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 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.

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 an awful lot of people who have a drink or two before getting into a car would now be criminals under NCGS 20-138.1, which defines driving while impaired offense for the state.

Impairment can be proved under the standard statute in one of several ways. The easiest for the State or North Carolina is to show through some chemical analysis – usually breath, sometimes blood, and rarely urine – that the driver of the vehicle had .08 grams of alcohol per either 210 liters of breath or per 100 milliliters of blood at a relevant time after the driving such that the alcohol was consumed during or prior to the driving. (Other impairing substances can constitute a DWI but are measured and defined differently.)

In the 1980 and 1990s, through the efforts of Mothers Against Drunk Driving, that number was lowered to .08 from .10 culminating in federal legislation in 2000 that tied federal highway funds to state laws that lowered the BAC/BrAC to .08. It is called a per se number because the number itself is prima facia evidence of impairment. Nothing more need be proven with respect to impairment, provided the state has proven the other elements of the crime. (In State v. Narron and State v. Simmons the appellate courts of this state held that a .08 result or above does not require the jury find someone guilty.)

As I’ve written about elsewhere, deaths from Driving While Impaired or alcohol-related driving have been on the decline since the early 1980s, largely prompted by educational efforts. Those declines were substantial even before the number was lowered from .10 to .08, meaning that people were already heeding the warnings about the dangers of driving while impaired.

As a percentage of total accident fatalities, alcohol-related fatalities fell from 60 percent to 41 percent, a nearly one-third reduction between 1982 and 2000. By contrast, the percentage of alcohol-related fatalities fell from 41 percent to 38 percent, or less than an 8 percent reduction between 2011.

MADD, of course, supports the reduction and the rest of the package proposed by the NTSB. MADD president, Jan Withers, writing in the New York Times, tells us “MADD’s priorities are to focus on all of the initiatives that are currently in the campaign, and not just single out the lowering of the current blood alcohol concentration level.”

As NBC News reports, “roughly 4 million people admit to driving while under the influence of alcohol.” This can be interpreted as either a travesty, as MADD, the NTSB, and various media outlets including the New York Times and NBC News.

Or it can be seen as proof that the vast majority of people who drive, having consumed a moderate or low amount of alcohol, do so without incident.

While this is not a recommendation that people drink and drive – indeed, drinking any amount of alcohol and driving is a crime in North Carolina in certain instances, including where the driver is under the age of 21 – it is a recognition that taking the truly impaired off the road should not be used to criminalize a very large number of people who, having had a single drink, are not impaired when they drive a car.

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 celebrating the 50th anniversary of Brady. It seems like only yesterday we were celebrating tine 50th anniversary of Gideon. In a few years, we’ll also be celebrating 50 years of Miranda. These are kind of the trifecta of criminal defense cases – the first deals with discovery, the second deals with right to counsel, and the third deals with interrogations.

What was happening 50 years ago? Earl Warren was the chief justice, an Eisenhower republican appointee, former governor of California, and former District Attorney of Alameda County.

In that last role, it is said that he dealt very fairly with defense counsel: “The public defender admitted that Warren never brought people into court unless he could prove they were guilty. Nothing troubled him more than the possibility that he might be sending an innocent person to jail. His instructions to his staff were: “Get the facts honestly and don’t color them. If the facts are there, you can proceed. If they’re not, we don’t want them. Be fair, courteous and never go against your honest instincts.”

If true, that explains some of the opinions his Court handed down. But these opinions have always been much less than they appear. Warren was, in spite of having what appears to have been a good soul, a man of the system.

Take Brady, for instance, which on its face appears to give the Defense anything that may be exculpatory (held in later cases to be beneficial to the defendant in terms of both the facts and sentencing). Theoretically, this would be a great deal of information. For instance, a DWI report that indicates that the defendant failed on four of 10 clues should fall under Brady’s exculpatory rule since it indicates that the defendant pass on 6 of 10 clues. Good stuff goes to the defense!

In reality, however, Brady puts the prosecutor in the role of the gatekeeper. Since the prosecutor is an advocate for one party in the contest, the prosecutor’s natural incentives, strictly speaking, can be in at odds with the prosecutor’s obligation to turn over exculpatory material to the Defendant.

A secondary problem is that because the prosecutor is usually the only lawyer who every looks at and decides whether something is exculpatory, if the prosecutor withholds the material, we only have the prosecutor’s say-so that the material that was never turned over was in fact not exculpatory.

These twin problems of Brady – the gatekeeper function and the transparency factor – mean that Brady‘s promise is unfulfilled.

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 that affect the way DWIs are handled.

First, Wake County courtroom 1A, which has generally be used as a disposition courtroom focusing on mainly traffic offenses, will now have a magistrate between the hours of 7:45 and 9:00 am and again between 2:00 pm and 3:30 when the courtroom closes.

Second, the District Court judge who used to occupy courtroom 1A will only be in that courtroom from 9:00 until 1:00 (i.e., the morning session.) Traffic matters or more serious misdemeanors that require a judge’s input can be disposed of between 9:00 and 1:00 in 1A. This matters most of all in the case where the defendant is requesting a Prayer for Judgment Continued, and the State does not consent. The case will either need to be resolved between 9:00 and 1:00 in 1A or may be referred out to a District Court judge to make a determination about whether a PJC is warranted. Magistrates are not permitted to make independent determinations about PJCs, except when both parties consent.

Third, the District Court judge will be in courtroom 5B in the afternoon to handle overflow DWI cases. Wake County has already had a DWI specific courtroom for years (formerly 9G, now 5C). Excess DWIs will be put into 5B for resolution or trial.

Fourth, given that the State Bureau of Investigation’s Crime Lab has been so overwhelmed with blood cases and understaffed, most Wake County blood draws are now being handled by the City-County Bureau of Identification. CCBI has much quicker turn around. I’ve seen blood cases return with results before the first DWI court date, a vast improvement over waiting times of a year or two with the SBI.

Fifth, given that certain DWI blood draws are returning so quickly, the State is issuing Civil Revocation paperwork to DWI defendants who have been able to keep their licenses pending the results of the blood tests. Where the blood comes back a .08 or above, the court sends the DWI defendant a notice instructing them to turn in their licenses. Arguably, this creates a double-jeopardy issue.

These changes may affect the way your DWI is handled. Consult with an aggressive Wake County DWI lawyer.

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 the parties to do so, and to make various representations.)

However, in criminal cases in many states, including North Carolina, a defendant must almost always be present, even for the most mundane or administrative court date. Failure to appear will result in a… FTA or called & failed which can result in many cases in an order for arrest.

This requirement to appear is in place even though the defendant is presumed innocent.

In certain cases, an attorney may be able to excuse his client or a client can sometimes waive an appearance. But this is usually done with the consent of the District Attorney, and with leave from the Court.

The problem is, as David Feige wrote recently in the New York Times:

Statistics for courts in the Bronx are hard to come by. But in 2011, according to a report by the Criminal Court of the City of New York, it took over 400 days, on average, in the city’s other four boroughs to bring a case to a jury trial and verdict — with cases in Brooklyn taking nearly 600 days. That same year, defendants in New York City (with the exception of the Bronx) were required to make 906,243 court appearances — which ended in a mere 506 jury trials. Defendants spent the overwhelming share of those court dates just waiting for their cases to be resolved.

While the numbers are different in Wake County – the typical misdemeanor probably takes fewer days to resolve, except in the case for certain Driving While Impaired offenses – there are significant economic costs to defendants who are otherwise presumed innocent – lost wages, even lost jobs, babysitting expenses, travel expenses, and so forth.

In addition, the crammed courtrooms are difficult to manage and overwhelming to attorneys, DAs, judges, and citizens alike. A better approach would be to make routine court dates optional for the defendant… unless something was going to be resolved through a trial, plea, or deferral agreement. The result would save both the state and county money, and would keep the court system functioning more smoothly. At the same time, it would keep defendants from losing jobs, work, and money.

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, a hearing, or trial.

I’ve written elsewhere about how North Carolina’s prosecutorial control of the calendar coupled with the lack of a speedy trial statute creates all kinds of problems for the defense. Some of these issues were litigated in the early 1990s in Simeon v. Hardin but were never ultimately resolved by the court system. A compromise of sorts was worked out, but it has largely left the problem unresolved. While judicial districts are supposed to have a calendaring plan that levels the playing field, the plans are difficult to enforce.

The real problem ultimately is that the combination of a lack of neutral control of the calendar and the lack of a speedy trial statute means that prosecutors can defer action on cases, letting them pile up, as opposed to deciding which cases are truly in need of prosecution, and which need to be resolved quickly because they are less serious.

(For more in this, please see: Andrew Siegel, “When Prosecutors Control Criminal Court Dockets:Dispatches on History and Policy from a Land Time Forgot.” Siegel is a law professor formerly a the University of South Carolina.)

Now South Carolina’s Supreme Court has ruled in State v. Langford that prosecutorial control of the calendar violates South Carolina’s constitution by violating Article I, Section 8 of the SC constitution which reads:

In the government of this State, the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.

Since the ruling is based on South Carolina’s constitution, it has no real precedential effect on North Carolina courts. North Carolina has a different constitution. And these issues were previously ruled upon in the early 1990s in Simeon v. Hardin in which the Supreme Court of North Carolina held that prosecutorial control of the calendar does not violate the separation of powers clause in the NC constitution.

Nonetheless, the analogous section of the North Carolina constitution is Article I, Section 6:

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

The NC and SC separation of powers sections are similar, though not exactly the same. Note, I am not an authority on constitutional law and have not reviewed the South Carolina constitution in detail.

While North Carolina’s constitution seems to give District Attorney’s additional authority under the Judicial Department Article, a similar Section exists in the South Carolina constitution. Compare Article IV, Sec. 18 of the North Carolina Constitution:

(1) District Attorneys. The General Assembly shall, from time to time, divide the State into a convenient number of prosecutorial districts, for each of which a District Attorney shall be chosen for a term of four years by the qualified voters thereof, at the same time and places as members of the General Assembly are elected. Only persons duly authorized to practice law in the courts of this State shall be eligible for election or appointment as a District Attorney. The District Attorney shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.

(2) Prosecution in District Court Division. Criminal actions in the District Court Division shall be prosecuted in such manner as the General Assembly may prescribe by general law uniformly applicable in every local court district of the State.

Now look at Article V, Section 24 of the South Carolina’s Constitution:

There shall be elected in each county by the electors thereof a clerk of the circuit court, a sheriff, and a coroner; and in each judicial circuit a solicitor shall be elected by the electors thereof. All of these officers shall serve for terms of four years and until their successors are elected and qualify. The General Assembly shall provide by law for their duties and compensation.

The General Assembly also may provide by law for the age and qualifications of sheriffs and coroners, and the selection, duties, and compensation of other appropriate officials to enforce the criminal laws of the State, to prosecute persons under these laws, and to carry on the administrative functions of the courts of the State.

The Attorney General shall be the chief prosecuting officer of the State with authority to supervise the prosecution of all criminal cases in courts of record.

While the South Carolina Supreme Court’s ruling in December does not affect North Carolina law, it should have persuasive power given some of the similarities in the state constitutions.

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 from spouting nonsense, like “[m]y viewing experience does not include any instances in which a judge read a criminal defendant his or her Miranda warning in the middle of police interrogation. Thus, I was shocked to learn that this happened in the case of the surviving Tsarnaev terrorist.”

Problem is: Tsarnaev was not given his Miranda warnings. Judges don’t give Miranda warnings because Miranda is a case that deals with the in-custody interrogation of individuals by police.

Rule 5 of the Federal Rules of Criminal Procedure requires that the judge inform the defendant of (A) the complaint against the defendant, and any affidavit filed with it, (B) the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel, (C) the circumstances, if any, under which the defendant may secure pretrial release, (D) any right to a preliminary hearing, and (E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant.

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 have been such an overwhelming amount of resources poured into the investigation and capture of a suspect.

Miranda arose out of a particular historical context – police abuses and coerced confessions in the early part of the century led to a series of cases whereby the Supreme Court slowly but surely recognized that a defendant was particularly vulnerable in the hours or days between being arrested and appearing in public at court. First, the Supreme Court recognized this right in the federal context. Then the Supreme Court applied this right – via warnings – to the states.

Miranda was and continues to be important, but not nearly as important as the culture would have us believe. Countless police procedurals and movies over the past forty years have created the impression among the public that “technical” violations police procedure – MIRANDA! – mean that the guilty routinely avoid prosecution and punishment. Damn you, Defendant, and your crafty defense lawyer!

Miranda has become a symbol of weakness on the part of the government, such that we now have Lindsey Graham and John McCain inveighing against the Obama Administration for deigning to advise defendants of their rights, as if the president personally makes that decision in the first place, and as if advising the defendants of their rights is something only a weak-kneed Democrat would do.

In fact, Miranda is far less important in the scheme of criminal justice than either McCain or Graham on the right or people on the left who cherish it would have you believe. Miranda is better than nothing, but it’s pretty weak tea.

Why? Well, from a practical point of view, in most criminal prosecutions, police have other evidence. In the case of Dzhokhar Tsarnaev, police certainly have witnesses, video, and physical evidence that links him to the crimes he is alleged to have committed.

Miranda merely requires that he be advised of his rights before answering any in-custody interrogation. If police fail to advise him (and no “public safety exception” exists which we’ll discuss later), any statements he makes may not be used against him in his own trial. But Miranda does not require police to forget what they heard. They can use his un-Mirandized statements to charge, arrest, and try other people. They can use his un-Mirandized statements to locate other undetonated bombs. They can use his un-Mirandized statements to conduct military operations abroad at terrorist cells, assuming this is something more than two young men committing murder.

In other words, Miranda has very limited value and only in the case involving the un-Mirandized defendant. In addition, so long as police have an independent source of the same information, they can use evidence even if Tsarnaev also tells them the same things. (There is always the danger that police will later say they had an independent source of information which they really learned solely by interrogating an un-Mirandized Tsarnaev. But that’s a separate problem. And, as Orin Kerr writes, the actual physical evidence obtained as the result of an un-Mirandized statement can be used (United States v. Patane, 542 U.S. 630 (2004) while the statement may not be.)

So, in short, police – especially in this situation where millions of dollars of resources are being devoted to the investigation and prosecution – have plenty of ways to get a conviction without resorting to the use of un-Mirandized statements at trial.

If Lindsey Graham and John McCain and others on the right want to question suspects without advising them of their rights, they should have the courage of their convictions. Which is to say they give up the power to use those statements in a trial against those un-Mirandized suspects.

Importantly, Miranda is not a cure-all. First, any detective or interrogator has enormous persuasive power in delivering the actual warnings, in part because police can deceive a suspect (so long as the suspect isn’t deprived of his free will.)

I’m going to advise you of some warnings. These are rights you have. You can also give them up and cooperate with me. I can tell you that if you cooperate with me, things will go much better for you. There’s a lot I can do to help. Who knows, you may not even be charged with such-and-such crime. I can even help you when you appear before a judge. I will personally appear before the judge and tell them how cooperative you were. Just so you, know, you have the right to an attorney. You don’t have to have an attorney. You can continue talking to me.

And, second, a detective can make the choice not to Mirandize, in order to extract information, even if the detective realizes he’s probably losing the ability to use that information at trial against the defendant.

Coerced confessions are still a problem, but probably less of a problem today than they were pre-Arizona v. Miranda. Let’s also remember that Miranda does serve a real purpose, which is at a crucial point in the proceedings when the suspect is most vulnerable, Miranda requires the police to step back and advise him that he has rights if they want to use his statements against him in a future trial.

One final point: given how pervasive the concept of Miranda is in our society, in many cases, except where there is an unsophisticated suspect, it’s hard to imagine a person being questioned who does not know (from TV or the movies) that he can remain silent.

The (sad) truth (from a defense attorney’s perspective) is that most people are all-too-willing to spill their guts, or minimize their conduct, or explain their actions to a police officer. In doing so, Miranda doesn’t even become a practical defense because even after being warned, most people talk, almost always hurting themselves in the process.

To quote The Wire, “Americans are a gullible people.”

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, even though on a law school exam you’ll be given all sorts of nifty scenarios wherein you’re asked to test the constitutionality of a hypothetical search.

When are warrants not required? Consent: If you tell a police officer, “It’s ok to search my home,” then you’ve effectively given up your Fourth Amendment rights in that situation so long as the consent was given voluntarily. If observable or detectable evidence is likely to be destroyed if police take the time to get a warrant, then a search warrant may not be necessary.

In Schmerber v. California, the Supreme Court held that where there are exigent circumstances, police may be able to draw blood absent a warrant especially where the dissipation of evidence may occur before a warrant can be secured. But the Court held that exigent circumstances must be established by a totality of circumstances analysis – how difficult it might be to get a warrant, the backup at the jail that might prevent blood being drawn, the proximity of the scene of the DWI stop to the jail versus to a hospital, and so forth.

Missouri sought to bypass that entire analysis by creating a per se rule that any time a DWI is suspected, police may pull blood without a warrant.

But in Missouri v. McNeely the Supreme Court today rejected that argument, holding:

In drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.