The exceptional difficulty of prosecuting rape

Read more of this story here from Arizona Sonora News Service by Isaac Rounseville /Arizona Sonora News.


Sexual assault remains the most underreported and underprosecuted violent crime in the United States. Of the small fraction of incidents that are reported, even fewer incidents actually result in investigations, charges and convictions.

“It’s extremely underreported, both on and off campus,” said Rene Hernandez, police officer and crime prevention specialist at the University of Arizona. “There is still a major stigma that keeps victims from coming forward.”

According to a recent report by the U.S. Bureau of Justice Statistics, (BJS) considered the gold standard of statistical analysis by specialists in criminology and law enforcement, fewer than 1 in 4 victims of sexual assault or rape report their experiences to the police. Of those who report in Arizona, only 1 of every 10 reports result in an arrest.

Sexual assault, according to the BJS, encompasses a “wide range of victimizations,” such as attempted attacks, unwanted contact and verbal intimidation. This is a separate category from rape, which is defined as “forced sexual intercourse including both psychological coercion, as well as physical force.

When focusing on incidences of rape, there is a stark drop off between the amount of rapes reported to the police and the number of arrests, charges and sentences actually made.

The FBI, which gathers crime data throughout the U.S., recorded 3,290 rapes as reported to law enforcement agencies throughout Arizona in 2016. But police only made 344 arrests of alleged rapists.

The FBI’s definition of rape is slightly more inclusive than the definition used by the BJS. This is because it doesn’t require that a rape must be “forcible,” just that vaginal, anal or oral penetration by a sex organ is against the victim’s consent.

This change was made to reflect a growing body of evidence that indicates the majority of rapes came from friends, colleagues or family members. These perpetrators usually exercise psychological or emotional coercion over their victims rather than brute force.

Recent data on the prosecution of sexual assault suggests that even when victims do press charges, very few reports of rape or sexual assault result in a trial.

Many cases are either thrown out or don’t reach a sentencing phase. According to a 10-year study by the Arizona Criminal Justice Commission, less than half of arrests lead to charges actually being filed. Of these, even fewer lead to convictions. Those that do get convicted face a minimum sentence of more than five years in prison if it’s their first assault offense.

“Coming forward as a rape victim is extremely challenging, especially if the perpetrator is a former friend or colleague,” said Tracy Miller, a prosecutor at the Pima County Attorney’s Office.

“Other crimes like burglary and physical assault are also very invasive and emotionally taxing,” Miller said. “But with sexual assault, you are forced to grapple with a deep, intimate invasion of privacy that you can’t escape, that you just have to get through by finding strength within yourself and hopefully from your friends and family.”

When an arrest is made, it is just the first step of what tends to be a long procedure in the U.S. criminal justice system. In order to ensure a perpetrator is held accountable, prosecutors typically rely on three main factors, ideally in combination: forensic evidence, a victim who is willing to testify, and a narrative that judges and jurors will find convincing.

But ensuring even one of those factors can be a very difficult, delicate and time-consuming task.

“More frequently, the victims I assist to don’t have visible signs of forcible rape, which could include tearing, bruising or marks,” Miller said. “This lack of clean-cut evidence can make prosecuting a case more difficult.”

For instance, the process of obtaining forensic evidence immediately after a rape can be invasive, particularly when victims unintentionally wash away potential DNA evidence.

In addition to physical obstacles of obtaining evidence, there are immense cultural obstacles that survivors and prosecutors must work against. Because of the social stigma surrounding the status of rape survivors, many refuse to testify or press forward with criminal charges.

Survivors also must deal with strategies of defense lawyers that cast doubt on their credibility, personal stories and motives for bringing charges of rape. This is despite peer-reviewed publications indicating that the rate of false accusations falls between 2 to 10 percent of national cases.

“The default position tends to be to blame the victim,” said Julia Schimmel, a political science and Arabic major at the University of Arizona. “To ask what they were wearing, what they were doing, or what they could have done differently. It shifts blame away from the perpetrator.”

In response to new pressure from students and advocacy groups, police organizations are trying to reconsider their approach to the crime.

“We used to just stick to a completely fact-based investigation in collecting evidence,” said Hernandez. “Now, in addition to the evidence, we do our best to understand how the survivor has been traumatized and what we can do to ease the process for them.”

Sometimes, the very act of collecting evidence through questioning the circumstances of a rape can evoke feelings of shame for a survivor.

“All too often, people frame their questions in a way that blames the victim,” said Miller. “The feeling that it’s her fault plays a great role in deterring a victim from speaking out.”

“Jurors often craft narratives to judge the credibility of a victim,” said Miller. “Testifying in front of a jury, bearing all the circumstances of an attack, can be extremely difficult for a survivor.”

The systemic inertia of the U.S. criminal justice system can deter many victims from reporting assaults or bringing charges. Some proponents suggest lowering the burden of proof for convicting perpetrators of sexual assault, which currently stands at beyond a reasonable doubt, the heaviest legal burden in the justice system.

In 2011, the Department of Education pushed for universities to alter their codes of conduct to address sexual assault on campus. Specifically, his administration required universities to lower the burden of proof for sexual assault conviction to a preponderance of the evidence, which only means by the greater weight of the evidence (or more that 50 percent). This change left the burden of proof in state and federal courts – beyond a reasonable doubt – unchanged.

But others don’t think such drastic changes are necessary.

“I don’t think we need to alter the burden of evidence,” said Schimmel. “I think we just need to work more on elevating victims, on trusting them. Rather than seeing their stories as aberrations, we need to come to terms with how uncomfortably common they are. I think the #MeToo movement has done a good job of that, so far.”

Many proponents also appeal to human decency, rather than institutional forces, as the key to addressing sexual assault.

“What more people need to realize in these circumstances is, could this person be my future wife? Or the future wife of someone else?” asked Hernandez. “If we get more people to realize the humanity of individuals, both before and after a crime occurs, we can put a dent in sexual assault.”

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What’s a key factor for your constitutional rights? Geography

Read more of this story here from Arizona Sonora News Service by Isaac Rounseville /Arizona Sonora News.

The vast majority of people charged of crimes in Arizona accept plea bargains to avoid lengthy and costly trials. (Photos by Isaac Rounseville

Michael Penrod’s daily routine typically involves a 35-mile commute to meet with his clients. Because clients tend to be poor, isolated and in need of legal aid, his workspace spans all of Navajo County’s nearly 10,000 square miles.

“Next week is just going to be hell for me,” he said.

The legal services Penrod offers, for felony defendants, are sought after by millions of citizens throughout the U.S. His team of five attorneys is never short of work. On an average month, each attorney works up to 100 cases. They range from felony charges of drug possession, to misdemeanors for loitering and sexual harassment.

Like public defender offices across the nation, Penrod’s team is overworked and understaffed. The national caseload standards for public defenders, which is set by the American Bar Association, is 750 cases a year, including a mixture of felony, misdemeanor and juvenile cases. This falls far below the average of 1,200 cases that Navajo County attorneys receive each year.

“We have to implement a turn-and-burn strategy for a lot of our cases,” he said. As a result, he admits it can be difficult to give each individual case the time and attention that clients usually require.

Source: US Census Bureau, American Community Survey

Source: US Census Bureau, American Community Survey

The constant churn of criminal cases from defendants who fall under the federal poverty line, which is a yearly income of $12,060 for individuals and $24,600 for a family of four, is a daunting task for any professional legal team. Over 30 percent of Navajo County residents fall under this threshold. Their right to legal counsel is guaranteed in the U.S. and Arizona Constitutions. But many legal experts claim that because of a lack of staffing and a disparity of resources, public defenders can’t effectively perform their role as advocates for the poor.

Attorneys like Penrod face an additional obstacle: Working in a vast, rural area makes each case require more traveling and time than cases in urban counties. According to a 2010 study published in the Arizona Law Review, attorneys working in more rural counties are more likely than those is more urban counties to face overloaded criminal dockets, receive smaller salaries and have access to fewer legal experts to assist in complex cases. Experts concluded that rural defendants are at a greater risk to be pushed into plea deals that are against their best interests.

A Constitutional Right Under Threat

In 1963, the Supreme Court affirmed the right to legal counsel for poor criminal defendants in the landmark case of Gideon v. Wainwright. Since the decision, billions of dollars have been devoted to legal reform initiatives and public defense projects across the nation. Local, state and federal agencies, in coordination with non-profit groups and universities, have enlisted thousands of attorneys and paralegals to try to uphold this right for poorer American citizens. Despite the vast effort, many legal advocates claim that public defenders do not have sufficient time, resources or staffing to effectively represent the poor. Legal advocates claim that the most glaring gaps in criminal defense are found in rural areas.

Public defenders can work hundreds of hours for hundreds of different clients over the course of a single month at the Pima County Superior Court.

“Until a few years ago, the only counties that actually had a public defenders office were Maricopa and Pima,” said Andrew Silverman, a professor at the University of Arizona James E. Rogers College of Law. “It wasn’t until recently when actual offices were set up in rural areas for the purpose of defending the poor.”

In Arizona, public defense is funded and organized by each of the state’s 15 counties. Their budgets are almost entirely based on local property taxes. As a result areas like Navajo or Apache County, which have median home values of $104,00 and $83,000 respectively, have much less revenue to work with than a public defender’s office in Pima County, where home values are over $160,000.

According to legal experts, this locally based funding formula leaves disturbing gaps for legal service in rural parts of the state.

One way to understand how different funding streams result in different outcomes by county is to look at incarceration rates. Counties with lower property values, and lower budgets for public defense, tend to have more citizens in jail. Pima County, for instance, performs better than many other rural counties in Arizona, which is in line with its relatively high property values. The budget for its main public defender office is over $12 million. According to the Vera Institute of Justice, 246 people per 100,000 between the ages of 15 and 64 are behind bars in Pima County. Navajo County, on the other hand, has an incarceration rate of 339 people per 100,000. Its public defender office’s budget: less than $600,000.

Table 1 SOURCE: Bureau of Economic Analysis

Fast Track Justice

But even in a relatively well-funded area such as Pima County, finding qualified legal defense to navigate a complex legal system can be very difficult. In addition to serving a prison sentence, convicted felons must get approval from a judge to get their civil rights restored. These include the right to serve on a jury, run for public office, own a firearm and vote.

Table 2 SOURCE: Vera Institute for Justice

One of these felony defendants was Jeff Salcido, 30, who, after serving for over a year in jail, faced a $1,500 fee from the Pima County Superior Court to get his rights restored.

“I had no idea how I would get the money to afford that,” said Salcido, who supports his fiancee, Erin, and two children as a landscaper. “I was ready to just give up.”

When he was first arrested and charged with dealing drugs in 2012, Salcido said it was impossible to get legal counsel that could serve his particular needs. Rather than being set on the path to societal reintegration, he said was told to accept a plea deal and patiently wait in prison. By 2013, he had a felony on his record.

“If you have a felony in Arizona, you can’t vote,” said Salcido. “It becomes way harder to get a loan for a house or college, to move to a nicer neighborhood and to avoid slipping back into criminal behavior.”

Salcido’s resort to a plea deal is emblematic of the struggles that hundreds of thousands of poor Arizona citizens experience every day. Local justice systems, such as the Pima County Superior Court, process thousands of cases every year. According to a 2011 study by the ABA, caseloads for public defenders can become so onerous that attorneys struggle to perform “core functions,” such as research into a client’s financial status or history with the justice system. Many cases get placed on a fast track toward a plea deal that can include large fines or prison sentences.

Data from the Arizona Supreme Court shows that only 1,979 out of more than 370,000 criminal cases filed throughout the state in 2016 went to jury trials. As a result, thousands of Arizona citizens like Salcido are represented by attorneys that recommend a plea deal in lieu of taking more time to argue for a lighter sentence or waiting for a trial that can take months.

Last year, Salcido met a public defender at a free legal clinic being held in South Tucson. Joel Feinman, head of the Pima County Public Defender’s Office, frequently does pro bono work throughout Tucson for poor defendants. With his help, Salcido was able to get the $1,500 fine for his rights reduced to zero at no cost.

“This has opened up so many more opportunities,” said Salcido, who has started his own landscaping business and plans to move from his neighborhood in South Tucson. “I’d still be in the shadows if it weren’t for Joel.

Urban Areas Stand Better Equipped to Represent Those in Need

“Demand for legal services will always outstrip supply,” said Feinman. He helps run one of the largest county defender’s offices in the state, representing thousands of felony cases in Southern Arizona. He oversees over 160 employees, 70 of whom are lawyers.

“On any given day, we average about 35 to 40 felonies for each attorney,” said Feinman. “It can get up to 1,900 every month.”

Getting new staff members is a struggle for public defenders offices throughout the nation. For a newly minted lawyer, a job defending poor clients that that has a median starting salary of $47,000 can be much less attractive than a position at a private firm, where median starting salaries are $95,000 according to the National Association for Law Placement.

The Pima County Public Defender’s Office, with a budget of $12 million, is the largest public defense office in Pima County.

But Pima County is comparatively well equipped to fight the brain drain of lawyers from the public sector, offering a starting salary of $58,000 for its attorneys.

According to experts, having a larger staff is crucial to effectively representing a population of poor clients. This is because the legal needs of the impoverished, which make up over 18 percent of citizens in Pima County, are extremely diverse. They range from simple charges of non-violent drug possession to much more complicated, evidence-heavy cases involving assault, attempted murder and burglary.

“Because of such a mixed caseload, it can be easy for attorneys to be distracted from more heavy duty cases by a huge volume of simpler cases that eat up their time,” said Howard Wine, an attorney who’s worked at the public defender’s office for over 17 years.

Starting in 2008, Wine helped implement a division of labor between more time-consuming cases that tend to go to trial and lighter cases that ended in plea deals. The office now has an intake team that works exclusively for defendants who have admitted to committing lighter crimes, like illegal drug use and possession, to lighten their sentences and keep them informed about court fees. Another group of attorneys focuses exclusively on more complex cases that can take weeks to resolve.

Howard Wine, who’s worked at the Pima County Public Defender office since 2001, works to keep poor defendants from facing increased prison time and fines.

In Navajo County, by contrast, Penrod and his legal team of five attorneys each work on the same mixture of complex and simple cases.

“We work a pretty massive criminal docket,” he said. “Everything from a murder or assault case to someone possessing a small amount of drugs.”

When a legal team like Penrod’s comes under strain, the incentive to push for quick plea deals rather than a lengthy trial process can become stronger. This is called a “meet-and-plead” approach, which, according to a study by the Texas Indigent Defense Commission, is a common fallback for overstaffed public defender offices. Rather than taking the time to interview witnesses, contest charges and negotiate a time for trial, attorneys with higher caseloads tend to only have the time for a brief discussion with a judge about a plea deal. When attorneys like Penrod have nearly 100 cases to handle each month, it’s nearly impossible to fulfill basic functions like interviewing witnesses and researching financial history.

“Effective research and service for each defendant can take hours, and when you have nearly 100 defendants of all these different case types, that adds up quickly,” said Jared Keenan, an attorney for the Arizona branch of the ACLU.

For Penrod, he experiences a common feeling among public defenders called compassion fatigue. Maintaining a good rapport with impoverished clients — many who have criminal charges, few family connections and little prospects for future success — can make it a psychologically draining profession, especially with a low salary in an isolated county.

Penrod is not alone. Excessive workloads for public defense attorneys are a in every state in the U.S. Bruce Green, a Council member at the ABA and law professor at Fordham University, has called “the perennial financial crisis in indigent defense services” a nationwide phenomenon that has shown few signs of improving.

Penrod, in the face of financial obstacles and staffing shortages, doesn’t plan on leaving his profession anytime soon. While he says that public defenders don’t receive the respect they’re due as agents for constitutional rights of the poor, he takes pride in his career.

“I used to work in private practice,” said Penrod, who switched to being a public defender five years ago. “But I don’t for a second regret the change I made. People need this service, whether it can be effectively funded or not. It’s not pretty work, but someone’s got to do it.”

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