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Distinguishing Between Pillow Talk and Business Talk

By Robin L. Barton

The concept of “privilege” often arises in the criminal justice system, usually in the form of attorney-client privilege. However, there are other kinds of privilege that arise less often, such as doctor-patient or priest-penitent.

Another, less commonly, raised type of privilege is spousal privilege, which recently became big news when it arose in relation to the Bill Cosby cases.

The comedian has been accused by dozens of women of sexual assaulting and, in some cases, drugging them. The statute of limitations prevented the bringing of criminal charges or civil claims directly related to many of those alleged assaults.

So seven of Cosby’s accusers sued him in a civil lawsuit in Massachusetts for defamation, on the grounds that he and his representatives had branded them as liars. (In response, Cosby has countersued the women.)

The lawyers for the accusers wanted to depose Cosby’s wife Camille, claiming that she has information relevant to the lawsuit. But she raised spousal privilege.

Spousal privilege varies from state to state in terms of its name, scope and the proceedings in which it applies, i.e., criminal v. civil. But in general, there are two basic aspects of the privilege.

Testimonial privilege prevents one spouse from being forced to testify against the other. This type of spousal privilege usually applies only in criminal cases.

Marital communications privilege, which may apply in both criminal and civil cases, protects conversations between spouses during their marriage. It applies to both words and acts, such as gestures, that are intended to be private communications.

The reason for both kinds of spousal privilege is to protect the sanctity of marriage and allow spouses to speak candidly and confidentially to each other without fear that such conversations may later be used against them.

The marital communications type of spousal privilege is what’s at issue in the Cosby case.

US District Court Judge Mark G. Mastroianni ruled that Camille must answer questions at the deposition, explaining “[Camille Cosby] may possess a good deal of relevant, non-protected information which can be uncovered at a deposition.” But he added that she can refuse to answer those questions that seek information about their marital communications.

This ruling suggests that Camille could be compelled to answer questions such as whether she ever saw her husband in possession of the drugs he allegedly used to subdue his victims.

It’s not unreasonable to believe that Camille might have seen something relevant to this lawsuit.

After all, Barbara Bowman, one of the plaintiffs, claims that she blacked out after having dinner and a glass of wine at Bill Cosby’s New York City brownstone, where he had offered to mentor her and discuss the entertainment industry. When she came to, she was wearing only her underwear and a man’s T-shirt.

Since this alleged assault occurred in the Cosby home, it’s certainly possible that Camille observed something before, during or after the alleged incident that’s relevant.

In addition, Camille could be asked about her own actions, such as whether she picked Bill up from a hotel in which the sexual assaults allegedly took place or helped him in some way conceal such assaults.

But what makes this situation interesting from a legal standpoint is that Camille is not only Bill Cosby’s wife but also his business manager. Her dual role in his life raises the issue of whether spousal privilege should apply to all communications between Camille and Bill, regardless of whether they were between husband and wife or between manager and client.

Put another way: Does the fact that Bill and Camille Cosby are married automatically protect all of their communications regardless of the context in which those communications were made?

There are exceptions to the spousal privilege rule. For example, if a third party is present when spouses are talking, privilege doesn’t protect that conversation. So is there a business conversation exception to spousal privilege? If not, should there be?

In a footnote to his decision, Judge Mastroianni notes that the parties disagree on whether there’s an exception for conversations between spouses that were made in their capacities as business partners or as employer-employee.

The judge concludes that business conversations between spouses are included within what Massachusetts law calls “the marital disqualification rule.” Mastroianni rejects a state trial court decision that carves out an exception to the rule for “business communications between spouses acting solely in the capacity of employer and employee,” as conflicting with controlling precedent.

In the rejected case, Anderson v. Barrera, the plaintiff sued a doctor for malpractice and sought to depose the doctor’s wife, who worked as his nurse. The court in that case said that when a conversation occurs between spouses acting solely in their capacity as employer and employee, the marital relationship is only incidental to the employer-employee relationship. Because the two speakers, acting in their professional capacities, don’t fit the terms “husband and wife” in an important sense, excluding conversations made in an employer-employee relationship wouldn’t further most of the policy reasons behind the marital disqualification rule, concluded the court.

I agree with the court’s reasoning in the Anderson case.

Spousal privilege shouldn’t be a blanket protection, especially in this context. There’s no privilege between business partners. So any business-related communications between Camille and Bill Cosby shouldn’t be protected by spousal privilege simply because the business partners in this case also happen to be married.

Moreover, if Bill’s manager was some other third party, there’s little doubt that individual would be subjected to questioning as to what, if anything, he or she knows that’s relevant to the lawsuit.

So why should Camille be able to extend her spousal privilege to cover her business relationship with Bill?

Judge Mastroianni’s footnote concludes, “The court discerns no ability to isolate and parse conversations in which the spouses acted solely in their business-type capacities from their constant status of being married.”

Yes, it would be challenging to determine which communications between Camille and Bill are marital and which are business-related—but it wouldn’t be impossible.

For example, a conversation about Bill’s schedule of speaking engagements or appearances sounds like a business-related communication. And if that schedule puts Bill in a certain city at the time when an alleged sexual assault occurred there, the conversation could be relevant to the lawsuit.

The same principle already applies to other types of privilege.

For instance, suppose your doctor is also a friend. A discussion that you have with your doctor as a friend, say, in a bar and unrelated to your health or a medical condition wouldn’t be covered by doctor-patient privilege simply because you also have a doctor-patient relationship with your friend.

While drawing a bright line between doctor-patient and doctor-friend communications may be easier than distinguishing between husband-wife and business manager-client communications, courts should still try to do so.

Spousal privilege is intended to protect so-called “pillow talk,” not innocuous discussions about work one couldn’t reasonably argue were intended to be private—even if they happened to occur in private. Allowing an individual to use a privilege based on one relationship to shield communications made in the context of another relationship undermines public policy and may result in the exclusion of relevant information in a lawsuit.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

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Why Fishing Is Better Than Murder

By David J. Krajicek

My life was murder in the late 1980s.

I was a tabloid crime reporter, working in the pressroom at One Police Plaza in Manhattan as police bureau chief for the New York Daily News.

I had arrived in the city from my native Nebraska in 1984, at about the same time as the death-dealing scourge of crack cocaine.

About 10,000 men and women were murdered in New York during my five years covering crime for the Daily News. That’s about five bodies every single day—cops, kids, grandmas, mobsters, mugs, the innocent, and the guilty.

I didn’t cover every murder, but sometimes it felt like it.

In 1990, I escaped the crime beat and took a job teaching journalism at Columbia University. But as I settled in to that more civilized life, I came to realize that working in second-hand proximity to all those murders had taken a toll. While writing about those daily atrocities, I had lost my belief in the basic goodness of human beings.

I still can’t explain why, but I had visited the Catskills in upstate New York a few times and was convinced I could reclaim my sense of trust there.

So I joined the throng of flatlanders tooling up the Thruway or Route 17 and bought a weekend place in Delaware County, an ugly-duckling fixer-upper at Lake Delaware, a hamlet on Route 28 near the Bovina-Delhi town line.

Coincidentally, the Little Delaware River--one of the headwater streams of the mighty Delaware--passed 25 yards from my property line.

I asked my gruff but genial neighbor, Don Drumm, whether there were fish in the river.

”Well, duh, professor,” he said. ”Every river has fish. This one’s got trout.”

I walked upstream one evening a few weeks later, casting a lure with a lightweight spinning rod and reel I had brought along when I left Nebraska. Amid a gentle riffle just above a bend in the swift little river, I tossed a Mepps spinner at an undercut in the bank. A bronze-bellied brook trout came out of his hiding place and attacked that lure like he hadn’t eaten in a month.

It was my first Catskills trout—all of 10 inches, but with the fight and fury of a trophy fish. I released him, then stopped in at Drumm’s house to brag.

He took a long draw on his Pabst Blue Ribbon and looked me square in the eye.

”If you really want to trout-fish the right way,”  he growled, ”you’ll need to get a fly rod.”

He told me I ought to go buy one at The Little Store in Roscoe.

 

 

 

 

 

 

 

 

 

 

 

I grew up hunting and fishing but had never cast a fly. On the other hand, Nebraskans follow orders pretty well. The next day, I drove the 30 miles to Roscoe, self-proclaimed "Trout Town USA."

I first pushed through the door of a name-brand fishing store, where a young khaki-clad clerk offered to gear me up for roughly the cost of my monthly mortgage payment. I thanked him and slipped across the street to The Little Store, where the counterman guided me toward an all-in-one kit entombed in a plastic clamshell: a seven-foot Shakespeare rod, a no-frills reel, green floating line, a tapered leader, and a dozen cheap flies.

Yes, it was the fly-fishing equivalent of a Zebco 77. But I was out the door and on the water for under 50 bucks.

Over several seasons, I nearly wore out the line guides on that Shakespeare while teaching myself to cast, to present a fly and to set a hook on the sometimes dim-witted stocker browns on the West Branch of the Delaware from Bloomville, N.Y., 10 miles south to Delancey. I dabbled a few times in the East Branch of the Delaware near Margaretville, and I wet a line once or twice in the more-famous Willowemoc and the Beaver Kill.

But the Little Delaware was my home. I could pull on knee-high boots, grab my rod, whistle for my two Labradors, Jane and Sharka, and be standing at the water’s edge in three minutes.

I discovered that fly-fishing requires a focus that clears the mind of extraneous thoughts—such as murder.

As the Little Delaware flows under Route 28 near my home, it traces along the edge of the historic former estate of Elbridge Gerry, a signator of the Declaration of Independence. The river passes not far from the family’s former manor church, St. James Episcopal. A quarter-mile along, it took a steep dive to the west and spilled into a hip-deep, slow-moving pool that stretched for maybe 25 yards.

Like most holes, it held bigger fish.

My neighbors, Andy and Cathie Hewitt, were kind enough to let me fish from their side of the river there. One day I drove past St. James and up the hill to the office of Elbridge T. Gerry Sr., a descendant of the U.S. founding father, to ask if I could fish on the other side.

I told him that I lived in the little house once owned by the late Ernie Sager, a renowned fiddler who had worked as a caretaker for the Gerry family. Gerry, well into his 80s, lit up when I mentioned Sager. He graciously told me I was welcome to fish.

I spent many evenings at that little hole in the 1990s. Behind me was a fern-filled flat of several acres, marked here and there with a moldering fallen tree amid a dusky shade cast by tall maples and evergreens. In front of me, across the river, was the Gerrys’ sunlit horse pastures and hayfields.

I caught my share of trout there—feisty little natives and fat browns tricked by a wet fly (usually a Royal Coachman, Caddis or Hare’s Ear) before sunset and a dry Light Cahill or White Wulff after.

The fish and I had an agreement.

I love to eat trout and sometimes kept one or two for the grill or frying pan. But I always released the first one I caught, for the sake of karma.

A few times each year, I delivered a couple of just-caught fish to my neighbor Lloyd Hinrichs, who loved trout but whose bum knees kept him off the water. The next morning, he would deposit in my mailbox a bottle or two of his dry, crisp homemade wine—blueberry, dandelion, raspberry.

It is rare to cross rods with another fly-fisher above the reservoirs in the Delaware headwaters. But I was lucky to become part of a small clique of experienced brook fishermen happy to share trenchant advice with a beginner.

A Delaware County native, Jack Robson of Bovina, taught me to place a fly in the bubble line of the current, where trout lie waiting to rise to succulent bugs—or a well-presented artificial fly—that drift by.

I learned diligence and patience from Ron Cook, a friend of Don Drumm from the Philadelphia area. He drove up several times a summer for long weekends and often fished from sunrise to sunset.

Bill Perkins, the jovial and impish Delhi taxidermist, was mainly a spinning-reel fisherman, but he schooled me on how to lure big fish from hiding places. I cast a variety of streamers one snowy April day to an undercut where a big fish was lying. When I gave up, Perkins stepped into my spot and in one cast lured a majestic 18-inch brookie to his hook.

Another Delhi friend, Don Terry, shared sage advice from his grandfather.

”Granddad would stop 20 feet from the water and just stand there and look—upstream, downstream, back and forth,” Terry told me. ”Of course, I was always in a hurry to get my worm wet, but he’d hold me back. I’d say, ’What’re you doin’, granddad?’ He’d say, ‘I’m reading the water.’”

I learned water-reading skills from Dan Plummer, frontman of the Hancock, N.Y.-based environmental group Friends of the Upper Delaware River.

Plummer introduced me to the big trout in the cold, wide Delaware branches below the reservoir dams. He and I have netted hump-backed monster browns during the summertime green drake hatch while wading the East Branch at his cabin near Harvard, N.Y. On float trips, I have marveled at Plummer’s ability to find the trout-attracting seams in the slick water rushing past boulders or outcroppings. He has put me on many giant Upper Delaware fish.

It’s been 25 years since I invested $45 in that Shakespeare setup. Long ago, Plummer shamed me into upgrading my gear. And I have moved a couple miles downstream, where I now have a quarter-mile of Little Delaware River frontage.

The little hole on the Hewitt property is gone now; rivers change.

But that spot often comes to mind, and not for the fish caught. The metaphysical moments there were far more important to me.

Both of my Labradors—long gone now, sadly—flushed their first grouse amid the ferns there. And it is the spot where I stood casting with my dad, who was visiting from Nebraska, one summer afternoon just a few weeks before his sudden death from a heart attack.

The religious faithful have their shrines to miracles—Fatima, Palmyra, Zamzam. I’m not a religious person, but that spot on the Little Delaware is where my restoration of faith in mankind began—my trout epiphany.

I trekked to these mountains to cleanse my soul. That purge sprang from the guidance, gifts and graces I received from friends like Drumm, the Hewitts and Plummer.

A simple truth came to me as I stood with a fly rod in hand, looking inside myself by reading that little river: Life is good, and people aren’t all bad.

When he’s not off fishing, David J. Krajicek (@djkrajicek) is a contributing editor of The Crime Report. He writes frequently about crime and justice for TCR, the New York Daily News, Alternet and others. He welcomes readers’ comments.

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Our ‘Broken’ Justice System Needs System-Wide Solutions

By Franklin Cruz

“Our system is broken.”  We hear this again and again about the criminal justice system, and it has resonated nationally in the wake of numerous violent and fatal clashes between communities of color and the police. 

Last week, Recommendations for Reform: Restoring Trust between the Chicago Police and the Communities They Serve was released by the Chicago Police Accountability Task Force.  Craig B. Futterman, Chaclyn Hunt, and Jamie Kalven also recently released They Have All The Power,” Youth/Police Encounters On Chicago’s South Side through the University of Chicago Law School. 

The two studies paint a grim picture of law enforcement in Chicago.  They draw attention to the extent of racial and ethnic bias in the Chicago Police Department, cataloging instances of abuse, negligence and complicity by law enforcement.

But the framework for the larger national conversation about race and justice remains narrow.  It fails to address the broader system in which law enforcement operates,  nor does it offer solutions that are truly systemic.  Both as a lament and a rallying cry, “Our system is broken” demands a seismic shift in the way we think about our legal system and the extent to which it meets our expectations of justice, including fairness, equity and access. 

To fix justice, we must consider the broader system, not only the single part law enforcement represents. 

We must look beyond the precinct to the courts, the offices of the prosecutors and defenders, to the jails and prisons, to the diversion and treatment programs, and to probation and parole.  We need to pan out from strategies that focus on identifying “problem individuals” to those that look at how the entire system can promote and support a completely different culture and approach to justice. 

If the discourse stops short of addressing the system in its entirety, then we ignore the true breadth of the equity issues, and run the risk of conceiving solutions that are incomplete and unsustainable.  Removing the disproportionality and bias seen at the front end of the system—contact with law enforcement—is only the beginning of a long process. Otherwise, the rates at which African Americans experience negative consequences relative to whites will at best be maintained, if not amplified, with every decision point from bail setting to diversion, to sentencing and community corrections.

Just as Chicago does not have a monopoly on deep-seated failures of justice for racial and ethnic minorities, the police in any jurisdiction do not possess a monopoly on the racist impacts of the criminal justice system.  African Americans and Hispanics (also Native Americans, Southeast Asians, and other less commonly discussed groups) are subject to disproportionately higher rates of negative consequences throughout the criminal justice system. 

We get glimpses of the failures of the system when videos of shootings and beatings are released, an increasingly common phenomenon in an age where cell phone cameras have become ubiquitous. 

However, when I look at a system’s data to identify where disproportionality and disparity exist, I am far more concerned about the many places where there are no cameras, and about the many decisions that are invisible to the public.  Who gets access to diversion and treatment programs?  Who is given higher bail?  Who must meet more severe pretrial conditions?

If the problems are systemic, so too must the solutions be systemic and structural in nature. 

The reports about the recent abuses by Chicago police offer compelling, valuable, and appropriate responses, but they only go so far.  They focus on the individual by supporting training, stronger community oversight, transparency, and more timely disciplinary procedures.  These are all sound and well-informed strategies, given the data presented. 

Yet, much more is needed to transform an institution like a police force and to reshape the culture of the criminal justice system as a whole. 

If we want police, judges, prosecutors, defenders, and others to look at the totality of the person before them and not just at the color of their skin, then we must ask how the criminal justice system can support those behaviors.  We could mitigate implicit biases by slowing down snap decisions in certain instances, by asking police officers to go through a structured process to decide for arrest, summons, release, diversion, or some other response.  We could institutionalize checklists of questions to consider before deciding whether to proceed with prosecuting a case and for what charges, so that we ensure consistency and equity in decision-making.  We could require that judges record why they chose to require bail, rather than release a defendant pretrial and include that in the court record.

Any or all of these can be introduced and implemented through court rule, local ordinance, or, in many instances, simply via long term use.  They can be integrated into the training of personnel, but also the performance measures used to evaluate them.  Individuals then become supervisors and managers, because they are high achievers – exhibiting the very behaviors justice leaders and the community agree are consistent with equity, fairness, and justice. 

Building a better system that structurally promotes the outcomes of equity, for instance, helps ensure that the changes last.  Task forces come and go.  Programs change with financial and political tides.  The impact of training fades quickly.  But systems endure.

System improvement requires an expansion in the breadth of the conversation.  We cannot reform the criminal justice system without looking at all of it, based on the data, with an eye toward sustaining the gains made during this unique opportunity in time. Building and rebuilding our justice systems is very difficult work and involves major cultural shifts. But the changes and the outcomes they can yield are more just, more sustainable, and far harder to undo.

Franklin Cruz is Chief Operating Officer and Program Director of the Justice Management Institute (JMI), a non-profit organization dedicated to improving the administration of justice.  Franklin, who currently leads JMI’s Fair Justice Initiative promoting equity improvement efforts in criminal justice, previously spent over a decade as a manager at a public defender office in Bronx, NY. He welcomes comments from readers.

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How (Not) to Address a Drug Crisis

By Julie Stewart

This election year is the 30th anniversary of the creation of mandatory minimum sentences for federal drug crimes.

Today, the Anti-Drug Abuse Act of 1986 serves as an object lesson in how not to write drug legislation. The bill was the congressional response to a new drug on the scene (crack cocaine), a rising crime rate and the cocaine overdose of University of Maryland basketball star Len Bias on June 20, 1986.

1986 also happened to be an election year. Ronald Reagan ran (successfully) for his second term in a campaign that, although largely focused on economic issues, also exacerbated the national panic about the “horror” of drug abuse

Within a week of Bias’ death, the House Judiciary Committee had written and passed the drug sentencing legislation without hearing from experts, the community, addiction and mental health professionals, drug users, judges, or law enforcement. The bill was approved unanimously, with no floor debate. A mere four months after Bias’s death, the 1986 crime bill was signed into law on October 27.

The 1986 drug law set a pattern that has been hard to break.

In the three decades since, Congress’s knee-jerk reaction to any crime problem has been to create a mandatory minimum sentence for it, or to make existing sentences longer. But these longer sentences haven’t deterred drug crime or targeted the root of what’s driving it. Instead it has produced a  one-way ratchet effect—sentences can get longer, but never shorter— dragging all sentences into the stratosphere, and helping to crowd federal prisons, increase their costs, and lock up people who are not true threats to public safety.

And taxpayers have footed the bill.

Yet one thing has not changed: Americans still love drugs. Perhaps nothing is a greater indicator of the failure of mandatory minimum drug sentences than the fact that the United States, 30 years after the bill was enacted, , is experiencing a spike in heroin and opioid abuse that some call amn “epidemic.”

The response to that spike, however, is notable. Today a bill currently under debate could be a model of how to write drug legislation.

The Comprehensive Addiction and Recovery Act (CARA, S. 524), which passed in the Senate last month, is a serious attempt to address the nation’s increased opioid and heroin abuse. Unlike 1986, lawmakers are now using scientific data and expert testimony to address the causes of the problem.

They have held numerous heroin- and opioid-abuse hearings both in Washington and in states hit hard by these drugs. They have consulted addiction and treatment specialists, doctors, prescription drug manufacturers, drug users, judges, law enforcement representatives , and drug court experts.

Recognizing that addiction is the gasoline that has ignited this fire, they have—so far, at least—left harsher prison sentences out of the bill. 

While CARA is setting an example of how to handle a drug crisis without increasing penalties, the House and Senate sentencing reform bills can’t seem to shake their addiction to punishment.

Both bills continue the failed approach of expanding mandatory minimum drug sentences to apply to potentially thousands of people who previously would not have faced them. The House Judiciary Committee advanced the Sentencing Reform Act (H.R. 3713) with a five-year sentencing enhancement for heroin offenses that involve fentanyl.

We need only look at the last 30 years to know that this enhancement will be as ineffective at stopping the use and sale of fentanyl as the 1986 laws were at stopping heroin.

These are not steps in the right direction. They are remnants of a 1986 mentality, not 21st-century sentencing reform. Congress knows better and can do better.

Julie Stewart is the founder of Families Against Mandatory Minimums. In a TCR interview last month, she reviewed the achievements of her organization on its 25th anniversary—and the work still to be done. Julie welcomes comments from readers.

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Want the Public to Trust Police? Try Transparency

By Dan Stageman

Nearly 18 months after a grand jury declined to indict a Ferguson, MO police officer in the fatal August, 2014 shooting of Michael Brown, the visceral anger and destructive unrest that accompanied the protests over that decision have cooled. But the organizing force behind the protests—the Black Lives Matter movement—has coalesced into a powerful social, cultural and political force.

One example of its impact: the conversation fueled by Black Lives Matter about police accountability has moved into the academic sphere. This week, John Jay College will host a symposium whose title, Building Public Trust: Generating Evidence to Enhance Police Accountability and Legitimacy, makes abundantly clear the challenges involved in changing the insular police culture that has made such shootings a too-frequent occurrence in many of our communities.

The February 22 symposium is the second such event, sponsored by the National Association for the Civilian Oversight of Law Enforcement (NACOLE). The first, held in February 2015, was entitled Moving Beyond Discipline: The Role of Civilians in Police Accountability.

The impact of these conferences, which bring together NACOLE’s member-practitioners—representing oversight organizations in some 30 states and six countries—with criminal justice academics, policy-makers, and professionals, should not be under-estimated.  It’s clear that the criminal justice scholarly community and law enforcement policy-makers have begun to listen to the concerns raised by the Black Lives Matter movement and allied advocacy organizations—and to respond in ways that push the conversation forward.

Many of these responses have the potential to bring fundamental changes to the practice of law enforcement, the philosophy of policing, and—in the long term—to the culture that makes many American law enforcement agencies so resistant to change.

The starting point for many of the constructive policy responses to the concerns raised by the Black Lives Matter movement is the Report of the President’s Task Force on 21st Century Policing, to which both NACOLE staff and John Jay College faculty made a number of important contributions. This week’s academic symposium takes as a particular focus the Report’s Action Item 1.3.1:

To embrace a culture of transparency, law enforcement agencies should make all department policies available for public review and regularly post on the department’s website information about stops, summonses, arrests, reported crime, and other law enforcement data aggregated by demographics. (13)

One year after the Report’s release, it is difficult to overstate the importance of this action item, or the impact that it has already had on departmental policies in major city law enforcement agencies across the country.

Analyses like those produced by John Jay’s Misdemeanor Justice Project—on many years of misdemeanor arrests, summonses, and enforcement rates in New York City—would not have been possible without data shared by the New York Police Department (NYPD). Commissioner William Bratton’s continued support for the project —even as he occasionally takes issue with its findings—perhaps speaks as much to a shift in open-data policy nationwide as it does to philosophical differences between Bratton and his predecessor, Raymond W. Kelly.  

Even as major law enforcement agencies have themselves engendered a shift toward making publicly available important data on law enforcement activity, a more important driver of openness is the need to heal the sometimes-toxic relations between police and the communities they serve, as noted in the Task Force Report’s Recommendation 2.8:

Some form of civilian oversight of law enforcement is important in order to strengthen trust with the community. Every community should define the appropriate form and structure of civilian oversight to meet the needs of that community. (26)

Civilian oversight in NYC took a giant step forward with Local Law 70 and the formation of the NYPD Office of the Inspector General in 2013. Appointed to the post in March,  2014, Philip K. Eure (who serves as committee co-chair for the NACOLE Symposium) has approached data-sharing and evidence-based assessment as one of the core functions of his office, pushing the NYPD on its use of litigation data in one of its first official reports.

This push for open data, in response to the concerns raised by recent protest movements and advocacy efforts, is an effort well-suited to the agencies tasked with formal civilian oversight of law enforcement; the question of what to do with this data once it is shared with the public is one that research scholars need to answer.

In the hands of social scientists, open data can be transformed into a staggering number of genuinely useful tools: algorithms for predicting potential police misconduct, a relational database and typology for analyzing departmental trends in use of force, or a process-oriented framework for designing the roll-out of a major urban police department’s body-worn camera policy.

All of these tools will be featured, in presentations from the researchers who designed them, at Friday’s symposium. The conversations that follow—led by  oversight professionals, and including an audience of academics, policymakers, funders, law enforcement practitioners, and members of the public—should provide an open forum that pushes these researchers to refine their work and better respond to the needs of the communities whose advocacy helped make the discussions possible.

Ultimately, however, these partnerships and the tools to which they give rise are only one link in a chain that should end with the general public.

True transparency is about communicating the workings of formerly opaque institutions to the public which those institutions are ostensibly intended to serve. Transparency in law enforcement should strive to correct the informational imbalance between the police and highly policed communities. It is an imbalance that allows an arresting officer to pull up the intimate details of a suspect’s life on a computer screen with the touch of a button, but prevents community members from knowing the realities of—and the rationales for—the manner in which they are policed.

Scholars and oversight agencies are often ill-suited to make the final connections that communicate their vital work to the publics—particularly highly policed communities—they mean to benefit. The vital role for journalists in disseminating the evidence base that these researchers are working to build cannot be overstated.

Resources like The Crime Report’s media toolkits and Guggenheim Fellowships, that support evidence-based criminal justice journalism, make it possible for journalists to better communicate the meaning of publicly available data to a public that might not have the expertise to digest this data directly.

Friday’s sessions are open to the public. Those interested in attending can review the agenda or register for the Symposium online.

Daniel Stageman is Director of Research Operations at John Jay College of Criminal Justice, and a Doctoral Candidate in Criminal Justice at the CUNY Graduate Center. He is academic co-chair of the upcoming NACOLE Symposium. Dan welcomes readers’ comments.

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Law Enforcement, Drugs and the ‘Public Health’ Approach

By Leo Beletsky

In a recent high-profile speech at the National Prescription Drug Abuse and Heroin Summit in Atlanta, President Barack Obama reaffirmed his Administration’s approach to addiction as a “public health problem, and not just a criminal problem.”

In its various iterations, the adage that “we can’t arrest our way out” of raging opioid overdose and addiction crisis now figures prominently in policy discussions at all levels of government.

This is, a welcome—and overdue—development. Opioid overdose, including deaths resulting from prescription drugs like Oxycontin as well as their chemical cousin heroin, is now killing as many as 80 Americans daily.

The precipitous rise in opioid misuse and overdose has occurred despite extraordinary financial and human investments in drug law enforcement, mass incarceration for drug-related crimes, and other criminal justice approaches. But the emerging rhetoric that an alternative, “public health” approach is necessary to curb the opioid crisis has yielded few actionable specifics for those on its front lines—police and other law enforcement officers.

As often happens, innovation has come from the bottom up.

One of the most widespread initiatives has been to equip police officers with the overdose antidote naloxone. First introduced as a tool for law enforcement in New Mexico in 2004, it has recently expanded to police forces across the country, on the principle that police are often the first to arrive at the scene of an overdose. (This is especially true in rural locales and other settings like tribal areas, where emergency medical service response times can be substantially longer than those of law enforcement personnel.)

Nationwide, law enforcement officers outnumber medical first responders by approximately a factor of three. Several hundred police agencies have now trained and equipped officers to resuscitate overdose victims, reversing over one thousand overdose events.

Aside from this direct role in rescue operations, law enforcement can also contribute to overdose prevention through other activities. These could include disseminating information about signs and symptoms of overdose, advice on accessing naloxone, promoting Good Samaritan (criminal amnesty for overdose victims and witnesses who call for help) policies, and referral to available addiction treatment programs.

A growing number of departments are embracing these kinds of outreach activities. For instance, Boston PD has recently formed an Opioid Response Unit, which provides education and resources to overdose victims and their families.

Another effort introduced in Gloucester, MA offers amnesty to anyone who presents at the police station seeking help to access substance use treatment. The so-called “Gloucester Angel Initiative” program has helped to launch a national movement: More than two dozen police departments have adopted similar policies, and recently formed The Police Assisted Addiction and Recovery Initiative (PAARI).

Editor’s Note: Gloucester, MA police chief Leonard Campanello describes his initiative and why he launched it in TCR last month.

Finally, Law Enforcement Assisted Diversion (LEAD) programs offer a structure for pre-arrest diversion available to drug users and other non-violent offenders. First introduced in Seattle, LEAD provides access to a broad range of housing, job training, and other social services.

These efforts can offer unique benefits. Police professionals often have close interaction with hard-to-reach groups that are most at risk for substance abuse and overdose. They also promote operational collaboration with public health agencies, resulting in improved information sharing and other synergies.

In addition to direct public health benefits, police overdose response, public education, and referral programs can help both police agencies and the communities they serve.

A closer understanding of drug misuse, its root causes, and evidence-based prevention and treatment tools can empower criminal justice professionals and institutions to achieve better results. At the same time, a shift in police attitudes towards addiction can increase trust and communication with drug users and their families, as well as in the community at large. At a time of serious challenges to community-police relations, reaffirming law enforcement’s dedication to public wellbeing can strengthen collaboration with civil society, promote officer job satisfaction, and ultimately help police in their core public safety mission.

But a number of challenges remain before the “public health approach” rhetoric can be translated into evidence-based policing practice.

With the exception of Seattle’s LEAD program, the impact of these public health-oriented policing initiatives remains unclear. As we struggle to contain this crisis, their rapid dissemination has proceeded organically in the near-absence of robust evaluation that could inform their design and tailoring.

For example, it is not clear whether training and equipping police to conduct overdose rescues is equally cost-effective in urban areas already well-served by professional medical response, as it is in rural or tribal locales where medical first responders arrive with substantial delay.

While these innovations have certainly expanded the traditional law enforcement toolkit, they have yet to challenge our reliance on the more traditional drug law enforcement. Conducting interrogations at the scene of an overdose, using prescription drug monitoring data for investigative purposes, and charging small-time dealers with homicide for supplying drugs to overdose victims may be perceived by law enforcement officers as deterrents to substance misuse.

Unfortunately, rather than promoting public health, these actions can inadvertently fuel the very problems they seek to address.

Treating every overdose event as a crime scene and charging overdose witnesses with drug-induced homicide can deter help-seeking during overdose emergencies. Using prescription drug data to identify and prosecute patients can undermine trust between people with substance use problems and their providers, pushing vulnerable patients away from getting help at a time when they need it most.

At the policy level, proposals for higher-intensity enforcement measures and a renewed focus on legislation extending drug trafficking sentences run at cross purposes to 911 Good Samaritan laws and other amnesty measures. 

To be clear, we do need accurate and timely information about dangerous street drugs and prescription drug patterns. But the work of gathering and applying this information must be done with a clear vision for the life-saving goal in our effort to mount an effective response to the opioid crisis. We must acknowledge what we have learned by now from experience: that wielding the stick of criminal justice against street-level drug use does little to stem it, while also driving users underground, away from helping hands.

To make a real impact in curbing the current crisis, police agencies can benefit most from evidence-driven guidance to translate the “public health” approach heralded by policymakers and community leaders into street-level operations. This is the real opportunity before us for shared innovation and exchange.

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky

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The Stain on Young Lives That Never Goes Away

By Nicole Pittman

Brandon was 11 years old when Texas authorities charged him for indecent exposure. According to one account, he pulled his pants down; according to another, he urinated in public.

Yet the state, in finding Brandon guilty, proclaimed the preteen a “sex offender.”  As it has for hundreds of thousands of others, that label sealed his fate.  After spending most of his teenage years in a juvenile facility, Brandon—whose full name has been omitted to protect his privacy—would still have to register as a sex offender when he came home.

Except he couldn’t actually go home.

That’s because his parents’ house was located in a “child safety zone,” which can cover hundreds of yards around any place that kids congregate, from schools to parks to movie theaters.

He, like 44 percent of all registered youth who are listed as “sex offenders,”  soon became homeless. And because he was homeless, he couldn’t provide authorities with a permanent address, which is a registration requirement; so he soon ended up behind bars again.

Similar anecdotes of young lives ruined by this country’s sex crime registration laws—which are unparalleled in most of the world—abound.

Roughly 200,000 of the 835,000 individuals currently on registries were minors when they were placed on the list.   This legal practice routinely brands kids— some as young as eight years old—as sex offenders. They are there for a spectrum of offenses that can include serious crime, but also for actions like playing “doctor,” streaking and consensual underage sex.

The specifics of the offense are irrelevant to whether they are placed on a sex offender registry.  

Several years ago, before founding the Center on Youth Registration Reform at Impact Justice, I interviewed more than 500 people who were placed on registries for a Human Rights Watch report; some had to register into their 20s and 30s but many faced lifetime registration. Almost all reported severe mental health consequences.

They experienced social isolation, and were often physically banished from their homes and communities by invisible barriers. As adults, they struggled to find jobs because of their status and were required to regularly check in with law enforcement. Failure to report even a minor change in their life situation could result in a felony charge that would send them to prison.

Of the kids I interviewed, one in 5 had attempted to take their own lives. Many I never had the chance to talk with succeeded in doing so.

Most kids will stop acting out sexually without any therapeutic or legal intervention.

We call it growing up.

Think about the worst decision you made as a kid. Now, imagine that you were publicly branded for the rest of your life because of that mistake. Imagine that you had to wear that label day after day, year after year, decade after decade.

That is reality for too many individuals.  “We are more than our worst moments.” human rights lawyer Bryan Stevenson once declared in a TED talk about the traumatic impact of life-without- parole sentences on juvenile offenders.

Similarly, when we register youth, we rob them of a second chance—an approach that contradicts the rehabilitation goals that supposedly drive our juvenile justice system.

A recent study by researcher Sharon Denniston, which measured the impact youth registration has on adult depression, found that it’s not the legally imposed restrictions, but rather the sex offender label that often has the greatest psychological impact.

Some states only require youth offenders to confidentially register with authorities, while others put them on public websites. Interestingly, those on non-public registries suffer from even higher depression rates than those on public registries, which suggests how deeply underage registrants internalize being labeled a sex offender.

Despite the old adage, “Sticks and stones may break my bones, but names will never hurt me,” most know all too well that negative characterizations tend to wedge themselves into the dark crevices of who we are. They are difficult to shed. 

Placing young people on lists has enormous consequences for those listed, but it does little to protect society. Tracking hundreds of thousands of registrants for entire lifetimes is a costly burden to law enforcement. The conservative Washington, DC-based R Street Institute recently conducted an economic analysis  revealing this practice costs as much as $3 billion a year and has virtually no economic or societal benefit.

Decades of research definitively show it’s ineffective at best, and counterproductive at worst. Meanwhile, 11 states and the District of Columbia have never subjected kids to registration—with the same or lower new offense and recidivism rates.

This year has marked a turning point in how the American criminal justice system treats young people.

On top of a watershed Supreme Court ruling, which gives people serving life without parole for crimes committed when they were juveniles a chance at release, President Barack Obama announced in January a ban on solitary confinement for kids under 18 housed in federal prisons.

Many juvenile court judges and law enforcement authorities are now calling for the removal of children from registries. Even Patty Wetterling, who advocated for the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which created the first registry, has publicly denounced subjecting any child to registration laws.

At least half a dozen states, many conservative-run, are considering changing their laws to exempt kids from registries. In 2013, Missouri’s legislature passed a bill to take all youth off registries. It flew through the House unanimously and passed the Senate 28-4, but Gov. Jay Nixon vetoed the bill.  However, given the strong support from legislators, the state is primed to tackle this issue again.

In Illinois, a legislatively commissioned task force unequivocally recommended eliminating the practice of placing kids on registries. In Pennsylvania and Ohio, the state supreme courts have ruled the practice unconstitutional.

It’s time the public and lawmakers make this a national issue. Our children’s futures are at stake.

Nicole Pittman, director of the Center for Youth Registration Reform at Impact Justice, is a juvenile attorney, and a Stoneleigh and Rosenberg Leading Edge Fellow. She welcomes readers’ comments.

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Can Cops Be Trusted to Reduce Police Shootings?

By Joe Domanick

“Every second counts, and hesitation will kill you,” Jamie McBride told the Los Angeles Police Commission last month.

McBride, a director of the Police Protective League, the Los Angeles Police Department’s rank-and-file union, was testifying at a  hearing called to discuss the commission’s proposal to establish new guidelines for officers’ use of force—and he didn’t mince words.

The guidelines, he said “will get officers killed, plain and simple”

And he went on deliver a chilling warning to the five civilians who sit on the commission: “Make no mistake, if an officer is killed as a result …. [his]  blood will be on your hands.”

McBride’s comments weren’t unexpected. They reflected the traditional distrust of cops for rules set by outsiders that limit their ability to maneuver in fast-moving and often dangerous situations.

But McBride’s testimony was overshadowed by a just-released report on officer-involved-shootings in Los Angeles during 2015. The commission, which sets Los Angeles Police Department (LAPD) policy, could hardly avoid the alarming numbers spelled out in the report:  48 officer-involved shootings, 38 of which hit suspects, 21 of them fatally.

The ten that hit noone were not warning shots: cops had simply missed their target.

It’s not just LA’s problem of course.

Since 2014, caught-on-camera police killings have fueled a national movement for change which only seems to grow stronger each month.

But no one listening to McBride that day could have avoided a stark comparison with some other big-city police departments.  In Chicago, with a population that's somewhat smaller than that of LA, but where gun violence seems to set new records each year, officers shot 22 people, killing eight. In  New York,  with roughly three times as many police officers and a population about twice as large as LA’s,  officers shot 32 people last year, nine fatally.

The proposal by LA’s Police Commission, which so angered McBride, was far from radical.  It focused on training cops to avoid the kinds of confrontations that lead to officers shooting unarmed civilians—many of whom, as critics point out, are often stopped on the flimsiest of pretexts.

The strategy is called “de-escalation.”

The force behind LA’s new strategy is commission president Matthew Johnson, who was named to the post only last year. Johnson, whose day job is managing partner of an entertainment law firm of 30 attorneys, is an African-American native of New Jersey. A graduate of New York University Law School, he moved to LA “literally three weeks,” as he put it, after the 1992 LA riots.  

In formulating the strategy, Johnson took a careful lawyer’s approach.  He first ordered a ten-year review of LAPD shootings. At the same time, the review examined a wide range of training policies that guide officer behavior and ultimately influence tactics, including procedures for handling the mentally ill, as well as alternatives to using deadly-force weapons.

Based on that review, the commission concluded that the department’s previous approach, which called on officers to demonstrate   “a reverence for human life,” was far too vague. Instead, it called for a new approach that was not just aimed at minimizing shootings, but would train and reward officers who used de-escalation tactics to avoid them—and hold accountable cops who did not.

In its revised policy guidelines, the commission said that henceforth, shooting a suspect would be considered “in-policy” only if it occurred as a last resort.

A key component of the stricter accountability called for in the guidelines was already in place. LAPD Chief Charlie Beck and the commission had instituted a requirement that all patrol officers wear body cameras, and that every patrol car be equipped with a camera.  

Outside critics were already unhappy with some elements of the camera policy, namely providing the right to review any use-of-force tapes before an officer made a sworn shooting statement, thus allowing the officer to present his account in the best possible light, giving the hard evidence represented by the video recordings.

Nevertheless, the support of Beck, and the grudging acceptance of the union, for the cameras gave the commission what it considered a crucial new oversight tool in adjudicating use-of-force incidents.

“The cameras,” Johnson said in a conversation with me, “have made a huge difference [in determining accountability.] At the end of the day the video is what the video is. You can only explain so much, but the video is going to stand on its own.”

Beck and the commission had already begun reviewing officer-involved shootings to consider not just whether the shooting was in or out-of-policy, but whether the tactics leading up to the shooting were appropriate. So some elements of the revised guidelines weren’t new.

What is different, however, is that, as a result of the commission’s decision, de-escalation will be written into official policy, mandating that officers be trained in de-escalation techniques which they must use in their interactions with citizens.

Failure to do so will now be cause to declare a shooting “out-of-policy,”  even if the officer, because of his failure, had placed himself in a position where he felt he had to fire his weapon to protect himself. An out-of-policy finding has become a serious matter in the LAPD, one that can result in anything from required retaining, to a reprimand, loss of promotion, and firing.

Some of the de-escalation training is also already in place. Shooting scenarios are now performed with actors playing suspects. The scenarios graphically demonstrate how to avoid the need to shoot, focusing on when a trainee might have used de-escalation but didn’t.

“They learn how the right way of talking to a suspect, and the right display of empathy and body language [that] can de-escalate a situation,” said Beck.

Indeed, despite the union’s objections, some experts outside the LAPD do believe a well-executed de-escalation training regime can make officers—and the public—safer.

According to Michael Gennaco, who oversaw reform efforts for the Los Angeles County Sheriffs’ Department officers can slow down an escalating situation by taking cover, and calling for back-up or specialized units. They can also try to calm individuals, being careful not to get so  close to a suspect that a mere gesture might cause the officer to lose his or her  cool.

Clearly, as Gennaco says, “Some shootings are unavoidable; you'll never get to zero.”

But he adds, “You can strive to get the number as low as possible, and avoid the ‘lawful but awful’ kinds of deadly force incidents that we have seen too many times.”

But is following de-escalation policy sufficient in itself?    

Training in avoiding interactions that can quickly spin out of control is obviously critical—but only if it’s built into community policing strategy. Successful police-citizen interaction ultimately has to be based on efforts to gain the acceptance and respect of the public. De-escalation of volatile incidents is only a first step.

Whether they fall “in” or “out” of the new policy guidelines, police shootings will continue to shock the public conscience unless law enforcement departments establish a clear goal of establishing legitimacy in the communities they serve.

Near the end of my interview with Matt Johnson, I asked him how the LA Police Commission would monitor compliance with the new policy, which is scheduled to be implemented within the next 30 days.

“We have an inspector general with a staff of 40 auditors and investigators who will insure the policy is complied with,” he said.

“And if this policy doesn’t work, we’ll try something else.”

Joe Domanick is West Coast bureau chief of The Crime Report. This column is being published in partnership with VICE and WitnessLA. Joe welcomes comments from readers.

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Let’s Train Cops For ‘Compassionate Policing’

By Patrick J. Solar

In her best-selling book “The New Jim Crow,” Michelle Alexander presents a brave and passionate argument for changing our criminal justice system.  She makes the case that the outcome of our war on drugs—mass incarceration—has perpetuated a system of racial control reminiscent of Jim Crow, relegating millions to a permanent second-class status. 

As uncomfortable as it may be, every law enforcement professional should read this book—and then read it again. 

Many of us who have been engaged in law enforcement offer a simple-minded dismissal of the problem of mass incarceration reflected in the following passage by Alexander:

…mass incarceration is predicated on the notion that an extraordinary number of African Americans (but not all) have freely chosen a life of crime and thus belong behind bars.  …their imprisonment can be interpreted as their own fault.  If the prison label imposed on them can be blamed on their culture, poor work ethic, or even their families, then society is absolved of responsibility to do anything about their condition.

What should guide law enforcement officers when we engage with the poor and disenfranchised, the most vulnerable members of our society?  A human rights approach to law enforcement dictates a new skill set for officers that includes self- awareness, emotional intelligence and empathy.

These are the characteristics of wise policing.  

The “wise” law enforcement perspective recognizes that, in most cases, the most compassionate thing we can do as officers is to make an arrest.  

Support for this view comes from my own experience.  I was walking out of court and was approached by an individual who looked vaguely familiar.  As he approached me and extended his hand, he said, “You probably don’t remember me but you arrested me for drug possession last year.  I just want to say thanks because you saved my life.  That arrest forced me to get the help I needed and I’ve been drug-free now for six months.”  

I believe the compassionate, human approach outlined by Alexander means treating all people with the dignity and respect that we are all owed as human beings.  

Alexander does not argue that law enforcement officers should abandon their duty, or treat disadvantaged and marginalized people with leniency—only with fairness and compassion.

Wise, compassionate policing begins with a firm understanding of what the police are actually here to accomplish. 

The “law enforcement business” focuses on law and order. For many officers, this is interpreted as filtering calls for service based on whether or not there is a law violation.  That perspective is reflected in our recruit and in-service training programs, where we teach the consistent application of the law and procedure on how to arrest people properly. 

In Wisconsin, state-level officials claim that military experience is vastly more important in a quality police recruit than a college education.  As if the willingness and ability to blindly follow orders is the hallmark of effective policing. 

Such beliefs may be comfortable but they are not wise

A better approach to policing is defining it as a people-centered business that sometimes involves law enforcement.

I look at the reports of officers killing unarmed individuals and wonder how these officers rationalize such action.  The answer, of course, is that through our training and socialization into the law enforcement culture we accept the law as our primary source of guidance. 

Society invests police officers, out of necessity, with the discretion to use deadly force and we collectively expect them to do so when it is legally justified.  When officers are not charged with crimes for their actions, it is not a failure of the legal system.  The fact that these kinds of events occur in the first place is an indication of a failure elsewhere, perhaps in the very fabric of our society.   

 Throughout my career I have witnessed this de-humanizing phenomenon. Cops are thrust into positions of authority and they develop, or inherit from veteran officers, a sense of superiority over people.  Poor people are, of course, most often the victims and perpetrators of crime making them the primary customers of the police. 

Among themselves, officers begin to refer to some people in derogatory terms and once they can view such people as something less than human beings, not deserving of courtesy and respect, the door opens to rationalizing behaviors that most of us would find despicable.  The same thing is true with those who refer to the police in derogatory terms, enabling them to view the police officer as something less than human and, therefore, underserving of respect. 

This, of course, opens the door for the kind of violence we have seen perpetrated against the police.  But it is a societal problem that can be seen in our streets, schools, government institutions and sometimes even our own homes. 

Chuck Wexler, Executive Director of the Police Executive Research Forum, has developed what have become known as the 30 Guiding Principles that apply a higher standard to the police use of force. Wexler states:

We looked at how officers are trained for situations in which a person is armed with an edged weapon like a knife. Although these confrontations can be extremely dangerous, the police should not automatically handle these people as they would a gunman. Often there are ways to defuse these confrontations without resorting to deadly force.

The key for the police in such circumstances is to slow things down: to ask questions rather than bark orders, to speak in a normal tone, to summon additional resources if necessary. Pulling out a gun on an anxious person may unintentionally raise his level of stress. In “suicide by cop” confrontations, this can make a bad situation worse.

We found that this approach works — not only in Britain, where police officials say it has increased the safety of officers and the public, but also in places like New York City and in Camden, N.J.

Nevertheless, several major police chiefs and police organizations have recently taken issue with this approach, arguing in part that it could cause dangerous hesitation when officers need to be decisive.

But I believe that we are so concerned about the possibility of injury or death to officers that we over-react (the phrase commonly used is “lawful but awful”).  The courts usually back up police, as they should.  After all, police are representatives of society, and when they are  threatened we should all be concerned about the resulting threat to the rule of law that protects us all.  

On the other hand, we are not undermining the rule of law by asking cops to "back-off."

We are strengthening it through reinforcing its legitimacy. 

Consider the impact the use of deadly force on the involved officer.  It scars him or her for life—and the traumatic impact is not fully understand  until it actually happens. Training in situational awareness and de-escalation is in the best interests of the individual police officer, and should be the preferred, tactically sound approach in many critical incidents.

De-escalation training should include discussion of proportionality, using distance and cover, tactical repositioning, “slowing down” situations that do not pose an immediate threat, calling for supervisory and other resources, etc. Supervisors should hold their officers accountable for adhering to these guidelines.

Some other de-escalation principles include:

  • Respect the sanctity of life by promptly rendering first aid.
  • Don’t use deadly force against individuals who pose a danger only to themselves.

I believe that what we need in our law enforcement agencies today are men and women of "good will," with a level of emotional maturity and wisdom that is reinforced by supervisors and police leaders.  As I testified before the Wisconsin Assembly Committee on Criminal Justice in December 2013:

“The trained Law Enforcement officer knows how to enforce the law.  The Wise police officer not only knows how, but when to enforce the law; employing sound alternatives to arrest when warranted based on wise judgment.” 

The compassionate police officer can be recognized not by the number of arrests he or she makes, but by the “good will” generated, both within and outside of the police agency.   

Patrick Solar, Ph.D., is currently an Assistant Professor for the online masters in criminal justice program at the University of Wisconsin-Platteville. Dr. Solar retired as chief of the Sycamore Police Department in 2010, after a 30-year law enforcement career where he began as a street officer. Since retirement, he has also taught criminology, criminalistics, criminal law and police administration at Kishwaukee Community College in Malta, IL. He welcomes readers’ comments.

 

 

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The Panama Papers: Why Cross-Border Journalism Matters

By Stephen Handelman

Most Americans never read the details of this week’s biggest justice story until several days after it broke in the rest of the world.

Starting Sunday, newspapers in Germany, Britain, Canada, and more than 80 other countries began publishing information based on private financial documents leaked from a Panamanian law firm about schemes used by the rich, famous and powerful to avoid paying taxes.

The leaked data, comprising some 11.5 million files, outstrips in quantity – if not significance—the celebrated leak of national security files three years ago by former CIA employee Edward Snowden.

Several national leaders have already been implicated in what appear to be sophisticated money-laundering schemes to hide funds—some of which may have been obtained illegally. The Prime Minister of Iceland has already offered to resign, and officials from France to South Korea have announced investigations into the misappropriation of funds by business leaders, celebrities, global sport executives, and other major financial and political players in their countries.

Prime Minister Vladimir Putin of Russia, Pakistan Prime Minister Nawaz Sharif  and Chinese President Xi Jinping are each defending themselves against what they call exaggerated or false accusations that link them or close relatives to shadowy attempts to siphon billions of dollars to offshore banks. UK Prime Minister David Cameron is facing calls for a government inquiry.

The papers suggest that even the perpetrators of the world’s most notorious bank robbery, the 1983 Brink’s gold bullion heist in the UK, received the firm’s (perhaps unwitting) help to cleanse their proceeds in anonymous offshore accounts before funneling it back to Britain. (Most of the stolen money still remains unaccounted for.)

It may be the biggest corruption story in the modern era.

Expect much more to be revealed over the next several months, as journalists continue to sift through the wealth of data obtained from Mossack Fonseca, a previously little-known Panamanian law firm with offices in 40 countries.

But the story received little play in the U.S. mainstream press until the middle of the week. It finally hit The New York Times front page Wednesday (along with a lead editorial) after first getting a Page-Three mention the day before. The Washington Post ran the story about the Icelandic premier on its front. One major U.S. news chain, McClatchy Newspapers, with outlets in 29 communities, did run the story on Monday, but it was a notable exception.

While (so far) no prominent U.S. citizens or institutions have been flagged in the documents, you might well wonder why much of  the nation's  media—seemed to miss the story.

The reasons why are illuminating.

The investigation actually began nearly a year ago when a source who called himself “John Doe” called the Munich newspaper Süddeutsche Zeitung with an offer of “data.”  When the paper’s reporters checked out the source, the raw files they received contained such a vast amount of information they decided they needed help.

They enlisted the International Consortium of Investigative Journalists (ICIJ), a Washington, DC-based organization founded in 1997 that brings together, as its name suggests, investigative reporters from all over the world with the aim of mounting transnational or cross-border investigations.

I was privileged to be one of the original members of the ICIJ when it began as a group of 100 or so reporters (many of them in the U.S.) who shared information, tips and sometimes stories. But few professionals at the time took it seriously. It was based on a concept then considered implausible—if not downright laughable.

It proposed that journalists would be willing to suborn their natural competitive instincts by giving up their “exclusive” pursuit of stories in return for cooperating or collaborating on investigations that crossed national borders. By sharing their work in their home countries with colleagues elsewhere, the thinking went, the results would be more encompassing, thorough and impactful.

Call it “reporters without borders.”  But most U.S. editors balked at the idea of “co-publishing” massive investigations whose accuracy they could not immediately check or be accountable for—and perhaps, just as significantly, would reduce the limelight attention that won prizes.

But that was then. Since those early days, the print media industry in the U.S. has imploded. Newspapers have closed, merged or turned into hollow versions of their former selves. Newsroom staffs have been sharply cut back, with many journalists migrating to online journalism.

At the same time, corruption and organized crime have emerged as global phenomena in ways that were once unthinkable—thanks in part to the global cyber-economy—and that in turn affect the lives of millions of people around the world.

The ICIJ grew slowly and steadily over the past decade, with collective member investigations of stories ranging from multinational companies involved in cigarette smuggling to the activities of private military cartels. It has won some of journalism’s most prestigious prizes, such as the George Polk Award and the Investigative Reporters and Editors award.

Leading American journalists play a prominent role as advisors—but the organization still remains largely invisible in the insular American media world.

More than 400 reporters from more than 100 news organizations worked together on the Panama Papers. Their stories were published in 25 languages and produced front pages or leading broadcasts from Brazil to Zambia.  But major American news organizations were pretty much absent without leave—for the most part because the conditions for collaboration ran counter to their working business models.

Conditions like agreeing that no publication could publish its story until everyone did, or sharing of files and sources.

American news media do in fact cooperate with each other on a limited basis. Print media, broadcast and online news organizations have partnered to produce some impressive investigative reporting—but there’s nothing on the global scale of the ICIJ.

Does that matter?

American readers certainly came late to a story that adds an important dimension to the insidious and complex network of corruption and transnational crime that indiscriminately affects citizens and consumers whether they live in Iowa or Italy.

But more importantly, for justice reporters who now cover an increasingly broad and sophisticated beat that stretches from traditional “courts and cops” to education and the environment, the ability to work across traditional boundaries that separate news media (or specialist beats) has become a critical tool.

Just applying the ICIJ concept of “borderless” journalism to the U.S. would allow journalists operating in neighboring states or municipalities to compare information and trends in issues such as sentencing reform, corrections and policing.

Reporters in many newspapers already look outside their home beats for that kind of comparative (and illuminating) data. How much more effective would it be if outlets in Illinois, New York and California shared their reporting—especially when the number of reporters covering criminal justice has steadily diminished?

Such collaborations are actively encouraged by John Jay College’s Center on Media, Crime and Justice, where I now work as director, as part of our mission of encouraging and promoting in-depth criminal justice journalism. When reporters at our conferences sit down and begin sharing (sometimes warily) ideas and sources with their colleagues, most are (happily) astonished by the results.

But these are still informal partnerships. There are few structured organizational collaborations among significant numbers of media organizations for stories where joint efforts in research and legwork could produce a powerful impact on national policy.

That’s not to suggest individual U.S. outlets and reporters haven’t done a superb job in bringing to light flaws in our justice system.

But with the Panama Papers, cross-border journalism has finally come of age.

For the journalists who participated, the sense of elation, along with schadenfreude that the “giants” in the media business were for once scooped on a major story, was palpable in the email traffic among ICIJ members this week.

 But there was also a sense of pride mixed with disbelief that journalists from so many different reporting “cultures” could not only work together, but agree to ignore (at least temporarily) their competitive instincts.

 “The idea of kind of screwing the other guys disappears pretty quickly,” said Rob Cribb, who was The Toronto Star’s lead reporter on the tax haven investigation.

“You just realize, first of all, this is an incredibly important story, and these are incredibly talented and gifted journalists, and when are you ever going to get access like this in your life?”

Stephen Handelman is executive editor of The Crime Report. He welcomes comments from readers.

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