Criminal Justice – Page 13

Point Well Taken…

One of the websites I visit regularly is Talking Points Memo. Its editor, Josh Marshall, was a conventional journalist before establishing the online equivalent of a news site devoted to government and politics, and he employs staff reporters who are equally professional and credible.

In a recent column, Marshall reported on his participation in a CNN segment, and made a point about the accusation that this President routinely violates democratic norms–an issue that has certainly concerned me, and that has been a focus of criticisms leveled by numerous political scientists.

Marshall says we need to stop talking so much about norms.

But we need to stop talking so much about “norms”. And it’s not just CNN. The term has come up a number of times in our editorial conversations at TPM just today. I’ve talked about them. But we need to stop talking so much about norms. Because it doesn’t capture what is happening or the situation we’re in. In every kind of communication, clarity is the most important thing. By talking so much about “norms” and the violation of “norms” we’re confusing the situation and even confusing ourselves.

“Norms” aren’t laws for a reason. They are like bumpers on the roads of our civic and political life which are there to keep people of basically good faith from crossing lines they shouldn’t cross. They can also be warning posts so others can see when someone is either going down a bad path or needs to be brought back into line.

As Marshall says, that isn’t what ought to worry us.

But the problem with almost everything President Trump is doing today is not that he’s violating norms. The problem is that he is abusing his presidential powers to cover up his crimes and his associates’ crimes. Full stop. That’s the problem. The norms are just the orange rubber cones he knocked over when he drove out of his lane and headed for the crowded sidewalk.

He makes a similar point about transactions the press usually labels “conflicts of interest.”

What we’re seeing now are not conflicts of interest. They’re straight-up corruption. It’s like “norms”. Defining “conflicts of interest” is meant to keep relatively honest people on the straight and narrow or create tripwires that allow others to see when people in power are crossing the line. Nothing like that is happening here. We have an increasingly open effort to make vast sums of money with the presidency. It’s happening in front of our eyes, albeit not quite as visibly as the coverup.

Marshall’s point is important. The use of terminology that may have been entirely appropriate when applied to less venal political actors only serves to muddy the waters when we are dealing with unambiguously criminal behavior.

I understand the reluctance; we’ve never had an administration ignore the law this blatantly and proudly. But that’s what we have now, and refusing to accurately label what is obvious to anyone who is looking is akin to aiding and abetting.

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Things We Can’t Unsee

There’s plenty of speculation over the social and political effects of the Wild West that is the Internet. Optimists believe it’s a mechanism for democratic renewal; pessimists are certain it is shortening attention spans and facilitating the spread of conspiracy theories.

I lack sufficient expertise to evaluate most of these arguments/predictions, but I do know one thing: the Internet and especially social media have upended our ability to deny the extent of American racism.

Before social media, nice people–and I still believe nice people outnumber the not-so-nice–could tell ourselves that race relations were improving, that the civil rights movement had addressed most legal inequities, that the growing rate of intermarriage was a sign that old, tribal hatreds were subsiding.

And there has been progress– just a lot less than I used to think.

it isn’t just the explicitly racist websites. The Internet and the ubiquity of smart phones with cameras have combined, making it impossible to ignore the extent to which people are treated badly simply because they are black. In recent incidents, police have been called because a graduate student fell asleep in a common area of her dorm, because a picnicking family was grilling in a city park, and because two businessmen were waiting–without ordering– for a friend at a Starbucks. Those incidents are just recent examples; similar episodes constantly flood the Internet.

As distressing and hurtful as those sorts of experiences can be, the truly horrifying videos are those showing police officers killing unarmed black men–all too often in situations that defy justification.

A few months ago, here in Indianapolis, police officers shot and killed an unarmed motorist named Aaron Bailey. The officers weren’t charged with a crime, but after an internal investigation, the Police Chief recommended that they be terminated for failing to follow proper procedures. Terminations have to be approved by the Police Merit Board, however, and last week, at the urging of the police union, the Merit Board declined to approve the Chief’s recommendation. The Board accepted the argument that the officers had “feared for their lives.”

Perhaps they did. There’s plenty of research showing that white people generally–and police officers specifically–have an instinctive, often unreasonable, fear of black people.

The Indianapolis shooting is one of a long string of similar incidents that have been captured in videos and distributed on social media. It’s impossible to view some of these without thinking “If that guy had been white, the officer wouldn’t have shot him.” I think of Tamir Rice, a twelve-year-old playing with a toy gun; I think of Stephon Clark, who was shot in his grandmother’s back yard holding a cell phone. Type “police shoot unarmed black man” into google, and you get dozens and dozens of hits.

I was in City Hall when Indianapolis police arrested a young man named Michael Taylor. He was shot dead in the back seat of the patrol car, and the police swore he must have had a gun on him that they’d missed–that he’d shot himself. I remember how Bill Hudnut, the Mayor at the time, agonized over that episode. He desperately wanted to believe members of his police force, and he had no evidence on which to dispute their version of events, no matter how far-fetched it seemed.

Before cell-phone cameras and social media, nice people were often in denial of the extent to which Americans–including but certainly not limited to police– continued to harbor implicit and explicit racist attitudes, the extent to which our belief in progress was illusory.

Whatever else the Internet has done, it has forced us to confront a very unpleasant reality. That certainly doesn’t mean that every police shooting is unjustified, or that every conflict involving people of different races is prompted by bigotry.

But neither can we dismiss the now-exhaustively-documented fact that, in far too many cases, skin color makes the difference between being apprehended and being killed.

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Everything You Ever Wanted To Know About Privilege

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency. But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor. The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim, ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen. Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client. As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice. Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception. Communications between lawyers who collude with their clients to break the law are not protected. In this case, the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997). Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas. He argued that the civil case against him should not proceed because it would impede his duties as president. In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits. The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law. They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability. These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….

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Connecting The Gun Dots…

Nothing that happens, happens in isolation. That’s sometimes called “the butterfly effect,” the controversial assertion (linked to chaos theory) that a butterfly flapping its wings will eventually cause a hurricane in China.

The various human and social consequences of gun ownership are much less theoretical. A recent study conducted by Vox connects America’s widespread gun ownership to our epidemic of police shootings.

The study was prompted by the recent shooting of Stephon Clark in his grandmother’s back yard. Police thought the cellphone he was holding was a gun. This fatal error is increasingly common.

Officers have shot people after mistaking wrenches and badges for guns. Cops have shot people thinking that they’re reaching for a firearm when they’re really pulling up loose-fitting shorts. Police have shot multiple people thinking that a toy gun was a real firearm.

In all fairness, police have plenty of reasons to believe a target is armed. The United States has more guns in the hands of its citizens than any other country in the world. According to recent estimates, America has more guns than people.

“Police officers in the United States in reality need to be conscious of and are trained to be conscious of the fact that literally every single person they come in contact with may be carrying a concealed firearm,” David Kennedy, a criminologist at John Jay College, told me. “That’s true for a 911 call. It’s true for a barking dog call. It’s true for a domestic violence incident. It’s true for a traffic stop. It’s true for everything.”

This is one potential reason, experts said, that the US has far more police shootings than other developed nations. A 2015 analysis by the Guardian found that “US police kill more in days than other countries do in years.” Between 1990 and 2014, police in England and Wales shot and killed 55 people.

The Vox study, conducted with a researcher at the University of Chicago, established a correlation between weaker gun laws that facilitate higher rates of gun ownership and elevated numbers of killings by police officers. Correlation, of course, is not causation, but the results are suggestive. The researchers compared state-level gun laws to each state’s fatal police shootings.

The results: There is a correlation between killings by police officers and states’ gun control laws and gun ownership rates. The stronger the gun control laws, the fewer police killings. The higher the gun ownership rates, the more police killings. (You can see the raw data here and the comparison data here.)

As the researchers noted,

That suggests that while America has to address a whole host of issues to bring down its levels of police killings — from department-level policies to systemic racism — it also may be prudent to start thinking of police killings as inherently linked to America’s gun problem in general.

According to the article, the U.S. doesn’t have appreciably more crime than other countries, but we do have more violence associated with that crime. As one expert put it, people everywhere get into arguments and fights. But in the US, it’s much more likely that when a guy gets angry, he’ll pull out a gun and shoot someone.

There’s an old saying that even paranoids have enemies. Police who mistake wrenches and cell phones for guns are wrong, and they need to be trained to verify first rather than shoot first. But America’s gun culture is one reason they’re paranoid.

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Jeff Sessions And His War On Pot

Given the daily headlines generated by this Administration–everything from porn star lawsuits and tariffs to the escalating exodus from the White House (Bill Maher opined that this is the largest rush to exit since the British burned it)– it may have escaped most people’s notice that various cabinet officials are making a valiant effort to take America back to the last century.

Nowhere is that effort more concerted than in Jeff Session’s Department of Justice.

Sessions has refused to enforce consent decrees with various police departments. He has rolled back anti-discrimination measures. He’s re-instituted civil forfeitures (one of the few measures uniformly condemned by civil libertarians, criminal justice experts, and politicians from both parties). His retrograde policies about immigration have led him to sue California for its sanctuary efforts. His “tough on crime” initiatives ignore 25 years of criminal justice research.

But it is his unrelenting insistence on reinvigorating the discredited War on Drugs that best illustrates his passion for returning us to the 1950s. So it will be interesting to see what eventually happens with a lawsuit first filed last November.

Alexis Bortell, along with her father and other plaintiffs, including former NFL player Marvin Washington, filed suit in the Southern District of New York against the attorney general as well as the Department of Justice and the Drug Enforcement Agency ….

Alexis, whose family moved to Colorado from Texas to take advantage of the state’s legalization of recreational and medical marijuana, had been suffering since she was 7 from a form of epilepsy that cannot be safely controlled with FDA-approved treatments and procedures, the lawsuit says.

As a result, she often had multiple seizures a day. “Nothing she tried worked,” the suit states. When her family finally tried a form of marijuana, the girl found “immediate relief from her seizures.”

“Since being on whole-plant medical Cannabis, Alexis has gone more than two years seizure-free,” the suit says.

Alexis won’t be able to return to her native Texas where she qualifies for free college, because she would be subject to arrest if she continued to use marijuana to control her seizures.

Unfortunately, in February, the Judge dismissed the claims, citing precedent.

The Second Circuit has already determined that Congress had a rational basis to classify marijuana as a Schedule I drug,” Hellerstein writes, “and any constitutional rigidity is overcome by granting the Attorney General, through a designated agent, the authority to reclassify a drug according to the evidence before it. … There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind.”

However, Hellerstein immediately follows this conclusion with a paragraph suggesting that he is sympathetic to assertions that marijuana has medical uses.

“I emphasize that this decision is not on the merits of plaintiffs’ claim,” he points out. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives, One plaintiff in this case, Alexis Bortell, suffers from intractable epilepsy, a severe seizure disorder that once caused her to experience multiple seizures every day. After years of searching for viable treatment options, Alexis began using medical marijuana. Since then, she has gone nearly three years without a single seizure.”

Alexis wasn’t the only plaintiff: she was joined by six-year-old Jagger Cotte, who treats with cannabis for Leigh Syndrome, a horrible, terminal neurological disorder; former NFL linebacker Marvin Washington, who makes cannabis-based products for head trauma; Iraq War veteran Jose Belen, who suffers from post-traumatic stress disorder and was given the option of “opioids or nothing” from the Veterans Administration; and the Cannabis Cultural Association, a nonprofit concerned with racial disparities in drug policy enforcement.

All indications are that the dismissal will be appealed to the Second Circuit, and no matter who wins there, probably to the Supreme Court. Meanwhile, Jeff Session’s Justice Department will continue to ignore both the overwhelming consensus of research and the undeniable, abject failure of the 20th Century’s drug war.

In Trump’s America, of course, evidence and expertise are irrelevant.

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