One of the benefits of travel is the opportunity it creates to reflect on the familiar from a fresh perspective.

In London recently, an architectural feature stimulated my thinking about a public controversy at home. Over the main entrance at The Old Bailey, London’s Central Criminal Court, these words are inscribed:

“Defend the Children of the Poor and Punish the Wrongdoer”

The words are taken from 72nd Psalm, A Psalm for Solomon, and describe the attributes of a just king.

The Psalm does not answer a question the inscription raised in my mind: Why the connection between crime and punishment and the protection of children?

The protection of children is, of course, among the deepest human instincts. And although poor children are by no means the exclusive victims of child abuse, they are exposed to broader range of risk than other children.

When harm to children becomes news, the public is understandably outraged. Witness the outcry here in Vermont at the news that this year two infants within the jurisdiction of the Department of Children and Families  — two year-old Dezirae Sheldon and 14-month-old Peighton Geraw– died at the hands of abusers after allegations of abuse had previously been communicated to the Department.

The outrage has not been limited to the abusers: the Department, its leadership and state government itself have seen their share of public scorn, leading to multiple  investigations and the departure of a number of high level employees.

But the impulse to protect our children by “punish[ing] the wrongdoers,” can easily be misdirected. We ask our social workers, our law enforcement officers, and our courts to maintain a delicate balance: Respect families and keep them together whenever possible, but protect the defenseless from harm, even at home, and at the hands of their own families and those with whom family members are intimate.

Whether the Department of Children and Families met its responsibilities in these cases can only be determined by a painstaking examination of the facts. As far as I can see that examination is still to be completed.

What is clear is that bad outcomes alone are not enough to answer questions of responsibility.

Charged with maintaining such a delicate balance, we can be sure that there will be times when, even if all employees of the Department have behaved with exemplary professionalism, some children will suffer. To expect otherwise would be like expecting an oncologist to cure every patient, no matter how sick, every single time. Our skill can improve, but perfection lies far in the future.

Nor can we expect to prevent such harm by increasingly draconian punishment of child abusers. Punishment there must be, for our sense of justice demands it, and the need to deter such behavior requires it. But we should be under no illusions that swift, certain and severe punishment will alone prevent such tragedies. Child abuse is not rational. It is hardly, if ever, the product of cool weighing of risk against reward. It is normally the product of diseased minds and overwhelming emotion. It is not easily deterred.

We must be careful to painstakingly tease out the actual facts — often not easily determined– before giving way to impulse to punish, lest we risk creating more injustice and to letting the guilty go unpunished.

The just and effective operation of the criminal justice system is important, but rarely the solution to deep-seated social problems.

Next time: The other responsibilities of a just king.

Rich

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The Collateral Consequences Resource Center Goes Live!

by Rich Cassidy on November 19, 2014

CRRC header-mainI am delighted to be a founding Director of the Collateral Consequences Resource Center, Inc.  Here is the announcement of our new website:

“The Collateral Consequences Resource Center website is launching on November 19, 2014.  The website is at www.CCResourceCenter.org.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: staff@CCResourceCenter.org.

The personnel of the Center have broad experience in the criminal justice system.  Executive Director and board member Margaret Colgate Love, the former U.S. Pardon Attorney, represents applicants for executive clemency in her private practice in Washington, D.C.  An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created the NACDL Restoration of Rights Resource, and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

Board member Richard Cassidy, a lawyer in private practice in Vermont, chairs the Executive Committee of the Uniform Law Commission.  He chaired the Drafting Committee of the Uniform Collateral Consequences of Conviction Act, and was instrumental in securing passage of the Uniform Act in Vermont in the spring of 2014.

Board member Gabriel “Jack” Chin is Professor of Law at the UC Davis School of Law.  One of the leading academic authorities on collateral consequences, he served as reporter for the Uniform Collateral Consequences of Conviction Act, and the ABA Standards on Collateral Sanctions and Discretionary Disqualification.

Board member Glenn E. Martin is Founder and Chief Risk Taker of Just Leadership USA, an organization dedicated to cutting the US prison population in half by 2030, and empowering people most affected by incarceration to drive policy reform. A former executive at the Fortune Society and the Legal Action Center, Glenn spent six years in New York State prison.

Board member Michael Tobin is Deputy Public Defender for the State of Wisconsin, where he has been engaged in law reform activities for more than 30 years.  Mike understands how important collateral consequences are to a defense lawyer’s practice, and he has compiled comprehensive on-line practice materials linking consequences to triggering criminal offenses under state law.

Deputy Director Joshua Gaines worked on the NIJ National Inventory of the Collateral Consequences of Conviction (NICCC) after his 2012 graduation from the Washington College of Law.  He deserves much of the credit for developing the Center website.

Aaron Gorrell of Waterhole Justice Consulting, technical adviser to the Center, developed the original NICCC website.  He is engaged in many NIJ-funded projects for law enforcement agencies.”

I hope you will take a look.

Rich

 

 

 

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Ched Evans Out of Prison: Should He be Allowed to Return to Football?

October 19, 2014

Take a look at this story about Ched Evans, an English footballer who played for Sheffield United, released from prison after serving half of a 5 year term for raping a 19 year-old girl. He was making $4.8 million dollars a year before his conviction. Should he be allowed to play again? What’s the right […]

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After All, It’s Indoor Work And There Is No Heavy Lifting

October 13, 2014

Viewed from a certain perspective, practicing law is a lot of work. But the right question is “compared to what?” The summer after my freshmen year in college, I took a job with a man named Luke. He ran a small business washing grocery-store floors.   We were up many hours before dawn, driving across three states […]

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Clarence Darrow: Archetype of an American Trial Lawyer — Part II

September 29, 2014

Last time,  I focused on Clarence Darrow’s cases and other accomplishments as recounted in John A. Farrell’s biography, Clarence Darrow, Attorney for the Damned (Vintage Books: New York, 2011; 561 pp. $12.92). But Darrow wasn’t just a lawyer. He was a radical and activist. He was a sometime politician. Surely, he was a celebrity, and some […]

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Clarence Darrow: Archetype of an American Trial Lawyer — Part I

September 25, 2014

Resilience. That is the characteristic of Clarence Darrow that translates most vividly from the John A. Farrell biography, Clarence Darrow, Attorney for the Damned (Vintage Books: New York, 2011; 561 pp. $12.92). Resilience is, of course, a quality that all lawyers need, to one degree or another. Even lawyers in transactional practice work in an adversarial […]

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A Mediator’s Toolkit: Repetition

September 15, 2014

One of the best mediators that I have ever seen in action makes a practice of repetition. No, I don’t mean that he repeats what he says over and over. I mean that he listens carefully to one side of the dispute and before he turns to the other side, he repeats what he heard, almost […]

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The Limits of Judicial Impartiality

September 12, 2014

Some years ago,  I visited the Massachusetts Supreme Judicial Court in Boston. Inscribed on a plaque outside the courtroom is language from the first constitution of the Commonwealth of Massachusetts: “It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of […]

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Military Justice in the United Kingdom: Justice is Not Simple.

September 8, 2014

Today, OnLawyering.com is fortunate to have a guest post by Robert Seymour, a retired Judge Advocate. In the United Kingdom, Judge Advocates preside over courts martial. Judge Advocates are civilian lawyers appointed in the same way as any other member of the British judiciary. The case of Alexander Blackman, a Royal Marine sergeant, has attracted world-wide attention. […]

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Uniform Law Conference of Canada Adopts the Interjurisdictional Recognition of Substitute Decision-Making Documents Act

September 3, 2014

On August 14, the Uniform Law Conference of Canada adopted the Uniform Act on Interjurisdictional Recognition of Substitute Decision-Making Documents. The Act is intended to insure that plans for health care and financial management, such as powers of attorney and health care powers, are portable among Canadian and United States jurisdictions. According to SLAW, Canada’s […]

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