Private Prisons are… (not so) GRRRR-EAT

by Damon Chetson on May 20, 2013

Private Prisons have been touted as a solution to bloated bureaucracies, run-away unions, mis-management, and corruption.

The problem is that private prisons are not really private, but they are prisons. Because “private” prisons get their money through government contracts, the incentive structure is confused, sometimes criminally so. When private contractors lobby government for public dollars, their customers are government officials, bureaucrats, elected officials, and sometimes judges.

Take for instance Mark Ciavarella, a state judge in Pennsylvania who was convicted in federal court of conspiring with a prison developer to sentence juveniles to jail in exchange for kickbacks.

According to The Independent (UK):

The Pennsylvania Supreme Court has overturned some 4,000 convictions issued by the former Luzerne County judge between 2003 and 2008, claiming he violated the constitutional rights of the juveniles – including the right to legal counsel and the right to intelligently enter a plea. Ciavarella Jnr, 61, was tried and convicted of racketeering charges earlier this year but his lawyers had asked for a “reasonable” sentence, claiming that he had already been punished enough.

Is 28 years is the appropriate sentence? No. This is the federal government’s version of criminal justice, which is notoriously harsh.

But it exposes, at least in its most egregious form, the problem of privatization in what is essentially a government operation of criminal justice.

…I was in panic mode due to my kids’ issue and was able to calm me down, talk with me, get the details out of me as i was crying, and help me feel like there maybe a light at the tunnel in the future..He was in constant email contact and with us thru all the issues to get a resolution according to our situation. Thank you so much for being there for us! I tell anyone that reads this, Mr. Chetson will not let you down and will not make you feel any lesser than you may think you feel…Wake County B&E of MV Client

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Lower BAC – Good for a Wake County DWI lawyer… But is it good policy?

by Damon Chetson on May 19, 2013

Criminalizing Drinking and DrivingI wrote yesterday about the NTSB’s proposal to force states to lower the per se limit from .08 BrAC/BAC to .05 BrAC/BAC. The federal government can’t order the states to modify their laws. But the federal government has a lot of power – mostly in the form of highway dollars which are collected through federal gas taxes and then passed along to states but only if they follow certain federal mandates.

As I alluded to yesterday, deaths from what are termed “alcohol-related” accidents have been dropping for thirty years, even as the population of the United States has increased and even as miles-driven have increased. The decline seems to be independent of the BAC change from .10 to .08, suggesting that lowering the BAC did not result in more safety.

In addition, studies report that something like 4 million people admit to driving while under the influence of alcohol each year, but there are “only” about 10,000 to 12,000 deaths a year from alcohol-related accidents. I don’t meant to suggest that anyone should drive while impaired. Nor do I mean to minimize the hurt and pain that result to people or their families who are victims of drunk drivers.

It’s an open question about whether lowering the BAC will improve highway safety. MADD, the group primarily responsible for lowering the BAC from .10 to .08 culminating in federal legislation in 2000, has implicitly said as much in arguing that policymakers should focus on other policy instruments, including imposing an Interlock device on anyone who has a .08 or above and is convicted of a DWI.

DWI: All or Nothing

My view is different: generally I’m not in favor of zero tolerance rules. But in the case of Driving While Impaired offenses, zero tolerance makes sense. That’s because it’s very difficult for the average person to estimate high his BAC is before they get into a car.

I see too many people who come into my office, having been charged with DWI offense who insist that they were not impaired. And they may not have been impaired in the common language sense of the term. But when a breath ticket reads a .11, while there may be other explanations, including GERD, COPD and the inaccuracy of the Intox EC/IR II machines themselves, impairment will be a tough issue to fight at trial.

People are bad at estimating their BAC. Lowering the per se limit will make more people criminals because they have poorly estimated their BAC.

In addition, a BAC/BrAC of .05 or .08 or .10 perpetuates an industry of device makers whose existence depends on the purported accuracy of their instruments. And it will certainly increase the demand for good DWI lawyers.

A Proposed Solution

So what’s the solution? If, as a public policy goal, the state has determined that drinking and driving truly do not mix, then the state should have a zero-tolerance policy, the same that exists in North Carolina for people under the age of 21 who are stopped after having drunk any amount of alcohol alcohol.

Are there problems with this approach? Yes. People who have had barely any alcohol, but are pulled over or involved in accidents, would be potentially guilty of a DWI. People who have consumed certain kinds of energy drinks which have alcohol would be criminals if they drove a car soon thereafter. And so on.

Are there solutions? Yes. A first time offense of under a .08 could result in fines, community service, educational classes, a temporary suspension of a license and, importantly, also the opportunity to wipe the record clean following successful completion of a program.

Wake County criminal lawyer helps individuals charged with crimes – misdemeanors, felonies, and DWI and traffic charges – in Wake County, Cary, Apex and other communities in Wake County and the Research Triangle of North Carolina. Durham DWI lawyer Damon Chetson also represents people throughout the Research Triangle. We are available day or night, weekdays or weekends. Call (919) 352-9411 day or night.

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NTSB Recommends Lowering BAC in Driving While Impaired Laws

May 18, 2013

The big news in DWI law this week comes from Washington, DC where the National Traffic Safety Board voted to recommend that the 50 states and the District of Columbia lower the per se limit from .08 to .05 Blood or Breath Alcohol Concentration. If adopted by North Carolina, the result would likely be that…

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The Year of Landmark Rulings: Brady v. Maryland

May 14, 2013

If you ask a criminal defense lawyer what the most important cases are, she’s liable to include Brady v. Maryland if only because every time she files a discovery request on the government it includes a reference to Brady’s requirement that the government turn over any exculpatory information in its files to the defense. We’re…

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Changes in Wake County DWI Courtrooms

May 13, 2013

Wake County continues to have the largest number of DWI arrests of any county in the State. In short, DWI enforcement in Wake County is up. And, apparently, general traffic citations are somewhat down in Wake County and the surrounding areas. In order to address the backlog of DWI cases, the court system has recently made changes…

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Waiting for Justice

May 12, 2013

In a civil case, court appearances can be handled almost exclusively by the attorneys. Whether you’re a defendant being sued, or a plaintiff doing the suing, the attorneys – with the consent of the parties – can make virtually all appearances without the actual parties being present. (Of course, attorneys need to get consent from…

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Prosecutorial Control of the Calendar Undone in South Carolina

May 11, 2013

North Carolina and South Carolina are the only two states where prosecutors control the calendar. In almost all other states, a neutral party – a trial court administrator or the judges – control the calendar in consultation with both the state and the defense to decide when a case is brought to court for motions,…

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Know-Nothing Paul Mirengoff and Miranda vs. FRCrPro Rule 5

April 30, 2013

Paul Mirengoff does not know what he’s talking about and admits so. I have never practiced criminal law (except briefly at the international level) and have not studied it since 1974. Thus, like most Americans, much of what I think I know about criminal procedure comes from watching television and movies. That doesn’t stop him…

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The Limits of Miranda – Dzhokhar Tsarnaev’s Interrogation

April 20, 2013

Slate magazine’s Emily Bazelon has a good article on Miranda in the context of the recent capture of a suspect in the Boston marathon bombing. But it’s easy to overstate both the importance of Miranda either to the defendant or to the government in any particular case, including a high profile case in which there…

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DWIs and Warrants

April 17, 2013

As if it were an open question, the Supreme Court today reaffirmed the principle that warrants are required before the police conduct a search or seizure under the Fourth Amendment, except in certain limited circumstances. Criminal defense lawyers have long complained that the exceptions swallow the rule, such that warrants are rarely required in fact,…

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