Category Archives: Criminal Justice

Crime And Punishment

I read the more credible left and right-wing Internet sites with a grain (or cup) of salt, knowing that they may begin with factually-accurate information, but that they will spin that information to make their points. Inevitably imperfect aspects of human society are typically treated as examples of pervasively evil intentions: Democrats are “socialists” who want to deprive you of your liberty and property; Republican businesspeople are “right-wing plutocrats” working night and day to worsen inequality.

It would be refreshing to read “this aspect of society isn’t working very well, and we should probably pay attention to it” rather than “this is the tip of the rotten iceberg and we need armed revolution.”

But a recent post originally from Daily Kos struck me as basically accurate.

In sentencing documents, the special counsel’s office referred to Paul Manafort’s crimes as both “bold” and “brazen.” The word they didn’t use was “overlooked,” but that’s also absolutely true. Manafort is heading to federal prison for the rest of his life on a list of felonies a mile long—but if a special prosecutor had not been appointed, he would, at this moment, be getting fitted for a new vest made from some endangered species.

 Manafort and his partner Rick Gates committed multiple felonies over a span of decades. They weren’t sly about it. They weren’t particularly cautious or clever or even competent in their efforts to cover up illegal lobbying, money laundering, and tax fraud. They just never expected to get caught because guys like them never do. The same is true of Roger Stone, who was another of Manafort’s partners at the lobbying firm charmingly known as the “Torturer’s Lobby” for its willingness to help out brutal dictators and even-more-brutal would-be dictators.

As the post went on to note, the appointment of a Special Prosecutor has uncovered criminal behaviors that probably would not have been prosecuted but for that appointment, beginning with Donald Trump. (Trump’s history of money laundering hasn’t exactly been a secret). That includes Michael Cohen and Michael Flynn and Erik Prince, among others.

The real revelation of the investigations into Trump and his foreign connections isn’t even that the man occupying the White House is a crook, and the man who ran the Republican convention three times and acted as an adviser to a half-dozen presidents is a crook, and so is his partner, and so is his partner, and so are they all. The real revelation is that it took a special counsel to see any of these men face serious prosecution no matter what they did, or how often they did it, or how “bold” their crimes might be.

Stripped of the somewhat florid language (and the unstated but implied accusation that all  rich people and their “fixers” fall into the same category), the post makes a valid point: the rule of law is not equally applied.

What Trump knows, and what should be the most sobering discovery to emerge from the entire investigation, is that, barring the extraordinary circumstances of a special counsel or someone with similar authority, men like him will not face justice for crimes. And in fact, they will go on lying, cheating, stealing, with impunity.

If we are honest, we know that the criminal justice system doesn’t treat rich and poor people–or white and black people–equally. David Cole’s eye-opening book, No Equal Justice, was published in 1999, and little has changed since then.

The problem isn’t simply the unfairness of a justice system that applies different standards to different groups. The problem is that–as evidence of the disparity becomes more obvious–respect for law declines. Precipitously.

The most basic premise of the rule of law is that the rules apply to everyone; that “similarly-situated” citizens have the same rights and duties, and are subject to the same legal constraints. And “similarly-situated” in this context does not refer to finances or skin color.

When government winks at privileged persons’ misdeeds while punishing similar–or lesser– behaviors by less fortunate citizens, there is no justice and no rule of law. And that’s a problem that deserves some florid prose.

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The God Squad In The Courts

Rewire has a feature called “Gavel Drop,” with brief descriptions of recent lawsuits involving religion and the First Amendment, and providing links to longer descriptions of the parties and issues involved. This particular issue highlights the current (sad) state of “faith-based” America.

Allow me to share a few of the featured entries.

The Alliance Defending Freedom is now arguing in federal court to allow homeless shelters to deny services for transgender people. Downtown Soup Kitchen in Anchorage, Alaska, filed the religious freedom lawsuit against Anchorage earlier this year over the city’s nondiscrimination law; a case had been filed against the center after it denied a transgender woman admission to its shelter. The shelter director said that the woman was denied because she appeared drunk, but also that it would never accept a “biological man.”

In the linked article describing the lawsuit, ThinkProgress points out that ADF’s claim for relief  isn’t simply a request to allow this particular discriminatory act; it is a demand that the court overturn the city’s anti-discrimination ordinance in its entirety. It’s part and parcel of the Christian Right’s persistent attacks on any and all LGBTQ protections, in the name of “religious liberty.”

If a homeless transgender woman has to be thrown out into the cold Alaskan street in order to show proper deference to the religious sensibilities of the “Christians” who run the shelter, well, those are the breaks.

Speaking of religious liberty, the Gavel Drop also reported on this lawsuit from Illinois.

Illinois’ Fourth District Appellate Court upheld a lower court’s dismissal of a lawsuit challenging a state law that provides funding to Medicaid and state employee health insurance plans that cover abortion services. Anti-abortion groups, represented by the Thomas More Society, are planning to appeal the case to the Illinois Supreme Court.

I note that, for these “good Christians,” religious liberty goes only one way: their way. Adherents of religions that permit abortion are to be denied the liberty to follow their beliefs.

Nothing more clearly demonstrates the hypocrisy of the “religious freedom” movement as piously promoted by people like Mike Pence and organizations like ADF and the Thomas More Society than this insistence that “liberty” means their right to have government impose their beliefs on everyone else.

The theologies of these “Christian” plaintiffs prohibit abortion (for them and for any of their neighbors); but those theologies evidently do allow flat-out lying in service of their “godly” goals. Their argument against the law included the repeated accusation that the measure promoted taxpayer-funded abortion services.

“Taxpayer-funded abortion” is a myth pedaled by abortion-rights foes that feeds on public ignorance about abortion funding. Two-thirds of the public is unaware the federal Hyde Amendment prohibits paying for abortions with federal Medicaid dollars, according to a Kaiser Family Foundation poll.

Also among the lawsuits listed in the Gavel Drop was yet another effort to have government endorse Christianity by displaying a cross on public property.

The city of Pensacola, Florida, is asking the U.S. Supreme Court to intervene and allow a large memorial cross to remain standing on public land in Bayview Park. Earlier this month, the U.S. 11th Circuit Court of Appeals upheld a lower court judge’s ruling that displaying the cross on publicly owned land violated the Establishment Clause of the U.S. Constitution. The city of Pensacola is represented by The Becket Fund for Religious Liberty.

These public monument cases are brought repeatedly, and just as repeatedly dismissed under a long line of precedents invoking the Establishment Clause. Not only do I fail to see how moving the cross to private property violates anyone’s  “liberty,” I fail to understand why the Christian Right is so dead-set on having the government endorse their brand of religion.

Okay, that’s a lie. I do understand.

They’re theocrats, just like the Taliban. They want government to post their symbols in order to remind the rest of us that this is their country, and the rest of us are just here by virtue of their forbearance.

I don’t know about the rest of you, but I really get tired of these people.

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He Probably Shouldn’t Have Run For President…

If there is one thing we have learned about Donald Trump during and since the election, it is that his ego is massively bigger than his IQ. A smarter man would have realized that a spotlight comes with the Presidential territory–and that past criminal activity would eventually be uncovered.

About that spotlight:

The Washington Post, especially, has done significant work uncovering misuse of the Trump Foundation and various other Trump scams. Now, McClatchy’s Washington Bureau has weighed in with itemized evidence of the way Russian oligarchs bailed Trump out of financial difficulties with (many anonymous) cash purchases of real estate, often for dramatically inflated prices.

Aleksandr Burman, a Ukrainian who engaged in a health care scheme that cost the federal government $26 million and was sentenced to a decade in prison, paid $725,000 cash for a condo at a Trump Tower I in Sunny Isles Beach, Fla. in 2009.

Leonid Zeldovich, who has reportedly done extensive business in the Russian-annexed area of Crimea,bought four Trump units outright at a cost of more than $4.35 million, three of them in New York City between 2007 and 2010.

And Igor Romashov, who served as chairman of the board of Transoil, a Russian oil transport company subject to U.S. sanctions, paid $620,000 upfront for a unit at a building adorned with the future U.S. president’s name in Sunny Isles Beach in 2010.

Buyers connected to Russia or former Soviet republics made 86 all-cash sales — totaling nearly $109 million — at 10 Trump-branded properties in South Florida and New York City, according to a new analysis shared with McClatchy. Many of them made purchases using shell companies designed to obscure their identities.

Rep. Adam Schiff of California, the top Democrat on the House Intelligence Committee and a former federal prosecutor, has called evidence of these transactions “deeply troubling.” He also noted that there have been credible allegations of money laundering by the Trump Organization for many years. If these allegations are true, it could pose a real threat to the United States, because Russia would be able to “leverage” evidence of illicit financial transactions against the President.
“Leverage” is a polite word for blackmail.

The all-cash buyers include Alexey Ustaev, founder of a private bank based in St. Petersburg, Russia; Igor Zorin, a government official who runs a state-owned broadcasting company; the wife of hockey player Viacheslav Fetisov; pop star Igor Nikolaev; Roman Sinyavsky, a luxury real estate broker who was one of the first to sell units at a Trump’s South Florida building and Evgeny Bachurin, who Russian President Vladimir Putin fired as head of Russia’s Federal Air Transport Agency before becoming a donor to a political action committee supporting Trump, according to American Bridge….

“We’ve long suspected that Donald Trump’s businesses were a front for money laundering and our research suggests it could be true,” said Harrell Kirstein, communicators director for the Trump War Room at American Bridge. “The millions of dollars in previously unreported, all-cash real estate deals we discovered raise troubling questions about who is funding his businesses, why, and what they’re getting in return.”

The linked article has much more detail, including descriptions of several more unsavory buyers, and the extent to which those buyers paid considerably more than market value for the properties.

Anyone who has worked for government at any level–a cohort that excludes Trump, whose ignorance of the most basic premises of governance and law never fails to astonish–knows that public office brings a level of scrutiny with it. Even in our current media environment, where investigative journalism sometimes seems to be on life support, Presidential candidates understand that they will be targets for searching investigation, because citizens have a right to know what sorts of people govern them. (Actually, that curiosity tends to extend well beyond what we’re entitled to know–but it legitimately includes information about dishonest personal behaviors and illegal business practices.)

Trump’s refusal to make his tax returns public whetted that public appetite.

Subsequent revelations, the indictments of multiple campaign functionaries, and more recently, news of the long, cozy relationship between Justice Kennedy’s banker son and the Trump organization, have raised further concerns. (When Justin Kennedy  headed the real estate capital markets division of Deutsch Bank, he apparently authorized huge loans to Trump at a time American banks would no longer touch him).

I don’t know whether proof of Trump’s probable criminal conduct will be emerge before the midterm elections, or whether members of the cult that is today’s GOP will believe even ironclad evidence if it does. Voters can’t depend on that, or on Mueller. But there’s one thing we can depend upon: thanks to that spotlight he constantly craves, reporters will continue to investigate the multiple, credible  accusations against him.

If Trump and his family end up in prison, he’ll have only his ego and ignorance to blame.

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Rural And Urban Realities

Evidently, urban and rural Americans live in worlds that are different in ways we haven’t previously recognized.

Recently, the Washington Post analyzed attitudes about guns and gun violence. The results of that analysis added yet another item to the growing list of experiential differences between city dwellers and their rural cousins.

The article began with a recitation of the depressing statistics we have become accustomed to reading:

On average, there are 276 gun homicides a week in America. There are 439 gun suicides. All told, there are, on average, nearly 1,200 incidents involving gun violence, every week, in America.

This landscape of gun violence — suicides, homicides, mass shootings, accidents — is not evenly distributed. Instead, it plays out over geographic and political dividing lines — and these may help explain why individual Americans see the issue so differently.

The most striking difference is also arguably the weirdest. In the nation’s cities, which are overwhelmingly Democratic (blue dots in even the reddest states), people are more likely to be murdered with a gun than they are to shoot themselves. In red America, mostly rural and mostly Republican, people are more likely to shoot themselves to death than they are to be murdered with a gun.

In other words, In the regions where most Democrats live, gun violence is more often committed against someone else. Guns are used in crimes that are likely to generate news coverage and stoke fears of victimization. In more Republican areas, gun violence is more often self-inflicted, and suicides are unlikely to attract as much attention or generate as much fear. So even though Republican areas have more gun violence than Democratic ones, the public reaction is different.

On average, there were slightly more gun deaths in Republican areas than Democratic-leaning ones in the decade from 2007 to 2016. The disparity in death rates was even greater — 5.7 per 100,000 in Republican-leaning counties, versus 4.7 in Democratic-leaning counties — due to the higher total population in counties won by Hillary Clinton in 2016.

Much of the disparity comes from the fact there are so many more suicides than homicides a year, and suicides are so much more prevalent in rural areas and small towns — a phenomenon that has been explored elsewhere

Guns kill or injure more children, teens and people in Democratic districts, and mass shootings occur more often in Democratic districts.

These Republican and Democratic breakdowns correspond strongly with National Rifle Association ratings. Of the 430 for which grades were available, only 33 (7.7 percent) deviated from the simple Republicans get “A” ratings, Democrats get “F” model.

Both support for the Republican Party and gun suicides increase the farther you get from urban America. (Research has shown gun ownership correlates strongly with gun suicide.) Many–perhaps most–people don’t see suicide as a public policy problem. According to Pew, only 32 percent of Republicans see gun violence as a “very big” problem and only 24 percent think gun laws should be stricter than they are today.

It is possible suicides do not spur more support for gun control because people figure popular gun control measures, such as banning assault weapons and high-capacity magazines or tracking purchases, will not affect people who use guns against themselves. Prior analysis by The Post suggests that if the U.S. had a similar level of gun availability as other Western countries, firearm suicides would decline 82 percent and overall suicides would decline 20 to 38 percent.

This is useful information, and it may explain some otherwise confounding differences in policy preferences.

It doesn’t, however, explain why so many more rural Americans than city dwellers commit suicide…

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A Blow To Judicial Independence

California held its primary election last week, and among the results was a successful recall of Judge Aaron Persky.

Persky was the judge who gave a six-month sentence to Brock Turner, a Stanford athlete convicted of sexually assaulting a woman who had passed out. The sentence was seen as a slap on the wrist, and in the #MeToo era, it aroused enormous anger.

I’m not arguing that the sentence was appropriate, or the anger unjustified. But recalling a judge whose decision in a case angers the general public is a serious and damaging assault on judicial independence. The Constitution gave us three branches of government–two of which are answerable to voters. Judges are supposed to be answerable to the Constitution and the rule of law.

As a public defender wrote in a column for Vox, 

This was the first successful recall in California in almost 90 years. Though the recall only involved one judge, its impact will be felt nationwide.

It sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out. That represents a terrible threat to judicial independence and highlights the problems with electing judges — or subjecting appointed judges to reelection. They need the protection to think independently, even if they sometimes make decisions we don’t like.

I am not arguing that Turner’s sentence was the right one. Indeed, as a public defender, I am all too aware of the racial and class disparities in sentencing that redounded to Turner’s benefit. I have previously written about the ways privileged criminal defendants often are rewarded precisely because of their privileges. (One need look no further than Harvey Weinstein, who easily posted bail and did not spend a day in jail after his arrest.) But allowing an uninformed public to punish a judge for one unpopular decision jeopardizes the integrity of our entire system.

I was living in Indianapolis when a federal court judge ruled that the city’s public schools must be desegregated. It was not a popular decision, to put it mildly–in fact, it was so unpopular that the Judge required police protection for a prolonged period. If he could have been recalled, the schools might still be segregated.

One of the reasons I oppose judicial elections is that a judge who knows he must face voters is likely to weigh the merits of a case against the probable public reaction. If you are a judge with a mortgage and a couple of kids in college, how willing will you be to buck public opinion in a high-profile case?

Ironically, as the Vox article notes, the effects of this recall are more likely to be felt by the disadvantaged than by the privileged.

Given that the criminal justice system disproportionately targets and prosecutes the poor and people of color, the ones who suffer from judges feeling pressured to sentence harshly are not people with privilege like Turner, but those without privilege.

Judges have always had more incentives to punish harshly than leniently, and elections only increase these pressures. A Brennan Center for Justice study found that when judges are approaching reelection, they are more likely to impose harsher penalties. This is common sense, given that judges who have sentenced a defendant harshly rarely make the news….

When judges are looking over their shoulders, worried about losing their jobs if they enrage the public, the fairness of our system is compromised. Judicial independence is especially important because the public is often wrong, particularly on a local level.

Lawyers who actually practice in Judge Persky’s court–including the head prosecutor– report that he is a thoughtful, fair judge, and not known for leniency. In the Turner case, Persky had followed the probation department’s sentencing recommendation.

When we allow public outrage to  trump respect for judicial independence, we throw the baby out with the bathwater.

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