3 posts tagged “law”

All firearms investigations temporarily suspended
BY ERIC D. LAWRENCE and BEN SCHMITT
FREE PRESS STAFF WRITERS
April 26, 2008

The Wayne County Prosecutor's Office plans to review a year's worth of Detroit criminal cases involving firearms amid concerns raised about the accuracy of police ballistics testing.

The case that caused the review is the May 27 shooting deaths of two men sitting in a car on Detroit's east side.

The Detroit Police Department's crime lab tests showed 42 shell casings were fired by the same weapon, while two other tests showed that the casings came from at least two weapons, Chief Ella Bully-Cummings said at a Friday news conference.

Now, Detroit attorney Marvin Barnett, who first discovered the error, said thousands of appeals could be forthcoming in criminal cases.

"This is a very serious matter," Maria Miller, a spokeswoman for Wayne County Prosecutor Kym Worthy, said Friday.  "That's why Prosecutor Worthy took immediate action."

A source told the Free Press Friday that federal authorities would be called in if any evidence of criminality is turned up.  At the moment, however, the problem appears to have resulted from sloppy work performed by a former employee, the source said.  

Miller said the results from the office's review will be made available to every defense attorney involved.

At the news conference, Bully-Cummings announced she was suspending all firearms testing through the department's crime lab pending an audit from the Michigan State Police.

While it has not been determined which agencies will handle firearms testing for Detroit police during the suspension, State Police and the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives will be assisting, said George Krappmann, a spokesman for the ATF.

Barnett said he initially asked Detroit police to retest the casings, and they refused. He then tested the equipment with his own investigator.  Barnett said he has found discrepancies in three other cases involving firearms and one drug case.

The State Police crime lab's findings confirmed Barnett's tests, Miller said.

"It's devastating, because if you have one bad lab, it just spoils the whole bunch," Barnett said.

By ADAM LIPTAK
The New York Times
Published: April 23, 2008

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison. (That number excludes hundreds of thousands of people held in administrative detention, most of them in China’s extrajudicial system of re-education through labor, which often singles out political activists who have not committed crimes.)

San Marino, with a population of about 30,000, is at the end of the long list of 218 countries compiled by the center. It has a single prisoner.

The United States comes in first, too, on a more meaningful list from the prison studies center, the one ranked in order of the incarceration rates. It has 751 people in prison or jail for every 100,000 in population. (If you count only adults, one in 100 Americans is locked up.)

The only other major industrialized nation that even comes close is Russia, with 627 prisoners for every 100,000 people. The others have much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s is 63.

The median among all nations is about 125, roughly a sixth of the American rate.

There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much.

Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.

Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.

It used to be that Europeans came to the United States to study its prison systems. They came away impressed.

“In no country is criminal justice administered with more mildness than in the United States,” Alexis de Tocqueville, who toured American penitentiaries in 1831, wrote in “Democracy in America.”

No more.

“Far from serving as a model for the world, contemporary America is viewed with horror,” James Q. Whitman, a specialist in comparative law at Yale, wrote last year in Social Research. “Certainly there are no European governments sending delegations to learn from us about how to manage prisons.”

Prison sentences here have become “vastly harsher than in any other country to which the United States would ordinarily be compared,” Michael H. Tonry, a leading authority on crime policy, wrote in “The Handbook of Crime and Punishment.”

Indeed, said Vivien Stern, a research fellow at the prison studies center in London, the American incarceration rate has made the United States “a rogue state, a country that has made a decision not to follow what is a normal Western approach.”

The spike in American incarceration rates is quite recent. From 1925 to 1975, the rate remained stable, around 110 people in prison per 100,000 people. It shot up with the movement to get tough on crime in the late 1970s. (These numbers exclude people held in jails, as comprehensive information on prisoners held in state and local jails was not collected until relatively recently.)

The nation’s relatively high violent crime rate, partly driven by the much easier availability of guns here, helps explain the number of people in American prisons.

“The assault rate in New York and London is not that much different,” said Marc Mauer, the executive director of the Sentencing Project, a research and advocacy group. “But if you look at the murder rate, particularly with firearms, it’s much higher.”

Despite the recent decline in the murder rate in the United States, it is still about four times that of many nations in Western Europe.

But that is only a partial explanation. The United States, in fact, has relatively low rates of nonviolent crime. It has lower burglary and robbery rates than Australia, Canada and England.

People who commit nonviolent crimes in the rest of the world are less likely to receive prison time and certainly less likely to receive long sentences. The United States is, for instance, the only advanced country that incarcerates people for minor property crimes like passing bad checks, Mr. Whitman wrote.

Efforts to combat illegal drugs play a major role in explaining long prison sentences in the United States as well. In 1980, there were about 40,000 people in American jails and prisons for drug crimes. These days, there are almost 500,000.

Those figures have drawn contempt from European critics. “The U.S. pursues the war on drugs with an ignorant fanaticism,” said Ms. Stern of King’s College.

Many American prosecutors, on the other hand, say that locking up people involved in the drug trade is imperative, as it helps thwart demand for illegal drugs and drives down other kinds of crime. Attorney General Michael B. Mukasey, for instance, has fought hard to prevent the early release of people in federal prison on crack cocaine offenses, saying that many of them “are among the most serious and violent offenders.”

Still, it is the length of sentences that truly distinguishes American prison policy. Indeed, the mere number of sentences imposed here would not place the United States at the top of the incarceration lists. If lists were compiled based on annual admissions to prison per capita, several European countries would outpace the United States. But American prison stays are much longer, so the total incarceration rate is higher.

Burglars in the United States serve an average of 16 months in prison, according to Mr. Mauer, compared with 5 months in Canada and 7 months in England.

Many specialists dismissed race as an important distinguishing factor in the American prison rate. It is true that blacks are much more likely to be imprisoned than other groups in the United States, but that is not a particularly distinctive phenomenon. Minorities in Canada, Britain and Australia are also disproportionately represented in those nation’s prisons, and the ratios are similar to or larger than those in the United States.

Some scholars have found that English-speaking nations have higher prison rates.

“Although it is not at all clear what it is about Anglo-Saxon culture that makes predominantly English-speaking countries especially punitive, they are,” Mr. Tonry wrote last year in “Crime, Punishment and Politics in Comparative Perspective.”

“It could be related to economies that are more capitalistic and political cultures that are less social democratic than those of most European countries,” Mr. Tonry wrote. “Or it could have something to do with the Protestant religions with strong Calvinist overtones that were long influential.”

The American character — self-reliant, independent, judgmental — also plays a role.

“America is a comparatively tough place, which puts a strong emphasis on individual responsibility,” Mr. Whitman of Yale wrote. “That attitude has shown up in the American criminal justice of the last 30 years.”

French-speaking countries, by contrast, have “comparatively mild penal policies,” Mr. Tonry wrote.

Of course, sentencing policies within the United States are not monolithic, and national comparisons can be misleading.

“Minnesota looks more like Sweden than like Texas,” said Mr. Mauer of the Sentencing Project. (Sweden imprisons about 80 people per 100,000 of population; Minnesota, about 300; and Texas, almost 1,000. Maine has the lowest incarceration rate in the United States, at 273; and Louisiana the highest, at 1,138.)

Whatever the reasons, there is little dispute that America’s exceptional incarceration rate has had an impact on crime.

“As one might expect, a good case can be made that fewer Americans are now being victimized” thanks to the tougher crime policies, Paul G. Cassell, an authority on sentencing and a former federal judge, wrote in The Stanford Law Review.

From 1981 to 1996, according to Justice Department statistics, the risk of punishment rose in the United States and fell in England. The crime rates predictably moved in the opposite directions, falling in the United States and rising in England.

“These figures,” Mr. Cassell wrote, “should give one pause before too quickly concluding that European sentences are appropriate.”

Other commentators were more definitive. “The simple truth is that imprisonment works,” wrote Kent Scheidegger and Michael Rushford of the Criminal Justice Legal Foundation in The Stanford Law and Policy Review. “Locking up criminals for longer periods reduces the level of crime. The benefits of doing so far offset the costs.”

There is a counterexample, however, to the north. “Rises and falls in Canada’s crime rate have closely paralleled America’s for 40 years,” Mr. Tonry wrote last year. “But its imprisonment rate has remained stable.”

Several specialists here and abroad pointed to a surprising explanation for the high incarceration rate in the United States: democracy.

Most state court judges and prosecutors in the United States are elected and are therefore sensitive to a public that is, according to opinion polls, generally in favor of tough crime policies. In the rest of the world, criminal justice professionals tend to be civil servants who are insulated from popular demands for tough sentencing.

Mr. Whitman, who has studied Tocqueville’s work on American penitentiaries, was asked what accounted for America’s booming prison population.

“Unfortunately, a lot of the answer is democracy — just what Tocqueville was talking about,” he said. “We have a highly politicized criminal justice system.”

By Jane Sutton

GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - A Canadian accused of killing a U.S. soldier in Afghanistan should not be tried as a war criminal because he was a child soldier for al Qaeda, too young to voluntarily join its forces, his military defense lawyer told a U.S. war court on Monday.

Navy Lt. William Kuebler asked a military judge to throw out the charges against Canadian defendant Omar Khadr, who was shot and captured at age 15 in a firefight at a suspected al Qaeda compound in Afghanistan in 2002.

"He is a victim of al Qaeda, not a member of al Qaeda," Kuebler said.

Khadr is the Toronto-born son of an alleged al Qaeda financier. He is accused of throwing a grenade that killed U.S. Army Sgt. 1st Class Christopher Speer in the firefight and planting roadside bombs intended to kill other U.S. or coalition soldiers in Afghanistan.

Khadr is charged in the Guantanamo war court with murder, attempted murder, conspiring with al Qaeda, providing material support for terrorism and spying by conducting surveillance of U.S. military convoys in Afghanistan. He faces life in prison if convicted.

Kuebler argued that U.S. and international law assume that children involved in an armed conflict are not there voluntarily, because they lack the experience and judgment to understand the risk of joining armed forces. Defense attorneys contend that any charges against Khadr should be pursued in a civilian court in a juvenile system where the goal is rehabilitation rather than punishment.

If the U.S. Congress intended to try children as war criminals, it would have explicitly authorized that in the 2006 law that serves as a framework for the Guantanamo court, Kuebler said.

But a U.S. Department of Justice attorney, arguing for the prosecution, said that if Congress intended to exclude juveniles from the Guantanamo war court, it would have explicitly written that, because lawmakers knew Khadr could face charges. Instead, Congress wrote the law using the term "person," which legally refers to "anyone born alive," Justice Department attorney Andy Oldham said.

LAST WESTERNER

Khadr is the last citizen of a Western nation among the 275 captives being held at Guantanamo as part of the Bush administration's war on terrorism.

Charges are now pending against five of the Guantanamo prisoners. The Pentagon plans to try about 80 of them. But six years after the detention camp opened, only one captive has been convicted in Guantanamo's widely criticized tribunal system and that was through a plea deal.

Khadr sat quietly during the hearing, clad in a white tunic and trouser uniform signifying that he complies with camp rules. In his more than five years at Guantanamo, the once pimply faced boy has grown into a 21-year-old man with a short, bushy beard.

The judge, Army Col. Peter Brownback, did not indicate when he would rule on the request to drop the charges. The case is scheduled for trial in May, though Kuebler said it probably would be delayed.

The court released documents describing the battle in which Khadr was captured. U.S. forces entered the suspected al Qaeda compound after an aerial bombing and were fired upon with a rifle and with the grenade that killed Speer, it said.

An unidentified witness, who is apparently a member of the U.S. armed forces, said he found two wounded people still alive inside -- a man lying near an AK-47 assault rifle, whom he shot in the head and killed, and Khadr, who was seated on the ground facing away.

The witness said he shot Khadr twice in the back and that Khadr replied repeatedly in English, "Kill me."

Khadr was instead given medical treatment and sent to Guantanamo.