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Friday Roundup

Crime and the election results. Tyone Miles got bad advice from his lawyer. Back in 2005, Miles was charged with burglary and with cashing some fictitious checks at a California gas station, in an amount around $500, and was offered a plea bargain which would have involved doing six years in prison. Miles' attorney told him to reject it, not checking to find out that Miles had two prior felonies. That made him eligible for a 25-to-life sentence under the state's three-strikes law, and that's what Miles got.

Then the Supreme Court came down earlier this year with Missouri v. Frye and Lafler v. Cooper. In the first decision, it determined that the failure to communicate a plea offer to a client constituted ineffective assistance of counsel; in the latter, that counsel had provided ineffective assistance by advising a client to turn down a plea offer, based on the lawyer's misreading of the law. In September, the 9th Circuit decided Miles was entitled to an evidentiary hearing on the issue.

He may not need it. Earlier this month, California passed a referendum, Proposition 36, modifying the law so that the third "strike" now has to be a serious or violent felony, or involve the use of a deadly weapon or an intent to inflict harm. The law is retroactive, so prosecutors and public defenders are already sifting through applications for resentencings.

The 1970's and 1980's marked a sea change in our attitude toward our crime, rejecting the rehabilitational model of in favor of the punitive one. Mandatory minimums, abolition of parole, and repeat offender laws resulted in the prison population increasing five-fold from 1980 to 2009. Is the passage of Prop 36 an indication that the pendulum is swinging the other way?

What was perhaps even more surprising than the result was the margin; despite opposition from the Usual Suspects -- the state's district attorneys and police associations -- Prop 36 was passed by more than a 2-1 margin. Nor was it the only success. Colorado and Washington both passed referenda legalizing possession of marijuana, and Oregon probably would've been a third had it not been for a poorly-worded ballot measure which could have resulted in the state being the supplier. Medical marijuana won overwhelmingly in Massachusetts, which might be expected, but lost by only 2% in Arkansas, which is not. The news wasn't consistently good for proponents of criminal and penal reform; Californians rejected a proposal banning the death penalty, by a 53-47 vote.

Still, those results, combined with the passage of sentencing reforms intended to alleviate prison overcrowding by sending fewer people to prison for less time, clearly indicate a shift in attitudes.

That's not to suggest that people have concluded that the "lock'em up and throw away the key" philosophy has been a failure. The crime rate now is about the lowest it's been since the early 60's, back when people used to leave their doors unl0cked. (Still not a good idea.) And, in truth, that's partly the result of some people staying in prison who otherwise would have been out and committing crimes. You could make the case that the harshly punitive approach to criminal justice has been the victim of its own success. I guarantee that if the crime rate were what it was back in the 80's and early 90's, nobody would be talking about letting more people out of prison, or about how people should be allowed to smoke dope.

I think I had her on a panel... From the ABA Journal:

A Denver woman who faked mental illness and wore hair curlers and mismatched reindeer socks in an effort to avoid jury duty has taken a felony plea.

Susan A. Cole pleaded guilty Tuesday to attempting to influence a public servant and a misdemeanor perjury charge. She was given deferred adjudication and required to perform 40 hours of community service, the Denver Post reports.

Cole's ploy was initially successful, but it was discovered months later when she told a radio audience about lying to get out of jury duty. Denver District Court Judge Anne Mansfield, who had overseen jury selection the day that Cole was in court, happened to be in the audience for the radio program.

Holiday scheduling. Usually, I shut down the blog for the last couple weeks of the year because there's nothing much happening. I'm going to do that again, but I'm going to move it up. I'm going on vacation next week, for about ten days, so I'll be closed here from next Thursday through December 18, and will be back on Wednesday, December 19. I will post during the rest of the year, except of course on the holidays and the eves. I'll be doing stuff like recaps of Ohio cases over the past year, and how the law is developing in certain areas. But I'll have the Case Update and the 8th District stuff here next week, plus one more post before I leave.

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