007, a gain of seventeen percent.  Ohio’s capital has also lost residents in less dramatic ways.  Between 1990-2006 it endured a 14 percent population decline.  Nearly twenty percent of its citizens live under the poverty level.

     What about Philadelphia?  Glad you asked.  In the city made famous by cream cheese, murders rose from 185 to 203, a gain of “only” ten percent.   Between 1990-2006 its population dropped nearly nine percent, with a full twenty-five percent living below poverty level.

     There seem to be as many explanations for the causes of crime as there are those studying it.  Much of the attention has been focused on poverty and its correlates, including broken families, lousy public education, weak social and familial controls, deviant subcultures and the ready availability of guns and drugs.  While most poor people are law-abiding, if poverty is a critical antecedent of crime and violence it seems reasonable to look for ways to increase income.

     But it’s awfully hard to do it when the only jobs available are at McDonald’s.  Good-paying manufacturing jobs, the one-time universal entrée to the middle class, have been disappearing at a rapid clip: more than 18 percent were lost between 2001-2007, a span of only six years.

Total number of U.S. manufacturing employees -- all company sizes

     America’s industrial belt took the biggest hit.  Nine of the twelve States suffering a decline in manufacturing positions between 1992 and 1997 were in the Northeast.  Among these were New Jersey (9.7 percent lost), Maryland (3.4 percent lost) and Pennsylvania (.8 percent lost).  Note that  statewide figures may significantly understate losses in hard-hit urban areas.  During the four decades ending in 1990 Baltimore lost a whopping sixty-six percent of manufacturing jobs; Philadelphia, seventy percent, drops that according to Fannie Mae clearly “contributed to the cycle of decline in inner-city neighborhoods.”  Recent figures reveal that the crisis continues.  As recently as 2007 manufacturing employment in the Northeast had the highest average monthly drop (.3 percent) and yearly drop (2.0 percent) of U.S. regions.

     Can a shortage of decent-paying jobs be blamed for inner-city violence?  When reporters asked Camden’s police chief what could be done to curb his city’s abysmal homicide rate he answered, “it would be great to get a manufacturing plant.”  He might be on to something.  A recent study concluded that the industrial shift that stripped manufacturing jobs from America’s inner cities significantly increased the homicide rate of black males (“Industrial Shift, Polarized Labor Markets and Urban Violence,” Criminology, August 2004).

     How do we defeat poverty?  The fix isn’t in more McJobs.  Neither is it to improve academically-oriented education, as worthy as that goal may be for other reasons.  We desperately need to create good-paying work for the majority of the male population that isn’t -- and never will be -- interested in math, science and social studies, no matter how many Jaime Escalantes we throw at them.  One step might be to immerse secondary-school students who eschew academics in intensive vocational programs.  Another might be to create incentives for keeping manufacturing at home -- or disincentives for sending it overseas.

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     A country that helped rebuild Europe after the war has no excuse for not instituting a Marshall Plan to pull its own beleaguered cities from what threatens to become an irreversible decline.   If we don’t stop bleeding jobs, our young men will keep bleeding buckets.

     Count on it.

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IT’S GOOD TO BE RICH

When it comes to justice, there’s no substitute for money

     For Police Issues by Julius (Jay) Wachtel.  “Jury acquits Wesley Snipes of tax fraud.”  That was the headline splashed across U.S. dailies after a Federal jury acquitted the action-movie star of felony tax evasion, instead finding him guilty on three misdemeanor counts of failing to file tax returns.  Since 1997 the star of “White Men Can’t Jump” has avoided paying millions of dollars in taxes by claiming that the IRS was not a legitimate government agency and lacked the authority to tax domestic earnings.  An accountant and a well-known tax protestor who had been counseling Snipes and were tried alongside him were less lucky; both were convicted of felonies and face substantial prison terms.

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     On the same date that Wesley dodged the big bullet a Boston appeals court affirmed the conviction of Richard Hatch for felony tax evasion.  Best remembered as the relentless “Survivor” contestant whom everyone loved to hate, Hatch will have to serve out the four-year, three-month prison term imposed after jurors rejected his claim that the TV production company had agreed to pay the taxes on his million-dollar prize.

     There the comparison ends.  Although they were charged with the same crime, Snipes’ alleged conduct was infinitely more serious, involving far greater losses of revenue and requiring much more investigation and court time.  True, Hatch might have angered the judge by allegedly lying on the stand (Snipes didn’t testify), but he didn’t challenge the tax system with loony arguments.  And when signing his return, he didn’t change “under penalties of perjury” to “under no penalties of perjury,” like Snipes did in 2001.

     Still, Hatch got hammered, while Snipes essentially walked.  Why?  Although in criminal trials the burden of proof is on the State, considering the imbalance between the resources available to the Government and those available to most defendants, raising reasonable doubt is no cinch even for the truly innocent.  Hatch, who got involved in other mischief and squandered his winnings, was in no position to hire a big-bucks defense team with multiple lawyers, experts and investigators.  Snipes was, and did.

     Tax fraud is one thing; murder, another.  Consider the case of Darryl Hunt.  Arrested in a 1984 rape/murder, the youth had little money to mount a challenge against lying witnesses and a faulty identification.  Once he was convicted the tables turned, and it was now up to him to find the real killer or rot in prison.  Although activists and lawyers worked tirelessly on Hunt’s behalf, it took nearly twenty years before DNA identified the right man, a parolee who had been jailed for attacking another woman not long before Hunt’s arrest.  That information could have been discovered before trial had there been funds to hire investigators.  Hunt didn’t have to do nineteen years for a crime he didn’t commit, but he did.

     Now consider some famous acquittals.  Football legend O.J. Simpson, accused of slicing up his ex-wife and her friend outside her Westside apartment.  Pop star Michael Jackson, tried for molesting a child at his Santa Barbara ranch.  Actor Richard Blake, arrested for shooting his wife to death outside an Italian eatery.  Consider also the case of music producer Phil Spector, whose 2007 trial for murdering a restaurant hostess ended in a hung jury.  Other than fame, what do these defendants have in common?  Money, and lots of it.  Spending millions of dollars on teams of top-notch lawyers, experts and investigators, each managed to plant enough “reasonable doubt” in juror minds to overcome what many observers thought was overwhelming evidence of their guilt.

     What’s the moral to the story?  If you’re not rich, think twice before going to trial.  And if you do go to trial, are unjustly convicted, manage after five years to get a new trial, and the D.A. offers you time served for pleading guilty -- take the deal!  Don’t stand on your high horse and go to trial again, just so you -- like Darryl Hunt -- can be wrongfully convicted twice!

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     A system that works to the advantage of the wealthy and promises for everyone else only as much justice as they can afford is nothing to admire.  How to restore its balance is one of our democracy’s most important to-do’s for the twenty-first century.

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HOLLYWOOD’S KILLING US

Exposing impressionable youth to violent images for the sake of a buck

     For Police Issues by Julius (Jay) Wachtel.  Two-hundred thirty-six murders.  That’s six months’ worth of killings in the not-so-angelic City of Los Angeles, three months’ worth in Los Angeles County, and, according to an academic who spends his time keeping track of such things, one and one-half hours’ worth in “Rambo.”   Rated R for “strong graphic bloody violence, sexual assaults, grisly images and language”, Sylvester Stallone’s newest vanity project depicts the sixty-one year old actor/writer/director with the sagging pecs as a heroic Vietnam vet who sets out to rescue kidnapped missionaries.  Sly’s newest project, reportedly the most violent general-distribution movie ever made, has received mixed reviews.  Perhaps the most damning was the Philadelphia Inquirer’s, which called the film “action porn” and “an obscene gory game.”

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     But in Hollywood, where any publicity is good publicity, the words were music to Lions Gate’s ears.  They didn’t release the film to benefit society -- they did it for one reason, and one only: to make lots of money.  Expecting to recover more than one-third the film’s $50 million production cost during its opening weekend, Steve Rothenberg, the studio's domestic distribution guru, proudly remarked that “Rambo” was targeted at the immensely profitable 17-to-24 year-old demographic: “Hopefully, what our advertising has done is introduce ‘Rambo’ to a whole new generation of younger males.”  Naturally, it won’t be long before twelve-year olds will be watching “Rambo” DVD’s and shelling out their parents’ hard-earned bucks for the first-person shooter game that’s certain to follow. Just listen to those cash registers jingle! 

     Sure, money’s dandy.  Just don’t bother Sylvester, Steve and the other peddlers of pornographic violence with what some members of their target audience are doing with real guns and real bullets only blocks from Burbank’s soundstages.  In 2006 seventeen-to-twenty four year olds were responsible for forty-three percent of murders in the U.S.; those in the most prolific segment, twenty to twenty-four, committed more than one in every four.  With violence in many areas on the upswing, one can’t blame cities like Philadelphia from being dismayed by a plague of Hollywood shoot-‘em-ups that appeal to impressionable youth, and for all the wrong reasons.

     Ah, but wait a minute, you say.  Anyone who’s taken freshman research methods knows that correlation does not necessarily mean causation.  There was violence before television, movies and video games; ergo, TV, movies and video games cannot be the cause.

     If it were only that simple.  Images are persuasive; if not, there would be no ad industry, no TV, and those pesky multi-color inserts in Sunday papers would be history (hmm...now there’s an idea!)  Thanks to technology and the entertainment industry’s damn-the-consequences pursuit of the buck, grotesque visions of murder and mayhem have taken over the small and big screens and immersed video gamers in hypercharged environments where brutally dispatching one’s opponents isn’t one thing, it’s the only thing.  Even well-regarded cinema critics have been inhaling.  Consider the remarks of the L.A. Times’ Patrick Goldstein, who gushed that the “two leading best picture contenders -- "No Country [for Old Men]" and "There Will Be Blood" -- are brutal, nihilistic pictures that will be studied by film students for years but aren't the kind of pictures you can recommend to your Aunt Gladys in Des Moines.”

     But there’s a big difference between watching and doing, you say.  Does exposure to violent images really lead to violence?  A recently published paper (L. Rowell Huesmann, “The Impact of Electronic Media Violence: Scientific Theory and Research,” Journal of Adolescent Health, vol. 41, 2007) says yes, definitely.  Analyzing studies dating back to the sixties, the author concluded that TV, video games and the Internet have become classrooms of violence, arousing, “priming” and desensitizing young, malleable minds, and creating a public health threat second in magnitude only to smoking and lung cancer.

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     There was a day when the entertainment industry helped elevate society, rather than coarsen it. When the First Amendment presented an opportunity, not a shield behind which to hide.  And when the measure of a man or woman was not what they earned, but what they contributed.  Sylvester, Steve, Patrick...it’s not too late.

     Repent!

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SOMETIMES YOU HAVE TO THROW AWAY THE KEY

Violence by the young is still violence

“...it is perverse to condemn a minor to prison for life [without the possibility of parole] for committing a crime that he or she might find unthinkable on reaching adulthood.”

     For Police Issues by Julius (Jay) Wachtel.  So said the Los Angeles Times in an editorial calling on the California Legislature to exempt 16 and 17-year olds from being sentenced to mandatory life without parole should they be convicted of murder with special circumstances (e.g., killing witnesses and law enforcement officers, murders for financial gain or during the commission of a violent felony, using an explosive, being especially cruel, lying in wait, in furtherance of gang activity, etc.)

     There are two threads to the Times’ argument.  First, the comparative.  Sentencing kids to life without parole isn’t done in any other country, so it’s by definition outrageous.  Secondly, the empirical.  According to science the brain region that controls impulsive behavior isn’t fully developed until one’s early twenties, so throwing away the keys needlessly “discards” correctible lives.

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     And it’s not just the Times.  Two days later the Miami Herald reported on Florida’s practice of remanding kids who kill to adult court, where they face possible life sentences.  Among those currently at risk are a 12-year old who beat his infant cousin to death with a baseball bat, and a 14-year old who stabbed his best friend.  According to a criminologist, prosecutors are catering to a public that demands they “deep-six” children who kill: “...no matter how much they can be rehabilitated -- people want 10 or 15 years out of the kid's life, maybe more.”

     Why is that?  Perhaps the answer lies in what the Herald’s article didn’t say.  In 1999 Lionel Tate, a 12-year old Florida boy, viciously stomped a 6-year old girl to death.  After his police officer mother refused a plea bargain Lionel was convicted of murder and received life without parole.  Although the judge described the killing as incredibly brutal, the sentence drew widespread condemnation and Lionel was eventually placed on probation.  Well, he apparently didn’t learn his lesson.  Lionel’s problems with the law continued, and in 2006 the now nineteen-year old got ten years for the armed robbery of a pizza deliveryman.

     What’s the difference between armed robbery and murder?  Five pounds of trigger pull, maybe less with a semi-auto.

     Most Americans favor putting murderers to death -- nearly seven out of ten according to the latest Gallup poll.  Half, though, would settle for life “absolutely without” parole, a wording made necessary due to skepticism that “without” really means that.  In any event, prison is now the only option for younger offenders, as in 2005 the Supreme Court (Roper v. Simmons, no. 03-633), barred the execution of those under 18.  Interestingly, the Court’s reasons -- that evolving standards make executing young people a cruel and unusual practice, and particularly so given their immaturity -- were the same as the Times’ more recent objections for imposing life sentences.

     Watch your step!  The slope’s getting slick!

     This writer is personally against the death penalty.  So he is naturally concerned when well-intentioned folks like the Times’ editors threaten the only alternative that the American public seems willing to accept: life without parole.  Europeans may feel differently, but given the easy availability of guns and our absurdly high levels of violence it is perfectly reasonable to demand the certainty and reassurance that only permanent incapacitation can provide.  There really is no other satisfactory solution.  Consider the dilemma faced by Presidential contender Mike Huckabee, who finagled the 1999 parole of a violent rapist only to have the man rape and murder at least one and possibly two women a few months later.

     But young people are by definition immature.  Should they really get no “second chance”?  On January 17 two youths, one 17, the other 19, were arrested in the shooting deaths of a 16-year old Southland resident and her 18-year old boyfriend.  Police think that the killings were done strictly for thrill as there was no evidence of a robbery and one suspect had blogged about the joys of “killing at random”.  Although the Times’ proposed guidelines would not help these two, as both are just over the magical threshold of 18, one can assume that neither boy’s conscience was completely formed.  If they’re not to be executed, when should they be released?

     Murder is not a phenomenon of the very young.  In 2006 more than three in four persons arrested for murder were over 22, with about half older than 24.  Apparently fully developed brains are not enough to keep people from killing each other.  Fortunately, the rates decline markedly by the time that men (that’s the gender to worry about) are in their forties, so fifty seems like a good bet for release.

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     OK, we’re on board.  Release all violent offenders when they’re fifty, and send me the clippings of those who kill again.  That should make for some interesting posts.

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LOCK ‘EM UP (AND SEND THE BILL TO VENEZUELA)

How mandatory sentencing victimizes the public

     For Police Issues by Julius (Jay) Wachtel.  Governor Schwarzenegger’s in a fix.  A $14.5 billion fix.  Thanks to weak tax collections caused by a soft economy and crashing home values, that’s how much the California budget is in the hole.   State agencies have already been told to figure on a ten-percent hit.

     Start digging!

     Trouble is, some departments spend money like drunken sailors.  While most “normal” States expend two or three times more on colleges than prisons, California’s $10 billion corrections budget is just shy of the $12 billion that higher education gets, and if trends hold will surpass it in a few years.  The Golden State runs the nation’s largest prison system, housing more than 170,000 inmates.  It also imprisons a large share of its population, with a rate of 47.5 per 10,000 in contrast with New York’s far more moderate 32.6.  And while New York’s prison population decreased 2.2 percent between 2000-2006, California’s increased by .9 percent (but a much larger 2.8 percent between 2005 and 2006).

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     Locking up people is expensive -- very expensive.  A recently approved $7.4 billion prison bond issue will eventually cost California taxpayers more than $300 million per year in interest alone.  California is also under expensive Federal mandates to improve prison health and mental care.  For example, this June the court-appointed receiver who controls the prison system’s $1.5 billion medical budget issued a blistering critique warning that it could take as many as ten years to bring things up to snuff.  As a side note he also remarked that he would be spending an extra $158 million this year for staff and capital improvements.  And there’s more.

• Only three months ago the Governor issued an executive order clearing the way to transfer as many as 5,000 prisoners to other States.  Naturally, that’s only a speck, but since tens of thousands are sleeping in gyms and dining halls any relief is welcome.  What this will cost hasn’t been revealed, but one can bet that it’s going to be expensive.
   
• Thanks to politicians in bed with the powerful guards’ union, corrections pay scales are extremely generous, with experienced officers making $70,000 or more plus full peace officer retirement benefits (90 percent of salary after 30 years).
   
• California’s severe three-strikes law keeps prisoners in longer.  And those who are let out soon return.  California’s practice of placing nearly all releasees on parole, then promptly revoking most for violations such as drug use and failure to report is phenomenally expensive.  The figures are striking.  In 2000 nearly seventy percent of new California inmates were parole violators.  (In 1980 the proportion was just twenty percent.)  Stunned researchers estimated that if California recommitted only a third of parolees instead of more than two-thirds it could save $500 million per year.

     Five-hundred million?  That’s big bucks even for the Guv.  In a recent proposal, Governor Schwarzenegger suggested releasing non-violent inmates with less than 20 months left on their terms, then not actively supervising them.  Many others already on parole would also be shifted to non-supervised status, subject to search but not revocation for technical reasons.  By slicing 22,000 from the inmate population (13 percent) and reducing 1,700 corrections positions, taxpayers could save a whopping $350 million per year.

     But wait a minute.  How does freeing criminals make us safer?  Won’t these so-called “savings” be offset by increased victimization?  Again, contrast New York and California.  Although New York imprisons a substantially smaller proportion of its population, its 2006 violent crime rate of 434.9 per 100,000 was nearly twenty percent lower than California’s 532.5.  New York’s rate also dropped 2.1% from 2005 (444.4), while California’s increased 1.2% (526.0).

     Well, maybe California’s criminals are more violent and intractable than New York’s.  We’ve already noted that L.A. is more thinly policed than New York City -- perhaps bad guys here have more opportunities!  But in 2000 nearly six out of every ten new California inmates weren’t crazed gunmen -- they were technical parole violators.  Our prisons are bursting at the seams because thousands of parolees are constantly cycling through, doing a few months here and there for lapses such as flunking drug tests and not cooperating with agents.

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     Draconian laws, misguided practices and an unholy alliance between the guard’s union and legislators (and at least one former Governor) have transformed California’s penal system into an ever-expanding perpetual motion machine.  That’s undeniably good news for the corrections industry, but is it a sustainable policy for the State?

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A Broken “System”

THE TRAGEDY OF JESSICA’S LAW

Sex offender hysteria drains resources

“These costs are likely to be in the several tens of millions of dollars annually within a few years [and] would grow to about $100 million annually after ten years, with costs continuing to increase significantly in subsequent years.”

     For Police Issues by Julius (Jay) Wachtel.  That paragraph was lifted from the official voter information guide for Proposition 83, also known as Jessica’s Law, overwhelmingly approved by California voters in 1996.   It addresses the fiscal impact of just one of the law’s provisions, requiring that certain sex offenders wear GPS tracking devices not just while on parole but for the rest of their natural lives.  Proposition 83 also expanded the definition of sex crimes, increased punishment and limited where sex offenders can live.  These requirements were expected to raise state prison costs “tens of millions of dollars annually once fully implemented,” referral and commitment costs “low tens of millions of dollars annually” and state hospital costs “$100 million annually within a decade.”

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     Where is the money coming from?  How do we pay to track as many as 3,000 or more new offenders per year, ad infinitum?  Ah...the law was silent on funding.  It was also silent about its, um, practicality.  Just think, within ten years we’ll be tracking thirty-thousand offenders; within twenty, sixty-thousand.  Here’s what Richard Word, the president of the California Police Chief’s association recently told the Los Angeles Times:

"I don't know of any agency that has the resources to track and monitor [so many people] in real time...You'll need an air traffic controller to track these folks."

     California parole agents currently monitor 1,000 high-risk sex offenders with GPS.  To increase that thirty-fold would require spending untold millions on brigades of agents and untold millions more on support staff, offices and equipment.  Facing a $10 billion budget deficit, the state suggested that local governments bear the costs of tracking ex-cons not on parole.  Jerry Powers, chief probation officer for Stanislaus County, told the Times that will never happen:

“Powers told his colleagues that it would be ‘ludicrous’ to think that local agencies would voluntarily monitor all sex offenders by satellite.   ‘It would bankrupt any of our systems very quickly,’ he said.”

     Jessica’s Law was an initiative, meaning that a special-interest coalition bypassed the Legislature and asked citizens to vote it in.  Seventy percent said “yes.”  Why?  Because the Governor, the police, the sheriffs, the prosecutors -- everyone said it was a great thing.  Here’s a snippet from the state police chiefs’ arguments, as printed in the official ballot information guide:

“Don’t be fooled by the false arguments the group of lawyers against Proposition 83 is making. They represent criminal defense attorneys who make their living defending criminals. Of course they don’t want tougher laws!...EVERY major POLICE, SHERIFF, and DISTRICT ATTORNEY organization in California strongly supports Jessica’s Law...Your YES vote on Proposition 83—Jessica’s Law—will give law enforcement the tools they need to stop sexual predators before they strike again.”

     What do the law’s boosters say now?  A representative of the state police chiefs, Woodland PD Chief Carey Sullivan, admits that “we would have been far better off with lifetime parole or probation than...with lifetime GPS.”

     Too late!  Jessica’s Law is on the books.  Go enforce it!

     Legal crusades inevitably distort the system.  Are we O.K. that parole agents can’t watch gang members because they’re too busy chasing perverts?  In a zero-sum economy like California’s ramping up the fight in one area requires that we pull  resources from another.  How can we even choose if police executives -- those who should know better -- are too cowardly to sound the alarms before it’s too late?

     And it’s not only about money.  Another aspect of Jessica’s Law prohibits registered sex offenders from residing within a third of a mile of a school or park.  That has kept many ex-cons from moving into supportive environments with family or friends.  Instead they’re in a shell game, with parole agents hustling them from one temporary lodging to the next.  Some wind up camping in cars or public land, making their monitoring all the more difficult.  How this enhances their prospects for rehabilitation -- and our prospects for living in a safe society -- is hard to say.

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     The sheriffs, police chiefs and politicians who jumped on the Jessica’s Law bandwagon can brag all they want about being on the side of angels.  At least we now know the truth.

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THEY DID THEIR JOBS

Jurors freed Michael Jackson for a reason

     For Police Issues by Julius (Jay) Wachtel.  When is a jury always wrong?  When they find a celebrity innocent.  After attentively sitting through four months of sordid, contradictory and often mind-numbing testimony, twelve citizens upended the wishes of innumerable pundits, media personalities and columnists, who made it clear throughout the whole ordeal that nothing short of a conviction would do.

     Now that Michael Jackson has been set free the conundrum continues, most recently with a suggestion in the editorial pages of the Los Angeles Times that jurors should have avoided applying their “personal feelings” and concentrated on the “facts”.  But how is it possible to decide between competing versions of events without injecting “feelings”?  That is why standard California juror instructions expressly direct panelists to use their common sense:

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• Consider carefully, and with an open mind, all the evidence presented during the trial.  It will be up to you to decide how much or little you will believe and rely upon the testimony of any witness.  You may believe some, none or all of it.
   
• Use the same common sense that you use every day in deciding whether people know what they are talking about and whether they are telling the truth.
   
• Did the witness seem honest?  Is there any reason why the witness would not be telling the truth?

     Jurors must hesitate to accept even the most plausible circumstances as fact.  In October 2001 Efren Cruz, 27, was freed after serving four years for a murder he did not commit.  Three years earlier, in a secretly recorded conversation, a gang member admitted he was the triggerman and absolved Cruz.  But Santa Barbara County D.A. Tom Sneddon – the same prosecutor who hammered Jackson – tried to block judicial review of the conviction.  Earlier this year Santa Barbara County settled a multi-million dollar lawsuit alleging that Sneddon and police violated Cruz’s civil rights.

     Sex crime cases are particularly tricky to prosecute.  Reports of sexual assault are often so delayed that no evidence is left other than testimony.  And testimony can prove unreliable:

     “He grabbed my hair and then he started pulling me.  And that's when I screamed. I tried to go away, and then my friends were trying to help me, and that's when he started choking me.”  In January 2004, as Garden Grove transient Eric Nordmark sat on trial for molesting three girls, he was convinced that his accuser had been assaulted by someone.  But he was wrong.  In jail since May 2003, Nordmark was freed after the girls admitted they concocted the tale to avoid being punished for coming home late.

     Perhaps the best known example of the fallibility of child witnesses is the 1984 McMartin scandal, where false memories of sex abuse were implanted into scores of children who attended a Huntington Beach day-care.  The case soon fell apart.  Of the seven employees indicted, only two were tried and both were acquitted.  (Stanley Katz, the psychologist who examined Jackson’s alleged victim, was an executive of the firm that helped conduct the McMartin interviews.)

     Another instance from the same era had a particularly tragic outcome.  In May 2004 a Kern County judge declared John Stoll innocent after he served eighteen years for allegedly leading a cabal of child molesters.  The last of forty-six defendants in a string of put-up cases, Stoll’s luck turned during two tearful, in-court recantations, including one by a 26-year old man whose false statements as a youth sent his mother to prison for six years.

     Pedophiles may be particularly vulnerable to false accusations.  In 1986 Nassau County, N.Y. police charged Arnold Friedman, an admitted past abuser, and his son Jesse for molesting children during group computer classes.  Facing highly graphic tales of forced sex, both eventually confessed.  Arnold Friedman committed suicide in prison, while his son served thirteen years.  Police conceded that no one had complained until they went calling.  One parent, whose child insisted that nothing happened, reported that detectives pressured his son to say otherwise.

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     We should all celebrate the outcome of the Jackson case, not for the sake of the accused, who will be ultimately judged by a higher order, but as an affirmation of a process that, however imperfect, has no suitable replacement.  As in so many other things, those who now scream the loudest would probably be the first to demand the same right afforded to Jackson – a jury of twelve decent, thoughtful persons who would not hesitate to apply their “feelings” in court.

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Physician, Heal Thyself     One Size Doesn’t Fit All

Published in the Los Angeles Times op-ed section, December 8, 2005

TOOKIE’S FATE IS THE WRONG DEBATE

Capital punishment isn’t just wrong: it’s un-American

     For Police Issues by Julius (Jay) Wachtel. Whether Stanley Tookie Williams lives or dies is not my concern. He chose the gangster life and now stands a good chance of reaping its rewards. Actually, the criminal justice system probably prolonged his existence. Had he not been in prison, Williams would likely be dead, a victim of the power struggles that have consumed many of his gangbanging peers.

     Killing him, though, is something else again. If the co-founder of the Crips had met his end on the street, few would have blinked twice. But now that the government proposes to do the deed, the liberal crowd has worked itself into a frenzy. And that's not a bad thing.

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     Don't get me wrong; I like the idea of punishment. Letting evildoers run amok terrorizes the law-abiding. But now that life without parole is a universal fact, the shooting, electrocution or poisoning of criminals subject to permanent custody has become an exceedingly burdensome artifact.

     One must be cold-blooded to be unaffected by the idea of capital punishment. No matter how tidy we try to make the act of killing, dropping the hammer on someone strapped to a gurney is an inherently troubling business. Executions also run counter to the principle that those in government custody should come to no further harm.

     We judiciously keep condemned prisoners alive for as long as it takes, create massive paper trails and spend countless sums fighting appeals so that at some point we might win the game and kill them. Along the way, a few savvy inmates manage to achieve a degree of notoriety and public support, causing survivors even more grief.

     Speeding up the process is hardly a solution. Advances in DNA technology confirm that innocent people have been convicted, with some condemned to die. According to the Death Penalty Information Center, 122 death row inmates have been freed since 1973. In an imperfect system, in which the accused are often too poor to mount an effective defense, it seems inevitable that innocent people will occasionally be executed.

     Among those who have apparently suffered this miserable fate was Texas inmate Ruben Cantu, who a recent investigation by the Houston Chronicle strongly indicates was wrongfully put to death in August 1993. Once we add the risk of occasionally killing the wrong person to the costs of running death rows, funding endless appeals and putting up with flak from liberals, there better be a good reason to continue what many consider a barbaric practice.

     Perhaps the best argument is that only capital punishment can bring the closure that victims and survivors of horrific crimes deserve. Maybe so, but 12 states, the District of Columbia and most of the civilized world have willingly given it up.

     With few exceptions, capital punishment seems to be a characteristic of totalitarian and authoritarian regimes, among them such happy places as Cuba, Belarus and Libya. European democracies have outlawed executions, as has most of South America (a few countries make exceptions for war crimes). Even Russia, which during the Soviet era embraced shooting people in the back of the head as the ultimate measure of social control, stopped executions in 1999.

     I recently spent a week consulting with police in Ukraine. This is not a place that is soft on crime. Still, Ukraine abolished the death penalty in 1999. One month before Williams became an international celebrity, my hosts wanted to know why the world's leading democracy continued to put people to death. I told them that although a majority of Americans support the death penalty, an increasing number have come to believe that more killing is not the answer.

     Now that Williams' future is in the governor's hands, let him base his decision on what's best for California, not for a has-been gangster. And however long Williams lives, let him and his misguided cheering section shut up.

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JAY WACHTEL, a retired federal law enforcement officer, is a lecturer in the politics, administration and justice division at Cal State Fullerton.

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A Matter of Facts     Switching Sides     A Broken “System”     Means, Ends and 9/11

Did Georgia Execute an Innocent Man? (Part I)     With Some Mistakes There’s No Going Back

Tinkering With the Machinery of Death     Answering to a Different Authority

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