Criminal Justice – Page 6

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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Incentivizing Appropriate Police Behavior

Many years ago, I spent three years heading up Indianapolis’ legal department. It was–among other things–my introduction to the way municipalities defended against (and far more often, settled) claims of police misconduct and/or brutality. I’d venture to say that very few taxpayers have any idea how costly those claims can be.

A recent post to Lawfare considered not only the dollars, but the sense.

On March 12, the City of Minneapolis agreed to pay George Floyd’s family $27 million for his wrongful death via the knee of a police officer. Despite being the largest pretrial civil rights settlement, it is only a fraction of the taxpayer money spent on settling police brutality. From 2015 to 2019, more than $2 billion, mostly taxpayer money, was used on civilian payouts for police misconduct in only the 20 largest police departments.

As the article points out, the way in which we currently address payouts for police misconduct operates to absolve officers from any financial culpability, no matter how egregious the behavior that triggered the settlement. This is mostly due to qualified immunity, which I have discussed previously. Qualified immunity is a court-invented doctrine that was originally intended to protect officers when they were acting in good faith, but actually ends up allowing police officers to escape civil liability for virtually any behavior, good faith or not.

While qualified immunity often shields government officials broadly from personal liability, it is particularly used with law enforcement. And though it is applicable only to civil proceedings, prosecutors, defense attorneys, judges and even jurors are often swayed during grand juries and criminal proceedings by the protection of qualified immunity.

Depending on the state, officers accused of misconduct might even keep their police pension and even be able to sue the municipality for back pay if they are fired and then found criminally not guilty. The money for civilian payouts for police misconduct does not come from police department budgets. Rather, civilian payouts overwhelmingly come from general funds, though some come from bonds and even insurance policies, particularly in smaller areas.

Between expansive doctrines like qualified immunity and a widespread social willingness to accord police officers–who have an admittedly difficult and dangerous job–the benefit of any doubt, holding an officer personally responsible for misconduct is an exceedingly rare event.

The Lawfare article suggests structural changes that would begin to redress the current imbalance. A number of legal scholars recommend abolishing qualified immunity, and there are other changes that would provide incentives for better monitoring of officer behaviors (and arguably, better training protocols) by police departments. They include moving payouts from city budgets to police department insurance policies and having individual officers carry liability insurance.

The costs of the current system are considerable, and it would be a mistake to shrug off the Chauvin settlement as an anomaly.

Besides the settlement for Floyd’s death, a series of notable civil settlements for police misconduct include $38 million in Baltimore County, Maryland, for the wrongful death of Korryn Gaines and the accidental shooting of her four-year-old son, Kodi; $20 million in Prince George’s County, Maryland, for the wrongful death of William Green; $12 million for the wrongful death of Breonna Taylor of Louisville, Kentucky; and $6 million in Cleveland, Ohio, for the wrongful death of 12-year old Tamir Rice, who was killed while playing with a toy gun in a park. All the people mentioned above are Black. These cases are not cherry-picked but, rather, are part of a much larger systemic problem in policing and municipal government. Black people are roughly 2.5 times as likely as whites to be killed by police. Blacks are 3.5 times more likely to be killed by police when they are not attacking or do not have a weapon relative to whites, like Floyd, Green and Rice. Black women are disproportionately more likely to be killed in their homes by police, like Taylor and Gaines.

There are also many incidents that do not end in death but will probably result in civilian payouts for police misconduct. Some of the most recent incidents include a five-year-old who was arrested and yelled at by police after leaving school in Montgomery County, Maryland, as well as Marion Humphrey Jr., a 32-year-old law student who was detained for more than two hours as state troopers in Arkansas searched his U-Haul. Humphrey, the son of a retired judge, has already sued the Arkansas State Police.

Reforming the way these settlements are funded would not only incentivize improved training, oversight and behavior, it would save taxpayer dollars that could be put to far more productive use.

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Give Him Credit For Consistency…

Give Trump credit for one thing: he’s consistent. He has gone through a year of campaigning and four years with the title of President without learning much of anything about effective political strategy or even how government operates. He has remained fixated on one thing and one thing only: himself.

As Americans have been treated to yet another in a tiresome stream of Presidential hissy-fits–this time, about affixing his signature to a document negotiated by his own administration–we’ve once again allowed a Trumpian tantrum to distract from a very interesting provision contained in the National Defense Authorization Act that he vetoed at about the same time. His explanation for that veto–the first time ever that an NDAA has been vetoed–was that it included a provision requiring the renaming of military bases that are currently named for confederate generals, in what I’m sure he agrees was a war of northern aggression…

Heather Cox Richardson pointed to what was likely the real sticking point.

It includes a measure known as the Corporate Transparency Act, which undercuts shell companies and money laundering in America. The act requires the owners of any company that is not otherwise overseen by the federal government (by filing taxes, for example, or through close regulation) to file a report that identifies each person associated with the company who either owns 25% or more of it or exercises substantial control over it. That report, including name, birthdate, address, and an identifying number, goes to the Financial Crimes Enforcement Network (FinCEN). The measure also increases penalties for money laundering and streamlines cooperation between banks and foreign law enforcement authorities.

America is currently the easiest place in the world for criminals to form an anonymous shell company which enables them to launder money, evade taxes, and engage in illegal payoff schemes. The measure will pull the rug out from both domestic and international criminals that take advantage of shell companies to hide from investigators…

As Richardson points out, the ability to use shell companies to mask what is really going on means America’s political system is awash in secrecy. The Donald almost certainly wants to keep it that way.

We know that the Trump family has embraced the use of shell companies. Michael Cohen used such a shell company to pay off Stormy Daniels. Media outlets have recently reported that Jared Kushner created a shell company that allowed Trump to secretly spend more than $600 million in campaign funds. New York prosecutors have been investigating a number of other money-laundering accusations–many including Deutsche Bank, where officers managing his accounts recently resigned.

Not only would the Corporate Transparency Act make shell company shenanigans illegal going forward, its provisions would apply to existing entities. As Richardson writes,

Congress needs to repass the NDAA over Trump’s veto—indeed it is likely that the CTA was included in this measure precisely because the NDAA is must-pass legislation—and both the CTA and the NDAA bill into which is it tucked have bipartisan support. Trump has objected to a number of things in the original bill but has not publicly complained about the CTA in it. It will be interesting to see if Congress repasses this bill in its original form and, if not, what changes it makes.

Follow the money…

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Private Prisons And The 13th Amendment

If I was compiling a list of policies the next administration needs to change, it would be truly enormous, and fairness compels me to acknowledge that not all of the entries can be attributed to Trump. Previous administrations got swept up into privatization ideology, and some of the consequences weren’t pretty.

Privatization as practiced in the U.S. wasn’t ever true privatization. In England, for example, Thatcher sold off railroads and steel mills that were then operated as private businesses–they paid taxes, and if they failed, they failed. In the U.S., what we call “privatization” is really “contracting out”–government agencies entering into contracts with private companies or not-for-profit organizations to assume primary responsibility for delivering a government service or performing a government function. Sometimes, that made sense. Often, however, it has simply been a new form of patronage.

Obviously, there’s a big difference between contracting with a private company for trash removal and authorizing a for-profit company to operate prisons.

Researchers have pointed to the often-horrific consequences of privatizing prisons, so I was interested in a lawsuit that is evidently working its way through the system in Arizona.

The complaint enumerates the issues involved in Arizona’s privatized prisons, pointing out the perverse incentives that govern performance under such contracts. Nothing really new there–the research has long illuminated the extent to which the profit motive is incompatible with proper functioning of penal institutions.

What was new (at least to me) and intriguing was the plaintiff’s assertion of a 13th Amendment claim. The 13th Amendment abolished slavery and involuntary servitude. Here are pertinent portions of the argument from the Complaint.

The amendment prohibits “all forms of involuntary slavery of whatever class or name.” Slaughter-House Cases, 83 U.S. 36, 37 (1872). That means it “denounces a status or condition, irrespective of the manner or authority by which it is created.” Clyatt v. United States, 197 U.S. 207, 216 (1905). The amendment is “a promise of freedom” which includes “freedom to go and come at pleasure and to buy and sell when [one] please[s].” Jones, 392 U.S. at 443 (internal quotation marks omitted). It is certainly not limited to those with African ancestry. “It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” Bailey, 219 U.S. at 240-41.

“The most basic feature of ‘slavery’ or ‘involuntary servitude’” is “the subjugation of one person to another by coercive means.” United States v. Nelson, 277 F.3d 164, 179 (2d Cir. 2002). Professor Akhil Amar uses this definition of “slavery”: “A power relation of domination, degradation, and subservience, in which human beings are treated as chattel, not persons.” Akhil Reed Amar, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 Harv. L. Rev. 1359, 1365 (1992)…

Plaintiffs are being held in cages for the financial benefit of private entities which make billions of dollars in revenue from this captivity.The private prisons receive the “fruits of prisoners’ economic value and labor.” In short: the prisoners have been effectively transformed into property, valued only in terms of their “compensated man-days.” The allegations in the Complaint plausibly state that their status falls within the Thirteenth Amendment’s scope. If holding people in captivity in this way were happening to anyone but prisoners, everyone would call it what it is: slavery. It is at minimum “involuntary servitude.”

This argument gains persuasive power from the national history Americans are only beginning to admit. Books like These Truths by Jill LePore and The New Jim Crow by Michelle Alexander testify to racists’ unremitting efforts to keep African-Americans in servitude. Criminal Justice research supports their recitation of that history, the disproportionate imprisonment of Blacks and poor people, and more recently, the unconscionable behaviors of private prison companies.

Criminals should be jailed. Government clearly has the right and duty to protect its citizens and to pursue public safety by incarcerating or otherwise sidelining dangerous people. That said, there are few governmental tasks less suited to “privatization” and the pursuit of profit.

Put this reform on our very extensive list.

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