with extremely minor modifications, i'm reprinting the journal entry that i wrote for my clinic this week. it's a reflection on what i've learned about grand juries and about civil commitment...we were assigned to write about observations we have had about the criminal justice system through the clinic i'm working in.
The first time in the clinic when I was really shaken about one of the functions of the justice system was on the second day there. The attorney in charge of the intern programme was giving us a tour of the facilities, and he was including some explanations of some of the workings of criminal procedure as we went. He discussed the three ways that a felony could get bound over to circuit court: waiver, preliminary hearing, and grand jury.
I always knew that grand juries were secret proceedings, to an extent. I knew from such cursory things as the television show Law and Order that the defense attorneys were not allowed into the hearings of the grand jury. But, I didn't know the extent of the secrecy. I didn't know that the defendants were not allowed into their own grand juries. I didn't know that the defense attorneys could not have any discovery whatsoever before a grand jury hearing.
This bothers me. At least, when a case goes to preliminary hearing, the client and the defense attorneys know what the police have filed about the incident in question. We can start building a case. We have something to go on other than the client's word, which is sometimes inadequate or selective. Until we get discovery, we don't know the evidence they have against our client, and when a case goes to grand jury, we do not have this information until it is bound over to circuit.
I'm not opposed to a jury-style alternative to a preliminary hearing. I understand the idea of a jury of one's peers deciding whether a case should be bound over to circuit court, instead of a judge making that decision. But, I think grand juries ought to be performed in a similar manner to preliminary hearings. Allow the client to see the hearing. Allow attorneys from both sides to be there, so the jury can hear the defense attorney's cross-examination of the prosecution witnesses. Allow the grand jury to see what questions we have about the evidence that the prosecution has against the client. That way, the defense won't be held behind on being able to build a case, until it does go to circuit court, and the proceedings are not held secret from the defendant or his attorney. I just don't trust a process in which only the prosecution has any control over whether a case is bound over to circuit court. I know that most cases in preliminary hearings are bound over as well, but at least there's some transparency, and some opportunity for cross-examination.
The other very scary thing about the justice system I learned this past week, when I was meeting the circuit attorneys I am working for. I'm working for the attorneys in the Civil Commitment Unit. I vaguely knew what civil commitment was before coming to work in the public defender's office. I knew that some states had mechanisms in place through which they could commit people convicted of sex crimes to time in mental treatment after their prison sentences had finished.
I didn't know any specifics until I talked to one of the Civil Commitment Unit attorneys this week. I didn't know how the state went about civilly committing these people. It's a jury trial—a jury trial laden with expert testimony from both sides, and a jury trial that the defendant has won just four times in the eight years that civil commitment has been the law in Missouri. I didn't know that the state has never let anyone out of civil commitment, and that it's a four-step programme of which the fourth step has not yet been completed. I didn't know that the state mental health agency could contract out the housing of civilly committed people to the department of corrections, or that many of the places that people are civilly committed are behind razor wire.
This bothers me profoundly. The people have been sentenced to certain time in prison, and have served such time. It seems wrong, no matter what crime they have been convicted with, that they can be put back in confinement after the term is over, because they have paid their assigned debt to society. If the finder of fact in a trial feels so strongly that somebody is so mentally affected that they cannot function in society, until they have been treated and have shown enough change so that they can function normally, then they should be ruled not guilty by reason of insanity, and sentenced to serious mental health treatment. (This, of course, brings up issues of what the standard of insanity is, given that such disposition is unlikely to happen under Missouri's insanity standard, the M'Naghten rule.) If not, then they should be assigned to their prison terms, and released when they have paid their debt to society.
There's not a whole lot that can be done right now other than doing the best we can to defend these people who are facing civil commitment, since the Supreme Court ruled about ten years ago that these were constitutional—that ex post facto and deprivation of liberty protections did not apply, since the commitment was treatment in the civil sphere, as opposed to incarceration in the criminal one.
The fact that the state feels that it needs a civil commitment programme highlights what must be, in my opinion, a shortcoming in the prison system: that the state is doing such a bad job of rehabilitating sex offenders in prison that it wants time after the legally sentenced time to keep trying. Although, by saying this, I fear I am being too optimistic—I'm afraid that the real reason is more along the lines of politics, being able to brag that the state is tough on sex offenders, and meticulous about keeping them off the streets. This boast is coming at the expense of the liberty of citizens, and I can't feel good about that, or secure.