Category Archives: Criminal Justice

Some People Shouldn’t Be Parents

Not long after I joined the faculty at IUPUI’s School of Public and  Environmental Affairs (now the O’Neill School), I had a student whose answer to virtually every thorny policy issue we discussed was the same: license people before allowing them to become parents.

This was in an upper-level undergraduate class in Law and Public Policy, and the student’s “day job” was as a probation officer. (Like a significant percentage of undergraduate students at IUPUI back then, he was older than traditional college students, and had a full-time job.) Each time, I would patiently explain why the Bill of Rights prevents government from making so personal a life choice for individual citizens, and he would respond to the effect that such a constraint was unfortunate, because he saw the results of bad or inadequate parenting on a daily basis.

As I reflect on those discussions, I’ve concluded that we were both right.

It should be obvious that the decision whether to procreate is not a decision that government in a free society can or should make. (Speaking of obvious–someone needs to  forcefully remind six Justices on our current, politicized Supreme Court just why liberty requires procreation decisions to be left to the individuals involved .) But my student wasn’t wrong when he pointed out that some people simply should not be parents.

I thought about that student, and those long-ago discussions he initiated, when I read reports about the utterly unfathomable conduct of the parents of Ethan Crumbly, the young man who killed four classmates and wounded seven others in Michigan. Per CNN, we learned that the parents have been charged along with their son after they failed to appear for their arraignment, withdrew 4,0000 from an ATM, and hid out in a warehouse some 40 miles from their home in an apparent effort to flee.

The judge has set their bail at 500,000 each.

Parents of a school shooter are almost never charged, even when their negligent storage of weapons is implicated in a shooting. But these parents are–as my students might put it–something else.

Oakland County Prosecutor Karen McDonald has alleged that James Crumbley on November 26 bought the gun at a store in Oxford, and that the parents gave the weapon to their son as an early Christmas present.

During Saturday’s arraignment, McDonald said, “It’s … clear from the facts that (Ethan Crumbley) had total access to this weapon,” and that the parents “didn’t secure (the gun) and they allowed him free access to it.”…Shortly after James Crumbley bought the gun November 26, his son posted a picture of a gun on an Instagram account and captioned it, “Just got my new beauty today. SIG SAUER 9mm” with a heart-eyes emoji, McDonald said.

If the parental culpability had stopped with the purchase and  grant of access, I doubt they’d have been charged, but their jaw-dropping behaviors went far beyond stupidity and negligence. Jennifer Crumbley  posted about the gun on social media, calling it “his new Christmas present,” and took her son to a shooting range the weekend before the school shooting. When a teacher discovered Ethan searching for ammunition on his phone–the day before the shooting– and reported it to school officials, the mother not only didn’t respond when those officials called her, but sent a text message to her son saying, “LOL I’m not mad at you. You have to learn not to get caught.”  

On the day of the shooting , a different teacher became alarmed by pictures Ethan had drawn showing bullets, a bloody body, and a laughing emoji–along with alarming text.

The parents were called for a meeting in the school with a counselor and their son, who by that time had altered the illustration “by scratching out the drawings of the gun and bloody figure, along with the words, according to McDonald.”

The parents refused to take their son out of the school, and he was allowed back to class.

Other media outlets have reported that school officials strongly recommended that the parents obtain immediate psychological counseling for Ethan, but the parents appeared to dismiss that recommendation.

Later in that day–the same day his parents had refused to take him home– Ethan Crumbley “opened fire outside a bathroom, aiming at students in the hallway as well as those who were hiding in classrooms.” He killed four students and injured seven.

Maybe my long-ago student was right when he opined that some individuals shouldn’t be parents.  Since the Supreme Court appears ready to give government the right to require parenthood, maybe the Justices should stop cloaking that decision in rhetoric about fetal personhood, and just hold that government can decide who gets to procreate.

After all, the government with power to tell people they can’t abort can also tell them they must…

 

A Better Approach?

In my continuing effort to find positive aspects of our gloomy socio-political landscape, I came across a very interesting experiment in public safety being conducted in Albuquerque, New Mexico.

The city has established what has been named the “Albuquerque Community Safety (ACS) department.”

Launched in September, the agency is intended to complement the city’s police and fire departments by having teams of behavioral health specialists patrol and respond to low-level, nonviolent 911 calls.

While it is modeled after programs in a few other cities, ACS is the first stand-alone department of its kind in the country. The initiative is still nascent – Mr. Adams and Ms. White are one of just two responder teams at the moment. But authorities here hope it will defuse the kinds of tensions between police and residents that have surfaced in cities across the country and help reinvent 911 emergency response systems, which many believe have become antiquated.

As slogans go, “Reinvent policing” or “Promote Community Safety” are certainly less off-putting than “Defund the Police,” but the premises are similar; the idea is to relieve police from the need to respond to  situations that don’t pose an immediate threat to public safety and that can be better handled by social workers or mental health practitioners who have the often-specialized skills to handle certain interventions.

Most police interviewed about such approaches are enthusiastic, not defensive.

“What Albuquerque is doing is really exciting and innovative,” says Nancy La Vigne, executive director of the Task Force on Policing at the Council on Criminal Justice, a think tank based in Washington, D.C. Police chiefs “almost universally say we’d love to offload these calls to other people. We need these types of models to be developed and implemented, so we can learn from them.”

Even before the police killing of George Floyd sparked massive demonstrations, a number of cities were debating how to reduce the use of lethal force, how  to increase meaningful accountability, and how chronically understaffed departments might reduce the need to send uniformed officers to deal with issues that aren’t, strictly speaking, posing a public safety threat.

In Albuquerque, those discussions were made more urgent by the city’s experience; between 2010 to 2014, “members of the Albuquerque Police Department shot and killed 27 people.”

One of them, in March 2014, was James Boyd, a homeless man diagnosed with schizophrenia. An investigation by the U.S. Department of Justice concluded a month later that APD “too often uses deadly force in an unconstitutional manner,” including against “individuals who posed a threat only to themselves.” The police entered into a court-approved agreement with DOJ that October, which the department has been operating under ever since.

Initially, police shootings in the city decreased for several years. But more recently they have begun to rise again. From 2015 to this year, Albuquerque had the second-highest rate of fatal police shootings in the country among big cities.

If that wasn’t worrisome enough, the state’s behavioral health system was disintigrating.  A criminal investigation into whether 15 of New Mexico’s largest mental health providers had been defrauding Medicare led to the state freezing their funding. They were subsequently cleared of the the allegations, but according to the report, the state’s mental health system has never fully recovered.

Albuquerque’s aim with its new initiative was thus aimed at revamping its entire emergency response system, and not simply to reform policing.

About 1 in 4 people killed by police since 2015 had mental illnesses, according to a Washington Post database. Many of those killings occurred after the families of those people called the police for help.

“The default response is to send police to a scene and hope they solve whatever is happening,” says Dr. Neusteter. That’s “really not in anyone’s interests.”

“By and large [ACS] is a positive move” for policing in the city, says Peter Simonson, executive director of the American Civil Liberties Union of New Mexico. “It holds the promise that perhaps someday we will see fewer armed officers interacting with people in mental health crisis.”

The effort in Albuquerque is still in its early stages, and police organizations and community groups will be watching to see how it works. The early indications are positive.

Wouldn’t it be great if the Left could stop having to defend clumsy language and the Right would admit that American cities need to handle public safety more effectively and with fewer tragic outcomes–if we could all just put our ongoing culture wars on hold, and instead work collaboratively to use emerging information and expertise to make our communities safer?

I guess I’m just a dreamer……

 

Unpacking Immunity

The defiance shown by so many police officers to vaccine mandates absolutely astonishes me, as I’ve previously posted. These are, after all, people whose job it is to enforce “mandates” over the “personal choices” of citizens whose disagreement with those mandates is irrelevant.

But then I read a very informative column by Radley Balko in The Washington Post and connected some (admittedly non-intuitive) dots.

The column was about qualified immunity–the judge-made doctrine that continues to exempt police officers from the consequences of unconstitutional behaviors, and essentially allows them to choose which laws they will follow and which they will ignore. I have previously explained that doctrine, and why so many lawyers argue that its effects have been pernicious. Balko goes beyond the widespread criticism of the way qualified immunity currently works; he explains its ugly origins.

I, for one, was unaware of those origins.

Balko begins by reminding us that qualified immunity isn’t in the Constitution or in the U.S. Code. “It is judge-made law. It is judicial activism, by any definition of the term.” The doctrine was first announced in Pierson v. Ray, a case arising out of participation by a group of Episcopal priests–three of whom were Black–in the effort to desegregate public accommodations in the South.

Waiting on a bus just outside of Jackson, Miss., 15 of the priests, three of whom were Black, entered a segregated cafe. Two police officers ordered them to leave. When they refused, the officers arrested them under a vague Mississippi law permitting police to arrest any group of people who threatens a “breach of the peace.” The clergymen were convicted and sentenced to four months in jail. On appeal, their arrests were deemed illegal and their convictions were overturned. They subsequently sued under Section 1983.

Section 1983 is the federal statute allowing citizens to sue the government for damages when agents of that government, acting in their official capacities, violate their rights.

This was the precise sort of constitutional violation that Section 1983 was passed to address. Local state authorities had refused to recognize the 14th Amendment rights of Black priests to be treated equally. And yet they lost.

The U.S. Court of Appeals for the Fifth Circuit ruled that by merely participating in the Freedom Rides, the clergymen had knowingly placed themselves in harm’s way, and therefore were ineligible for damages. The court also ruled that though the arrests and law were subsequently determined to be unconstitutional, the police could not have known that at the time, and therefore couldn’t be held liable.

In 1967, the Supreme Court upheld the decision, and in 1982, in the case of Harlow v. Fitzgerald, the Court made the doctrine even worse. As I explained in my former post on the subject, the Court in Harlow ignored precedents that had required an examination of the “subjective good faith” of the officer being sued. Instead, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.”

In other words, since Harlow, courts have required plaintiffs to cite to an already existing judicial decision with substantially similar facts. As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’”

As Balko (accurately) characterized the current situation,

Collectively, they’ve created a through-the-looking-glass realm of jurisprudence that not only excuses police violations of constitutional rights, not only grants a police an exception to the axiom that “ignorance of the law is no excuse,” but actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

Which brings me back to the chutzpah of the police who are refusing vaccination.

When you are working in an environment that shelters you from the consequences when you break the rules, an environment that allows you to decide for yourself which laws you will follow and which ones you will ignore, the result is development of an entitlement mentality. When you are insulated–immunized–from the consequences that ordinary citizens face when they ignore laws of general application, why wouldn’t you get cocky? Why wouldn’t you consider yourself immune from the rules that the “little people” must follow?

Qualified immunity explains a lot more than the evisceration of Section 1983.

 

There Are Unions…And Then There Are Unions…

Yesterday, I explained how my opinion of labor unions had, shall we say, “matured” over the years.  Like many others, I came to see what happens when power becomes wildly disproportionate–when the parties to “bargaining” are so unequal that actual bargaining is impossible.

My belated support for unions recognizes the importance of genuine collective bargaining.

That support doesn’t extend to today’s iteration of police unions, which tend to be powerful protectors of the worst elements of law enforcement.

Public-sector unions are all in a somewhat different situation than those in the private sector. The ability to interrupt a public service gives them additional clout, and they have consequently fared somewhat better than their private-sector counterparts. To the best of my knowledge, most–but certainly not all– have behaved responsibly.

Then there are police unions, which definitely have not. As an article last year in the New York Times put it,

Over the past five years, as demands for reform have mounted in the aftermath of police violence in cities like Ferguson, Mo., Baltimore and now Minneapolis, police unions have emerged as one of the most significant roadblocks to change. The greater the political pressure for reform, the more defiant the unions often are in resisting it — with few city officials, including liberal leaders, able to overcome their opposition.

They aggressively protect the rights of members accused of misconduct, often in arbitration hearings that they have battled to keep behind closed doors. And they have also been remarkably effective at fending off broader change, using their political clout and influence to derail efforts to increase accountability.

That political clout is significant. Candidates for local offices seek to benefit not just from police union endorsements but from contributions: according to the Times, a single New York City police union had donated over $1 million to state and local races between 2014-2020.

The knee-jerk resistance to reform and the “aggressive” protection of their members are troubling, but understandable, “tribal” behaviors. Less understandable–actually, in my view, incomprehensible–is the current anti-vaccine stance being taken by several police unions.

Police departments around the U.S. that are requiring officers to get vaccinated against COVID-19 are running up against pockets of resistance that some fear could leave law enforcement shorthanded and undermine public safety.

Police unions and officers are pushing back by filing lawsuits to block the mandates. In Chicago, the head of the police union called on members to defy the city’s Friday deadline for reporting their COVID-19 vaccination status.

It’s not just Chicago. The Sheriff of Los Angeles County has said he won’t force his 18,000 employees to be vaccinated despite a county mandate. Hundreds of police officers in San Diego say they would consider quitting instead of complying with a vaccination mandate.

Resistance is bubbling up even though first responders have been hit hard by COVID-19. More than 460 law enforcement officers have died from the virus, according to the Officer Down Memorial Page, which tracks deaths in the line of duty.

On the news a few mornings ago, the head of the Chicago union pontificated that being vaccinated was a “personal choice” that government had no right to over-rule. That is especially ironic coming from someone who has been deputized by the government to enforce rules against the “personal choices” of, say, marijuana smokers, seat-belt resisters and gamblers.

It’s bad enough that ordinary Americans don’t understand the difference between personal liberty and their obligations to their fellow-citizens. (As a recent Facebook meme parodied that declaration, if I’m on a ship and I saw through the floor of my cabin to the water below, it’s my personal decision…). But these are people sworn to protect  and serve their communities–people who presumably became police officers in order to keep others safe. A “choice” to remain unvaccinated doesn’t simply expose the individual officer to a potentially deadly disease; it endangers anyone in the public with whom that officer interacts.

The research is unequivocal: police unions have a negative effect on innovation, accountability, and police — community relations. “Unionized officers draw more excessive-force complaints and are more likely to kill civilians, particularly nonwhite ones.”

The reason I changed my mind about unionization in general was my recognition that disproportionate power exercised by either unions or management leads to negative outcomes. In the private sector, sapping the ability of workers to bargain effectively has driven the widening gap between the rich and the rest.

In the public sector, the ability of police unions to shield bad cops from accountability–to allow them to defy the very rules they are supposed to uphold– endangers us all.

 

 

 

 

 

Sophisticated Theft

The recent indictment of the CFO of Trump’s business empire has offered us a window into the differences in dishonest behavior between members of different social classes–and the extent to which anti-social behavior by “others” is viewed more negatively.

As a law professor who was a former U.S. Attorney opined, in the wake of the indictment of Allen Weisselberg,

As I learned during my career as a federal prosecutor, this is the way rich people steal money. The means are more sophisticated than sticking up someone with a gun on a street corner, but purpose is the same, which is why one of the charges is grand larceny— stealing property that doesn’t belong to you.

The charges leveled thus far–the investigation is ongoing, and more are likely–are serious. No one brandished a weapon, but according to the indictment, the company under Weisselberg’s and Trump’s direction engaged in 15 types of fraud over a period of years. Those included a number of schemes to evade income taxes, mostly by finding ways to compensate employees “off the books.”  The organization provided employees with cars, apartments, private school tuition, home improvements and bonuses– without , however, reporting these perks as the taxable income they legally were. That allowed the organization to avoid payroll taxes and allowed the employees thus compensated to significantly reduce both their taxable income and  the amount of taxes they paid.

This wasn’t penny-ante stuff; the indictment accuses Weisselberg alone of concealing approximately $1.7 million of his own compensation from tax authorities.

If this indictment was merely more evidence of Donald Trump’s disdain for the law, it would be worth at most a shake of the head and a comment to the effect that it didn’t come as a surprise. Unfortunately, however, fraud of this sort is apparently widespread among wealthy and near-wealthy individuals who share Trump’s stated belief that “smart” people don’t pay a lot in taxes.

The reactions to the indictments by Trump’s defenders have been telling. Defense lawyers characterized the criminal charges as “inappropriate,” and a number of rank-and-file, “law and order” Republicans shrugged them off as business as usual. Evidently, they consider the theft of millions of dollars accomplished without weaponry less serious than a holdup at gunpoint on the street (netting, perhaps, a couple of hundred dollars and a watch).

Of course, we “little people” have to make up the amounts lost by reason of this tax cheating through our own taxes–but what I find even more troubling is the lack of indignation and condemnation of this clearly fraudulent and criminal behavior. That indulgence undermines both the legitimacy of government and the rule of law.

We sometimes forget the extent to which our legal and economic systems require the voluntary compliance of the vast majority of Americans. To use an obvious example, most of us who drive stop at red lights and obey (most) other rules of the road. We couldn’t hire enough police officers to ensure safe roads if we couldn’t rely on the willingness of large majorities to obey traffic rules.

For that matter, America’s entire system of commerce relies upon the willingness of most sellers to deliver goods as promised, and the willingness of most buyers to pay for those goods in a timely manner without the need to send for the sheriff.

Our tax system similarly depends upon the voluntary compliance of millions of Americans who dutifully file the required paperwork and remit the appropriate payments. When that culture of obedience is allowed to erode–when the well-to-do can publicly wink at each others’ fraudulent evasions–that erosion inevitably breeds resentment among the law-abiding, and excuses additional noncompliance, not just with the tax laws, but within daily commerce.

The so-called “Captains of Industry” who consider themselves too smart to pay their taxes are also the scofflaws most likely to stiff the people with whom they do business. The Trump Organization is a prime example, but certainly not the only one.

Just because a certain type of theft is more sophisticated doesn’t make it less reprehensible. Stealing from the government is no less dishonest than stealing from individuals–and in fact, it is stealing from the individuals who must make up the difference.

It’s evidence of moral bankruptcy, not “smarts.”