Criminal Justice – Page 7

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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What Those Taxes Show–And What They Don’t

So–we finally get to see a significant portion of the tax returns Trump has succeeded in hiding until now. As I understand it, the returns obtained by the Times were personal–not business returns–so any money that Russia supplied to The Trump Organization would only show up on returns we still haven’t seen.

The Times analysis is extensive, and you can read the details there. I’ll just share a few of my more immediate reactions:

If the New York Times is guilty of “fake news,” as the President insists, he has an easy way to prove it. He can release the tax returns that rebut the “fake” version analyzed by the newspaper. (The situation he finds himself in vis a vis the tax returns is similar to that posed by multiple accusations of sexual assault. At least one accuser has DNA evidence; Trump has refused to submit to a DNA test that he insists would exonerate him.) Innocent people who have the ability to conclusively demonstrate that innocence do not stubbornly refuse to do so.
Assuming the tax returns obtained by the Times are genuine–an inescapable assumption–the paltry $750 payment over a period of ten years can be explained in one of two ways: either Trump engaged in tax fraud–i.e., he cheated–or he was a terrible businessman. (And yes, it is possible, even likely, that both are true…) Michael Cohen, his longtime fixer, has testified that Trump exaggerated his net worth to lenders and hid assets from tax authorities, and anyone who’s been paying any attention at all the past few years will find that pattern of behavior consistent with what we’ve seen. The business failures also lend credibility to Cohen’s assertion that Trump ran for President assuming he would lose, in an effort to promote his “brand” and improve its performance.
The degree to which Trump is personally indebted–and the identity and nationality of the people to whom he owes significant sums–pose a “clear and present” danger to American security. That danger is undoubtedly one of the things that prompted the recent release of a letter from a bipartisan group of nearly 500 past and present national security officers, endorsing Joe Biden. According to media reports, the signatories included five former secretaries of the Navy, two former Army secretaries, four former Air Force secretaries, two retired governors, and 106 ambassadors.
Overall, the tax returns tell us that Trump is buried in an almost inconceivable mountain of debt. He owes more than $300 million dollars, and his businesses have continually lost money. The only enterprise that actually generated net income for him was “The Apprentice”–and he used that income to shore up the golf courses and other ventures that have steadily lost money. He has personally guaranteed a significant amount of that debt (no doubt basing those guarantees on an inflated net worth), and the bulk of it is rapidly coming due.
I was astonished at his evident success in deducting personal expenses. We “little people” who obediently follow the rules (making us, in Trump talk, “dumb”) could never get away with deducting $70,000 in hairstyling, or $26 million dollars in “consulting fees” paid to his own daughter–despite the fact that that daughter was also on his payroll!
The Times reported that Trump is fighting with the IRS over the repayment of a $72.9 million tax refund. If he has to repay it, it will run to $100 million when penalties and interest are factored in. I’m bemused –gobsmacked, actually–that he was able to con the IRS into giving him that refund in the first place.

There’s a lot more information in those returns, and the Times promises to follow up its bombshell disclosures with additional insights. But one thing is already abundantly clear: Trump’s frantic effort to avoid a peaceful transfer of power is based upon his recognition of the fact that once he leaves office, he will no longer be protected by that DOJ memo saying a sitting President cannot be indicted. He will face federal and state prosecution for bank fraud, tax fraud, wire fraud, and mail fraud.

Unless he manages to somehow steal the election and remain in office by subverting American law, Trump’s last days will be spent either in a federal prison or in one of those “shithole” countries that does not have an extradition agreement with the United States.

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Speaking Of Accountability…

Here are a couple of sobering statistics from The Brookings Institution: A Black person is killed about every 40 hours by police, and Black people are 3.5 times more likely than white people to be killed by police when they are not attacking or do not have a weapon.

The research also shows that, typically, police officers aren’t charged in these killings of unarmed Black people, and even when they are, they are almost never convicted.

As the linked report notes,

In policing, people often talk about bad apples. Well, bad apples come from rotten trees, and the rotten trees are law enforcement agencies imbued with structural racism. Standard processes for holding police officers accountable, issuing civil payouts to victims of brutality, and rehiring fired officers are a few of the factors that contribute to the entrenchment of racism and police brutality.

The report outlines some of the reasons for the lack of accountability, and makes two recommendations for improvement. The first recommendation is–or should be–obvious: don’t rehire–or shuffle around– officers who have been fired for misconduct. Those officers should not be able to work in law enforcement again.

This recommendation is receiving bipartisan support at the federal level. It is part of Trump’s recent Executive Order and the George Floyd Justice in Policing Act that passed in the House of Representatives.

The second recommendation is one I hadn’t previously encountered, and as a former Corporation Counsel who supervised these payments, I can tell you that it makes a lot of sense. It involves the restructuring of compensatory payments. Currently, when a lawsuit is brought alleging misconduct by police, and that lawsuit is either won by the plaintiff or settled, payment of damages comes from the general funds of the city. Brookings advocates moving the source of payment from taxpayer money to police department insurance policies.

We aren’t talking about insignificant funds. As Brookings reports,

Eventually, there will be a large civil payout for the death of George Floyd. The Floyd family’s taxpayer money will be used to pay them for his dehumanization and killing. Due to qualified immunity—the legislation that often prevents officers from facing civil culpability—officers are typically immune from the financial impacts of these civil payouts. Since 2010, St. Louis has paid over $33 million and Baltimore was found liable for about $50 million for police misconduct. Over the past 20 years, Chicago spent over $650 million on police misconduct cases. In one year from period from July 2017 through June 2018, New York City paid out $230 million in about 6,500 misconduct cases. What if this money was used for education and work infrastructure? Research suggests that crime would decrease.

The report cites parallels: In health care, for example, physicians and hospitals carry malpractice insurance. Even if the city uses taxpayer funds to cover the police department’s malpractice insurance premium, there are real benefits to this approach; for one thing, if the city’s malpractice premium goes up, the city will get valuable information about which police officers, like which physicians and which hospitals, are responsible.

These proposals merit consideration. Another big step forward would be the amendment or elimination of the doctrine of qualified immunity, which I wrote about last month.

Thanks to the ubiquity of cellphone cameras, well-meaning Americans can no longer tell themselves that all police officers are “good guys” and anyone reporting brutality or other lawless behavior must have deserved it. We’ve seen too much. On the other hand, it is really important that we restore respect for law enforcement, and for the officers who are following the rules and doing a dangerous job in order to keep communities safe. We won’t restore that respect and encourage co-operation with law enforcement until there are structural changes that remove the “safe harbors” exploited by the bad apples who undeniably exist.

These approaches are worth considering–as are the suggestions for relieving police of duties more logically discharged by social workers and/or medical personnel. (Whoever decided to label that proposed shift of responsibilities “defunding police” should be banned from engaging in any policy debate ever again…)

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Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now known to practicing lawyers–especially civil rights lawyers– as Section 1983. It gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post, that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.

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