Quick Hits (page 5)
States Face Growing Prison Population
By: Curt Anderson, (AP)
WASHINGTON (AP) - America's prison population grew again in 2002 despite a declining crime rate, costing the federal government and states an estimated $40 billion a year at a time of rampant budget shortfalls.
The inmate population in 2002 of more than 2.1 million represented a 2.6 percent increase over 2001, according to a report released Sunday by the Bureau of Justice Statistics. Preliminary FBI (news - web sites) statistics showed a 0.2 percent drop in overall crime during the same span.
Experts say mandatory sentences, especially for nonviolent drug offenders, are a major reason inmate populations have risen for 30 years. About one of every 143 U.S. residents was in the federal, state or local custody at year's end.
"The nation needs to break the chains of our addiction to prison, and find less costly and more effective policies like treatment," said Will Harrell, executive director of the Texas American Civil Liberties Union. "We need to break the cycle."
Others say tough sentencing laws, such as the "three strikes" laws that can put repeat offenders behind bars for life, are a chief reason for the drop in crime. The Justice Department (news - web sites), for example, this year ordered Bureau of Prisons officials to stop sending so many white-collar and nonviolent criminals to halfway houses.
"The prospect of prison, more than any other sanction, is feared by white-collar criminals and has a powerful deterrent effect," Deputy Attorney General Larry Thompson said in a memo announcing the change.
Yet the cost of housing, feeding and caring for a prison inmate is roughly $20,000 per year, or about $40 billion nationwide using 2002 figures, according to The Sentencing Project, a nonprofit organization that promotes alternatives to prison. Construction costs are about $100,000 per cell.
Even as these costs keeping climbing, the federal government is tackling a giant budget deficit and 31 states this year are cutting spending -- most often across all programs -- to deal with shortfalls, according to the National Conference of State Legislatures.
"The prison population and budget figures, taken together, should be setting off alarm bells in state capitols," said Jason Zeidenberg, director of policy and research for the Justice Policy Institute, a nonprofit organization focused on ending reliance on incarceration.
Drug offenders now make up more than half of all federal prisoners. The federal penal system, which has tough sentencing policies for drug offenses, is now the nation's largest at more than 151,600 -- an increase of 4.2 percent compared with 2001.
Over the same period, state prison and jail populations grew just 2.4 percent. Prison alternative advocates credit moves in some states to divert drug offenders to treatment programs and other innovations for that lower growth rate.
Texas, for example, recently passed a drug treatment alternative law and saw its prison population remain virtually unchanged from 2001 to 2002. Ohio, which revised its sentencing and parole guidelines in the late 1990s, had its prison and jail population rise just 0.8 percent last year compared with 1.9 percent for the Midwest as a whole.
"The way to reduce prison spending is to reduce the number of people in prison and the number of prisons, like some states across the country have done," said Rose Braz, director of Critical Resistance, a California-based group opposed to prison expansion.
At the same time, the Justice Department report found that 17 states reported increases of at least 5 percent year-to-year in their prison populations, with Maine's increasing by 11.5 percent and Rhode Island's rising 8.6 percent. The federal prisons and almost all state corrections systems are over their capacities, with 71,000 offenders serving their state or federal sentences in local jails.
Other key points in the report:
-- As of last Dec. 31, there were 97,491 women in state or federal prisons, or about 6.8 percent of all inmates and one in every 1,656 women. There were over 1.3 million male inmates, or about one in 110 men.
-- About 10 percent of all black men between 25 and 29 were incarcerated last year, compared with 1.2 percent of white men and 2.4 percent of Hispanic men. Overall, the 586,700 black men in prison outnumbered both the 436,800 white males and 235,000 Hispanic males. Black males account for about 45 percent of all inmates serving a sentence longer than a year.
-- Privately operated prisons held 93,771 inmates, about 5.8 percent of state prisoners and 12.4 percent of those in federal jurisdictions.
-- At year's end 2002, the federal government held 8,748 people at immigration detention facilities, 2,377 at military jails and 16,206 in U.S. territorial prisons.
Growin' Our Own (page 5)
Justice is Blind to Bad Jurists
By: Douglas Feiden (Daily News Staff Writer)
There's an old courthouse joke dating to the 19th century: The only way to get a judge off the bench is if he dies or murders someone.
In Queens, it isn't much of an exaggeration. Judges who dishonored their black robes years ago are still dispensing justice in a court system that has no way to fire them.
Judicial sanctions are rare - and with no loss of pay or privilege, no penalties of any kind, they amount to little more than a public slap on the wrist.
Three state Supreme Court justices in Queens have been censured by the state Commission on Judicial Conduct. The toughest sanction other than removal, it hasn't barred a one from presiding in court.
Justice Richard Huttner, 68, was reprimanded by the commission for engaging in unethical conduct and abusing his judicial office to advance private interests.
He took part in a lawsuit on behalf of his Manhattan co-op board, signed affidavits and invoked his judicial position to try to improperly sway a judge to rule in the co-op's favor in a dispute with a restaurant, the commission ruled in January 2002.
By using his post for private gain, he "displayed a remarkable insensitivity to his ethical responsibilities," the decision said.
Because of the censure as well as his role in steering a lucrative receivership to a politically connected Brooklyn lawyer, Huttner was transferred last year from the Brooklyn courts to Queens.
He said through a spokesman he's "not interested in commenting."
Justice Luther Dye, 69, was cited for judicial misconduct, sexual harassment and "creating a hostile or uncomfortable work environment."
He made sexually offensive remarks to his secretary over a 30-month period about her looks, the length of her skirts and his desire to sleep with her, the panel found in 1998.
Dye said he signed a finding agreeing to facts alleged by the panel, but adds, "The fact that you admit to something doesn't mean it's true. ... I consented to the finding to keep my job." Besides, he said, "Nobody ever tells you you can't tell a secretary her hair looks nice."
Acting Justice Robert Hanophy, 68, was censured for inappropriate behavior, "vituperative" speech, failure to act as an impartial judge and offering only limited cooperation with investigators.
During the sentencing of a British subject in the death of her infant child, he branded British cops perjurers and England as "primitive and uncivilized." He delivered a "meanspirited" political address that had no relevance to the crime at hand, a 1997 decision found.
At first, Hanophy told probers his statements had been inappropriate. Later, he said he didn't regret them at all.
Hanophy didn't return calls. Despite his misbehavior, he gets high marks from legal insiders who view him as an effective and thoughtful jurist.
Flunking Law 101
The same can't be said of other Queens judges, some of whom don't seem to grasp the U.S. Constitution.
In an obscure stolen-property case in 2000, the defense objected to a police witness sitting in the courtroom; the prosecution countered that the cop had a right to stay, since trials are open to the public.
Justice Laura Blackburne, 65, responded by closing her court to spectators and witnesses, even though neither side had requested it. "The public part of this trial is over," she announced, according to the court records.
But the Sixth Amendment grants the accused the right to a public trial, and since its adoption in 1791, trials in New York have been open. A four-judge appeals court in 2001 cited Blackburne's "manifest error," which deprived the defendant of his rights, in unanimously ordering a new trial.
"It was my very first case in Supreme Court," she said in an interview in her chambers. "Of course what I did was inappropriate because our courtrooms are open."
In another case, Blackburne charged a jury in a felony trial - instructing the panel to begin deliberations - before the defense or prosecution had made summations. The error was brought to her attention, and she belatedly allowed opposing counsel to wrap up their cases.
Said Blackburne, "I'm not saying I didn't do it. But if I did it and it was corrected, what's the big deal?"
In December, Blackburne dismissed attempted-murder charges against an alleged drug-dealing cop shooter, ruling that prosecutors had abridged his right to a speedy trial.
But the decision was replete with "arithmetical errors," prosecutors said in an appeal, which is pending. It also enraged the Patrolmen's Benevolent Association.
Blackburne is unapologetic. "[PBA President] Pat Lynch should thank me for getting him reelected," she said.
Procedural blunders
Others judges make serious blunders in procedure, which undermine the integrity of their trials.
After a guilty verdict in an attempted-murder case in 2000, Justice Daniel Lewis polled the jury, at the defense's request, to ask whether all panelists agreed with the finding. "Yes," said Juror No. 4, "but not beyond a reasonable doubt."
Questioned by the judge, he admitted that he "gave in" to the other jurors and was unable to "reach a true and honest decision" about the suspect's guilt or innocence. Despite this, Lewis, 57, accepted the guilty verdict, sent the jury home and nixed a defense motion for a mistrial.
In so doing, he brushed aside 215 years of U.S. case law, which holds that to win a criminal case, a prosecutor must prove guilt beyond a reasonable doubt to a unanimous panel of jurors.
Ruling that Lewis should never have accepted the guilty verdict, an appellate court last year - by a 4-to-0 vote - overturned the conviction and ordered a new trial.
"We were going nowhere fast. I had a verdict in front of me, and under the circumstances, I accepted the verdict," Lewis said. "In hindsight, the Appellate Division had the right to make the decision they did."
Ripped in reversal
Some judges have been known to get too involved in cases, and identify too much with victim or defendant.
In a blistering reversal in January of a guilty verdict in an attempted-murder case, a state appellate court slammed Acting Justice Joel Blumenfeld for denying a defendant's right to a fair trial by improperly acting as "the advocate" for the female victim.
Despite the likelihood of a plea deal, Blumenfeld, 58, steered the case to trial because he believed the victim had a "therapeutic need" to "tell her story" and to "have her trial" - which would make her "feel whole" and "reach closure," the Appellate Division said.
By a 4-to-0 vote, the appeals panel ordered a new trial - before a different judge - and skewered Blumenfeld for bias, improper conduct and "abuse of discretion."
Court attorney Brian Lowy said Blumenfeld is "prohibited from commenting on pending matters."
In 12 years, he is the only sitting justice whom Queens District Attorney Richard Brown has publicly opposed for reappointment.
A former chief of Bronx Legal Aid, Blumenfeld found so many suspects not guilty in nonjury trials - 19 of 31 in 1997, or 61%, double the citywide rate - that the prosecutor argued that defendants were stampeding to his court to waive their right to a trial by jury.
Blumenfeld's sky-high acquittal rate in nonjury trials during the past eight years (45%) dwarfs the boroughwide rate (33%) in the same period, an analysis of court data shows.
The judge wouldn't comment on bench trials because he was conducting a bench trial last week. But his lawyer said he'd found only 21% of suspects innocent in the past four years.
DA files suit
It is also unprecedented for DA Brown to sue a Supreme Court judge for "gross abuse of power" and conducting a "tirade" against prosecutors. Justice Evelyn Braun was the one exception.
At issue was her dismissal of a 1996 burglary case against a persistent violent felon. During the proceedings, Braun, 49, railed bitterly against prosecutors - even after an assistant district attorney suffered chest pains and collapsed in her court, the lawsuit alleged.
Braun "chose to ignore [ADA David] Chen's obvious physical distress, pausing in her lengthy tirade only when court officers stopped her," the suit says. She allegedly treated the collapse "as a joke."
Not true, the judge said. She then performed a dramatic re-creation for the Daily News in her courtroom, playing the part of an agitated Chen to prove he hadn't really collapsed - but merely "plopped" into a chair after an anxiety attack.
"I wasn't screaming at him, he was screaming at me," Braun said.
"No court officer ever said, 'This man is down,' and no one ever told me to stop speaking," she said. "I never treated it as a joke. I also called for medical help for him. Would I have done that if I'm so cold and heartless?"
The appellate court, without commenting on the merits of Brown's suit, dismissed it on technical grounds.
Pipeline (page 5)
DNA Database Tracks Pot Trafficking
By: Matt Apuzzo (AP)
State forensic scientists are compiling a DNA database to track the nation's marijuana distribution network. It is built upon two principles: Genetic material does not lie, and drug dealers always grow the most potent marijuana possible.
In three years scientists at the state Forensic Science Laboratory have mapped the genetic profile of about 600 marijuana samples taken from around New England. As the database expands, scientists foresee a new way for investigators to trace the drug from grower to smoker.
Using a single marijuana bud seized anywhere in the world, police would be able to quickly deduce whether a suspect is a homegrown dope dealer or part of an international cartel.
The success of the DNA database hinges upon a cultivation technique drug dealers use to keep only the best, most potent marijuana on the street.
Waiting for marijuana seeds to grow into plants takes too long for high-level dealers who move thousands of pounds at a time, police say. Instead dealers usually plant cuttings from their most potent plants.
That results in a shorter growing period and ensures top-quality drugs in every harvest. But it also means an entire marijuana crop is comprised of just a few plants, cloned over and over. Genetically those plants are identical.
An officer who makes a drug bust in Connecticut might normally have no idea, however, that the pot came from the same harvest as a load seized on a California highway.
While small-scale marijuana operations are local, top-level drug cartels are international. Breaking up a basement drug business is often as easy as getting one buyer to confess. Infiltrating a major drug cartel is not so simple.
"It's next to impossible, unless you have a good informant, to know the size of that kind of an organization," said Sgt. Lilia Gutierrez, a narcotics officer in El Paso, Texas, where authorities in February seized 12,000 pounds of marijuana coming across the Mexican border.
A few months before that bust, federal agents in San Diego, Calif., seized 10 tons of dope in what is believed to be the largest marijuana bust in history.
"Relatively few of the drugs that cross into San Diego remain in San Diego," said Michael Turner, special agent in charge of the city's Bureau of Immigration and Customs Enforcement field office. Turner said marijuana that crosses the California border can turn up in cities like Detroit and Chicago.
The database being developed in Connecticut is not nearly complete enough to begin tracking that effect. But Heather Miller Coyle, a Connecticut forensic scientist, said the state plans to request a renewal of its $340,000 federal grant early next year. If the grant continues, she hopes federal agencies will begin sending their samples for analysis.
"We are seeing correlations," Coyle said. "Correlations between individuals and correlations between locations."
Research assistant Eric Carita is responsible for bringing the genetic signatures into a searchable database. On his computer screen each sample looks like a stock market chart, punctuated with distinct peaks and valleys.
A computer program converts that plot into a long, unique string of ones and zeros. If the computer matches that number to one already in the system, the samples are identical.
Officials hope the effort will pay off in the courtroom. A court case pending in Connecticut Superior Court will be the state's first attempt to get marijuana DNA admitted as evidence. Police have not laid out the details of that case, but scientists say DNA data suggests that two drug operations were actually part of one organization.
Coyle said she hopes that courtroom acceptance of human DNA evidence will make it easier to introduce plant DNA data. Scientists can even print out the DNA plots from Carita's computer and show a judge or jury that two samples are identical.
There are hurdles. While a genetic match can nearly guarantee that a suspect was at a crime scene, a plant DNA match does not by itself prove that two growing operations are related. When combined other evidence, however, officials hope DNA data can help eliminate reasonable doubt.
"If they keep cloning (pot plants), there's no way around this," Coyle said. The DNA mapping technique cannot be used to track more dangerous designer drugs like cocaine and heroin. Though both are plant-based narcotics, drug synthesis isolates the mind-altering chemicals and the organic material is eliminated.
Forensic experts believe efforts like this represent the future of forensic science, which for years have been focused on the analysis of human evidence like blood, semen and hair.
"We don't know all of the frontiers yet," said Kenneth E. Melson, president of the American Academy of Forensic Sciences and the U.S. Attorney for Virginia. "As our experience and capabilities increase, forensic science can be used any number of areas we haven't even thought of yet."
Not everyone is convinced that marijuana dealing should be the cutting edge of forensic science.
"It's a huge, monumental waste of taxpayer dollars," said Allen St. Pierre, executive director that National Organization for the Repeal of Marijuana Laws Foundation.
"Certainly, if they're able to do enough fingerprinting to tell that this load came from same field as another load, we can begin to show patterns and trends," said Turner, the federal agent.
"If they could do it, it'd be one more tool in the arsenal."
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