When I heard of this argument detailed below by Sarah Fabian I posted on social media that, “Human first. Lawyer second. Not sure she lived up to the potential of either.”  In response, another lawyer asked, “Did we not represent rapists?” 

My answer is simply that defending rapists is not the same as saying children do not need soap and toothbrushes.  But first here is the story of what Sarah Fabian said.

Sarah Fabian is the career lawyer from Department of Justice’s Office of Immigration Litigation who represented the Trump administration argued in the Ninth Circuit Court of Appeals that the federal government wasn’t legally required to provide soap and toothbrushes to detained migrant children in some conditions.  Fabian argued that forcing children to sleep on cold concrete floors in cells is both “safe and sanitary.”  Fabian was challenging an order by U.S. District Judge Gee in Los Angeles, who appointed an independent monitor to ensure that the federal government complies with the Flores settlement and specifically required such items as soap and toothbrushes. Fabian argued that such requirements are not detailed in the original settlement.

It should also be mentioned that the federal government has stopped English language classes, recreational programs like soccer games and legal aid for locked-up children.

The judges were openly hostile, incredulous that the government would argue that a facility is “safe and sanitary” even if the minors confined there have no soap, toothbrushes, or dark places to sleep. “I find that inconceivable that the government would say that that is safe and sanitary,” said Judge William Fletcher.  Likewise, Judge Marsha Berzon asked Fabian: “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?”  You can’t be sanitary or safe as a human being if you can’t sleep.” Judge A. Wallace Tashima (who as a child in World War II was confined to an internment camp with other Japanese Americans)  said that such items are “within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that?” he asked. “Do you agree to that?”  Fabian: “Well ... maybe.”

The judges ultimately suggested that the United States should consider whether it wanted to maintain the appeal—a signal that litigants ignore at their grave peril.

Various news sources Fabian was arguing that toiletries and related items or services might not be required to meet a condition of “safe and sanitary” in all circumstances, such as if a detainee were only staying in a facility for a matter of hours.  In appealing a 2017 ruling that found the government violated the 1997 consent decree known as the Flores Settlement Agreement, Fabian argued that the decree does not specifically enumerate those items as mandatory for detained (AKA imprisoned) children.  In response, Vice President Mike Pence has also weighed in, telling CNN on Sunday that “of course” detained children should have access to soap and toothbrushes.  Last year Fabian defended the administration’s policy of separating migrant children from their parents by arguing it had occurred by necessity and “not for the purpose of deterrence.”

As reported by news sources, the government’s “safe and sanitary” argument did not arise from a new case generated by Trump-administration policies. It arose in 1985, during the Reagan administration, when a 15-year-old Salvadoran child named Jenny Lisette Flores was detained after entering the United States illegally, hoping to escape her country’s vicious civil war. Flores spent two months at a facility in California, confined with adult strangers in poor conditions and strip-searched regularly. In July 1985, she and three other minors brought a class action against what was then called the Immigration and Naturalization Service, challenging its policies for the care and confinement of minors.

In 1997, after a dozen years of litigation, the parties settled the lawsuit in what became known as the “Flores Agreement.” The Flores Agreement requires, among other things, that the government hold minors in facilities that are “safe and sanitary” and that they be released from confinement without delay whenever possible.
During the Trump administration, United States District Judge Dolly Gee found that Customs and Border Protection (CBP) failed to provide adequate food and water to minors, that it did not maintain the facilities at adequate temperatures, and that it deprived the minors of sleep by confining them on concrete floors under bright lights. Gee also found that CBP’s obligation to provide “safe and sanitary” conditions included providing soap, dry towels, showers, toothbrushes, and dry clothes. Gee ultimately ordered CBP to appoint a monitor to bring its facilities into compliance with the Flores Agreement.

With this background, it is true to say that when I was a public defender, I defended all types of criminal cases, including homicides and sexual assaults.

However, I continue to maintain what Sarah Fabian is not comparable to what I did as a public defender.

The distinction is drawing a line between what a prosecutor does and what a defense attorney does.  As Justice Frankfurter once said, “In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.  Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558, 62 S. Ct. 754, 761, 86 L. Ed. 1016 (1942) (Frankfurter, J., dissenting). I draw the line where the government of the United States says children should not have soap or a lawyer to protect them.  Judge Harold R. Medina said, "The more odious and despicable the crime, the more important it is that justice be done."  XII, Lloyd Paul Stryker, The Art of Advocacy (1954). 

The line to be drawn here is the difference between a prosecutor and a defense attorney.  Justice Byron White understood that line and drew it as follows:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. 

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.  United States vs. Wade, 388 U.S. 218 (1967)

Thus a prosecutor “is an administrator of justice.”  As an administrator of justice, a prosecutor has a duty not merely to convict.”

In defending even people who may eventually be found guilty, I acted for justice.  Justice is not served when a representative of the United States government in the department of Justice acts to obscure the ascertainment of these true facts: that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary.
 
 

I still remember the case clearly.  My client had beat another guy until he was bloody in a fight outside of his work.  There was a history of both of the guys arguing at work, taunting each other.  One day after the other guy had taunted my client, my client beat him with a bat until the other guy was bloody.  From the witness stand during trial, the alleged victim testified how he heard one of his break as he was hit.
 
I saw the jury squirm at hearing this testimony. 
 
My client then took the stand.  He admitted he hit the guy.  He admitted he hit him to where he was bleeding.
 
But he said he only did so because the other guy came at him with a tire iron.  He knew from the past taunts the other guy meant business.  He had to hit him to the point he was bleeding because the guy kept coming at him with the tire iron and would not stop. 
 
Client found not guilty at trial.
 
From their first year in law school, lawyers taught there are two things necessary for a crime to exist:  mens rea (guilty mind) and actus rea (guilty act).  Mens rea refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. See, e.g. Staples v. United States, 511 US 600 (1994). Mens rea refers to all mental influences and thinking of someone who has engaged in wrongful or harmful conduct deemed to be blameworthy, and, therefore, deserving of punishment.  Mens rea also is understood to comprise the purpose, knowledge, recklessness, or negligence necessary to prove a given element of a crime. See, Douglas Husak, “Broad” Culpability and the Retributivist Dream, 9 OHIO ST.J.CRIM.L. 449, 454-60 (2012); Sanford Kadish, The Decline of Innocence, 26 CAMBRIDGE L.J. 273, 274-75 (1968).
 
 
Before proceeding with further discussion, I should mention there are some crimes with no mens rea requirement.  In United States v. United States Gypsum Co., 438 U.S. 422 (1978) the Supreme Court explained "the familiar proposition that '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.' "  Id. at 436.  The Court then emphasized its "generally inhospitable attitude to non-mens rea offenses," id. at 438, except in "limited circumstances." Id. at 437. These "limited circumstances" were regulatory crimes where inquiry into intent was unnecessary. Id. at 440-41.  See, State v. Collova, 79 Wis. 2d 473, 255 N.W.2d 581 (1977) (to save constitutionality of statute, mens rea element read into statute by court); United States v. Cordoba-Hincapie, 825 F. Supp. 485, 495 (E.D.N.Y. 1993) (explaining that mens rea requirements “flows from our society’s commitment to individual choice.”).
 
The sole purpose for having a criminal offense without a mens rea requirement is to keep from the jury's consideration a category of evidence that is a fundamental principle of justice, i.e., mens rea, that would help the defendant's case and weaken the government's case.  Such a distortion of the adversary process offends the fragile balance between prosecution and defense which the pursuit of truth and fairness in our adversarial proceedings mandates.  This unfair adversary system will ultimately not advance the public interest in truth and fairness.  Polk County v. Dodson, 454 U.S. 312, 318 (1981).  Anglo-American courts “ha[ve] long considered  a  defendant’s  intention—and  therefore his moral guilt—to be critical to ‘the degree of [his] criminal  culpability.”  Enmund v. Florida, 458 U.S. 782, 800 (1982).  The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty.  Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001, 2003, 2009 (2015); Morissette v. United States, 342 U.S. 246, 251 (1952) (noting that liability requires the “concurrence of an evil-meaning mind with an evil-doing hand”); People v. Valley Steel Prods. Co., 375 N.E.2d 1297, 1305 (Ill. 1978) (“It would be unthinkable to subject a person to a long term of imprisonment for an offense he might commit unknowingly.”).
 
In Wisconsin, defenses to a criminal charge termed “affirmative defenses.”  The baseball bat case I mentioned above illustrates an affirmative defense, self-defense.  When an affirmative defense is used, the defendant is basically affirming he committed the crime of which he is accused (hitting the person with the bat), but is offering an explanation or justification for the incident (I was defending myself).  When successful, an affirmative defense means the defendant is not guilty or help reduce the defendant’s legal liability.
 
WISCONSIN AFFIRMATIVE DEFENSES
 
Self-Defense.  A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what he or she reasonably believes to be an unlawful interference with his or her person by the other.  State v. Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194, 648 N.W.2d 413.  The actor may intentionally use only such force or threat of force as the actor reasonably believes is necessary to prevent or terminate the interference.  Wis. Stat. § 939.48; Wis. J.I.--Criminal 800, 805, 810, 815 (2001), 820 (1994); Head, 2002 WI 99, ¶ 4, 255 Wis. 2d 194.  Imperfect self-defense (unnecessary defensive force) is a partial defense to first-degree homicide, reducing the charge to second-degree intentional homicide.  Wis. Stat. § 940.01(2)(b); Head, 2002 WI 99, ¶ 69, 255 Wis. 2d 194.  Imperfect self-defense differs from self-defense in that either the belief that the actor was in imminent danger, or the belief that the force was necessary, is an unreasonable belief.  Head, 2002 WI 99, ¶ 90, 255 Wis. 2d 194.
 
Defense of Others.  A person is privileged to defend a third person from real or apparent unlawful interference by another under the same conditions, and by the same means, as those under and by which he or she is privileged to defend himself or herself, provided that he or she reasonably believes that the third person would be privileged to act in self-defense and that his or her intervention is necessary to protect the third person.  Wis. Stat. § 939.48(4); Wis. J.I.--Criminal 825, 830 (1994); see State v. Jones, 147 Wis. 2d 806, 434 N.W.2d 380 (1989); State v. Ambuehl, 145 Wis. 2d 343, 425 N.W.2d 649 (Ct. App. 1988).
 
Defense of Property.  A person is privileged to threaten or intentionally use force against another to prevent or terminate what the person reasonably believes to be an unlawful interference with his or her property.  Wis. Stat. § 939.49(1).  It is not reasonable to use intentional force intended, or likely, to cause death or great bodily harm for the sole purpose of defending one's property.  Only that amount of force necessary to prevent or terminate the interference is allowed.  Id.  This defense may be extended to protection of the property of third persons only if the third person is a member of the actor's immediate family or household, or is a person whose property the actor has a legal duty to protect.  Wis. Stat. § 939.49(2); Wis. J.I.--Criminal 855 (1994).
 
Coercion or Duress.  Coercion or duress is a defense if a threat by a person other than the defendant's co-conspirator caused the defendant reasonably to believe that his or her act was the only means of preventing imminent death or great bodily harm to himself or herself or to another, and caused the defendant so to act.  If the offense charged is first-degree intentional homicide, however, successful invocation of the defense will reduce the degree of the crime to second-degree intentional homicide.  Wis. Stat. § 939.46; Wis. J.I.--Criminal 790 (1995); see State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370 (1982); Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979); 1975).
 
Accident.  Accident is generally a defense if it negates a state of mind essential to the crime.  It also may be a defense when, in the exercise of a privilege, an unintended result occurs, such as the unintended killing of an innocent third person during a legitimate exercise of self-defense.  Wis. J.I.--Criminal 820 (1994) (privilege:  self-defense:  injury to innocent third party); see Wis. Stat. § 939.48(3); State v. Watkins, 2002 WI 101, ¶ 45, 255 Wis. 2d 265, 647 N.W.2d 244.  Like accident, a mistake is an honest error, whether of fact or of law other than criminal law, is a defense if it negates the existence of a state of mind essential to the crime.  A mistake as to a minor's age, as to the existence or constitutionality of the section under which the actor is prosecuted, or as to the scope or meaning of the terms used in that section is not a defense.  Wis. Stat. § 939.43; Wis. J.I.--Criminal 770 (1998); Flores v. State, 69 Wis. 2d 509, 230 N.W.2d 637 (1975).
Insanity/Mental Disease or Defect.  A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law.  Mental disease or defect excluding responsibility is an affirmative defense that the defendant must establish to a reasonable certainty by the greater weight of the credible evidence.  Wis. Stat. § 971.15; see Wis. J.I.--Criminal 600-662; State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985).
 
Entrapment.  This defense is available when a law enforcement officer has used improper methods to induce a defendant to commit an offense and, by the use of such methods, has succeeded in inducing the defendant to commit an offense that he or she was not otherwise did not have the intent or disposition to commit.  Wis. J.I.–Criminal 780 (2002); Jacobson v. United States, 503 U.S. 540, 548 (1992); Sherman v. United States, 356 U.S. 369 (1958); Hawthorne v. State, 43 Wis. 2d 82, 168 N.W.2d 85 (1969).
 
Involuntary Intoxication/Involuntary Drugged Condition.  Involuntary intoxication or involuntary drugged condition is a defense if the condition renders the actor incapable of distinguishing between right and wrong with regard to the alleged criminal act at the time the act is committed.  Wis. Stat. § 939.42(1); Wis. J.I.--Criminal 755 (1995); Loveday v. State, 74 Wis. 2d 503, 247 N.W.2d 116 (1976); see State v. Repp, 117 Wis. 2d 143, 342 N.W.2d 771 (Ct. App. 1983), aff'd, 122 Wis. 2d 246, 362 N.W.2d 415 (1985).  Involuntary intoxication also provides a defense when it prevents the state from proving a state of mind necessary for conviction.  Wis. Stat. § 939.42(2).
 
Necessity.  This defense is available when the pressure of natural physical forces causes the actor reasonably to believe that his or her act is the only means of preventing imminent public disaster or imminent death or great bodily harm to the actor or another.  Necessity is a defense to a prosecution for any crime based on that act; if the prosecution is for first-degree intentional homicide, however, successful use of the defense will reduce the degree of the crime to second-degree intentional homicide.  Wis. Stat. § 939.47; State v. Olsen, 99 Wis. 2d 572, 299 N.W.2d 632 (Ct. App. 1980).

The title of this article is of course a slight modification of a line contained in chapter 4, paragraph 1 of “The Trial” by Franz Kafka.  The picture comes from a leaked photo from a Texas courthouse shows 37 people accused of illegally entering the US being processed all at once.  This leaked photograph shows 37 defendants in orange prison jumpsuits shackled at the hands and feet to be processed en masse as part of the ongoing US clampdown on illegal immigration.  The image, leaked to the media, gives an unfamiliar glimpse into "Operation Streamline," a prosecution system in which up to 70 defendants in immigration cases can be charged and sentenced at once.
 
It is disgusting display in an American court.  Anyone who believes in justice should revolt against such a system that allows this procedure.
 
The initial issue arising from this procedure is whether someone who does not speak English (regardless of their primary language), or has English as a 2nd language, can make a knowing, voluntary and intelligent waiver of rights necessary to enter a guilty plea.
 
Unlike the Fourth Amendment, the Fifth Amendment applies to each "person." Accordingly, the Fifth Amendment applies to all persons within the United States, irrespective of their immigration status.  See Plyler v. Doe, 457 U.S. 202, 210 (1982); Wong Wing v. United States, 163 U.S. 228, 237 (1896).  The Supreme Court has recently reaffirmed that resident aliens in the United States "are entitled to the same protections under the [Self-Incrimination] Clause as citizens." United States v. Balsys, 524 U.S. 666, 671 (1998)  Similarly, Miranda protects aliens, lawfully present or otherwise, against the inherent pressures of custodial interrogation. See United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996); Barrera-Echavarria v. Rison, 44 F.3d 1441, 1449 (9th Cir. 1995); United States v. Henry, 604 F.2d 908, 914 (5th Cir. 1979).
 
This "concept" that has "become part of our national culture" is the notion that individuals enjoy a right to remain silent when questioned by police officials.  Dickerson v. United States, 530 U.S. 428, 443 (2000).  A clear statement of Miranda rights are critical to the integrity of the American legal system.  After all, if someone is not aware of his Fifth Amendment right against self-incrimination, then the right may as well not exist.  Miranda v. Arizona, 384 U.S. 436, 466 ( 1966).  Thus, Justice Scalia, a critic of Miranda, found it "implausible" that in "the modern age of frequently dramatized 'Miranda' warnings," a "person under investigation may be unaware of his right to remain silent[.]"  Brogan v. United States, 522 U.S. 398, 405 (1998).  Clearly, "right to remain silent sounds like a bedrock principle, and everyone knows about it."  Orin Kerr, Do You Have A Right to Remain Silent? Thoughts on the "Sleeper" Criminal Procedure Case of the Term, Salinas v. Texas, THE VOLOKH CONSPIRACY (June 17, 2013).
 
In the case of People v. Gutierrez, 137 Cal. App. 3d 542, 546, 187 Cal. Rptr. 130, 132 (Cal. Ct. App. 1983) it was found that where a trial court's does not allow defense counsel to ask a defendant's exact words in Spanish violated the Sixth Amendment.  This is important because of critical differences between the English language and the Spanish language.
 
For instance, there is the problem of false cognates in the Miranda warnings.  A cognate is an easy word to remember because it looks and means the same thing as a word you already know.  The Spanish verb "apuntar" looks like the English word "to appoint." "Apuntar," however, does not meant "to appoint"; it means "to point to." The proper Spanish verb for "to appoint" is "otorgar."  State v. Santiago,  206 Wis.2d 3, 18, 556 N.W.2d 687, 691  (1996) (discussing the "apuntar" false cognate), see also United States ex rel. Verdin v. O'Leary, 1990 WL 103653, * 7 (N.D. Ill. July 3, 1990) (noting the difference between the Spanish words for "to point to" and "to appoint"), rev'd, 972 F.2d 1467 (7th Cir. 1992).
 
Likewise, there can be a problem in translation if the target language may have two or more different words for two or more different meanings of an English word. In State v. Ramirez, the interpreter used the Spanish word for "the right hand side" ("derecha") instead of the Spanish word for "right" in the legal sense ("derecho"). See State v. Ramirez, 135 Ohio App. 89, 1999 WL 1313670, *4 (Ohio Ct. App. Dec. 27, 1999).Additionally, the interpreter told the suspect in Spanish that he had rights underneath ("bajo") the law in a physical sense rather than on the basis of ("de acuerdo con") the law. Id

Tell me than did this mass appearence in a court allow for free, voluntary and intelligent pleas?

Do not think for a second that the story you are about to hear could not happen in Wisconsin.  Here’s a succinct summary of State v. John S. Finley, 2018AP258-CR, District 2, decided June 12, 2019 : “The Majority supports the government’s  ‘interview,’ which utilized lies, threats, and fabrication of evidence to wrestle a statement from a thirty-six-year-old man, who has the mind of a twelve year old and the social skills of a first grader.” (¶24 (Reilly, P.J., dissenting) (footnote omitted)).

It was Jan. 3, 1989. Keziah Burton had been murdered.  She lay face down on the bed, stabbed twice in the neck.  Her nightgown had been pulled up to her waist. A blue telephone cord was wrapped around her right wrist.   Her son, Huwe Burton, then 16, who had no criminal history and a close-knit relationship with his parents and extended family, said he found his mother murdered when he came home that evening, after having spent the day at school and then at his girlfriend’s house. 

But two days later, after detectives had interrogated him for hours, Mr. Burton confessed to the police that he had stabbed his mother while high on crack during an argument. Police arrested him for murder.  Of course, he denied that confession to the police.  Police had caught a neighbor with a history of violence driving the dead mother's stolen car, but they did not consider him a suspect because Burton had confessed.  

A jury believed the confession to the police and convicted him of murder. He served nearly 20 years in prison before being paroled in 2009.  However, in January 2019, Judge Steven L. Barrett ruled that someone else killed Ms. Burton, and that detectives had used psychologically coercive interrogation techniques to get Mr. Burton to give a false confession. Based on these findings, the recommended that Burton’s conviction be vacated and the charges be dismissed.

This was after a the two-year re-investigation that uncovered newly discovered evidence.   This evidence was gathered by the lawyers for the Innocence Project and the Bronx District Attorney’s Conviction Integrity Unit (CIU) which found new evidence including: (1) scientific and scholarly research confirming that the psychologically coercive techniques used by the detectives produce false confessions; (2) the same detectives who elicited Burton’s false confession also obtained false confessions from two other individuals three months earlier; and (3) the background and prior criminal history of the alternate suspect, Emanuel Green, that strongly supports the defense team’s contention that Green committed the crime alone.  During an interrogation, the police led Mr. Burton to believe that if he confessed to killing his mother he would not be charged with statutory rape for having had consensual sex with his girlfriend, who was only 13 year old.

Burton’s conviction was based largely on a confession he made to three detectives—Frank Viggiano, Stanley Schiffman and Sevelie Jones—from the 47th Precinct who used psychologically coercive techniques that were standard practice at the time. The techniques included isolating Burton from his father, threatening him with additional criminal charges and, ultimately, offering leniency if he confessed to killing his mother. Sleep deprived and traumatized by his mother’s death, Burton provided a written and recorded statement that he’d accidentally stabbed his mother during an argument when she would not give him money to pay a debt to a drug dealer.

Frightenly, Justice Barrett said he had presided over another homicide case in 1988 in which the same detectives who had elicited a false confession from Mr. Burton had coerced phony statements from two men, who implicated a third man in the murder. It later came out the third man was in jail at the time of the killing and could not have been involved.

In fact, according to Saul Kassin, a psychologist at the John Jay College of Criminal Justice in New York City who is one of the world's leading experts on interrogation.  Kassin explained that false confessions are not rare: More than a quarter of the 365 people exonerated in recent decades by the nonprofit Innocence Project had confessed to their alleged crime. Drawing on more than 30 years of research, Kassin has explained how standard interrogation techniques, known to police as the John Reid techniques, combine psychological pressures and escape hatches that can easily cause an innocent person to confess. Kassin also explains how young people are particularly vulnerable to confessing, especially when stressed, tired, or traumatized, as Burton was. Kassin has said confessions that look real can actually be false, even if they’re corroborated by informants and forensic science.

Kassin makes perhaps the most crucial point: confessions are often the first piece of evidence collected by police. Once the police had a confession, all the other evidence lined up to support it so the case can be quickly “cleared.”  Psychological research calls this behavioral confirmation bias.  See Rosenthal, Covert communication in classrooms, clinics, courtrooms and cubicles, 57 American Psychologist 839-49 (2002); Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in many guises 2 Review of General Psychology 175-220 (1998).  Interestingly, people without a criminal record are more likely to give a confession.  Leo, Inside the interrogation Room, 86 J. Crim. L. & Criminology 266 (Winter 1996).

Kassin points out a really sad consequence of this tunnel vision: when confessions have turned out to be false, appeals courts have ruled that the other evidence is strong enough to support the conviction.  In Kassin’s words: "The courts completely missed out that the other evidence was corrupted."

SOURCES: “He Spent 19 Years in Prison for Murder. Now Prosecutors Say His Confession Was Coerced. N.Y. Times” (Jan. 24, 2019); This psychologist explains why people confess to crimes they didn’t commit, Science June 13, 2019

Multiple Democratic presidential candidates have staked their campaigns on promises to fight for economic justice and protect low-income people from ruin. So it's mysterious and frustrating that none of these candidates have proposed to end our justice system's criminalization of poverty — at least beyond the occasional nod to ending money bail.
These candidates are missing an opportunity. The incomes of people in U.S. prisons and local jails are overwhelmingly low, and one in two American adults has had a close relative incarcerated, meaning that a candidate who understands the criminalization of poverty could propose transformative reforms and speak to a huge number of voters. In particular, candidates are missing an opportunity to speak to Black voters, who are hit hardest by policies that punish poor people.
To be sure, many Democratic candidates have alluded to economic inequality in connection with criminal justice reform — and Bernie Sanders even uses the phrase "criminalizing poverty" on his campaign website — but I've seen no indication that any of the candidates can speak to either the specifics or the scale of this problem. Candidates must go beyond criticizing money bail, and promise to end the unequal treatment of poor people at every stage of the justice process:

1. End poverty-related arrests and jail bookings. Far too many Americans who can't afford housing, drug treatment or mental health services are instead arrested on minor charges related to their homelessness or illness. Many others end up in jail because they can't afford burdensome fines and fees. An unfortunate downstream effect is jail overcrowding, which leads counties — largely in rural areas — to spend public money on harmful jail expansion rather than social welfare.
Presidential candidates should commit to helping state and local governments shift their priorities, making it easier to support low-income people and harder to jail them:

• Equip cities and towns with universal housing, mental health services, and drug treatment, and invest in public schools and after-school programs in cash-strapped school districts.
• Whenever appropriate, redirect federal funding for county jail expansion to instead fund these critical public goods.
• Decriminalize possession and low-level sales of all drugs, and expunge the criminal records of people convicted of these offenses.
• Incentivize states to decriminalize behaviors stemming from homelessness, such as sleeping outside.
• Stop county courts from imposing fees without first considering one's ability to pay, and incentivize states to abolish court-imposed fees and discharge all fee debt.

 
2. Guarantee poor people equal justice before trial. Two major injustices — pretrial detention and lack of access to counsel — ensure that low-income people are disproportionately convicted. Pretrial detention doesn't just make defendants more likely to plead guilty; it also puts them at risk of losing their jobs and homes, and imposes huge costs on their families, before they're ever convicted.
Candidates should promise to:

• Ensure that local public defender systems are fully funded, that they no longer charge co-pays to defendants, and that counsel is guaranteed at any hearing that could result in detention.
• Incentivize counties to drastically reduce pretrial detention by ending commercial money bail, and replacing it with release on recognizance, unsecured bonds, and other alternatives.
• Use the power of the Federal Communications Commission to regulate the cost of phone calls from jail, which can strain public defenders' resources, not to mention those of family members.
• Subsidize county-level pretrial services to help low-income people make their court dates, such as text reminders and free childcare at court.
  

3. Stop forcing low-income families to subsidize the prison system. When someone goes to prison, their loved ones become their source of financial support. The financial pressure on these families grows when prisons fail to provide basic services, often driving families into debt. It shouldn't be on relatives — disproportionately women — to pay for phone calls, medical care, nutritious food and educational resources for those behind bars, often when they've just lost a breadwinner.
Presidential candidates should commit to paying for incarcerated people's needs to lift this burden on families:

• End the Medicaid exception for people in prison, and abolish all charges for doctor visits and over-the-counter medication. Ensure that all federal and state prisons offer medication-assisted opioid treatment.
• Incentivize states and counties to pay for the cost of phone calls, email, and other technologies that allow incarcerated people to stay connected to their families.
• Use the muscle of federal agencies like the Consumer Financial Protection Bureau and Federal Trade Commission to regulate the market for prison services, such as money transfer services (which currently charge families exorbitant deposit fees).
• Restore Pell Grants to incarcerated people, and fully fund in-prison programs granting high school and college degrees.
• Require state departments of correction to provide nutritious meals that meet daily caloric requirements, instead of forcing incarcerated people to supplement their meals by buying from the prison commissary.
  

4. Protect people from going back to prison just because they're poor. Incarcerated people who come from under-resourced neighborhoods tend to return to those same neighborhoods after prison, now saddled with criminal records and far poorer than before.
Presidential candidates should avoid old narratives about how more surveillance, monitoring and job training are needed to "reduce recidivism" among people leaving prison. Instead, they should call the reentry process what it is: a period of extreme vulnerability that mostly affects impoverished people, and that can't be improved without serious investments in formerly incarcerated people's welfare. They should commit to:

• Identify the communities to which most formerly incarcerated people return, and subsidize additional low-income housing, drug treatment and mental health services in those communities.
• Help states create Departments of Reentry that connect people nearing release to permanent housing, medical care, and other resources.
• Incentivize states to pass laws expanding criminal record expungement, including automatic expungement for people convicted of minor offenses.
• End the harmful restrictions on association that prohibit formerly incarcerated people from helping each other rebuild their lives.
• Restore welfare benefits, including housing assistance, to people with criminal records.
• Urge states to abolish probation and parole fees, including fees for ankle monitors. End so-called "pay-only" probation schemes, which extract fees without providing any "services" at all.
• Incentivize states to "ban the box" on job applications, and to end restrictions on occupational licenses that lock people with criminal records out of good jobs.
• Expand federal tax benefits for businesses that hire people with criminal records.
• Incentivize states to end laws suspending driver's licenses for non-driving offenses.

To be sure, there are many other policy changes that could help end the criminalization of poverty; this list is only a starting point. But it should be alarming that most of these policy options have gone unmentioned by any presidential candidate. Until the candidates commit to ending our criminal justice system's abuse of poor people from arrest to release (and afterwards), their visions for economic justice won't be complete.

by Wanda Bertram
https://www.prisonpolicy.org/blog/2019/06/12/criminalization_poverty/

 

Kasey Thompson, a software engineer at Boeing tells a story that demonstrates that you only get the right answers by asking the right questions.

During WWII, the Navy tried to determine where they needed to armor their aircraft to ensure they came back home. They ran an analysis of where planes had been shot up, and came up with the diagram above.  The meaning, so they believed, was plain..

Obviously the places that needed to be up-armored are the wingtips, the central body, and the elevators. That’s where the planes were all getting shot up.

Abraham Wald, a statistician, disagreed. He thought they should better armor the nose area, engines, and mid-body. Which was crazy, of course. That’s not where the planes were getting shot.

Except Mr. Wald realized what the others didn’t.  The planes were getting shot there too, but they weren’t making it home.

What the Navy thought it had done was analyze where aircraft were suffering the most damage. What they had actually done was analyze where aircraft could suffer the most damage without catastrophic failure. All of the places that weren’t hit? Those planes had been shot there and crashed. They weren’t looking at the whole sample set, only the survivors.

​Presidents do it.  Mister Rogers did it.  Professional athletes do it.  Monkeys do it.  So do police.
What symbolic speech did all these people do?  Look at the pictures.

Despite the example set by all these people, when an everyday citizen makes the gesture to the police to protest government treatment, they risk arrest.  Coggin v. Texas, 123 S.W.3d 82, 90 n.3 (Tex. App. 2003)  It is the one finger salute, the finger rhythm, giving someone the finger or the bird or flipping someone off and some suggest it is am obscene hand gesture allowing someone to be arrested.  If you believe in the First Amendment, that arresting someone because they have flipped off a cop is wrong.

This despite the U.S. Supreme Court striking down an ordinance which made it illegal to interrupt an officer with speech.  City of Houston Texas v. Hill 107 SCT 2502(1987).  Subsequently, in Duran v. City of Douglas, 904 F.2d 1372 (9th Cir.1990) it was held that that a police officer did not have probable cause to stop an individual for the obscene gestures and words he directed from his car towards the police officer and that the officer was not entitled to qualified immunity. “While the citizens behavior was "boorish, crass and initially at least, unjustified...it was not illegal.... But disgraceful as [the defendant's] behavior may have been, it was not illegal; criticism of the police is not a crime.” Id. at 1377-78, citing Houston v. Hill, 482 U.S. 451, 461–63, 107 S.Ct. 2502, 2509–10, 96 L.Ed.2d 398 (1987).  Other courts have reached the same results.  Pennsylvania v. Kelly, 758 A.2d 1284, 1288 (Pa. Super. Ct. 2000); Nichols v. Chacon, 110 F. Supp. 2d 1099, 1110 (W.D. Ark. 2000). 

This is because in addition to simple verbal expression, the First Amendment protects actions symbolic of speech.  See, e.g., Cohen v. California, 403 U.S.15 (1971) (wearing jacket with the words “Fuck the Draft” on it); Tinker v. Des Moines School District, 393 U.S. 503 (1969) (wearing black arm band to protest Vietnam War); Brown v. Louisiana, 383 U.S. 131, 142 (1966) (Fortas,J); West Virginia State Board of Ed. v. Barnette, 319 U.S. 624, 642 (1943); Stromberg v. California, 283 U.S.359, 369 (1931).  The prosecution of symbolic speech is prohibited because it penalizes an individual for the expression of an idea through activity.  Spence v. Washington, 418 U.S. 405, 411 (1977)

An important function of symbolic speech is to invite dispute. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949).  Moreover, symbolic speech best serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Symbolic speech should be provocative and challenging.  Terminiello, 337 U.S. at 4.  Such freedom will not cause the disintegration of society but will strengthen it.  Barnette, 319 U.S. at 641-42.  “ The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”  City of Houston, Texas v. Hill, 482 U.S. 451, 462-63 (1987).

The police believe flipping off a person is constitutionally protected as well.  Professor Ira P. Robbins explains the following story told to him by a former police chief:

Several years ago, I was Chief of Police in Tulsa, Oklahoma. One of my fearless troops was driving down the street when a young man extended his middle finger in an obscene gesture, prohibited by the ordinances of the City of Tulsa. The young man was immediately arrested and charged in Tulsa's Municipal Court with violating the ordinance. At a motion hearing the officer testified; the judge ruled that extending the middle finger was an act protected by the First Amendment's freedom of expression ... and declared the ordinance as applied to extending the middle finger unconstitutional. As the young officer was leaving the court room he stopped, turned back and extended his middle finger while saying, "Thank you very much, Judge."

​Therefore flipping the bird to a cop may be an insult, but nevertheless you are at least constitutionally protected.  However, that may not be enough on the street.

It is crucial to examine problems with pretrial detention.  First the cost to taxpayers to house innocent defendants before trial is staggering.  Two thirds of the approximately 740,000 people in jails have NEVER been convicted of a crime.  In 1970, 53% of the jail population was made up of pretrial detainees.  In 2015, that number has jumped to 64%.  That is a 433% increase!  Jailing these innocent people costs U.S. taxpayers approximately $38 million every day, or $14 billion annually.

But there are more hidden costs to society reaching as high as $140 billion per year, according to the Pretrial Justice institute report. The consequences of pretrial incarceration include loss of employment and opportunity. If defendants can’t show up to work, they may get fired and lose access to benefits, including public assistance for housing. They can fall behind on payments for housing and car loans, or be cut off from health care or family support networks.

Cash bail actually hurts the system by making it less likely for people to appear for court.  A 2013 study found that people detained in jail two to three days pretrial and then released prior to the outcomes of their cases were slightly more likely (1.09 times) to fail to appear than people detained for up to one day.19 The impact of longer stays in pretrial detention was greatest for people otherwise considered “low risk” for FTA or a new arrest while awaiting trial, as determined by a pretrial risk assessment tool.

Elizabeth Swavola, program manager at the Vera Institute for Justice, indicates that a growing body of evidence suggests pretrial detention is not as effective as system stakeholders may believe it to be. Studies also show that people who spend time in jail pretrial are treated more punitively than similarly situated people who are released: they are more likely to be convicted, sentenced to incarceration and to receive longer sentences. Finally, because inability to pay monetary bail is what often keeps people in pretrial detention, it has a disparate impact on poor and low-income communities and communities of color.

Wisconsin case law explains that arbitrary action by a circuit court undermines attorney and public confidence that they will receive fair treatment by the circuit court. The conduct of those who aspire to be judges, both off the bench but particularly on the bench, must be such as to warrant the respect of the public and the confidence of litigants that they will be treated fairly, impartially and considerately.  Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1 (1998).  A circuit court's interest in creating a particular courtroom "culture" does not outweigh the need for fairness.  Due process protects against arbitrary judicial bail decisions.  State v. Ransdell, 2001 WI App 202.  Data demonstrate the arbitrariness judicial cash bail decisions. 

A study by Megan Stevenson, a fellow at the University of Pennsylvania Law School, found two interesting facts from her data: one, that when facing equivalent bail amounts, people from low-income ZIP codes are less able to afford bail than people from wealthier neighborhoods and, therefore, are more likely to be detained.  Further, judges tend to release women at higher rates and set lower bail amounts for them.

Finally, and perhaps most importantly, it has to be understood that to end the blight of mass incarceration in America we must first attack the arbitrary practice of cash bail.  According to the New York City Criminal Justice Agency, you are more likely to be convicted of the crime charged when you are detained prior to trial.  Phillips, Mary T. 2008. “Bail, Detention, & Felony Case Outcomes.” Research Brief series, no. 18. New York: New York City Criminal Justice Agency, Inc. ; Phillips, Mary T. 2007. “Bail, Detention, & Nonfelony Case Outcomes.” Research Brief series, no. 14. New York: New York City Criminal Justice Agency, Inc.  Whether you are detained before trial can very well predict whether you are eventually convicted, as people become desperate to leave jail and agree to plea deals. Some prosecutors know how to work this system and take advantage of these desperate situations.

The money bail system only exacerbates the existing, egregious disparities in our justice system.  It has been found that American courts set significantly higher bail amounts for black individuals than they do for white individuals, which is only compounded by the likelihood that people of color are more likely to serve pretrial time for accused crimes.  On top of this fact, courts across the country are using digital risk assessment algorithms (RAAs) to recommend bail amounts for accused criminals. But it has been found that these systems — despite relying on the ones and zeros of a machine — are frequently prejudiced, falsely flagging black individuals as high-risk, for instance, at twice the rate of whites.

Lets face it: cops have a lot to deal with when out on the streets.  Deciding whether someone is drunk, high or mentally ill can be difficult out on the streets.  Mental illness is not always obvious and may be mistaken for other conditions.  For instance a police officer may interpret a person with autism to be suspicious because of the following observations: (1) the person lacks or has too much eye contact, (2) no expression or bland behavior (3) unusual speaking patterns including but not limited to direct, curt short answers (4) physical display of coping mechanisms such as repetitive body movements, crying, holding ears, yelling, singing or going into a fetal position.  Additional observations could be slower to respond and may freeze when asked many questions and fine and gross motor skills are impacted, which affects the ability to multitask, such as reaching for a driver’s license, writing skills when signing a ticket and talking, and clumsiness when walking.

Further various sensory issues may be a problem in a police encounter with a mentally ill person: bright flashing lights on a squad car and loud sounds are often painful and/or distractible, cause them to pause to respond, shiny badges and flashlights can be a painful distraction, Touch sensitivities means holding their arm or grabbing abruptly causes pain, Smells such as cologne/perfume or strong tobacco may cause sensory overload and they shut down.

That is why Texas trooper recruits are being trained specifically for understanding the autistic traits they may encounter such as delayed response, coping mechanisms and nervous ticks during a typical pull-over. This is a result of Texas  Transportation  Code  §521.125 (“The Samuel Allen Law”) allows  the  Texas  Department  of  Public  Safety  to  include on the back of an individual’s driver license or identification card any health condition that may impede the individual’s communication with a peace officer.  On the back of the license is printed “RESTRICTIONS: Communication Impediment”  The Texas Governor’s Committee on People with Disabilities (GCPD) has worked alongside Aspergers101 and the Texas Department of Public Safety to include the “communication impediment” phrase on licenses of drivers who qualify.

 The program was endorsed by Dr. Temple Grandin, who is a professor and advocate for people on the autism spectrum, such as herself.  According to Dr. Temple Grandin: “I want to emphasize that Asperger’s and Autism are not separate conditions. Asperger’s is just the milder end of the continuum. There’s no black and white dividing line between a mild case of autism and geek and nerd. They are the same thing. It is a continuum of traits. The mind can either develop to be more thinking and cognitive or it can be developed to be more social. There’s a point where it just merges into part of your personality.”

Citizens utilizing this option are able to inform law enforcement of the diagnosis of: Autism, Asperger Syndrome, Mild intellectual disability, Deafness, Speech & languages disorders, Expressive Language Disorder, Down Syndrome, Post-Traumatic Stress Disorder, Deafness, Brain Injury or Parkinson’s Disease. and other communication challenges.  “Learning to drive can be a very scary concept, and especially more so if you have high-functioning autism or Aspergers,” said Samuel Allen, the son of Aspergers101 founder Jennifer Allen. “I feel protected knowing that ‘communication impediment’ is printed on my driver’s license.”

The health condition must be evidenced by this signed statement from a licensed physician. By providing this information, the phrase “communication impediment” will be printed on the reverse side of the driver license or identification card.  Unfortunately, while the form applying for this designation is a confidential driver record, apparently it has been suggested that the medical information provided under this program is not protected and is subject to release under the Public Information Act.

So what is an effective way for police to talk with a mentally ill person during a traffic stop:
    Be factual. Tell them why you pulled them over. Don’t ask them.
    Allow time for them to respond (approximately 20 seconds per question).
    Reassure them they are not going to jail as this is the first thing they picture when pulled over.
    Talk in medium-level tones as loud, sudden sounds can scare and cause a painful delay in response.
    State, step by step, what your intentions are and what you expect from them during the stop. Never assume they know what is expected of them.
    Do not take a lack of eye contact, the changing of subjects, or answers that are vague, evasive, or blunt as evidence of guilt.
    Let them know when the interaction is over, and they are free to drive off.
 

By Dara Linddara@vox.com Updated Mar 22, 2017, 10:54am EDT


It's been a quarter-century since a former criminal defense lawyer sat on the Supreme Court.
Since then, crime has fallen by half. Incarceration has risen, then fallen (slightly) again. Americans are becoming more and more critical of the "tough-on-crime" mindset that defined the end of the 20th century, and more skeptical that police and prosecutors will always use their powers for good — in other words, they're coming in line with how defense lawyers see the world.
But if Supreme Court nominee Neil Gorsuch is confirmed by the Senate — as he's likely to be — the court will have three ex-prosecutors. It will have zero former criminal defenders.
Appellate defense lawyer Timothy O'Toole points out that the Court has veterans of both sides of civil cases (defendants' and plaintiffs' lawyers) and one side of criminal cases (prosecutors). "But the one group that seems kind of outside that box, particularly on the Supreme Court, are defense lawyers. And that's a shame."
Defense lawyers and scholars worry this isn't an accident; it's the result of the structure that shapes who can get nominated to the Supreme Court to begin with. Federal judges tend to be people who "ticked all the political checkboxes on their career starting from when they were 15," says Tejas Bhatt, assistant public defender for New Haven, Connecticut. Often one of those boxes is working as a prosecutor.
Even beyond any particular career experience, the system rewards "people who don't take controversial positions, they don't do controversial things, who don't issue controversial opinions, who do seem to hew more toward law and order and enforcement."
Chip Somodevilla/Getty
There's good reason to be concerned about the jurisprudence of a court that only understands one side of a criminal case from experience — and since the high-water mark of the 1960s, defense lawyers have seen the Supreme Court put serious restrictions on the right against self-incrimination, the right against unreasonable search, and even the right to a lawyer.
But to many of them, this isn't just a problem with jurisprudence. It's a problem with the Supreme Court in a democracy — and in an increasingly diverse America. They believe the politics of Supreme Court confirmations has limited all but a very narrow, very privileged slice of America to have a shot at a seat on the highest court in the land. And one of the groups who they fear are locked out is the people whose job it is to stand up for the rights of the marginalized — and those who are on the wrong side of well-intentioned laws.
The dangers of a prosecutor-friendly Court
Here's what's at stake. A large swath of the Bill of Rights is dedicated to protecting suspects in criminal investigations and defendants in criminal trials: the right against unreasonable search in the Fourth Amendment; the right against self-incrimination and the right to due process in the Fifth Amendment; the right to a jury trial and a lawyer in the Sixth Amendment; the right against cruel and unusual punishment in the Eighth Amendment.
In theory, how far these rights really extend is a matter of constitutional interpretation — transcending justices' personal sympathies (for victims of crime, for the accused, for prosecutors) or their feelings toward the criminal justice system in America today.
In practice? Nah.
In 2005, Boston University law professor Ward Farnsworth suggested that how much a justice thought the Constitution protected defendants relied more on how the justice felt about defendants than how she felt about the Constitution.
By analyzing decisions in criminal law cases from 1953 to 2002 — separating cases in which people claimed their constitutional rights had been violated from other criminal cases (involving, say, the interpretation of a federal law or a procedural rule) — Farnsworth found a pattern.
In non-constitutional cases, where the disagreements were largely about policy, some justices consistently sided with the prosecution and others consistently sided with the defense. That's predictable enough — some judges (often conservative) tend to favor law and order, while others (often liberal) tend to be skeptical of law enforcement.
But the same thing happened in cases where, in theory, the justices were disagreeing about constitutional rights. Justices who sided against defendants in policy cases also tended to see their constitutional rights as narrower. Justices who sided with defendants in policy cases tended to agree that their constitutional rights were more expansive too.
If you're already used to thinking of Supreme Court justices as political actors, this correlation isn't surprising. But that doesn't mean it's not important. Over the past half-century, we've seen how much the Court's interpretation of the rights of defendants can vary — and how much it matters.
Justices who served on the Supreme Court during the 1953-2002 period. Empty circles reflect how often the justice voted for the government (i.e. the prosecution) in cases involving constitutional questions; filled-in circles represent how often she voted for the prosecution the rest of the time. Ward Farnsworth/Michigan Law Review
Fifty years ago, under Chief Justice Earl Warren, the Supreme Court gave us the right to a public defender as we know it (Gideon v. Wainwright). It gave us the idea that a suspect must be told of his right to remain silent (Miranda v. Arizona). It gave us the rule that any evidence obtained under an unconstitutional search — even if it proves the defendant's guilt — is prohibited from being entered in court (Mapp v. Ohio). It gave us the requirement that if the prosecution discovers evidence that might prove the defendant wasn't guilty, it has to turn that evidence over to the defense (Brady v. Maryland).
But in the decades since, the Court has eroded those rights.
Defendants now have to declare that they're invoking the right to remain silent in order to end questioning. The right to a lawyer has been (in the eyes of some) compromised, as the Court has given the government more power to seize bank accounts that could be used to pay for defense. And the right to exclude illegally obtained evidence has been rendered less meaningful, as the Court has carved out more and more exceptions for police to engage in searches and surveillance without a warrant.
As Farnsworth found, ideological sympathies definitely shape constitutional jurisprudence — and personal experience shapes ideological sympathies. The concern of a prosecutor-stacked Court is that its members might be too likely to zero in on the guilt of the defendant, and forgive the methods used to catch him.
But working as a prosecutor doesn't automatically flip a switch and make someone permanently more sympathetic to prosecutors — just look at former prosecutor Chief Justice Warren himself. Or just look at the two former prosecutors currently on the Court — Justice Samuel Alito and Justice Sonia Sotomayor.
The Court's current ex-prosecutors see the law in very different ways
"Having experience as a prosecutor probably tells you something about where people's values were when they decided to get a job as a lawyer at the beginning," says O'Toole.
In the case of Samuel Alito (who's been on the Court since 2005), that's abundantly clear: Alito once wrote on a job application that his interest in the law had been inspired by his disagreement with the liberal, pro-defendant decisions made in the 1960s by the Warren Court.
He's certainly made his dissatisfaction felt — by helping roll back many of those decisions.
Alito wrote the 2013 opinion Salinas v. Texas, which said that the defendant had to explicitly say he was remaining silent in order for it to count. Where the Warren Court limited the police's ability to obtain evidence in searches, Alito wrote the 2014 opinion Fernandez v. California — which ruled that it was legal for police to search a residence even if one of the occupants objects, as long as that occupant isn't around (i.e., he's already been arrested).
"Alito quite clearly has a disdain for people who are on the other side of crime, and a lack of respect for people who are defendants in the criminal justice system," says appeals court defense attorney Matt Kaiser.
If Alito is evidence that "once a prosecutor, always a prosecutor," the Court's other former prosecutor, Sonia Sotomayor, represents an alternative that O'Toole and other lawyers say is common: judges whose experience as prosecutors leads them to have a more realistic, tempered view of law enforcement.
Thanks to what law professor Tony O'Rourke calls a "healthier appreciation of, let's say, the diversity of professionalism" among police and prosecutors in the field, Sotomayor is arguably the most pro-defendant justice on the current Court.
When other justices ruled that a suspect had to explicitly say, "I want to remain silent," to keep his Miranda rights in a 2014 case, Sotomayor pointed out: "The Miranda warnings give no hint that a suspect should use those magic words, and there is little reason to believe police — who have ample incentives to avoid invocation — will provide such guidance."
The members of the Supreme Court meet with President Obama in 2009, prior to Justice Sonia Sotomayor's swearing-in. Pete Souza/The White House via Getty
O'Rourke points out that while Sotomayor and Alito were both prosecutors, they weren't the same type of prosecutor. "Justice Sotomayor cut her teeth in the Manhattan District Attorney's Office," he says. "She's used to dealing with the realities of a relatively resource-constrained prosecutor's office, as opposed to, say, a US attorney's office." In other words, she's used to criminal investigations that are constrained not just by rules, but by the logistical realities of a broad caseload and a sometimes less-than-professional police force.
Alito, on the other hand, "was in a US attorney's office in a relatively elite district." His police force — the FBI — was a fairly professional one. So the things that kept him from doing his job the way he wanted to do it were, O'Rourke says, "the internal policies and practices of the US attorney's manual." It makes sense that he'd regard those as unwelcome bureaucratic constraints.
But of course, the fact of the matter is that Sonia Sotomayor and Samuel Alito weren't identical people before they started their respective law careers. Sotomayor's experience as a prosecutor is layered on top of her experience as a Latina from a working-class family. Her background is more similar to some of the defendants than to that of other justices on the Court.
That matters. Like it or not, the justices are more concerned about constitutional overreach by law enforcement when they can imagine themselves, or people like them, as the targets.
Rachel Levinson-Waldman, a privacy expert at the Brennan Center for Justice, argues that this explains a few recent decisions the Court has made restricting law enforcement's use of technology.
Cellphones: Even affluent white people use them! Win McNamee/Getty
Previously, she says, the Court had ruled that individuals couldn't expect privacy from law enforcement when doing anything in public (say, driving around). But in 2012, the Court ruled that attaching a GPS device to a suspect's car qualified as a police search under the Fourth Amendment.
"One of the things that changed the justices' mode of thinking," Levinson-Waldman says, "is, 'Wait a minute, these GPS devices could be put onto our cars if the government's theory is right.' That's when it started to seem very personal."
Something similar happened in 2014, when the Court ruled that police couldn't search a suspect's cellphone without a warrant: Justices "went, 'I have a cellphone, I have an iPhone,'" Levinson-Waldman says.
"But these surveillance technologies don't just come into existence when they affect the lives of basically wealthy, highly educated, highly powerful people," she continues. "They are used far before that. They're used first on marginalized communities, they're used on communities of color." They're used on people in whom only Sotomayor might recognize herself.
The system that encourages would-be Supreme Court justices to start planning out their careers at the age of 15 doesn't allow for many Sonia Sotomayors. They're more likely to be "the 1 percent of the 1 percent," says Bhatt.
Only people from elite backgrounds are likely to know at a young age that there's a fairly established career path for the federal judiciary: "Go to a prestigious law school, work at some big white-collar firm, go to the US attorney's office, put in my time there, and then get nominated to the bench." And their risk-averse route doesn't allow them to come into contact with the people who tend to rely on the Bill of Rights' criminal protections the most.
Former prosecutors assume all prosecutors are as scrupulous as they were
The problem isn't that mediocre prosecutors get rewarded with federal judgeships, much less slots on the Supreme Court. It's the opposite.
Ex-prosecutors who make it to the Supreme Court — the Sonia Sotomayors, Samuel Alitos, and perhaps Neil Gorsuchs of the world — were only the best, most scrupulous prosecutors. That creates its own failure of empathy.
"Here's the core problem," says Kaiser, the criminal appeals lawyer. "When prosecutors are on the Supreme Court and they're making rules about criminal cases, and they're making rules about what prosecutors are supposed to do, they think about themselves when they think about people following those rules."
Those blind spots become most apparent when the Court is presented with a case where prosecutors try to use the Supreme Court's own rules as a way to gain the upper hand.
Earlier this year, the Supreme Court took a case out of Louisiana regarding the Warren-era precedent Brady v. Maryland, which established that it's illegal for prosecutors to withhold evidence if it would change the outcome of a trial. When prosecutors violate Brady, and that gets found out later, the conviction is often overturned.
The Supreme Court in 1962, the height of the defendant-friendly era presided over by Chief Justice Earl Warren. Hulton Archive/Getty Images
In the eyes of many Supreme Court justices, the point of Brady is to ensure that prosecutors see it as their job to turn over potentially exculpatory evidence. In the eyes of many prosecutors, though, the point of Brady is that it gives them a step-by-step guide to when they do and don't have to turn over evidence.
The Louisiana case showed just how far apart those perspectives really are. In oral arguments, the lawyer for the Louisiana prosecutors admitted that "a prudent prosecutor would have" told defenders that one of the key eyewitnesses at the trial had initially told police he couldn't identify the perpetrators. But the lawyer argued that just because the prosecutors were imprudent didn't mean they'd violated Brady — because the prosecutors believed that the evidence wouldn't have changed the case's outcome, and that meant they were in the clear.
As defense lawyer Bidish Sarma wrote on the American Constitution Society blog, "[S]everal Supreme Court justices appear genuinely shocked to hear that prosecutors rely upon Brady [...] to decide before trial whether to turn evidence over to the defendant." They assume that Brady is about a deeper ethical obligation — because that's the obligation they, as prosecutors, would feel.
"If you have a bunch of people who are assuming that prosecutors are in every case diligent and zealous about making sure they meet both the spirit and the letter of their constitutional obligations," says Kaiser, "and then you have a bunch of people who think Brady is a game where they can withhold evidence to secure their conviction, they'll just have rules that hurt defendants."
Defense lawyers are already "attuned" to the dispossessed
Obviously, the problem of Supreme Court justices seeing the law as it should be practiced, rather than as it actually is, is something too deep for any president to fix with a single appointment. But Kaiser and others point out that cases involving evidence under Brady, for example, might be a lot easier to resolve if anyone on the Court had had experience using evidence to assemble a defense.
"When you see former defense lawyers write on or rule on those issues from the trial bench, it's not an imagination game; it's an experience game," says Timothy O'Toole. "You've got somebody who's formulated dozens of defenses from information just like that."
A public defender with an accused murderer in 2014. Al Seib/Los Angeles Times via Getty
O'Toole mentions that the Supreme Court hasn't always understood the importance of having separate hearings during the sentencing phase of capital trials. In his experience, the ability to explain the circumstances of his clients' lives and upbringings has been critically important to whether or not they're willing to put him to death.
If you haven't "looked into the juror's eyes when they see what a client has been through," he says, you can't understand just how important those hearings are to protecting the client's rights against cruel and unusual punishment.
This is a fairly straightforward diversity argument: that it's good for the Supreme Court to be able to draw on as broad a stream of personal experiences as possible. But the real asset that former defenders bring to the judiciary, defense lawyers believe, is that they're used to seeing the law from the perspective of those they represent — and thinking in terms of its flaws.
That doesn't just mean the pro-defendant viewpoint would be more strongly represented on the Court: Mere representation might still put a former defense attorney on the wrong side of a lot of 8-1 decisions. But lawyers are confident that having that viewpoint represented can help the other justices understand the principles at stake — even if they're focused on the guilt or innocence of particular defendants instead.
The federal bench is getting more diverse — but the Supreme Court is still a glass ceiling
"President Obama has actually done a very good job of my view of trying to diversify the federal courts" with defenders "in a way that hasn't really happened in my memory," O'Toole says. "There are a lot more public defenders on the federal bench now than 10 to 15 years ago."
When the Supreme Court rules on a criminal case, the composition of the lower courts matters a lot.
One example: a series of Supreme Court decisions that have restored some flexibility in sentencing to federal judges. In the past, Kaiser says, if something like that happened, the Supreme Court would "give some discretion to the lower courts, and they'd gum that rule to death." But the lower courts have been "a lot more respectful" of this line of cases, "accepting the defendant-friendly implications."
The impact has been enormous: From October 2014 to September 2015, slightly more than half of all federal sentences were shorter than the recommendations judges were afraid to stray from a decade ago.
But so far, that increase in former defense lawyers on the federal bench hasn't worked its way up to the Supreme Court.

For many Democrats and progressives, the Gorsuch nomination has been painful because it's a reminder of the thwarted nomination of Merrick Garland, who Barack Obama nominated in March 2016 but never got a confirmation hearing in the Senate.
But Garland himself was an ex-prosecutor, with a tough-on-crime record as a federal judge. The pain of the near-miss that Democrats feel with Gorsuch, defenders felt with Garland.
When Justice Antonin Scalia died, one judge on the shortlist to replace him — Jane Kelly of the Eighth Circuit — was a former public defender. Kelly had also been a victim of crime herself. In Kaiser's words, she had "the best profile for a public defender candidate that you're likely to see for the Supreme Court." She was their best chance.
But Obama ultimately nominated Garland. Furthermore, reports in the days before the nomination suggested the president had deliberately taken Kelly off the Supreme Court shortlist, because he was worried that her experience representing violent criminals in court would make her overly controversial with Republicans. (Obama's concern was obviously moot — Republicans didn't move to confirm Garland, either.)
"John Adams defended the British troops who had fired in the Boston Massacre," O'Toole points out. "But apparently that wasn't as big a political liability then." Even with emerging skepticism of tough-on-crime attitudes, though, today's politicians are still too cautious to emulate the founders in this regard.
It's a vicious cycle.
When former defenders are seen as too controversial to be nominated to the Supreme Court, young lawyers who might want to be Supreme Court justices one day get scared away from becoming defenders. When the Court doesn't have anyone who can relate to defendants in criminal cases, it makes decisions that aren't favorable to defendants.
When the Court restricts the constitutional rights of defendants, it gets harder for their lawyers to persuade lower-court and local judges and juries that their clients have rights, and that those rights are more important than the facts of what they did.
"Every important [criminal justice] decision came in the wake of somebody who did some pretty horrible things," says Bhatt. Ernesto Miranda was charged with kidnapping, rape, and robbery. Clarence Gideon "was a robber, and a thief, and a card shark."
But they still deserved the due process of law. That's the principle that the Warren Court upheld, and that the current Court is at risk of hollowing out.

reprinted from VOX
https://www.vox.com/2016/3/28/11306422/supreme-court-prosecutors-career