The Wall Street Journal had an interesting article about accused financial criminals with wads of money who can’t hire a lawyer (for either their civil or criminal proceeding) because all of their assets have been frozen.  It made me wonder why the same thing didn’t happen to Bernard Madoff (or maybe his lawyers were handling the case for free to get the publicity).

The U.S. Supreme Court has held that defendants do not have the right to be able to use frozen assets to hire a lawyer.  After all, if the money is stolen, why should lawyers get it instead of the victims.  The problem is, it begs the questions:  how do we know the money is stolen until after the trial?  And is the trial fair when the defendant is stopped from hiring the lawyer of his choice?

According to a longstanding rule of constitutional law known as the “exclusionary rule,” any evidence that was illegally obtained by the police can’t be used at a trial against the defendant.  For example, if the police break into your house without a search warrant, and for not other legal reason, and find drugs, the drugs can’t be brought into trial against you later.  This is pretty straightforward.  It becomes fuzzy, however, when the police do not intentionally break the law, but, evidence is wrongfully obtained by accident.

For example, in a recent U.S. Supreme Court case, Herring v. United States, Mr. Herring went to the police station to check on an impounded vehicle.  While he was there, the police were told Mr. Herring had an outstanding warrant.  Shortly thereafter, the warrant clerk called back to say the warrant had actually been cleared and was no longer active but it was too late — Mr. Herring had already been was arrested and, during the normal course of the booking process, he was searched and a significant amount of drugs were found on his person (why he was carrying drugs into a police station is a mystery that will probably never be answered, but happens more often than you might think).

The question was, when the police arrested Mr. Herring in the “good faith” belief that an arrest warrant was valid, even though it actually wasn’t, should the results of that wrongful arrest have been excluded from trial.  In this case, as in many, the answer to that question would have meant the difference between an almost certain conviction, and the charges being dropped.

By a 5-4 vote, the Supreme Court held that the evidence did not need to be excluded from trial.  They reasoned that one of the primary purposes of the exclusionary rule is to deter police from committing illegal conduct.  Since the police acted in “good faith,” and did not deliberately make a wrongful arrest, their conduct could not have been deterred.  According to the Court, therefore, there would be no point in applying the exclusionary rule in this case.

In my humble opinion, the Court was wrong.  Even though the police officers could not have been specifically deterred from making the arrest, applying the exclusionary rule would give an incentive for counties in general to be organized about keeping their active warrant list up to date.  This requires a certain cost and energy in establishing a system that will work.  But it’s important for the police to know who has a warrant and who does not so they don’t arrest people who don’t deserve to be arrested.  When the exlcusionary rule is not applied in a case like this,  counties just might think they don’t need to make the extra effort in keeping their warrant list as up to date as possible, because there won’t be any major negative consequences if they do end up making a wrongful arrest.

Fortunately, the New Hampshire Supreme Court, in applying the New Hampshire constitution, has given the exclusionary rule more teeth.  Back in 1995, in a case called State v. Canelo, that Court held that the “good faith” exception to the exclusionary rule does not apply.  An important part of the reasoning was that the exclusionary rule is not just designed to deter police conduct, it is also designed to redress citizens whose rights are violated, whether intentionally or negligently.  While the facts of that case were not identical to the facts in Herring, the principle established means that almost surely Herring would have turned out different in New Hampshire.

The Concord Monitor published an interesting article today on how the budget crisis is impacting the Department of Corrections, particularly the prison.  During an economic downturn, the Department of Corrections generally face a double whammy - - higher crime coupled with budget cuts.  The upshot is that they are expected to incarcerate and supervise more offenders with fewer dollars.

From my perspective as a criminal defense lawyer, I am encouraged by the quotes in the article by Corrections Commissioner William Wren.  Wren is pushing for earlier release for model inmates, re-classifying borderline felonies as misdemeanors, and more alternative sentencing options (that is, strict supervision for offenders who would otherwise be going to prison).

The most obvious fix, which should have been done a long time ago regardless of the economic climate, is with regard to those individuals sentenced as felons when they should been charged with a misdemeanor or, in some cases, not charged at all!  Here are few examples –

• Drugs:  Did you know possession of any amount, no matter how little, of almost any controlled drug except for marijuana is a felony in New Hampshire?  I can’t tell you how many client I have had who got caught with a couple of non-prescription percocets or an empty crack pipe who ended up in Superior Court.  What a waste of time and resources.  I’m an advocate of drug legalization in the Milton Friedman tradition.  But if you are going to criminalize it, from a practical perspective, don’t bog down the system with nonsense.  While you’re at it, take a tip from Massachusetts and decriminalize pot so law enforcement can focus on real crime.  How about a little medicinal marijuana too?  I’ve got a bad headache.
• Thefts:  Wrenn makes a good point — the statute was written so that any theft of items over $500 is a felony was first enacted in 1971!  According to this handy calculator, $500 in 1971 was the equivalent of $2,651.76 in 2008.  Wouldn’t it be wise to tie the level of value needed to make a theft a felony to the rate of inflation?  Many other laws do this.
• Driving:  The Driving While Deemed a Habitual Offender law is a regular target of scorn for not only defendants and defense lawyers, but, if you asked them candidly and off-the-record, many judges, prosecutors and police officers.  The problem isn’t just that the offense is a felony, but that there is a minimum mandatory jail sentence of one year (although there is a bracelet option in some cases).  It’s sad to see a young kid go to jail or prison for driving, especially when they have no DUIs.  I don’t have a big problem with a DUI fourth offense being charged as a felony but if it’s just repeat driving on a suspended sentence, there has to be a better answer.

Bottom line:  we could really clear up the system if we stopped sending non-violent, borderline criminals to prison and jail.  Even sending some of these people to probation is a waste of time, to be honest.  If we sent fewer people to corrections, they could do a much better job with the serious offenders, who need long-term incarceration and/or treatment.

I  just finished watching a 60 Minutes piece of on a new trend in DWI fatalities being charged as murder instead of a lesser offense.  In general terms the offense would be called  “vehicular manslaughter” but in New Hampshire, an accidental DWI fatality is generally charged under RSA 630:3, Negligent Homicide, a class A felony punishable up to 7 1/2 to 15 years.  They key difference between murder and manslaughter is that murder requires proof that the act was committed with the intent that the death occur. While a DWI resulting in death is a horrible thing, the driver does not intend that the victim die.  From a moral perspective, the driver is much different than a killer who acts with the intent that a person die.

Just as important, from the perspective of deterrence, which is considered one of the most important goals in sentencing,  it’s hard to deter people from acting unintentionally.  The prosecutor featured on 60 Minutes argued that steep sentences for drunk driving fatalities will act to deter people from driving drunk generally.  The problem, no drunk driver, believes they will be the one to get in an accident.  Therefore, the deterrent value of steeper sentences under those circumstances is questionable.  This is demonstrated by the very facts stated on 60 Minutes, which was clearly slanted in favor of the prosecutor’s approach — although the sentences for DWI have become increasingly steep over the last few decades, the prevalence of DWI has remained the same or increased.

Drunk driving is a big problem, both for society and the criminal justice system.  Unlike most types of crimes, judges, juries, police officers and lawyers can all relate to the drunk driver.  If they haven’t done it themselves at some point in their lives, they surely know people who have.  As a judge told off the record during a drunk driving fatality case that I was involved in — “there but for the grace of God go I.”

There is a feeling that only luck and circumstance separate the drunk driver who gets in an accident and kills somebody from the drunk driver that gets pulled over and arrested.  Yet the punishments meted out are like night and day.  I don’t have an easy answer.  When there is a real victim, society will demand a more serious punishment.  The difficult question is, how much more serious?