Category Archives: Criminal Justice

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.

Comments

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.

Comments

Why Prisons Should Never Be Privatized

There are some things that government–not the private sector–simply must do.

As I have written many times before, whether it makes sense to “contract out” the provision of government services is not an either-or question. The decision will depend upon a number of considerations: is this a core government responsibility? is it important to maintain institutional competence? does the government agency have the ability to adequately monitor contractors?

And especially–what are the negative consequences we might anticipate from a decision to grant governmental authority to private, for-profit enterprises?

The Justice Policy Institute has just released a report confirming a major concern voiced by critics of private prisons: the likelihood that those who profit from incarceration will lobby for harsher criminal justice penalties and seek to derail needed justice system reforms.

According to the report,  private prison companies actively engage in lobbying intended to protect and grow their profits, by working for harsh policies and longer sentences.

The authors report that while the total number of people in prison increased less than 16 percent, the number of people held in private federal and state facilities increased by 120 and 33 percent, respectively. As ThinkProgress reports,

Government spending on corrections has soared since 1997 by 72 percent, up to $74 billion in 2007. And the private prison industry has raked in tremendous profits. Last year the two largest private prison companies — Corrections Corporation of America (CCA) and GEO Group — made over $2.9 billion in revenue.

JPI claims the private industry hasn’t merely responded to the nation’s incarceration woes, it has actively sought to create the market conditions (ie. more prisoners) necessary to expand its business.

According to JPI, the private prison industry uses three strategies to influence public policy: lobbying, direct campaign contributions, and networking. The three main companies have contributed $835,514 to federal candidates and over $6 million to state politicians. They have also spent hundreds of thousands of dollars on direct lobbying efforts. CCA has spent over $900,000 on federal lobbying and GEO spent anywhere from $120,000 to $199,992 in Florida alone during a short three-month span this year. Meanwhile, “the relationship between government officials and private prison companies has been part of the fabric of the industry from the start,” notes the report. The cofounder of CCA himself used to be the chairman of the Tennessee Republican Party.

One of the primary reasons governments exist is to provide for the public safety. Decisions about the most effective ways to accomplish that should be made on the basis of evidence, by disinterested policymakers carefully considering what the research tells us about the efficacy of various approaches.

The private prison industry is spending millions of dollars opposing efforts to reform the nation’s drug laws–reforms based upon years of research demonstrating that the Drug War has been a costly failure, and that imprisoning thousands of low-level offenders has been counter-productive.

Americans spend millions of dollars on the criminal justice system. Those dollars are supposed to make us safer–not make private interests richer.

Comments

Hate and Crime and Punishment

Can the law protect members of disfavored groups against hate crimes without running afoul of the First Amendment?

Indiana is one of a very few states that does not currently have a hate crimes statute, and a number of very well-meaning people point to that as evidence that we are condoning acts motivated by animus based upon race, religion, ethnicity or sexual orientation. Although animus may well explain some part of the opposition to such measures, there are legitimate reasons to go slowly when we consider criminalizing “hate.”

The American Constitution differentiates between actions which government is entitled to prohibit and/or punish, and ideas–no matter how harmful or despicable–that government is prohibited from sanctioning. (This distinction escapes too many of us; it is the reason that those “beleaguered” bakers and florists are free to disapprove of same-sex marriage–and to voice that disapproval–but not free to refuse service to same-sex customers.)

That brings us to another misunderstanding–a conflation of criminal intent with motive. 

In order for government to prove that a crime has been committed, a prosecutor must show that the accused actually intended to commit a crime. An affirmative answer to “Did the accused know it was rat poison when he put it in the stew he fed to the deceased?” establishes criminal intent. If the defendant can prove it was an accident–that he thought that tin contained paprika–he can be punished for negligence, but not for a crime.

His motive for putting rat poison in the stew, however, is irrelevant to the punishment.

Many proponents of so-called “hate crimes” legislation want to add punishment for the motive that led to the criminal act.  (For example, if I beat you senseless after we fought over money, I might face a sentence of 2-4 years, but if I beat you senseless because I hate  Episcopalians, the sentence range would increase to 3-5. We’d add a year based upon the motive.)

Opponents note that this approach effectively criminalizes the thought–the idea– that prompted the attack.

Proponents argue that these statutes send a message–that they are an important signal of our collective disapproval of bias.

Fortunately, there is a middle way that should satisfy the concerns of both camps.

When a defendant has been found guilty of a crime–murder, battery, vandalism, whatever–the typical statute provides a range of fines or sentences. The Judge decides whether to impose a sentence at the top or the bottom of that range, and s/he makes that determination after taking into account all mitigating and aggravating circumstances.

For example, if a first-time offender is facing 2-4 years, and has exhibited remorse, the Judge may opt for two years; if the defendant is a repeat offender with an “attitude,” the Judge may opt for four years.

There is no reason why the existence of bias cannot be an aggravating circumstance. (I would be surprised if it isn’t already part of the sentencing calculus in most courts.) Such an approach–explicitly used in several jurisdictions–avoids setting a fixed penalty for “bad thoughts” without requiring the criminal justice system to ignore the kinds of hateful influences that we collectively deem socially detrimental and (truly) unAmerican.

Hate crimes legislation is just another example of the cautionary adage: how you do something is every bit as important as what you do.

Comments

The Real Bottom Line

Washington Monthly’s Political Animal blog recently considered the impact of recent revelations that Exxon had covered up–lied about– decades of its own research on climate change.

In a move that echoes similar scandals involving the tobacco industry and cancer research, Exxon conducted research into fossil fuels and global warming, discovered it had a major problem that threatened public safety, and quickly decided to start intentionally misleading the public and peddling doubt and uncertainty rather than confront the problem.

Exxon could have chosen to expose the problems with fossil fuels and become the world’s leading investor in and producer of renewable energies. It would have been risky and reduced short-term profits, but it would potentially have set the company up for massive long-term growth. It would also, of course, have been the right thing to do. But that’s not the path Exxon chose. Exxon chose to lie, cheat, cover up, collude with other oil companies, and bring the entire world to the brink of global climate disruption and destruction.

When does a company’s efforts to protect its bottom line become criminal?

When small businesses engage in fraudulent behaviors–the auto mechanic who lies about the work your car requires, the doctor who performs unneeded procedures, the jeweler who sells you a “gold” necklace that isn’t–we prosecute those responsible.

The powers-that-be have deemed certain financial institutions “too big to fail”– and also, evidently, too big to prosecute. Is “big energy” similarly exempt from the laws that govern the rest of us?

Does the sheer magnitude of the harm they’ve done somehow insulate them?

What’s the real bottom line?

Comments