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Outrageous Government Conduct: Readers Respond

The Crime Report’s two-part investigation last week of how the little-known “outrageous government conduct” defense has fared in the nation’s courtrooms attracted numerous comments—many of which went beyond the legal wrangling triggered by undercover sting operations in recent years to raise essential questions about police practices.

Should police be allowed to conduct fake stash-house stings with fake drugs to catch people they say are dangerous? Do such practices keep the public safe?

And perhaps, most importantly: Is this the way we should deploy our crime-fighting resources?

At CBS News.com, which cross-posted our stories (and later discussed on air by TCR contributing editor Graham Kates), one common reaction was that these stings keep the public safe and the targets would have committed a crime at some point anyway.

“It would be difficult to claim entrapment unless the person being entrapped has a low IQ. Even with ‘temptation,’ most good people wouldn't be caught up in a scheme like the first one described. Bottom line - most people who get caught up in these schemes have the propensity to be criminals anyways,” wrote commenter Beewaximus.

“Temptation is everywhere,” wrote a poster who signed his name as Vicjsm. “The bad circumstances in his life would still be there. He was stopped before he committed a crime that wasn't set up, possibly saving innocent lives.”

Others disagreed.

“So you're an advocate of thought crimes and arresting people before they commit crimes,” wrote DJTRUMP4PREZ2016 in response to Vicjsm.

“Until you can see the future with 100% accuracy, ‘could've’ is not a measure of reality. He wasn't stopped from doing anything because there is zero proof other than in your mind that he would've committed any crime,” wrote Arthemisa.

“It is not the job of the police to drum up business;  it is their job to stop illegal acts in the process ---not create the problem,” wrote Rocky5077.

In other reactions, Douglas A. Berman of the Sentencing Law and Policy blog wrote positively on the stories, saying, “In these two extended pieces, TCR highlights the extraordinary examples of extreme stings and the limited willingness of courts to police the work of police and prosecutors in this arena.”

We also heard from a defense attorney about a case we missed in reference to “selective enforcement.”

We mentioned in the second story that defendants in stash-house cases have recently tried arguing they were victims of “selective prosecution.”

In the past two years, we wrote, defendants in Illinois, Connecticut, New York, Pennsylvania and New Jersey have filed discovery motions to get the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives, or the Drug Enforcement Agency to fork over its targeting criteria.

A defense attorney in Maryland pointed us to an active case he is involved in.  He has filed similar discovery motions in an attempt to prove “selective prosecution”—so add Maryland to that list of states where defendants are aggressively litigating stash-house cases using a “selective prosecution” argument.

The most interesting comments, however, came from an inmate of the Federal Correctional Institution of Bunter, NC.

Joshua Boyer was sentenced to 24 years in prison for agreeing to participate in what turned out to be a fake stash-house robbery.

In an email to The Crime Report, Boyer wrote that when he was sentenced 15 years ago, the court “disagreed” with the lengthy sentence but was “powerless to do anything about it.” He said this reflects  a larger problem about our country’s failure to honor our Constitutional guarantees.

“The Separation of Powers in our Constitution has become nonexistent,” Boyer wrote. “Prosecutors and agents hold all the cards (and they make) executive officials judge, jury and executioner in more cases than a lot of people know.”

Boyer went on to write:

Primarily—arguably, the only—reason positions of power are now concerned with growing inequality and are at least talking about criminal justice reform is because of the growing discontent manifest in different social movements. Behind the scenes, however, maintaining the status quo is still the primary objective. Projecting the appearance of reform is the ultimate goal. Especially when it comes to stash house stings.

Recently, citing cases we mentioned where judges dropped drug charges in stash-house cases in Illinois, Boyer appealed for re-sentencing—but was shot down. He is scheduled to be released in April, 2022.

Over at CBS News, another reader noted that Judge Joseph Irenas, a senior U.S. judge for the district of New Jersey, who was featured in our second story, died recently.

“Sorry to hear of the judge's passing. We need more people in law enforcement who are willing to buck the corrupt systems as they appear,” wrote Wary Alaskan.

Irenas is the judge who went out on a limb to rule the government had engaged in “sentencing entrapment” in the Terrance Hardee case. The government appealed his sentence and the Third Circuit has not yet ruled on the matter.

If upheld, his decision to sentence below guidelines due to “sentencing entrapment” may be a sign to other judges that downward departing in stash-house cases is OK. We’ll see.

There’s a lot more to find out about “reverse stings.”

Recently, we came across an article by former DEA agent Michael Levine, who tweeted out a link to our story last week. Check out his piece, “Reverse Sting Operations—The American Hustle: The Unethical Use of Reverse Sting Operations and the Creation of Crime”

Lastly, a reader on Twitter pointed us to a great podcast, Criminal, which dedicated an episode to fake stash-house stings two weeks ago.

It’s worth a listen.

The story of “outrageous government conduct” continues with every new case where a defendant raises the motion. Many of the cases we wrote about are active, so we plan to follow their progress to monitor how courts treat motions of “outrageous government conduct” and “sentencing manipulation.”

Please help keep us informed through by email or on Twitter of any related cases or articles you come across.

Adam Wisnieski, a Connecticut-based freelance reporter, is a contributing writer to The Crime Report. You can follow him on Twitter @adamthewiz or reach him at adam@thecrimereport.org. He welcomes comments from readers. TCR thanks all the readers who helped make his two-part investigation possible through indieGoGo, as well as the Fund for Investigative Journalism, who provided generous support.  

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If Your Holiday Gift is a Drone, Please Register It

By Marc Debbaudt

One person's fun is another person's danger. That is especially true for drones.

There's no question that small drones serve some legitimate purposes. They can perform tasks that are dangerous for pilots of manned aircraft, such as powerline and smokestack inspections. They can film movie scenes that can't be filmed by helicopters. And, for the average person, they can be a fun toy to play with.

But in August, a hobby drone forced a LAPD helicopter to take evasive action while searching for a suspect in Hollywood.  Drones are a real danger every time the LAPD deploys one of their 17 helicopters.

FAA statistics show that pilots have reported almost three times as many drone sightings in the first eight months of 2015 than they reported in all of 2014. Many of the reports were around busy airports such as LAX.

And it’s  not just police helicopters that are endangered. Drones have also interfered with aircraft fighting wildfires, and with medical helicopters.

If a bird can damage an aircraft engine or windshield, we can only imagine what a drone could do. The results could be deadly.

Drones also can endanger innocent bystanders on the ground. In September, an 11-month-old girl was injured by a quadcopter that crashed on a Pasadena street.

One of the main problems is that many drone operators have no aviation experience and are ignorant of the rules for safe flying. But clearly, some people simply don't give a damn that their actions could threaten the safety of hundreds of others.

The problem is likely going to get worse before it gets better. Industry groups are predicting that hundreds of thousands of drones will be sold in the U.S. this holiday season. That means hundreds of thousands of additional people with no aviation knowledge are suddenly going to have access to the airspace.

There are other causes for concern beyond the threats posed by ignorant drone operators. What about the terrorist or criminal who attaches a gun or bomb to a drone? And what about privacy? What is going to stop a pervert from using a camera-equipped drone to peek in on a woman who's changing her clothes in her bedroom,  or a busy-body from snooping on what the neighbors are doing in their back yard?

The FAA announced in October that they're going to require most small, personal drones to be registered, just like manned aircraft. This is a positive step. Knowing your name is linked to your drone will probably spur some people to think twice about their actions.

But the devil is in the details. Which drones are going to be exempt from registration? Will registration apply to drones that were bought before the requirement takes effect? How are they going to ensure people actually register their drones? What about drones that are sold second-hand? And how would registration actually prevent people from flying illegally, irresponsibly or immorally?

There won't be any single solution to drone safety. It's going to take registration. It's going to take education. And, above all, it's going to take the strongest possible civil and criminal penalties against people who break the rules or who fail to register their drones.

Accordingly, public safety agencies and organizations and support any and all local, state and federal ordinances and laws that would impose penalties against people who misuse drones or fly them irresponsibly.

The FAA recently announced a $1.9 million fine against a company that illegally operated drones over New York and Chicago. I hope this sends a powerful message.  While I am disappointed that Governor Jerry Brown recently vetoed a bill that limits the use of drones unauthorized drones in emergency zones, public safety organizations will continue to support legislation that prohibits civilians from flying drones over wildfires, schools and prisons.

Enacting swift and forceful punishment will be the most effective method of deterring irresponsible behavior.  While punishment is not the only answer, it’s sadly true that only when people start going to jail or pay crippling fines for dangerous or improper drone operations will the message really be driven home.

Marc Debbaudt is President of the Association of Los Angeles Deputy District Attorneys, which represents nearly 1,000 Los Angeles Deputy District Attorneys. An earlier version appeared on the association’s website. Mark  can be contacted at mdebbaudt@laadda.com. The view and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of ADDA.  He welcomes your comments.


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Let’s Stop Trying to ‘Fix’ Kids’ Behavior With Incarceration

By Kathy Park

The juvenile justice system was created to ensure public safety while helping youth overcome difficulties and become successful members of their communities. For many young people who have been adjudicated by the juvenile court, though, the system has become a tool for broader intervention than simply preserving safety: a way of getting kids help.

Consequently, well-meaning juvenile courts sometimes make decisions to incarcerate kids in hopes of getting them the services they need.

This raises grave concerns. Young people should be placed in secure facilities only when they present a safety risk to the community. Secure placements—the placement or commitment of a young person in secure confinement—are an extreme deprivation of personal liberty and should only be used when necessary for ensuring public safety.

If a community and court believe that decision is necessary to ensure community safety, it may be an appropriate choice. However, it is not appropriate to consider secure placements for young people who do not represent a substantial risk to community safety.

Young people who are at low or moderate risk of committing a serious offense in the future, regardless of their needs, should remain in the community. Their needs will be best met, and most effectively addressed, outside the formal justice system.

There are simple and compelling arguments for why we need to stop sending such a large number of children to out-of-home placement.

First and foremost, it hurts kids.

Out-of-home placement, even when well-intentioned, can cause significant harm. Research shows that incarcerated adolescents—including those committed to secure facilities, group homes, and residential treatment centers—experience impaired development, especially related to maturity, impulse control, and responsibility. The deficits increase as young people spend more time confined and separated from their communities.

Second, it doesn’t make sense from a treatment perspective.

In general, interventions work better in the community. Programs consistent with evidence-based practice, which emphasize things like cognitive-behavioral and family-based therapeutic interventions, mentoring and positive community connections, are the most successful ones we have to help kids—and they are most successful in homes and communities.

Finally, it hurts communities.

Research studies have consistently shown that spending time in out-of-home placement increases the likelihood of future offending, future adult crimes, homelessness, joblessness, and not completing high school. For young people at a low risk of committing a future offense, out-of-home placements can actually increase their risk level and decrease public safety.

As a community, we are all damaged when our children are further damaged.

So how do we help young people in need, and ensure that our communities are safe, both for the short term and the long term?

For the few young people who are incarcerated because they do pose a serious risk to public safety, we must create programming that can, to the greatest extent possible, mitigate the negative impacts of the confinement experience. Such programming should include developmentally appropriate education, trauma-screening and services as required, facilitation of ongoing relationships and connection with family and community on the outside, and ensuring physical and emotional safety within facility walls.

But to put the problem plainly, juvenile incarceration just doesn’t work very well.

No matter how good our approach is to juvenile confinement, it will always be a second- best approach compared to community-based solutions.

This is not a problem juvenile courts can solve alone. It is an opportunity for whole communities to consider how they want to respond to these young people—and to consider how governments can adopt positive, effective, successful intervention to support youth development, reduce crime and make communities safer.

Rather than respond with a system based on the deprivation of liberty, our response should be focused around strengthening community resources, supporting neighborhoods and families, and positive youth development. Our response should make keeping youth with their family and community a priority, and it should be grounded in our knowledge of brain science, human development and positive community supports.

So what would it take to get us there?

We need to begin by using our resources better. Rather than focusing our efforts on “fixing” young people who get into trouble, we should seek to prevent the circumstances that lead to delinquent behaviors. Communities, government agencies and other stakeholders can creatively work together to get young people, families and communities what they need.

If we want young people to avoid delinquent behavior, the best solution is often a common-sense one: give them better options. When young people have opportunities in their own neighborhoods to be engaged with the community, to establish positive relationships with adults and role models, to thrive in school, and to learn job skills, they will be less likely to engage in delinquent behavior, get arrested, or be adjudicated.

A community of adults who see and value young people can influence positive development and pro-social choices.

And as the investments shift, we need our communities to respond to the needs of young people. If the responsibility for getting youth what they need doesn’t lie with judges and others who are part of the justice system, it must lie with the communities that children live in. It lies with neighbors, family, schools and community organizations.

It lies, in other words, with us.

Communities must step up to find ways to get young people what they need. There are so many ways we can direct our expertise and resources to support young people’s success: build after-school opportunities, create job-readiness programs, and use community resources.

We can work to change drug laws and sentencing minimums, and we can break intergenerational cycles of disadvantage by changing municipal infrastructures and by finding new housing solutions.

The list is long.

If we want real juvenile justice reform, we have to understand that solutions can’t just lie in within the system. But most of all, we have to act—and invest—accordingly.

Kathy Park is Chief Executive Officer of the National Council on Crime and Delinquency. NCCD works to improve outcomes for at-risk children, adults, families, and communities by bringing research and data-driven decision making to the juvenile and adult criminal justice, child welfare, and adult protection systems. Ms. Park welcomes comments from readers.

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When Prisoners Go Home, Punishment Isn't Over

By Glenn Martin

Last month marked the release of more than 6,000 people from federal prison as a result of the Sentencing Commission’s 2014 Reduction of Drug Sentences Act. Thanks to this legislation, tens of thousands more people who are incarcerated could benefit from reductions in their terms over the next few years, and new drug-related sentences will be less than in recent decades.

And it came not a moment too soon: we are currently saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.

While much of the media coverage will continue to traffic in the most damaging stereotypes and tropes imaginable about the formerly incarcerated, it’s important to note that they’ll be at odds with the vast majority of public opinion.

The documented truth is that most Americans support reducing the scope of our nation’s carceral system and reforming drug policy. For example: 84% of American voters support non-prison alternatives such as drug treatment, community service, or probation for drug and other “victimless” offenses.

Majorities of many American groups believe too many people are in prison—64% of Democrats, 59% of African Americans, and 58% of Latinos. Majorities of Americans also would prefer that more money and effort go toward better education and job training, attacking the social and economic problems that underlie crime, instead of toward deterring crime with more prisons, police and judges—78% of Democrats, 77% of those aged 18-29, and 72% of college post graduates.

But strangely concealed in the narratives you’ll be fed and the rigorous research you’ll be pointed towards will be the devastation our absurd criminal justice policies have wrought on human lives.

Precious and powerfully vulnerable human lives.

What goes unmentioned is that for the formerly incarcerated and the communities from which they hail, punishment doesn’t commence with incarceration and it doesn’t abate upon release.

By now, it’s widely uncontroversial among criminal justice reform advocates that the U.S. criminal justice system has become an expensive and ineffective knee-jerk response to behaviors that are, by a wide margin, the predictable outcome of social catastrophes.

Our combined tolerance for persistently high rates of unemployment and poverty as well as systems of second-class education and health care for some bears much of the blame. Institutions of punishment have long served as surrogates for access to community-based mental health and drug treatment, job training and placement, quality education, and affordable health care and follow-up.

By the time most people come into contact with the criminal justice system, they’ve already suffered years of undeserved punishment. That suffering is only compounded by incarceration and continues to snowball after release in the form of employment, housing and voting discrimination.

In a word, the liberty-stifling effects of the American criminal justice system go well beyond the detention of the human body and extend well into the community and lasts a lifetime.

Upon leaving prison in 2000, I was faced with the same bleak odds encountered by so many of our nation’s formerly incarcerated. A severely limiting labor market was only the most glaring of the many hurdles that dotted my path to successful reentry. Determined to beat the odds, I set out on an earnest mission to obtain meaningful employment, achieve a decent standard of living, and further cultivate the voice I had begun to develop as an advocate during my incarceration.

Yet with brutal consistency, I was met with dozens of rejections in my quest for employment. I suffered no delusions about my chances in the job market, but the blows of rejection and continued punishment still landed with tremendous force. But in exceptional fashion, and regrettably so, I was soon offered a pathway out of the many cruelties of post-imprisonment life.

As I gained notoriety in the advocacy world my voice, once suffocated to a whisper, was growing to a resounding pitch. Not long ago, I failed to land a job moving boxes for $16,000 a year. I now run a bourgeoning non-profit with a $23 million budget and a staff of 212. All the while, I remember that my exceptional story, of which I’m reminded frequently, only serves to prove the wickedness of the rule. And it must be swallowed that that rule is a choice we’ve made.

The upshot is clear: we can absolutely do otherwise.

It’s a decision I’m reminded of every time I reflect on my most difficult day in prison—the day of my exit. To be sure, I was excited to reacquaint myself with the texture of freedom, but was dispirited to be leaving behind some of America’s best and brightest. In all cases, these voices that I felt so viscerally and substantively connected to spoke with an expertise and courage that I came to know as entirely the domain of those directly impacted by the criminal justice system.

It has been, in a word, the driving epiphany of my advocacy life.

And to them I say, never forfeit your right to dream. I came out of prison owing $100,000 in fines, fees, restitution and child support. Last month, I met with President Barack Obama to discuss the importance of transforming our criminal justice system.

I suffer no delusions—that trajectory isn’t everyone’s. The odds are long and decidedly stacked against anyone who’s come into contact with the criminal justice system.

But Frederick Douglass’s poignant wisdom still rings true: power concedes nothing without a demand.

Glenn E. Martin is founder and president of JustLeadership USA. His Twitter handle is @glennEmartin. He welcomes your comments.

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New York’s Troubling Proposals for Jail ‘Safety’ at Rikers

By Mary Buser

What can reduce the violence that has plagued New York’s jails—especially at the vast Rikers Island facility?

Recent proposals from New York City’s Department of Correction include recommendations for more stringent monitoring of visitors and packages: Visitors will receive background checks to weed out felons and those who might try to smuggle in weapons and other contraband; and all parcels would have to be sent to the jails through a third-party vendor, such as Amazon, in order to decrease the chances of contraband being smuggled.

At first glance, these measures, which were discussed at a public hearing last month held by the Board of Correction, the oversight agency for the city jails, seem like a reasonable approach to improved safety. (A final decision is expected by the end of the year.)

But having worked on Rikers, in the facility’s Mental Health Department, I believe these new measures would have the opposite effect.

Rikers Island is primarily comprised of pre-trial detainees—those who’ve been charged with a crime but who have yet to see their day in court, and cannot afford bail while they wait. For the “presumed innocent,” life behind bars is a limbo-like existence, where emotions vacillate from soaring hopes for exoneration to plunging despair at the prospect of a guilty verdict.

A visit from family is everything. A kiss from a wife, a hug from a mother, and the smile of a child, restore dimming hopes and offer a sense of calm. But these family visits are few and far between, due in large part to the miserable treatment already inflicted upon visitors—in the name of safety.

One young mother recently told me that her husband has been held at Rikers for a year, where he has grown despondent and depressed as he awaits trial. His lifeline is his wife and baby boy. And yet in a year’s time, he has seen them only once.

The woman described her one and only visit, in which she and her baby waited five hours before spending one hour with her husband. During the wait, she could not feed her hungry child because a bottle of milk was considered contraband. She said that during the visit, she and the baby were continually being sniffed by dogs. Despite this woman’s commitment to her husband, she told me she would never put herself or her child through anything like this ever again.

Like this woman, there are countless other families who give up on the visit, with devastating consequences for the incarcerated.

During my tenure at Rikers, I spoke with numerous detainees who were thrown into an emotional orbit with the news that a wife or a mother could no longer endure these degrading visits. What I witnessed was anger, volatility and the desperation that often leads to violence.

Instead of recognizing the beneficial effects of these visits, these proposed visitor background checks represent a new barrier , one that will further harass family members and inevitably result in even fewer visits, further diminishing the calming effects of family connection—a calm that is badly needed on Rikers Island.

Most visitors do not carry contraband, but simply seek to visit a loved one or friend. According to the Board of Correction, roughly 80% of weapons have not been brought in from the outside, but fashioned from odd scraps of metal inside the jails. To guard against the few who might try to smuggle contraband, searches of inmates exiting the visit room could be enhanced, and in that way the vast majority of visitors, who are law-abiding, would not be subjected to the needless harassment of background checks.

To further enhance safety, a continued spotlight on corrupt correctional personnel, often identified as the culprits in bringing drugs and weapons into the jails, should also be emphasized.

Another lifeline for the incarcerated is receiving a package from family. Most of the Rikers detainees and their families are poor. If they do not have money for bail, it stands to reason they don’t have Amazon accounts. Aside from being outright cruel, the requirement that only pre-approved vendors can be used will result in fewer packages being sent, further reducing vital connections with the outside world.

I would argue that as the few vestiges of humanity on Rikers Island, such as visits and packages, are extinguished, the more inhumane the island becomes.

And nowhere on Rikers is the question of humanity more pressing than the issue of solitary confinement.

Under growing pressure to ease this punishment, the Department of Correction made significant reforms to this practice in January. They included setting the maximum penalty for any infraction at 30 days in isolation. A seven-day break is now also required before a return to solitary to serve any additional sentence. Furthermore, no one may be confined to solitary for more than 60 days in any six-month period.

As a former assistant chief of Mental Health in the Punitive Segregation Unit, I applaud these changes. I can personally attest to the grueling nature of this punishment, as it was my job to visit the cells of mentally decompensated inmates.  I will never forget the sight of blood-smeared cells, makeshift nooses, head-banging, and agonized shell-shocked faces begging for a reprieve.

Therefore, I’m very concerned that the Department of Correction now seeks to reverse some of these reforms by waiving the seven-day reprieve in certain cases and to increase the penalty for assaults on staff from 30 to 60 days. At a time when the practice of solitary confinement is being denounced by world leaders, including President Barack Obama and Pope Francis, and when Juan Mendez, the UN Special Rapporteur on Torture, has said that solitary confinement beyond 15 days constitutes torture, it is baffling that these reforms are now positioned to be rolled back.

Having walked the halls on Rikers Island on a daily basis, I fully understand the need for safety. But instead of relying on this torturous practice, we must instead seek humane methods of achieving it.

Mary E. Buser was a clinical social worker in the Mental Health Department on Rikers Island between 1995 and 2000. She served as assistant chief of Mental Health in the island’s Mental Health Center, as well as the 500-cell Punitive Segregation Unit. Her book, "Lockdown on Rikers," (St. Martin’s Press) was published in September.

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Learning How To Learn (Together) From Justice Errors

By James M. Doyle

Criminal justice reform is having its moment in the public square. The gatekeepers—editors, publishers,  producers,  bloggers, and the “most-followed” social media posters—have decided to grant criminal justice issues some attention.

These media moments always fade. How can reformers exploit the opportunity this one presents?  Can something useful be left behind?

Since 2011, the National Institute of Justice (NIJ), the research arm of the Justice Department, has been exploring the feasibility of promoting “sentinel event reviews” modeled on those that helped transform safety in industry, aviation, and medicine,  in order to develop a “forward-looking” approach to preventing errors such as wrongful convictions, wrongful releases and cold cases that stay cold too long.

Like safety leaders in aviation and medicine, NIJ was also interested in learning the lessons provided by  “near miss” and “good catch” experiences where only good luck or a last minute intervention staved off a disaster.

Last week, the NIJ Sentinel Event Initiative Team released Paving the Way: Lessons Learned in Sentinel Event Reviews, its report on the lessons learned by three pioneering “beta sites.”

These sites—Milwaukee, Baltimore, and Philadelphia—had been selected to explore how to mobilize  a new routine of “non-blaming, all-stakeholders” reviews of negative outcomes: outcomes that are likely the result of compound errors, signal underlying weaknesses, and provide keys to preventing adverse outcomes in the future.

(Because NIJ promised the three sites that it would protect the anonymity of their review participants as far as possible, Paving the Way does not describe the local events reviewed or recount the analyses that the stakeholder groups produced. Douglas Starr’s piece in the online edition of The New Yorker shows some of the protagonists in action.)

The findings that a sentinel event review program might generate are not designed to be ends in themselves; it is the practice of routinely conducting reviews that may have the potential to nourish a new criminal justice culture of continuous quality improvement and to promote public trust.

Perhaps surprisingly, this novel application of a core idea borrowed from other fields wasn’t a tough sell to criminal justice stakeholders.

This may be because NIJ involved diverse stakeholders early in the development process. At a later point, an eclectic array of commentators from the policing, prosecution, defense, research, crime survivor, and policy communities weighed in supporting the concept in a 2014  NIJ Special Report: Mending Justice, Criminal Justice Sentinel Events.

Pretty much everyone agreed that when things go wrong, a “bad apple” or a lone component is never the complete explanation—that  things in the surrounding systems environment set the stage and played a role, and will again unless identified and dealt with. The challenge isn’t to protect a perfect system from dangerous humans; it is to build resilience into a system that is operated by ordinary, fallible people facing production pressure and resource scarcity.

Everyone thought applying the aviation and patient safety approach was a good idea.

Not everyone thought it could be done.

No one thought it would be easy to do it.

Paving the Way shows that jurisdictions can in fact carry out non-blaming, all-stakeholders reviews aimed at cutting future risk, not at fixing blame.

The study does not find that everyone, everywhere, can (or will) conduct a sentinel event review every time something goes wrong.

Some jurisdictions will never conduct a review. Even in receptive jurisdictions, some events are too complex, too eccentric, too old---or simply too hot to handle.

But Paving the Way shows that some jurisdictions can install a routine of examining some cases, some of the time.

That could be a big step forward.

The “beta site” experiment was not the typical contemporary reform process. Most often, new “best practices,” guidelines, checklists, or statutes, are handed down from the Olympian heights of academic centers, Technical Working Groups, think tanks, or law reform Commissions.

The policy wonks, researchers, and reformers who dominate those bodies tend  to see the frontline people who do the actual work on the streets or in the courtrooms as either passive objects of study (who should just hold still and have their “outputs” counted) or as dangerous toxins (who have to be punished or quarantined).

In contrast,  Paving The Way asks what would happen if we evaluated the front line players—who, after all, will be there long after the academic Dieties and the media have gone home—not as wearisome nuisances or wayward children but as indispensable resources.

The beta site experiences mined in Paving The Way show that inaugural sentinel event reviews in subsequent jurisdictions won’t be launched easily, and that they can’t be launched at all unless they mobilize the talents and dedication of early adopters in the frontline practice communities.

Paving The Way vindicates Michael Jacobson’s assertion in his essay in Mending Justice: “If you want to learn something, do something.”

Nevertheless, it indicates that the most promising route to culture change in criminal justice is not “top-down” but collaborative—that if any vector has to be chosen it should be  “bottom-up.”

The report organizes the participating frontline players’ advice about the decisions that subsequent adopters will face and the considerations that should be weighed in making those decisions, while never wavering in from the recognition that local answers will depend on local circumstances, or attempting to dictate choices.

Where do you start? The questions of leadership buy-in and resource gathering are discussed.

What event do you choose? The key importance of initial focus on mitigating the legal risk to the players, attracting broad system participation, and weighing the pluses and minuses of older and more recent events is  discussed. The broad range of “near misses,” “good catches,” and other “high frequency, low impact” events is outlined.

Who should be on the team? The role of the sharp-end players is outlined. The experience with the advantages and disadvantages of non-traditional participation by community, crime survivors’ and  academic communities is shared.

Where will challenges arise? Paving the Way provides a table listing the gritty logistical and interactional problems that have to be expected.

Other questions are concisely considered.  Who should lead?  What is the researcher’s role? How do you structure the SER? Set ground rules? These and other questions gain tremendously from the contributions of the array of stakeholders who took part at the three “beta sites.”

The result is an intensely “real world” document that neither ignores real problems nor obsesses over phantom dangers.

There’s something exhilarating about watching criminal justice veterans participate in this exploration, and successfully face, then master, a range of problems and roadblocks.  One of the great virtues of Paving The Way is that it conveys the sense that, for the participants,  the challenging sentinel event review  process can be not only meaningful, but personally rewarding.

They are proud of themselves. There is even a suggestion that the experience might be fun.

The overall effect of reading about the development of the lessons the stakeholders’ now share is something like watching Sherman’s army march through South Carolina, building its own roads as it marches to the sea. There are lots of corporals and privates, developing lots of  creative (and indispensable) workarounds and adaptations.

And, of course, now that the road has been built, it can be traveled more easily the next time.

In the end, the lessons relayed in Paving the Way are not lessons about permanent fixes to tidy problems. Every fix, after all, will face immediate assault from its environment the moment it is announced. Caseload pressure will rise; politicians will scream; budgets will fall.

The lessons of Paving the Way, derived from hard, unglamorous work volunteered by a lot of hard-working professionals, are about how we might try continually learning lessons as a way of life.

If the trail these sites have blazed is followed, and sentinel event reviews are added to our routine of sheepish press conferences, reciprocal finger-pointing and million-dollar lawsuits  following  an exoneration, we will have fewer wrongful convictions.

And we will need fewer exonerations in the future.

Editor‘s Note; For another view of the Sentinel Review concept, please see the blogpost in Grits for Breakfast “Exoneration Review Commission To-Do List

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice. He served as editor of the Mending Justice report. The opinions expressed here as his own. He welcomes comment from readers.

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Memo to NRA: Support Prosecution of Irresponsible Gun Owners

By Robin L. Barton

In the space of just a few weeks, four tragedies involving guns and children were reported in the news last month.

  • On Oct. 2, 2015, an 11-year-old boy in Ohio fatally shot his 12-year-old brother. The boys and a man were visiting a friend’s property. The men put three loaded weapons on a picnic table, and were discussing them when the younger boy picked up one of the guns and it fired, striking his older brother in the head.
  • On Oct. 3, 2015, another 11-year-old boy from Tennessee asked an 8-year-old girl if he could see her puppy. When she said no, he went into an unlocked closet in his house, got his father’s shotgun and shot the girl, killing her.
  • On Oct. 11, 2015, a 2-year-old boy in South Carolina found a .357 revolver in a pouch on the back of the front seat of the car he was riding in and shot his grandmother with it. She’s expected to survive.
  • On Oct. 17, 2015, a 3-year-old boy shot and killed his 6-year-old brother while they were playing cops and robbers with their father’s gun.

Such tragedies happen far too often—and they’re just the tip of the iceberg.

In fact, according to the Washington Post, so far in 2015, there have been at least 43 incidents in which a child aged three or younger shot someone with a gun.

And those are only the incidents involving toddlers.

In most of these cases, the child-shooters aren’t prosecuted, either because of their age or because the shooting was clearly accidental. (Note that given the circumstances in the Tennessee case, it’s no surprise that this boy has been charged with first degree murder.)

In reality, these child-shooters are also victims, who are likely to be traumatized and scarred by having shot someone, particularly if they knew the person they shot. How does a little kid process having killed his brother or hurt his nana?

On rare occasions, the owners of the guns involved in such incidents are prosecuted.

For example, in the South Carolina case, the child’s great aunt, who owned the gun he fired, was arrested and charged with unlawfully carrying a pistol. She was driving the car at the time of the shooting.

And the father of the boys involved in the Chicago shooting was charged with felony child endangerment for keeping the loaded gun on top of the refrigerator.

But I believe the gun owners responsible for allowing a child to access their weapons should be held accountable in all cases in which it can be shown that they didn’t take adequate steps to secure their guns. In such cases, the child may have pulled the trigger, but the gun’s owner must bear some responsibility.

I won’t waste time discussing why too few prosecutions of gun owners in such circumstances are brought. Dahlia Lithwick did a wonderful job covering most aspects of this issue on Slate recently.

The aspect I would like to address: Why isn’t the National Rifle Association (NRA) speaking out in these cases and supporting the prosecution of irresponsible gun owners?

After all, the NRA’s mantra is “Guns don’t kill people—people kill people.” And the organization is constantly arguing that most gun owners are responsible, law-abiding citizens.

If that’s true, than any time someone leaves a loaded gun on a nightstand or in the bottom of a closet and a child retrieves and uses this weapon, it’s a blemish on the reputation of responsible gun owners everywhere. So why doesn’t the NRA speak out against these irresponsible gun owners?

Whenever someone even suggests limiting the rights of gun owners in any way at all, the NRA has lots to say. But when a child shoots someone with an unsecured gun, what do we hear from this organization?


In fact, the NRA actively opposes safe storage laws, which would require gun owners to safely secure guns to keep them out of the hands of children. And it’s even sponsored laws barring pediatricians from raising gun safety in exams of children much like they would discuss bike safety or safety around pools.

The NRA’s Eddie Eagle Gun Safety Program for children clearly isn’t getting the job done. If this group wants to have any credibility on the issue of gun safety, it needs to speak out on shootings by children and support the prosecution of irresponsible gun owners.

I believe that police officers should support the prosecution of corrupt cops who make all good cops look bad. And prosecutors should support the discipline of colleagues who are corrupt, conceal evidence from the defense or otherwise undermine the criminal justice system.

Likewise, the NRA shouldn’t support gun owners who don’t take steps to keep weapons away from kids and instead it should want these irresponsible owners to be punished appropriately and held accountable for the tragic consequences of their negligence.

As long as the NRA continues to stay silent when these incidents occur, the group will never have any real credibility as a gun safety organization, particularly with those of us who already distrust the group.

Sadly, the NRA may not care about its credibility on this issue. After all, a recent Gallup poll found that 58% of Americans have a favorable view of the organization. But if it does want to win any respect from the other 42% of us, it needs to show it cares more about the lives and well-being of children than the rights of gun owners.

Of course, as The Nightly Show host Larry Wilmore recently suggested, if pushed to respond to shootings by toddlers, the NRA may very well argue for arming them.

To paraphrase the NRA’s mantra,  it might say: “The solution to a bad toddler with a gun is a good toddler with a gun.”

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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Has Jerry Brown Changed His Views On Crime?

By Barry Krisberg

California’s governor traditionally declares his intention to sign or veto dozens of bills that have been approved by the legislature during the month of October. Jerry Brown’s vetoes this year have got a lot of Californians wondering about whether their governor has changed some of his long-held views on criminal justice.

Last month, for example, Gov. Brown rejected State Bill (SB) 347, which would have created a 10-year ban on weapon ownership for certain people convicted of gun-related crimes. Existing federal and state laws already restrict who may own a gun, but SB 347 would have added three offenses to that list: stealing a gun, receiving a gun as stolen property, and possessing ammunition on school grounds.

While Brown’s views on gun control have changed from time to time, the advocates for greater gun regulation were dismayed.

The governor has been a proponent of citizens’ rights to purchase and own guns, but he has increasingly endorsed laws that restrict the unfettered marketplace in military-style weapons and has supported some more rigorous background checks.  Those supporting SB 347 assumed therefore that Brown would sign the bill if it passed both houses of the legislature, but they misread his thinking.

Brown claimed that SB 347 would “needlessly clutter California’s law books by finding new ways to penalize behavior that was already illegal.”

He applied the same reasoning when he also rejected an eclectic set of potential new laws that would have:

  •  increased penalties for possession of date-rape drugs;
  •  criminalized those who fly drones over schools and prisons;
  •  enhanced punishment for illegal dumping; and
  •  prohibited the use of bull hooks on circus elephants.

Brown justified his vetoes by declaring, “ Each of these bills creates a new crime—usually by finding a novel way to characterize and criminalize conduct that was already proscribed.” 

The governor noted that the Golden State had more than 5,000 criminal laws “covering almost every conceivable of human misbehavior.” He noted that the prison and jail population had “exploded” and that the state should “pause and reflect” before passing more laws

At various times in his career, Brown, who  has served the state as its governor, and attorney general, and as the mayor of Oakland, California,  advocated for—or defended—legislation that added new crimes to the penal code, and he has defended the need for tough sentencing policies such as the Three Strikes Law.

A glance at his record suggests that the governor’s approach to crime has undergone some significant shifts.

According to the current website of the California Governor’s Office, Brown “enacted hundreds of tough anti-crime measures including the “Use a Gun Go to Prison Law and mandatory sentences for rape, the sale of heroin, violent crimes against the elderly, child molestation and selling PCP.”

He claims credit for funding programs designed to apprehend career criminals, and for local gang-suppression programs. For several years, he opposed the federal court orders that required the release of some inmates to release prison crowding (although he eventually negotiated an agreement to meet the judicial mandates).

On the other hand, Brown also has dramatically increased the number of life-sentenced prisoners who received parole, and has given more pardons and grants of clemency that any previous state California executive. He negotiated many reforms of state prison and parole policies that have radically decreased the state prison and parole population, insisting that under Realignment the counties play a much larger role in the management of offenders.

Unlike recent California Governors, Jerry Brown did not oppose ballot measures to abolish capital punishment (Propositions 34); to decriminalize the medical use of marijuana (Proposition 36); to soften the Three Strikes Law (a later Proposition 36); or to reduce the penalties for a wide range of felonies (Proposition 47).

So what do his recent actions tell us about the evolving criminal justice philosophy of one of the country’s most well-known public figures?

In many ways, they have reflected the evolving views of the people of his state. Various public opinion polls and recent ballot measures suggest that the vast majority of California voters have shifted from the harsher views expressed in the 1980s and 1990s to a more pragmatic approach.

Brown’s emerging views on crime policy also reflect his approach to governance.

The governor campaigned for and won a highly contested ballot measure to raise the taxes paid by the wealthiest Californians. With the exception of his insistence that California maintain a healthy “fiscal rainy day fund,” Brown has embraced very progressive positions on issues such as worker safety protection, pay equity, increasing the minimum wage, police accountability, LGBT rights, and expanding elementary and secondary education opportunities for all students.

He has refused calls  to punish law-abiding undocumented workers, and has been especially powerful in his statewide and national advocacy about addressing the threats posed by global warming.

And most recently, in response to the California drought, the governor instituted important new regulations on water conservation.

Some might reasonably ask if Governor Brown’s recent veto actions are a harbinger of his further evolved thinking in the future.

This is very pertinent because he is ending his last term of governor in 2018 and might still play a profound role in promoting needed reforms of California’s antiquated and overly harsh sentencing laws. Already, law enforcement officials, victims groups and parole officers have tried to persuade  him to soften his positions on Justice Realignment or parole.

What happens in California matters. Not just because it is the nation’s most populous state, but because it has often been a leader of national developments.

Brown’s rejection of further gun regulation will encourage many conservatives concerned about the proliferation of laws—what some call “over-criminalization.”  But as the debate about criminal justice heats up this election cycle, reformers around the country may also take heart from the fact that there is little evidence to date that Brown will accede to the pressure of “get-tough-on-crime” voices.

As other states evaluate the recent law changes in California, Jerry Brown’s views may take on wider significance beyond the Golden State.

Barry Krisberg is a Visiting Scholar at the Institute for the Study of Societal Issues at the University of California Berkeley. He welcomes your comments.

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Comey’s Bid to Silence Cop Critics Is Disgraceful—and Wrong

By Samuel Walker

FBI Director James Comey disgraced himself last week  when he claimed that criticisms of the police over the past year have contributed to the rise in violent crime.

He added, in his  October 23  speech at the University of Chicago, that he had no evidence to support this statement. Of course he doesn’t have any. There is no evidence.

Comey’s claim sends absolutely the wrong message to the country. Without saying so directly, the message is: If you criticize the police, they will have a hissy-fit, scale back their work, and the result will be more violent crime.

In short: everybody just sit down and shut up.

The idea that criticisms of the police, or federal consent decrees that require needed controls over police use of force, cause police officers to scale back their work has been around for 20 years. It has been labeled “de-policing.” It has been investigated and found not to exist.

The consent decree over the Los Angeles Police Department (LAPD) was evaluated by a first-rate team of scholars from Harvard University, who asked whether the consent decree caused LAPD officers to reduce their work effort.

They  concluded: “The answer appears to be an emphatic no.”  In fact, they added,  “The LAPD has been increasing both the quantity and the quality of its enforcement activity. De-policing, in short, does not appear to be a problem in Los Angeles under the consent decree.” Read the Harvard report for yourself (pp. 19-32

Similar claims of “de-policing” were made about the 1997 consent decree involving the Pittsburgh Police Bureau. A Vera Institute study found no evidence of it.

Comey doubled down on his destructive ideas on October 26, saying in a speech to the International Association of Chiefs of Police that social media about police misconduct had harmed the police. It has not occurred to him that the police misconduct documented in so many videos on social media harm American people.

That is what needs to stop and what he should be speaking about.

The pathetic aspect of Comey’s statements is that 11 years ago he stood up against the George W. Bush administration, in one of the most courageous acts in the history of the Justice Department.

Attorney General John Ashcroft had refused to reauthorize the secret NSA spying conducted by the Administration. He was suddenly stricken with a serious gall bladder infection and went to George Washington University hospital for surgery. On the night of March 10, 2004, Bush administration officials Alberto Gonzales and Andrew Card went to his bedside and tried to force him to sign the reauthorization.

The gravely ill Ashcroft refused, and pointed to Comey, then Deputy Attorney General and at that moment the Acting Attorney General, who also refused. In the next few days, Comey and other high Justice officials threatened to resign if Bush reauthorized the NSA spying (which he had the power to do). Comey personally confronted Bush, who backed down.

Comey showed rare integrity and courage in that episode. What happened to him? Why is he now pandering to the police and apologizing for their lawless actions?

 Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha, and the author of 14 books on policing civil liberties and crime. Comey’s actions on the NSA affair are described in his 2012 book, “Presidents and Civil Liberties From Wilson to Obama.” He welcomes comments from readers. His website is http://samuelwalker.net  

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