James Lynch, the new chief of the Bureau of Justice Statistics, tells The Crime Report he hopes to make significant changes in compiling the yearly federal estimate of crimes across the nation
The U.S. Bureau of Justice Statistics (BJS) has its first leader in memory who is a well-known expert on the agency’s work. Criminologist James P. Lynch, formerly a distinguished professor at John Jay College of Criminal Justice in New York, and before that a faculty member and department chair at American University in Washington, D.C., was confirmed by the Senate in late June.
Lynch had taken part in a review of BJS completed last year by a National Academy of Sciences expert panel, which concluded that the agency’s renowned National Crime Victimization Survey “falls short of the vibrant measure of annual change in crime that was envisioned at the survey’s outset” back in the 1970s.
One of the main challenges in his new job is to address the survey, which is considered by many to be the most definitive measure of crime in the United States. Unlike the FBI’s Uniform Crime Report, which essentially is a compilation of reports from citizens to thousands of police departments, BJS’s survey is based on a scientific system of interviews that aims to include the millions of crimes that are not reported to law enforcement each year.
Both reports say crime is down in recent years, but consider the difference in the totals: for last year, the FBI says there were about 1.3 million violent crimes reported; the victimization survey puts the number at 4.3 million.
A significant limitation in BJS’s victimization survey is that its design has not allowed for estimates of crime data broken down by state and locality.
Lynch said in an interview with The Crime Report that BJS is working on a plan that finally should be able to produce such data, so that, for example, Los Angeles would be able to compare its robbery rate to Boston’s.
It is not yet clear when that data will be available publicly. One factor is the BJS budget. Like the rest of federal spending, the final allocation for BJS in the fiscal year ending next October 1 is uncertain in these times of fiscal stress. The crime victimization survey has accounted for about half of BJS’s budget -- currently around $60 million annually -- which itself is minuscule by Washington standards. The Justice Department as a while has an annual budget nearing $28 billion.
Some analysts already try to use the FBI’s annual crime data to compare cities. This is a difficult proposition for many reasons. Some jurisdictions don’t report their numbers to the FBI at all, while others don’t strictly use the FBI’s standard crime definitions. (A problem that cannot be cured easily by redesigning the BJS survey is that cities’ political boundary lines don’t make them very comparable: some are dominated by dense, impoverished neighborhoods, and others include sprawling suburban tracts.)
Budgetary limitations may mean that crime victimization rates for every major jurisdiction can’t be calculated annually and that cities or regions may be assessed only on a rotating basis. For more information on the technical aspects of the “local area estimation” project, see the report on the BJS website,
Lynch hopes that the victimization survey can also be used as what he calls a “social intelligence device that can help guide criminal justice policy.” He envisions that beyond asking a scientific sample of Americans whether they were victimized by crime, people could be asked about other current issues, such as whether they have had experiences of being arrested or questioned after being seen on a security camera.
Survey questions would largely cover the public’s interactions with the justice system and would not be aimed at measuring public opinion, such as what people think of the death penalty or police tactics, Lynch says. Even if a budget for additional questions becomes available, the questions probably would not be incorporated into the survey until 2014.
Will Congress increase funding for the justice statistics bureau even in an era when crime rates are lower than they were a decade ago? Lynch hopes so.
“Crime is an important social issue that needs to be monitored,” he says. “We don’t cut surveys of unemployment when the economy is good.”
Lynch notes that BJS is the only federal agency that consistently tracks data on many crime and justice issues, despite the popular impression that the FBI report is comprehensive. On several key issues, such as drugs, stalking and fraud, the FBI compilation includes only figures on arrests, which may or may not indicate the actual level of crime.
Tracking Police Records
One potentially tricky area that Lynch wants to pursue is a better use of records that police departments and other agencies already compile but that are not integrated rapidly into a national database that could be useful in making criminal-justice policies.
A key example is recidivism, that is, the frequency of re-offending by former convicts. Data on recidivism are notoriously difficult to compile because each state keeps track of the subject differently and many released prisoners end up committing crimes in different states, making it hard to keep a comprehensive national count.
As a result, BJS has issued national data only infrequently. In 2002, the agency issued what still is a widely quoted study based on 1994 data, concluding that about two-thirds of inmates are re-arrested within three years of their release.
BJS has been working on improving data collection from states so that a fresh recidivism report can be issued much more frequently, perhaps annually. The agency hopes this project can be completed in the next year or so but will not be pinned down to an exact release date now.
The availability of other government records could help with other criminal justice questions. For example, it is well known that people with criminal records have a harder time finding employment than do those with a clean slate, but most reports on the subject are anecdotal or are limited to the experiences of one social service agency that decides to survey its participants.
Lynch points out that the Internal Revenue Service has employment records of everyone who files a tax return. These could be matched, for example, with a list of released inmates to see how many reported employment in a particular period. Privacy protections would require that no names are used in a publicly released study, but such matching would provide a much better estimate of the extent of the problem than has ever been available, Lynch says.
At a conference this fall of the Justice Research and Statistics Association (JRSA), which represents states on statistical issues, Lynch vowed better cooperation between his agency and its state counterparts. He said that in a time of government “retrenchment “ for budget reasons, BJS could help states make comparisons on how they are handling similar issues, like prison population projections.
BJS and JRSA usually co-sponsor a joint meeting every fall to discuss common issues. That session will not be held in 2011. It will be replaced by a special expanded gathering in Washington, D.C., in the spring of 2012 for representatives of all state agencies that deal with crime statistics, says Joan Weiss, the JRSA’s director.
As a member of the National Academy of Sciences panel that took several years to examine BJS’ work in detail and issued two volumes of recommendations, Lynch knows that the challenges of improving the nation’s collection of crime data will be daunting. He has spent much of his first five months on the job attending to issues that needed to be dealt with after the agency got little high-level attention during the George W. Bush administration.
He and other senior Justice Department officials are hoping that the Barack Obama administration’s aim of basing government programs on scientific principles will prove to be a boon to small agencies like his because they specialize in data collection and analysis.
Speaking last month at the American Society of Criminology annual conference in San Francisco, Lynch mentioned the new BJS emphasis on recidivism data and said the results “may change the way we think about criminal careers.”
It will be up to the Obama White House and a Congress with an influx of budget cutters from both parties to determine the level of resources for BJS and a host of other federal statistical agencies.
For those not familiar with BJS, visit its new website for a comprehensive catalogue of the agency’s work, including recent studies on issues ranging from the federal justice system, background checks for firearms transactions, and gang units in large local law enforcement agencies.
Ted Gest is president of Criminal Justice Journalists
Photo by Adam Gerard via Flickr.
Schools and prosecutors are grappling with the legal issues raised when harassment over the Internet leads to suicide.
Earlier this month, a 14-year old boy from Middleburg, Pennsylvania threw himself in front of a tractor-trailer after leaving a suicide note that said he was tired of being called a “faggot” and a “sissy” at school.
It was the latest in a string of teen suicides tied to bullying. In September, Rutgers University freshman Tyler Clementi threw himself off the George Washington Bridge after his roommate, Dharun Ravi, and a woman who lived down the hall named Molly Wei, secretly recorded Clementi having sex and then broadcast the footage online. In January, a Massachusetts high school student named Phoebe Prince took her own life following persistent bullying by schoolmates. And in September 2009, 13-year-old Hope Witsell of Florida committed suicide after her topless photo was circulated around her school via text message.
The phenomenon has already earned its own catch-all name in the media and among researchers: “bullycide.”
Although those who have been bullied contemplate suicide at a higher rate―and between 10 percent and 40 percent of American students report being bullied at school, according to the Cyberbullying Research Center―observers say the problem is becoming exacerbated by the Internet, which can quickly turn face-to-face harassment into a viral assault in cyberspace that exacerbates the pain and embarrassment suffered by the targets.
Cyberbullying, as it is called, has triggered a fervent debate in schools, in the courts and in state legislatures over the best way to address the behavior. As a legal matter, these cases exist within a confounding mix of emerging technology, free speech rights, criminal law and politics—all of which has experts scratching their heads.
The prosecutors’ dilemma
Going after cyberbullying isn’t an open-and-shut case. There is no agreed-upon definition for the term, and although behavior and activity associated with bullying and cyberbullying can become criminal acts, the words “bullying” or “cyberbullying” appear in very few state criminal statutes. (And states like Louisiana, which explicitly criminalized cyberbullying earlier this year, has been criticized by legal observers for enacting an unconstitutional law that violates the First Amendment.)
As a result, prosecutors have relied on existing criminal statutes, including stalking or harassment. Most states have begun to incorporate language about the use of smart devices and social media into existing stalking or harassment laws, but these laws run the gamut, says Suzanna Tiapula, director of the National District Attorneys Association’s National Center for Prosecution of Child Abuse. “Some of these statutes have not been tested. There is a desperate need to respond appropriately, so states are trying to craft solutions. But they are relatively new and there are a range of responses to trying to protect children and adults.”
In the Prince case, where classmates reportedly called the recent Irish immigrant lewd names and threw a can at her head, local efforts to pursue justice focused on prosecuting six students at her school who allegedly led the verbal assault. The indicted students face criminal charges ranging from stalking and harassment to violating Prince’s civil rights, leading to injury. At least three of the teens are slated to go to trial in early 2011. Local prosecutor Elizabeth Scheibel filed charges based on anti-stalking and civil rights statutes, some of which legal analysts say are an uphill battle. (District Attorney Scheibel did not return calls seeking comment.)
In the Rutgers case, Ravi and Wei have been charged with numerous counts of invasion of privacy, and a criminal investigation is ongoing in the case. Prosecutors in Middlesex County, which is handling the case, even hesitate to call the Rutgers incident a cyberbullying case.
“We are not framing it that way,” says Jim O’Neill, the spokesperson for the Middlesex County Prosecutor’s Office. O’Neill says that no court dates have been set, and that the prosecutor’s office is “looking into a variety of potential charges,” including a hate crime, because Clementi was taped having intercourse with another man.
Charges such as the violation of civil rights leading to injury in the Prince case, or the manslaughter charges that some advocates are pushing for in the Rutgers case, may be difficult to prove.
“There is always the problem of causation, which is the underlying principle of every criminal charge,” observes Patrick Corbett, a criminal law professor at Cooley Law School in Lansing, Michigan. “The question is: was the defendant’s action what caused the suicide? It’s not an easy case for the prosecutor to work with.”
Experts note that suicides, in particular, are difficult to pin to one specific cause. “I don’t think you can say that there is a direct cause and effect between being bullied and making the decision to commit suicide,” says Susan Swearer, an educational psychology professor at the University of Nebraska-Lincoln who specializes in bully intervention. “Bullying is a factor in the suicide, so there are lots of questions in these cases.”
Indeed, criminal prosecutions don’t always lead to convictions. Most famous, perhaps, is the case against Lori Drew , a Missouri mother who hired a teenager to create a fake My Space profile and posed as a 16-year-old boy in order to spy on one of her daughter’s former friends, Megan Meier, because Drew feared her daughter was being badmouthed by the teen.
Using the false identity, Drew sent Meier a number of messages through My Space, including one that read, “The world would be a better place without you.” That message, according to prosecutors, tipped the 13-year-old Meier over the edge. She killed herself in 2006.
Prosecutors admitted to reporters at the time that they did not have enough evidence to pursue stalking or harassment charges, and an attempt to criminally charge Drew under the Computer Fraud and Abuse Act eventually led to an acquittal.
Criminal prosecution in some bullying cases is particularly challenging because in addition to causation, the prosecution must also show intent, and some incidents that have been dubbed “cyberbullying” may not meet the standard.
“What is important here is not how the victim feels, but what the putative offender knew or intended,” says Franklin Zimring, a professor at UC Berkeley School of Law. “This is to protect civil rights—it must be behavior such that the person committing it knows is extreme. We need to set the bar high for criminal liability.”
When it comes to more serious criminal charges, like murder or manslaughter charges that have been called for in some bullycide cases, “you either had to be negligent or intended the harm before you can be criminally liable for it,” Zimring says.. “If you’re saying that hurt feelings and deception were intended [through the bullying], well, hurt feelings and deception are two dishes often served during adolescence, and sometimes the scope of cyberspace makes things worse, but I’m not sure that’s going on a lot [in terms of the law].”
But Zimring says he understands why district attorneys choose what is perhaps a difficult legal path. “It’s great publicity for the prosecutor and it ‘sends a message,’” he acknowledges. “And it is a symbolic vindication of the victim and of the family’s loss.”
Despite the challenges in criminal court, we may begin to see more prosecutions in bullycide cases, as law enforcement and prosecutors become more attuned to them, says Scott Burns of the National District Attorneys Association, who adds that his members do not feel “a reluctance to prosecute these cases.”
Wendy Murphy, a law professor at New England School of Law in Boston, startled some audience members at a symposium on cyberbullying in October when she told prosecutors to “grow a pair” by prosecuting bullies.
“Prosecutors bring one case once against a bully and people pay attention,” she told The Crime Report later. “It makes a difference. This is not to beat up the bullies, but I think we should respect life enough to be able to say to the bully that if someone kills themselves, you bear the burden. That one consequence is criminal prosecution.”
Naturally, not everyone agrees.
“Bullying prevention is a wonderful idea, and criminal law is a terrible tool for it,” argues UC Berkeley’s Zimring.
According to research by Swearer, the education psychologist, bullies themselves often experience higher rates of social anxiety and depression. “It’s important to look at intervention, not just at throwing the book at these kids,” she says. “There’s got to be a consequence. We’re not taking the time to figure out why someone is doing this, and helping them to see that this is not okay.”
Are schools liable?
Schools can be challenged in court for bullycides, too. But these cases raise another set of legal questions: Where to draw the line between what’s free speech and what’s unacceptable bullying?
Schools and courts have typically relied on the decision in the 1969 U.S. Supreme Court case Tinker v. Des Moines Independent Community School District, a case that focused on the rights of Iowa students to wear black armbands to protest the Vietnam War. The Court ultimately held that in order for a school to intervene, the student speech must “materially and substantially interfere” with the operations of the school or it must “impinge upon the rights of others.”
With some cyberbullying taking place off campus, it’s less clear how educators should interpret Tinker.
“What a kid types in their bedroom, the school has no legal control over,” says Daniel Weddle, a law professor at the University of Missouri-Kansas City who studies bullying. “There is a nexus [between the school and the off-campus speech], but it’s not clear where the nexus should be. The courts are really struggling with this question.”
Those struggles are less acute in the Rutgers case. “There is much less control in higher education because we’re dealing with legal adults,” Weddle says. “In terms of liability, it’s harder to get universities on the hook for not intervening.”
Some courts say that if it’s “foreseeable” that the speech would create a material and substantial disruption during the school day, then the school has the right to step in.
Meanwhile, Weddle notes that other courts have said that even if the questionable speech reaches the schoolhouse door, educators don’t necessarily have jurisdiction over it. (Educators and attorneys are watching two Pennsylvania cases to gauge where to draw that line. A Third Circuit court decision on both is pending.)
“We see administrators who are really unsure about how far their disciplinary arm can reach,” notes Kathleen Conn, author of The Internet and the Law: What Educators Need to Know . “The First Amendment doesn’t protect true threats, but what is a true threat? It’s a legal term of art that varies in its interpretation from circuit to circuit.”
In cases where the target’s family has tried to take schools to court, the schools have typically settled or won.
“Normally, you don’t hold one person liable for the actions of another person,” explains Weddle of the University of Missouri-Kansas City. “So to hold schools liable for the acts of its students, you have to show that the school could control the action, and its failure to control the action was the proximate cause of the injury.”
The White House steps in
In late October, the U.S. Department of Education, jumped into the fray, with an assist from President Barack Obama. The department issued an “advisory” on bullying that was intended to provide guidance on identifying and reporting harassment.
"We have an obligation to ensure that our schools are safe for all of our kids,” Obama said in a statement following the late October release of the advisory. “Every single young person deserves the opportunity to learn and grow and achieve their potential, without having to worry about the constant threat of harassment."
But critics say that the advisory is just that—advice.
“Advisories are as low as one can go—I'd liken them to op-eds, frankly,” argues New England Law School’s Murphy, “[They are] published sentiments using moral suasion to change behavior.”
In that regard, the Department of Education advisory isn’t too different from state anti-bullying legislation. Currently, 43 states have anti-bullying statutes, according to the Cyberbullying Research Center, but these laws only provide guidance and regulate schools and public libraries.
These laws—most of which came online in the past year or so—feature a mix of measures, ranging from the creation of prevention and intervention programs at schools to mandates requiring specific anti-bullying policies and the reporting of incidents to the school administration or law enforcement.
Such laws are “much ado about nothing,” claims Weddle. “They often require nothing more than a policy that says bullying is bad, but sidestep training and any attempt to change the culture of the school.” The other problem with the statutes, Weddle says, is that they often don’t provide a way for parents or students to take schools or districts to court if the anti-bullying laws aren’t being followed.
The Massachusetts anti-bullying law was enacted in May in response to the Phoebe Prince case, and it requires that each school create a bullying prevention and intervention plan. It has been praised by prosecutors and law enforcement for clearly defining the term “cyberbullying,” and for raising awareness of the issue.
Though it, too, does not provide an avenue for individuals to hold the schools or districts accountable in court, it does create a special commission that will investigate the possibility of imposing criminal and civil liability on parents of bullies.
Federal laws, such as the Safe Schools Improvement Act, are not necessarily any more effective, according to Kathleen Conn, a law professor at Widener University School of Law in Wilmington, Delaware.
“These federal laws go into vacuum,” she says. “They never reach down to individuals. You can pass all of the anti-bullying laws you want at a federal level, but if you don’t disseminate and you don’t fund them and if you don’t monitor effectiveness, then why waste the paper?”
The role of civil rights
Ultimately, the New England Law School’s Wendy Murphy, who calls herself a child advocate, says the problems that schools and courts have had in locating bullying’s proper place in the criminal and civil law has to do with the current refusal to acknowledge the underlying civil rights issues at play.
“We need to deal head-on with the nature of this problem as a civil rights issue,” she says. “We are framing what is historically known as targeted civil rights harassment. We have policies, procedures, and a long history in the law of dealing with bullying, as long as we call it what it is, which is harassment.”
She continues: “If a child is targeted, and if it is sex-based and gendered, as most cases involving suicide, if you call it bullying, you’ll get a tort response. But if you go to the school and call it a Title IX problem, a sexual harassment problem, or harassment because of sexuality, and you frame it that way, it will prompt an effective response.”
For Phoebe Prince, the lesson has come too late.
If her parents had taken the issue to court on the grounds of sexual harassment, Murphy suggests, Prince “would still be alive.”
Bernice Yeung is a freelance journalist based in San Francisco.
Photo by MyFemGeek via Flickr.
Former federal prosecutor Kendall Coffey worked on some of the nation’s highest profile cases, including the Elian Gonzalez case and the 2000 presidential election recount. He spoke with The Crime Report’s Cara Tabachnick about his most recent book, Spinning the Law, which examines the challenges of trying cases in the court of public opinion.
The Crime Report: In your book, you wrote that what the press experiences in high profile trials is not really what goes on every day in courtrooms. Can you expand on that?
Kendall Coffey: I often wonder if the public knew, in Florida for example, how totally overwhelmed judges are with foreclosure cases―they can barely find time for other hearings―maybe they would support more courtrooms and more judges. The point is that the actually litigation experience day to day is simply a matter of resources and other realities, and will not ordinarily match up to the prime-time exposure in the high profile cases.
TCR: You discuss why it is so important for the press to have access to the justice system, Why do courts go to such lengths to keep the press out?
Coffey: There is an inherent dilemma of free press vs. fair trial. It is important to recognize that any conflicts are overwhelmingly going to be resolved on the side of a free and open press. Lawyers I interviewed for the book generally agreed with that. [But] accusations, and most especially criminal charges, never find a presumption of innocence in the court of public opinion, [where] the presumption is guilty. That’s why a lot of thoughtful lawyers try to level the playing field by finding ethical ways to get their message out to the public. The courts have tools to try to protect the rights of the accused, but they have limited tools; and a true gag order is not routinely given. It’s usually found in just the most extreme cases, as in the Scott Peterson case.
There are other levels of protections that judges apply, but very selectively. It might be a situation involved the rights of minors, of children, where you could justify something like that; or there will be an order to withhold documents for a time. We saw a lot of that in the Michael Jackson case. But the bottom line is we need to have an open process, and that includes access to the press. Attorneys can and should look for ways within the ethical rules to level the playing field, if possible.
TCR: Inside the courtroom, the judge wants to see attorneys that can agree or disagree, and he or she is also forgiving of mistakes, which the press isn’t. So how do you reconcile that in a public trial, when there are bound to be mistakes?
Coffey: In high profile cases, attorneys just try that much harder, because everybody is watching, and everybody second-guesses what you do. Your mistakes are going to get exposed as they never been before. The only cure for second-guessing is winning, which isn’t always possible, but judges are forgiving---I mean everybody makes mistakes. But that is not necessarily true with the press. It’s like walking through a minefield for words. There used to a much more forgiving process inside the courtroom. [Now, attorneys] have to know that the minute they speak to a reporter, especially if they are on record, [their words] could come back to haunt them, and they won’t be able to file a motion to amend. We are used to filing motions to amend all the time. You can’t do that with your comments at a press conference.
TCR: You discuss at length a press strategy used by defense attorneys of leaking alternatives theories of a case in order to raise questions about a defendant’s guilt. Why do attorneys use such a precarious route, one that is likely to backfire?
Coffey: If you think that your client may actually be guilty, you are [desperately] trying to float theories without vouching for them. This is done to create some other explanations. Asserting a client’s innocence is always appropriate. But if you say ‘my client’s wife may have been killed by a satanic cult,’ which is an eye catching theory, is there ever going to be evidence for that? Can it backfire with the press? For sure. Does that mean it’s a bad idea to float different things? You are trying to [persuade] the public that maybe there is a second side to the story.
TCR: Courts now ask prospective jurors in questionnaires if they have ever been a news blogger. How should the justice system handle 24/7 media and the rise of citizen journalism?
Coffey: I think is fair to ask about blogging habits. You want to learn as much as you can about the Internet habits of jurors. Lawyers need to know how many Google or [use] Yahoo. How often? How many turn to Wikipedia when they want to get information? But what you do with it is more difficult. Because no matter how many times a judge reminds jurors that they are not supposed to be looking up stuff on the Internet, they still do it.
Judges will be extremely supportive of attorney efforts to suppress Internet usage, but all of us think that inevitably it happens. And so part of the challenge for an attorney is considering doing more than simply ask the judge to give the same instructions every morning, or maybe even every other afternoon. Some lawyers pay a lot of attention to what’s on the Internet and maybe [attempt to] deal with some of it proactively. For example, Roy Black [Ed Note: a well-known defense attorney quoted in the book] told me that one of the first things he does is go through a client’s website. A lot of people have stuff that they think was a good idea at the time but may or may not play well on their case.
Others will go as far as to say “can I improve my media play on the Web?” In the Internet world, proactively studying what’s going on with the search engine and getting out some better stuff so that if jurors do start looking it up, [can produce] some good articles.
Cara Tabachnick is news editor of The Crime Report
Photo by (George) Ali Blackburn via Flickr.
A crackdown on sagging pants is triggering a debate among civil liberties advocates, police and community groups.
Justin Smith sauntered down Jay Street in Brooklyn, N.Y. on a crisp November morning, taking wide steps as his jeans slid down his hips. A good ten inches of his white boxer shorts showed above his belt.
Smith, 21, was sagging his pants, a style popularized by young African American men in the early 1990s, when Kriss-Kross topped the charts—and soon copied by youth everywhere.
While wearing pants slouched low to expose some, or all, of one’s underwear has become commonplace around the country, many in the older generation---and some in the younger---are still horrified. “Indecent,” observed Roxanna Townsend, whose son is Smith’s friend—adding, for extra emphasis, “indecent exposure.”
As far as Townsend is concerned, sagging is a crime against good taste. But now it’s starting to appear in the criminal code.
In recent years, cities from Dallas to Rivera Beach, Fla. have launched efforts to make sagging punishable by fines and jail time. Some of the most vociferous supporters of these efforts claim the fashion was born in prison culture and, by implication glorifies criminal behavior. Others just argue, like Townsend, that it offends community taste.
“It’s a horrible fad,” said City Councilman Anthony Davis of Paterson, New Jersey. The 40-something legislator, who spearheaded an anti-sagging campaign in his city, traces the trend to correctional institutions, where belts are often banned, and says many in the African American community worry that young black men are embodying a “prison mentality” when they let their pants sag.
But civil liberties advocates respond that going after young men because of the way they wear their clothes is as unconstitutional as banning free speech. Moreover, they argue, anti-sagging codes encourage racial bias in law enforcement.
Are you what you wear?
In 2007, Delcambre, Louisiana became one of the first jurisdictions to criminalize sagging when the town board voted unanimously to add “exposure of…undergarments” to the local indecent exposure ordinance. Conviction could bring a $500 fine, six months in jail, or both.
Starting in the mid 2000s, the criminalization trend spread almost as fast as the fashion itself.
At least 20 cities and towns across the country have tried to add sagging to the list of punishable minor offenses like jaywalking and indecent exposure. At least nine have succeeded. The most recent is Dublin, Ga., a city of about 17,000 people. Since passage of the ordinance in early September, Dublin police can write tickets to anyone wearing pants or skirts that expose skin or undergarments “more than three inches below the top of the hip.” The penalties range from community service to a fine of up to $200.
The Crime Report created a map of jurisdictions around the country where sagging has become an issue of law and order.
Dublin’s measure attracted national news. Dublin Mayor Phil Best told CNN that the town was responding to complaints from citizens, “I think the overwhelming response of the people we represent was ‘please, lets do something about it.’” Best says he hopes that the measure will be effective enough in discouraging the fashion, so that prosecution won’t be necessary.
However, once such ordinances are passed, many other local authorities are not shy enforcing it. Four young men were sentenced to community service in September after being arrested last summer in Jeanerette, La
“How is that helping young black people?” wonders Shelton Grant, Brooklyn, N.Y. native in his 20s neatly turned out in a flat-brimmed red hat, neat cardigan and narrow jeans cinched half way down his hips.
Grant grew up in the heavily-policed housing projects on Brooklyn’s west side, and now works full time for a delivery service, He worries that many young people living in low-income neighborhoods are being unfairly criminalized simply because of the way they dress.
Answering his own question bluntly, he says, “It’s not.”
Zoot suits and bandanas
Sagging is hardly the first clothing choice to be frowned upon by authority, tied to criminality, or linked to ethnic or racial prejudice.
The Zoot suits worn by young black and Mexican-American men in the 1940s remain one of the most famous examples of conflation between clothing and social ills. The natty, tapered suits became to mainstream society a marker of crime and alienation, and a focus of social fears. In the 1990s, schools and prisons began to ban “gang-related” clothing and colors, which ranged from bandanas to red and blue clothing—colors linked to street gangs like the Bloods and Crips.
To use of clothing as marker of criminality raises complicated questions—does style profiling help identify criminals, or does it criminalize all who wear that style? In the wake of the 9/11 attacks, those questions have become most charged around Muslim men’s robes and the hijab, or veil, worn by women who observe Islam have become sartorial flashpoints in the public discourse.
In a recent controversial example, NPR commentator Juan Williams was fired by his organization after remarking on Fox TV last month that “when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous.”
Because sagging is a trend favored by (but not limited to) young men of color, race or ethnicity surfaces each time a new city floats the idea of a ban. While local law enforcement and civic leaders regularly insist the laws are not meant to single out one race or even gender, critics from local teachers to the ACLU have said criminalizing a fashion style has real-life consequences, mostly for young black and Latino men.
“When we create a piece of legislation about sagging, we sort of know in advance that we are criminalizing those two groups,” said Delores Jones-Brown, director of The Center on Race, Crime and Justice at John Jay College of Criminal Justice in New York.
Brown sees the trend as sending a kind of ‘screw-you’ message to authority. Cracking down on the trend is likely, therefore, to be counter-productive, Jones-Brown says. “To the extent that it is a form of resistance, to make it criminal only builds the resistance,” says Jones-Brown. “It will not have the desired effect.”
While she questions the efficacy of the ban, Jones-Brown says one outcome is sure: “More black and Latino men will be swept into the [criminal justice] system.”
But the sagging question is not black and white—opinions cross racial lines. Black leaders have headed up several of the efforts to ban sagging, using laws and public awareness campaigns.
Dallas’ Deputy Mayor Pro Tem Dwaine Caraway launched a public awareness campaign about sagging in 2007 that received national attention. Caraway, who is black, sponsored an anti-sagging campaign with billboards featuring a sagger with happy-face boxer shorts sticking out of his pants.
The message: “Pull’em up!”
“Someone needed to get out and speak out in volume,” Caraway told The Crime Report. “Dallas was on the front end of teeing this baby up.”
The campaign, declares Caraway, has been effective. Not only are other cities joining the ban-the-sag movement, but the fashion itself is losing traction—at least in Dallas. “Some are beginning to sag less,” he says. But, he adds, there are holdouts, “Those that are still sagging are sagging worse.”
New York State Senator Eric Adams launched a “Stop the Sag” campaign in Brooklyn last spring, with billboards and TV ads exhorting young men to “Raise Your Pants, Raise Your Image.” Adams, a former NY cop, says sagging’s association with prison culture stigmatizes black youth. “Free people should not duplicate the behavior of those who are incarcerated,” Adams said in an interview last April.
Debate on the Street
The message has resonated on Jay Street in Brooklyn, where it has sparked some intriguing fashion debates.
“I don’t sag!” insists Justin Smith. “Sagging is, like, wearing your pants around your knees.”
“Yes you do!” Otilia Lamont pipes up, walking right behind him.
While New York City doesn’t yet explicitly ban the fashion, some offenders have received tickets for disorderly conduct. Lamont, a grandmother in her 60s, thinks the punishment is deserved. “It is not appropriate to show them body parts,” she says in a deep Caribbean lilt.
A judge in the Bronx saw it differently when the issue came into his court last summer. Judge Ruben Franco dismissed a disorderly conduct charge leveled against a Bronx man for wearing “his pants down below his buttocks exposing underwear” and “potentially showing private parts.”
“While most of us may consider it distasteful, and indeed foolish, to wear one’s pants so low as to expose the underwear,” Judge Franco wrote in his decision, “people can dress as they please, wear anything, so long as they do not offend public order and decency.’”
Franco added a brief rap on the knuckles to the arresting officer. “The issuance of this summons appears to be an attempt by one police officer to show his displeasure with a particular style of dress," the decision continued.
Such judgments, along with the constitutional issues raised by the ACLU and other civil liberties activists, suggest that many cities may think twice before adding fashion notes to their law books. But even if sagging fades like its fashion predecessors, it’s almost certain that something else will replace it.
Youthful rebellion, after all, is always in style.
“I don’t call it sagging,” says Justin Smith, as he strolls through a busy crosswalk, hitching up his pants one more time. “I call it swagger.”
Lisa Riordan Seville is a freelance writer based in Brooklyn, NY
Photo by Jesse757 via Flickr.
A Reflection on the Death Sentence Handed Down In Connecticut
Most people who support the death penalty agree that it’s not a solution to the problem of crime and violence. Rather, they believe that there are certain particularly depraved killers, the so-called “worst of the worst,” who deserve to die.
Recent events in Connecticut illustrate this point. On Monday, Steven Hayes was sentenced to death by a jury following his conviction for the brutal murders of Jennifer Hawke-Petit and her two daughters, 11-year old Hayley and 17-year-old Michaela, during a burglary of their home in Cheshire, CT.
In the midst of Hayes’ death penalty trial, 65% of Connecticut voters polled by Quinnipiac University said they supported the death penalty; and a whopping 76% said they supported the death penalty for Hayes and another defendant in the same case who will stand trial next year.
However, the death penalty as public policy did not receive a ringing endorsement on election day. Connecticut voters elected Dannel P. Malloy as their new governor. Throughout his campaign, Malloy had repeatedly pledged to sign a death penalty repeal bill similar to the one passed by both houses of the state legislature (but vetoed by outgoing Gov. Jodi Rell) in 2009.
No one is immune
The brutal murders in Cheshire, like the Manson murders, the Oklahoma City bombing, serial killings, murders of children, terrorist attacks, the killing of on-duty law enforcement personnel, and others are cited as examples of crimes that cry out for the punishment of death.
I, too, am utterly chilled by accounts of the Petit family murders and am left wondering how any human beings could be so cruel. Unfortunately, human history is replete with accounts of senseless barbarity and violence, including genocide as well as individual atrocities. Where does this violence come from?
Although we know some answers, we seem to lack the collective will to apply remedies. Instead we cling to a reactive approach. It’s almost as if we imagine that we have a personal immunity to violence: that it will always be someone else’s family that is affected. But what happened to the Petit family tells us that no family―no matter how successful and no matter where they live―is immune.
No simple answers
We live in a world plagued by complex problems with no simple answers. Still, I embrace a simple ethical rule that works for me: killing is wrong except where it might be necessary to prevent an act of violence. In other words, I believe the taking of life can be justified―even required ―if, and only if, it is the only means available to protect innocent life (e.g. self-defense, national defense, the use of lethal force by police).
But taking the life of a human being in retribution or revenge is wrong in my view, even when the person being punished may “deserve” death.
Focusing on what a criminal deserves can lead us astray. For instance, in the case of Steven Hayes and his alleged accomplice, we could make an argument that they deserve more punishment than being put to death by lethal injection. Since their abuse of the victims amounted to torture, maybe we would need to torture them, too, in order to give them the full measure of what they deserve.
But we don’t do that. And the reason we don’t says less about what the criminals may or may not deserve than it says about us―our need as a society to promote humane values and to discourage cruelty. The last thing we should do is convert ourselves into a mirror image of sadistic murderers.
A flawed system
The history of the death penalty has shown that we have not been successful in limiting its application to the obviously guilty or the worst of the worst. Often, years after a person has been convicted, new information comes to light that almost certainly would have convinced a jury that the defendant’s life should be spared.
Steven Hayes, we know, was a victim of child abuse. In many cases, death row inmates have been exonerated by DNA evidence after everyone in the courtroom, including their own lawyers, thought they were guilty. In too many cases the “worst of the worst” label has been stuck on capital defendants who were mentally retarded, mentally ill, brain-damaged, victims of horrendous child abuse, or severely traumatized during military service to their country.
In my experience, the criminal justice system does not lend itself to the wise and just exercise that we all want it to be. Legal strategies in high profile criminal cases bear a disturbing resemblance to political campaigns. I don’t know exactly how and where we should draw a line separating people who have done very bad things from those who are the “worst of the worst.” But I do know that our current legal system is not capable of drawing such a line with consistency and fairness.
I oppose the death penalty in all cases, not primarily out of concern for those likely to be executed, but out of consideration for the humanity we all share. Instead of killing the killers, we should apply our energy and resources to preventing killing.
The grieving husband and father, Dr. William J. Petit, supported the death penalty for Steven Hayes. We can only imagine the depths of his pain. I felt very deeply moved by something he said after the death sentence was handed down: "There's never closure. There's a hole. There's a hole with jagged edges. Over time, the edges may smooth out, but the hole in your heart and the hole in your soul is always there."
When Steven Hayes' death sentence was delivered in a Connecticut courtroom, both Dr. Petit and Mr. Hayes got what they said they wanted. Over time, I suspect, one or both of them may come to feel differently.
David Kaczynski is executive director of New Yorkers for Alternatives to the Death Penalty and the brother of Theodore Kaczynski (the “Unabomber”) who is serving a sentence of life without parole in a federal prison.
Photo by Jimmy Emerson via Flickr.
By Julia Dahl
Thousands of rape kits go untested every year – but that’s not the only reason why so many rapes are never solved.
Early on Easter morning in 1991, 23-year-old Joanie Stewart made the biggest mistake of her life. After getting separated from her friends in a bar and losing her wallet, Joanie found herself in an area of St. Louis she didn’t know, without money or a way home. A stranger offered her a ride.
She felt comfortable accepting since the man assured her he would drop her off at a friend’s place. Instead, he drove her to a dark alley where he brutally raped and beat her so badly that she has suffered from epilepsy ever since.
When it was over, he took her to another remote location and drove away, leaving Stewart bleeding and badly injured on a dark street, where she was found by police and driven to a hospital. In the ER, medical personnel performed the long, invasive procedure of a rape kit, which involved Stewart having to strip naked and endure a gynecological exam by a male doctor, vaginal and anal swabs, and pulling out samples of her own pubic hair. Police took her statement, but the case went nowhere. Years passed. Stewart, whose maiden name was Skaggs, stayed in St. Louis, married, and had three daughters. She thought about the rape, and sometimes she’d be out in the city and think she saw him – the rapist whose name she never knew.
And then last year everything changed. On March 30, 2009, a St. Louis city detective came to her office with six photographs. Stewart recognized the man in the third photo, who turned out to be 47-year-old Mark Frisella. After a trial, Frisella was convicted of three felony counts for Stewart’s rape in June 2010 and sentenced to 19 years. He is appealing the conviction.
Why did it take 18 years for Joanie Stewart to get justice?
As the detective explained to her at the time, Stewart’s case had gone cold until, as part of an effort to test the state’s backlog of rape kits, they tested the DNA of a woman who claimed she was raped by Frisella in 2001. According to Stewart, police dropped the case for lack of sufficient evidence. When they finally tested the woman’s kit eight years later, they realized Frisella’s DNA matched the mystery DNA taken from Stewart in 1991.
“If they hadn’t tested that old kit, Frisella would be free,” says Stewart.
Stewart owes an indirect debt of gratitude to women’s advocates who have been complaining for years about untested rape kits and other sexual assault evidence.
400,000 untested kits
Typically, a “rape kit” refers to a small bag of evidence in which medical personnel put vaginal, oral and anal swabs, washes, pubic and head hair combings, nail clippings, urine and blood samples from the body of a woman (or occasionally a man) who has come to the hospital after a sexual assault. Depending on the city or state, that kit is either picked up by a police officer, who may be called to the hospital to interview the victim, or collected by a lab which stores it until police request it be tested. Testing includes analyzing the evidence for DNA samples, which can then be entered into CODIS, the FBI’s electronic DNA record, and matched against samples in other cases, or the DNA of known criminals.
According to Human Rights Watch (HRW) there were an estimated 400,000 untested rape kits in the U.S. as of 2009. Media reports around the country, backed up by statistics from Human Rights Watch, demonstrate that after undergoing the often painful process of having a rape kit administered at a hospital, sexual assault victims are routinely forced to wait years for a crime lab to test these kits for the DNA that could be used to catch their rapist.
All this despite the fact that, in 2004, Congress passed the Debbie Smith Act, allocating millions of dollars for testing rape kits. The law was reauthorized in 2008, but problems persisted nationwide. Just one example cited by a Human Rights Watch study: the LAPD backlog continued to grow by 700 to 900 kits a year while the department received $4 million in federal funding that was supposed to be used to test them. HRW also reported that Illinois could only confirm that 20 percent of the rape kits it had received since 1995 had been tested, and that Detroit had an astonishing 10,500 untested kits in police storage.
There has been some action on the state level. In early July, just as the HRW report was released, Illinois became the first state to pass a law requiring police to submit all rape kits, including the backlog of more than 4,000, to the state lab for testing within 10 days of collection. The language of the law allows for wiggle room—it states that a rape kit must be tested within six months “if sufficient staffing and resources are available”— leaving advocates pleased, but concerned that if it isn’t properly funded, the effect will be nil. And in October, Los Angeles County announced that they had sent 4,763 of their backlogged kits to be tested – the last, they said, of department’s more than 5,000 untested kits revealed by the 2008 HRW report.
Towards the end of last year, the federal government got involved again. In November 2009, Sen. Al Franken (D-Minn.) proposed the “Justice for Survivors of Sexual Assault Act of 2009.” Hearings followed. On May 11-12 of this year, the Department of Justice Office on Violence Against Women held a roundtable to discuss rape kits, and on May 20, the Senate heard horror stories of the anguish and anger of rape victims whose hope for justice was destroyed as their rape kits languished in police storage.
Law & Order: SVU actress Mariska Hargitay was among those testifying. Having played the role of sex crimes detective for more than a decade, Hargitay has long received letters from rape victims and in 2004 founded a non-profit that works to empower victims of domestic violence and sexual assault. An episode of the show that addressed the backlog of rape kits in which she starred was aired in September.
But Sen. Franken’s bill languished in committee for nearly a year until this fall, when Judiciary Committee Chair Sen. Patrick Leahy (D-Vt.) introduced the Justice for All Reauthorization Act, which includes several provisions from Franken’s bill, including requiring jurisdictions to report how much of their Debbie Smith funds were used to analyze DNA in sexual assault kits, and prohibiting the practice of charging victims for their rape kits.
And on October 27, the National Institute of Justice announced the creation of a research project to “identify solutions to the nationwide problem of untested evidence in sexual assault cases.” The NIJ will award grants of up to $200,000 to five jurisdictions to explore the problem and come up with solutions.
But while many have cheered these developments, others warn that mandatory rape kit testing is no panacea for the low solve rate on sexual assault cases. According to the FBI’s Uniform Crime Report (UCR) data, 41 percent of “forcible rapes” were cleared by arrest in 2009; no data exists on how many of these arrests lead to convictions. But Carol E. Tracy of the Women’s Law Project in Philadelphia, doesn’t trust those numbers.
“UCR data is suspect” and “notoriously terrible on rapes,” Tracy told The Crime Report.
Scott Berkowitz, president and founder of the non-profit advocacy group Rape, Abuse and Incest National Network (RAINN), testified before Congress in September saying that according to RAINN’s analysis of various DOJ reports, he estimates that 15 of every 16 rapists in America will walk free.
‘A crime without consequence’
“Rape is a crime without consequence,” Berkowitz told Senators on the Subcommittee on Crime and Drugs at a September 14 hearing on the chronic failure to report and investigate rape cases.
It’s a point supported by many others in both the legal and advocacy communities.
“If we were to wave a magic wand and test all the rape kits today, there would still be major issues with prosecuting rape cases,” says Kristina Korobov, a former prosecutor in Indianapolis and Loudoun County, Virginia who now a senior attorney for the National Center for the Prosecution of Violence Against Women.
Rape victim advocates highlight a number of shortcomings in the nation’s approach to sex crimes, including the poor UCR data and the fact that, according to Tracy, the FBI’s definition of rape has not changed since 1927; it still refers only to male penile penetration of the vagina, ignoring other orifices, rape by objects and male rape.
Another key problem: for years, local police forces have routinely downgraded and re-classified rapes as non-crimes. Major culprits include Baltimore, New Orleans and Philadelphia suggesting that sexual assault is simply not a priority for many in law enforcement.
Not surprisingly, perhaps, nearly 60 percent of rapes are never even reported to police.
This most recent federal hearing was called not because of the backlog of rape kits, but because Carol Tracy got so fed up with the FBI’s non-responsiveness to more than nine years of requests to update their definition of rape and get serious about collecting accurate data on the crime, that she took her fight directly to Congress.
“I thought we’d made progress on this issue,” says Tracy, referring to more than 20 years of work by women’s groups to educate law enforcement and the public on marital rape, acquaintance rape and other sexual assaults previously dismissed as non-crimes. “But honestly, I think we’re actually losing ground.”
Tracy points to a powerful investigative report by Justin Fenton of the Baltimore Sun, which revealed that the number of rapes determined by Baltimore Police to be “false or baseless” tripled between 1991 and 2009, allowing police to brag about a nearly 80 percent drop in rapes since 1995. Women interviewed by Fenton told tales of being interrogated by police as if they were suspects instead of victims, and having their allegations dismissed. Newspaper investigations in New Orleans and Philadelphia found similar tactics were common among their police departments as well.
Joanie Stewart told The Crime Report that when the St. Louis city police came to her aid back in 1991, she was put in the back of a police cruiser while an officer sat in the front filling out a report. According to Stewart, the male officer looked at her in the rearview mirror and said, “So, what did you do to make this guy rape you?”
In the nearly two decades since Stewart’s attack, police should have learned a lot about how to treat rape victims and properly investigate cases of sexual assault. In 1994, Congress passed the Violence Against Women Act, and these days most major cities have dedicated Special Victims Units for sex crimes.
But as the investigations in Baltimore and New Orleans show, not every one got the message.
Although she calls the backlog of rape kits “unconscionable,” Tracy of the Women’s Law Project says they are a symptom of poor leadership and “misogyny.”
Is a rape kit always useful?
Michelle Dempsey, a former Illinois prosecutor who is now a professor of law at Villanova University, explains law enforcement tends to classify rape in one of three categories. The first is stranger rape, where the rapist’s identity is unknown to the victim. Joanie Stewart was the victim of such a rape.
The second is an acquaintance or non-stranger rape (some experts believe the term “acquaintance” minimizes the trauma of the rape), where the victim can identify her assailant but the assailant has not admitted sexual contact; and the third is non-stranger rape where the assailant admits to having sex with the victim, but claims the sex was consensual.
In the last group, says Dempsey, DNA evidence that would be revealed by testing a rape kit, “proves elements of the crime that don’t need to be proved.”
“All a rape kit is ever going to prove is the biological act,” says Kristina Korobov, who estimates that approximately 75 percent of rape cases fall into the non-stranger categories. “It isn’t going to prove mindset. People still believe that women want this.”
Korobov doesn’t discount the power of DNA—after all, in the age of CSI, juries expect it to be part of a trial—but she says she believes that close collaboration between lab technicians, investigating officers and prosecutors who can look at the totality of evidence in a rape case and make a determination about which kits should be prioritized is more important than testing every single kit.
Michael Medler, director of the Indianapolis-Marion County Forensic Services Agency, agrees with Korobov. A law mandating testing of all rape kits would, he says, further burden and “complicate” an already struggling system.
Medler explains that about 15 percent of the rape kits his lab collects from area hospitals each year are “non-reporting.” According to Medler, this means that, for any number of reasons, swabs and samples have been taken, but no case file has been opened. Medler says that his lab puts these kits aside, preserving them for a year-and-a-half in a sub-zero freezer until an officer asks for a test. If no test is requested within that time frame, the kit is returned to the appropriate police department for storage.
This, he admits, doesn’t typically include sub-zero refrigeration. If forced to test every kit in the order they come in, he says, kits that are part of investigations where the victim is cooperating and police and prosecutors believe they can make a case against the assailant will be held up.
Although Medler wouldn’t speculate on the average cost of analyzing a rape kit, others have put the price at up to $1,600 per kit, depending on how much biological evidence is found. When public labs (like the Marion County lab) get backed up, they have to send kits to private labs—which means an expenditure of more money, because the state has to constantly monitor the lab to make sure it is following protocol, and because private lab technicians charge the state for testifying in court.
Medler is also concerned that states and the federal government may pass mandatory testing legislation without properly funding it. He points to a statement written in January by the American Society of Crime Laboratory Directors which states that instead of focusing on eliminating rape kits and other DNA backlogs, “grants should focus on building [lab] capacity…or the cycle continues to repeat itself.”
According to recent article by Duke University researchers Christopher Heaney and Sara Huston Katsanis, “labs remain eligible for some federal assistance to process DNA samples only so long as they are running behind,” setting up a perverse incentive for maintaining a backlog instead of becoming more efficient.
What testing won’t fix
Of course, if police aren’t even opening investigations into many rapes and prosecutors are more worried about their win rate than letting a jury hear a tricky case, how can victims and other citizens trust that the testing priorities set by law enforcement are in the public interest?
Dempsey fears that getting lost in the uproar over rape kits are the many other problems involved in investigating and prosecuting rape, including lack of specialized training for officers, and DAs who are reluctant to bring “he said, she said” cases to a jury.
“If an officer asks a suspect if sex was consensual then walks away without asking further questions when he says yes, that’s a problem with training,” says Dempsey. “An officer should ask for a more detailed explanation, and compare it to other interviews and statements to see if there are gaps.”
Dempsey also believes that prosecutors have a role in helping get more rapists behind bars: “In close cases, maybe prosecutors should be a little more brave and take these cases to the jury to let the community decide what our sexual norms are, rather than begging off the case because they suspect the jury will acquit.”
As a former prosecutor, Dempsey acknowledges that certain cases, especially non-stranger cases, aren’t easy to win.
But a man capable of raping an acquaintance is also capable of raping a stranger. According to Joanie Stewart, the woman who made the 2001 rape complaint against Mark Frisella had told police she knew him personally.
“These are artificial lines we’ve drawn” between kinds of rapes, says RAINN’s Elizabeth Crothers. “Rapists don’t follow rules,” so if we don’t test a kit because the man admits to having sex with his accuser, we may miss the opportunity to solve (or prevent) another rape where the kit was tested.
“I never in a million years thought that my case would get solved,” says Stewart. “I get that it’s expensive [to test every kit,] but can you imagine how many predators we would put away if we do?”
Julia Dahl is a freelance writer and contributing editor to The Crime Report.
Photo courtesy Joanie Stewart.
Criminal justice policies will shift at federal and state levels after Republican gains in Congress and state capitals—but not as sharply as you might think
Less federal aid and new leadership. That’s the essential message to Washington following the congressional midterm election—and it applies to criminal justice issues just as strongly as it does to other items on the nation’s agenda. Moreover, the replacement of many Democratic governors by Republicans may bring a few policy shifts on the state level, most of them focusing on spending scarce tax dollars more efficiently.
Yet the Republican surge of 2010 promises less of a sharp change in criminal justice policies than the political party reversal of 1994. That year, crime was a much bigger issue. A Democratic-led Congress had just passed a massive anti-crime bill that Republicans were eager to dismantle because they believed it included too much spending on unproved prevention programs..
This year, “Tea Party” Republicans and others who toppled incumbents made profligate federal spending a key target in their campaigns. This could bode ill for many programs popular among criminal justice officials, such as police hiring under the Community Oriented Policing Services (COPS) program and the Second Chance Act for prisoner re-entry. These programs weren’t widely mentioned by name by candidates, but Vice President Joe Biden predicted funding challenges for COPS, which was started by former President Bill Clinton and is disliked by many Republicans.
It’s too soon to predict how any spending cuts will play out in detail. The lame-duck Congress still must convene before year’s end to decide how the federal government should operate during its current fiscal year. Republicans could take the opportunity to signal how they will come down on what they consider unnecessary outlays.
A major question is whether conservative cost-cutting will mesh with liberal hopes to reduce the reliance on incarceration that has more than two million in prison and jail at any time. That may happen only to the extent that criminal justice officials are careful in screening inmates who may be freed before their usual release dates and do not resort to massive sentence cuts.
One thing that’s certain: there will be new key players in both houses of of Congress. In the House, conservative Republican Lamar Smith of Texas is likely to replace liberal Democrat John Conyers of Michigan as chairman of the Judiciary Committee. A similar shift is likely on the crime subcommittee, where Democrat Bobby Scott of Virginia will yield the gavel either to Louie Gohmert of Texas or some other Republican, possibly Ted Poe of Texas.
Scott’s passion has been crime prevention, as embodied in his Youth Promise Act that didn’t make it through the legislative gauntlet. Smith and Gohmert’s agendas are less clear, but Smith opposed the recent compromise on reducing the gap between federal crack and powder cocaine sentences, and Gohmert has taken swipes at the Second Chance Act. In a post-election statement from Smith reported by Legal Times listing his priorities, the only criminal justice items he mentioned were child pornography and child sexual exploitation.
Michael Volkov, a former Republican House Judiciary staffer now practicing law with the firm Mayer Brown, believes that once federal budgets are sorted out, “Republicans will divert more money to law enforcement, such as anti-drug task forces, and less to things like drug treatment, indigent defense and prisoner re-entry.”
An important new actor will be Representative Frank Wolf (R-Va.), likely head of the committee controlling the Justice Department’s budget. Wolf has focused on issues that include gangs, human trafficking, and the Prison Rape Elimination Act. Current committee chair Alan Mollohan (D-W.Va.) was defeated for re-election in a primary.
The Democrats retained control of the Senate but expect changes there, too. Republican-turned-Democrat Arlen Specter of Pennsylvania headed the Senate Judiciary Committee’s crime subcommittee but he was defeated in a primary election.
It’s not clear who will succeed him, but one possibility is former subcommittee chair Dick Durbin of Illinois, who has a solid record of interest in criminal justice issues. Durbin may be occupied with Senate leadership duties, however, so two Minnesotans on the Democratic side might take more active roles: Amy Klobuchar, a former prosecutor, and Al Franken, who has worked on legislation to address DNA-evidence backlogs in rape cases.
Sen. Chuck Grassley (R-Iowa), who will become the new top Republican on the Judiciary Committee, replacing Jeff Sessions of Alabama, could be a surprise player . Insiders say that Grassley has shown considerable interest in Justice Department anticrime programs and is expected to support those that have proved effective.
Across-the-board cuts at DOJ?
However the political landscape shifts, no one expects another year like 2009, when an extra infusion of $4 billion was pumped into criminal justice programs, including COPS hiring, under Obama’s American Recovery and Reinvestment Act. Instead, even regular appropriations are endangered, with the possibility of across-the-board cuts in Justice Department programs and government-wide. A common remedy in times of budget stress is to instruct all cabinet departments to cut their spending by several percentage points. Because most of the Justice Department budget goes to personnel, anti-crime grants tend to suffer under this scenario.
Capitol Hill watchers say that a key player will be Sen. Richard Shelby (R-Al.), top Republican on the committee that oversees Justice Department spending. Shelby would be in a powerful position to mediate any differences between the White House, Senate Democrats, and House Republicans on justice issues.
Most political observers believe that any federal criminal justice proposal that will require new spending would face almost insurmountable odds. This could include the long-pending proposal by Senator Jim Webb (D-Va.) to set up a national commission to study national criminal justice problems. Established programs do stand a chance, such as the Justice for All extension proposed by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in late September to help states examine DNA evidence in crimes.
Non-money issues could get attention, too. One area of agreement between House Democrat Scott and Republican Gohmert is on “over-criminalization”—the idea that Congress has extended the reach of federal criminal law too far. Leaders of the two parties could decide to roll back laws in some areas.
State capitals also are beset with budget woes, so it’s fair to speculate that criminal-justice agencies will be on the chopping block, especially where more-conservative Republicans replace Democrats. In many elections, crime wasn’t a big issue, so no one knows what to expect. In Michigan, for example, Republican entrepreneur Rick Snyder assumes the helm from Democrat Jennifer Granholm, who already has embarked on a prison-closing program in a weak economy. In Pennsylvania, Republican Tom Corbett, who replaces Democrat Ed Rendell, has been critical of at least one sentencing-law reform and may take a more hardline approach.
It’s presumptuous to assume that there will be retrenchments nationwide along party lines.
Consider Kansas, which had a model “justice reinvestment” program of reducing prison building plans and spending money instead on social services for former inmates. It would be easy to assume that Gov.-elect Sam Brownback, a conservative Republican U.S. Senator, may take a different view from predecessor Democrat Kathleen Sibelius, now President Barack Obama’s Health and Human Services Secretary.
Actually, Brownback was a major sponsor of the federal Second Chance Act and is very familiar with prisoner re-entry issues, so he isn’t expected to target criminal justice for cutbacks.
George Camp, who directs the Association of State Correctional Administrators, does not expect a wholesale replacement of his members by the influx of new governors. Rather, he believes that new Republican chief executives will respect incumbent corrections’ directors “emphasis on being frugal and starting cost-efficient programs.”
Two states with Democratic governors may be the most interesting to track. In Illinois, Gov. Pat Quinn ran into severe criticism over releasing some prisoners shortly before they were to finish their terms; his corrections director resigned during the gubernatorial campaign. Now that Quinn has been barely re-elected, he will be faced with decisions what do about his state’s crowded prisons.
In California, state Attorney General Jerry Brown, who will succeed Arnold Schwarzenegger in the governor’s mansion, must decide how to handle big pending budget cuts to the sprawling prison system. In a case bound for the U.S. Supreme Court, a federal judicial panel has ordered a massive prison population cut in the state because of substandard health care provided to many inmates. How Brown tackles this could set either a good or bad example for prison reformers in other states.
From Washington to state capitals, the big story of 2011 in criminal justice may be how politicians of all stripes cope with lean times.
Ted Gest is president of Criminal Justice Journalists
Photo by Wally Gobetz via Flickr.
The following is by a young inmate in Coalinga, Calif., who writes about about emotional survival beind bars. The letter was originally published by The Beat Within, a juvenile justice system writing workshop, which has generously allowed The Crime Report to share.
I haven’t decided whom I’ll send this letter to, or even if I’ll send it out at all but in the event I do decide to mail this, I pray that these words find you in the best of health and spirits.
It’s almost midnight. I’m tired, but can’t sleep. That’s been happening a lot lately, but I find that writing helps. It’s probably because there’s no one you can really talk to in here, no one you can trust to not take advantage of a perceived weakness at least. It’s hard to be on point all the time, wear your mask and check your armor for cracks. I’ve been doing this level four, max security shhh for over five years now, but haven’t been home, haven’t been able to hold my daughter, haven’t been able to just be, for about eight years now.
People here laugh, smile, and clown around. Sometimes, I think how the lawmakers and juries would absolutely flip the hell out if they only knew how we face our trials and convictions, with a joke at the ready and no sign at all that we’re even concerned about spending the rest of lives on a shhh hole yard with sadistic cops. How could they, or you, or anyone really understand though? We’re whistling past the graveyard. The only way to mentally survive is to deny the pain, ignore the loss of freedom and hope one day you can make it home and pretend it was this time in the pen that wasn’t real.
I may never come home. I watch “Barbeque USA” and “Ask This Old House” on PBS, and say to myself, “I’m going to do some landscaping in my mom’s backyard. Maybe build a barbeque pit and try out that recipe for country style pork ribs I saw the other day”. In reality, most of the people I love and care about will probably watch me grow old and die in here, or pass away themselves before I ever make it back home to them.
I don’t think about that though. I sit here in the dark, drinking tea, writing this letter to no one, and using my little book light ‘cause my celly is passed out already. All I can think about is what we’ll have for breakfast tomorrow, and whether or not we’ll get a little outside yard time.
All the while, something inside me silently decays, like dry rot in a mansion’s walls, it goes unnoticed. Every now and then I allow myself to feel it. Like tonight, I scream inside my head that I’m better than this! I’m intelligent, well read, articulate and creative; my parents didn’t divorce, they loved me and I did well in school. I do not belong here. I know it, and it is like salt in an already excruciating wound. I feel that I’ve wasted so much, and yet, still have the potential to do so much more. That potential is killing my soul. I wish it would go away and let me be.
Tomorrow, I will joke around with other ex-gang bangers, murderers and dope dealers. I will pretend that nothing is wrong, and enjoy myself. Enjoy prison. I will be callous, unforgiving, and will survive. Tonight won’t be forgotten, but will become a distant echo, like a barely repressed memory.
Am I depressed? Do depressed people intellectualize their suffering? Are they even aware that something is wrong, or do they just trudge through their bleakness, oblivious to their own misery? I don’t know which I am, or if I’m even “depressed” at all. I do know that sometimes I smell something, see something, or hear a sound, a song that pulls at my heart and resonates deep within.
Right now, I’m listening to “My Immortal” by Evanescance and “Hey You” by Pink Floyd on loop on my Discman, not exactly the most cheerful music. I admit and I feel the loss of my family, the mother of my child, the freedom of drinking a beer on the beach and under the stars; there’s an emptiness where I once had the memory of sun on my face, affection, the closeness of another human being, and I desperately want to cry. I don’t though. I don’t know if I can cry for those things anymore, but as I sit and listen to the music, I do think of them and mourn their loss.
What would my homeboys and other convicts say if I told them this? Most would probably call me a bitch, and either avoid further contact with me, or try and victimize what they see as “soft”. Would some pull me aside and admit to feeling the same way sometimes? Would any take comfort in the knowledge that they are not the only ones who hurt on occasion?
I’m a romantic, so I’d like to think so, but I won’t tell any of them. Nor tolerate any disrespect or attempts at aggressiveness. I will face challenges head on and show no weakness, but for now, with you, it helps to know I can pull down my defenses for a moment and be vulnerable. Just being able to say, “I hurt,” to anyone without fear of reprisal helps.
I don’t want your pity, however. I don’t want anyone to feel sorry for me. I didn’t do what I’m accused of, but have earned these sentences with past actions for those cases I beat, or was never charged with, I justify my life sentence with stoic resolution. No, all I’d like is for some normal person, with normal outside problems, and a normal outside life, to understand that I am not a complete monster. I just happen to have a better-developed emotional/psychological defense mechanism.
Whoever you are, I wish you well. I hope you know that life gets hard, but is never impossible. No matter what is thrown at you, it could always be worse. Always, for that reason alone, you should thank God. Thank Him for the sunshine that warms you and the fresh breeze that revives you. Be thankful for your loved ones company, and the freedom to follow your dreams. Enjoy your ability to drive away from your problems, and your option to return to what’s important to you.
Life is good. I live in a bathroom with another man, rarely see my loved ones, I’m surrounded by killers and thieves, and can still say that in spite of my bouts of depression, life is good. So, I hope you don’t take too much for granted out there. If this letter can teach you anything at all, it’s that there’s too much suffering in the world to have you add to it because of a fight with a loved one, or a hard day at work.
I’m tired now. I want to put my pen down, go to bed, sleep, and wake to find that this was all a dream I can’t quite remember. The words will stay on paper, but the black feeling will have faded like shadows in the sun.
I hope you will have taken what I’ve said and found something positive in it all, a message to cherish what little you have perhaps? Whatever it is, I pray it serves you well. I rarely take my own advice though, so I don’t expect you to either. Take care, God bless, and may the angels watch over you and your loved ones.
Photo by Tony Hall via Flickr.
November 2nd may usher in the largest class of new governors in 40 years. Is the direction of state criminal justice policies about to change?
If national legislators think they’ve been facing tough decisions during the economic crisis, they might try being a governor for a day. Of the 50 states, 49 are legally required to balance their budgets and, as a result, state spending has cratered—falling in both 2009 and 2010, according to a survey by the National Association of State Budget Officers.
Such a two-year drop has never been seen in the survey’s 31-year history. Those fiscal straits, along with high unemployment, have mostly relegated crime to a secondary issue in the gubernatorial races that will be decided November 2.
But not in Illinois.
In September 2009, Gov. Pat Quinn launched a quiet cost-saving initiative to reduce the size of the state’s prison population. In a revision to the state’s early-release program, which reduced non-violent offenders’ sentences in exchange for good behavior, Quinn eliminated an extra 60-day waiting period that prisoners were traditionally required to serve even if they’d earned enough time to be released.
But the Associated Press ran a story in December 2009 citing examples in which the program released prisoners after they’d served no time in state prison at all. The Illinois legislature responded by passing legislation revoking Quinn’s change.
Malcolm Young, an attorney and adjunct professor at Northwestern University School of Law’s Bluhm Legal Clinic, contends that the examples cited in the Associated Press report were misunderstood. The released prisoners served no time because of plea deals with prosecutors and judges, not because of the change to the early-release program, he told The Crime Report.
Nevertheless, in September 2010, Michael Randle, the head of the state’s corrections agency, resigned after months of pressure from Quinn’s opponents to do so.
That didn’t mollify the critics. Quinn’s Republican challenger, state senator Bill Brady, has been running television ads accusing the governor of putting “1,745 hardened criminals” back into the streets through the program. That line of attack may be working. An October 21 poll has Quinn trailing by eight points.
Although Illinois is a special case, it also offers a template to how criminal justice policies could become part of the populist reform drive sweeping the country. In a change election powered by Tea Party sympathies, everything is up for grabs.
“With 30 new governors coming in, everything that’s taking place in states could be potentially in play,” says Thomas MacLellan, who directs the National Governors Association’s Homeland Security and Public Safety Division.
“Really Difficult Choices”
Forty states have cut their corrections budgets in the last two years, and several have prison systems in crisis. But if gubernatorial candidates are planning to address the problems, they’re mostly not being specific about how.
California is the most prominent. Next year, the U.S. Supreme Court will rule on a lower-court three-judge panel’s decision to require the agency to reduce the state’s inmate population by 40,000—nearly one-quarter of the prisoner total—because of overcrowding.
But in a tight race, the gubernatorial candidates have shied away from addressing the issue in detail. Democrat Jerry Brown, who is also the Attorney General, has defended the Schwarzenegger administration’s appeal to the high court for a reversal of the decision, as required by law. For her part, Republican Meg Whitman has alleged that Brown has a history of being soft on crime, without offering much evidence.
Likewise, the probable winner in the Kansas race—Senator Sam Brownback—has yet to discuss how he’ll address the state’s overflowing prisons. In August, the Kansas Sentencing Commission reported a prison population of 8269, ten more than the system’s capacity, and the commission projects the population rising by another 2000 over ten years.
Until recently, Kansas was a model of forward-thinking prison policy. In response to a high rate of re-offending by ex-prisoners, in 2007 the state legislature funded a range of programs—such as education, drug treatment, and supportive housing—to help them reintegrate. The approach appeared to work: the number of ex-offenders returning to prison dropped by 16 percent from 2007 to 2009.
But Republican state representative Pat Colloton told The Crime Report that when the economic crisis hit, the programs were cut. In 2010, the number of former offenders returning to prison has spiked 16 percent, back to the 2007 level.
Colloton thinks Brownback will restore the lost money. That could happen—he’s a champion of re-entry programs. “I want to see recidivism cut in half in the next five years, and I want it to start in Kansas,” Brownback had told a reentry policy forum back in 2005. He also co-sponsored the federal 2007 Second Chance Act, which funds housing, education, employment, and other services for ex-offenders.
Where the funds will come from is another matter. “I think whoever wins in Kansas is going to face some really difficult choices,” Roger Werholtz, Kansas’ corrections chief, told The Crime Report. “You either spend more on corrections, taking the money from someplace else, or you look at controlling the [prison] population. My view of the analysis that’s been done by the Sentencing Commission is that the only way you’re going to control the population is through sentencing policy.”
From Sentencing Policy to Attack Ad
But if changes in sentencing are part of the solution to overcrowding in some states, they’re also being used by challengers to bludgeon incumbents. In New Hampshire, the governor’s race has turned ugly over the Justice Reinvestment Act signed by Democratic governor John Lynch in June 2010.
In line with the popular “smart-on-crime” approach, it allows shorter sentences in exchange for parolees enrolling in drug, alcohol and mental-health treatment programs. Ex-offenders also are monitored more intensively, and parole supervisors have the option of imposing swift and certain jail time and other sanctions.
The law passed both houses of the New Hampshire legislature this spring on bipartisan votes. But after the New Hampshire Union Leader reported on September 24 that four sex offenders were in the first group of prisoners released, several Republican legislators who had voted for the bill said they had been misled into thinking that it did not apply to sex and violent offenders, and Republican challenger John Stephen went after Lynch for pushing the legislation.
On September 30, the Washington-based group Americans for Prosperity began running a television ad that described Lynch’s priorities as “urging lawmakers to pass a bill mandating early parole for prisoners, violent criminals, including sexual predators. . .”
For his part, Lynch, who is polling at least 10 points ahead, argues that the state will be safer if all prisoners are closely monitored after their release. And he’s fighting fire with fire, criticizing Stephen for changing rules in 2004 when Stephen was head of the state’s health and human services agency to allow social workers to decide whether to let former felons become foster parents.
The Return of “Tough on Crime?”
Negative attacks like these have in the past pushed candidates towards traditional “tough on crime” approaches like longer sentences, little leeway for nonviolent offenders, and harsher prison conditions, at least at election time. This year’s campaign climate may presage a return to such policies, even though national crime rates continue to drop.
Indeed, in at least two other states, front-running gubernatorial challengers are talking tough. In Tennessee, Republican Bill Haslam, who has an 28-point lead over Democrat Mike McWherter in the latest poll, is running on tougher state sentencing laws, promising to minimize costs by using his management experience to improve the corrections system’s efficiency.
Haslam campaign’s press secretary, David Smith, said that Haslam had spoken with district attorneys across the state over the last two years. “They’re all encouraging longer sentences,” he told The Crime Report. The candidate, says Smith, believes that in the long term, longer sentences will discourage would-be criminals and save the state money.
Haslam’s call for longer sentences might be due to the fact that Tennessee appears better positioned to put more money into corrections than do other states. A recent analysis judged Tennessee’s budget outlook the best of the fifty states, though the 2011 budget still has a modest $1 billion gap.
In Pennsylvania, the platform of front-runner Republican Tom Corbett doesn’t mention his crime policy.
But he is on record criticizing sentencing reform, expressing skepticism in 2008 of a state law passed that year that awarded prisoners time off their sentences for good behavior. “I am going to take a look at what the crime rate is when that goes into effect,” he said, “and I want to see what it looks like five years from now,” adding that the law meant that Pennsylvania would no longer be a “truth in sentencing” state.
Corbett hasn’t taken a position on another prison reform bill that passed the legislature on October 14. Now on the desk of Democratic Gov. Ed Rendell, it aims to ease prison overcrowding by giving technical parole violators alternative punishments to a return to prison.
Bill DiMascio, who heads the 200-year-old Pennsylvania Prison Society, a prisoner advocacy group, believes that the bill was severely weakened when Corbett worked behind the scenes to take out a key provision. The removed measure would have placed nonviolent offenders in a community corrections facility a year prior to their release to help them reintegrate into society.
Campaigning Versus Governing
At least two national prison reform advocates seem unconcerned about candidates’ talk of longer sentences. “What I think is intriguing is how bipartisan many of the sentencing and parole reforms have been,” says Marc Mauer of The Sentencing Project, pointing to recent sentencing reforms passed in cherry-red states like South Carolina and Texas.
And Deborah Fleischaker of Families Against Mandatory Minimums, which advocates for sentencing reform, thinks that changes in states’ governing party won’t much matter, since governors will soon find out that they can’t afford to keep locking up prisoners in the current numbers. “I think sometimes people say things in campaigns before they really understand the full scope of the problem,” she says
That’s little solace to Northwestern’s Malcolm Young, who calls the current situation in Illinois a “mess.” Since the state legislature suspended the revision to the early release program in January 2010, he says there’s been an increase of 3,000 prisoners in the state prison system, due largely to the suspension.
He fears the accusations in the governor’s race are having a trickle-down effect, making judges feel compelled to impose longer sentences and parole officers to put ex-prisoners back behind bars for minor violations.
“I think we’re in trouble,” he says. “It’s larger than the governor’s race, it will continue after the governor’s race, and it will permeate the system.”
Steve Yoder is a freelance journalist based in Woodstock, New York.
Photo by Tammy Greene via Flickr.
However Californians vote on Nov 2, pot policy in the state will still be in a legal haze
One week from tomorrow, the nation’s most populous state may decriminalize marijuana. Polls indicate that California’s Regulate, Control and Tax Cannabis Act of 2010, otherwise known as Proposition 19, is supported by between 39 and 44 percent of likely voters.
But even if the proposition becomes law, California’s 338 separate police departments and 58 county sheriffs are likely to have the final word.
Several of the state’s law enforcement authorities, such as Los Angeles County Sheriff Lee Baca, have already signaled they will continue to enforce federal laws against possession and cultivation of marijuana—no matter what happens.
“You’re going to have massive confusion,” predicts Rodney Jones, Chief of Police in Fontana, California, a city of 200,000 located 50 miles east of Los Angeles.
Jones did not say how his own department would respond if the proposition passed, but Martin Mayer, general counsel for the California Police Chiefs Association (CPCA), says there are precedents for different enforcement approaches. Laws against fireworks, he points out, vary widely across the state. In some cities and countries they are a legal and taxable commodity, as marijuana would be if Prop 19 passes; but in others, fireworks are illegal.
Nevertheless, fireworks don’t push the same political buttons that marijuana does. Decriminalization of marijuana would not only put California at odds with national anti-drug policy but would challenge decades of moral strictures that consider pot the first step in a downward slide of addiction to harder drugs.
Either way, California police are sworn to uphold the laws of the state—and may find it difficult to rely on federal drug law to make local arrests. They may, however, find allies in local prosecutors.
“If a judge dismisses a marijuana case because of Prop 19, a prosecutor could appeal saying that the law the determination was based on is unconstitutional,” says Mayer.
Waiting on the Feds
Until recently, the Obama administration avoided weighing in directly on Prop 19. But on October 13, Attorney General Eric Holder, in a letter to a group of former administrators of the Drug Enforcement Administration, said that “regardless of the passage of this or similar legislation, the Department of Justice will remain firmly committed to enforcing the Controlled Substances Act in all states.” Holder was responding to a letter the group of nine had sent him on August 24, expressing their “grave concern” over Prop 19.
But what would such a federal crackdown actually look like?
Pretty much everyone agrees that Prop 19 would render California in blatant violation of the federal Controlled Substances Act, but no one seems to envision thousands of federal agents descending on the state to drag pot smokers—even those who take advantage of the new law and begin growing their own weed—from their homes.
Even outside California, support for legalization is at an all-time high: according to a 2009 Gallup poll, 44 percent of Americans favor dropping criminal penalties for the drug, up from just 12 percent in 1970. And although advocates on both sides debate everything from whether decriminalization will turn more kids into potheads, to how legal domestic cultivation will impact Mexican drug cartels, to whether taxing the state’s number one cash crop could help it climb from beneath a massive deficit, there is no doubt that the national conversation about pot has evolved. Last week former Surgeon General Joycelyn Elders advocated legalizing marijuana for recreational use, and when the Los Angeles Times and other national publications cover marijuana they now often cover it as a lifestyle issue – focusing on growing the herb and intergeneration usage in families—instead of a health or law enforcement one.
Still, Asa Hutchinson, former administrator of the DEA, and a signatory of the letter to Holder, says that he and his colleagues hope the administration will sue the state of California to prevent the initiative from taking effect, just as they did in the wake of Arizona’s controversial immigration law.
“The logical first step is for the Department of Justice to file suit against the state,” says Hutchinson.
A key reason would be to head off similar marijuana decriminalization moves by other states. “I don’t imagine the feds wanting to have a patchwork of enforcement policies, all depending on the nuances of each state,” Hutchinson says.
And such a patchwork is indeed a possibility. In an email to The Crime Report Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, indicated that pro-decriminalization groups are ready for a long national fight.
“Win or lose on Prop 19, the plan is the same," writes Nadelmann, "which is to put the issue on the ballot wherever polls show a reasonable majority of the electorate in a state in favor, in those states that have the initiative process, and where elected officials are unwilling to move forward...economics, demographics and principle are all on our side.”
Indeed, if Prop 19 passes, Representative Peter Buckley of Oregon told The Crime Report he will introduce a similar measure in his state. And, according to a recent Wall Street Journal story, Democrats across the country are watching this race closely for just that reason: if marijuana gets Democrats to the polls (the same way gay marriage drives Republicans to vote), the party might support similar initiatives in 2012.
That may be why Holder’s letter made no specific promises of a lawsuit. In fact, in contrast to the passionate tone of the original DEA heads’ letter, it was a markedly tepid response.
“I don’t think the feds wants to get involved in this,” says Mayer. “But they’re being pushed. And I think Holder would look foolish after making that statement if he doesn’t challenge the law.”
Pot policy in flux
In some ways, California has already blurred the national template over drug policy. In 1996, the state approved Proposition 215, which legalized pot for medical use. In the nearly 15 years since, dispensaries have either thrived or been shuttered depending upon their locations. In Oakland, where dispensaries blend in among office buildings, the citizens even levied the nation’s first tax on the weed in 2009 , and the city council recently approved a measure allowing for industrial cultivation of marijuana.
And regardless of the outcome of Prop 19, California has already moved the goalposts on marijuana policy. On September 30, Gov. Arnold Schwarzenegger signed a new law downgrading possession of less than an ounce of marijuana from a misdemeanor to a simple infraction, which, like a traffic ticket, carries only a $100 fine.
Some have argued that the move by the governor, who opposes Prop 19, erases the urgent need for legalization. However, supporters claim decriminalization would save millions by allowing police to concentrate on more serious crimes.
But police say they aren’t really spending resources on petty pot offenses anyway.
Lt. Jarrod Burguan of the San Bernadino Police Department told The Crime Report that even if Prop 19 passes, he doesn’t anticipate officers in his department changing the way they police, at least not right away.
“There are likely to be court challenges,” explains Lt. Burguan. “Once those are settled we will probably get specific guidelines from the Attorney General on how we should enforce the law.”
Deputy Chief Bill Blair of the Long Beach Police Department also says his department will likely take a wait-and-see attitude. “You’re breaking now ground with this,” says Blair. “We’re going to have to come up with guidelines for how officers deal with circumstances” such as entering a citizen’s house or searching a car and finding marijuana. But, Blair adds, his officers are already walking a fine line since September 30.
Much, says Blair, depends on who wins the race for attorney general. Both candidates, Steve Cooley and Kamala Harris are officially opposed to Prop 19. In a recent debate, Harris was non-committal when asked to give details about her response should the measure pass, but Cooley was clear, saying he believed it was “unconstitutional” and “preempted by federal law.”
Until then, Lt. Burguan says, officers will probably keep “doing what they’re doing” when they stop civilians who have less than an ounce of pot: “We just write a ticket and send them on their way.”
But police encounter pot constantly, and according to pro-Prop 19 advocacy group NORML, there were more than 78,000 arrests for a marijuana offense in California in 2008, the largest number since 1976; just over 61,000 were for misdemeanors.
And there are plenty of unsolved issues. Walt Tibbet, chief of police in Fairfield, California, a city of 100,000 about 50 miles northwest of San Francisco, worries that if Prop 19 passes his deputies will have their hands tied when it comes to marijuana-related DUIs. Unlike with alcohol impairment, which can be accurately measured on the spot with a breathalyzer, marijuana use can only be as accurately detected by a more invasive blood or hair sample test, which can’t exactly be performed curbside.
“The problem with this initiative (is) it sets no standards” for impairment, says Tibbet. “We’re concerned about bus drivers and pilots. What will be our response? How can we maintain a drug-free workplace?”
Adding to the uncertainty is the potential tax windfall that legal marijuana represents for California’s economically stressed-out officials. The California Police Chiefs Association’s Mayer notes that “political considerations” may determine whether local prosecutors decide to push the pot button. In counties such as Mendocino, Humbolt and Alameda, marijuana is a lucrative cash crop, and Mayer doubts prosecutors there will aggressively force the issue. “And,” he adds, “if the DAs stop prosecuting, eventually the police will stop making arrests.”
Which is precisely the outcome Prop 19 advocates are hoping for. But it will be up to California voters to set it all in motion.
Julia Dahl is a New York-based freelance writer and contributing editor to The Crime Report.
Photo by Dustin Sacks via Flickr.