Still slowed by an unscheduled hard drive crash. Posting a little later today. Check back

WHAT TO DO ABOUT SEX OFFENDERS WHO SNIP THEIR ANKLE MONITORS? ROB GREENE AT THE LA TIMES STARTS A SMART & INFORMATIVE CONVERSATION

In the last month or so there’s been a string of news stories about sex offenders snipping off or disabling their ankle monitors after they get out of prison. It turns out there is not much of a legal penalty for messing with one’s monitor.

Unfortunately, much of the reporting on the topic has tended toward the sensational, and many reporters have uncritically repeated the opinions of those who wrongly blame the problem on California’s new prison realignment system.

Since sex offenders are most people’s least favorite brand of law breaker, the news of all this monitor untethering has triggered outrage and calls for speedy solutions—which has predictably, caused lawmakers to hastily trot out half-cooked bills to “fix” the matter.

It is just this sort of knee-jerk urge to find quickie legislative fixes in response to public pressure that has, in the past, given us some very bad laws and a disastrously over-crowded prison system.

Thus it was enormously relieving to read in Sunday’s LA Times, Rob Greene’s smart, thoughtful and very fact-drivin editorial on the matter. (Although the essay is signed by the whole editorial board, it is written by LAT ed board member Robert Greene.)

Greene lays out all the puzzle pieces that formed this ankle-bracelet snipping problem-–and suggests ways that it might be fixed.

He also makes clear how very little the issue has to do with realignment.

Here’s a clip. But I urge anyone interested in this matter to read to whole thing. It clears up a lot, I promise.

California already had what were arguably the nation’s toughest sex offender laws in 2006 when voters, spurred on nightly by fear-mongering television hosts such as Nancy Grace and Bill O’Reilly, adopted this state’s version of Jessica’s Law. Proposition 83 required all convicted sex felons, whether violent or not, whether still on parole or not, and whether at high or low risk of reoffending, to wear electronic monitoring devices for the rest of their lives. Drafters ignored the fact that there was virtually no evidence that global positioning satellite tracking reduces the number or severity of sex crimes, and they didn’t consider whether to allocate the high costs of perpetual monitoring to the state or to county governments. They didn’t think through how to penalize parolees and post-parole registrants who cut off or disabled their ankle monitors.

A proposal that might have made for an instructive pilot program that revealed flaws and allowed for course corrections was instead rushed onto the ballot and then onto the books, and California has been dealing with the consequences ever since.

Now, parolees and post-parole sex registrants are cutting off or disabling their ankle monitors in increasing numbers each year. Lawmakers on both sides of the aisle have introduced bills intended to toughen oversight (or at least the appearance of oversight) of sex offenders and others who violate the terms of their release. They tend not to criticize the disastrous but still-popular Proposition 83 but focus instead on public safety realignment under AB 109, another law that was passed hastily, this time by the Legislature in 2011 as part of a budget package to cut costs and prison overcrowding.

AB 109 sends many newly convicted felons to county jails instead of state prison and redirects oversight of some felons, as their incarceration ends, from the state parole agency to county probation departments, under a program with the cumbersome title of post-release community supervision, or PRCS.

PRCS violators who formerly would have been returned to prison for up to a year are now returned to county jail, and for only up to six months — including those whose violations consist of disabling their monitoring devices. Some lawmakers claim that county sheriffs release such violators immediately, or never even take them in, because their jails already are overcrowded. Some lawmakers have responded with bills to send such people back to state prison instead of county jail. Some of those bills would commit them to prison for the one-year period they formerly would have served; some would commit them for as long as three years — far longer than such violators ever would have served before AB 109 was adopted. Some would make sex offenders ineligible for county jail in the first place and require them to be housed in prison even on new non-sex-related offenses.

In other words, these bills would roll back realignment and restock state prisons with sex offenders, low-risk and high-risk alike, in some cases at a greater rate and for a longer period than they were ever imprisoned before, and it would do so just as the state is making headway in its effort to comply with federal courts and ease prison overcrowding. California prison overcrowding had become so bad, and medical and mental health services for inmates was so inadequate, that federal courts found the state to be violating constitutional strictures against cruel and unusual punishment.

But lawmakers need to slow down and take a breath. This is how we got into trouble in the first place — with swiftly passed, knee-jerk laws in reaction to sensational headlines. California must use its deliberative, legislative hearing process to gather data, air views and clarify just what the problems are that we are trying to solve, and what the best ways are to solve them….

Do read the rest.

DO THE LAPD’S INTERNAL INVESTIGATIONS NEED SOME WORK?

The Nation Magazine has published a very critical report by Uzma Kolsy about the LAPD’s ability to appropriately investigate its own use of force incidents. Kolsy writes that Chief Beck and the LAPD’s leadership clearly want constitutional policing, but questions whether the higher ups are holding officers who step over the line with use of force as unwaveringly unaccountable as is needed. Kolsy and the Nation think the answer is No.

Here’re a couple of clips:

Last year, Alecia Thomas died in LAPD custody after a violent arrest in which a policewoman kicked her in the groin after having trouble restraining her. Thomas died in the back of a patrol car that was fitted with a camera, but the LAPD did not release the surveillance footage. In a news release detailing the incident, the LAPD made no mention of the fact that the officer assaulted Thomas before forcing her into the car. In another incident last fall, LAPD officers found a suspect hiding under a vehicle, dragged him out by his ankles, and believing they saw a metallic object in his hands, shot him in the back, critically wounding him. The news release following the incident omitted the fact that the suspect was handcuffed and face down when they fired at him. No weapon was found on the suspect.

[SNIP]

….LAPD officer Joseph Cruz fired several fatal rounds at Mohammad Usman Chaudhry, when he allegedly pulled out a folding knife in a threatening way. Even Cruz’s partner said he never saw Chaudhry with a knife, yet an internal investigation cleared Cruz of any wrongdoing. Later, he was fired from the force for lies regarding an unrelated matter. In 2011, a federal jury rejected Cruz’s account of the shooting. Evidence used at trial included the knife in question, which was tested for DNA. The results did not match Chaudhry.

[SNIP]

A 2010 report by the CATO Institute found that Los Angeles had one of the highest concentrations of credible reports of police misconduct in the country. And in 2011, LAPD had a reported sixty-three officer-involved shooting incidents, a roughly 50 percent increase over the shootings in any of the previous four years. Belligerent officers’ using unwarranted deadly force is a serious concern the department still faces.

A WELL-LIKED SINGLE FATHER WORKING AT CITY HALL AT THE HOMEBOY DINER BREAKS HEARTS WITH A FATAL CRASH

The tragic story was all over the news last month, about how a 9-year-old girl had hiked alone at night in the desert to try to find help for her father who was badly injured—fatally as it turned out—when the family SUV went down an embankment and crashed in the desert.

The father was Alex Renteria, an extremely well-liked 35-year-old who had turned his life around with the help of Homeboy Industries and had been working in the Homeboy Diner in LA’s City Hall.

Renteria’s death shocked many of those working in City Hall who’d gotten to know the kind, smiling man who was proud of his work and talked so lovingly about his daughter. One of those affected was LA Times reporter Kate Linthicum, who has written a fine and affecting first person account about her day-to-day friendship with Renteria and how his death hit her.

Here’s a clip:

Like a lot of people who spend time at Los Angeles City Hall, I knew Alex. He worked at Homeboy Diner, the small cafe on the second floor run by Homeboy Industries, a nonprofit group that provides counseling, tattoo removal and job training for former gang members.

When the diner opened two years ago, I wrote about Alex and his story of transformation. He had been in prison and had battled addiction. Through Homeboy, he found work and the 12-step program.

During our interview, as he stacked bags of chips at the diner, he told me: “I’m just happy to be here.”

If this had been any other news story, that would have been the last time I saw him. This is one of the odd qualities of the journalism profession: It’s your job to ask probing questions of strangers you may never speak to again.

But I worked at City Hall, so I encountered Alex every time I went to Homeboy for a salad or a cup of coffee. He was a real charmer, always quick to tell me how nice I looked, and never failing to ask about my day. When I was going through a hard breakup, he made me hot chocolate and offered advice.

Alex had expressive eyebrows that arched comically when he told jokes. He loved old-school R&B and freestyle music and was proud of his weekend job as a mover. He adored his daughter, Cecilia, and was saving up to take her to Disneyland for her birthday next month.

Alex, 35, a single dad, often brought Cecilia with him to work. She got to know a number of city workers who would sometimes take her on tours of their offices.

I shouldn’t have been surprised by the number of City Hall employees who made the trek to San Fernando for Alex’s funeral Friday. Or by the proclamation sent by Mayor Antonio Villaraigosa. Capri Maddox, the president of the Board of Public Works, gave Cecilia a commemorative egg from the White House Easter Egg Roll a few weeks ago….

Read the rest here.

A PHOTO NOTE: Due to an untimely hardrive crash WLA’s chief photo scribbler is without her beloved Adobe Photoshop for a day or two. So bear with us as we use other, clumsier means.

IS OUR RIGHT TO COMPETENT LEGAL COUNSEL IF WE NEED IT A MYTH?

Every week I get a couple of calls from gang members or former gang members who are locked up in county jail or state prison. These collect calls are a byproduct of my years of gang reporting. I spent so much time on the street talking with homeboys and homegirls that many of them came to view me as some kind of white lady auntie who always carried a notebook, an audio recorder and a camera.

Many of the guys I knew from way back when have long ago turned their lives around and have good jobs, kids, wives and houses of their own. But some have not, at least not with any consistency. So when they, or their brothers or nephews, get locked up, sometimes they call me.

I talked to such a guy earlier this week. He was someone I only vaguely know, but it was the weekend and I had a minute to two to spare so I took his call. We’ll call him David. He called because he’d just signed a plea bargain but wanted advice as to how he might get his 18-month sentence transferred to county jail, which would allow him to call and see his daughter for whom he had always been the sole caretaker, instead of doing the year and a half in state prison. I told him that his public defender would likely have the best luck in talking to the judge about such a change—and the judge would either cooperate or not.

No, he said. “I already asked my lawyer. He told me to go F— myself.” He paused awkwardly. “Sorry for cussing.”

“He told me the first day he saw me that I was going to take a deal, and that he didn’t want to hear any argument from me. He hardly even looked at my case.” David took the deal, he said. “And I’m okay with that. But all I wanted is for my lawyer to ask the judge if I could do my time here, where I could make phone calls and get visits. If I go to prison, they told me I’ll spend the whole 18 months in ‘reception,’ which means I won’t be allowed any phone calls or visits. And what is my little girl going to do? She’s six and she’s never had any other parent but me.”

Okay, tell me how this conversation when again,” I said.

“He told me to go F— myself,” David reiterated. “When I tried to explain, and I mean really nicely and respectfully, he said it again.”

Now, as I said earlier, I don’t really know David, thus I don’t know if some crucial part of his story is false, or exaggerated, or left out. But it had the odd ring of truth. He made no excuses for himself. He simply had this one anguished request, that the judge could grant—or not. Yet, David’s attorney, who would have lost nothing by making a quick pitch to the judge, instead told David to go screw himself. (After telling him he was taking a deal, regardless of whether he wanted to take a deal or not.)

I know many wonderful, wonderful public defenders and court appointed attorneys who do work a gazillion times past what they are every paid for, and who believe ardently in the principal that everyone deserves a competent defense. A lot of those PD’s cope with impossible caseloads, yet keep working like crazy, with great intelligence and compassion, to provide what their clients need. In fact, it’s public defenders’ associations that are fighting to make things better.

Yet, I’ve also seen public attorneys who do the absolute minimum, who actively loathe most of their clients whom they believe are scum who should just take what’s coming to them.

Which is not an attitude that you want in your attorney.

It sounded like David’s lawyer fell into the latter category.

I bring all this up as a very long introduction to this essay by Kevin Burke, a trial judge who is the immediate past president of the American Bar Association. Burke writes about the 50th anniversary of U.S. Supreme Court decision of Gideon v. Wainwright, in which the court ruled that defendant in a criminal case had a constitutional right to have an attorney, and if he or she could not afford one the government had an obligation to provide said attorney.

In his essay, Burke suggests that maybe our 50-year-old right to counsel has become more of myth than the principal the Supremes intended a half century ago with their unanimous ruling. Here’s are two clips from Burke’s essay:

…Today there are those who claim [Gideon] is all a mirage. The right to counsel they say is just “another lie we tell each other to hide the truth” about unequal justice in America. Andrew Cohen wrote this week, “for all the glory we heap upon Gideon, for all the preening we display about our fealty to the rule of law, the sad truth is that there is no universal right to counsel today. We know today which path our legal and political leaders chose. Instead of ensuring that the right to counsel kept pace with the explosion of criminal cases, the Supreme Court and the Congress (and state legislatures) allowed the right to be left by the side of the road.”

What happened that diminished the bright promise of Gideon? First, the reality was there was no appetite for anyone to fund the mandate or for courts to order adequate funding. Neither Fortas nor Krash (and perhaps Justice Black as well) foresaw the problems of financing the new right to counsel. Caseloads and inadequate representation stripped Hugo Black’s admonition of the importance of the right to counsel of its vitality. They did not foresee a criminal justice system dominated by plea bargaining. They did not nor could have at the time foreseen the collateral consequences that flow from a conviction today.

[SNIP]

Every day in thousands of courtrooms across the nation, from trial courts that handle felony cases to limited jurisdiction justice of the peace courts, the right to counsel is violated. Judges conduct hearings in which people accused of crimes and children accused of delinquency appear without lawyers. Some are middle class and therefore not eligible for appointed lawyers. Many plead guilty without lawyers. Others plead guilty and are sentenced after learning about plea offers from lawyers they met moments before. They are afraid and intimidated by the courts. Innocent people plead guilty to get out of jail. Too many plead guilty with no idea that there are collateral consequences that could change their lives.

Read the rest here.

(NOTE: A hat tip to Doug Berman of Sentencing. Law and Policy who flagged Burke’s essay.)

REMEMBERING ANTHONY LEWIS

Pulitzer Prize-winning legal columnist and author Anthony Lewis died on Monday.

His death was an odd bit of timing, since Lewis’s most enduring work is Gideon’s Trumpet, about the that very Supreme Court decision that gave Americans the right to have counsel.

There are lots of remembrances about how Lewis’s knowledge and his love of writing about the law made his legal reporting clear, elegant, and understandable. This one from the Atlantic’s Andrew Cohen is a good one. Here’s a representative clip:

…The headline of the [New York Times] obit says that Lewis “transformed” coverage of the United States Supreme Court, and he did. But he did much more than that. He transformed coverage of the broader beat of the law, and he inspired generations of writers (and lawyers and judges, for that matter) to try to better explain and translate legal jargon into phrases and concepts that laypeople could more easily understand.

Lewis’ masterwork, Gideon’s Trumpet, was a piece of art for precisely this reason — word by word, simple sentence by simple sentence, he deconstructed the Sixth Amendment’s right to a fair trial, and murky Supreme Court procedure, and state law, and the insular world of Washington law firms, and all the other satellite topics that revolved around that seminal case. Here is a representative passage:

The case of Gideon v. Wainwright is in part a testament to a single human being. Against all the odds of inertia and ignorance and fear of state power, Clarence Earl Gideon insisted that he had a right to a lawyer and kept on insisting all the way to the Supreme Court of the United States

His triumph there shows that the poorest and least powerful of men-- a convict with note even a friend to visit him in prison — can take his cause to the highest court in the land and bring about a fundamental change in the law.

But of course Gideon was not really alone; there were working for him forces in law and society larger than he could understand. His case was part of a current of history,and it will be read in that light by thousands of persons who will known no more about Clarence Earl Gideon than that he stood up in a Florida court and said: “The United States Supreme Court says I am entitled to be represented by counsel.”

For his work, in 1963, he won a Pulitzer Prize (his second, his first coming years earlier with his equally trenchant work covering the civil rights movement). Afterward, taking the longer view, Lewis wrote pointedly and poignantly for decades on the op-ed page of the Times, wrote excellent books like Make No Law (about the key first amendment case New York Times v. Sullivan), and contributed regularly to the New York Review of Books.

When given the chance over the years, I always tell young journalists and young lawyers to read everything Lewis has written, because his writing was always so clear, and so accessible, and such a good starting point for more involved research on any given legal topic….

PREPARING FOR TUESDAY’S GAY MARRIAGE HEARINGS BEFORE THE SUPREMES

A few stories for your reading pleasure:

CALIFORNIA MAYORS URGE SCOTUS TO OVERTURN PROP 8

David Siders at the Sacramento Bee reports that ” mayors of 25 California cities are urging the court to find the measure, Proposition 8, unconstitutional..”

Read more here:

THE NEW YORKER’S GEOFFREY TOOBIN ON WHY NO MATTER WHAT THE SUPREMES DECIDE, “THOUGH THE BATTLE CONTINUES THE WAR IS OVER”,

For the moment, Toobin’s essay from the April 1 issue of the New Yorker isn’t hidden behind a paywall. Let’s hope it stays that way but, if you’re not a subscriber, you might want to read it now, just in case. It’s short, very smart and gives an interesting way in to what some of the arguments will be, and what is at stake.

Here are some clips:

In 2003, the Supreme Court decided that gay people could no longer be thrown in prison for having consensual sex. Specifically, Justice Anthony Kennedy’s opinion, in Lawrence v. Texas, declared that Texas’s anti-sodomy law “demeans the lives of homosexual persons” and violated the right to liberty guaranteed by the Fourteenth Amendment. But Kennedy was careful to describe the limits of the Court’s holding. He wrote that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” In other words, in Kennedy’s telling, Lawrence v. Texas was not about same-sex marriage.

To which Justice Antonin Scalia responded, in a dissenting opinion, “Do not believe it.” He explained:

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

What, indeed? A decade later, it’s clear that Scalia was right. Once a society decides that the law must treat a group of people equally in one area of life, it becomes harder—and, eventually, impossible—to justify discriminating against them in others. If gay people can’t be prosecuted for being gay, then they shouldn’t be fired for being gay, either. If they can’t be fired, then they shouldn’t be denied custody of children. And so on, to the issue of marriage.Each of these steps is incomplete under current law, as well as in the real world, but the direction they are taking is unmistakable. This week, we will begin to find out whether the Justices will impede or accelerate that process. But, at this point, not even the Supreme Court can reverse the march toward equality.

And then there’s this:

…It’s important that the Justices decide these two cases the right way.

It’s just not as important as it once seemed. When Theodore B. Olson and David Boies, the lead lawyers in the Prop 8 case, filed their lawsuit, in 2009, it appeared to many informed observers that they were taking a foolhardy risk. At the time, gay-rights organizations had been following a cautious, state-by-state approach, and it seemed that an adverse decision in a major federal lawsuit could set back the cause of same-sex marriage for a generation. But, whatever the Justices do, that’s not going to happen. The question about marriage equality for all Americans is not if it will pass but when. The country has changed, and it’s never going back to the way it was. Though the battles continue, the war is over.

Read the rest.

Photo from the Missouri Bar Association

Next week, Monday-Thursday—February 25-28—California Pizza Kitchen has kindly offered to give 20 percent of your dinner check, drinks included, to the families of Riverside Police officer Michael Crain, and San Bernardino Sheriff’s Detective Jeremiah MacCay, both of whom were allegedly killed by Christopher Dorner.

Detective MacKay was killed in a shootout with Dorner in Big Bear. Michael Crain and his partner were ambushed by a man assumed to be Dorner. As Dorner had no particular beef with Riverside PD, there seemed to be no reason behind the shooting, other than the fact the men were police officers.

Detective MacCay and Officer Crain each leave behind a wife and two kids.

The fundraising offer will be honored at any California Pizza Kitchen anywhere in the state, from February 25-28—all day.

The deal is you have to print out the flyer I’ve linked to here and present it to your server.

Pizza and generosity. A good combo.

NOTE: The money raised is being overseen by the Riverside Police Officers’ Association and the Sheriff’s Employee Assistance Team.

EDITOR’S NOTE: The Flogging Molly’s song below was the first piece of music played under the montage honoring the life of Michael Crain, a much-beloved officer, ex-Marine, husband and father of two, a tall, strong, big-hearted guy who was also willing to show up to dance next to his young daughter at her ballet class, when that was the task called for.

The song was clearly a favorite of Crain’s, and seemingly fitting for the larger, very complex and sorrowful mood of this day.

In the days to come, we must find the clarity to sort through the many painful facets of these events, some less comfortable to look at than others.

But today we simply grieve.

UPDATE: THE SAN BERNARDINO DEPUTY KILLED IN THE DORNER FIREFIGHT IS JEREMIAH MACKAY

MacKay, 35, has 2 children, a 7-year-old daughter and a 4-month old son. Heartbreakingly, MacKay, an expressive, well-liked, genial man expressed to several reporters the natural worry that officers felt going into such a fluid situation as that with Dorner. A few hours later, he died of gunshot wounds in the firefight with the man believed to be Dorner.

40 YEARS OF ROE V. WADE MARKED WITH RALLIES AND COUNTER RALLIES IN SF AND ELSEWHERE

THere were rallies marking the 40′s anniversary of Roe v. Wade all over the county this past weekend. Matthai Kuruvila from the San Francisco Chron has an account of the rally and counter rally in San Francisco. Here’s a clip:

The account of the events in San Francicso. Abortion activists on each side of the issue converged on San Francisco Saturday, creating parallel universes testifying to what 40 years of reproductive rights have wrought.

At Justin Herman Plaza, pro-choice activists danced and spoke about liberating women from the horror of back alley abortions conducted by coat hanger-wielding quacks.

Before legal abortions, what might happen to you “was a terror in the back of your mind,” said Chris Malfatti, 64, of San Francisco, who knew someone who lost her fertility to an illegal abortion.

Katheryn Smith of Politico covered the events in DC.

RELEASE OF CORONER’S REPORT FUELS CONTROVERSY OVER CULVER CITY MAN SHOT MULTIPLE TIMES BY DEPUTIES

The newly released autopsy report on the shooting death by sheriff’s deputies of Jose De La Trinidad shows that De La Trinidad was shot 7 times, all from the rear, five of the shots striking the Culver City father in the back.

The LA Times Wesley Lowery has more on the story. Here’s a clip:

A Culver City man who was fatally shot by Los Angeles County sheriff’s deputies after a pursuit in November was struck by bullets five times in the back and once each in the right hip and right forearm, also from behind, according to an autopsy report obtained by The Times.

Jose de la Trinidad, a 36-year-old father of two, was killed Nov. 10 by deputies who believed he was reaching for a weapon after a pursuit. But a witness to the shooting said De la Trinidad, who was unarmed, was complying with deputies and had his hands above his head when he was shot.

Multiple law enforcement agencies are investigating the shooting.

De la Trinidad was shot five times in the upper and lower back, according to the Los Angeles County coroner’s report dated Nov. 13. The report describes four of those wounds as fatal. He was also shot in the right forearm and right hip, with both shots entering from behind, the report found.

“Here’s a man who complied, did what he was supposed to, and was gunned down by trigger-happy deputies,” said Arnoldo Casillas, the family’s attorney, who provided a copy of the autopsy report to The Times. He said he planned to sue the Sheriff’s Department…

THE PRICE OF A STOLEN CHILDHOOD

In a deeply affecting story for this week’s New York Times Magazine Emily Bazelon writes about two young women with the first names of Nicole and Amy who, as children, were sexually abused, with their rapes recorded on video and distributed to thousands of men. In the cases of Nicole and Amy, however,the court has ruled that they can both obtain monetary restitution from those who downloaded the videos of them to mitigate the harm that was done to them. Bazelon’s article explores, among other things, if financial restitution actually helps victims of child pornography.

Here’s a clip:

The detective spread out the photographs on the kitchen table, in front of Nicole, on a December morning in 2006. She was 17, but in the pictures, she saw the face of her 10-year-old self, a half-grown girl wearing make-up. The bodies in the images were broken up by pixelation, but Nicole could see the outline of her father, forcing himself on her. Her mother, sitting next to her, burst into sobs.

The detective spoke gently, but he had brutal news: the pictures had been downloaded onto thousands of computers via file-sharing services around the world. They were among the most widely circulated child pornography on the Internet. Also online were video clips, similarly notorious, in which Nicole spoke words her father had scripted for her, sometimes at the behest of other men. For years, investigators in the United States, Canada and Europe had been trying to identify the girl in the images.

Nicole’s parents split up when she was a toddler, and she grew up living with her mother and stepfather and visiting her father, a former policeman, every other weekend at his apartment in a suburban town in the Pacific Northwest. He started showing her child pornography when she was about 9, telling her that it was normal for fathers and daughters to “play games” like in the pictures. Soon after, he started forcing her to perform oral sex and raping her, dressing her in tight clothes and sometimes binding her with ropes. When she turned 12, she told him to stop, but he used threats and intimidation to continue the abuse for about a year. He said that if she told anyone what he’d done, everyone would hate her for letting him. He said that her mother would no longer love her.

Nicole (who asked me to use her middle name to protect her privacy) knew her father had a tripod set up in his bedroom. She asked if he’d ever shown the pictures to anyone. He said no, and she believed him. “It was all so hidden,” she told me. “And he knew how to lie. He taught me to do it. He said: ‘You look them straight in the eye. You make your shoulders square. You breathe normally.’ ”

When she was 16, Nicole told her mother, in a burst of tears, what had been going on at her father’s house. Her father was arrested for child rape. The police asked Nicole whether he took pictures. She said yes, but that she didn’t think he showed them to anyone…..

The idea of the kind of restitution Bazelon’s story describes is not without controversy. It seems that, as terrible as such crimes are, creating tough laws that don’t also capture in their net the wrong people along with the predators, can be challenging, as Jennifer Bleyer of Slate points out.

THREE STRIKERS NEWLY RELEASED FACE A MULTITUDE OF CHALLENGES, OFTEN WITH NO HELP

Tracey Kaplan at the Contra Costa News has the story. Here’s a clip:

In an unforeseen consequence of easing the state’s tough Three Strikes Law, many inmates who have won early release are hitting the streets with up to only $200 in prison “gate money” and the clothes on their backs.

These former lifers are not eligible for parole and thus will not get the guidance and services they need to help them succeed on the outside, such as access to employment opportunities, vocational training and drug rehabilitation.

The lack of oversight and assistance for this first wave of “strikers” alarms both proponents and opponents of the revised Three Strikes Law — as well as the inmates themselves.

“I feel like the Terminator, showing up in a different time zone completely naked, with nothing,” said Greg Wilks, 48, a San Jose man who is poised to be released after serving more than 13 years of a 27-years-to-life sentence for stealing laptops from Cisco, where he secretly lived in a vacant office while working as a temp in shipping and receiving.

[SNIP]

“We want these people to succeed,” said Michael Romano, director of Stanford’s Three Strikes Project. “We don’t want them committing crimes and creating more victims.”

Proponents say the main reason they didn’t foresee the situation is that the rules regarding parole changed significantly — after officials had already approved the ballot language for Proposition 36.

Under California’s realignment of its criminal justice system, the role of supervising most nonviolent offenders is shifting in stages from the state to county probation officers. But neither the realignment statute nor the Three Strikes Law made provisions for monitoring released strikers.

Romano said the issue is now being litigated in Los Angeles County, where a prosecutor claims strikers should be supervised by probation officers. But even if they are, he said, many counties lack the resources to help the mostly male population of former lifers make a successful transition….

Photo of San Francisco rally for 40 years of Roe v. Wade by Christine Duong

Ever since the news leaked out that cyber wunderkind and activist, Aaron Swartz, had hanged himself in his Brooklyn apartment this past Friday, a growing number of people have felt compelled to write about the series of events that may have led the phenomenally gifted 26-year-old to end his life.

We know from friends and family that Swartz struggled with depression.. We also know that Swartz was facing federal trial on charges that he illegally downloaded millions of research papers from the scholarly database, JSTOR.

There’s no doubt that Swartz, who helped invent the RSS feed when he was 14, and who co-founded Reddit—among a longer list of accomplishments—did indeed download the millions of articles from JSTOR. No one questions those facts.

What many do question, however, is whether what was basicially an act of cyber civil disobedience that even JSTOR asked the feds not to pursue legally, should have led to criminal charges so severe that, had Swartz been convicted at the trial that was to have begun next month, he could have served 35 years in prison, and paid millions of dollars in fines. Even before the trial, the legal fight had pretty much drained him, financially.

And then, two days before he died, Swartz was offered a plea deal. The 35 years would come off the table, but he must go to jail for six months and plead guilty to 13 felony counts.

This is, of course, business as usual in today’s criminal justice world in which everything is dealt out. This almost always means that, to hammer home the biggest, baddest possible plea deal, prosecutors routinely pile on a mountain of questionable charges, so that the defendant takes the deal—guilty or not—because the downside risk of not taking it is so terrifying.

Aaron Swartz, however, selected neither of the two options the prosecutor offered. Instead, the staggeringly brilliant young man with a mile-a-millisecond mind, and an idealist’s heart, chose door number three: He killed himself.

Yet there’s more to the story.

“SWARTZ WAS A PASSIONATE ECCENTRIC WHO COULD HAVE BEEN ONE OF THE GREAT INNOVATORS AND CREATORS OF OUR FUTURE”

Among the essays and stories that have been written about Aaron Swartz in the last few days, some are particularly worth reading—both for people who already know who Swartz is, and for those who are wondering why so many believed he mattered so much:

A good place to start is with the New Yorker essay by Columbia law school prof, Tim Wu. Among other things, it explains in very clear terms exactly what Swartz did—and why it did not merit the prosecutorial response he got.

Here’s a relevant clip:

Tomorrow is the funeral for Aaron Swartz, the programmer and sometime activist who killed himself last Friday, while facing federal trial. No one knows, or will ever really know, what caused Swartz to take his own life. But his suicide, in the face of possible bankruptcy and serious prison time, has created a moment of clarity. We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed.

I knew Swartz, although not well. And while he was special on account of his programming abilities, in another way he was not special at all: he was just another young man compelled to act rashly when he felt strongly, regardless of the rules. In another time, a man with Swartz’s dark drive would have headed to the frontier. Perhaps he would have ventured out into the wilderness, like T. E. Lawrence or John Muir, or to the top of something death-defying, like Reinhold Messner or Philippe Petit. Swartz possessed a self-destructive drive toward actions that felt right to him, but that were also defiant and, potentially, law-breaking. Like Henry David Thoreau, he chased his own dreams, and he was willing to disobey laws he considered unjust.

Swartz’s frontier was not geographic like Thoreau’s, but defined by other barriers unique to our times. His form of civil disobedience consisted of heading into an M.I.T. closet with a laptop, hooking it up to the Internet, and downloading millions of articles from JSTOR, an academic database. Swartz thought information should be free. It wasn’t a major coup, but it counts as a defiant act—and one that made its point, for it was, and remains, absurdly hard for the public to gain access to what academics supposedly write for it.

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

In this sense, Swartz must be compared to two other eccentric geniuses, Steve Jobs and Steve Wozniak, who, in the nineteen-seventies, committed crimes similar to, but more economically damaging than, Swartz’s….

THE PRODIGY/ACTIVIST

And then, for a quick, smart, interesting summary of who Swartz was and his importance inside the digital community, listen to this NPR interview with Declan McCullagh, chief political correspondent with CNET.

WHEN THE LAW IS WORSE THAN THE CRIME

Emily Bazalon of Slate also has a very interesting and informative essay on the legal side of the matter.

Here are a couple of quick clips:

…..Swartz was charged with fully 13 counts of violating the Computer Fraud and Abuse Act, which meant he faced millions of dollars in fines and up to 35 years in prison. This law is notoriously capacious. Prosecutors can stretch it to cover misdeeds that would otherwise barely qualify as illegal. To illustrate just how much overreach the act allows, law professor Orin Kerr, who writes at Volokh Conspiracy, once posted a ridiculous new terms of service for the blog and then wrote, “If you post an abusive comment; you are an employee of the U.S. government; your middle name is Ralph; you’re not super nice, as judged by me; or you have visited Alaska, I have kinda bad news for you: You are a criminal, as you have just violated 18 U.S.C. 1030(a)(2)(C) by accessing the Volokh Conspiracy’s service without authorization or in excess of authorization.”

You can argue with Swartz’s tactics—as Harvard law professor Lawrence Lessig, who knew and clearly loved Swartz, writes: “The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.” As Lessig emphasizes, however, not every miscreant deserves to have the full weight of the U.S. government come crashing down on him. JSTOR said Swartz did not sell or give away the articles he’d downloaded and declined to take any action against him. (MIT, by contrast, lamely remained silent throughout his prosecution—only now are administrators investigating the university’s involvement in Swartz’s case and promising a public accounting.)

[BIG SNIP]

I’d like to tell you that the prosecutorial overreach that took place in Swartz’s case rarely happens. But that’s not true. There are many principled prosecutors who only bring charges they believe they can prove beyond a reasonable doubt. But there are also some who bring any charge they can think of to induce a defendant who may be guilty of a minor crime to plead guilty to a major one. These cases usually are hard to call attention to: They’re not about innocence, easy and pure. They’re about the muddier concept of proportionality. If any good at all can come from Swartz’s unspeakably sorrowful death, maybe it will be how this case makes prosecutors—and the rest of us—think about the space between guilt and innocence.

“THE WORLD IS A POORER PLACE…” BUT THIS TIME IT’S LITERALLY TRUE

This emotional essay from WIRED Magazine’s Threat Level section by Kevin Poulsen shows how colleagues viewed Aaron Swartz

Here’s a clip:

We often say, upon the passing of a friend or loved one, that the world is a poorer place for the loss. But with the untimely death of programmer and activist Aaron Swartz, this isn’t just a sentiment; it’s literally true. Worthy, important causes will surface without a champion equal to their measure. Technological problems will go unsolved, or be solved a little less brilliantly than they might have been. And that’s just what we know. The world is robbed of a half-century of all the things we can’t even imagine Aaron would have accomplished with the remainder of his life.

Aaron Swartz committed suicide Friday in New York. He was 26 years old.

When he was 14 years old, Aaron helped develop the RSS standard; he went on to found Infogami, which became part of Reddit. But more than anything Aaron was a coder with a conscience: a tireless and talented hacker who poured his energy into issues like network neutrality, copyright reform and information freedom. Among countless causes, he worked with Larry Lessig at the launch of the Creative Commons, architected the Internet Archive’s free public catalog of books, OpenLibrary.org, and in 2010 founded Demand Progress, a non-profit group that helped drive successful grassroots opposition to SOPA last year.

“Aaron was steadfast in his dedication to building a better and open world,” writes Internet Archive founder Brewster Kahle. “He is among the best spirits of the Internet generation. I am crushed by his loss, but will continue to be enlightened by his work and dedication.”

PROSECUTOR AS BULLY

3. Finally there is the essay Swartz’s friend and mentor, Lawrence Lessig, a Harvard Law prof and the director of the Edmond J. Safra Center for Ethics at Harvard University.

Lessig’s essay should be read in its totality. But here’s a random clip, to give you an idea of the content and tone:

…First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.

But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?

Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

AND PERHAPS THE VERY LAST WORD SHOULD TO SIR TIM BERNERS-LEE WHO, AFTER ALL INVENTED THE INTERNET AND WHO, ON JANUARY 12 TWEETED IN EXACTLY 139 CHARACTERS:

Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep.

Photo: Aaron Swartz in 2008, with former Red Hat CEO Bob Young in the background. (CreativeCommons)

As longtime WLA readers know, we usually put up a string of Christmas videos at this juncture, and invite suggestions of additional musical items from anyone who cares to give them. But, given the events in Newtown, I don’t yet have the heart for the usual fare. Thus I settled on theses offerings from Mr. Springsteen, Mr. Haggard and Mr. Crosby.

If there’s important news on one of the topics we’re following the most closely, we’ll show up and alert you. So check in from time to time.

And 2013, we have new stories in the works on the LASD, on LA County juvenile probation, and lots, lots more.

In the meantime, may your holidays be filled with friends, family and much warmth.

And may we find a productive national conversation out of these sad days of December 2012.

C.

“‎”A voice is heard in Ramah, weeping and great mourning, Rachel weeping for her children and refusing to be comforted…”

- Jeremiah 31:15