How much Time is Enough Time?

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After criticizing reporters for giving exaggerated predictions about possible sentences, I didn't adequately take into account that Jahaad Marshall would be sentenced to the equivalent of “eleventy million years,” or in his case 260 years.

Since Jahaad Marshall is not Methuselah, he will end his life with time to serve. His 17-year-old brother Shabar, who admitted his crimes and pled guilty, received at least 26.5 years earlier today, which leaves a lot of the commenters over at WRAL clamoring for blood.

Some are even calling the sentencing judge “lax.” Whatever one might say about Judge Henry Hight, the adjective “lax” does not come to mind. Others are calling for Shabar's execution, and others are predicting that he'll be paroled and that he'll have, as one WRAL commenter put it, “many more years to rob, rape, and paralyze innocent citizens.”

I get it. Trolling on the internet is nothing new. Sentencing a 17 year old to death from the comfort of your keyboard may be cathartic, but does damn little to help his victim to walk again, or heal a woman he raped.

First, a few facts: Marshall will serve every day of the minimum. North Carolina has no parole. Post-supervision release in this case will be at least 5 years, and come at the end of the active sentence, which means that when Shabar Marshall is released, he will have another 5 years of supervision from the criminal justice system.

Second, it is a fact that incidence of rape and robbery crimes spikes as offenders reach their teenage years, and declines precipitously as they enter their late 30s and early 40s.

While it is completely possible that Shabar Marshall will be charged with low end drug or larceny crimes when he is released from prison, in part owing to the fact that he will come out without much hope for a viable job, it is very unlikely that he will commit new violent crimes in his late 40s. When's the last time you heard about a 48 year old robbing a convenience store?

Third, for a country putatively founded on the New Testament notions of redemption and rebirth, the United States is decidedly Old Testament in its commitment to taking a pound of flesh from the convicted.

This is not to say that Shabar Marshall should not be punished. He should be. Even in Norway's criminal justice system, people are punished for their crimes. The restorative justice practiced in Norway “begins with a concern for victims and how to meet their needs, for repairing the harm as much as possible, both concretely and symbolically.”

In [mass murderer Anders] Breivik['s] trial, this meant giving every victim (survivors as well as the families of those killed) a direct voice. Victims were individually represented by 174 court-appointed lawyers. The court heard 77 autopsy reports, 77 descriptions of how Breivik had killed them, and 77 minute-long biographies “voicing his or her unfulfilled ambitions and dreams.” In an American-style retributive system, the trial is primarily about hearing and evaluating the case against the criminal. Norway does this too, but it also includes this restorative tool of giving space to victims, not as evidence, but to make the trial a forum for those victims to heal and to confront the man who'd harmed them. The trial itself is about more than just proving or disproving guilt, but about exorcising the victims' suffering.

Across the board, the United States practices a kind of punitive justice that now has 1 in 100 of our citizens in jail or prison. Our incarceration rate is the highest in the world at 743 per 100,000. While we have just 5 percent of the world's population, we house 25 percent of the world's prisoners.

The question is not whether people should be punished for their crimes. The question is, how much time is enough time?

 

Christopher Dorner and the Corrupt LAPD

Whatever Christopher Dorner is – a killer, a lunatic, a man with a deep, abiding grudge – the LAPD is no agency of angels. It’s a police department steeped in violence, corruption, and abusive policing.

Consider that since 2000, the federal government, through an agreement with the city, has provided federal oversight of LAPD policing practices. This oversight came in the wake of the Rodney King beating, and the Rampart scandal involving an anti-gang unit in the Rampart Division in downtown Los Angeles in which more than 70 officers were implicated in some form of misconduct.

In one incident involving a Rampart division officer, the officer was the mastermind behind the armed robbery of a Bank of America branch.

The Rampart scandal involved “unprovoked shootings, unprovoked beatings, planting of false evidence, framing of suspects, stealing and dealing narcotics, bank robbery, perjury, and the covering up of evidence of these activities.”

In November 2010 the United States Department of Justice expressed “continuing concerns about the overall quality of… investigations of biased policing.”

As recently as September 2012, video surfaced of LAPD offices beating and punching a skateboarder being arrested for skateboarding on the wrong side of the road.

For more on the LAPD Consent Decree, watch Frontline‘s episode on the topic.

Why is video so important in criminal investigations?

Scott Greenfield, a New York criminal defense lawyer, comments on a recent case involving allegations of police brutality by law enforcement officers in New Jersey. Following claims that troopers in New Jersey were racial profiling, the State Highway Patrol required all troopers to maintain and activate dashcams to record any police enforcement encounters with citizens.

In this recent case, the trooper failed to activate his camera and, in fact, had been subject to sanctions by the highway patrol in the past for failing to activate his camera on previous occasions

The utility of video in revealing what really happens when cop encounters citizen can’t be understated, as it has fundamentally changed our understanding and appreciation of the ugliness on the street. Before, we relied on the sanitized, fantastical descriptions given by police officers on the witness stand, where they never uttered a mean word and were invariably professional and courteous in every interaction. It wasn’t their fault that the perp ended up with a gun-shaped bruise across his left cheek. He must have attacked the gun with his face. It can happen, you know.

Greenfield’s reference to “sanitized, fantastical descriptions” calls to mind this funny-because-it’s-true video of a cross examination of a police witness at a suppression hearing. I don’t know how many times I’ve heard “based on my experience and training” I concluded that… followed by a bad opinion.

Videos can indeed be helpful, not only for “officer safety” (which is a real concern) but also to show what happened to the trier of fact. Was the car really swerving? Did the driver really consent to the search? How soon after the stop were the drug dogs brought to the car? Is this a pretextual stop? And if pretextual, is there any good faith, independent reason to stop the car other than the officer’s ulterior motive?

Many officers I’ve encountered actually like video cams because, in many encounters, the video cams actually show a criminal offense, or suspicious facts giving rise to probable cause.

Video can also help resolve cases more quickly, by allowing a client to see exactly the strength of the state’s case. In DWI cases, in particular, a person may not realize just how impaired they seemed. If the video shows impaired behavior and conduct beyond the normal “slurred speech, red glass eyes,” the video can resolve the matter quickly.

Video can also be used to defend a client by showing to the judge or jury, as the case may be, that the officer, was at the very least, mistaken when he put in his report that the car was swerving.

Unfortunately, North Carolina does not have a general requirement that police equip their vehicles with videos. This creates for a mishmash of results depending on the agency and on the officer. It can result in shoddy investigations, and prolonged criminal cases.

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