Criminal Justice – Page 17

Breach of (Social) Contract

Thanks to ubiquitous smart-phone cameras, social media and Black Lives Matter, the general public can no longer ignore accusations that officers in a number of police departments routinely use excessive force and engage in unconstitutional behaviors. Investigations by the U.S. Justice Department—most recently in Baltimore— confirm persistent, systemic practices that violate the rights of the citizens we expect police to serve and protect.

For a year following the death of Freddy Gray, the Justice Department monitored the Baltimore police department. The results of that investigation were unambiguous: unconstitutional practices included disproportionate rates of stops, searches and arrests of African-Americans, and excessive use of force against juveniles and people with mental health disabilities. The report attributed these practices to “systemic deficiencies” in training, policies, and accountability structures that “fail to equip officers with the tools they need to police effectively.”

A DOJ investigation of police in Ferguson, Missouri, reached a similar conclusion, finding a “pattern and practice” of discrimination against African-Americans that targeted them disproportionately for traffic stops, use of force, and jail sentences.

Baltimore and Ferguson are hardly unique.

As a practical matter, widespread distrust makes policing infinitely more difficult. Good policing depends upon access to reliable information and co-operation with community leaders; avenues of communication dry up when police are seen as enemies rather than protectors.

Far more troubling than the practical consequences of unprofessional behavior, however, is the damage done to America’s social fabric by what can only be seen as a breach of our most fundamental social contract.

The Enlightenment philosophers who influenced America’s founders proposed a trade of sorts; we call that trade the “social contract.” Citizens would give government the exclusive right to exercise coercive force; in return, government would use that force to protect individual rights—to provide for a society of “ordered liberty,” within which the strong could not prey with impunity on the weak.

We Americans argue constantly about the proper role of government, but there is no serious debate about the state’s obligation to provide for the public safety, or about the right of all citizens to expect equal justice before the law.

When government fails to keep its part of that essential bargain, when it breaches the social contract, it damages the bonds of citizenship and undermines the rule of law.

An old lawyer once told me that there is only one legal question: what should we do? How can our dysfunctional police departments go about changing entrenched, perverse cultures? A few suggestions, drawn from the research literature:

Training is key—and currently very uneven. A number of police departments across the country have instituted effective training programs that help individual officers understand implicit bias, calibrate their responses to the magnitude of the threats encountered, and learn techniques that calm, rather than exacerbate, confrontations. Those programs need to be replicated everywhere, but especially in troubled departments.

Policies governing police activities need to be clear, effectively communicated to the rank and file, and fairly and strictly enforced. Those policies should also be vetted by lawyers familiar with the Constitution and especially the jurisprudence of the First and Fourth Amendments.

Collection of accurate, relevant data is critical. Data is the means by which we measure progress, the standard against which we determine the appropriateness of behavior. It allows self-evaluation, and its public availability also allows other stakeholders to hold police accountable. That data should allow the department to identify problematic officers and intervene before they cross a serious line.

Every police department should have a transparent complaint process accessible to citizens, and complaints against police officers should not be evaluated solely by their peers. (In Baltimore, this was evidently a source of considerable—and understandable—distrust.) Complaints should be reviewed by disinterested parties, and policies prohibiting retaliation for filing a complaint should be strictly enforced.

In the long term, departments should focus more attention on the way they recruit and select new police officers. The recruiting process should include psychological examinations to weed out men and women who are likely to abuse authority, or who are otherwise unsuited to the stresses of the profession. And it should go without saying—so I’ll say it—departments should aim for recruits who are representative of the populations they will serve. That sounds easier than it is, but the results are worth the effort.

If Americans still believe in e pluribus unum—if we still want to unite, rather than divide, our many communities—fixing our policing problem is an essential first step.

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Smoking and Drinking

Have you ever wondered about the disparity in the way the law treats alcohol, tobacco and marijuana?

As any police officer will attest, a nasty drunk is far more dangerous than someone zoned out on “weed.” As the scientific literature will confirm, tobacco is many times more harmful than marijuana. Not only has the belief that marijuana is a “gateway drug” proved bogus, but for adults, it is less harmful than either smoking or excessive ingestion of alcohol. (No one has ever died of a marijuana overdose, although if your preferred method of indulging is brownies, I suppose the resulting obesity might get you.)

People with addictive personalities will abuse whatever is at hand–alcohol, drugs, even glue. Should we outlaw glue?

The history of America’s war on drugs is too labyrinthian and too racist to recount here, and there are plenty of books and articles on the subject if you are interested in the whole sordid story. Suffice it to say that our mindless war on weed has made the once-profitable cultivation of hemp illegal, prevented study of marijuana’s medicinal value, and not-so-incidentally ruined countless lives (mostly African-American; black people are almost four times more likely to be arrested for marijuana possession than whites, even though both groups use the drug at roughly the same rate.).

But attitudes are finally changing.

In 1969, according to the Pew Research Center, 84 percent of Americans thought the drug should be illegal; by 2015, that number had fallen to 44 percent.

After Colorado became the first state to legalize marijuana, policymakers began to seriously consider a number of issues–especially pot’s potential to generate tax revenue.

Legalization raises a number of questions with policy implications. For example, how can it be taxed? In 2015, Colorado raised $135 million in taxes and fees from legal sales. Another important question: Will states that stop arresting people for selling or having marijuana save money on policing and reduce their incarceration rates? Some 620,000 people were arrested for marijuana possession in 2014, according to the FBI; young minority men were disproportionately targeted. Will more children take to smoking weed? As laws relax and the stigma associated with marijuana recedes, people may use more.

A study from Australia suggests some answers to those questions. The authors looked at what consequences we might expect if marijuana were regulated like alcohol and sold to people above the age of 21. They extrapolated their analysis to include the United States, a country with similar cultural behaviors and economies. Here are some of their findings:

The U.S. could raise between $4 billion and $12 billion annually by taxing legal marijuana. These numbers are based on a tax levy of about 25 percent, which is what the state of Colorado charges.
When people have more access to marijuana (through legal and illegal means) more people use it.
Currently, 17 percent of Australians say they do not use cannabis for fear of legal repercussions; 90 percent of those say that access is not the reason.

Access is evidently not a problem for people in either country; several years ago, an American study found that teenagers in Maryland could obtain illegal marijuana (and other drugs) much more easily than they could obtain legal but regulated alcohol. Legalization and regulation similar to that currently in place for liquor stores would probably reduce today’s easy availability.

The authors determined that a tax rate of 25% wasn’t high enough to incentivize a black market. One of the (many) negative consequences of drug prohibition is the fact that it makes an illegal market profitable.

In the U.S., tobacco and alcohol interests have powerful lobbies, so those substances are legal even though they do far more harm than marijuana.

Just to be clear, I don’t advocate prohibition for any of these; we’ve seen how well that works. Substance abuse is a public health problem; it shouldn’t be a matter for the criminal justice system.

Wouldn’t it be nice if we based public policy on evidence and analysis, rather than moralism and money?

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“Facts Don’t Win Elections”

Over at Dispatches from the Culture Wars, Ed Brayton recently reflected upon the disconnect between crime statistics and popular beliefs about violent crime.

The disconnect between actual rates of violent crime and the public perception of the rates of violent crime is astonishing. In 2014, 63% of Americans believed that violent crime was going up when, in reality, it’s been dropping steadily for 25 years and has dropped 20% in the last 8 years. In fact, a majority of Americans have believed that every year since 2003.

There are several explanations that can be offered for that disconnect, but undoubtedly, the media bears considerable responsibility. Not only do news sources–particularly television news–focus on crime (“if it bleeds, it leads”), but the number of movies and popular television shows that feature crime fighters of one sort or another (everything from the multiple versions of Law and Order and NCIS to lawyer shows to cops and robbers) sometimes seem to dwarf other kinds of subject matter.

It isn’t just that the media report so prominently on local crime incidents. In the age of globalization, we see reports from all around the world. Did a bomb go off in a London subway? It makes the evening news. Was someone murdered in Paris? It makes the evening news. The impression is that danger lurks everywhere.

It isn’t all that innocent, however, as Brayton points out.

But I think there’s one more element to this that is important. One of our two major political parties has a huge interest in convincing people that violent crime is getting worse instead of better. And one of the most influential interest groups for that party, the NRA, has become little more than the marketing wing of the gun industry. And surveys also show that support for gun rights goes up as fear of crime goes up. So there is a huge incentive to lie to people and convince them that crime is going up. And since, as noted above, most people have no experience with actual violent crime, the media images and political messages that focus on violent crime are more likely to be effective.

Thus you get what happened at the RNC, where they were selling not only the idea of a dystopic future but a dystopic present. They presented America as a hellscape of violence that simply does not exist, despite some high-profile situations that got enormous media saturation. It has never been safer to be an American. It’s never been safer to be a cop in America. Those are the facts. But facts don’t win elections.

Facts. Evidence. Reality. Next to a good story, I guess they don’t stand much of a chance.

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Black and Blue

I know I am not the only American who is struggling to come to terms with the events of the past week: the videos of police killing black men whose “crimes” consisted of selling CDs and driving with a broken taillight, the equally horrendous murder of Dallas police by a U.S. Army reservist bent on “killing white people,” and the use of a sophisticated robot to kill, rather than incapacitate or capture, that gunman.

Most reasonable people understand that every group–racial, occupational, whatever–has its bad apples, deranged or bigoted or otherwise damaged individuals. In the case of police, the rogue behaviors displayed by a small percentage of officers makes police work more difficult and more dangerous: for one thing, when people fear and distrust law enforcement, they are unlikely to co-operate and provide helpful information; for another, as we have seen in Dallas (and last year in New York), shocking evidence of such behaviors can provoke attacks on all police by unstable individuals.

When one of those attacks, or another high-profile crime, is committed by a black person, it reinforces stereotypes of black criminality, making the lives of the vast majority of black citizens more difficult. (Of course, when whites like Dylan Roof massacre churchgoers, his actions do not feed into widespread beliefs that all whites are murderous. The fact that whites are not seen as monolithic and interchangable, while marginalized minorities are treated as if members of those groups (African-Americans, Muslims, etc.) are fungible, is one aspect of what has come to be known as white privilege. The difference is incredibly unfair, but it exists.)

The question before us is: what do we do?

There are practical steps we can take to reduce the likelihood of gratuitous police violence; many police departments are already implementing better training protocols and better psychological screening of applicants, and others–especially in smaller, less professionalized police forces– need to do so. We also need to eliminate systems like the one in Ferguson,where citations for low-level infractions actually funded the police department, incentivizing unnecessary confrontations between citizens and police. (For that matter, we need to stop criminalizing everything from not using your seatbelt to driving with a broken taillight, and let police focus on crimes against person and property.)

As many people have pointed out, when everyone is armed to the teeth, we shouldn’t be surprised by gun violence. If not for the NRA’s stranglehold on our feckless lawmakers, we might be able to institute some reasonable restrictions on gun ownership.

Those and other measures should certainly be undertaken, but they ignore the elephant in the room.

Racism is certainly nothing new in America, but over the past few years we have seen an upsurge in nativism and bigotry of all sorts. It began with the ubiquity of talk radio–with Rush Limbaugh and his clones, who made money by appealing to the discontents of older white men, assuring them that women and African-Americans and various “others” were taking jobs and status that was rightfully theirs. Fox News followed the script and amplified the resentments.

It got worse when we elected an African-American President; evidently, the thought of a black man occupying the White House was enough to make previously closeted white supremacists crawl out from under their rocks.

That led to Donald Trump, and his attack on “political correctness”–an attack seen by legions of angry white guys as permission to discard hard-won norms of civility and respect. In Trump World, it is disdained as “politically correct” to refrain from ridiculing the disabled; “politically correct” not to display crass racism; “politically correct” to refrain from sexualizing or demeaning women.

Ultimately, what keeps police from disregarding the worth of black lives is a culture that genuinely values those lives. What keeps most citizens from breaking the law are social norms that value the rule and role of law. What keeps our diverse and polyglot nation from disintegrating is the conviction that we share an identity as Americans, that there is a “we” that supersedes our various tribal commitments.

Americans will probably never live up to our highest aspirations and principles, but when we discard them, when we celebrate crudity and name-calling and bigotry as “telling it like it is,” we betray those principles and degrade our communal life. Worse, we give damaged people from all groups encouragement to act on their anti-social impulses.

Last week wasn’t a face-off between black and blue. It was a test for us all.

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Crime and Punishment

When I was practicing law, I often heard people complain about judges and prosecutors when those officials reached conclusions with which they disagreed. In most instances, the complaints were based on a lack of understanding of the facts of the case, the legal rules involved, or both. That was particularly true of criminal accusations.

Let’s say you are texting and driving. You know better; Public Service Announcements tell you how dangerous it is. Your mother tells you how dangerous it is. But your state has no law against it, and you think you’re in control. While you are texting, you crash into another car, injuring a passenger and totaling the vehicle.

Or let’s say you made the potato salad for the family’s picnic. It’s a really hot day and the sun is beating down. You know that foods with mayonnaise shouldn’t be left in the heat, but you are tending to other things. When everyone finally sits down to eat, several people get violently ill and it’s traced to the spoiled mayo.

Or let’s take a far more serious situation: you are one of those “good guys” with a gun. You bought it legally and have a permit to carry it. You have it in a holster, and for some reason, when you sit down, it discharges, killing a bystander.

In each of these scenarios, you have been responsible for harm. In none of them have you committed a crime, because criminal acts require something the law calls mens rea–criminal intent. In order for the state to charge you with a crime, it must have evidence that you intentionally committed a criminal act. Negligence and stupidity are not crimes.

That is not to say that your actions cannot be punished. In each of my examples, the persons harmed can bring civil actions against the negligent person who caused the harm, and can recover damages. In addition, your actions can be reported by the media, censured by your neighbors and provide reason for your boss and others to lose confidence in your judgment.

The FBI investigated Hillary Clinton’s use of her own email server, and found no evidence of intentional wrongdoing sufficient to charge her with a crime. The investigation found (and severely criticized) carelessness–both in Clinton’s handling of her emails and in what the agency characterized as the “culture” of the State Department. The conclusion was not that she hadn’t done anything wrong; the conclusion was that the wrong was not criminal in nature. (Click here for a more extensive explanation of the legal standards and relevant statutes.)

Individual voters can–and will–decide for themselves whether they think this particular breach of judgment makes Clinton unfit to be President. If she weren’t running against a certifiable psychopath, it might well cost her the election; but even if it doesn’t, even if she wins handily, it will cost her significant political capital (indeed, it already has) and will give additional ammunition to those who despise her.

Although it does not excuse her breach, the investigation’s discovery that many other State Department officials (including but not limited to Colin Powell and Condoleeza Rice) have used and continue to use personal servers because of the ponderous nature of the “official” system should lead to a formal review of the agency’s technology systems, and to an effort to improve the State Department’s evidently unwieldy system.

Rather than Congressional action that might reduce incentives to bypass the rules, however, we have Paul Ryan’s announcement that the GOP will now “investigate” the FBI for reaching a conclusion partisans dislike.

The FBI investigation was conducted by a Republican appointed by George W. Bush, a man with a reputation for independence and unimpeachable ethics. Ryan’s willingness to besmirch that reputation and impugn the credibility of the FBI in order to make political points is something we might expect from Donald Trump, but is exceedingly disappointing (albeit not surprising) coming from the Speaker of the House.

At some point, it would be nice if our political actors focused upon making government work better, and left toxic gamesmanship behind. But I’m not holding my breath.

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