18 April 2019

"Competitors" to Proactive Policing

Anonymous commented on my previous post about the social pendulum and how America treats crime (And So the Pendulum Swings) that my position would have been better served if I addressed the competing theories to proactive policing.We skirmished about it in the comments with him pointing to the banning of lead gasoline and paint as correlating with the drop in crime, me not taking that seriously and flippantly pointing out the rise in the prices of beverages in the 90's could be said to correlate as well, and him doubling down with a link to a chart from Mother Jones. Not knowing anybody who trusts Mother Jones for science facts, but not wanting to blow off a point someone seemed to really believe, I contacted someone who know a lot about statistics and now I'm ready to talk about the competing theories.

THEORY ONE: Abortion Legalization Caused the Decline in Crime

This theory was actually one of the ones used to justify the legalization of abortion in the United States. It comes from a Swedish study that followed "unwanted" children and determined that they were likely to engage in crime. The theory, as far as its application to the U.S. goes is that abortion was legalized in the early 70's and therefore the drop in crime in the 90's was due to the drop in unwanted children.

As you might imagine there has been quite a bit of push back against this theory and a hesitancy to actually study it because it has the whiff of eugenics about it and any serious study is probably going to have implications in racial spheres (i.e. claims about Margaret Sanger and abortion rates for African-Americans and Hispanics in NYC ) and few social scientists want to tread on those grounds.

The strongest counter-argument I've seen to this is that it doesn't hold up to actual demographics and the changing social environment. At about the same time as abortion became legal premarital sex and out of wedlock (unwanted) births started becoming normalized. There were actually more out of wedlock births in the lower social classes than there were babies aborted. So, instead of a downturn in crime there should have been an uptick which was somewhat mitigated by the abortion affect.

Personally, I think there's a good chance that a lot of people who push this theory are strongly influenced by confirmation bias. They want the Swedish hypothesis to be proven true because it would show abortion as a long term benefit to society.


THEORY TWO: Removal of Lead Hazards Caused the Reduction in Crime

This theory states that the US government's banning of the use of lead paint (outside of industrial uses) and requiring its removal as an automotive fuel additive caused people to become less aggressive and led to the downturn in crime. Here's the chart:
Of course, you have to be careful with these kind of charts otherwise you have to believe things like the strong correlation between the Age of Miss America and Heat Murders.
So, I went out and imposed on an old friend who has gone on to make a better man of himself in a career involving a lot of statistical analysis1. He said, in much more erudite words, what I previously stated in the comments on the old post. Correlation cannot prove causation. You can only argue whether correlation shows a stronger or weaker case. As to the case for lead he informs me that it appears likely to have had an effect, but that it is not clear how great the effect was.

On my own, I went out to see how our society compared to some where lead exposure for youths should still be higher. Admittedly, I was looking to see if the US result was predictive in societies with a significantly different cultural base and went to India, Thailand and Egypt to see. In the U.S., the CDC has determined that 5 micrograms per deciliter (μg/dL) of lead in blood is too high. In India it seems that children have about 6.86 μg/dL. In Thailand children have 7.71μg/dL. In Egypt the median is about 17 μg/dL. Assuming the theory that criminal activity tracks with lead contamination Egypt should have the most crime, Thailand and India would follow, and the U.S should have the least.


Murders per     
0.8 5.9 2.8 5

Rapes per     
0.1 6.7 1.8 27.3
Source: Nationmaster

Obviously lead is not the entire answer. The U.S. has pushed hard to lower lead levels and still has relatively high crime rates. Egypt, which obviously has a lot of continuing lead exposure has a minuscule violent crime rate. If it was entirely about lead or even in great part about lead the United States' crime rates should have cratered by now and should not have stopped their decrease in about 2002.

So, yes there appears to be a correlation that shows some effect. However, higher lead levels do not seem, unto themselves, to cause high crime rates2. I'd really like to see more data on this comparing crime rates for other countries with different cultural bases over time as their lead levels dropped (China, India, Egypt, Indonesia, etc., not European based societies). If a replication of a significant drop could be shown in the crime rates of other societies then this would be a rock solid theory and people much better at math than me might actually be able to determine how much the lowering of lead levels affects criminal behavior. In fact, I must admit to some suspicion as to why there isn't such a study.  If a study of different countries with different societal bases showed similar, significant drops in crime it would be rock solid evidence of the lead theory. Why then does one not exist? Let me put on my tinfoil hat and say maybe it's because a significant reduction in crime rate in other countries did not occur.

Anyway, that's as far as I can take this one. There does seem to be an effect of indeterminate magnitude in the United States.


THEORY THREE: Collective Efficacy

This is the social group in an area through its shared values and trust of one another cooperating to enforce informally social norms that preclude criminal activity.

This is cited in many places as a counter theory to broken windows policing. While I think it is something that can be a barrier to the entry of crime into an area, I don't think it's something that has effect in an already crime ridden community. In fact, I'd say the underlying purpose of broken windows policing is to create a space and condition so that a positive "collective efficacy" can come into being and flourish.

For instance, after a long period of proactive policing, the police in NYC reduced their activity (we'll assume they didn't just change methods). After they did, the depressed crime rates which came into existence during the proactive policing period remained depressed. Those who opposed proactive policing trumpeted this as proof that broken windows didn't really accomplish anything. In so doing, they ignored one obvious conclusion: proactive policing had changed the social structure so that behaviors were less violent and criminal. The question now becomes, did the social change imprint in the social group deeply enough that collective efficacy can hold the line against a slide back into a crime ridden society? We won't know for years, but my bet would be that in some neighborhoods it will and in others it will fail. Where the final balance will lay probably won't be known until a couple decades have passed and somebody does a historical study.


THEORY FOUR: Economic Improvement

This is the "a rising tide lifts all boats" theory. Of course, this has some merit, but I wonder how much in an economically depressed area. If half the people in an area are on welfare, the area is flooded with dealers and gangs who constantly have gunfights over turf, and there is one gas station and one McDonalds, how is that community going to grow itself economically out of that situation even in times of booming growth? Sure, some people will get jobs outside the community - if they've got reliable transportation - but enough to transform the entire community? Unlikely. At least it's unlikely as long as no businesses or factories open up near the community and that's unlikely as long as the perception that the neighborhood is dangerous and crime ridden persists. Thus the economic improvement theory finds itself in a catch 22. Crime keeps businesses away and businesses are needed to bring people's economic status to the point that crime is squeezed out socially.

Here again, part of the purpose of proactive policing is to damp down crime so that these neighborhoods can become acceptable (and hopefully desirable) places for businesses to locate and then that tide can actually lift everyone in the community by providing employment for significant numbers of people.



Let's admit something here. Nothing in the real world occurs in a vacuum. Proactive policing may be - and I would assert is - the major element in the decrease of crime since the early nineties, but it didn't stand alone. It is intertwined with the other things listed above with the probable exclusion of the abortion theory. And yes, I am including the lead reduction theory in that statement; I'm still skeptical and want to see the replication I called for above, but as far as I've been able confirm it has some effect.

None of these things are the only cause. They are all part of a set of circumstances which combined to drop crime rates. The question becomes, what was the primary cause? As always, it's impossible to prove with certainty any of this. Someone will always challenge; after all people have to earn their doctorates, get jobs as professors, and become tenured. That process doesn't tend to favor someone who just says "Yeah, the obvious answer is the right one." Thus someone will always be developing new, strange, and attenuated theories and swearing they're the one who is correct.

What is that most likely answer which they'll be striving to make their bones by disproving? The most likely answer is that proactive policing provided a break from prior patterns of social behavior and perception, apparently at such a time as lead reduction had caused younger adults to become less aggressive and thus more likely to conform to new behavioral patterns. This allowed more economic growth in previously inaccessible neighborhoods and allowed room for a new pattern of accepted social behavior to develop.

We'll call this Addendum A to the Ken's Grand Unified Theory of Broken Windows.


1 And, no, I shan't be giving you a name or firm employed at. There are too many whackadoodles on the web and he's done nothing to deserve their attention.
2 Obviously and admittedly, this is a terrible model. I don't have the time, resources, or training to do a long term data or metadata analysis. So, I did my best to approximate a snapshot of the data to give a general idea. I invite anyone out there who wants to investigate the cross cultural effects of the reduction of lead on crime to have at it.

10 April 2019

Gateway Drugs

Here's an interesting article about the connection between low level drugs (cigarettes, alcohol, marijuana) and the use of harder drugs. Admittedly, a lot of it is over my head, but I did get the part where they state that the use of cigarettes, alcohol, and marijuana make it 24 more times likely someone will use hard drugs.

What caught my eye was the short section on the two competing theories as to why lower level precede the use of harder drugs. 

There are two general schools of thought on the gateway effect. The first is that the gateway effect is causal: Cigarette or alcohol use causes marijuana use and marijuana use causes cocaine use. If the gateway effect is causal, then smoking restrictions should decrease marijuana use and the legalization of marijuana would lead to an increase in cocaine use. The second school of thought is that the gateway effect is merely descriptive: Individuals have a preference for drug use and the fact that individuals typically use marijuana first is due to some unobservable factor, such as marijuana being more readily available.
Personally, I think the two theories intertwine in reality. I'm pretty sure every human comes wired to seek pleasure and starting out at a lower level can lead to attempts to repeat an action in a manner believed to provide greater pleasure. I'm actually more curious about what barriers prevent most everyone from moving up the chain until we're all hooked to a morphine drip. 

I'd posit three strong reasons for this barrier affect (I'm sure there are a passel of small ones). First, social norms. Second, perception of danger. Third, anticipated opportunity loss. 

Social Norms

To begin with, let's address the social norms. Here I think we will all agree that a large portion of the population - probably a majority - perceive cigarettes, alcohol, and Marijuana as falling in a normal to use category. Their downside is discounted to a certain degree and it is expected that almost everyone will partake of them - at least as young adults. The step up to the next level is not acceptable. Cocaine, heroin, and oxycodone are not seen as normal use and therefore use is viewed with with disapproval. These are norms handed down as part of the social atmosphere. You see Uncle Ted and Aunt Katrina smoking and drinking a beer; you don't see them using cocaine.

Perception of Danger

Next we come to the perception of danger. Cigarettes are known to have long term harmful consequences. Alcohol clearly has the ability to be dangerous in both the short term and long term, but is so ingrained in society that is part of religious functions and part of everyday life for most people without any serious problems. Marijuana has not been widely perceived to have large detrimental health effects. There is some perception that heavy use impacts intellect over time and one imagines that the inhalation of a foreign substance into a person's lungs can lead to long term health issues, but no one seems to take that into account. Consequently, there may be a perception of some minor danger, but there isn't a great feeling of immediate jeopardy. 

On the other hand, even in depressed communities - perhaps especially in depressed communities - the affects of harder drugs become known. Heroin kills. Crystal meth makes you skinny, scabby, paranoid and dangerous. Everybody overdoses from fentanyl. Sure, some people will always go there anyway (after all there are no shortage of young people who think they are invulnerable), but a lot of people seeing what's happened to those before them will stop short. Additionally, I think the threat of incarceration has a lesser effect in causing people not to use the harder drugs. 

Anticipated Loss of Potential

While I occasionally make fun of the young among us for not exercising their brains much, they are generally on a path and can see their potential futures. They can see that someone addicted to heroin or cocaine isn't as likely to succeed. Thus, when middle class or above kids are making their way thru high school and going off to college the majority of them don't come out the other end with addiction issues. And don't try to tell me that drugs aren't available in and around school; Lexington PD raided the place where kids congregated just outside my Junior High School when I was in the eighth grade. I had a classmate in college tell me how he had sworn off LSD because a building tried to attack him while he was high and walking across campus. Drugs are available while you are in school. 


So, I see the minor drugs as a gateway of sorts, but the jump to harder drugs not being accomplished solely thru them. There has to be something that gets a person over the barrier. This could come in many flavors. There are always some few people who simply fall off the path because of they are young and (in their own mind) invulnerable or they have a major event and seek solace in oblivion or maybe they came equipped with a greater genetic predisposition. There are always people who have so much familial money/power they will be taken care of even if they turn into the biggest herion addict on the West Coast. Most importantly, if there doesn't appear to  be a set path for success then immediate gratification becomes a much more powerful draw. This is your basic explanation as to why, despite not having the same level of general affluence, drugs are more commonly found in depressed communities where their economic impact is more profound.

There is an argument that in order to make the lesser drugs even less of a connection to the harder drugs they should be legal, affordable, and relatively easy to access. Minor entry level bumps (which are fairly easily worked around) may be acceptable to reduce their potential for harm, but making them so high that the lesser drugs go back to being sold by the same guy who is distributing coke, heroin, or oxys is counterproductive. 

In fact, I've often wondered if - and at times posited that - the main reason that marijuana is a gateway drug is that it is sold by the same person who is selling coke and he'd really like to get you hooked on that more addictive drug to make you a more dependent customer. 

08 April 2019

Ken's Grand Unified Theory of Broken Windows

I got into this tangentially the other day, so I thought I'd set out why I think "broken windows" works as one aspect of proactive policing.

The theory, as usually laid out is that lesser crimes lead to greater crimes and punishing lesser crimes, as well as cleaning them up, breaks the causal chain. First, let me say that I don't believe it breaks the chain directly. Stopping someone from tagging a wall and painting over tagged walls as quickly as possible doesn't stop the guy down the street from selling drugs out of his house. In fact, I generally agree with the article cited here that posits that most violent crime is personal in nature and therefore isn't directly effected by broken windows policing. I also believe that collective efficacy has an affect growing out of broken windows in a couple possible ways, at least one of which will probably not be viewed favorably by its fans. However, I think that the biggest factor is most likely the growth of affluence.

I'm going to give two examples of what I mean. These are two general models for how broken windows can work. Neither involves actually breaking the chains of criminal behavior directly, but lead to it.

I.  Displacement Model:

This one will be viewed as less pleasant because it is for those displaced. For those of you old enough to remember the fussing about gentrification, it's at the heart of this. Here is a map of the area I grew up in in Lexington, Kentucky:

I've colored part of it blue to represent nice houses where people of a certain station live even though it's on the wrong side of town. Yellow is a sketchy part of the neighborhood where people aren't thrilled to live, but make do despite higher crime rates and run down houses. Peach is the part of the neighborhood where police only go in force and nobody sane walks the streets after dark. All of the sections are arbitrarily chosen; I'm sure nobody in Lexington actually views the Northside as anything but a land of hugs and cookies.

Anyway, let's say the Lexington Police Department concentrated on the area and swamped it with officers to stop all the petty crime they set their eyes on. As well, they have people doing community service come in and clean everything up as soon as any mess is made (new windows, new paint, etc.). Minor, observable crime disappears along with its signs.

What happens next? After a while, some innovative sort looks across from the blue area and sees some decent houses that are dirt cheap and starts buying and renovating. Then he spins them out for sale to young professional types who want the perks of a nice house, but can't afford to get anywhere near as nice a place on the "good side" of town. Likewise, displaced people from the sketchy area start moving into the bad area and it is improved because these people aren't bad, they just can't afford to live elsewhere. The map starts to look like this:

The green are the places starting to have young professional types moving in and the orange is the consequent movement of the displaced. Property values start rising. More builders catch on and start buying and renovating. More young professionals start thinking this is a good place to live. Police start seeing Biff and Madison in their weekend polos and weekday suits and start treating the neighborhood like they do a place where Biffs and Madisons live. The affect continues to spread.

Now you've made the blue and green area much larger. The sketchy area has changed to include the remnant of the yellow and the orange. The really bad area has shrunk and hopefully those leaving it have gotten scattered and lost connections and customers.

Local governments love this sort of thing. It brings them lots and lots of new taxes from an area that was a black hole for their funds before. That's why they'll listen patiently to community activists et al. complaining about gentrification and swear they'll ensure mixed communities. Then they'll sit back and collect their taxes as property values go up and drive the prior residents out.

And here is where collective efficacy (a fancy way to say informal community standards) come into play. Depressed communities may accept a lot of criminal behavior, but once the community becomes filled with young professionals that sort of thing isn't going to cut it anymore. These folks won't steal, fight for neighborhood territory, or sell drugs on the street and they won't tolerate it at any great level. Whether you are one of them or someone still hanging on from before (if you can stay as the neighborhood improves around you why wouldn't you?) you know what behavior is acceptable and you color within the lines. Stepping out of line could mean shunning by the community, but more importantly the people now in the neighborhood will call the police on you and expect a satisfactory response. The police, now dealing with Biffs and Madisons will respond more rapidly and decisively than before. And thus informal standards fall into place and become the norm.

II.  Economic Growth Model:

Sometimes there are barriers to the type of model above. The area outside of the blue might be riddled with government housing projects. The houses in the yellow and peach areas might all be ugly orange brick houses built to exactly the same design, have about the same space as a single wide trailer, and have no land around them. Community activists could actually win the fight and make it impossible for buildings to be improved and other people to move in (usually thru getting control of whatever government entity controls building permits). The yellow and orange areas could be down wind from the local paper mill. What happens then?

Well, in these circumstances property values don't increase, taxes don't increase, and outsiders don't move in. What can happen, if the situation is stabilized long enough, is that a better quality of merchants moves in.

If you've lived in one of these areas (yes, I have) you know the kind of merchants set up shop in them. They get a terrible reputation for inflating prices which have to be paid by a captive customer base and selling lots of alcohol and tobacco. There are reasonable explanations for some of this such as lack of economy of scale and/or a chain of supply (except mass purchases at Wal*Mart), but that's not what we're here for today. We're here to examine what happens when low level crime disappears  and the streets clean up.

Well, Businessman Bob may not want to live there, but he's quite willing to set up a business if he believes it will be safe and profitable. So a Winn Dixie, 7-11, Shoneys, and Food Lion move in. They provide employment. They provide a supply chain connected to a powerful economy of scale and therefore significantly lower prices. They improve the local quality of life and thus boost collective efficacy.

The depressed community improves. That improvement, combined with continued guarantee by law enforcement of clean streets free of low level offenders, can spark a set of informal rules that put people to work and lean against the commission of crimes that would cause a slide backwards.

Admittedly, I think this second model is more tenuous. Rather than changing the makeup of the community, you are trying to change the behavior of the members of a community which has already settled into an acceptance of a constant level of criminal activity. That is both more difficult and a potentially better result because it moves a group into a better life first through enforcement and later through self imposition.


In summary, I think broken windows is the opening step. It allows communities to improve by presenting an appearance and actuality of a community safer from the identifiable low level crimes that drive people away. Thus it leads to neighborhood improvement by encouraging some sort of affluence to come into the community. This builds a collective efficacy that is anti-crime in defense of the affluence.

It is also the opening step for law enforcement to start using more proactive techniques. This doesn't have to be anything as draconian as New York's former no reasonable suspicion stop and frisk program. It can be flooding this troubled area with patrols so that officers are constantly seen combined with multiple consensual encounters and the occasional constitutionally valid Terry stop. This is the more modern computer driven model of policing relying on data to determine which areas need to be flooded with officers to provide a presence to damp down trouble and catch actual troublemakers instead of casting a massive net by just stopping anybody who catches the officer's eye (and making the officers keep track of their stop numbers).

What it isn't is an immediate causal break between the commission of minor crimes and major crimes. It's a part of a process which either changes the makeup of a community so that its new members are more affluent and invested in an ordered life and, as a side effect of this, serious crime is curtailed, or it's part of a process which can bring economic benefits to those in a depressed area and over a longer period lead to a decline in serious crime. The second is a much harder process and would require longer police investment to maintain the stability for the new conditions to set in the minds of the community as the norm.


Before anyone fusses at me about the simplicity of these models, yes they are simplistic. This is a blog post not a fifty page article in The Journal of Perfect Solutions for which I've spent five years gathering data and metadata. I realize there are all sorts of variables and conditions not dealt with here. In particular there is the pushback problem.

No matter how well intentioned something like this is at its inception and no matter how bad off the community, there will always be pushback both from members of the community and from those outside the community who fancy themselves as protectors of some sort. The internal dynamics of the community are easy to understand. People in depressed communities want a safe place to live too. They want the violence to stop and the drug dealers to go away. And then you arrest cousin Joey, who's the only one living with and caring for Grandma and has three kids he needs to take care of as well. Suddenly, the fact that he was selling drugs isn't all that important and they want you to leave them alone.

Third party protectors can range from the naive and ignorant, thru those who work in the community on a daily basis and are invested in the now, to the cynical who are using the community to forward their own politics or policies. In any event, there will always be a significant pushback.

However, the fact that there is opposition to the models above doesn't mean the models aren't valid. It just means that there may not be the will to overcome those that push for the status quo. After all, if you're the chief of police or mayor isn't it easier to just isolate a bad community instead of trying to fix it? You can concentrate your patrolling efforts on the better parts of town where people expect protection and low crime rates. Nobody will be screaming at you because you're arresting too many people from one area (who are likely to share an ethnicity). It's simply easier to contain instead of trying to fix.

04 April 2019

Restorative Justice in Domestic Violence

One of the academic articles that caught my eye the other day was one about restorative justice in cases involving violence against women written by Lorenn Walker and Cheri Tarutani. Admittedly much of it seemed rather shallow - a kind of broad philosophical assertion that restorative justice would be a better system filled with direct and indirect platitudes but not much else. It was also somewhat confused in that it was primarily dealing with inter-generational violence against women and the hopes that something other then a prison sentence can save those damaged by the people who are supposed to be looking after them and protecting them as they grow up, but it also threw in stuff about violence between domestic partners. The latter is what caught my attention.

The authors don't like the mandatory arrest policies which have been adopted in large portions of the country when officers respond to a domestic violence situation and find actual evidence of the violence. In fact, they called it patriarchal.

I think this is wrong. They are correct when they state that the victims in these cases are deprived of the power of choice when mandatory arrest policies are in place, but their position ignores the fact that women get arrested under these policies as well. I don't know if "gender symmetry" actually exists (the claim that domestic violence is done at an equal rate by both sexes), but anyone who's done this kind of work has seen violence directed against males and sure as shooting has seen "bidirectional" domestic violence (both sides fighting). Male victims are deprived of the power of choice just as much as females.

Nevertheless, there is a power dynamic at work (several actually, but we're going to stick with just this one for simplicity's sake). The victim in a domestic is rarely the one who decides to charge the batterer. Nor is the victim the one who directly decides whether the charge should proceed in court. That, however, is not the end of the story. Victims have, and in an unfortunately large number of cases wield, an indirect power to decide whether a charge proceeds. They can refuse to testify, "forget" what happened when called to the stand ("I was drunk. I don't remember."), or give an alternative explanation (an amazing number of victims fall into doors). Often, and if you work in domestic courts it seems very often, the victim is 100% in the camp of the defendant.

In fact, one of my worst examples for this was a case wherein the victim was male. Two days before his wife had stabbed him in the middle of the chest with a long, sharp knife. The only reason he was alive was that she hit him smack dab in the middle of the sternum. We had the knife. She'd hit him so hard that it bent. He pushed the defense attorney for the bond hearing and testified on her behalf in it. When I spoke to him and pointed out that she'd tried and come close to killing him he responded something to the effect of "She was drunk. She didn't mean it. Besides, I need her home to take care of the kids so I can go to work."

In recognition of this sort of issue, most people who do domestic work try to do something more than mere punishment. Personally, in minor cases I try to sell the victim (who doesn't want anything to happen to the defendant) and the defendant on something along the lines of "Defendant pleads facts sufficient for conviction, but the court withholds its finding for a year. Defendant will complete an anger management course, remain drug and alcohol free, and engage in no further violent acts. If the defendant has not violated these conditions the charge will be dismissed after twelve months." It's about the best compromise available with an uncooperative victim. It puts the defendant in a situation where he/she is being monitored for a year and the great hope is that a year of enforced domestic calm is enough to at least start a change in behavior.

Would restorative justice work better? I don't know. You rarely see a down-in-the-trenches, nuts and bolts type of discussion as to how it would work. If it means some sort of couples counseling working toward better behavioral patterns, I'd love to see that. I doubt that harmful behavioral patterns exist only on one side of most dysfunctional relationships. Nevertheless, I see at least two problems with this. First, the courts can't order a victim to do anything. This might be something the courts could allow victims the ability to opt into if the defendant agrees. HOWEVER, the option would have to be closely monitored so that it doesn't just become another part of the pattern of abuse. And that is a major concern for something like this. Ask anyone who has worked in domestic courts what would happen if the victim was given - solely at the victim's discretion - the ability to opt out of the courtroom. We all know that there'd be far too many victims who would opt out every time and you'd end up with victims who had opted out five times or seven or how ever many it took before they were in the hospital or morgue.

Second, the abuser would try to game this just about every time. He/she would pressure the victim to opt into it and put as little in as possible. It's just another way to avoid jail time. This, of course, is one of the greatest blindspots most proponents of restorative justice seem to have. They assume the defendant will act in good faith and be interested in change. Some few will; the rest will range from tepid participation to downright hostility once they've escaped the possibility of punishment by the courts. I'd expect a lot of dropouts.

What would I like to see? Well, I'd love to change the deal I end up making to something like this:  "Defendant pleads facts sufficient for conviction, but the court withholds its finding for a year. Defendant and Victim shall participate in joint counseling once a week for six months and twice a month for the subsequent six months. Defendant will complete an anger management course, remain drug and alcohol free, and engage in no further violent acts. If the defendant has not violated these conditions the charge will be dismissed after twelve months."

I'd love to do that and think it would have the best real-world shot at success. After all, if we can pay for X number of counseling sessions for something like drug court why can't we pay for the same in an attempt for domestic rehabilitation?1 It would be a powerful tool in trying to fix people rather than just telling them what is wrong/illegal, trusting them as individuals to exercise free will and moral judgment, and punishing them when they do what society has told them is unacceptable.


1 Yes, I know the answer is finite resources, but this is a la-la land wish for a world where the assumption of infinite resources, so often found in "what we should be doing" academic articles and news stories, is true.

01 April 2019

Car Cereal State

It's been a while since I checked in with our academic friends over at SSRN, so I thought I'd go see what's going on. In order to narrow parameters, I searched for "prosecution." It was pretty much what you'd predict. As I went through the latest hundred articles, the vast majority of were generally dismissable out of hand as they dealt with topics that were useless for Americans such as anything having to do with the International Criminal Court or things like comparative criminal rehabilitation movements in Mauritania and Mali.

I was left with twelve articles and nine of those were anti-prosecution. Some were in the form of academics rubbing there hands together as they cackled over their paper proclaiming "This is the way we can make prosecutors do what we want forever! Bwahahahaha!" Others were simply "You can beat the prosecutors this way" or the ever popular "If we all get together and sing Kumbaya all the troubles will go away." Of the other three, one was a basically neutral argument about how forensic evidence could be presented better. The two left were prosecution friendly, but not exactly glowing endorsements; instead they were nuts and bolts explanations of evidentiary procedures that could benefit prosecutors. Like I said before, there was nothing that you wouldn't expect from the wasteland of academic papers.

However, I did learn something entirely new. Did you know that, according to several of the articles, we live in a car cereal state? I didn't. I guess I should have seen it. I mean, there have been indications:

Oh, wait that wasn't "car cereal state" it was "carceral state?" What the heck does that mean?

I know what it means! It means that academics are playing the game of Importance by Obfuscation. They're taking an idea which could be explained in an easily understood way and using an obscure, seldom used word to make themselves sound more important. After all, if the term "carceral state" isn't in common usage and people are either unsure as to its meaning or don't understand it at all then the fact that you understand this deep, meaningful phrase gives you a sort of gnosis that you can use to show that your knowledge - and thus your solution - is superior on this topic.

At least, that is, until everybody figures out that "carceral state" boils down to "country with a high level of incarceration." The next step in the game is for you to point out that your definition of "carceral state" is muuuuch more nuanced than that, but then you will have to explain that you mean "a society in which a high level of incarceration is both culturally and economically intertwined to the point that it has become entrenched." You will excuse your use of the term "carceral state" by calling it a term of art, a necessary shorthand among experts in this subject.

Of course, the real reason for the use is still to play Importance by Obfuscation. After all, if you wanted the term to be easily understood you could have called it "incarceration state" or even more simply "imprisonment state." You didn't.

29 March 2019

And So the Pendulum Swings

A few days ago I happened upon this article about how the District Attorney for King County, New York is softening criminal punishment in his county.  I've never read anything by City Journal before, but my reaction was something along the lines of they're just noticing this now? It's not new. For years now the pendulum has been swinging away from enforcing the law through incarceration to protect citizens and into fixing the defendants or de-escalating enforcement. The City Journal calls this a race to the bottom. I think it's a combination of (first and foremost) complacency of the general population, economic factors, and attempts to make things better within practical boundaries. Will it work? We don't know and long term affects of this kind of trend never occur overnight so we are unlikely to know for a couple decades.

Those of us who are old enough remember when the big cities were perceived as crime-ridden urban wastelands (yes I know some few still are). In popular culture this was reflected in the seventies through shoot-'em-all, lone hero dramas like the Dirty Harry and Death Wish movie franchises and the blaxploitation films showing a crime ridden world (strangely, blaxploitation males tended to be more a part of that world while blaxploitation women tended to fight against it: Cleopatra Jones, Foxy Brown, Coffy). In the eighties there was outright despair reflected in Fort Apache, The Bronx and a more day to day bleakness shown in the series Hill Street Blues. All the while news casts were constantly hitting us over the heads with real news about crime and murder rates. The world was not a good place and the general population was upset, scared, and worried to the point that it wanted something done.

Then came proactive policing. Police departments, beginning with the NYPD, started enforcing "broken windows" policies and that became a doorway through which much more robust enforcement entered. And it was effective:

Found here
Found here
Notice the very significant drops in crime rates and murders throughout the 90's after proactive policing began.

Of course, there was a lot of screaming about this from various civil rights and interest groups. The academics also hated it. I can't remember how many times I heard or saw the mantra "correlation does not equal causation" which is true as far as it goes. However, when correlation occurs many, many times in many, many places the mantra starts to ring hollow.

[Side Story] I was at college and a visiting lecturer was giving a lecture "debunking" broken windows He first pointed out the drop in crime rates and then uttered the "correlation does not mean causation" truism. Finally, he offered his explanation for the drop in crime rates which was that young males were the primary offenders and they were aging out so that they weren't violating the law.

I was sitting with a bunch of my (young male) fraternity brothers listening to this lecture and we start looking at each other confused/bemused. We're all thinking the same thing and finally the guy sitting two down from me stage whispers to us all, "Um, I get that males get older, but don't we tend to make new ones every year to replace them?"[/Side Story]

Of course, proactive policing always had the potential to cross over into unconstitutional behavior and it did more than once. After all unconstitutional behavior can be good policy if the aim of the policy is to keep the peace. For instance, it's clearly unconstitutional for officers to stop and frisk a group of young men just because they are a group of young men in an area with a gang presence or a higher crime rate. However, if members of the 8th Street Knife Killers Gang know they are going to get frisked every couple days and go to jail if they carry firearms, they tend to not carry them as much. It might have limited effect at stopping premeditated, well-planned crimes, but it tends to cut down on impulse crimes; it's hard to shoot a guy from another gang who is taking his grandmother to her doctor on disputed turf when you don't have a gun. Nevertheless, no matter how good that policy argument is it doesn't render the frisk constitutional.

Not that it mattered. The voting public wanted. something. done. NOW! They did not care about the niceties of constitutional law. They wanted a safer world and safer lives. And they got it. Police got proactive, legislatures passed tougher laws, and courts sometimes bent themselves into pretzels to find most of it constitutional. Et voilà crime rates dropped.

Things quieted. Despite the best efforts of the 24 hour news channels, it slowly sank into the hindbrains of the voting public that things had gotten safer. The voting class started moving back into cities (remember the squawking about gentrification?). They started feeling comfortable and safe. They started to assume that things have always been and will always be as safe as they currently are. They lost the fear and settled into their lives - assuming the protection of police as normal and losing interest.

Of course, things never actually quiet down. When one segment, albeit a large one, settles down others fill the void with their voices. Remember those civil rights groups, interest groups, and academics mentioned above? They never went away and their voices started to sound a lot louder once the general public settled into satisfied, protected complacency.

At first these voices weren't treated much better than they were before, but they persisted and eventually the general population - satisfied from its perception of continued safety - began to take note and agree. The civil rights groups gained purchase first as they always had the most cogent argument; as noted above proactive policing tends to move into techniques which are effective, but not always constitutional. More important to the politicians writing and enforcing laws, the interest groups started to push for things to be done to decrease enforcement because enforcement impacted their kith and kin. Of course, the academics provided rationales for most all of this. As always when this sort of thing occurs the messages which came out are mixed: "Leave us alone", "Leave them alone", "Work with the community", "Fix them don't just throw them away", etc. 

These were the desired (and somewhat contradictory) results. However, agitation for them wouldn't carry the day alone. What finally carried the day were the magical words that every person running a county, city, town, or State loves to hear: "We can save you money."

Scratch the surface of a rehabilitation program and you will find underneath a claim that it will cost less money than incarceration. Will it? That's often hard to actually prove one way or the other. Still, the combination of "We can save you money" combined with the moral grounding of "We can fix" greased the pivot and the pendulum, having been pushed as high as it could on the "protect the citizens" & "punish the offender" side started sliding back down toward "fix them" and nonactive policing.

As the pendulum picked up momentum the "We can save you money" argument became less and less a factor and less incarceration, less supervision, less police enforcement became considered good unto themselves. And so follow those who rely on votes to keep their jobs. After all, that's why we set up our democratic republic. Those people who hold office, but don't follow the will of the people are supposed to lose their offices eventually. And so, it's not surprising that even prosecutors start sounding like public defenders after a while.

How long will this trend last? Unknown. These things tend to go in cycles that are decades long. On the other hand, in the modern interconnected world people gain knowledge of problems much quicker than they did when they were relying on things to catch the eye of national news monopolies all based in NYC. Want to see the downtowns of cities on the West Coast be taken over by mobs while the police stand by and do nothing? Want to see stories about how San Francisco's homeless population has grown so huge and undisturbed that its waste is making the city unliveable? Want to see the urban wasteland that is Detroit? How about stories that Chicago is headed down the same hole? You can easily find all of them on the Internet. How much weight or truth you choose to assign them may be a different matter, but they are easily found.  

Nevertheless, the momentum of the moment remains firmly in the direction away from "protect the citizens" and "punish the offender." It is likely to remain so for some time.

23 March 2019

Restitution for Traffic Crimes in Virginia

Virginia's § 15.2-1716: Reimbursement of expenses incurred in responding to DUI and related incidents is broader than its title states in that it applies to more traffic violations than DUI, but the title does give a general sense as to its purpose. It allows localities to be reimbursed when there is an emergency or when a summons or warrant is given pursuant to certain listed statutes.

To understand all this this, you must first understand that Virginia is a strong Dillon Rule state. In other words, a locality (town, city, or county) cannot pass an ordinance unless it is specifically authorized to do so by the Virginia General Assembly. § 15.2-1716 is a statute authorizing localities to pass a specific ordinance with two potential parts. It started as authorizing only the first part. In 1994, the General Assembly passed into being the predecessor of the current statute, § 15.1-132.1. This statute was clearly meant to limit restitution to when a DUI (or watercraft equivalent) was "the proximate cause of any accident or incident resulting in an appropriate emergency response."

Since its enactment, this statute has been the subject of many minor adjustments, two major changes, and one attorney general opinion. In 2003, the first major change came in the form of a reorganization of the statute as well as the addition of a number of new convictions which were subject to it. However, it clearly remained only an authorization of the first part: "when providing an appropriate emergency response to any accident or incident."

Apparently, some localities started using this as a way to get restitution for normal incidents such as traffic stops for the listed offenses when they resulted in convictions. This was contrary to to, or at the very least a strained reading of, the requirement of an "emergency response." This led to Attorney General Opinion 04-054. Despite a problematic inability of whoever wrote this for the attorney general to know the difference between the stand alone noun "incident" (occurrence/happening) and "incident to" / "incident of" (accompanying concomitant event - most commonly seen as incidental), the opinion is correct when it states that (a) the statute as it then existed required an emergency not just a routine traffic stop/arrest, and (b) not all parts of it allowed restitution to law enforcement (as opposed to EMTs, fire, and rescue).

And yet, it appears that the problem remained. Localities kept trying to get restitution thru ordinances permitted by this statute and the claim that all law enforcement stops pursuant to the listed statutes are emergencies unto themselves without the additional requirement of a wreck or injuries. After all, an attorney general's opinion is just that - an opinion. He's neither an appellate judge nor a legislator and those are the people who are charged with making and defining law. People tend to assign great weight to AG opinions they agree with and discount the one's they disfavor. And it is at least arguable that every DUI is an emergency situation, because of the danger an incapacitated person behind the wheel of a two ton vehicle poses to us all.

In 2009, Delegate Iaquinto (now Judge Iaquinto, GDC Va. Beach) introduced a bill (HB2532) in an attempt to resolve this issue once and for all time. His specific purpose for introducing this bill was
Specifies that a locality that has passed an enabling ordinance is entitled to restitution from a person convicted of certain DUI offenses as compensation for law-enforcement response regardless of whether an accident occurs.
His amendments would have allowed law enforcement restitution through an entirely separate ordinance, but limited it to only violations of the statutes in the first enumerated provision of § 15.2-1716 (the various DUI statutes). His amendment was separated out to be easily understood, would have led to a separate easy to understand ordinance, and had commonsense constraints on its application. Then it went into the sausage mill that is the General Assembly.

By the time the sausage had been made (the bill passed), the amendment had been moved from its separate section to become the second sentence of subsection A where it was bound to cause confusion. The language was also changed so that it didn't authorize a separate ordinance but only allowed a new provision to be added to the same ordinance leaving room for more confusion. As well, it now no longer applied to only the DUI convictions of the first enumerated provision; it applied to all the enumerated provisions (1: DUI / 2: Reckless Driving / 3: Driving Unlicensed / 4: Hit and Run). Finally, in subsection B it added "arrest" as a third condition triggering no more than $1,000 in restitution (between accident and incident).

So now § 15.2-1716 looks like this. The first sentence in subsection A is still limited to emergencies. The only thing tying it to the second sentence is that they both relate to the enumerated provisions, both relate to subsection B, and the second sentence's requirement that although different provisions both must be included in the same ordinance: "The ordinance may further provide . . ."

What the ordinance may provide (as applicable to law enforcement) is that
a person convicted of violating any of the following provisions shall . . . be liable to the locality . . . for restitution of reasonable expenses incurred by the locality when issuing any related arrest warrant or summons
So, the plain language of the second sentence has it allowing restitution for issuing any warrants or summons related to the conviction (assuming the conviction is one in the enumerated section). When subsection B limits restitution to arrests, please remember that a summons is an arrest and release by the officer. So, the statute as it stands generally accomplishes what Judge né Delegate Iaquinto intended, except it's not as clear as his version and it doesn't have the limitations he proposed. 


A brief moment on "incident." I tried to leave it alone. I really did. I generally think the AG opinion was correct as it stood in relation to the statute at that time. I also know that in writing things down it's almost impossible to get everything right (I might have made a couple errors in the 16 years this blawg has been going - maybe even three if you look hard enough). However, this one just got under my skin.

An incident is a happening or occurrence. A happening or occurrence is an incident. A=B. B=A. It's about the broadest term a statute could use to indicate activity. Claiming the word "incident denotes a subordinate occurrence" is incorrect without further modification added to "incident." For instance, if the statute said "accident or incident thereof" or "incidents or the accident they proceed from", or "accident and its incidents" we would all know that the incidents referred to were subsets of the set of the accident. This is not how the the statute is written. "Accident or incident" denotes two different things that are not subsets of the other and are not the same. We are not writing in the old legal language of England where the use of doublets was necessary because of the possibility that the reader might not understand either Anglo-Saxon or French.

In fact, we are told over and over again by our appellate courts that each and every word the General Assembly writes has a meaning. 
A court will not interpret a statute in such a way that it renders other statutory language superfluous. Rather, we must assume the legislature chose, with care, the words it used when it enacted the relevant statute. Because we assume the legislature carefully chose the words used in the statute, it is our duty to give reasonable effect to every word.   Coffman v. Commonwealth, 67 Va. App. 163 (2017).
When the General Assembly uses two different terms in the same act, those terms are presumed to have distinct and different meanings. I.D.A. v. Montgomery County, 263 Va. 349 (2002). 
 And, of course, I'm sure we've all had drilled into our heads that the only people who can add language to a statute are the members of the General Assembly.  See Holsapple v. Commonwealth, 266 Va. 593 (2003) (The appellant asks "this Court to add language to the statute the General Assembly has not seen fit to include, an exercise in which the Court is not free to engage.") & Burlile v. Commonwealth, 261 Va. 501 (2001) ("Courts are not permitted to add language to a statute nor are they permitted to accomplish the same result by judicial interpretation").

Incident is an extremely broad word indicating just about any action. Thus, contrary to the AG's opinion, YES a traffic stop pursuant reasonable articulable suspicion, which develops into probable cause, which leads to an arrest on a warrant or an arrest and release with a summons IS AN INCIDENT. The limiting part of the statute prior to the Iaquinto amendments was the language requiring an "appropriate emergency response", not the word incident.

Furthermore, this is the most commonsense reading of the word incident as it pertains to the statute. We know what an accident is. What else similar could happen on the road that qualifies as an incident? Presenting reasonable articulable suspicion leading to a traffic stop and interaction with an officer, leading to probable cause, and concluding with a warrant or a summons is the most likely thing other than an accident that would occur on a road involving the listed violations, the defendant, and a police officer. This is what you get when you actually do a noscitur a sociis analysis rather than merely quoting the phrase and saying it supports your conclusion.

~~~ fini ~~~~

21 March 2019

Sentencing the Virginia Way

Green v. Commonwealth, 69 Va.App. 99 (2018) is causing a bit of a stir around where I practice, so I thought I'd try to explain the actual nuts and bolts of a judicial sentence in Virginia.


Suspended Execution: This is the amount of time that a judge hangs over a defendant's head, but does not make her serve immediately. For example: "I sentence you to five years in prison, but I suspend two of those years." Only three years are actually set to be immediately served. The other two are suspended.

Period of Suspension: This is the amount of time during which the suspended time is held in abeyance and can be imposed. Typically, you would hear this said in a manner such as "I sentence you to five years in prison, but I suspend two of those years. Your suspended time is suspended for five years."

Probation: Supervision by the probation office of a person during some portion of her length of suspension. So, a complete sentence could be "I sentence you to five years in prison, but I suspend two of those years. Your suspended time is suspended for five years and I place you on probation for three years."

[NOTE]  It is unfortunate and confusing that Virginia law and courts use "suspend" to mean two different things. It would be far better if it was "suspended execution" and "period of abeyance." Unfortunately, it's not and this leads to an almost constant state of confusion for defendants and a lot of attorneys.
In Green, the primary ruling is that the period of suspension runs from the moment of sentencing and is not and cannot be tolled while the defendant is incarcerated (all interpreting Va Code 19.2-306). Thus, a situation like the one in the chart above occurred.

Per the example in the chart you can see the actual sentence in the top left corner. The judge sentenced the defendant to five years and suspended execution of two years. Then, on the right, the judge stated that the period of suspension was five years (yellow). This starts on the day of sentencing. 

The bar on the far right shows what actually happened to the defendant. The black part of the bar is the three year period in prison. What's above the black bar happened after the defendant got out of prison. For two years, the defendant has valid probation; you'll note that the yellow bar to the left goes to the same height as the orange part of the bar on the right. 

THEN, the yellow bar stops and the bar on the right is red. This is because probation cannot exist (at least not legally) after period of suspension has run out. The supervision itself is not allowed per the Green case and if a defendant does something which would trigger a probation violation there is no longer any time from the suspended execution in existence.

IMPORTANT LESSON OF THE CASE: If the judge has not stated there is a period of suspension and he states there is a period of probation then the probation does not legally exist. 

19 March 2019

Everybody Gets Killed in Oxford

Lately, I've been watching British crime dramas. I started watching Inspector Lewis. Then I watched Endeavor. Lately, I've been watching the series that gave birth to both of these spin-offs: Inspector Morse. In the watching, I've started to develop strange habits of speech and writing which leave 'Muricans bewildered at times. However, more importantly I have learned several interesting and potentially important things.

1) Most importantly, never, ever, ever, not on a bet, neither for money nor fortune, ever go to Oxford. As best I can extrapolate from the data provided by these shows, Oxford has a murder rate that would shock residents of Chicago. Professors kill professors, students kill students, professors kill students, students kill professors, and on the odd occasion a professor or student kills someone from the town because the guy was bringing down the local cricket side. It's a bloodbath. And the school must do an amazing job of covering it up, because every time the people involved act like they're shocked that a thing like this would ever happen in their academic community. So, if you go there you will get kilt and no one will ever find out about it.

2)  Caution: Of course, the British don't talk about "Miranda warnings." However, they have developed their own version which is somewhat like looking through a window to see how it could have turned out in these United States. The British call it "questioning under caution" and the statement given is: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." They also seem to have to inform the person they can have an attorney during questioning, but there doesn't seem to be a set format for that.

3) At the Station / taping: In the U.S. there is a strong preference under the case law to not bring a person to the police station because it is coercive. The British take the opposite approach. Questioning must take place at the station outside of extraordinary circumstances and the officer must put a tape in the recording machine which is present and start it all in the presence of the suspect. While they may have switched over to digital by now, I'd bet good money that institutional inertia probably made British police departments the last major customer for cassette tape manufacturers in the world.

4) Stopping the Interview: In the US, the interview stops with the magic words "I want an attorney" or if the attorney is already present with the attorney shutting down the questioning. Apparently, the presence of a lawyer doesn't give the attorney the right to shut down the interrogation - instead only giving him the power to advise. At least two shows I watched had the suspects sitting in the chair with their attorney at the table being recorded as the officer asked question father question while the hardened criminal types being questioned say time after time after time "no comment."

5) And finally (at least for today), ranks. In the U.S. while you might see wildly varying insignia and uniforms (every police and sheriff's department wants to be unique), but the ranks are almost always modeled on the military: officer, corporal, sergeant, lieutenant, captain, etc. The British have gone their own way.  They have constables, sergeants, inspectors, chief inspectors, superintendent, chief superintendent, assistant chief constable, and chief constable. Yes, before anyone points it out, I know there are variants depending on locality (there always are). Also, at least according to the Inspector Morse series, if you are a Detective Inspector you get assigned a sergeant whose main job appears to be relegation to peonage (or perhaps drudgery since debt does not seem to be involved or, as Webster is happy to tell me the British say "being a dogsbody"). Sergeant Lewis spends most of the series getting yelled at and abused by DI Morse and mainly just rolls his eyes and keeps doing what he's doing. Going back to the ranks - I actually wish we had adopted something more like the British system. I know we've professionalized police forces et al., but it would be nice to have more separating the guys out there patrolling our streets from the trappings of militarism.

Anyway, these are the biggest differences I've noticed. And since we all know that television shows are extremely accurate in their portrayal of policing I'm sure they're 100% correct. Just remember, DON'T EVER GO TO OXFORD.

12 March 2019

Succubustic? The Harrowing Affects of BigWorditis

"The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners."

Per the ABA, that's a direct quote from a petition for appeal. The ABA article, and apparently the California appellate court, concentrate on this as gender bias. I'm not so sure. That looks a lot like someone who was angry and suffering from BigWorditis.

BigWorditis is a terrible disease that inflicts one in five attorneys, one in three politicians, one in one doctors, and three in one professors in                 Studies. It is the use of large words to make one's self and one's writing look more impressive. Symptoms include using the word "one" instead of "you" in a sentence such as "It is the use of large words to make one's self and one's writing look more impressive", using large aggregate words which do not make any sense in context, and using words you seem to not understand the meaning of because they sound good and approximately correct.

As I look at the sentence above, the author clearly has two of the three symptoms. "Pseudohermaphroditic misconduct" translates misconduct of a type that is related to a person apparently, but not really, possessing both male and female genitalia. Unless the author read a study I missed (always possible), I'm not sure there is a scientifically noted or even a biased stereotypical behavior particularly associated with hermaphrodites or their pseudos - much less a particularized misconduct. This sentence fragment probably falls under both of the last two symptoms.

"Succubistic adoption" leaves one to wonder if perhaps the term aimed for was "sycophantic adoption." The two words have the same amount of syllables and hit many of the same consonant notes above the vowel downbeats. And sycophantic makes sense in context. It ain't gonna make any judge happier with you, but it does make linguistic sense. I diagnose this sentence fragment as falling into symptom three.

What's the cure for BigWorditis? First of all, instead of the sensitivity training the Bar is likely to require this attorney to sleep through er . . . I mean attend, make the attorney complete one year of eighth grade English. This is should allow his language to progress to the level of simple clarity. If you are writing anything that an eighth grader couldn't comprehend then there should be some very specific reason for it. Driving that lesson home is the only known cure for this disease. Unfortunately, this outbreak has spread so far that I fear that we shan't find medicaments correspondent to the necessity.

06 March 2019

Stopping the Withdrawal of a Guilty Plea

Over the last several years the Virginia Courts Appellate have been dealing with a phenomenon under Virginia law wherein the defendant can plead guilty and then later attempt to withdraw her plea. This is all possible because of Virginia Code § 19.2-296:
A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manifest injustice, the court within twenty-one days after entry of a final order may set aside the judgment of conviction and permit the defendant to withdraw his plea.
The problem is that the first sentence sets no standard for the withdrawal of a guilty plea before a sentence is imposed. As you might suppose, this has led to all sorts of gamesmanship. The day of trial arrives and the defendant sees that the two witnesses from Tucson have flown in and are ready to testify against him. Therefore, he pleads guilty. A month later, well before his sentencing hearing he files a motion to withdraw his guilty plea knowing that it will be nearly impossible for the witnesses to be able to make that trip again. Or he learns that a witness moved to Tampa Bay and files the motion. or . . . or . . . or . . . 

Actually, the thing that tends to trigger most of the motions to withdraw a guilty plea seems to be when they get their presentence report and realize how stiff a sentence they are facing. No matter how brutally honest their defense attorney was with them the defendants seem to have unrealistic hopes until they see the numbers actually printed on an official piece of paper. Then they want to go back and try their luck with a jury all of the sudden.

Lacking a standard from the statute, the appellate courts have had to develop their own and it looks a little something like this (portion of a brief I wrote recently):

The Virginian appellate courts have given extensive treatment to the withdrawal of guilty pleas in the last several years. Bottoms v. Commonwealth, 281 Va. 23 (2011), Williams v. Commonwealth, 59 Va.App. 238 (2011), Booker v. Commonwealth, 61 Va.App. 323 (2012), Pritchett v. Commonwealth, 61 Va. App. 777 (2013), Ramsey v. Commonwealth, 65 Va. App. 593 (2015), Small v. Commonwealth, 292 Va. 292 (2016), & Spencer v. Commonwealth, 68 Va. App. 183 (2017). From these cases, the appellate courts have given us thorough guidance regarding the withdrawal of guilty pleas:

(A) The probability of a greater sentence than the defendant anticipated is not an appropriate ground for a guilty plea to be withdrawn. Williams, Pritchett, & Ramsey.

(B) Prejudice to the Commonwealth must be considered in determining whether to grant a motion to withdraw a guilty plea. Small, Spencer, & Booker.

(C) The defendant must offer a defense that if presented to a jury would be substantive and reasonable not dilatory or formal or he must show duress, coercion, or undue influence. Williams.

(1) This defense must be shown by testimony or affidavit; a mere assertion is not adequate. Id. & Spencer.

(2) Any duress alleged must be greater than that in a normal criminal prosecution. Booker.

(3) Defenses which are not merely dilatory or formal include (a) self-defense, (b) alibi, (c) insanity, or a (d) defense based on a proffer of specific evidence that, if accepted by the fact finder, would defeat the prosecution’s case. Booker.

(4) Defenses which have been rejected:

(a) Challenge to victim or witness’ credibility. Williams & Ramsey.

(b) Claim that prosecution must prove its case. Booker.

(c) Evidence is circumstantial. Id.

(d) Duress normal to a criminal trial. Id.

(e) Fact that a juror might find for the defendant. Id.


Most defendants want to argue the rejected defense in (C)(4) and I think the majority I have faced fall under (a) thru (c). I've only seen one of these motions succeed and that was because the prosecution was agreeable to the withdrawal ("Sure we'll let you withdraw your guilty plea on felony snipe hunting for which we have video of you in the act and a confession in your own handwriting. When do you want your jury trial and jury sentencing?").  Still, they continue to roll in.