Criminal Justice – Page 6

Sophisticated Theft

The recent indictment of the CFO of Trump’s business empire has offered us a window into the differences in dishonest behavior between members of different social classes–and the extent to which anti-social behavior by “others” is viewed more negatively.

As a law professor who was a former U.S. Attorney opined, in the wake of the indictment of Allen Weisselberg,

As I learned during my career as a federal prosecutor, this is the way rich people steal money. The means are more sophisticated than sticking up someone with a gun on a street corner, but purpose is the same, which is why one of the charges is grand larceny— stealing property that doesn’t belong to you.

The charges leveled thus far–the investigation is ongoing, and more are likely–are serious. No one brandished a weapon, but according to the indictment, the company under Weisselberg’s and Trump’s direction engaged in 15 types of fraud over a period of years. Those included a number of schemes to evade income taxes, mostly by finding ways to compensate employees “off the books.” The organization provided employees with cars, apartments, private school tuition, home improvements and bonuses– without , however, reporting these perks as the taxable income they legally were. That allowed the organization to avoid payroll taxes and allowed the employees thus compensated to significantly reduce both their taxable income and the amount of taxes they paid.

This wasn’t penny-ante stuff; the indictment accuses Weisselberg alone of concealing approximately $1.7 million of his own compensation from tax authorities.

If this indictment was merely more evidence of Donald Trump’s disdain for the law, it would be worth at most a shake of the head and a comment to the effect that it didn’t come as a surprise. Unfortunately, however, fraud of this sort is apparently widespread among wealthy and near-wealthy individuals who share Trump’s stated belief that “smart” people don’t pay a lot in taxes.

The reactions to the indictments by Trump’s defenders have been telling. Defense lawyers characterized the criminal charges as “inappropriate,” and a number of rank-and-file, “law and order” Republicans shrugged them off as business as usual. Evidently, they consider the theft of millions of dollars accomplished without weaponry less serious than a holdup at gunpoint on the street (netting, perhaps, a couple of hundred dollars and a watch).

Of course, we “little people” have to make up the amounts lost by reason of this tax cheating through our own taxes–but what I find even more troubling is the lack of indignation and condemnation of this clearly fraudulent and criminal behavior. That indulgence undermines both the legitimacy of government and the rule of law.

We sometimes forget the extent to which our legal and economic systems require the voluntary compliance of the vast majority of Americans. To use an obvious example, most of us who drive stop at red lights and obey (most) other rules of the road. We couldn’t hire enough police officers to ensure safe roads if we couldn’t rely on the willingness of large majorities to obey traffic rules.

For that matter, America’s entire system of commerce relies upon the willingness of most sellers to deliver goods as promised, and the willingness of most buyers to pay for those goods in a timely manner without the need to send for the sheriff.

Our tax system similarly depends upon the voluntary compliance of millions of Americans who dutifully file the required paperwork and remit the appropriate payments. When that culture of obedience is allowed to erode–when the well-to-do can publicly wink at each others’ fraudulent evasions–that erosion inevitably breeds resentment among the law-abiding, and excuses additional noncompliance, not just with the tax laws, but within daily commerce.

The so-called “Captains of Industry” who consider themselves too smart to pay their taxes are also the scofflaws most likely to stiff the people with whom they do business. The Trump Organization is a prime example, but certainly not the only one.

Just because a certain type of theft is more sophisticated doesn’t make it less reprehensible. Stealing from the government is no less dishonest than stealing from individuals–and in fact, it is stealing from the individuals who must make up the difference.

It’s evidence of moral bankruptcy, not “smarts.”

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Law And Order

According to Fox News and other Republican sources, America is experiencing a crime wave. Actually, we aren’t. What we are experiencing is a rise in homicides–almost entirely as a result of gun violence.

As a recent Guardian article explained: homicides were up across the US in 2020 and appeared to be primarily driven by rising gun violence. Other crimes, however, fell.

A preliminary government estimate shows a 25% single-year increase in killings in 2020. In some larger cities, the number of homicides has remained higher than usual through the early months of 2021.

While official national crime data will not be released for months, some trends are clear. The 2020 homicide increase happened across cities and towns of all sizes, from those with fewer than 10,000 residents to those with more than a million, according to preliminary FBI data.

The rise in homicides likely translated into an additional 4,000 to 5,000 people killed across the country compared with the year before, according to early estimates.

The increase in murder comes as robberies declined more than 10%, and rapes declined 14%. Overall, violent crime increased 3%. The obvious question is: why? Why is murder up while overall crime is down? And how worried should we be?

Some context is helpful: even with the rising homicide rates, Americans are safer than we have been historically.

And yet, even after an estimated 25% single-year increase in homicides, Americans overall are much less likely to be killed today than they were in the 1990s, and the homicide rate across big cities is still close to half what it was a quarter century ago.

New York City saw more than 2,200 killings in a single year in 1990, compared with 468 last year, according to city data. In the bigger picture, that’s a nearly 80% decrease.

Los Angeles saw more than 1,000 homicides a year in the early 1990s, compared with fewer than 350 last year.

Furthermore, the article quotes one scholar of crime for the observation that the increases in homicide are taking place in neighborhoods where homicides have traditionally been concentrated. The incidence is not spreading out.

The pandemic has clearly contributed.

There is some evidence that national factors, including the many stresses and disruptions of the pandemic, may have played a role in the 2020 homicide increase. The uptick was “widespread,” Rosenfeld said. In an analysis of big city crime trends for the nonprofit Council on Criminal Justice, “We found very few cities that did not experience pretty significant rises in homicide during 2020,” he said.

Whatever researchers ultimately determine, it is impossible to ignore the effect of America’s gun culture and the sheer number of weapons owned by our citizens.

A preprint study from researchers at the University of California, Davis, which has not yet been peer-reviewed, suggested that a spike in gun purchases during the early months of the pandemic was associated with a nearly 8% increase in gun violence from March through May, or 776 additional fatal and nonfatal shooting injuries nationwide. The researchers found that states that had lower levels of violent crime pre-Covid saw a stronger connection between additional gun purchases and more gun violence.

There has been a predictable effort to attribute the rise in homicides to criticisms of police, or to unrest blamed on Black Lives Matter, but the data simply doesn’t support those accusations.

Some police officials and their allies have asserted that last summer’s big, volatile protests against police violence diverted police resources and attention away from their normal patrols, and have suggested that demoralized, angry police officers might be less proactive or effective in dealing with violent crime.

But Jeff Asher, a crime analyst who writes extensively about homicide trends, examined 60 cities and found no correlation between the number of Black Lives Matter protests, and the size of a city’s homicide increase.

Rosenfeld cautioned that any policing-focused explanation for the homicide increase needed to explain why the change would have only affected serious and deadly violence.

“Most crime is down, including most felony, serious crime,” he said. “If the de-policing argument is correct, why did it only affect an uptick in violence and not other street crime?”

At this point, the stresses of the pandemic, especially on low-income neighborhoods, appear to be a significant cause of hostility and despair and “acting out.” But the easy availability of guns clearly was–and continues to be–an enormous factor.

I’ll believe Americans seriously want to reduce violence and homicides when we get serious about gun control. But I’m not holding my breath…

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When Good Ideas Get Bad Slogans

Among so-called “woke” Americans, certain verities seem obvious–so obvious, in fact, that it becomes easy to believe that most other people see things the same way, and to dismiss folks who fail to agree as dishonest or racist. As a result, they downplay or entirely ignore the need to educate and communicate, a need they often denigrate as “PR,” with the result that they often end up undermining support for the reforms they want to see.

Perhaps the most vivid example of this phenomenon was the slogan “Defund the Police,” which gained currency after the murder of George Floyd. A March USA Today/Ipsos Poll found that voters opposed “defunding the police” 58-18.

When most Americans hear “defund,” they hear only “take money away.” They don’t hear “change funding formulas to supplement policing with social services so that police can be freed up to focus on actual criminal behavior.”

The repeated use of that unfortunate phrasing allowed a variety of political candidates– Republican and Democrat alike–to reinforce a number of widely accepted misconceptions about crime and policing. The Brookings Institution recently addressed seven of those misconceptions, which it called myths.

The most obvious–and intellectually dishonest– was the assertion that “defunding” really meant “abolish.” Granted, the “defund” language was misleading, but only the most partisan observers actually thought the movement wanted to eliminate policing.

More understandable–if equally incorrect–was the belief that reducing the presence of police would usher in an increase in social disorder.

Another misconception is that police forces are what maintains order. However, studies have found that the best tools to establish peaceful societies are equity in education and infrastructure. Indeed, research shows that lack of education and illiteracy are some of the most significant predictors of future prison populations.

When it addressed the notion that police protect society from violence, the Brookings article included some rather shocking (at least to me) data. Evidently, research shows that 70% of robberies, 66% of rapes, 47% of aggravated assaults, and 38% of murders go unsolved each year–a rather daunting catalogue of police performance.

Research also rebuts the belief that spending money on community programs wouldn’t affect crime rates; the article links to studies demonstrating–among other things– that individuals who receive a quality education are less likely to become involved in the criminal justice system.(interestingly, the article also notes that police officers who have had more education are less likely to be the recipient of misconduct complaints.)

And although there is a widespread belief that police work is primarily focused on crime prevention, that also turns out to be a misconception.

There is minimal evidence that police surveillance results in reduced crime or prevents crime. For instance, research showed 90% of the people that were stopped in the NYPD’s controversial stop and frisk program were not committing any crime. While it is true that police do apprehend individuals that violate the law, this is one of several components of their responsibilities.

Finally, the article debunks the notion that “Defund the Police” was simply an emotional response to the appalling sight of a police officer killing George Floyd.

Some opponents of cutting police budgets view the movement as an emotional response to police misconduct rather than a well-thought-out campaign. However, a study with 60 years of data indicates that increases in spending do not reduce crime. Which begs the question, how is 60 years of a failed objective any better? Yes, the movement gained attention because of tragic events in 2020, but the evidence supporting the movement is based on hard data and proven methods.

Police reform is long overdue, and we have had thousands of opportunities to make the appropriate changes. In 2020, the murder of George Floyd garnered national attention that has caused many to take a long, hard look at our democratic systems, cultural identities, and the necessary steps towards equal protection. We do know that more traditional policing is not the answer.

Those in the legal community who have long been aware of the research and the problems with current police culture were appalled by the “defund” slogan, knowing that–rather than calling attention to mountains of data and the necessity of different approaches–it would only antagonize police and frighten the public, rather than communicating the need to alter a currently ineffective approach to public safety.

People who really want change rather than an opportunity to pontificate understand that language matters.

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This Is Horrifying

Black Lives Matter is often countered by people chanting “Blue Lives Matter,” and for every incident of clearly improper police behavior, there is a more complicated one where the propriety or impropriety of law enforcement behavior is far less clear-cut. As apologists for the people in blue are constantly–and accurately– reminding us, policing is dangerous and frequently requires split-second decision-making.

Americans who have been watching the newly-ubiquitous videos of apparently abusive police behavior often have an obligation to be measured in our judgments–to offer the blue team at least some benefit of the doubt.

That offer is clearly inappropriate here.This behavior is inexcusable–and horrifying.

Los Angeles sheriff deputies frequently harass the families of people they have killed, including taunting them at vigils, parking outside their homes and following them and pulling them over for no reason, according to a new report from the National Lawyers Guild (NLG) and the American Civil Liberties Union (ACLU).

The LA sheriff’s department (LASD), which has faced national scrutiny for its corruption scandals and killings of young Black and Latino men, has routinely retaliated against victims’ relatives who speak out, the groups said in the report released on Tuesday.

The report details accounts of harassment from families who lost loved ones to police shootings, and alleges specific harassing behaviors.

LASD deputies regularly drive by or park in front of the Rea and Vargas families’ homes and workplaces and at times have taken photos or recorded them for no reason.

Deputies have repeatedly pulled over relatives, searched their cars and detained and arrested them without probable cause, allegedly in retaliation for their protests.

Officers have shown up to vigils and family gatherings, at times mocking and laughing at them or threatening to arrest them, and have also damaged items at memorial sites.

A spokesman for the Sheriff’s department (LASD) declined to address the report, but in response to family members’ formal complaints of harassment, LASD has frequently concluded that “employee conduct appears reasonable.”

Paul Rea’s family was one of those reporting harassment. Rea was an 18-year old killed during a traffic stop. According to the Guardian,

In August 2019, deputies drove by a memorial site for Rea and filmed his 14-year-old sister who was visiting, prompting the family to file a complaint, the report says.

In another incident that year, seven of Rea’s family members, including his grandmother, brought a cross to the memorial site. LASD allegedly showed up with a helicopter above them and numerous patrol cars. A deputy told the family that they were responding to calls that 60 people were gathered, but when Rea’s mother went to an East LA station to inquire about the alleged calls, the station told her that no calls or complaints had been made, the report says.

At a memorial gathering on 30 October 2019, deputies showed up and moved to arrest two of Rea’s friends, directing one of them to put out a blunt he had been smoking, the report recounts. The friend handed the blunt to Jaylene Rea, Paul’s older sister, so he could be handcuffed, and deputies then detained Jaylene Rea, put her in their patrol car and later took her to jail, where she spent the night, later citing her for “obstruction of justice”. She had given a speech that day at a rally, and the family said the arrest was retaliatory.

The linked report has several other examples, including complaints from the parents of Ryan Twyman, who was shot 34 times in 2019. They report that deputies continue to show up to their home and family events for no discernable reason.

If law enforcement wants public respect, this is hardly the way to earn it. This is behavior that erodes public trust, undermines police credibility and voluntary compliance, and contributes to cynicism about authority.

It needs to stop, and the officers who have participated need to be fired.

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How Do You Spell Relief?

Yesterday at five o’clock, the jury rendered its verdict in the Derek Chauvin case. I was hardly the only person on pins and needles, waiting for that verdict. (I’m certainly not the only person to comment on the result, and I’m unlikely to say anything particularly original. Nevertheless, this verdict was too significant to ignore.)

As a lawyer–albeit a “recovered” one– I am well aware that what the public sees through publicity and trial coverage, is not necessarily reflective of the full evidence presented to a jury. Nevertheless, the video of Chauvin with his knee on George Floyd’s neck was so shocking, so inhumane, it seemed unimaginable that a jury could see anything other than an entitled officer’s utter contempt for Floyd’s existence.

And yet, as we all know, in so many previous cases the justice system has excused police behaviors that led to the death of Black and brown Americans. In case after case, judges and juries have given police officers an expansive benefit of the doubt–even when, to the observer, there would seem to be very little doubt from which to benefit. Most cases, of course, lack the impact of a 9 and a half minute videotape. There may be witnesses, there may be allegations–but its hard to overstate the impact of visual evidence.

It also bears noting that the video in this case followed several years of other videos, most less horrific, but nonetheless capturing reprehensible behaviors of which most White Americans had been unaware–and doing so with an immediacy that verbal testimony cannot provide.

When the verdict was read, those of us who have followed the trial and worried about the aftermath let out a collective sigh of relief. But that sigh was followed almost immediately by a realization that the battle against systemic racism in–law enforcement and elsewhere– has just begun. President Biden said it best: this could be a giant step forward, but there is no guarantee.

That said, this verdict does represent an inflection point. It was an immensely important signal that Black lives do matter, that although police are entitled to a lot of leeway, they are not entitled to act as judge, jury and executioner–that murder is murder even when the perpetrator wears a uniform and a badge.

I think it is possible–not certain, but possible–that America is finally facing up to the deeply entrenched racism that has stained, and continues to stain, our national history. The Trump Administration’s blatant bigotry, the emergence of “out and proud” White supremicists, and the appalling embrace of racism, homophobia and anti-Semitism by the GOP, all have made it impossible for Americans of good will to ignore the pervasive bias that distorts virtually every aspect of our common lives–not just the criminal justice system.

The verdict in the George Floyd/Derek Chauvin case was compelled by a mountain of evidence that the defense simply could not minimize or explain away. But there have been mountains of evidence before, and verdicts that ignored that evidence. The relief at this result–and the hope it kindles–is the possibility that it represents a turning point–that we may have arrived at a time when we are finally prepared as a nation to confront the deeply entrenched belief that some people are less human than others, and that their lives don’t matter.

As many observers have said, the verdict doesn’t represent justice. Justice would be George Floyd alive. But it does represent accountability, and that’s the next best thing.

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