Criminal Justice – Page 2

The More We Learn…

It’s a conundrum.

Any civilized society operates by creating and enforcing rules. Social tranquility depends upon choosing wise people to make the rules and fair-minded people to enforce them.Right now, America isn’t doing too well with either of those populations.

This blog spends an inordinate amount of time on the clown show that is the U.S. House of Representatives, but problems with enforcement–with policing–are equally thorny.

From the beating of Rodney King to the murder of George Floyd and the multitude of other unwarranted violent episodes, Americans have been inundated with video evidence of questionable police behavior.

And “questionable” is frequently the correct word. As public safety professionals will tell us, protecting the public often requires split-second decision-making in situations that are a lot more ambiguous than they appear after the fact. Given the difficulties they face, giving police the benefit of reasonable doubt is only fair.

But all doubt isn’t reasonable.

Reporters keep uncovering deeply disturbing evidence of a racist, anti-Semitic and thuggish culture that persists in a troubling number of police departments. A year or so ago, one such culture was exposed in Torrance ,California . Text messages that had circulated among current and former officers of the city’s Police Department “reveal a culture rife with racism, antisemitism, and homophobia going back at least a decade.”

The texts are extremely violent in nature and grotesquely racist, homophobic, and antisemitic.

According to reporting from the LA Times, one text shows a picture of a candy cane, a Christmas tree ornament, a star for the top of the tree, and an “enslaved person.”

“Which one doesn’t belong?” the caption asks.

“You don’t hang the star,” someone replies.

Another message reads “hanging with the homies,” attached was a photo of several Black men who had been lynched.

Another photo asks what someone would do if their girlfriend was having an affair with a Black man. The captioned response was to break “a tail light on his car so the police will stop him and shoot him.”

Prosecutors say the messages go back years and could jeopardize hundreds of criminal cases in which the officers either testified or made arrests.

The LA Times identified 13 current and former police officers and one Long Beach cop who are now under investigation. At least nine of the officers texted images or commentary advocating violence against Black people and LGBTQ community members and ridiculing racial profiling.

There was much more, and all horrific. Discovery of the texts was triggered by an investigation of two former Torrance police officers who had spray-painted a swastika inside a resident’s car.

If Torrance was an isolated instance, it would be troubling enough, but in the last few years, we’ve seen repeated evidence that these White Supremacy attitudes are widespread among both the police and the military.

As the linked article by an FBI agent now with the Brennan Center warns:

For decades, the Federal Bureau of Investigation has routinely warned its agents that the white supremacist and far-right militant groups it investigates often have links to law enforcement. Yet the justice department has no national strategy designed to protect the communities policed by these dangerously compromised law enforcers. As our nation grapples with how to reimagine public safety in the wake of the protests following the police killing of George Floyd, it is time to confront and resolve the persistent problem of explicit racism in law enforcement.

I know about these routine warnings because I received them as a young FBI agent preparing to accept an undercover assignment against neo-Nazi groups in Los Angeles, California, in 1992. But you don’t have to take my word for it. A redacted version of a 2006 FBI intelligence assessment, White Supremacist Infiltration of Law Enforcement, alerted agents to “both strategic infiltration by organized groups and self-initiated infiltration by law enforcement personnel sympathetic to white supremacist causes.”

As the officer who wrote the above article pointed out, If the U.S. government found out that al-Qaida or a similar foreign terrorist organization had infiltrated American law enforcement, it would immediately launch a nationwide effort to identify those individuals and neutralize the threat.

Yet white supremacists and far-right militants have committed far more attacks and killed more people in the U.S. over the last 10 years than any foreign terrorist movement. The FBI regards them as the most lethal domestic terror threat. The need for national action is even more critical.

We the People need the police. But we need the right kind of police. That requires hiring practices capable of weeding out thuggish, bigoted applicants, and training that emphasizes service to all parts of the communities they will be hired to protect.

We have a problem, and public safety requires that we fix it.

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State-Level Autocracy

If you resist believing that today’s GOP is intent upon replacing democracy with autocracy– controlled, of course, by the GOP–you need only look at what they are doing in the states.

One person, one vote? How old-fashioned!

Efforts to negate the popular vote have moved way beyond gerrymandering. In Wisconsin, Republicans are exploring ways to undo the election of a state Supreme Court Justice who won by eleven points. Texas’ lunatic legislature has passed a different set of rules for cities populated by “those people,” who tend to vote Democrat.

And then, of course, there’s Ron DeFascists’ Florida, where folks who voted for their local prosecutor can wake up to find that the governor has summarily dismissed their electoral choice. The Brennan Center (link unavailable) recently focused on his latest arbitrary and undemocratic dismissal of a popularly elected official.

In 2020, Monique Worrell was elected to serve as the prosecutor for the Orlando area. She’d campaigned on a reform platform that evidently was too “woke” for DeSantis, who proceeded to suspend her from office for “neglect of duty and incompetence.” Worrell has filed suit in the Florida Supreme Court challenging her suspension.

Worrell’s lawsuit is one of a number of current state court cases that raise important constitutional questions about the scope of prosecutorial discretion — the power of prosecutors to decide when and how to charge crimes, seek bail or sentencing enhancements, or make other decisions about how they pursue cases. It’s an issue receiving scrutiny across the country, with laws recently enacted in Georgia and Texas authorizing prosecutors’ removal for certain uses of discretion.

The Florida Constitution authorizes the governor to suspend prosecutors like Worrell for specified reasons, including neglect of duty or incompetence. In her lawsuit, Worrell argues that DeSantis failed to allege any conduct meeting that constitutional standard.

Worrell’s office had no policy or practice of failing to enforce certain laws, and her charging decisions were well within the bounds of what most lawyers consider to be proper prosecutorial discretion. Policy differences between a local prosecutor and a governor are not legal grounds for suspension.

This isn’t the first time DeSantis has targeted an elected local prosecutor. In 2022, he suspended Tampa-area prosecutor Andrew Warren, citing pledges he signed not to prosecute certain types of cases, including those related to abortion and gender-affirming health care.

A federal court ruled that Warren’s suspension violated both the Florida Constitution and the First Amendment, but the court held that it lacked the authority to reinstate him. The Florida Supreme Court — which would have the authority to overturn the governor’s suspension — then rejected a petition from Warren filed six months after his suspension after concluding he had waited too long to file. Worrell’s petition, filed less than a month after her suspension, will likely force the state high court to directly consider the relationship between the governor and local prosecutors in implementing criminal justice policy.

Similar issues are pending in other state supreme courts. In Pennsylvania, Philadelphia District Attorney Larry Krasner is challenging his 2022 impeachment by the state house of representatives, arguing that his exercise of discretion did not constitute “misbehavior in office.” Georgia prosecutors are challenging a law imposing new limits on their discretion and creating new mechanisms to remove them from office. In Arizona, taking his cue from Republicans, the state’s Democratic governor stripped local district attorneys of the power to prosecute cases under the state’s 15-week abortion ban, using an executive order to transfer that power to the state attorney general, who has vowed not to enforce it.

These autocratic exercises significantly undercut democracy.

According to the New York Times, Ms. Worrell had been elected with 66% of the vote, and she released data showing that her prosecution rate was similar to that of two of her predecessors. Whether her performance was unsatisfactory was a question for the voters–not the Governor–to decide.

DeSantis justified her removal by citing several offenders who had committed crimes after serving their (presumably insufficient) sentences, or while out on bail; Ms. Worrell responded by pointing out that examples cited by the governor involved factors beyond a prosecutor’s control. Sentences and bonds are set by judges who are free to overrule prosecutors’ recommendations.

And she said that much of the information that was used to build a case against her came from local law enforcement officials who oppose her because she has prosecuted police officers, including one who shot an unarmed person.

“My message has been consistently, whether you’re a Democrat or Republican, whether you like me or you hate me: Democracy is under attack,” she said. “Duly elected officials should not be removed by elected officials who are not politically aligned with them.”

Autocrats-R-Us disagree.

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Take That, Dim Jim Jordan!

If I ever grow up, I want to be Fani Willis. That woman can cast shade!

I just read the 9 page letter she sent to Congressional buffoon Jim Jordan. Jordan had demanded that the hardworking Georgia prosecutor who indicted Trump and others provide him with all documents relating to the case.

Her response was epic. You can read it in its entirety here.

Vanity Fair is just one of the numerous media sources that reported on that response.Here’s the lede:

In a withering letter, the subtext of which was basically “You’re a f–king idiot and I can’t believe I have to take the time out of my day to deal with you,” Fulton County district attorney Fani Willis blasted House Judiciary chair Jim Jordan and his demand that she turn over all documents related to her case against Donald Trump and the 18 other people she indicted last month. If this letter doesn’t cause Jordan such embarrassment or shame that he leaves town immediately never to return, nothing will!

Nothing will. Although Willis’ takedown should humiliate Jordan, his bizarre histrionics suggest he is impervious to shame.

Willis’ letter addresses Jordan’s constitutional ignorance.

Your attempt to invoke congressional authority to intrude upon and interfere with an active criminal case in Georgia is flagrantly at odds with the Constitution … There is absolutely no support for Congress purporting to second guess or somehow supervise an ongoing Georgia criminal investigation and prosecution. That violation of Georgia’s sovereignty is offensive and will not stand.” Apparently operating from the assumption that the House Judiciary chair knows less about how the US government works than a third grader, she added: “As the Supreme Court has explained, ‘the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’ Congress, in contrast, is barred by precedent from using investigations for ‘law enforcement purposes.’ You have thus violated the basic constitutional rule that ‘the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary’.”

For its part, Politico quoted the part of Willis letter responding to Jordan’s contention that, as a candidate for President, Trump deserved different treatment:

An announcement of a candidacy for elected office, whether President of the United States, Congress, or state or local office, is not and cannot be a bar to criminal investigation or prosecution. Any notion to the contrary is offensive to our democracy and to the fundamental principle that all people are equal before the law.

Snarky parts of the letter that I particularly enjoyed:

Your public statements and your letter itself make clear that you lack any legitimate legislative purpose for that inquiry: your job description as a legislator does not include criminal law enforcement, nor does it include supervising a specific criminal trial because you believe that doing so will promote your partisan political objectives….

Chairman Jordan, I tell people often, “deal with reality or reality will deal with you.” It is time that you deal with some basic realities. A Special Purpose Grand Jury made up of everyday citizens investigated for 10 months and made recommendations to me.

A further reality is that a grand jury of completely different Fulton County citizens found probable cause against the defendants named in the indictment for RICO violations and various other felonies. Face this reality, Chairman Jordan: the select group of defendants who you fret over in my jurisdiction are like every other defendant, entitled to no worse or better treatment than any other American citizen.

Here is another reality you must face: Those who wish to avoid felony charges in Fulton County, Georgia — including violations of Georgia RICO law — should not commit felonies in Fulton County, Georgia.

I especially loved this:

Your questioning of the inclusion of overt and predicate acts by the defendants in the indictment’s racketeering count shows a total ignorance of Georgia’s racketeering statute and the basics of criminal conspiracy law. Allow me the opportunity to provide a brief tutorial on criminal conspiracy law, Chairman Jordan.

As I explained to the public when announcing the indictment, the overt and predicate acts are included because the grand jury found probable cause that those acts were committed to advance the objectives of a criminal conspiracy to overturn the result of Georgia’s 2020 Presidential Election.

For a more thorough understanding of Georgia’s RICO statute, its application and similar laws in other states, I encourage you to read “RICO State-by-State.” As a non-member of the bar, you can purchase a copy for two hundred forty-nine dollars [$249].

If we had more public officials with Fani Willis’ smarts and spine, MAGA blowhards like Jordan wouldn’t be embarrassing Congress–and America.

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The Politics Of Crime

There’s a reason for that old journalism mantra “if it bleeds, it leads.” Most people are concerned about their own safety, for one thing, and are more likely to read about threats that might affect them. And crime is (superficially) straightforward and easy to understand. Good guys versus bad guys.

The characteristics that explain media’s focus on crime also apply to political campaigns, particularly at the local level. Here in Indianapolis, the Republican candidate for mayor has run a campaign almost entirely focused on the incumbent’s asserted inability to reduce criminal activity, insisting that he–the Republican–“has a plan.” (Presumably, the incumbent doesn’t?)

This campaign strategy–and the interminable advertisements hawking it–really annoys me.

For one thing, it ignores the fact that criminal activity in Indianapolis is hardly unique; our problems mirror national ones. This single-minded and exaggerated focus on crime also ignores the multiple other areas of governance that a mayor is responsible for providing. (Listening to those ads, you’d be forgiven for thinking this guy is running for sheriff, not mayor.)

Of course, the campaign in Indianapolis is pretty standard GOP strategy. The “law and order” party (a label that–given MAGA and Donald Trump–makes sentient Americans laugh) continues to scream about crime–which it almost always attributes to urban areas. (After all, Blue cities are where most of those scary Black folks live…)

The data begs to differ.

Republican politicians often treat it as an established fact: Where they are in power, crime is low. Where Democrats are in power, crime is high.

“Republican-run cities are doing very nicely because they arrest people when you have crimes,” Donald Trump told Tucker Carlson last week.

“The cities and these left-wing states allowing criminals to run wild on our streets, that doesn’t work,” Ron DeSantis, Florida’s governor, said in March, citing New York in particular.

But party rule does not drive crime. Consider DeSantis’s state, Florida. Its homicide rate was roughly 50 percent higher than New York’s in 2021. Florida’s two most populous cities, Jacksonville and Miami, each had a homicide rate more than double New York City’s last year, even though both had Republican mayors.

As the article points out, the data shows no connection between political partisanship and crime. “To put it another way, prominent Republicans are misrepresenting the country’s crime problem.”

The linked article referenced a number of reasons for America’s stubborn crime rates, especially the widespread availability of guns.

Access to guns is another major factor, particularly for murders. Guns make any conflict more likely to escalate into deadly violence, and they can embolden criminals. On this issue, there is a partisan divide — Democrats are more comfortable regulating firearms — and that could help explain higher levels of violence in Republican states, especially in the South. It can also explain violence in cities, which get a lot of guns from Southern states with laxer laws.

Indiana’s legislature, which is dominated by rural interests and which includes a number of members who are widely considered “gun nuts,” has ensured that the Hoosier state’s gun laws are as lax as those of any Southern state, if not more.

Mike Leppert recently had a column on the costs of that laxity. In the wake of the last mass shooting, he wrote

We don’t ever talk about what it all costs. No, in most circles, it doesn’t get a mention. An accounting of the cost of guns is rarely undertaken, and when it is, the numbers are so shocking and enormous, the study usually falls victim to the post-truth era in which we live.

After confirming that in the year since “permitless” carry became the law in Indiana, gun related crime increased, Leppert wrote

As reported by Casey Smith of the Indiana Capital Chronicle on Aug. 21, accidental shootings are on the rise. Smith wrote: “Since July 2022, the Indianapolis Metropolitan Police Department (IMPD) has been tracking accidental shootings, specifically. IMPD found non-fatal, accidental shootings more than doubled in February 2023 compared to February averages in the last 5 years. There were as many as 75 such incidents for the last half of 2022, and more than 75% of those were self-inflicted.”

There’s a cost to each one of them. Medical costs. Emergency responses. Productivity loss….

Everytown Research and Policy published its sweeping report on the cost of guns in July of last year. The number? $557 billion annually, or nearly $1,700 for every resident in America. Not every gun owner. Not every NRA member. Every resident….

What does culture get for this Faustian bargain? Gun owners get freedom. They get a false sense of safety and security. They get identity.

The rest of us just get the tab.

And Republican candidates supported by the NRA get dishonest talking points…..

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Crime And Policing

I keep harping on the difference between “what” and “how”–and the too-often-unrecognized importance of “how.” I’ve been frustrated, for example, by public reactions to recent Supreme Court decisions that have largely focused upon agreement or disagreement with the holdings– ignoring the Court’s far more concerning willingness to break Constitutional rules about standing and jurisdiction.

That tendency to focus on the “what”rather than the “how” also characterizes most public debates about crime. Most pundits begin with the assumption that public safety requires more policing, and even critics of police misbehavior rarely dispute that assumption. They just want better hiring and training practices.

So I was fascinated by a New York Times essay by noted legal scholar Radley Balko titled “Half the Police Force Quit; Crime Dropped.”

Balko began with what we all know–the horrific incidents that have become common are not the result of “rogue” officers–they reflect institutional cultures.

In a staggering report last month, the Department of Justice documented pervasive abuse, illegal use of force, racial bias and systemic dysfunction in the Minneapolis Police Department. City police officers engaged in brutality or made racist comments, even as a department investigator rode along in a patrol car. Complaints about police abuse were often slow-walked or dismissed without investigation. And after George Floyd’s death, instead of ending the policy of racial profiling, the police just buried the evidence.

The Minneapolis report was shocking, but it wasn’t surprising. It doesn’t read much differently from recent Justice Department reports about the police departments in Chicago, Baltimore, Cleveland, Albuquerque, New Orleans, Ferguson, Mo., or any of three recent reports from various sources about Minneapolis, from 2003, 2015 and 2016.

Balko points to a common response by many in law enforcement: all this criticism is preventing police from doing their jobs “right.” Many officers- defeated and demoralized–quit. Fewer police, more crime.

Lying just below the surface of that characterization is a starkly cynical message to marginalized communities: You can have accountable and constitutional policing, or you can have safety. But you can’t have both.

As Balko notes, calls for more police fail to take into account the ways in which police brutality and misconduct erode public trust, and how that erosion of trust affects public safety. He then points to the experience of a prosperous Minneapolis suburb.

Golden Valley is 85 percent white and 5 percent Black — the result of pervasive racial covenants.

“We enjoy prosperity and security in this community,” said Shep Harris, the mayor since 2012. “But that has come at a cost. I think it took incidents like the murder of George Floyd to help us see that more clearly.” The residents of the strongly left-leaning town decided change was necessary. One step was eliminating those racial covenants. Another was changing the Police Department, which had a reputation for mistreating people of color.

Golden Valley hired a high-ranking Black policewoman and a Black Chief of Police, prompting members of the overwhelmingly white police force to quit — in droves. And police unions continue to warn officers against joining the Golden Valley force, despite excellent pay and a relatively low crime rate.

What happened after the police force lost some half of its officers?

Crime declined.

Balko concedes that Golden Valley is far from a perfect model; it’s a wealthy community with very little crime. But he also notes that its experience isn’t unique, either.

When New York’s officers engaged in an announced slowdown in policing in late 2014 and early 2015, civilian complaints of major crime in the city dropped. And despite significant staffing shortages at law enforcement agencies around the country, if trends continue, 2023 will have the largest percentage drop in homicides in U.S. history. It’s true that such a drop would come after a two-year surge, but the fact that it would also occur after a significant reduction in law enforcement personnel suggests the surge may have been due more to the pandemic and its effects than depolicing…

At the very least, the steady stream of Justice Department reports depicting rampant police abuse ought to temper the claim that policing shortages are fueling crime. It’s no coincidence that the cities we most associate with violence also have long and documented histories of police abuse. When people don’t trust law enforcement, they stop cooperating and resolve disputes in other ways. Instead of fighting to retain police officers who feel threatened by accountability and perpetuate that distrust, cities might consider just letting them leave.

In Indianapolis, the Republican candidate for mayor is basing his campaign largely on his “plan” to improve public safety–a plan to hire more police officers and to “let them do their jobs.”

He clearly doesn’t understand that we won’t get to “what”–less crime–unless we address the importance of “how.”

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