A Harsh Review of Milwaukee’s Deferred Prosecution Program

Today’s Journal Sentinel offers what purports to be the first review of the Milwaukee County District Attorney’s deferred prosecution program.  The first three paragraphs provide a good sense of the content and tone of the report:

Milwaukee County’s deferred prosecution program has grown into a major initiative that allows hundreds of defendants each year to walk away from criminal charges with little or no consequences in exchange for getting treatment and staying out of trouble.

Some defendants awarded breaks under the program committed serious crimes, including several that prosecutors admit violate their own policy, a Journal Sentinel analysis of three years of court records has found.

The review of cases filed from 2007 to 2009 found dozens of examples that raise questions about how the county’s deferred prosecution program is being implemented.

The report then discusses a handful of cases in detail.  None can readily be characterized as a success story, and readers may be left with a sense that the program routinely results in the dismissal of charges against violent offenders, pedophiles, and big-time drug dealers.  (A short related piece appearing on the third page of the DPA coverage does discuss an additional case that prosecutors apparently touted as a success story, although it, too, involves lurid facts — a sexual assault of a juvenile — that may leave few readers feeling reassured about the type of defendants who benefit from the program.)

Of course, recounting success stories is unlikely to sell many newspapers.  Still, I’m disappointed that a review of an important criminal justice initiative seems based on little more than a few anecdotes that were apparently selected for their shock value.

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Mississippi Lifers Exonerated in Rape-Murder Case

Phillip Bivens was released yesterday after serving thirty years of a life sentence for a rape-murder in 1979.  As reported by the New York Times, Bivens and a codefendant pled guilty in the case, while a third defendant was convicted by a jury.  New DNA analysis of the rape kit exonerated all three men earlier this year, although only Bivens was still serving time — one codefendant died in prison, and the other had already been released for medical reasons.  Little evidence connected the men to the crime aside from their own incriminating statements, which had apparently been coerced from them. 

DNA exonerations in recent years have done a great deal to highlight the reliability problems with confessions that are uncorroborated by physical evidence.  I wonder, though, to what extent these problems have really sunk in with the lay public.  On their face, confessions seem such extraordinarily compelling evidence — what could be more reliable than a statement so directly and profoundly against personal interest?

The Mississippi case is also interesting as an illustration of reliability problems with guilty pleas, particularly when the death penalty is available.  Bivens entered his false guilty plea in order to avoid facing the death penalty.  My own views about the death penalty are neither strongly for nor strongly against, but I have long thought that the biggest problems with the death penalty are not in the very small number of cases in which it is actually imposed, but in the possibly much larger number of cases in which fear of the death penalty leads to a guilty plea and an undeserved life sentence.