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Something's Got to Change

On Friday morning, I picked up my Lexington Herald-Leader and opened up the sports section first, as I often do as a serious Cardinal baseball fan. A short article in the “briefs” section caught my eye.  It read in part, “Oregon State pitcher Luke Heimlich, who as a teenager pleaded guilty to molesting a 6-year-old girl, will not accompany the Beavers to the College World Series.”  
On Friday morning, I picked up my Lexington Herald-Leader and opened up the sports section first, as I often do as a serious Cardinal baseball fan. A short article in the “briefs” section caught my eye.  It read in part, “Oregon State pitcher Luke Heimlich, who as a teenager pleaded guilty to molesting a 6-year-old girl, will not accompany the Beavers to the College World Series.”  Heimlich, who was 11-1 with a 0.76 ERA for the Beavers, had been projected to be an early round pick in Major League Baseball's draft, which “ended Wednesday without him being selected.”  
 
 It seems that the Oregonian only recently found out that when Heimlich was 15 years of age, he had been adjudicated delinquent of sexually touching a 6-year-old family member.  Heimlich pled delinquent, was classified as low-risk, and was placed on diversion and two years of probation.  He successfully completed his probation in September 2014. He then got a scholarship to pitch at Oregon State and moved to Corvallis, Oregon.  While there, he registered as required by Oregon law. Thereafter, he missed an annual registration update, which was a crime.  Heimlich was cited, but the citation was dismissed by the prosecutor based upon the determination that Heimlich did not have knowledge of reporting requirements.  That's where the matter stood until the Oregonian was doing a profile of their star pitcher and found out about his juvenile record due to the adult citation.  They then filed an open records request.  Ironically, juvenile records are open in Washington but not in Oregon.  They decided to reveal Heimlich's juvenile record to the public and the nation.  See the full story here: http://www.oregonlive.com/beavers/index.ssf/2017/06/luke_heimlich_sex_crime_surfac.html.
 
Once Heimlich's adjudication was revealed, he decided not to attend the College World Series.  And Major League Baseball decided that he was anathema.  And at least for now, this young man, on the cusp of becoming a successful professional baseball player, has become a societal pariah.  What the future holds is now uncertain.
 
And here's the thing.  As a juvenile offender, it is unlikely that Heimlich will ever reoffend.  Heimlich was only 15 at the time of his offense.  He was classified as low risk.  He successfully completed his diversion.  He has had a successful college career as a student and as an athlete.  In the same Oregonian article, the reporter notes that Heimlich's chances of ever reoffending are small.  “Research shows that the vast majority of juveniles convicted of sex crimes do not reoffend in subsequent years.  After about three years, the likelihood of reoffending is ‘very small,' said psychologist Michael Caldwell, who lectures at the University of Wisconsin-Madison.  At five years, the recidivism rate for another sex crime hovers at 2.75 percent, according to a study that Caldwell published in 2016. That's because juvenile sex offenders tend to mature and respond well to intervention, Caldwell said.  "It's referred to as a redemption threshold, the point at which the person is no more at risk than any other individual walking around on the street," he said.
 
I tried a good number of sex offenses in the 80's and 90's during a time when the nation was paying a lot of attention to these crimes.  I witnessed sex offenders becoming the new outcast in our criminal justice system.  In many places, evidentiary standards were relaxed, with evidence of “sexual accommodation syndrome” becoming admissible.  “Suppressed memory” resulted in people “remembering” being touched as children, resulting in charges long after the offense.  Legislators around the country responded.  Sentences were lengthened.  Sex offenses were classified as “violent offenses.”  Mandatory minimums were established in Kentucky for persons convicted of sex crimes.  Probation and parole were eliminated.  And registration schemes were passed throughout the nation, including in some states for offenses committed as juveniles.  As Kentucky Public Advocate and later as the legislative agent for KACDL, I witnessed how little sympathy Kentucky legislators had for persons convicted of sex crimes.  No sentences were too long.  No conditions of probation, parole, or registration were too harsh.   
 
The Jacob Wetterling Act and then the Adam Walsh Act were passed.  Registration schemes were passed in all 50 states.  Sexually violent predator laws were passed in many states guaranteeing in some instances lifetime commitment in prison-like conditions for those who had served out their sentences.  As a result, we have relegated sex offenders to living in places far out of cities or under bridges.  And we have done so with little pushback from progressives, despite evidence that sex offender registries do not work.  (See for example http://www.wnyc.org/story/155020-sex-offender-registries-dont-work/; https://www.vice.com/en_us/article/california-is-starting-to-notice-that-sex-offender-registries-dont-work; http://texasvoices.org/restitution-vs-rehabilitation-why-sex-offender-registries-dont-work-2/
 
Should we care as public defenders?  Is this just another example of a pampered college athlete who is now being held accountable for what he has done (see the outrage over the sentence given to Brock Turner, the Stanford swimmer). 
 
The reason we should care is that if society is outraged by a short sentence for a college swimmer convicted of rape while both he and the victim were over-the-top drunk, or if society is willing to throw away a pitcher who had a promising career in baseball, imagine what society is willing to do with our clients, the poor, the marginalized, persons with intellectual disabilities, persons with mental illness?  The lack of empathy for the athlete pales to the hatred and the vilification reserved for our clients.  This vilification is palpable when you are sitting next to a 50-year-old man and the judge announces the charge to the prospective jury.  This hatred is the context in which the jurors go back to the jury room to deliberate.  We should care as public defenders, and we need to speak so that society begins to care again.  

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April 16, 2017: 60 Minutes' Anderson Cooper features the Orleans Public Defenders and NAPD General Counsel in a substantive segment about public defenders' excessive workloads, pervasive injustice, and the obligation of defenders to resist the "conveyer belt" of mass-incarceration. You can watch the compelling segment HERE 
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On March 18, 2017 - the 54th anniversary of the Gideon v. Wainright decision - NAPD published its Foundational Principleswhich are recommended to NAPD members and other persons and organizations interested in advancing the cause of equal justice for accused persons.  

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On March 2, 2017, NAPD released its Statement on Reducing Demand For Public Defense: Alternatives to Traditional Prosecution Can Reduce Defender Workload, Save Money, and Reduce RecidivismThere are more than 2 million people in jail and prison in the United States. This is a four-fold increase since 1980. This increase and the racial disproportionality among incarcerated people has led to alliances across the political spectrum to address the impact on people and on budgets.  As the new Coalition for Public Safety has put it, “Our country has an ‘overcriminalization’ problem and an ‘overincarceration’ problem — and it’s getting worse." NAPD authored this statement because there is a great opportunity to make transformative changes that can improve justice and save money.  A variety of organizations representing a wide spectrum of political views have joined together to end the systematic problem of overcriminalization and narrow the net of incarceration by reforming criminal codes.