Criminal Justice – Sheila Kennedy

The Right Kind Of Prosecutor

During my years as a practicing lawyer, I came in contact with several impressive Black lawyers with degrees from prestigious schools. Almost all of them were–like me–practitioners of civil or corporate law, usually with one of the larger law firms. The Blacks I knew who did practice criminal law were all defense lawyers. And it goes without saying (so I’ll say it), during those years, they all encountered considerable discrimination.

So what made Kamala Harris decide to be a prosecutor? I think that early decision sheds considerable light on her judgement, her capacity to analyze the legal landscape and determine how best to seek justice.

The politics of criminal justice have inured most of us to a lopsided view of a prosecutor’s role. In communities large and small, lawyers have for years run for the office on promises to bring “law and order,” to be “tough on crime” and to “put the bad guys away.” We do want to put bad guys away, but we also want to be sure that the guys we’re putting away are really the bad guys. And even a cursory attention to the news confirms that–in too many places–innocent people have been imprisoned or worse. (Also in too many places, those errors have been the result of prosecutorial misconduct.)

It’s important that a prosecutor be concerned with justice–not simply with a win/loss ratio.

What triggered this observation was a recent article in the Indianapolis Star about the exoneration of a man who’d spent 15 years behind bars for a crime he didn’t commit. The case against Anthony Bedolla had unraveled amid allegations of potential police misconduct and constitutional violations.

A re-examination of Bedolla’s murder conviction raised serious concerns about whether detectives arrested the wrong man, then failed to disclose evidence that someone else may have been the killer. Instead, they relied largely on the testimony of a compromised and unreliable eyewitness, according to Bedolla’s petition for post-conviction relief.

Last week, a Marion County judge granted the petition and dismissed the charges against Bedolla, who had been sentenced to 45 years in prison for the killing.

The lawyers who obtained Bedolla’s release worked for the Notre Dame Exoneration Justice Clinic and the Conviction Integrity Unit of the Marion County Prosecutor’s Office. I have been aware of the existence of that Unit, which was created by Marion County Prosecutor Ryan Mears. to “identify, remedy and prevent wrongful convictions” because my youngest granddaughter has interned with the Unit since her senior year in high school. (She’s now entering her junior year in college.) She will also be participating in the opening and operation of the Indiana affiliate of the national Innocence Project.

As Mirror Indy has reported, the establishment of that affiliate is something of a homecoming for its director, Fran Watson, and “will build on her decades-long career as the director of IU McKinney law school’s Wrongful Conviction Clinic, which was a founding member of the Innocence Network.” As she explained to the Mirror, while innocence work exposes the reality of wrongful convictions, and the various reasons for them, it was really the science of DNA that made exonerations possible.

Without DNA, no one would ever believe public defender people like me who said they’re innocent. Then DNA comes along, and the math is the math, and the numbers are the numbers, and they don’t lie, you have the wrong man in prison, and you lied to put them there.

My granddaughter was present when Anthony Bedolla was released. She’s passionate about justice, and–at least at this point–intending to go to law school. (And yes, I am one proud grandma.) But the reason I mention her participation is that without it, I would not have had the opportunity to interact with Ryan Mears, who–like Kamala Harris–became a prosecutor for the right reasons.

It was Mears who established the “Integrity Unit” in the Marion County Prosecutors office. Mears is one of an emerging generation of prosecutors who understand that the justice system has two equally important tasks: to put away the people who pose a danger to public safety, and to ensure that the people being incarcerated are, indeed, the people who deserve that punishment– that the real “bad guy” isn’t still free to harm others.

Public respect for the criminal justice system requires attention to both tasks.

Marion County is fortunate to have someone in that office who understands the importance of both of those obligations. And if Kamala Harris becomes President, we will be incredibly fortunate to have a Chief Executive who understood the importance of systemic justice at a time when far fewer of us did.

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Federalism And MAGA Lies

I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.

Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.

Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!

Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).

Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.

Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…

The article debunked several aspects of the claim, and noted

This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”

“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”

“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”

By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.

As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.

Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”

In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority. Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

But that step back didn’t merge state and federal justice systems.

Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.

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Crime And Politics

In Indianapolis, municipal elections are held during otherwise “off” political years. Last year we were treated to an effort by Jefferson Shreve, a rich Republican, to win the Mayor’s office. His campaign ads leaned heavily on assertions that our city was crime-ridden; given the Democratic tilt of the city electorate, the ads did make visible efforts to veil their more racist elements.

Despite spending $13 million dollars of his own money, Shreve failed to exceed the GOP’s base vote, so this year, he’s running for Congress. It’s a barely-purple district, and his television ads are much more explicitly “anti-woke.” Like most Republicans running for office this year, he’s clearly counting on anti-immigrant bias and an entirely bogus insistence that immigrants are the source of an (equally-bogus) American crime wave.

He’s not alone in that dishonesty.

NBC recently deconstructed Trump’s assertions of immigrant-fueled crime, reviewing expert analysis and available data from major-city police departments that show zero evidence of a migrant-driven crime wave in the United States. To the contrary, available data shows overall crime levels dropping in cities that have received the most migrants. See also, Scientific American, (12/7/20) Undocumented Immigrants Are Half as Likely to Be Arrested for Violent Crimes as U.S.-Born Citizens.

When you think about it, it makes sense that people who are undocumented would want to keep a very low profile, in order to avoid deportation.

Another analysis of the available data confirms both the bogus nature of these claims and the political motivation for raising them.

The Republican Party wanted to run a 2024 election campaign on inflation and the economy. That made some sense in June 2022, when inflation was at a 40-year high of 9.1 percent. But now inflation has fallen to 3.1 percent, and unemployment has been below 4 percent for 24 months. Banging on about prices and the economy no longer seems like a winning strategy.

So the GOP has pivoted back to its standard tactics: fear-mongering, scapegoating, and bigotry.

Fox News is no longer talking about high prices 24/7. It now apparently believes the central problem of our day is … immigrant crime.

Public Notice publisher Aaron Rupar counted 27 mentions of “migrant crime” on Wednesday alone across Fox News and Fox Business. “Migrant Crime Sparks New Outrage Across US” one chyron screamed; the segment included giant mugshots of immigrant Latino men accused of crimes. Hosts hit President Biden for not discussing “migrant crime” during a speech he gave that day.

“It’s difficult to convince Americans that they are safe or becoming safer when they do not feel safe in this nation,” John Roberts proclaimed.

Americans don’t feel safe because Republican candidates constantly lie to them about their safety. These candidates have concluded that the only way they can win is by playing on racism and fear of crime–by creating a moral panic. There is absolutely no data supporting their accusations.

A 2020 Cato study of Texas found that for native-born Americans, conviction rates were 1,422 per 100,000. For undocumented immigrants, the rate was much lower — only 782 per 100,000. And for legal immigrants, the rate was 535 per 100,000. Cato found that immigrants were less likely to commit violent crimes, property crimes, homicides, and sexual assaults than people born in the United States.

A 2023 Stanford study found similar results when it looked at imprisonment rates going back to 1830. Immigrants have basically always been imprisoned at lower rates; today, they are 60 percent less likely to be incarcerated than people born in the US. That’s in part because Black people are disproportionately targeted by the criminal justice system. But even if you just look at the incarceration rates of white people born in the US, immigrants are imprisoned 30 percent less.

Migrant crime is much less of a problem than crime by native-born people. But even native-born Americans are committing fewer crimes; crime rates overall are down.

Murder rates in 2023 fell by more than 12 percent from 2022, among the biggest recorded drops. Other violent crimes also decreased. Retailers claimed that there was a huge increase in shoplifting in the last few years — but that turns out to have been almost entirely a myth.

As the linked article notes, GOP rhetoric may not be based in fact, but it does have (an unsavory) basis in demagoguery and racism. Linking marginalized groups to crime to build power and justify violence is, unfortunately, nothing new.

Of course, migrants do commit some crimes. In a country with some 45 million immigrants, it’s easy to find a handful of mugshots to put on your screen. But the scare tactic is nonetheless a scare tactic; there is not a sweeping crime wave perpetrated by immigrants. To say otherwise is a lie.

The GOP’s recent refusal to pass a border control measure that gave them virtually everything they’d demanded so that they can run on the issue really gives the game away.

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Crime–And That Pesky Data…

Last year, Indiana held municipal elections, and in Indianapolis, the Republican candidate for Mayor focused a lot of his attention on crime, especially “urban” crime. (Dog whistle, anyone??) Despite pouring some thirteen million dollars of his own money into that race, he failed to exceed the GOP’s baseline vote. Nevertheless, I expected that similar allegations about urban crime would form a large part of this year’s federal election strategy.

I now think I was wrong. Trump’s efforts to destroy a bipartisan agreement on immigration–an agreement that gave Republicans a number of things they’d long been seeking–was based entirely upon the GOP’s need to feature immigration as the campaign issue. Republicans aren’t even pretending otherwise; several GOP congressmen have admitted that, thanks to the lunatic caucus’ intransigence and refusal to do the jobs they were elected to do, they accomplished nothing and have nothing else to run on. So crime will likely take a back seat to the “immigration crisis” –a crisis the GOP has purposely sustained. To the extent crime enters the dialogue, it will be attributed to “those people” at the border.

Still, it’s worthwhile to examine the repeated misinformation about America’s crime problems, and a recent Substack letter did just that.

The letter pointed to another reason that crime rates might take a back seat in the upcoming campaigns: those rates have been coming down.

The number of murders in U.S. cities fell by more than 12 percent — which would be the biggest national decline on record. The spike that started in 2020 now looks more like a blip, and the murder rate is lower than it was during the 1970s, ’80s and ’90s. The recent data also suggests that the violent-crime rate in 2023 was near its lowest level in more than 50 years.

What about blaming Democratic mayors for crime?

Several Republicans have noted that 27 of the 30 cities with the highest homicide rate have Democratic Mayors. But most cities of any size have Democratic mayors: among the 50 largest cities, 37 have Democratic Mayors. “If you go even further to the top 100 Cities — they have Democratic Mayors 63% of the time and have 76% of the population.”

Republicans have also insisted that an “urban crime increase” is due to the election of “progressive” Prosecutors. The linked letter describes several academic studies that convincingly disprove that thesis, along with bogus claims that police forces have been “defunded.” Actually (despite one of the stupidest political slogans ever) most police departments have seen their budgets increase in the last 3 years.

It also turns out that crime is lower in those Democratic “urban” areas than in those “real American” Red states.

And for future reference, we can also debunk the “Crime in Democrat cities” by looking at where crime actually happens -— and that’s in Red States.

The murder rate in the 25 states that voted for Donald Trump has exceeded the murder rate in the 25 states that voted for Joe Biden in every year from 2000 to 2020.

Over this 21-year span, this Red State murder gap has steadily widened from a low of 9% more per capita red state murders in 2003 and 2004 to 44% more per capita red state murders in 2019, before settling back to 43% in 2020.

Altogether, the per capita Red State murder rate was 23% higher than the Blue State murder rate when all 21 years were combined.

If Blue State murder rates were as high as Red State murder rates, Biden-voting states would have suffered over 45,000 more murders between 2000 and 2020.

Even when murders in the largest cities in red states are removed, overall murder rates in Trump-voting states were 12% higher than Biden-voting states across this 21-year period and were higher in 18 of the 21 years observed.

Unsurprisingly, the gun crime rate in rural areas is also higher than in urban areas.

A new study published in the Journal of the American Medical Association’s Surgery found that firearm deaths are more likely in small rural towns than in major urban cities, adding to research that contradicts common belief that Democratic blue areas have higher incidences of gun-related deaths than do Republican red districts.

The linked Substack letter is lengthy, and reports the results of numerous studies–if you are interested in an in-depth analysis of existing research, it’s well worth reading in its entirely. But one nugget I found especially interesting was the observation that there is a lot that cities are trying to do to address gun violence … but many of them are “hamstrung by state policies and can’t control the flow of guns or how guns are carried in their cities.” When there is no local control there’s only so much city officials can do.

In Indianapolis, our urban hands are tied by the gun zealots in our embarrassing state legislature.

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The More We Learn…

It’s a conundrum.

Any civilized society operates by creating and enforcing rules. Social tranquility depends upon choosing wise people to make the rules and fair-minded people to enforce them.Right now, America isn’t doing too well with either of those populations.

This blog spends an inordinate amount of time on the clown show that is the U.S. House of Representatives, but problems with enforcement–with policing–are equally thorny.

From the beating of Rodney King to the murder of George Floyd and the multitude of other unwarranted violent episodes, Americans have been inundated with video evidence of questionable police behavior.

And “questionable” is frequently the correct word. As public safety professionals will tell us, protecting the public often requires split-second decision-making in situations that are a lot more ambiguous than they appear after the fact. Given the difficulties they face, giving police the benefit of reasonable doubt is only fair.

But all doubt isn’t reasonable.

Reporters keep uncovering deeply disturbing evidence of a racist, anti-Semitic and thuggish culture that persists in a troubling number of police departments. A year or so ago, one such culture was exposed in Torrance ,California . Text messages that had circulated among current and former officers of the city’s Police Department “reveal a culture rife with racism, antisemitism, and homophobia going back at least a decade.”

The texts are extremely violent in nature and grotesquely racist, homophobic, and antisemitic.

According to reporting from the LA Times, one text shows a picture of a candy cane, a Christmas tree ornament, a star for the top of the tree, and an “enslaved person.”

“Which one doesn’t belong?” the caption asks.

“You don’t hang the star,” someone replies.

Another message reads “hanging with the homies,” attached was a photo of several Black men who had been lynched.

Another photo asks what someone would do if their girlfriend was having an affair with a Black man. The captioned response was to break “a tail light on his car so the police will stop him and shoot him.”

Prosecutors say the messages go back years and could jeopardize hundreds of criminal cases in which the officers either testified or made arrests.

The LA Times identified 13 current and former police officers and one Long Beach cop who are now under investigation. At least nine of the officers texted images or commentary advocating violence against Black people and LGBTQ community members and ridiculing racial profiling.

There was much more, and all horrific. Discovery of the texts was triggered by an investigation of two former Torrance police officers who had spray-painted a swastika inside a resident’s car.

If Torrance was an isolated instance, it would be troubling enough, but in the last few years, we’ve seen repeated evidence that these White Supremacy attitudes are widespread among both the police and the military.

As the linked article by an FBI agent now with the Brennan Center warns:

For decades, the Federal Bureau of Investigation has routinely warned its agents that the white supremacist and far-right militant groups it investigates often have links to law enforcement. Yet the justice department has no national strategy designed to protect the communities policed by these dangerously compromised law enforcers. As our nation grapples with how to reimagine public safety in the wake of the protests following the police killing of George Floyd, it is time to confront and resolve the persistent problem of explicit racism in law enforcement.

I know about these routine warnings because I received them as a young FBI agent preparing to accept an undercover assignment against neo-Nazi groups in Los Angeles, California, in 1992. But you don’t have to take my word for it. A redacted version of a 2006 FBI intelligence assessment, White Supremacist Infiltration of Law Enforcement, alerted agents to “both strategic infiltration by organized groups and self-initiated infiltration by law enforcement personnel sympathetic to white supremacist causes.”

As the officer who wrote the above article pointed out, If the U.S. government found out that al-Qaida or a similar foreign terrorist organization had infiltrated American law enforcement, it would immediately launch a nationwide effort to identify those individuals and neutralize the threat.

Yet white supremacists and far-right militants have committed far more attacks and killed more people in the U.S. over the last 10 years than any foreign terrorist movement. The FBI regards them as the most lethal domestic terror threat. The need for national action is even more critical.

We the People need the police. But we need the right kind of police. That requires hiring practices capable of weeding out thuggish, bigoted applicants, and training that emphasizes service to all parts of the communities they will be hired to protect.

We have a problem, and public safety requires that we fix it.

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