Hip Hop Justice

By: A. Scott Washington, J.D.

By now we all know the facts of the Casey Anthony case. Caylee goes missing. Casey fails to report Caylee missing, lies to her family about the child’s whereabouts, and behaves deviously throughout the police investigation and public campaign to find Caylee. We’ve seen photographs of the young single mother partying hard while her toddler daughter is missing. She is photographed during the duration of little Caylee’s disappearance drinking, partying and committing petty crimes. Caylee’s remains are found months later dumped just blocks from the Anthony home.

Guilty of first degree capital murder? According to the Prosecution … but no one else.

An Orange County Florida jury acquitted Casey Anthony of the capital murder of her three-year- old daughter Caylee. Prosecutors alleged that Anthony deliberately, and with premeditation ended the life of Caylee. In a capital murder case, the prosecutor must establish every element of murder plus properly weigh the aggravating factors present in the case.

Prosecutors in jurisdictions across the country routinely overcharge criminal suspects in their zeal for the almighty “W.” Casey Anthony charged with first degree capital murder is a prime example of these practices. It has been three years since charges were filed against Anthony. I have watched and listened to the pundits; closely monitored the trial; debated the issues with college students; and replayed the facts as they have been presented dozens of times. I have yet to hear or see any evidence that would remotely suggest that Anthony specifically intended, with premeditation, to end the life of little Caylee.

Florida defines murder as the unlawful killing of a human being “when perpetrated from a premeditated design.” When a prosecutor makes the charge that one is responsible for the death of another, the discussion turns to the level of the criminal intent (or culpability) of the accused. A murder charge, as opposed to some lesser homicide offense (which should have been more vigorously argued here) requires the presence of a premeditated design. In other words, the accused must have the specific intent to kill. Where specific intent to kill is not present, second degree murder or manslaughter is usually charged.

The win at all cost approach in this case led to a disregard for the facts of the case (i.e., the totality of the circumstances specific to this particular case), and ultimately the pursuit for truth and justice. The case of Florida vs. Casey Anthony is not and has never been a death penalty case. Was this a case of child neglect or abuse? Maybe. Was it negligent or reckless homicide? Probably. It is clear to me that the States Attorney’s office was seeking more than truth and justice when filing its case against Anthony. It was seeking the “W” at the highest level possible; a death sentence.In this case, the prosecutors approached twelve reasonable jurors with an unreasonable request; send an attractive white female to death row to await lethal injection on the basis of an ill- conceived theory of the case, shoddy circumstantial evidence, and junk science.

The State’s Attorney here simply overcharged Anthony and offended the jury. Once offended, the jury rejected any

theory of the case the prosecutor put forward. Thus, it disregarded the evidence and science that would have supported a lower level homicide conviction.

Juries typically do not want to send a person to their death. By focusing so much on the “W” at the highest level, and failing to present the strongest possible case for a lower level homicide conviction, the prosecution in this case failed.

The laws that Anthony potentially violated in this case in terms of the death of Caylee are:

Florida Murder Statute 782.04(2), which states:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although WITHOUT any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony … emphasis added

or

Florida Murder Statute 782.07(3), which states:

A person who causes the death of any person under the age of 18 by culpable negligence under the Florida child abuse statute commits aggravated manslaughter of a child, a felony…

According to the Florida Department of Corrections’ website, the average sentence for a conviction of one of the aforementioned Florida statutes (non-capital murder statutes) is nineteen years. We now await the sentencing and release of Casey Anthony. It is likely that she will be credited with time served for the misdemeanor conviction for lying to law enforcement and released.

The prosecution in this case had several options in terms of charging Anthony. By overcharging Anthony and overzealously pursuing a specific intent premeditated capital murder case (the elements of which could not be established), the prosecution not only abused its discretion, but offended the jury; thus, breaching its duty to the criminal justice system, the people of Florida, and most importantly, little Caylee Anthony.

A. Scott Washington, J.D. is an Assistant Professor of Criminal and Social Justice at the University of St. Francis in Joliet, Illinois

By A. Scott Washington, J.D., 

Beginning in the late 1970s and continuing throughout the next two decades, the United States’ reaction to escalating crime rates was to enact policy that was designed to be tough on crime.   As a result of these policies, we have seen a dramatic and unprecedented increase in the prison population in this country.  The fiscal impact of the American experiment in mass incarceration has been high as well.  In fact, over the past several decades the direct expenditures by federal, state, and local government on corrections increased from around $10 billion to $50 billion, an increase of over 440%.               

The collateral costs of mass incarceration have been staggering on local communities as well.  The tough on crime approach to criminal justice and its collateral consequences have a tremendous impact on the urban centers of this country. Counties, Cities, Townships and other municipalities incur a variety of collateral costs when a defendant is convicted and incarcerated.  These expenditures include the support and health care of dependents of prisoners, and lost tax revenues from income that would have been earned or expenditures that would have been made by an incarcerated person.  Most importantly, families and communities suffer various tangible and intangible harms from the absence of the incarcerated person.  These include emotional, economic, and developmental damage to the children of incarcerated persons. 

The age-old issues of crime and punishment have taken on a new importance in recent years.  In a monograph on the subject published by The Urban Institute it is reported that: “More prisoners are returning home, having spent longer terms behind bars, less prepared for life on the outside, with less assistance in their reintegration.  Often they will have difficulties reconnecting with jobs, housing, and perhaps their families when they return, and will remain beset by homelessness, substance abuse and health problems”.  Many of these challenges are imposed by the state.”

Collateral sanctions are an example of these collateral costs that impact communities.  The owner of a Columbus (Ohio) area Day Care provider (Cosby Kids Playhouse), Lorrie A. Cosby had her Title 20 child care certification revoked due to a 20-year-old felony conviction.  Cosby, who was convicted of forgery some twenty-one years ago has lost her business and is now unemployed pursuant to House Bill 11, a 2003 Ohio law that provides for the revocation of Cosby’s Title 20 Certification. Cosby Kids Playhouse had been a landmark in the Columbus area serving children of low income and working class parents for eleven years.  Cosby Kids Playhouse had an excellent regulatory compliance record.  Immediately following her conviction, some twenty years ago, Cosby began the rehabilitation process and has been a outstanding citizen and business person predominantly serving the less fortunate in the Columbus area.

In Ohio, there are nearly four hundred -Collateral Sanctions and Discretionary Disqualifications- in its Revised Code and/or Administrative Code.  A collateral sanction is defined as -any “legal penalty, disability, or disadvantage, however denominated, that is imposed on a person automatically upon that persons’ conviction for a felony, misdemeanor or other offense, even if it is not included in the sentencing judge’s order”. Collateral sanctions do not include punishments that occur as part of a criminal conviction.  For example, some convictions require the person convicted to turn over a driver’s license immediately to the sentencing judge as part of the sentence.  “This is NOT a collateral sanction because this is part of the sentence.  However, under Ohio Revised Code 4709.13(A)(1) -the barber board may refuse to issue or renew or may suspend or revoke or impose conditions upon any license issued pursuant to this chapter for a conviction of a felony shown by a certified copy of the record of the court of conviction”.  This is a collateral sanction.

Clearly there are collateral sanctions that are appropriate and necessary.  A prohibition preventing a known drug addict from working in a pharmacy makes sense.  However, an examination of the nearly four-hundred collateral sanctions embedded in Ohio law reveal, as in Cosby’s case, that most collateral sanctions or discretionary disqualifications have no nexus to crime that was committed.

Communities that are plagued by crime, and more importantly, violent crime are, without exception, communities with the highest conviction rates of its citizens.  The cost of crime and the criminal justice process is often devastating for local economies.  Flight of businesses, residents, and entire industries from high crime areas have left communities within the urban centers of Ohio scrambling for ways to grow the economy because of the loss of commerce and jobs.

Criminal justice policy must be enacted that presents strategies for addressing social dysfunction without creating nearly insurmountable legal barriers to the successful reintegration into our society for those who have made mistakes or used poor judgment in their past. It is imperative that our children have families that are able to provide for them.  Parents that are able to provide for their children are the anchor of the family and by extension the community.  Simply put, anchored families equate to strong community.  Enough of tough on crime, we must be SMART ON CRIME.

By:  A. Scott Washington, J.D.

A factor that cannot be ignored when discussing urban violence is over reliance on incarceration in this country. To ignore the causal connection between contemporary criminal justice policy and the rise in youthful urban violence is turning a blind-eye to factors that are rotting the foundation of contemporary urban society.

There are nearly 2.4 million persons incarcerated in state or federal prisons in this country.  Half of those persons are African Americans.  Obviously, identifiable behavior patterns are associated with African Americans being disproportionately incarcerated. On the other hand, the intersection of public policy and poverty has collided with the forces of history, race, economic theory and human vulnerability to create a social pathology like none seen before in this country.  As a result, “prison culture” is now firmly embedded in inner city America.

Following 35 years of tough on crime policy, the affect of generational incarceration and recidivism has created an environment ripe for this new subculture within the inner city. This subculture is fueled by the extremely violent and brutal customs and values that were born within the concrete walls of this country’s correctional institutions.

Prison culture, which is now abundantly present in the inner city, is directly connected to the extreme and pervasive violence we are experiencing in the African American community.  These conditions grow exponentially, parallel to the prison population in this country. This phenomenon is cyclical and, as the statistics suggest, actually increase violent criminal activity in both the inner city and suburban communities. Therefore, community safety is significantly compromised by the tough on crime mentality associated with contemporary criminal justice policy; particularly, this country’s drug control efforts that have become the fundamental premise of our national crime policy.

Our children have become the collateral damage of contemporary American criminal justice policy. For many inner city residents and African American children in particular, criminal justice policy and poverty have contributed to a blurring of cultural, as well as social values. During the welfare reform era we spoke about children raising children. What prison culture has resulted in today is children raising themselves. A significant proportion of our inner city youth today are the children of prisoners that inhabit this nation’s prisons. When these children reach adolescence they are typically raising themselves in the bowels of contemporary urban America. 

What criminal justice policy and poverty have perpetuated in this country is the social disenfranchisement of African American children. The forces of public policy, poverty, and human vulnerability have conspired to create this new and peculiar universe within the inner city. The apparent evolving nature of this new inner city subculture and its intersection with poverty and social pathology has created an environment ripe for youthful urban violence to flourish. 

The questions that must be raised here are: 1) what are we going to do with the massive numbers of unskilled, undereducated, and often, recalcitrant felons that will be returning to our communities over the next several decades (98% of the 2.4 million prisoners in this country will be released)? 2) When will policy be implemented to deal with the flaws and inadequacies in current drug control policy? 3) When are our lawmakers going to present concrete solutions for problems that cannot be conquered by locking up millions of Americans? 



A. Scott Washington, J.D. is a formerly incarcerated person who has earned a Bachelors Degree in Urban Studies with an emphasis on contemporary urban problems and a Juris Doctor Degree from the University Of Dayton School Of Law. Also, he is Assistant Professor of Criminal and Social Justice at the University of St. Francis in Joliet, Illinois.  A. Scott Washington also co-hosts a radio program entitled, “Hip Hop Justice Radio” which airs Tuesdays & Wednesdays from 6-8 PM CT on Party 934 and 94.9 FM, Hudson Valley New York.