Sunday, January 28, 2007

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.

grand juries

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.

civil commitment

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.


Anonymous said...

Rehabilitation is not the purpose of prison. Anyone who says that it is, is either very naive or lying. Sex offenders can't be rehabilitated. Unless sex offenders become eligible for the death penalty, what MO does is smart.

nicolle said...

rehabilitation is not the only purpose of prison, but it has to be part of it. there has to be at least some true rehabilitative function to prison, or else the retribution won't do much good in the long term. okay, so the state has its revenge by putting someone behind bars for the sentenced length of time, but what's going to happen when they get out? will they have the mental, physical, and occupational skills necessary to become productive members of society when they get out? if prison does not do at least some rehabilitative duty, the odds of that are very low--and they will recidivate.

as for sex offenders...some will recidivate, and some will not. it is unfair to make a blanket statement that no sex offenders can be rehabilitated--it depends on the mental state of the person, the specific compulsions each feels. if the jury or judge, whoever is imposing the sentence, believes that the particular sex offender in question cannot be rehabilitated at all--then such a thing must be conveyed at the time of sentencing, or at the time of plea offer--so the person knows that they are facing indefinite incarceration. no matter what they've been convicted of, it's unjust to go back and tell them, often years after sentencing, that they will be incarcerated indefinitely.

Mad Jurist said...

You won't be surprised to know that I'm a bigger fan of civil committment than you are. But I don't like the idea of it becoming some sort of repository for criminals who have completed their prison sentence, but the government happens to think might be dangerous. Some people need to be civilly committed, because they pose a danger to themselves or others. But there also need to be meaningful safeguards in place to ensure that they aren't civilly committed solely on the basis of the crime for which they've already been punished. I'm all for the rule of law, which means that once someone has served their time, they should typically be done.

Ideally, I think prison should serve all three of its theoretical justifications: retribution, rehabilitation, and incarceration. Obviously, it's usually pretty good at incarceration. Retribution can be debated, probably endlessly. It's rehabilitation that's really tricky. As they say, the light bulb has to want to change. And, as laudable as real, large-scale rehabilitation is, we have to at least ask if it's worth the cost.

In other news, I think I might do the journal post on my blog. At least, those I think may be of more general interest.