Category Archives: Criminal Justice

Shameful

Forget the arguments about whether water boarding is torture. The Guardian has now uncovered irrefutable evidence of full-scale torture during the Iraq War, conducted by Americans under the direct orders of Donald Rumsfeld. The story also implicates General Petraeus.

The Guardian/BBC Arabic investigation was sparked by the release of classified US military logs on WikiLeaks that detailed hundreds of incidents where US soldiers came across tortured detainees in a network of detention centres run by the police commandos across Iraq. Private Bradley Manning, 25, is facing a prison sentence of up to 20 years after he pleaded guilty to leaking the documents.

Samari claimed that torture was routine in the SPC-controlled detention centres. “I remember a 14-year-old who was tied to one of the library’s columns. And he was tied up, with his legs above his head. Tied up. His whole body was blue because of the impact of the cables with which he had been beaten.”

It was bad enough when we could believe that Abu Ghraib and the like were products of “rogue” behavior. But the Guardian provides evidence that torture was a deliberate policy, an intentional tactic employed by high-ranking Bush Administration officials–the same officials who justified America’s invasion of Iraq by pointing to Sadaam’s use of torture against his own people. The same officials who repeatedly proclaimed America’s moral superiority.

Why do I suspect that the people who routinely pontificate about “American Exceptionalism” will try to excuse and defend the indefensible?

Why is Bradley Manning going to jail for whistle-blowing?

Why have Donald Rumsfeld and his co-conspirators escaped prosecution for war crimes? And what did Dick Cheney know, and when did he know it?

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While We Are Wringing Our Hands….

While we wait for the impact of sequestration to hit, we might ponder this: In an interview with Spiegel Online, a Harvard economist insisted that we could save an amount equal to the sequestration cuts every year  just by ending the War on Drugs.

“The prohibition of drugs is the worst solution for preventing abuse,” said Professor Jeffrey Miron. “Firstly, it brings about a black market that is corrupt and costs human lives. Secondly, it constrains people who wouldn’t abuse drugs. Thirdly, prohibiting drugs is expensive.”

I have made this point before.

The direct costs of our counterproductive drug war have been estimated at more than 60 billion dollars a year. And yet, in all the years we have pursued this war, we have not reduced the percentage of Americans using hard drugs. Instead, that sixty billion dollars a year has destroyed lives, incentivized criminal activity, increased police corruption, laid waste to several South American countries, and decimated inner city neighborhoods.

If our elected officials are really so intent upon reducing the national debt, wouldn’t it make more sense to stop spending enormous sums for a failed policy, and use at least some of the savings for treatment? Better still, we could legalize marijuana–which medical experts tell us is less dangerous than booze–and tax it.

I don’t know whether we’d save more than the sequester, but abandoning a failed, horrifically expensive program would be a far more rational approach than taking an indiscriminate, meat ax approach to the budget.

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Two Sides of the Issue

The question of DNA testing is evidently coming before the Supreme Court this year. The issue is whether taking DNA from someone who has not been convicted of a crime is a violation of that person’s constitutional right to privacy, to bodily integrity.

You would think that a committed civil libertarian would be opposed to this practice, and perhaps if I knew more about the various situations in which the DNA is collected, and the arguments against its use, I would be. But I am very conflicted.

Unlike fingerprints, which are notoriously unreliable, DNA samples analyzed correctly are accurate. Because they are accurate, they prove innocence as well as guilt–DNA evidence has exonerated literally hundreds of people serving time for crimes they did not commit. It has saved countless others the trauma and expense of trials.

Furthermore, the procedures used to collect DNA are not particularly invasive. Typically, a quick swab of the inside of one’s cheek is all that is required–no more time-consuming than rolling fingers in ink and placing them on a surface capable of accepting the transfer, and barely more intrusive.

That said, there’s a legitimate concern that information from DNA and other identity markers can be abused. An effort to collect DNA from the citizenry at large would constitute serious overreach; it would tempt unethical officials to misuse the information, and identity thieves to steal it.

But what about routinely taking DNA samples from people who are arrested? The argument is that a national DNA bank would allow authorities to solve crimes like rape much more quickly, arguably preventing perpetrators from committing additional crimes before getting caught.

The 4th Amendment was crafted long before modern technology; we have to look to its purpose to determine how it should apply to these modern scientific marvels at our disposal. If taking someone’s DNA is a “search,” what is the probable cause, the legal justification, for that search? Can an arrest for some minor infraction provide that justification? Probably not.

I welcome comments and lessons from readers who know more about this issue than I do, because I see both sides of the argument. The positive results of expanded testing would seem to outweigh the negatives, but–especially in Constitutional law–the ends cannot justify otherwise forbidden means.

There are some very good lawyers who comment on this blog from time to time. I need your help now! What am I missing?

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What We Don’t Know and How It Hurts Us

Remember the old saying, “what you don’t know can’t hurt you”? Unlike a lot of folk adages, it’s wrong. Very wrong.

A lot of folks–especially younger people–shrug off the suggestion that they need to follow what our political class is doing. They have lives to live, livings to earn, children to raise, parties to attend. Let the politicians tend to governing.

This morning’s New York Times–buttressed by an article from the Journal of the American Medical Association–offers a prime example of why it’s important to keep tabs on Congressional shenanigans.

In the wake of the most recent horrendous shootings, of children in Connecticut and firefighters in New York, fingers have been pointed at the Bureau of Alcohol, Firearms and Explosives. ATF is theoretically an agency with the authority to thwart gun violence. But it has been without a permanent director for six years, thanks to the persistent efforts of Republicans in Congress to block any and all Obama appointments. Furthermore, it is hampered by laws lobbied for by the NRA and dutifully passed by Congress. As the Times notes,

Under current laws the bureau is prohibited from creating a federal registry of gun transactions. So while detectives on television tap a serial number into a computer and instantly identify the buyer of a firearm, the reality could not be more different.

So–unlike many countries–the U.S. doesn’t have a gun registry database. The NRA thinks such information would “pose a threat to the Second Amendment.”

In fact, the NRA evidently thinks that information would pose a threat to their version of the Second Amendment.

A former student who went on to get his doctorate in medical informatics sent me a recent Viewpoint from JAMA, the Journal of the AMA. After detailing several of the most recent mass shootings, and noting that in the U.S. more than 31,000 citizens die annually from firearms, the authors note research findings that ready access to guns in the home “increases, rather than reduces” a family’s risk of homicide in the home.  Then they make their main point:

The nation might be in a better position to act if medical and public health researchers had continued to study these issues as diligently as some of us did between 1985 and 1997. But in 1996, pro-gun members of Congress mounted an all-out effort to eliminate the National Center for Injury Prevention and Control at the CDC. Although they failed to defund the center, the House of Representatives removed $2.6 million from the CDC’s budget–precisely the amount the agency had spent on firearm injury research the previous year.

The funding was restored in joint conference committee, but only on condition that it be earmarked for traumatic brain injury. And the following language was added to the final appropriation: “none of the funds made available for injury prevention and control may be used to advocate or promote gun control.”

Similar language has been added to funding for the National Institute on Alcohol Abuse and Alcoholism, after a research study was funded by that agency to determine whether carrying a gun increased or decreased the risk of firearm assault. The article went on to detail similar restrictions on other agencies.

A couple of rhetorical question: why doesn’t the NRA want the American public to have good information about gun violence? and why does a majority of Congress do its bidding?

A not-so-rhetorical question: when will citizens of this country say “enough!”

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Pot and Kettle

Yesterday, the head of Indiana State Police did something police officers rarely do: he gave a candid answer to a question posed by a legislative study committee. State police Superintendent Paul Whitesell told members of the State Budget Committee on Tuesday that he had followed the issue during 40 years in law enforcement and believed we should legalize and tax possession of small amounts.

Whitesell had the guts to say publicly what numerous police officers and judges have said privately for years. The “War on Drugs” is a failure by any measure you want to apply: it’s illogical, expensive, and ineffective. The inclusion of marijuana in that war–in contrast to hard drugs–makes even less sense.

Current laws are illogical for a number of reasons. Drug abuse (which, by the way, is nowhere defined in our drug laws, which focus on any use of a “scheduled” substance) is a public health issue. Behaviors connected to the use of drugs–driving while impaired, theft to support a habit, etc.–are matters to be addressed by the criminal law, but the mere use of a substance deemed harmful is a health issue, and should be addressed as a health issue. Marijuana is less harmful to users than tobacco, yet we have wildly different approaches to pot and tobacco use–undoubtedly the result of a much more effective tobacco lobby. According to police officers I know, people who use pot are significantly less likely to become violent than people who abuse alcohol, yet we outlaw pot, but regulate and tax alcohol and tobacco.

Current laws are fiscally wasteful. The US spends roughly 60 billion dollars annually on drug prohibition, and we get virtually no bang for those bucks (see ineffective, below). We also forgo collection of billions of dollars in potential tax revenues that we would collect if we simply taxed pot like we treat alcohol and tobacco. We waste criminal justice resources that would be better used elsewhere, to treat drug abuse or to deter nonconsensual crimes that actually harm others. (Whitesell made this point in his testimony.)

We’ve lost this war. Not that the War on Drugs has ever been effective; the percentage of Americans who use hard drugs is pretty much the same as it has always been. Pot use has ebbed and flowed over time, providing the only real changes in the numbers. Thirty plus years of research has consistently demonstrated the utter failure of American drug policy, and the error of the premises upon which it has been constructed. (Pot smokers become hard drug users in about the same percentages as milk drinkers do, and we don’t outlaw milk as a “gateway drug.”) The only thing the Drug War has done effectively is ruin the lives of (disproportionately black) teenagers who are imprisoned for non-violent drug crimes.

What is frustrating is the number of policymakers who respond to this mountain of evidence with a renewed enthusiasm for failed interventions.

What would you think of a doctor who had performed a certain operation 200 times, with the same result: all the patients died. How convinced would you be by his conviction that he just needed to do more of that operation?

When are we going to learn from our mistakes?

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