Current Wave of Criminal Justice Reform Ignores Indispensable Right to Counsel

It is well known and widely reported that criminal justice reform is sweeping the nation. Criminal justice reform is the anomalous political issue for which the ACLU and Koch Industries align. Even the most unwavering American Exceptionalist must take issue with our nation having the highest incarceration rate, with 25% of the world’s prisoners.

Conservative politicians embrace the idea of slashing the costs of harsh prison sentences and the libertarian ideal that the government should not take lightly the deprivation of personal liberty. Of course, criminal justice reform isn’t a hard sale for liberals when the system disproportionately affects poor people of color. Furthermore, the current system hinders those with criminal records from attaining employment and housing, and thus, recidivism rates are high.

Whether motivated by a desire to achieve a fairer justice system, a desire to decrease costs or both, it seems that everyone is on board with criminal justice reform. However, below the surface of this flood of bipartisan optimism, it’s apparent that one indispensible component of a fairer, more efficient system is being overlooked. As stated by Justice Stevens, writing for the Court in United States v. Cronic, “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.” 466 U.S. 648, 654 (1984).

In many states, the right to counsel is bare bones at best. In others, attempts are being made to chip away at whatever public defender system is in place. For that reason, I’m skeptical that the “Right on Crime” movement isn’t more about being “Cheap on Crime,” and that is categorically incompatible with the progressive and libertarian ideals of criminal justice reform. In fact, the belief that underfunding defense saves money is shortsighted and incompatible with fiscally conservative ideals.

Before calling attention to specific failures of several states to sufficiently fund and support public defender systems, it’s important to understand what’s at stake.

In 1984, Glen Ford, a black man in his mid-thirties, was wrongfully convicted of murder and sentenced to death. After three decades of incarceration at Louisiana’s infamous Angola, his conviction and sentence was vacated and he walked free. Ford is currently 65 years old with stage four cancer, and doctors have estimated that he will pass away in three to seven months. Thirty years of his life, nearly half of his life, was stolen from him and his family, and this came at a costly price. Thirty years of incarceration isn’t cheap, especially when the sentence is death and due process provides for post-conviction representation. How could this happen?

Marty Stroud, the head prosecutor for the Glen Ford trial in 1984 responded to an editorial in The Shreveport Times suggesting that Ford deserves restitution with an apology. Stroud “was confident that the right man was being prosecuted” and he chose not to investigate what he considered to be “bogus claims that we had the wrong man.” He described the 1984 version of himself to be an “arrogant, judgmental, narcissistic” 33-year-old, more interested in winning than securing justice.

He went on to note the unfairness of Mr. Ford being appointed grossly under-qualified counsel. The two attorneys appointed to Mr. Ford’s defense were selected from an alphabetical list of local lawyers. The lead defense attorney was a civil attorney who had never tried a case before a jury. Co-counsel was a civil attorney, two years out of law school. Stroud didn’t appreciate that the defense was underfunded and couldn’t hire experts to impeach the prosecution’s extremely faulty “expert” testimony. He admitted that potential African-American jurors were struck with little thought because he knew it was nearly impossible to prove racial discrimination in jury selection.

Read the rest at the Deep South Daily…

Diversity Training Won’t Solve Racism

The national headquarters of Sigma Alpha Epsilon is requiring all of its members to undergo diversity training in response to a recent controversy in which the fraternity’s Oklahoma University chapter was filmed reciting a racist chant on a bus to a social function. This reaction is all-too-typical in higher education. Jamal Watson notes in Diverse Issues in Higher Education that such programs are “often implemented in response to a polarizing incident on campus, like the discovery of a noose, a swastika or anti-gay epithets scribbled across a bathroom stall.”

But, is diversity training remotely effective in combating racism? Or is it merely a band-aid attempting to heal a much deeper wound of socioeconomic disparity?

Evidence from the workplace suggests the latter. A 2007 Harvard University studyreviewing 829 companies’ diversity training over 31 years found the programs had “no positive effects in the average workplace.” In fact, the study even found negative effects on management diversity in firms “where training is mandatory or emphasizes the threat of lawsuits.”

How could training aimed at combating racism do the exact opposite of its intended aim? Peter Bregman, CEO of Bregman strategy, provides an answer in the Harvard Business Review. Recalling an investigation he conducted for a major media company about their workplace diversity, he explains how the firm’s sensitivity training went awry:

The scenarios quickly became the butt of participant jokes. And, while the information was sound, it gave people a false sense of confidence since it couldn’t possibly cover every single situation.

The second training — the one that categorized people — was worse. Just like the first training, it was ridiculed, ironically in ways that clearly violated the recommendations from the first training. And rather than changing attitudes of prejudice and bias, it solidified them.

“Diversity training doesn’t extinguish prejudice,” Bregman is left to conclude. “It promotes it.”

Read the rest at Rare…

Why Big Tobacco Is So “Concerned” about E-Cigs and Your Health

“When it comes to e-cigs, Big Tobacco is concerned for your health,” writes Martinne Geller for Reuters. Her article attempts to explain the recent trend of tobacco companies working with the US government and public-health advocates for more stringent regulation of electronic cigarettes (e-cigs).

“Why would tobacco companies want more regulation?” one may ask. Well, when we look at the incentives involved for each concerned party, this unholy alliance makes perfect sense.

Just days before this Reuters report hit the internet, a team of well-known professors of regulatory policy released a report explaining why this alliance would form. The answer lies in the familiar parable of “Bootleggers and Baptists” laid out by Bruce Yandle in the journal Regulation. Coincidentally, it is this same journal that would publish the report on e-cigarettes 22 years later.

Simply put, industry incumbents seek regulation to keep upstart competitors at bay, while moralizers (the “Baptists” in the parable, or anti-tobacco groups today) seek to regulate the industry to make selling products they dislike more difficult. Both sides seek regulation, but for very different reasons.

In this case, moralizing e-cig opponents have joined with “Big Tobacco” and government tax offices to stymie the growth of e-cigs in the market. Each group has a distinct interest in regulation. Many health advocates seek to further stigmatize the perceived act of smoking, and want to treat e-cigarettes like traditional, combustible cigarettes to achieve this goal.

Major cigarette companies seek to make moving to alternative products more difficult, further entrenching their current, dominant position. Government officials, faced with falling cigarette-tax revenues, seek to prevent further drops by either taxing e-cigarette products or shoring up dwindling traditional cigarette sales.

All these groups are doing exactly what one would expect given the incentives that they face. Note that nowhere in this conversation is the consumer, nor the independent e-cig producers. Moreover, in many cases, public-health officials who seek lighter regulations are flatly ignored.

Read the rest at the PanAm Post…