Category Archives: Criminal Justice

Defeating The Prison-Industrial Complex

When the Federalist Society is issuing dire predictions about a policy choice, I perk up. (If the Federalist Society is against something, it’s safe to assume I’ll probably approve of it.) And sure enough, it seems that amid the various disasters of the recently-concluded midterm elections, California voters did something sensible: they overwhelmingly passed Proposition 47.

Prop 47, officially named The Safe Neighborhoods and Schools Act of 2014, changes sentencing for certain low-level, nonviolent crimes including simple drug possession and petty theft. It also permits people who are currently incarcerated for such offenses to apply for resentencing.

Unsurprisingly, private prison operators, their political cronies, and the more punitive elements of the law enforcement establishment are predicting the End of Western Civilization as We Know It.

Financial savings are projected to be in the hundreds of millions—and those savings (largely but not entirely from reduced prison populations–hence the hysteria from the private prison folks) would be diverted into mental health and drug treatment programs, K–12 schools, and to compensate crime victims.

Americans may be beginning to come to their senses, at least where crime and punishment are concerned.

Ed Brayton notes that a broad coalition of liberal, conservative and libertarian political leaders has concluded that the tough-on-crime policies of recent decades are both costly and counterproductive.

In that view, widespread drug arrests and severe mandatory sentences are doing more to damage poor communities, especially African-American ones, than to prevent crime, and building ever more prisons that mostly turn out repeat offenders is a bad investment…

Our current, vindictive “law and order” approach to public safety has not only not made us safer, it has cost us a bundle and made us the world’s most aggressive jailers.  America accounts for 5% of the world population yet we have 25% of the world’s prisoners.

According to the LA Times, the greatest effect of Proposition 47 will be in drug possession cases.  California now becomes the first state in the nation to downgrade those cases from felonies to misdemeanors.

Little by little, albeit at a painfully slow pace, Americans are addressing the nation’s real addiction– to its failed and disastrous Drug War. Measures to decriminalize marijuana in several states, and now California’s tacit recognition of prohibition’s folly, signal a tardy recognition of the damage done by a counterproductive “war” that has ruined far more lives than marijuana ever could.

A little bit of sanity for a crazy time. I’ll take it.

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Mayor Ballard–TMI!

For a Mayor whose administration has been uncommonly secretive about information his constituents have a right to know, Mayor Ballard seems totally unaware of the damage that can come from TMI–too much information.

Ballard has been very defensive about his administration’s inability to reduce our horrendous crime rate (which is substantially higher than New York’s). That’s understandable. He has also insisted that the problem won’t be solved simply by adding more police, although he has conceded that IMPD is far, far below optimal staffing. A couple of days ago, he announced–with considerable fanfare–that the officers we do have will be deployed differently; that more police will be assigned to neighborhoods experiencing the most crime.

Okay. Maybe that helps, maybe not, but certainly reasonable.

The problem is, he identified those neighborhoods.

If you think about this for a minute–something I’m fairly confident no one in the Mayor’s office did–you can see the problem. Each area identified has neighborhood organizations, urban pioneers, nonprofits and others working hard to improve these communities and trying to encourage people to move in and become part of the area’s revitalization struggle. The administration has effectively undercut those efforts, labeling their neighborhoods as places people shouldn’t want to live.

The city might just as well have posted “Danger, Keep Out” signs.

As if that wasn’t bad enough, folks living in other neighborhoods–areas with problems that aren’t “the worst”–look at the Mayor’s deployment strategy and worry that the already thin police presence in our neighborhoods will decline, inviting a corresponding rise in crime. (If I were a burglar, I’d certainly consult that map–and confine my nighttime activities to non-targeted areas.)

The strategy of deploying resources to areas that most need those resources is fine. Announcing the specifics is bone-headed.

And this from an Administration that ignores legitimate Freedom of Information requests and refuses to share truly public information with the public.

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It Seemed Like a Good Idea at the Time

The Washington Post recently ran a series of reports about civil asset forfeiture; in the wake of those articles, which were very critical, two of the lawyers who first proposed the approach, John Yoder and Brad Cates, penned a response. Rather than taking a defensive posture, however, they began with an admission that the program had failed.

Last week, The Post published a series of in-depth articles about the abuses spawned by the law enforcement practice known as civil asset forfeiture. As two people who were heavily involved in the creation of the asset forfeiture initiative at the Justice Department in the 1980s, we find it particularly painful to watch as the heavy hand of government goes amok. The program began with good intentions but now, having failed in both purpose and execution, it should be abolished.

The idea, they wrote, had seemed so simple: “Seize the ill-gotten gains of big-time drug dealers and remove the financial incentive for their criminality. After all, if a kingpin could earn $20 million and stash it away somewhere, even a decade in prison would have its rewards. Make that money disappear, and the calculus changes.”

But as they note, since that relatively modest beginning, the concept has been steadily expanded: first,  to include not only cash earned illegally but also purchases or investments made with that money. The property eligible for seizure now includes “instrumentalities” in the trafficking of drugs, such as cars or even jewelry. Eventually, more than 200 crimes beyond drugs came to be included in the forfeiture scheme.

Even at the outset, the use of seized property was an issue. Drug Enforcement Administration agents, for example, might see a suspected dealer in a car they wanted for undercover work and seize it. But if the car had an outstanding loan, the DEA could not keep it without paying the lien. This led to distorted enforcement decisions, with agents choosing whom to pursue based on irrelevant factors such as whether the target owed money on his car.

As time went on and states got into the forfeiture game, the uses became more personally rewarding for law enforcement. Maintaining an undercover identity was often no longer even part of the justification for seizures.

Law enforcement agents and prosecutors began using seized cash and property to fund their operations, supplanting general tax revenue, and this led to the most extreme abuses: law enforcement efforts based upon what cash and property they could seize to fund themselves…

Anyone who knows a criminal defense lawyer has heard horror stories about innocent people caught up in law enforcement behaviors that look more like extortion than policing. Worse, these behaviors are totally inconsistent with the constitution. As the authors say:

Our forfeiture laws turn our traditional concept of guilt upside down. Civil forfeiture laws presume someone’s personal property to be tainted, placing the burden of proving it “innocent” on the owner. What of the Fourth Amendment requirement that a warrant to seize or search requires the showing of probable cause of a specific violation?

When the folks who dreamed up these laws in the first place tell you they’ve outlived any usefulness they may once  have had, it’s probably time to get rid of them.

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The Arms Race and the Road to Ferguson

Peter Mancuso, at Ten Miles Square, takes issue with the conventional wisdom about “militarization” of police departments. Not that it isn’t taking place–clearly it is–but he argues convincingly that the reasons go far beyond the notion that local police units are simply a convenient receptacle for the federal government’s no-longer-needed weaponry.

He lays the blame on the gun lobby and NRA.

By the early 1980s, there was a growing perception among law enforcement officers and portions of the public that America’s police were being out-gunned in encounters with criminals…. [R]outine arrests for illegal gun possessions were increasingly turning up weapons more powerful than those carried by the officers making those arrests. As law enforcement officers, their families, and police unions began naturally voicing their concerns, the call became louder to increase police officers’ “firepower” (a military term). It was argued strenuously then that this would require replacing the highly reliable revolver, which had been carried by most departments for over a half-century, with a rapid fire, more powerful, semi-automatic side arm.

Of course, this call to increase police officer fire power was further exacerbated by the fact that state legislatures failed miserably in the face of the gun lobby to curb the sale of some of the most powerful and lethal firearms that posed threats to police officers across the country in the first place. As this dichotomy, of the availability of more powerful weapons in the face of police officer safety took hold weapons manufacturers finally broke through and hit real pay dirt. The true irony in all of this is that the huge fortunes realized by their marketing more powerful weapons to American law enforcement, was actually the result of them having already made a fortune selling these more powerful weapons, easily acquired by criminals, to the public to begin with.

You can chalk up the demise of Officer Friendly to your local gun nut. People aren’t the only things being killed by out-of-control guns–sanity and moderation are also victims.

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Crime and the City: Some Unsolicited Advice to the Next Mayor

Several years ago, when Bart Peterson and Sue Ann Gilroy were running for Mayor, the IBJ asked Morton Marcus and yours truly to write a series of dueling recommendations to the eventual winner, titled “Letters to the Next Mayor.” My recollection is that they discontinued the feature fairly early on, but in that spirit, I’d like to offer some unsolicited advice to the winner of next year’s mayoral contest.

Give public safety back to the Sheriff.

When Greg Ballard was elected, one of the first things he did was take the newly combined IMPD away from the Sheriff, and assume responsibility for public safety. That was my first clue that he had no idea what he was doing. This wrongheaded move was prompted more by machismo and ego and the fact that the Sheriff was a Democrat than by any requirement of good governance.

Back when I was Corporation Counsel, I urged Bill Hudnut to consolidate IPD with the Sheriff’s department and give the new entity to the Sheriff. There was a reason for that advice. For one thing, there’s efficiency: a mayor has multiple responsibilities–public works, parks, economic and community development and numerous others–that compete for his time and attention, while the Sheriff is a constitutional officer whose sole responsibility and focus is criminal justice.

It isn’t simply a matter of efficiency, however. Good government and good politics both weigh in favor of letting the Sheriff take primary responsibility for IMPD.

Good government requires clear lines of accountability. When voters are going to the polls to vote for a mayor, they must “grade” an incumbent on what Ed Koch used to call the “How’m I doing?” scale. The multiple responsibilities of the office require voters to balance the incumbent’s record on crime against multiple other aspects of performance; as a result, the message sent by voters will necessarily be mixed and subject to different interpretations. Voting for a Sheriff whose entire portfolio is policing allows for much more direct accountability.

Politically, taking charge of public safety was foolish–what we might call an “unforced error.” When Ballard was elected, he told everyone who would listen that crime was going to be his “Number One” priority, and invited voters to judge him on that basis. They will, and it won’t be pretty.

Sometimes, the political game of “Mr. Macho” works. More often, it comes back to bite you.

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