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/