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Tuesday, September 30, 2014

Child-porn prosecutions climb in Pima County as Internet begets a new kind of offender

Child-porn prosecutions climb in Pima County as Internet begets a new kind of offender By Patrick McNamara

Child pornography was almost unheard of just 20 years ago.

Few outside of an underground community of producers and consumers of the material had access, and law enforcement efforts had driven that community deeply into the shadows.

But with the accessibility of the Internet, the demand for child pornography has exploded and the doors of access to the material have opened wide.

Today, police routinely arrest people for possession of child pornography, and prosecutors are bringing more offenders to court.

The Pima County Attorney’s Office prosecuted 38 people on child pornography charges in 2013, a more than twofold increase over four years.

In 1998, the County Attorney’s Office initiated seven cases against people suspected of child pornography, luring a minor for sexual purposes and related crimes. Last year, the number of new cases hit 51.

Child pornography boils the blood of Pima County Attorney Barbara LaWall,who calls it “an extraordinary exploitation of kids.”

The Arizona Daily Star contacted the Tucson Police Department for comment in this story. Despite numerous requests, no one from the department’s unit that investigates Internet crimes against children made contact.

But some psychologists and defense attorneys argue the criminal-justice system should distinguish between child molesters and “non-contact” offenders who look at pornographic images of minors.

Under Arizona law, possession of child pornography is punishable by up to 24 years in prison, the same punishment given for a first-time child molestation offense. The maximum prison term for a first-time offense of luring a minor for sexual purposes is 15 years.

Defense attorney John Sando of the Pima County Public Defender’s Office said that can lead to unfair descrepancies.

Tucson police arrested Sando’s client Michael Ray Hill in January 2013 after an Internet service provider notified them of possible child pornography downloads.

After an investigation, police searched Hill’s home and found child pornography on his computer. He was charged with 10 counts of sexual exploitation of a minor.

Court documents said Hill frequented online chat rooms geared toward gay teens, where he asked boys to send him nude photos of themselves. Hill, 28, ultimately pleaded guilty to two counts of sexual exploitation of a minor and was sentenced, under a plea agreement, to five years in prison.

Sando called the punishment a “travesty” because of Hill’s disabilities and cognitive limitations. Both developmentally and physically disabled, Hill was nearly homebound and unable to go anywhere on his own, Sando said.

He said Hill recognizes what he did was wrong and feels shameful. But the attorney questions whether locking a man with limited cognitive abilities in prison for five years addresses the problem of child pornography.

“What’s the danger he poses to the community?” Sando asked. “It’s such a ridiculous, illogical sentencing structure.”

The lengthy prison sentences for child pornography possession leave many defendants little choice but to plead guilty to one or two counts rather gamble at trial and risk a lifetime behind bars, Tucson defense attorney Rick Lougee said.

“The jury, if they see these pictures, they would want to convict the lawyer and the defendant,” Lougee said.
Pattern of escalation

In decades past, collectors of child pornography were almost always child molesters, said Dr. Paul Simpson, a Tucson-based criminal forensic psychologist who has treated sex offenders for more than 30 years and conducts mental-health evaluations of defendants for Pima County Superior Court.

They often used clandestine pornography collections as a bridge between opportunities to molest children.

But the Internet has helped create a new class of sex offender: one without a history of abusing children.

With pornography readily available to anyone with an Internet connection, Simpson said many people find child pornography almost by accident.

While noting that understanding the behavior does not excuse the potential harm offenders cause, Simpson said some of the answers could be found in how the human brain functions.

As pornography consumption becomes compulsive, users often fall into a pattern of escalation. He argues that they could benefit from intervention and therapy as part of their punishment.

“If treated early, there is a good chance of successful treatment,” he said.

But left untreated, he said, the likelihood increases that these offenders, too, will escalate their behavior and eventually molest a child.
“Tip of the iceberg”

Whether they molest a child or look at a photo, people who view child pornography helped to create a market that thrives on the abuse of children, LaWall said.

The sentences for child pornography possession are justified when considering the abuse victims of the industry have suffered.

“When I think about what was done to those children it doesn’t offend me whatsoever,” she said.

Two recent high-profile prosecutions exemplify how the market for child pornography has grown, claiming more victims almost daily.

In one, a Tucson man was sentenced to more than 24 years in federal prison for molesting a toddler and broadcasting the abuse on the Internet.

“It’s totally frightening,” La Wall said. “There is no question whatsoever that we are only encountering the very tip of the iceberg.”
The growth of exploitation cases in Pima County

Cases opened in Pima County Superior Court by year*

2013 51

2012 32

2011 27

2010 29

2009 21

2008 26

2007 20

2006 11

2005 13

2004 20

2003 20

2002 21

2001 21

2000 11

1999 8

1998 7

*Statistics for cases with charges of violations of Arizona Revised Statutes 13-3552 Commercial sexual exploitation of a minor; 13-3553 Sexual exploitation of a minor; evidence; 13-3554 Luring a minor for sexual exploitation.

Source: Pima County Superior Court, Clerk of the Pima County Superior Court

Child pornography prosecutions by year in Pima County Superior Court

38 2013

33 2012

32 2011

18 2010

16 2009

Source: Pima County Attorney’s Office


The population of inmates in Arizona Department of Corrections’ prisons having been convicted of sexual exploitation of a minor as of April 30.

Source: Arizona Department of Corrections

Our misguided child porn laws do little to protect children

Our misguided child porn laws do little to protect children
By Jacob Sullum

This Dec. 11, 2013 image from video provided by WJLA-TV, shows Ryan Loskarn, former chief of staff to Sen. Lamar Alexander, R-Tenn., being escorted from his Washington home by U.S. Postal Inspector police. Loskarn killed himself in Maryland, just weeks after the former staffer’s arrest on child pornography charges.(AP Photo/WJLA-TV)

(Note: From time to time, I’ll be inviting writers, reporters, and experts on the criminal justice and civil liberties beat to contribute guests posts. Our first guest post comes from my former colleague Jacob Sullum, a national syndicated columnist and senior editor at Reason magazine. — Radley Balko)

In the letter he wrote on the day he hanged himself last month, Ryan Loskarn talked about the shame and guilt he felt after he was caught with child pornography. Loskarn, former chief of staff to Sen. Lamar Alexander (R-Tenn.), did not mention fear of prison, perhaps because he had already resolved to end his life. But for anyone in his position who planned to stay alive, the prospect of spending years behind bars would loom large.

The legal treatment of people caught with child pornography is so harsh that they can end up serving longer sentences than people who actually abuse children. In a 2009 analysis, federal public defender Troy Stabenow shows that a defendant with no prior criminal record and no history of abusing children would qualify for a sentence of 15 to 20 years based on a small collection of child pornography and one photo swap, while a 50-year-old man who encountered a 13-year-old girl online and lured her into a sexual relationship would get no more than four years.

Under federal law, receiving child pornography, which could mean downloading a single image, triggers a mandatory minimum sentence of five years — the same as the penalty for distributing it. Merely looking at a picture can qualify someone for the same charge, assuming he does so deliberately and is aware that Web browsers automatically make copies of visited sites. In practice, since the Internet nowadays is almost always the source of child pornography, this means that viewing and possession can be treated the same as trafficking.

The maximum penalty for receiving or distributing child porn is 20 years, and federal sentencing guidelines recommend stiff enhancements based on factors that are extremely common in these cases, such as using a computer, possessing more than 600 images (with each video clip counted as 75 images), and exchanging photos for something of value, including other photos. Federal agents reportedly found 200 child porn videos on Loskarn’s hard drive when theyarrested him on December 11.

Ninety percent of federal child-porn prosecutions involve “non-production offenses” like Loskarn’s: downloading or passing along images of sexual abuse, as opposed to perpetrating or recording it. As a result of congressional edicts, the average sentence in such cases rose from 54 months in 2004 to 95 months in 2010, according to a 2012 report from the U.S. Sentencing Commission (USSC). The penalties have become so severe, the commission noted, that judges frequently find ways to dodge them, resulting in wildly inconsistent sentences for people guilty of essentially the same conduct.

While the original justification for criminalizing possession of child pornography was that demand creates supply (an argument that has been weakened by the shift to free online distribution), the escalation of penalties seems to be driven largely by the assumption that people who look at these images are all undiscovered or would-be child molesters. Is that true? The USSC found, based on criminal records and additional information in presentencing reports, that one in three federal defendants sentenced for non-production offenses in the previous decade had known histories of “criminal sexually dangerous behavior” (including prior child pornography offenses). Tracking 610 defendants sentenced in fiscal years 1999 and 2000 for eight and a half years after they were released, the USSC found that 7 percent were arrested for a new sexual offense.

Even allowing for the fact that many cases of sexual abuse go unreported (as indicated by victim surveys), it seems clear that some consumers of child pornography never abuse children. “There does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending,” says Karl Hanson, a senior research officer at Public Safety Canada who has co-authored several recidivism studies.

Why would anyone look at this horrible stuff if he was not inclined to imitate it? Troy Stabenow put it this way in a 2009 interview with ABA Journal: “People who watch movies like Saw and Friday the 13th are being titillated by the act of torture and murder. That doesn’t mean that they’re going to go out and commit torture and murder.”

Dean Boland, an Ohio defense attorney specializing in child pornography cases, says a substantial share of defendants were themselves victims of sexual abuse as children and look at these images as a way of working through the trauma. That is how Ryan Loskarn explained his attraction to child pornography. “I found myself drawn to videos that matched my own childhood abuse,” he wrote. “I pictured myself as a child in the image or video. The more an image mirrored some element of my memories and took me back, the more I felt a connection.”

Taking Loskarn at his word (and what is essentially a dying declaration probably should be given considerable weight), he not only had no desire to abuse children; he was not even titillated by the videos he collected. It hardly makes sense to treat someone like that as a criminal, let alone one who deserves to spend eight years in prison (the average sentence for non-production child porn offenders).

In fact, it is not clear why mere possession of child pornography should ever be grounds for locking people in cages. The Supreme Court’s main rationale forupholding the ban on possession was that demand for this material encourages its production, which necessarily involves the abuse of children. But this argument has little relevance now that people who look at child pornography typically get it online for free. Furthermore, people who possess “sexually obscene images of children” — production of which need not entail abuse of any actual children — face the same heavy penalties. “They are not protecting a single child,” Boland says. “They are throwing people in prison for having dirty thoughts and looking at dirty pictures.”

Defending Federal Child Pornography Cases: The Basics

Defending Federal Child Pornography Cases: The Basics

Is it right to imprison people for heinous crimes they have not yet committed?

Is it right to imprison people for heinous crimes they have not yet committed?

They called me a child pornographer by Jody Jenkins

They called me a child pornographer by Jody Jenkins
They called me a child pornographer by Jody Jenkins

The Child Pornographer Next Door byMaggie Gallagher

Lately the phrase "unlimited texting" is taking on a whole new meaning:

"In Alabama, Connecticut, Florida, New Jersey, New York, Michigan, Ohio, Pennsylvania, Texas and Utah (at last count) minors have been arrested for 'sexting,' or sending or posting soft-core photo or video self-portraits," The American Prospect reported.

Among the recent cases:

Six high school students from Greensburg, Pa., were charged with possessing, manufacturing and distributing child pornography this month after nude pictures of several underage girls were confiscated from one of the boys' phones. The three 14- and 15-year-old girls who sent the self-made child porn and the three 16- and 17-year-old boys who received it were arrested.

In Fort Wayne, Ind., a teen boy faces felony obscenity charges for allegedly sending a photo of his private parts to several girl students.

Nor is this always kids' play. In a suburb of Phoenix, the assistant principal of Buckeye Union High School faces up to 12 years in prison if convicted on charges that he received (voluntarily) sexually explicit photos sent from a 17-year-old girl student's cell phone.

In Tennessee, the Memphis City Schools system is launching a new task force to deal with "sexting." In Utah, according to the Daily Herald of Provo, Republican state Rep. Sheryl Allen has introduced a bill that reduces the first child porn offenses by teenagers from felonies to misdemeanors, with repeaters subject to felonies.

North of Seattle in Bothell, Wash., two cheerleaders sent naked photos to their boyfriends, only to find that the images rapidly passed through the entire school, ending up in the office of a school administrator who punished both girls for violating the high school code. (The girls' parents are suing the school district for its staff members passing on naked photos of their daughter to several other school personnel.)

No wonder Larry Flynt is standing in line for some government stimulation. Oh, for the good old days when men were actually expected to pay for porn!

By now the way in which modern technology makes the consumption of pornography universally available is old hat. The sexting craze underlines the way the creation of pornography has been equally democratized -- in this case right into the hands of suburban 15-year-old girls pathetically trying to attract or keep the attention of porn-jaded boys.

Why do girls act like this? In his book "Boys Adrift," Leonard Sax writes about asking a 16-year-old girl "as gently as I could, why she was wearing a Hooters outfit to a school Halloween party."

"If you don't dress like this, nobody will even notice you," she told him.

The savvy scholars at the National Campaign to Prevent Teen and Unplanned Pregnancy uncovered the news that more than half of teen girls who send sexy photos of themselves do so in response to pressure from some guy -- usually boyfriends or potential boyfriends. It took an intrepid New York Post reporter to discover these and even sadder reasons why some suburban teen girls cave to ex-boyfriends' pressure for self-made porn.

A 15-year-old New Jersey high school sophomore explained that she fired off 40 naked pictures to her ex-boyfriend in a failed attempt to win him back. One 16-year-old from New Jersey offered a different reason: "(My ex-boyfriend) kept asking me, and it was annoying," so she finally gave in and sent him photos.

Gee, what could possibly be more pathetic than a girl who sends an ex-boyfriend naked pictures to win him back? How about a girl who sends an ex-boyfriend naked photos to make him go away?

Right now we have a decision to make: Is underage porn (these aren't really children) a crime or not? If so, how do we treat girls and boys who engage in it "for fun" and not for profit?

After all, if the thought that their fellow students, their teachers, their employers, their college admission officials, the entire football squad, their mothers and the local district attorney may well see these cell phone photos is not enough to discourage teens -- then we really have a problem on our hands.

Anatomy of a Child Pornographer

Anatomy of a Child Pornographer
Anatomy of a Child Pornographer

Monday, September 29, 2014

The Troubling Consequences of Federal Child Pornography Laws

The Troubling Consequences of Federal Child Pornography Laws
The Troubling Consequences of Federal Child Pornography Laws

Sunday, September 28, 2014

FBI criticizes Apple and Google for giving people what they want

FBI criticizes Apple and Google for giving people what they want

Did you hear the one about how the iPhone 6 will kill us all?Maybe this shouldn't make me laugh, but it did:

FBI Director James B. Comey sharply criticized Apple and Google on Thursday for developing forms of smartphone encryption so secure that law enforcement officials cannot easily gain access to information stored on the devices — even when they have valid search warrants."Even when they have valid search warrants"! Also when they don't. Thanks, Google and Apple, for getting the intrusive security state off our backs! It's much appreciated.
His comments were the most forceful yet from a top government official but echo a chorus of denunciation from law enforcement officials nationwide. Police have said that the ability to search photos, messages and Web histories on smartphones is essential to solving a range of serious crimes, including murder, child pornography and attempted terrorist attacks.Oh, well. Time to go back to real police work, not one that relies on wholesale collection of private date, sometimes with "a valid search warrant," oftentimes without. Since we don't know which is which, particularly with laws preventing technology companies from disclosing such requests and the existence of "secret courts," then fuck you. You've earned the right to be mistrusted. Congratulations!

Funny also, in the article, how the author blames law enforcement's woes on the Big, Bad NSA, as though they are collateral damage from the NSA's abuses. But nope, the FBI hasn't been an innocent bystander. They've all been complicit, and the market (this is still a capitalistic society!) is giving consumers what they want: security from unwarranted government intrusion.

“There will come a day when it will matter a great deal to the lives of people . . . that we will be able to gain access” to such devices, Comey told reporters in a briefing. “I want to have that conversation [with companies responsible] before that day comes.”

Oh, we're back to mushroom clouds, are we? So the government can pry into your devices, or we'll all going to DIIIIEEEE? Fuck you again.
“Apple will become the phone of choice for the pedophile,” said John J. Escalante, chief of detectives for Chicago’s police department. “The average pedophile at this point is probably thinking, I’ve got to get an Apple phone.”People want privacy and security, therefore PEDOPHILES! Fuck you again.
Comey added that FBI officials already have made initial contact with the two companies, which announced their new smartphone encryption initiatives last week. He said he could not understand why companies would “market something expressly to allow people to place themselves beyond the law.”Simple reason: because the government placed itself beyond the law. Fact is, technology has given law enforcement far more tools than they've ever had before, allowing them to track criminals, eavesdrop on their conversations, and tap into social networks to catch scofflaws (like the Philadelphia group who viciously attacked a gay couple last week). Rather than celebrate that, they complain about their inability to pry even deeper into our personal lives. And we're supposed to feel sorry for them, because mushroom clouds and pedophiles?

Thanks, Apple and Google, for working to restore some balance between our own rights and the police state's intrusive efforts.

Saturday, September 27, 2014

The Child Pornography Crusade and its Net Widening Effects

The Child Pornography Crusade and its New Widening Effects, Melissa Hamilton

How to Survive in Federal Prison

If you have been sentenced to federal prison, you will become the property of the Bureau Of Prisons (commonly known as BOP). If you have been given a federal sentence, then it is likely that you'll be spending several years behind bars, but if you know what to expect right away, your life in prison will be much easier. If you want to know how to prepare for federal prison and how to survive in your new environment, just follow these steps.

Part 1 of 2: Getting Ready for Prison

Bite your tongue. If the judge doesn't allow you to self-surrender to the prison where you have been designated, you will be handed over to the U.S. Marshal services. Do not speak to a Marshal, or let him overhear a conversation, about your case or anything else for that matter. Nothing you can say will make the situation any better and it might even make things worse: just because you have already been convicted doesn't mean that you can't be charged with something else.
Don't ever forget that anything you say can be taken down in evidence and used against you. So, keep your mouth shut as much as possible.
Take advantage of medical care outside of prison if you have time. The choice and quality of care is significantly better outside of prison. Certain treatments that you take for granted might not be available in prison, or won't be as good. After all, if you're in prison and you don't like the prison dentist, where else are you going to go to have your teeth fixed? So, if there's time to do it, consider having a dental check-up before you self-surrender, and get anything important fixed.
Also, if you wear glasses you may want to have an eye test and get new lenses, assuming you need them. As with dental care, you've got a better choice of lenses and frames outside prison.
If you're lucky enough to have some time before prison, get a check-up or address any medical issues you've been having. Though you'll get medical care in prison, it's better to get medical attention before you're locked up.
Line up some reading material. Most federal prisons allow magazines and books to be sent to inmates - on condition that these are sent directly from the publisher or a retailer like Amazon. If you're self-surrendering and you know which prison you're going to be in, consider taking out a subscription for magazines/journals, and order a couple of books from Amazon to read. Do this a couple of days before you self-surrender.
Alternatively, give your friends and family a shopping list of books/magazines and let them take care of ordering things. There's no web access in prisons, so make your selections before you enter prison.
Though choosing reading material may be the last thing on your mind before you start your time in federal prison, being prepared for reading material (as soon as you're allowed to have it) can help you feel less lonely and more comforted when you begin your sentence.
Keep your guard up if you are sent to a hold-over facility or a prison camp. If you are placed in transit to prison, you may be sent to a hold-over facility. The facility you are sent to may be determined by whether you are designated for a low, medium, or high-level prison. Some of the living conditions in these facilities are not ideal, such as being placed in a two-man cell with up to three other inmates for 23 hours a day, being allowed out to rec in an enclosed area for one hour, and only being allowed to shower for five minutes twice a week.
Each facility has its own rules -- just be prepared for the extreme conditions you may face.
Be especially cautious during this time. You will be with other people who are in a state of uncertainty and are more likely to be volatile than they will be once they get settled in to the prison routine.
Learn the rules. Try to find out as much as possible about how the system works in the prison you will be living in. If there is an official rule-book for the prison, read it. You can be punished for breaking a rule that you didn't know existed. Breaking the rules will not only piss off personnel but inmates as well. It makes life harder for everyone. Ignorance of the rules is no defense. Information is power.
Bring the maximum amount of money that you are allowed to take to prison. You may be allowed a certain amount of money (up to $500). This money will be used to buy supplies you may need while incarcerated. This is called putting "money on your books." You will need money for supplies such as stamps, envelopes, snacks and also hygiene supplies.
Cash is not necessary and will be confiscated. It's best to go in with a US Postal Service money order as they are widely accepted in all prisons (federal and state).
Additionally, don't let anyone know that you have money. Pretend that you're poor and penniless. That way there's no danger of other prisoners trying to extort money from you.

Part 2 of 2: Surviving in Prison

Don't trust anyone. That goes for guards, other prison officials, and the person in the cell next door. If someone is being nice to you, ask yourself "What's in it for him or her?" They almost always have some hidden motive that you don't know about. In prison, nothing is free. For example, if someone gives or loans you something, you will probably have to pay it back with a hefty rate of interest added. If you can't pay, they may demand a favor that could get you into big trouble, like hiding contraband in your cell.
Hide your emotions. If you want to look tough, do not show fear, anger, happiness, or pain. Emotions are your worst enemy because they reveal your weaknesses. Both inmates and guards prey on weakness. Don't give them the opportunity to do so. If someone can figure out what makes you angry, they can use that knowledge to manipulate you. In the same way, if someone knows what makes you happy, they can try to ruin it for you. And because they are around you 24/7, they have unlimited opportunities to test their manipulative skills on you.
Make use of your cellmates. Do not be overly friendly with your cell mates but do ask some questions. Many have been in prison before and will be able to give you information about the prison you are being sent to as well as the system itself. You will have to judge for yourself whether to believe any of the information. Use common sense and try to figure out if that person has a reason to lie or mislead you. Some convicts will try to intimidate new inmates or mislead them for fun. Be careful.
Choose your words carefully. Potentially, anything you say to guards or prisoners, no matter how innocent you think it is, can be used to hurt you, manipulate you, or be taken out of context. Avoid discussing dangerous conversational topics. Otherwise, it can easily get you into trouble. Obvious subjects to steer clear of are religion, politics, racial issues, or your own personal feelings about someone or their family and friends.
Some of the prisoners you'll encounter may have a short temper, or are mentally ill, of low intelligence, or just plain bad. Prisoners like that don't have a warning written on their forehead - they look like regular guys.
You can easily be misunderstood or deliberately misquoted by someone who's trying to stir up trouble. What starts out as a petty argument over a trivial issue can turn into someone bearing a strong personal grudge against you.
Don't be paranoid. Just be aware that things may not be what they seem, such as the prisoner who tells you that gay or black people are just like everyone else, then asks what you think may in reality hate homosexuals or black people - he's just testing your attitude or yanking your chain.
Always be polite and respectful to guards and other prison employees.If you give them a reason to hate you, they can make your life even harder than it already is. So, don't give them a stick to beat you with. It's true that some prison employees are better than others. Even so, never forget whose side they're on - it certainly isn't yours. You need to get it in your head that the staff are always right and you need to do what they say. Even if you know it is wrong at the time, it is best to just follow the order, and if you have a problem with it, you can address it at some later point.
For example, if you work as a server in the kitchen and a staff foreman tells you to go clean tables in the dining room though you know it's not a part of your duties. The best thing to do is to just go clean the tables, because you are an inmate and you are not going to win an argument with a staff member.
Don't do anything that makes staff feel challenged or intimidated; they have various ways of making you pay for that mistake.
Don't stare at the other prisoners. Although you're simply curious about them, the other person can completely misinterpret what's happening. In prison, if someone stares at you it usually means they feel intense hostility or disapproval towards you. Alternatively, staring is a way of showing sexual interest. It's OK to look at people, but don't stare at them. There's a difference between looking and staring.
When you're walking to your cell, do not stare into the other prisoners' cells. This is considered an invasion of privacy and can get you in big trouble.
Don't be a snitch. People who tell tales to the guards or other prisoners are despised by everyone and can be physically attacked. The best thing you can do in prison is to see everything, hear everything, and say nothing. If the guards ask you for information about some incident involving other prisoners, claim that you were looking the other way and didn't notice or hear anything. While this may irritate the staff on some level that you aren't willing to snitch, they will likely understand.
Avoid being seen talking to guards in a friendly way because other prisoners could assume (wrongly) that you're a snitch.
Don't talk to prison staff any more than absolutely necessary, because while it may be just innocent conversation about the weather, other inmates won't perceive it that way.
Don't ask the staff to solve your problems. Truth is, you can never go to staff for assistance with issues you may have, or else you will have problems with inmates if you do. If you go to staff with a problem, the only thing they can do for you is put you in the SHU as a protective custody inmate, and that will cause you trouble throughout your entire incarceration
If you complain to staff, you're stuck out in no-man's-land between the staff and inmates. Neither group will help you. Try to get used to the fact that you have very few human rights in prison, and that you're largely powerless to change your circumstances.
Ask to be placed in the Secure Housing Unit (SHU) only in extreme circumstances. When fights occur in prison, the participants may be punished by being put in a segregation unit or be moved to a higher level of confinement, but it is extremely unusual for them to be charged with a crime, as long as all the participants were prisoners. Your legal protections in prison are severely curtailed by the system. The guards and administrators do not want anyone to make waves.
Prison employees will punish you for making waves much more quickly than they will come to your aid. Sometimes the punishment will be official, in other cases it will be more subtle e.g. "forgetting" or "misplacing" something that you need.
You always have the option to ask to be put in the hole for your own protection. The hole is unpleasant, but it is relatively safe. Don't ask for this kind of protection unless you fear for your life because if you go to the SHU you'll spend 99.9% of your time locked inside a cell.
Don't join a prison gang. Just like in the real world, in prison there are gangs. But in prison, gangs are far more prevalent. These gangs work very differently on the inside than on the outside. Be mindful of gang members, but avoid joining a gang; gang members are soldiers, and gang leaders demand absolute loyalty. If you join a gang, you may be ordered to do something that will keep you in prison a lot longer; a gang member has no choice, because aside from getting out of prison, there's only one way to quit a prison gang while in prison: to die.
All prison gangs are separated first and foremost by the races they are typically associated with. Bloods/Crips/Black Guerilla Family (African-American); the Mexican Mafia (Mexicans); MS-13 (Salvadoran/Honduran/Guatemalan/Nicaraguan); White Supremist/Nazi (Caucasian), etc. There are many different divisions.
Show allegiance to your race. It is crucial to your survival in the prison system to immediately show your allegiance to your race -- though this doesn't mean you have to join a gang to do it. If you are some white suburbanite 19-year-old kid that pledged yourself as a crip, and you used to buy the dope you got busted selling from your crip homeboys in the projects, that doesn't mean you can link up with them in prison. If you're white and you walk in slapping high fives with the brothers before you shake hands with the white dudes, you're going to send a rift through the whole community.
This doesn't mean you have to get a swastika on your forehead or "Blood for Life" tattooed on your chest. It simply means whichever race you are associated with, you seek them out first and introduce yourself.
You get to know inmates of your race first. Especially the "important" figures within your race. You can be "friendly" with people of other races after that.
In prison, blacks, Mexicans, Chicanos, Asians, and whites all look after their own. This isn't the time to be colorblind.
Seek out people from your hometown. In most federal facilities, there are inmates from all over the country. You can do an inmate search prior to turning yourself in. You'll be able to look through the prison inmate listing to see if you know anyone or where their home state is. When you get to your designated facility, you need to find other inmates who are from your city or state; these are your "home boys" and they will usually help you with things you have an immediate need for, such as basic hygiene items and shoes.
But beware of your home boys if there is anything wrong with you or your case, like if you are an informant, sex offender, or anything else frowned upon by inmates, in which case your home boys will probably be the ones that will confront you on it. This could include assault, stabbing or whatever else they think you deserve.
Respect the personal space of the other prisoners and don't let them invade yours. You will be tested and if you allow others to get too close to you for comfort, they will just get closer and closer until your subservience is obvious. Have respect and never reach over someone else's plate at the mess hall for the pepper, salt, etc. Don't allow others to reach over your plate either, or you'll look like a pushover.
Personal possessions like photographs, letters and other stuff are very important when someone is in prison. So, never borrow or use something that belongs to another prisoner unless he's told you it's OK to do it. Touching someone's personal possessions without their permission is a no-no.
Get used to the new rules. Above all, remember that the normal rules of the outside world simply don't apply any longer. When you're in prison, you're living on a different planet where all that matters to you is surviving the experience with as little damage as possible.

Start eating like a horse, workout and study/practice street fighting techniques. At some point soon you are going to be tested and you'll need to show that you can look after yourself.
When you enter prison, try to concentrate on what's going on inside prison, because time will seem to pass faster that way. It's difficult not to think about the things you're missing out on in the outside world, but torturing yourself with it will just make you miserable. It certainly won't get you out of prison any faster. Instead, concentrate on the things you can control in prison, not the things that are out of your reach outside the prison fence.
Don't forget to get vaccinated for everything possible before sentencing, your county health service will do it at a reduced cost and it could save your life.
Bear in mind that anything you say, especially on the phone, is likely to be overheard by both prisoners and guards. There are snitches among your fellow inmates that are looking to trade information for favors with the staff (this is encouraged by people like case managers). Be especially careful about criticizing another inmate as you can pretty much guarantee that it will get back to him.
Letters and phone calls going in or out of a prison are routinely monitored. That's because the prison authorities are always looking for "dirt". If they spot something interesting, a copy or recording will be made for future investigation. Warn your friends and family that there's no such thing as privacy when you're inside prison.
Keep a low profile and try to blend into the background when you are in prison. Stay under the radar of guards and other prison employees. Basically, don't draw attention to yourself if you can avoid it. Remember that the nail that stands out gets hammered in. Watch and learn.
When you have to go to the showers with 12 to 20 other inmates, wear boxers.
Inmates who are homosexual are usually looked down upon and are ostracized by other inmates. If you are gay, you best keep it to yourself while in prison, because it will only cause you problems. Inmates who are unusually young or cute-looking may be approached sexually by others who are testing the waters. If you are approached, it is best to decline; you do not want to become the property of some other inmates.


Be careful to never call anyone a "punk" or "bitch", as they have a much different meaning in prison. If you should ever call someone either of those, be prepared for a nasty fight. If the attack doesn't come immediately, it doesn't mean it's not coming. If someone should ever call you a "punk" or a "bitch", it may seem logical to be the better man and walk away; however, while in prison, you have to show that you won't allow yourself to be punked, and it is almost certainly expected of you to put up a fight when called either one of these two names. Prison is a violent place; watching what you say can save your life.
This may sound weird and uncomfortable, but could be life-saving: If you are concerned about getting attacked, sit when you go to the bathroom, and take your pants off completely. Since many attacks happen when you are using the toilet, it's easier to defend yourself without your pants around your ankles, so you would not trip.
Hopefully you will never be physically attacked during your time in prison. However, if you are, here are some points to bear in mind. You can be attacked anywhere in the prison, though usually it will happen in a place where there is no direct surveillance by guards, e.g., a corridor. Obviously, you could be attacked in a cell, though a classic place for an attack is the toilet or shower, when you are distracted. An attacker can seize a time-window of just 30 seconds to attack you, then walk away nonchalantly. So, watch their hands because that's where the attack comes from. If someone has their hands in their pockets or behind their back, they could be concealing an improvised weapon such as a home-made knife. Don't let yourself get backed into a corner where you have no escape route away from your attacker.
Don't bend over in the showers.
If you're in for something like a sex offense, don't lie and tell anyone that you're in for something like drug dealing. If you truly were a dealer, then someone in prison is bound to know someone on the outside who should know of you. They will ask you for names (street aliases) of certain individuals in the area that you claim to deal, names that you should know (and who should know you) in the local drug scene of your area. Don't bother making up names. Prison will be filled with people who know the drug scene and even the little people in it. If they can't pin down anyone who recognizes you (regardless of them probably not knowing your real name, which is common in the drug scene), then they will suspect you are lying and the consequences will be dire.
On that note, you should be aware that sex offenders are never eligible for Federal Prison Camps which are minimum security and exclusively house non-violent offenders. You will be restricted to higher or maximum security facilities, where you will be interacting with lifers and other genuinely dangerous convicts. If you are truly worried for your safety, then you should ask for protective custody. In most institutions, you are not automatically segregated unless it has been demonstrated that you are in danger. This would normally involve having already been attacked and seriously injured. However, protective custody (or Special Housing Unit aka SHU) in most facilities is typically the same as solitary confinement where you are confined to your cell almost 24 hours a day with about an hour for solitary recreation in a small cage or concrete enclosed area. You will no longer be able to visit the yard, gym, chapel, or library, watch television or movies, receive visitors (other than attorneys or other legal representation) or have a paying job. You will no longer have regular access to books and magazines (you are no longer allowed to order music, book or magazine subscriptions). You will also no longer have access to commissary, telephone or packages from home. No commissary or packages means that your diet will be solely limited to the three unappetizing prison meals that are served in the chow hall. These are delivered to your cell on a tray and slid through a slot in your door. The hot meals may often be cold by the time you recieve them.

Sex, Lies And Statistics

Sex, Lies And Statistics
Sex, Lies And Statistics

Tuesday, September 23, 2014

Jury nullification is the power of people to judge a law itself

Ben Swann: Jury nullification is the power of people to judge a law itself
by Kurt Wallace

There’s a growing movement in America that encourages people to serve jury duty and to understand the power of jury nullification. What is jury nullification? It’s when a jury nullifies a law they consider unjust or incorrect, in said case either immoral or wrongly applied to the defendant. In the past it’s been used for the Alien and Sedition Acts, the Fugitive Slave Acts and Prohibition.

Here to discuss is Ben Swann with JustUs — a collaboration of grassroots and media, encouraging the practice of jury nullification. And Ben, it’s great to have you with us.

Ben Swann: Hey Kurt, thanks for having me on.

Kurt Wallace for Rare: Well, Ben, tell us a little bit about what you guys are trying to do with JustUs?

Ben Swann: So the idea, here, is we kind of pull together a coalition apart from NewMedia, myself, Josh Tolan, Luke Rawzoski, Angela Keaton, Bob Murphy, Joby Weeks, Jordan Paige, Tatiana Murrows, Jeff Berwick, so a number of people here. And what we’re trying to do is really draw attention to this idea of the power that a jury has, and really, on two levels, okay? The first level is the trial jury, where a juror has the power to not only judge the facts of a case but also can change the law itself: That, according to John Jay, the first Chief Justice of the Supreme Court. The Supreme Court in 1789 talked about the specifically jurors, saying they have this, not just ability, but they have the authority and they have the obligation to judge not just the facts of the case but the law itself. But also, on the level of the grand jury, and that’s the other place that we’re very interested in talking about this. It’s that, you know, a lot of folks don’t realize the power that a grand jury has and the importance they have, in deciding whether or not certain charges are even levied against someone.

Kurt Wallace for Rare: Let’s explain what the difference is between a jury and a grand jury.

Ben Swann: Sure. So, a trial jury is obviously what you can see on Law and Order, right? If you’re watching one of those shows, you see, you know, someone who’s essentially as part of a criminal or civil trial — they’re essentially being tried on charges, whatever they might be, so drug possession — you know, murder, rape, whatever it is, and so the jury will hear that case when it goes to trial and judge the facts of the case. But a grand jury essentially decides whether or not an individual will be indicted on charges, meaning that a sheriff’s department or a police department in conjunction with the bishop attorney’s office can charge someone with a crime. But whether or not those charges make it to trial is up to a grand jury. So, a grand jury essentially will decide whether or not the person who is being charged, there is enough evidence against them to actually take the case to trial. So it’s almost like the pretrial, if you will, of someone. And so a grand jury actually has the ability to do something that I think is very important, because one thing that we’re actually seeing across the country, Kurt, is this issue of prosecutors who will take charges against someone. And they’ll just keep piling on more and more and more charges. And in many cases, they are almost creating trumped up charges in order to force the person who’s being charged to take a plea deal. Now we see this happen all the time. And many people are aware that this happened. It’s hardly, you know, shocking to people — they hear me say that. But what we want to do is say, look, as a juror, you have the ability to stop that from happening, because what we see are prosecutors who will bring so many charges and so many kind of trumped up charges that the threat of someone going to prison, for twenty or thirty or life in prison — twenty, or even thirty years or life in prison– scares them into taking a plea deal instead of having their day in court and forcing the prosecutor to argue the case and so more and more we’re seeing the chief of strategy. And jury nullification is the great opportunity for the juror to intervene and say wait a minute, wait a minute, we’re not going to let you just trump up charges against someone. If they’ve committed a crime and charged them with a crime they’d say that have committed, take them to trial and prove that they committed this crime but don’t try to add on all of these other additional charges in order to frighten them into taking a plea deal.

Kurt Wallace for Rare: Let’s talk about examples of jury nullification in recent history. I named some in the past; prohibition being one might be something that has been used recently. There was an op-ed in the New York Times talking about the importance of jurors needing to know that they can say no, referring to the marijuana issue which has become a prominent issue in America. Any specific jury nullification cases that you can point to that are important?

Ben Swann: There’s a couple of things that I think, you mentioned, about you know, in the past, the Fugitive Slave Act. There have been a number of cases where we have seen — and by the way — it’s been misused in a number of cases, as well. So, you have very positive things like the Fugitive Slave Act where juries have used that nullification. But you also have cases in the South where you would have lynchings of black Americans and the jury would nullify, well — we would see the victim as the crime — but we think the law as a bad law, so we’re going to nullify. And the reason that I bring this up…and the point being, there is — jury nullification is a tool, and it could be used in terrible ways and it could be used to rob people of justice, but it can be used in correct ways and rightful ways and be a tool to bring justice. And so, I’ll give you a couple of examples in our modern time of where jury nullification can be especially effective. You mentioned the case of marijuana. So, if you have someone who is charged with having a narcotic in their home, they’re charged with having their kids around narcotics, but, you know, the drugs were actually nowhere actually near the children. There was no one injured as a result of this. It’s someone caught with, you know, a baggy in their pocket. And so, again as I mentioned, in the grand jury scheme of things, lots of charges are added on, you have the ability to say, listen, if there’s no victim, there’s no crime. No one’s been harmed by this; I’m not going to find this person guilty, committing the crime that’s going to ultimately land them in prison. I don’t believe that’s worthy of that. But I’ll give you another example. So, you have all these young people, right, these, you know, teenage girls who snap selfies of themselves, and sometimes they do it in their underwear and sometimes they’re not wearing anything. And so some girl who’s, you know, fifteen, sixteen years old will send this picture to her friends or to her boyfriend, whoever. So, we have cases where those teenagers are charged with possession of and distribution of child pornography. And as a result of that, a lot of times these teens are not only being charged, but ultimately, when they are found guilty, they’re being forced to register as sex offenders for the rest of their lives. Now, you’re telling me that — whether you agree or disagree — with the poor choice that a young woman makes or some teenage boy makes in receiving this picture and sharing it with his friends. The poor choice they make — should that result in them being labeled a sex offender, which automatically carries the, you know, connotation of being a child molester with them for the rest of their lives? And so jury nullification works in that a juror could say, look, you know, media says all the time, well, there’s nothing we can do about this, this is the unintended consequences of the law. But that’s not true. A juror has the ability to say, “Listen, I may not like the decision they made, but the law stinks when it requires them to register as a sex offender. They’re not a sex offender. So, I’m going to nullify the law.” And that’s a great example of how, you know, we can restore common sense to the judicial system but right now it seems to be lacking in a lot of areas.

Kurt Wallace for Rare: Now, when a jury does attempt to do jury nullification, there are cases where the judge may want to punish the jury. They want to overturn what the jury has done. Can you speak to that?

Ben Swann: Yeah, and there was a case where I believe the jury was held in jail for 18 days, because they nullified, and the judge kept them in there and wanted them to change their decision and ultimately they wouldn’t and they won out in that. But, you’re right, there are judges who absolutely refused to accept the idea of jury nullification, because they don’t believe that the jury has that power, even though clearly, again, and I want to encourage your listeners, Kurt, to go, because they have a lot of great information. They have been working on this project, I think since the mid ‘90s, and so they are way ahead of me on that. And this is not about me being the expert on this issue — I’m just trying to use whatever voice I have to promote it. So, go with the guys who are experts like FIJA — they have a lot of great, great information there, but what I would say is there are, you know, judges that don’t believe that you should have that right as a juror and will work very hard to take that right from you or to frighten you away from it. And the fact is you don’t have to…you don’t have to declare as a juror why you are nullifying. You don’t have to say, “I’m going to judge not just the facts of the case, but I’m judging the law and I nullify.” You never have to say those words. But you have the power to do so. You have the power to say, “I find this person not guilty, because of the fact that I believe that I believe this is a bad law.” But you don’t have to justify that to any judge — you don’t have to justify that to other jurors.

Kurt Wallace for Rare: There was a case in Texas recently where a judge got very upset with the jurors, thinking and accusing them of jury nullification in a DWI case. But actually the jury was concerned about the results of the test that was conducted on the defendant. And that’s why they let him go, but it created a big stir. This doesn’t necessarily have to apply to a specific law; it can apply to certain evidence in the case and that would appear to be jury nullification.

Ben Swann: Yeah, absolutely.It can appear that way. Look, my guess is that over the next couple of years — what we’re going to see happen is a huge pushback, especially from judges who really don’t like this idea of prosecutors, who don’t like the idea…who are really going to fight it on a lot of levels and so, I think, the key to that is, again, is that you don’t have to show all your cards, and as a juror, you have the most power in the court room. The judge does not. You actually do. You are there as a citizen who has the ability to hear and judge the facts of the case. And so, what I would really, you know, push to people is that you don’t have to make it clear what you’re contained to do. You’re there to listen to the facts of the case. You’re there to judge what you’re hearing. But you don’t have to fall into this cookie cutter response of, you know, all crimes must be treated the same way — if the law was written this way, then you must adhere to it. You actually, as the sovereign individual, have the power to override that. And that’s where the power is.

Kurt Wallace for Rare: Ben Swann, we appreciate you spending some times with us on Rare. And if people want to go to your website for JustUs, where would they go?

Ben Swann: Yeah, so you would go to, and you can find a lot of information there that we’ve put up. And we’re building up some things right now. We’ve had a great response from this. And folks who really want to get involved with it and help us to build it out into a much bigger campaign. So, we’re working through that right now. But right now you can get some good information there. You can also sign up for our newsletter there. In addition, you can check us out on Facebook; we’re establishing a Facebook page here. And it isJUST US Jury Nullification on Facebook. That’s where you can find us there. And you can like the page and learn more about it.

Under Pressure: The Hazards of Maintaining Innocence after Conviction

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Chapter in Ros Burnett, ed., Vilified: Wrongful Allegations of Sexu- al and Child Abuse, Oxford University Press, forthcoming

Daniel S. Medwed

Northeastern University – School of Law

Under Pressure: The Hazards of Maintaining Innocence after Conviction

Daniel S. Medwed1


Innocent people convicted of child abuse or sexual offenses face a classic “Catch-22” situation that has ramifications on their prospects for parole and for exoneration in court. If prisoners continue to maintain their innocence while imprisoned, then corrections officials may interpret this behaviour as demonstrating a key trait of sex offenders—“denial”—and make them ineligible for treatment programs that are a prerequisite for parole in many jurisdictions. Even if they are technically eligible to apply for parole, inmates who claim innocence before parole boards harm their chances for release based on the belief that those unable to admit guilt are likely to re-offend; they are perceived as lacking in remorse and failing to address their offending behaviour (Medwed, Daniel S., 2008, “The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings,” Iowa Law Review, Vol. 93, p. 491 [hereinafter Medwed, “Innocent Prisoner’s Dilemma”]). Prisoners who pursue their innocence through post- conviction litigation also face an uphill climb. This is attributable in part to cognitive biases that affect how prosecutors treat innocence claims in the aftermath of conviction and all too often lead them to discount their potential legitimacy (Medwed, Daniel S., 2012, “Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent,” New York University Press, pp. 123-132 [hereinafter Medwed, “Prosecution Complex”]). Considering the hazards that inmates encounter in maintaining their innocence in parole and post-conviction litigation settings, there is reason to think that many of them are not in denial, but rather the victims of profound miscarriages of justice. This Chapter will explore this conundrum in these two settings before concluding with some thoughts on reform.

Parole Release Decision-Making and the Innocent Prisoner’s Dilemma

As a threshold matter, prisoners convicted of sex offenses often must participate in “Sex

Offender Treatment Programs” in order even to be eligible for release on parole. A fundamental

1 Professor of Law, Northeastern University School of Law, Boston, Massachusetts, U.S.A.


requirement of such programs is that inmates must accept responsibility for their behaviour by “admitting guilt.” American courts have upheld this practice, finding that it neither inherently coerces prisoners nor violates their constitutional rights (Brar, Leah G. et al., “Mandatory Admission of Guilt in Sex Offender Programs,” September 2012, Journal of the American Academy of Psychiatry and the Law, Vol. 40:3, pp. 433-435; Newman v. Beard, U.S. Court of

Appeals for the Third Circuit, 2010, Federal Reporter 3rd, Vol. 617, pp. 775). This naturally

poses an obstacle for innocent people convicted of sex crimes.

For example, in the “San Antonio Four” case from Texas, a group of women were accused of sexually assaulting two girls in their care and steadfastly refused to accept plea deals before trial that would have spared them incarceration. Convicted of aggravated sexual assault of a child, the four received stiff sentences: fifteen-year prison terms for three of them, and thirty-seven and a half for the purported ringleader. The case against them rested on the inconsistent testimony of the two girls and the faulty expert opinion statements of a doctor. The case crumbled years later, in 2013, after a court acknowledged the glaring errors in the expert’s testimony. A sad footnote to this saga is that only one of them had been paroled prior to these events; the remaining three had bypassed the chance for release by refusing to participate in a Sex Offender Treatment Program. As of 2014, all four are free, awaiting an opportunity to formally prove their innocence (Chammah, Maurice, “The Mystery of the San Antonio Four,” Texas Observer, Jan. 7, 2014; Rodriguez McRobbie, Linda, “How Junk Science and Anti- Lesbian Prejudice Got Four Women Sent to Prison for More Than a Decade,” Slate, Dec. 4,


In situations where innocent prisoners convicted of sex crimes are permitted to seek parole, they still must tread carefully in light of the premium that parole boards place on admissions of guilt. Parole boards consider a wide range of variables in their release decisions (Cromwell, Jr., Paul F. et al., 2d ed. 1985, “Probation and Parole in the Criminal Justice System,” p. 199 [hereinafter Cromwell, “Probation and Parole”]; Palacios, Victoria J., 1994, “Go and Sin No More: Rationality and Parole Release Decisions by Parole Boards,” South Carolina Law Review, Vol. 45, pp. 567, 579). Among those variables, “evidence of rehabilitation”—as perceived by parole commissioners during the live hearing part of the release process—has historically played an instrumental role in the release decision (Medwed, “Innocent Prisoner’s

Dilemma,” p. 512). Most notably, the parole hearing provides an opportunity for a face-to-face


meeting between the prisoner and parole officials, allowing the latter “to search for such intuitive signs of rehabilitation as repentance, willingness to accept responsibility, and self- understanding” (Cromwell, “Probation and Parole,” p. 200). Purely from a risk management perspective, parole boards value an admission of guilt as reassurance that the inmate is aware of his past indiscretions and perhaps unlikely to reoffend.

This search for signs of rehabilitation has links to (1) modern psychology and (2) Judeo- Christian theology. In the eyes of many psychologists, a “sick” prisoner can only be “cured” if he accepts and openly acknowledges his involvement in criminal activity. And a person can only do this, or so many think, if he is not “in denial”—a concept that relates to Sigmund Freud’s groundbreaking psychological research in the area of disavowal and repression. The psychological discourse about denial emphasizes that a person can only experience a positive mental and spiritual transformation after coming to terms with past misdeeds (Medwed, “Innocent Prisoner’s Dilemma, pp. 533-534). Similarly, Judeo-Christian theology treats the admission of sinful conduct and apology for such conduct as integral in atoning for sins. Under ancient Jewish law, rehabilitation and atonement were the pillars of punishment theory. The parole process’s dependence on remorse and responsibility also mirrors the Christian Sacrament of Penance: “contrition, confession, the act of penance, and absolution” (Celichowski, John,

2001, “Bringing Penance Back to the Penitentiary: Using the Sacrament of Reconciliation as a Model for Restoring Rehabilitation as a Priority in the Criminal Justice System,” Catholic Lawyer, pp. 239, 249; Cohen, Jonathan R., 2005, “The Culture of Legal Denial,” Nebraska Law Review, Vol. 84, pp. 247; Medwed, “Innocent Prisoner’s Dilemma,” pp. 532-533).

Perhaps it is no surprise that parole boards, influenced by the rehabilitative origins of parole along with prevailing psychological beliefs and theological traditions, want to hear inmates admit guilt. That is, to gain release from the pentitent-iary inmates must essentially display evidence of their repentance (Schimmel, Solomon, 2002, “Wounds Not Healed by Time: The Power of Repentance and Forgiveness,” Oxford University Press, p. 182). Quantitative and qualitative data confirm (1) that parole boards attach tremendous importance to inmate statements that take responsibility for the crime underlying their conviction and (2) that the refusal to admit guilt diminishes the likelihood of parole (Medwed, “Innocent Prisoner’s Dilemma,” pp. 514-515). Specifically, statistics from the United Kingdom in one year studied,

2003, indicated that 51% of parole applications were granted overall, but that only 24% of

applicants who maintained their innocence received parole (Naughton, Michael, “Why the Failure of the Prison Service and the Parole Board to Acknowledge Wrongful Imprisonment is Untenable,” Howard Journal of Criminal Justice, pp. 1, 2).

The true value of acceptance of responsibility in measuring an inmate’s worthiness for release may be minimal, especially in the case of those whose denial is related to innocence. A

2002 study of 144 inmates convicted of sex offenses in England revealed that, while offenders perceived to be “in denial” by the parole board (about one-third of the sample) were much more likely to be rated “high risk” than those who accepted responsibility, only one “high-risk denier” was subsequently reconvicted of a sex crime, as compared with seventeen of the ninety-seven “non-deniers” (Hood, Roger et al., 2002, “Sex Offenders Emerging from Long-Term Imprisonment: A Study of Their Long-Term Reconviction Rates and of Parole Board Members’ Judgments of Their Risk,” British Journal of Criminology, Vol. 42, pp. 371, 387 n. 5; Shute, Stephen, “Does Parole Work? The Empirical Evidence from England and Wales,” Ohio State Journal of Criminal Law, Vol. 2, pp. 315, 324). How many of those “high-risk” deniers were actually innocent?

To be clear, some convicted sex offenders who claim innocence at parole hearings almost certainly are in denial, sometimes in the face of irrefutable evidence of guilt. Social scientists have observed that people typically make choices that maximize their “positive self-image.” Individuals are often reluctant to acquire or divulge information that counters the affirmative view they hold of themselves. As a consequence, guilty prisoners may be hesitant to admit guilt for fear of damaging their vision of themselves as “good.” Inmates may also have practical reasons for refusing to acknowledge guilt, for instance, sex offenders who worry that admitting culpability could imperil them within the prison (Medwed, “Innocent Prisoner’s Dilemma,” p.

539; Sigler, Mary, 2006, “Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline

Sentencing,” Arizona State Law Journal, Vol. 38, pp. 561, 567).

But it is dangerous to underestimate the strong possibility that assertions of innocence at parole hearings reflect the truth. Even more dangerous is the chance that an innocent prisoner’s resolve may flag over the years —that the desperation to improve the chances for earlier release may eventually prove hard to resist. Consider the internal dialogue that an innocent prisoner must experience before facing the parole board. Should he continue to maintain innocence and hinder his parole prospects? Should he falsely accept responsibility to boost his odds for release?

Even if the admission of guilt prompts the parole board to release him, the confession now belongs in the inmate’s parole file, which may be accessible to police and prosecutors. If the defendant were to pursue his innocence claim through post-conviction litigation, prosecutors may rely on the inculpatory statement in devising their response. And what about the inmate who vacillates, claiming innocence in one appearance before the board and guilt in another? Or who admits to a lesser crime (say, indecency) but protests the greater offense (rape)? Such is the “Innocent Prisoner’s Dilemma” when encountering the parole board (Medwed, “Innocent Prisoner’s Dilemma,” pp. 539-541).

Litigating Post-Conviction Innocence Claims

The parole process is not the only mechanism through which an innocent prisoner may seek her freedom. The court systems in Great Britain and the United States provide an array of post-conviction options for proving innocence. These options, though, are littered with procedural, substantive and strategic barriers.

Newspaper headlines notwithstanding, most criminal cases lack biological evidence suitable for DNA testing. This large category of “non-DNA” cases includes many cases involving child or intimate partner abuse where there were delays in reporting the allegations to law enforcement and, accordingly, no opportunity to retrieve potentially incriminating biological evidence. In such cases, as in the San Antonio Four saga, it is usually the purported victim’s statements coupled perhaps with some expert opinion testimony about physical and/or psychological trauma that comprise the evidence against the accused. Most prisoners therefore must resort to subjective, non-DNA evidence to prove their innocence. That evidence often consists of statements by new witnesses, the discovery of information that casts doubt on the honesty of key prosecution witnesses, or recantations by trial participants. Finding this evidence is challenging; persuading courts to take it seriously is just as burdensome (Medwed, “Prosecution Complex,” pp. 125-126).

After the conviction of a defendant, it becomes increasingly difficult to prompt courts to explore the accuracy of that outcome. In the United States, defendants may file a motion for a new trial in the aftermath of a conviction. Although these motions typically allow for the presentation of new evidence, they have strict time restrictions. Chances are remote that a

defendant can assemble enough newly discovered evidence to prove his innocence before the time runs out on a new trial motion. Defendants also invariably challenge their conviction in a procedure called the “direct appeal,” but the issues that courts review at this stage are relatively narrow. For the most part, appellate courts only consider issues and evidence previously presented to the trial judge, not anything new, during the direct appeal (Medwed, “Prosecution Complex,” pp. 125-126). The appellate procedure in Great Britain, while quite different,

contains its own roadblocks.2

Limitations on direct appeals and new trial motions put many defendants at the mercy of a jurisdiction’s post-conviction procedures, such as writs of habeas corpus or error coram nobis, or their statutory analogues. These are not direct attacks on the judgment but rather indirect or “collateral” challenges where petitioners may introduce evidence never heard before. Even though every jurisdiction in the United States permits the presentation of newly discovered evidence through some sort of collateral procedure, legislators and judges are notoriously skeptical of these claims. The post-conviction process reflects this skepticism through rigid statutes of limitations, onerous burdens of proof for defendants, and deferential standards of review for judicial decisions denying petitions (Medwed, “Prosecution Complex,” p. 125).

It may be particularly hard to prove innocence based on recantation evidence where the primary accuser has repudiated his trial testimony and now asserts that the defendant did not commit the underlying offense (Medwed, Daniel S., 2005, “Up the River without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts,” Arizona Law Review, Vol. 47, p. 655, 658 n. 13). Many innocence claims in sex abuse cases depend on this form of evidence, but courts tend to be hostile toward it—and understandably so. If the witness swore under oath that the defendant perpetrated the crime, how can we believe the witness now when he “swears” that the former testimony was untrue? As the Mississippi Supreme Court once proclaimed, “[n]o form of proof is so unreliable as recanting testimony” (Yarborough v.

State, 1987, Mississippi Supreme Court, Southern Reporter 2nd, Vol. 514, pp. 1215, 1220).

2 In Great Britain, there is no direct appeal as of right. Instead, the intermediate appellate court, the court of appeal, has the power to grant permission to appeal. The standard for reversal on appeal is that the court must find the conviction “unsafe.” If the court of appeal agrees to hear a case, then defendants may present new evidence in the interest of justice, but the court is notoriously wary of entertaining this evidence (Griffin, Lissa, 2001, “The Correction of Wrongful Convictions: A Comparative Perspective,” American University International Law Review, Vol. 16, pp. 1241, 1267-1270).

It should go without saying that occasionally recantation evidence is meritorious. Take the case of Brian Banks, a prominent California high school athlete who was accused of raping an acquaintance on campus. Facing a sentence of 41 years to life imprisonment, Banks pled guilty in 2002. Moreover, the accuser sued the school district and ultimately procured a $1.5 million settlement. Years later, while Banks was on parole as a registered sex offender, his accuser contacted him via Facebook, met with him, and admitted that she had fabricated her account. With this admission caught on tape, Banks’s legal team sought his exoneration in court. The judge who had presided over the original plea overturned the conviction in 2012 (“Blindsided: The Exoneration of Brian Banks,” 60 Minutes Television Program, March 24,

2013, available at; Hiserman, Mike, “Rape Conviction of Brian Banks is Overturned,” Los Angeles Times, May 24,


Given judicial aversion to recantation evidence in general and the procedural obstacles embedded in the post-conviction process, a key factor in a defendant’s ability to make any progress with a post-conviction innocence claim often lies in the prosecution’s reaction. Prosecutorial resistance can stop a case in its tracks or at least make the process much more arduous for the defendant. To be fair, many prosecutors react admirably to innocence claims. Some even take proactive measures to correct wrongful convictions. But prosecutors do not always exhibit an open mind in the post-conviction arena when faced with evidence of innocence; on the contrary, many prosecutors fight these claims with vigor. One common situation is where prosecutors, confronted with a potential wrongful conviction, hatch revised theories of the case that bear little resemblance to the stance at trial to support the continued incarceration of a defendant (Medwed, “Prosecution Complex,” p. 125).

Why do some prosecutors respond this way? Numerous explanations come to mind, among them, resource constraints, belief in the finality of verdicts, the absence of firm ethical rules, and political considerations. Let’s now turn to the most significant and mysterious source of prosecutorial opposition: cognitive bias (Medwed, “Prosecution Complex,” p. 127-129).

The scholarship on cognitive bias offers many findings that apply to the conduct of post- conviction prosecutors. The “confirmation bias” refers to the propensity of people to value information that reinforces, rather than rejects, their initial hypotheses. This bias flourishes in the post-conviction context. The factfinder, usually a jury, has validated the prosecutor’s theory of

the case through a guilty verdict. That theory is further validated when a court affirms the conviction on direct appeal. At this point an offshoot of the confirmation bias (known as the status quo bias) surfaces. Once external actors have corroborated a decision, it requires extensive contrary data to push the stakeholders in that decision (including prosecutors) away from that point of reference. As information emerges, these stakeholders may process it selectively by overvaluing data in favor of the status quo and discounting findings that defy it. In other words, the presumption of guilt grows “stickier” for prosecutors after conviction (Medwed, “Prosecution Complex,” p. 127).

The status quo bias affects many prosecutors who handle post-conviction innocence claims. Where post-conviction petitions are distributed to the same prosecutor who tried the case, the impact of the status quo bias is pronounced. Humans are particularly reluctant to second- guess their own choices. The status quo bias lingers even when innocence claims are allocated to prosecutors with no explicit link to the original trial. Studies indicate that people within an organization may respect the decisions of their peers because of the power of “conformity effects,” a wish to act in line with a colleague. The pressure to conform can spur post-conviction litigators to defer to their predecessors or look at the new evidence with a dubious eye (Medwed, “Prosecution Complex,” pp. 127-128).

One’s aversion to cognitive dissonance—the disturbing realization that one’s actions do not reflect one’s self-image—also comes into play. Convicting an innocent person undermines an ethical prosecutor’s belief that charges should only be made against the guilty and that his office would not do otherwise. To avoid cognitive dissonance, prosecutors may latch onto the original theory of guilt as a way to reconcile their beliefs with their actions. This partially explains why prosecutors can seem indifferent to wrongful convictions; they just cannot confront the possibility that they or their office helped in generating one. The cognitive burden is too heavy to bear (Medwed, “Prosecution Complex,” p. 128).

On the Horns of the Innocent Prisoner's Dilemma: An Example

The following case exemplifies the hazards for defendants claiming innocence during the parole and post-conviction processes:

Bruce Dallas Goodman was convicted in Utah for the rape and murder of a young woman with whom he had been romantically involved. The crime occurred in a rural part of the state near a highway exit. The only physical evidence that could identify the perpetrator was a cigarette butt located nearby that was later found to have been smoked by a type “A” secretor. It also appears as though she had engaged in sex with a type “A” secretor. A type “A” secretor is someone with type “A” blood who secretes “A” antigens into body fluids; testimony at Goodman’s trial suggested that thirty-two percent of the population falls into this category. At the time, more accurate methods of testing biological evidence, such as DNA testing, were in their infancy (Medwed, “Innocent Prisoner’s Dilemma,” p. 523).

The other evidence against Goodman, like the blood evidence, was largely circumstantial. He was last observed with the victim miles away from the crime scene and roughly five hours before the discovery of Williams’s body. On direct appeal, the Utah Supreme Court conceded that “[w]ithout question this was a close case” but affirmed Goodman’s conviction. Justice Stewart’s dissent proclaimed that “[t]he evidence in this case falls far short of proving that the defendant committed the crime charged” (Medwed, “Innocent Prisoner’s Dilemma, p. 524; State

v. Goodman, 1988, Utah Supreme Court, Pacific Reporter 2nd, Vol. 763, pp. 786, 788-790).

Goodman had always claimed innocence and continued to do so after his conviction and loss on appeal. Yet, in 2000, Goodman “admitted” his culpability at a hearing before the Utah Board of Pardons and Parole in the hope of gaining favor. His comments failed to have the desired effect—the Board denied him parole (Medwed, “Innocent Prisoner’s Dilemma,” pp. 524-


Goodman’s wish for freedom came to pass four years later through the work of the Rocky Mountain Innocence Center (“RMIC”), a Salt Lake City group that investigates and litigates post-conviction claims of innocence. RMIC sought to subject the biological evidence from the Williams murder to DNA testing. After RMIC obtained the evidence and sent it for testing, the results proved that none of the material belonged to Goodman. Rather, the DNA evidence proved that two other people had left these samples (Medwed, “Innocent Prisoner’s Dilemma,” p. 525).

RMIC then analyzed how to present this new discovery in court. One option involved filing a motion under Utah’s post-conviction DNA statute. Under that remedy, a judge may dismiss the charges “with prejudice” if the defendant proves actual innocence and prosecutors

would be barred from retrying him. RMIC alternatively considered the state habeas corpus remedy, which allows courts to overturn convictions when presented with newly discovered evidence that undermines confidence in the verdict, but permits a retrial. I had recently joined RMIC’s Board of Directors and engaged in the discussions. We decided to contact the prosecutors and gauge their feelings (Medwed, “Innocent Prisoner’s Dilemma,” pp. 525-526).

The prosecution’s stance all along had been that Goodman had killed Williams by himself, and the DNA findings destroyed that theory of the case. Even so, prosecutors involved with the litigation did not conclude that Goodman was innocent. A new prosecution theory evolved to justify the conviction: that Goodman was one of several perpetrators who took part in the Williams murder and that the absence of his biological evidence from the crime scene did not prove his innocence. This theory emerged despite the lack of evidence that Goodman had acted in concert with others, let alone that he was even present at the crime scene. (Medwed, “Innocent Prisoner’s Dilemma,” p. 524, 526).

In their conversations with us, the prosecutors cited Goodman’s admission of guilt at his parole hearing as one reason for their reluctance to deem him innocent. We explained the pressures that prisoners face in applying for release, particularly when they know proclamations of innocence damage their parole outlook. But the prosecution would not stray from its belief that Goodman was entangled in the crime and indicated it would oppose a filing under the DNA statute. So we compromised. The prosecutors stipulated to vacate the conviction under the habeas corpus procedure and not pursue a retrial (Medwed, “Innocent Prisoner’s Dilemma,” pp.


Goodman was released in 2004, but not formally exonerated: a casualty I ascribe to the one-two punch of a flawed parole process and prosecutorial intransigence to post-conviction innocence claims. Without the imprimatur of a court-ordered exoneration, the consequences of Goodman’s wrongful murder conviction will dog him, presenting barriers in his search for state compensation or any form of employment. And the Goodman story is, in many respects, a happy one; he was released. What about the scores of innocent prisoners convicted of sexual abuse whose cases lack DNA evidence—and whose plaintive cries of innocence fall on the deaf ears of parole officials and prosecutors?

Thoughts on Possible Reforms

Having outlined the hazards that convicted sex offenders may face in claiming innocence during the parole and post-conviction processes, I will now use my remaining pages to ponder some potential remedies designed to make it easier for the truly innocent to obtain freedom.


Presupposing that the current norm in which prisoners are penalized for claiming innocence at parole hearings rests on a flimsy policy and ethical foundation, the question is what can be done to ameliorate this flaw? As an initial point, parole boards could be educated about the Innocent Prisoner’s Dilemma and exhorted to discount the overarching importance of inmate statements regarding guilt or innocence as factors in their release decisions (Medwed, “Innocent Prisoner’s Dilemma,” pp. 543-546). I have urged parole boards to adopt this approach in a handful of cases. This strategy has occasionally appeared to help.

Beyond encouraging parole boards to discount the significance of inmate statements about guilt or innocence, another possible reform might involve banning prosecutors from formally using such statements in subsequent post-conviction proceedings. This could advance a number of desirable goals. For one thing, it might remove any disincentive for prisoners to convey empathy for the victim for fear that the statement would be interpreted as an admission of guilt and deployed against him in later litigation. Second, innocent prisoners would no longer pay a direct price in the post-conviction setting for admitting guilt before parole officials solely in the hopes that it might generate a positive outcome. Third, in light of the pressure to “admit” guilt to appease parole officials, these statements may lack credibility and have little value as

evidence at a post-conviction proceeding (Medwed, “Innocent Prisoner’s Dilemma,” p. 542).3

Instead of ignoring inmate statements on the topic of guilt or innocence, or limiting the ensuing impact of such statements, parole boards could take an entirely different approach and view them as issues worthy of scrutiny. Parole boards could be told—and empowered—to engage in more thorough factual investigations about innocence claims, provided that such inquiries are limited to the issue of suitability for release on parole and not a formal

3 To be fair, curtailing the subsequent use of these statements at post-conviction proceedings could further incentivize inmates to lie: an innocent prisoner could “admit” guilt at a parole hearing with few if any direct costs and thereby increase the odds of a parole grant. This might, in turn, further erode the integrity of the parole hearing. Medwed, “Innocent Prisoner’s Dilemma,” pp. 542-543).

determination of guilt or innocence. To aid parole boards in this endeavour, three ideas rise to the fore: (1) altering the structure of parole release hearings where innocence is at issue to permit inmates a greater opportunity to clarify the basis of their claim, 4 (2) augmenting the resources of parole boards to conduct investigations, and (3) advising parole boards to refer innocence claims to organizations better positioned to evaluate them (Medwed, “Innocent Prisoner’s Dilemma,” pp. 546-555). In no way would this proposal usurp the court’s function in adjudicating legal questions of guilt or innocence (Medwed, “Innocent Prisoner’s Dilemma,” p. 546).

Courts appear to be gradually recognizing the problems wrought by this dilemma. Three American appellate courts have cited my research in this area (In re Personal Restraint of Dyer, Washington Supreme Court, 2008, Pacific Reporter 3rd, Vol. 189, pp. 759 (in dissent); Newman

v. Beard, U.S. Court of Appeals for the Third Circuit, 2010, Federal Reporter 3rd, Vol. 617, pp.

775, 786; Steele v. State, Idaho Court of Appeals, 2012, Pacific Reporter 3rd, Vol. 291, pp. 466,

473). Yet without greater recognition of this problem, and the implementation of concrete reforms to rectify it, the Innocent Prisoner’s Dilemma will linger—to the detriment of the innocent and the integrity of our system of justice.

Post-Conviction Litigation

The cognitive biases of prosecutors can profoundly affect their response to post- conviction innocence claims in sex abuse cases and, as a result, influence the outcome of the litigation. My chief recommendation is to implement structural reforms within prosecutors’ offices to create distance between the original decision maker and the post-conviction reviewer of the claim to allow for a new look at an old choice—or at least permit the possibility of such a


For prosecutors, one reform might entail asking them to establish internal divisions to investigate post-conviction innocence claims. Prosecutors’ offices are nicely situated to investigate post-conviction innocence claims. First, prosecutors have access to case files. This is an advantage in analyzing an innocence claim revolving around an assertion that the main

4 Specifically, I would propose modifying the format of parole hearings to allow prisoners to provide advance notice about their desire to claim innocence; with such notice, parole boards could adjust their hearing schedule to allow more time for these inmates to make their presentations, and to permit expanded rights to make their arguments by calling witnesses and even drawing on the assistance of counsel (Medwed, “Innocent Prisoner’s Dilemma,” pp. 548-


prosecution witness lied and it turns out that the witness has testified in other matters. Second, prosecutors can tap into a group of veteran investigators (the police) who have a powerful information network of their own.

Prosecutors in these units would soon become specialists in post-conviction innocence claims, making them better evaluators of a claim’s merit than generalist lawyers from other divisions. Moreover, organizational separation between the trial bureau and the attorneys in charge of reviewing post-conviction petitions could minimize the impact of the status quo bias. Consolidating responsibility for post-conviction innocence claims might also nurture productive relationships between individual attorneys in the unit and lawyers affiliated with innocence projects. Stronger relationships of this nature could yield increased cooperation in presenting innocence claims to the courts. This could spawn greater openness from judges in reviewing claims in which the defense and the prosecution appear united.

There are downsides to my proposed reforms. The power of conformity effects would persist; post-conviction prosecutors might hesitate to second-guess the trial decisions of a co- equal in the office. Lawyers might abhor assignments to the innocence unit, envisioning the group as akin to a police Internal Affairs Bureau that rats out their colleagues. Attorneys in an innocence unit could have a hard time gathering information or fear professional repercussions. Political considerations also augur against these entities. Prosecutors might worry about voters viewing an innocence unit as a sign of “weakness” and hold it against them on Election Day. And resource constraints, to be sure, may make the enterprise impractical, especially in smaller


Still, on balance, promoting the growth of innocence units at prosecutors’ offices would lead to more exonerations of wrongfully convicted prisoners, including purported sex offenders, and more consistent treatment of inmate petitions within each jurisdiction. This is a good thing in my view and in the eyes of many increasingly sceptical observers of the Anglo-American criminal justice system.


Convicted sex offenders are among the most reviled members of society. They are branded as “predators” and “deviants,” particularly those accused of preying upon children.

Although many convicted sex offenders no doubt deserve such disdain, what about the strong possibility that some do not—that some are actually innocent?

For that unknown, but potentially sizable, segment of the population the avenues available to correct this error after conviction are fraught with problems. Parole boards rely heavily on “admissions of guilt” as a precondition for release, and during post-conviction litigation, prosecutors often resist innocence claims with all their might, making prisoners’ chances for success exceedingly slim. This Chapter has sought to describe some of the failings of those procedures and to offer some modest reforms, changes aimed at allowing those wrongfully deemed “the Worst of the Worst” the best opportunity for justice.

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