The View From Here

People Who Nod Instead of Flinch

by Dave Ferry, OCDLA President

From the November-December 2016 issue of The Oregon Defense Attorney.


Donald Trump once took out a full-page ad in four New York papers that shouted, “BRING BACK THE DEATH PENALTY! BRING BACK THE POLICE!” He did that in 1989 in response to news reports of the brutal rape of a jogger in Central Park for which five minority teenagers had been arrested. (You can find all the gritty details, and the full ad, by typing “Central Park 5” into your browser.) The charge was rape, for which the death penalty is unconstitutional (Coker v. Georgia). Four of the five kids were under 16, again making the death penalty unconstitutional (Thompson v. Oklahoma). And the boys turned out to be innocent (though not until each served long prison terms). But Trump’s message had power nonetheless.

Candidates for political office in this country still gain votes by presenting themselves as tougher on crime, and by espousing criminal justice theories that do not reflect the realities that you and I know. As a Trump supporter said recently: Facts don’t matter, feelings do. People feel that crime is on the rise, sentences aren’t long enough, criminal procedures protect criminals, and the guilty frequently walk free. Catering to those “feelings” wins elections, notwithstanding facts to the contrary. So our elected officials typically battle to see who can appear tougher on crime, and facts just don’t matter.

Turning back to the Central Park 5: all five boys were convicted based on confessions that were sweated out of them during long interrogations without attorney or parental assistance. Twelve years later, all five convictions were overturned after authorities matched the DNA from the victim (that had not matched any of the Central Park 5) to an unrelated sixth individual—a serial rapist who admitted that he, alone, committed the crime, and who provided the details to corroborate it. The city of New York settled with the boys (now men) for $41 million—a million dollars for each year they had wrongly spent in prison.

Trump’s response was . . . not an apology. Instead, Trump blasted New York politicians for the settlement, calling it a disgrace and publicly asserting that settling did not make the boys innocent. After Trump became a candidate for president, the Central Park 5 called for a public apology. Trump again refused to acknowledge that the boys could be innocent, and insisted instead that the settlement was outrageous. Why?

Is it just because conviction sells? Is it easier to believe that conviction equals guilt? The boys had confessed. They had been tried and convicted in a court of law. New information—even proof of innocence—makes things messy. It is far simpler to assume that conviction equals guilt, and thus believe that the guilty (who are not like us) should simply be removed from society.

Perhaps it’s also because as a society we want to believe the system works. We want to believe our criminal justice system does not allow for conviction of innocent citizens. We want to believe that the good guys always win and that the bad guys get punished. We want to be able to leave it up to the elected officials to create policy and administer justice to keep us safe.

What does get votes? Promising longer sentences and easier convictions. Last year, candidate X announced that one of his first executive orders would declare that anyone who kills a police officer would get the death penalty. The remark was well received despite the fact that we know that no study has proven that the death penalty deters murder. And we know that killing a police officer is a state-law crime; that presidents do not have the authority to set sentences for any crime; and that mandatory death penalty laws are unconstitutional (Woodson v. North Carolina). No matter—political support achieved, police union endorsement acquired, vote count increased.

That is the unfortunate nature of the political climate in which we live. Despite plenty of data showing that longer sentences are often unhelpful for deterrence and are quite expensive, and that convictions are far too easy to get already, many voters still believe that imposing longer sentences—even for kids, the intellectually disabled, and the mentally ill—is the best way to prevent recidivism and keep our communities safe. Treatment options are poo-pooed, despite abundant research which shows that for a fraction of the costs, treatment can be far more effective at preventing future crimes than “warehousing” offenders. In our political landscape, accurate facts frequently line up on the losing side of the criminal justice policy arguments.

But if we have the facts, why do we keep losing? When it comes to sentencing policy, and procedural safeguards that keep innocent people out of prison, the defense bar is highly educated regarding the best answers, and highly motivated to use that information. Maybe it isn’t the easiest information to disseminate, maybe espousing criminal justice reform isn’t the easiest path to election for a political candidate, but we still have the better information and there is incentive to try to get it out there.

What if we take what we know about our clients and broadcast their case stories? Share them with elected officials, write op-eds, blog and post on social media?
We can talk about the successes (some people actually overcome drug addiction or other adversity) and note the failures (some people could have overcome their problems if help or resources were available, but they were not). We have great stories. People want to hear them. We are in a unique position to provide accurate information to our elected officials and the public that can change policy systemwide. Gina Stewart and Gail Meyer have written articles in this issue which provide specific ideas on how to start.

Of course, OCDLA is dedicated to lobbying efforts in the legislature, and that is worthy of as much support as we can afford to give it. But maybe we should all be thinking about ways to get our messages out more broadly.

I am not pretending I know how to fix the problem. Though OCDLA can help be a voice in the public domain and educate more than just our own membership, addressing global problems isn’t really what we do as individual criminal and juvenile advocates. We dedicate ourselves to individual clients, one at a time, leaving little time to champion our communities as a whole. But the proponents of the other side—those promoting easier mechanisms for conviction and longer sentences—are out there in the public forums, spreading their message. We—as individual members and as an organization—need to counteract that message with our own, now more urgently than ever.