Want to read more? Subscribe Now or Sign In
Hide ( X )
  • THE CRIME REPORT - Your Complete Criminal Justice Resource

  • Investigative News Network
  • Welcome to the Crime Report. Today is

Viewpoints

1 2   > >

Guardianship Policing in a Warrior Culture

By Doug Parker

Policing moves in cycles. Since 9/11 the cycle has shifted away from community engagement to securing our communities against terrorism, and controlling crime through aggressive intervention.

In the midst of these changes, the self-constructed role of police officers as warriors has not only persisted, but become dominant. We prefer to think of ourselves as “crime fighters” whose sole mission is to protect our communities from the evils of the world by locking up the bad guys.

This romanticized perception of warrior policing can be self-satisfying. After all, the image of the warrior pervades our culture. However, as professionals we are not in the business of perpetuating popular fantasies. Our duty is to serve and protect. We are guardians.

What is warrior policing? Warrior policing narrowly focuses on controlling crime via power and authority. It perpetuates the cultural view that excludes “outsiders” from police work; people not privy to the responsibilities and complexities of the job. Such a simplistic dichotomy is attractive because it creates clear lines of social engagement. Unfortunately it also perpetuates stereotypes while bolstering serious resistance to change.

Warrior policing considers power and authority as rights exclusively reserved for police officers.

The “warrior mindset” preached by many in American law enforcement ignores the role warriors actually played in Native American tradition. Warriors served as community caretakers, caring for widows, orphans and the elderly. They saw that food was distributed fairly, that shelter was available for every member of the tribe. When the community was threatened from outside, they went to war. Their role as “fighters” was important but not primary.

What is guardianship policing? Guardians consider themselves legally and morally responsible for peacekeeping and peacemaking within the community. They serve as the stewards of community life and health, deriving their power and authority from the community they serve.

When circumstances dictate they act as warriors, defending the community from attack. 

The Navajo Peacekeeper Project is great example of how police officers can move beyond enforcement to guardianship. Building on traditional values that emphasized maintaining and restoring harmony (hozho), officers were schooled to identify the root causes of disputes. Intervention focused on conflict resolution.

By engaging in peacemaking efforts, repeat calls were reduced and harmony restored, making the community safer for both officers and citizens. Sounds like community policing?

Wrong.

Guardianship is a philosophy of policing, not a program. American law enforcement has often succumbed to “flavor-of-the month” thinking when it comes to how we police our communities. This ebb and flow results in disjointed efforts and fragmented perceptions of what role officers are to play. Riding to the rescue comes the satisfying vision of the police officer as warrior, the one constant amidst professional chaos.

Law enforcement has become the primary tool to address a wide array of social problems. For example, citizens suffering from mental illness have been released into communities because treatment is no longer available.

When these unfortunate souls cause problems in the community, police officers are called to the deal with them. Local law enforcement officers confront the results of transnational crime every day in the form of drug and human trafficking, representing a plague on community life and health. Natural and man-made disasters threaten communities in the form of weather events, wildfires, transportation accidents and chemical spills.

Who are the first responders? Police officers and their peers in public safety. In today’s world we are called on to fill many roles.

In order to survive as a profession we should embrace a new philosophy of policing. Guardianship is a philosophy with an expansive view of our place in society which places police officers squarely within community life. It moves far beyond the narrow perception that police control events by applying power to the problem. It acknowledges that our authority is limited to what is granted by our citizens rather than what we choose to acquire for ourselves.

How do we adopt guardianship policing? We should develop new templates for recruiting and search for people with the capacity for critical thinking. We need to understand the cultural influences that shape officers’ attitudes over the course of years. We should confront the barriers to change erected by police culture and set them aside. We must partner with community activists and organizations as well as academia to develop a broader perspective of community needs.

Instead of resisting increased accountability we should embrace it. We should emphasize the value of communication skills and stop equating de-escalation techniques with threats to officer safety; no such relationship exists. 

At the same time we must not discard policing practices because they may be unpopular. The warrior role will always have its place in police work. There will always be situations requiring officers to use force as the last resort to protect lives including their own. However we must recognize that this is not the only role police officers play, nor is it the most important.

We live in times of enormous social transformation. Like it or not, the cycle of social transformation moves forward and law enforcement is caught in the flow of events. We can jump into the water and swim against the tide. Or we can build a better boat that allows us to ride the current to new places.

It’s time to transition to a better style of policing: guardianship.

Doug Parker served over 36 years with three Colorado police agencies: University of Colorado-Denver campus police; Littleton Police Department; and the Montezuma County Sheriff’s Office. He served as a street supervisor, administrative lieutenant, SWAT team leader, Watch Commander and Division Commander. A summa cum laude graduate of Regis University (Denver), he received an MS in Criminology this past April. He welcomes comments from readers.

Read full entry »

User Comments (0 )

Art, Science and the Challenge of Justice Reform

By Greg Berman and Julian Adler

Almost every week brings more grim news about the state of criminal justice in the United States: Unwarranted uses of force, fees and fines being used to balance municipal budgets, dire statistics about mass incarceration, protests in the streets… the list goes on and on.

Alongside these developments, we have seen—drip by drip—the continued erosion of public trust in justice, particularly in low-income neighborhoods and among communities of color.

How should we respond to these challenges? 

In recent days, a veritable cottage industry has emerged that suggests that we already know the answers. An article in Vox declares: “We Know How to Stop Gun Violence.”  In an op-ed, Darren Walker, president of the Ford Foundation, writes, “We know what works. And now is the time to rally behind these proven solutions and bring them to scale.”

As these, and other, voices of reform have highlighted, we have come a long way since the days when researchers despaired that “nothing works” to reduce crime or to change the behavior of offenders.

We now know, for example, that certain interventions—problem-solving courts, focused deterrence initiatives, and targeted therapies, to name just a few—are capable of making an appreciable difference in the lives of offending populations.  We also know that if criminal justice officials treat individual defendants and victims with dignity and respect, it is possible to change perceptions of justice and promote law-abiding behavior. 

And we know that in order to be effective we must carefully match the intensity of the interventions we offer to the level of risk that offenders present.

So why aren’t these practices and programs standard operating procedure in the criminal justice system?

One reason is that there is no single criminal justice system.  Rather, there are something like 3,000 local justice systems, each with its own distinct history and traditions. While federal officials can help change the national conversation and articulate a path for reform, to effect change within the criminal justice system means going county by county to change the practice (and hopefully, the hearts and minds) of local police officials, judges, prosecutors and others. 

We should not underestimate the enormity of this challenge.  Any effort to create a kinder, more rational justice system that does not misuse incarceration must confront the realities of local institutional cultures that are deeply resistant to change.  

We learned this lesson from a randomized controlled trial that our agency, the Center for Court Innovation in New York City, recently completed.  

The goal of the study was to evaluate an effort to encourage clinicians to use validated assessment tools to match addicted defendants to appropriate treatments.  Despite their willingness to participate in the study and use the assessment instruments, the study found that the clinicians failed to change their actual treatment decisions. When the advice of the tools conflicted with their instincts, they stuck with their usual way of doing business. 

To paraphrase the late management guru Peter F. Drucker, culture ate strategy for breakfast.

Experience teaches us that reforming the justice system is both an art and a science. If we are to do this right, we need to be nerds. We need to be clear thinkers who look at data and consult the latest social science and statistical techniques.  

But we also need to be guided by compassion and to remember that the justice system is not an abstract process or a series of numbers on a page. It is a collection of people. And no matter what role they have been assigned in this drama—be they police officers or perpetrators, concerned citizens or community corrections officials—all of these actors are animated by the same tangle of motivations and idiosyncrasies that always drive human behavior. We can never hope to improve justice unless we wrestle with this reality.

We are living through a unique moment of public interest in justice reform.  How long this moment will last is anyone’s guess.  As Adam Gopnik warned in The New Yorker, we should not fall prey to amnesia about the effect of crime on middle-class voters – the political appetite for change may be highly dependent upon voters’ sense of personal safety. 

Seizing the current window of opportunity means more than just identifying the right policy goals or providing money to scale up model programs.  We need to be thoughtful about the details of implementation, and give practitioners the tools and training they need to do things differently. We need to actively engage frontline justice professionals in the reform process to ensure that they will take ownership of new ideas rather than working behind the scenes to subvert them. 

And we need to be patient: It took us years to get into this mess, and we should expect that it will take us years to get out of it. 

But we are optimistic that by marrying good ideas to careful implementation, it is possible to change the culture of local justice systems, and help them become fairer, more effective, and more humane. 

Greg Berman and Julian Adler are, respectively, the director and director of research-practice strategies at the Center for Court Innovation.  They are working on a book, to be published by The New Press, about how to safely reduce mass incarceration. They welcome readers’ comments.

Read full entry »

User Comments (0 )

Reclaiming Innocence: Brooklyn’s Fight to Reverse Wrongful Convictions

By Rukiya King

Why do some jurisdictions have more confirmed wrongful convictions than others?

Early research on wrongful conviction reported remarkable variation around the country. Confirmed wrongful convictions were concentrated in Texas, New York and Illinois, which are among the most populous states—so the implications were unclear. 

New York and Illinois also had very effective innocence advocacy projects (the original Innocence Project was established by Barry Scheck and Peter Neufield at the Benjamin N. Cardozo School of Law at Yeshiva University, and the Center on Wrongful Convictions at Northwestern University School of Law, respectively); so, were wrongful convictions more frequent in these states or just more likely to be discovered?

More recent research revealed pronounced county variability in wrongful convictions which had been masked by the earlier statewide data.  It turns out that Kings County (Brooklyn), New York, along with Cook County, Illinois, and Dallas County in Texas, are among the counties with the largest number of confirmed wrongful convictions.  

Kenneth Thompson became Brooklyn's first African-American District Attorney in 2014 after defeating incumbent Charles J. Hynes in the 2013 Democratic primary. Shortly after assuming office Thompson established a Conviction Review Unit to investigate past Brooklyn convictions (an endeavor that was likely to put a new DA at odds with other prosecutors, law enforcement, and judicial authorities who secured the convictions). 

As of March 2016, Thompson's Conviction Review Unit had exonerated 19 defendants.  All of them had served at least five years in prison; many had served one, two, or three decades.  Seventeen of the 19 had been convicted of a homicide.  Three defendants died in prison before they were exonerated.  All but one of the exonerees (Vanessa Gathers) were male.  In terms of ethnicity, all of the exonerees appear to be Black or Latino

A review of the features associated with the recent Brooklyn exonerees reveals interesting patterns. 

According to data reported at the National Registry of Exonerations, the leading contributors to the Brooklyn wrongful convictions were:  perjury/false accusation, official misconduct, and false confession.  In some cases perjury/false accusation involves a mistaken or lying witness totally independent from the police or prosecution.  However in other cases, false accusations and perjury are engendered by prosecutors who intentionally "manufacture" evidence through incentives (cash payments or reductions in legal penalties) provided for testimony. 

The National Registry of Exonerations defines official misconduct as significant abuse of authority, or of the judicial process, which contributes to a wrongful conviction.  The most common form of official misconduct, according to the literature on wrongful conviction, is suppression of exculpatory evidence (a "Brady violation").  The prosecution is required to reveal to the defense any evidence suggestive of a defendant's innocence.

The third leading contributor among Brooklyn exonerees was false confession.  The National Registry of Exonerations notes false confession refers to circumstances, either where defendants made false incriminating statements, or where police asserted the defendant made such statement.  While the term ”false confession” implies the erroneous statement was produced by the suspect, typically these defendants initially assert their innocence—but during the course of a prolonged interrogation with coercive elements, deception, and inducements to “confess,”  suspects are persuaded to make incriminating statements. 

A recent Crime Report commentary by Matthew B. Johnson argued for mandating the electronic recording of the entire interrogation so there is a record of the interrogation tactics that were used. 

Examination of the Brooklyn Conviction Review Unit exoneree cases, as presented at the National Registry of Exonerations, suggests these wrongful convictions were highly preventable.  In other words, policy reform, combined with altering the culture in the DA’s office, can substantially reduce the occurrence of wrongful convictions.

The presence of perjury/false accusation in several cases illustrates the extent to which police and prosecutorial conduct contribute to wrongful conviction.  In these cases perjury/false accusation rarely occurred without official misconduct or incentivized testimony.  

One example is the wrongful conviction of William Lopez.  In August 1989, Elvirn Surria was robbed, shot and killed in a residence where he sold drugs.  In September of that year, Janet Chapman, a substance abuser, was arrested for prostitution and a probation violation.  During an interview, she reported her presence at the residence and identified William Lopez in a police line-up.  Lopez was arrested, despite information from Surria’s employees describing two men who entered the residence who did not fit Lopez’s description.  Lopez’s counsel failed to investigate these claims as well as Lopez’s alibi.

Chapman provided testimony for the prosecution at trial regarding Lopez’s involvement in Surria’s murder.  She denied she was receiving favorable treatment for her testimony.  Lopez was convicted, and before sentencing, the prosecution received a tip from a woman who knew Chapman and claimed Chapman told her she lied about Lopez’s involvement in the homicide in order to be released.   A few months afterward, Chapman told Lopez’s brother she implicated Lopez in order to be released early.  

In 2013, during a hearing, affidavits and transcripts about Chapman’s deal with the prosecution in exchange for testimony was revealed.  Lopez was granted a new trial that cited Chapman’s recantation, his alibi, prosecutorial misconduct, and new testimony from a former worker present at the residence during the time of the offense.  Lopez’s conviction was vacated.  District Attorney Charles Hynes attempted to appeal the decision.  However, after losing to Kenneth Thompson in the 2013 election, the appeal was dropped.  Lopez died later that year.  

He had spent almost half of his life trying to prove his innocence.

Perjury/false accusation also contributed to the conviction of Andre Hatchett.  Hatchett was convicted in 1992 for the 1991 murder of Neda Mae Carter. He was visiting his aunt, who lived in the same building as Carter, on the day of the murder.  At the time, he was recovering from gun injuries and had to walk with crutches.  Unrelated to the murder, Gerard Williams was arrested for burglary.  He told officers he had information about the murder of Neda Mae Carter.  

Williams claimed he and a woman named “Popeye” were present during the time of the murder, and he stated he saw someone with a crutch at the scene of the offense but later recanted his statement. 

Hatchett agreed to participate in a two separate line-ups where Williams and “Popeye” identified him.  Hackett was convicted at trial.  At the time, attorneys did not present medical records to validate Hatchett’s physical inability to commit the crime.  The Conviction Review Unit re-examined the case and found the following: Williams had originally identified another person, he was under the influence of crack during the time of the offense, and Williams burglary charge was dismissed on the day he implicated Hatchett—thus strongly suggesting Williams provided testimony in exchange for favorable treatment from the prosecutor. 

In March 2014, the DA’s office filed a motion to exonerate Hatchett and the motion was granted.

False confessions have also contributed to wrongful conviction, as demonstrated by the cases of Anthony Yarbough and Shariff Wilson.  Eighteen-year-old Yarbough returned home one morning and discovered his mother, sister and sister’s friend stabbed to death in his apartment.  Police interrogated 15-year-old Wilson and Yarbough for the offense.  Wilson provided an admission of guilt and a taped confession implicating Yarbough and himself.  Yarbough also signed a written statement implicating himself in the three homicides.  

Wilson went to trial in 1994. He claimed the interrogating detectives threatened him and promised to release him if he confessed.  However, medical examiners presented evidence suggesting that the victims were murdered after Yarbough claimed to have discovered their bodies.

At Yarbough’s trial, which began after Wilson’s conviction, he testified that neither he nor Wilson committed the crime and that he signed the written statement after being physically struck by interrogating officers.  A mistrial was declared due to a hung jury.  Yarbough went to trial again and Wilson testified against him in exchange for a reduction in sentence.  Yarbough was convicted and sentenced to 75 years.  

In 2005, Wilson wrote a letter to Yarbough’s aunt admitting he falsely implicated Yarbough.  Yarbough petitioned for re-trial in 2010 and used Wilson’s recantation and medical records indicating the time of death was much earlier than that reported by the medical examiner at trial.  Also, DNA evidence from underneath his mother’s fingernails did not match the profile of Yarbough or Wilson.  

The DNA was linked to another homicide in Brooklyn, committed while Yarbough and Wilson were incarcerated.  Although the exculpation of Yarbough and Wilson via DNA evidence is noteworthy, the recognition of their innocence might have been expedited if their interrogations were recorded.  

In 2014, DA Thompson requested a motion to vacate both the Wilson and Yarbough convictions.

Vanessa Gathers’ wrongful conviction further illustrates the extent to which a false confession could have been prevented.  In November 1991, Michael Shaw was assaulted and robbed in his home. Then- NYPD Detective Louis Scarcella was assigned to this case.  Five months later, Michael Shaw died in the hospital due to injuries sustained from his assault.  Gathers was questioned and informed Scarcella a woman in the neighborhood admitted to involvement in the offense.  The woman was interviewed and she denied her involvement, implicating three other women. 

The case turned cold and Scarcella was reassigned to it five years later as a cold case investigator.  He bought Gathers in for questioning again.  He told her two witnesses informed him she was at Shaw’s residence during the time of the offense.  He also told her he had forensic evidence linking her to the crime but if she admitted to the offense she would be released.  After taking a polygraph, Scarcella told her she failed.  Gathers provided a videotaped confession and was arrested for manslaughter, burglary and robbery.  Gathers immediately recanted her statements.

Her trial began in 1998 and the confession she provided was the primary evidence used to convict.  However, after a New York Times article about Scarcella’s corruption was released, The Legal Aid Society asked Kenneth Thompson to review Gathers’ case.  

The following inconsistencies were discovered.  Gathers stated in the videotaped confession she beat Shaw who was in a wheelchair and stole $60.   However, Shaw did not use a wheelchair and it was highly unlikely he had money available to steal.  Further, no forensic evidence linked Gathers to the scene of the crime.  Additionally, the polygraph indicated deception but was unreliable since it was taken five years after the crime.  Thompson’s motion to vacate the Gathers decision was granted.  Videotaping this interrogation may have resulted in Scarcella behaving more ethically and perhaps evaluating exculpating evidence more rigorously.

The extent of former NYPD Detective Louis Scarcella’s misconduct stretched far beyond Gathers’ wrongful conviction.  A prime example is the wrongful conviction of brothers Alvena Jennette, Darryl Austin and Robert Hill for the murders of Ronnie Durant and Donald Manboardes.  Once again, the official misconduct that occurred in these cases is coupled with perjury/false accusation.  Based on a tip from substance user and drug trafficker, Teresa Gomez, Hill was charged for the murders of Donald Manboardes and Bruce Siblings.

Gomez asserted she was in a closet, looking through a keyhole, when Hill entered the residence, and shot and killed Bruce Siblings.  An investigator testified after visiting the scene there was no keyhole in the door where Gomez claimed to have been hiding.  Hill was acquitted for the Siblings murder.  As for the Manboardes murder, three other witnesses present at the time of the offense stated Hill was not the gunman. They agreed to testify but were not called to do so. Hill was convicted and sentenced for this murder.

Gomez also implicated Austin and Jennette for the unrelated murder of Durant.  Three witnesses came forward stating neither Austin nor Jennette were involved in the Durant murder but this information was not disclosed to the defense.  Prosecution relied mostly on Gomez’s testimony and the brothers were convicted.  Jennette was paroled in 2007.  

However, Austin died in prison in 2000.  A New York Times article  claimed Scarcella’s misconduct included manufacturing incriminating evidence, suppressing exculpating evidence, and coercing witnesses.  It noted Gomez testified in six unrelated murder cases for Scarcella. 

Scarcella denied that Gomez received cash compensation for testimony other than food money and cigarettes.  However, Scarcella’s former supervisor stated Gomez was one of several prostitutes who police paid $100 per murder for information.  Jennette, and Austin were exonerated.  

The extent to which Scarcella abused his power and utilized unethical policing procedures is alarming.  That brings up an important question: how many other law enforcement officers in New York and elsewhere have engaged in similar practices?

The exoneration of 19 defendants warrants recognition as a laudable achievement.  It has brought immeasurable relief to those unjustly deprived of their freedom as well as their family members.  Further, the conviction review process restores a degree of integrity to prosecution in Brooklyn.  It is also essential to recognize the tremendous personal, professional, political courage that is required to investigate the work of your colleagues, acknowledge past errors and violations, and seek justice for those who could be easily forgotten and ignored. 

But going forward, the challenges for Brooklyn DA Kenneth Thompson and the entire conviction review process remain formidable. 

It is critical that the lessons from past erroneous convictions be used to prevent wrongful convictions in the future.  The outstanding contributors to past wrongful convictions—perjury/false accusation, official misconduct, and false confession—demand prospective remedies.  Will the Brooklyn DA address perjury and false accusation by limiting, monitoring, or prohibiting the use of incentivized testimony? 

Will Ken Thompson establish effective penalties to deter suppression of exculpatory evidence?  Will Brooklyn lead the other boroughs of New York by requiring the recording and preserving of the entire period of custodial interrogation?  Will Brooklyn emerge as a national beacon and model for criminal prosecution?

Editors Note: For a table showing a list of all Brooklyn exonerees, please click HERE.

Rukiya King, a Brooklyn native, is a doctoral student in clinical psychology at City University of New York (CUNY).  She has been a member of Prof. Matthew B. Johnson’s Wrongful Convictions Research Group at John Jay College of Criminal Justice, CUNY since 2014.   She welcomes comments from readers.

Read full entry »

User Comments (0 )

Ex-Corrections Chief Calls For Ending Solitary For Youth

By Ned Loughran

As someone who has been in charge of correctional facilities, I understand the need to keep staff and youth safe. However, I also know that the use of solitary confinement is often a symptom of broader problems within a facility such as inadequate staffing levels, minimal staff training on conflict management, and lack of coordination with mental health professionals. 

The use of solitary confinement—also known as segregation, isolation, restrictive housing, or separation—is one of the most challenging issues facing facilities that house youth. Historically, facilities place young people in solitary confinement for long periods of time as a method of punishment. However, recent national developments have highlighted solitary confinement as a serious problem, often leading to severe mental and physical consequences for young people without making facilities safer.

President Obama’s call for an end to solitary confinement of young people is a step forward, but much more needs to be done.  While the President’s new policy only applies to youth charged with federal offenses, it can serve as a model for state and county facilities, where most youth are incarcerated. In banning solitary confinement for youth in federal custody, Obama joined a growing number of government officials, medical and mental health professionals, and juvenile justice experts who want to end this counterproductive practice. This group includes many individuals who run juvenile facilities.

There must be a coordinated national movement to end solitary confinement for youth in all juvenile facilities. This should involve the legislative, executive and judicial branches of government, and include voices from all parts of the juvenile justice system, from youth and families directly affected by solitary confinement to agency administrators and facility superintendents who must ensure the safety of youth and staff in their institutions. 

A number of national organizations, including the Center for Children’s Law and Policy, the Center for Juvenile Justice Reform at Georgetown University, the Council of Juvenile Correctional Administrators, and the Justice Policy Institute are launching a national campaign, Stop Solitary for Kids, to end solitary for youth.  The campaign will include strategies to provide coordinated support and resources at the federal, state, and local levels to end the solitary confinement of all youth in custody.

It is also important to note that the American Correctional Association also supports the effort to Stop Solitary for Kids. 

We know that in programs where staff establish a relationship with youth, there are far fewer incidents that require disciplinary measures, such as isolation/solitary. In fact, the use of isolation/solitary undermines rehabilitation by denying youths the educational and treatment programs they require to become law abiding and productive citizens.

Most have found that reducing solitary actually decreases acts of violence in juvenile facilities, making youth and staff safer. Ohio and Massachusetts already do not use solitary confinement for discipline in juvenile facilities.  Mississippi does not use it in its facility for youth prosecuted as adults.  Indiana and Oregon have decreased the use of solitary substantially.

Ned Loughran is the Executive Director of the Council of Juvenile Correctional Administrators and former Commissioner of the Massachusetts Department of Youth Services. He welcomes comments from readers.

 

 

Read full entry »

User Comments (0 )

Prosecutors and Race Bias: Why the DOJ Needs to Act

By Marbre Stahly-Butts and Jeffery Robinson

Prosecutors are supposed to hold people accountable when they hurt other people—that’s part of the job. Yet for years prosecutors across the country have opted out of that responsibility when the perpetrator is a police officer.

 Last year, police killed African Americans at a rate more than twice that of white people, according to the Guardian’s database, and African-American men between the ages of 15 and 34 at a rate five times that of white men in that age range. Our morgues were busy due to killings by police in 2015 -- 1,145 deaths among all races, according to the database.But our district attorneys’ offices were not nearly as busy: in 2015, they initiated just 18 prosecutions of police officers who killed civilians.

If local prosecutors won’t act, the federal government should find out why.

Chicago prosecutor Anita Alvarez waited almost a year before indicting the officer who killed Laquan McDonald, a young African-American man. She faced relentless pressure from organizers and communities in Chicago and brought charges only after a judge ordered the city to release the videotape of the killing that directly contradicted the officers’ versions of the shooting.

And the Chicago officer who killed Reika Boyd was acquitted after a botched prosecution by one of Alvarez’s attorneys who kept his job.

In Cleveland, Tamir Rice, a 12-year-old African-American youth, was shot and killed within two seconds of officers arriving on the scene. Prosecutor Tim McGinty oversaw a grand jury “investigation” that involved leaked “expert” reports justifying the shooting, presentation of evidence that Tamir kept a toy gun longer than he should have, and accusations that Tamir’s family protested the killing of their son because of money.

In the Bronx, New York City paid $3.9 million to the family of Ramarley Graham who was shot and killed by police while in his own home, but criminal charges against the officer were dismissed, and the officer is still on the job — with a raise.

The behavior of these prosecutors led many to believe that race bias played a role in their actions. Alvarez and McGinty were voted out of office, reflecting the community reaction against two elected prosecutors; but this does not resolve issues of potential race bias by prosecutors remaining in those offices or in offices of other local prosecutors around the country.

Judges, prosecutors, and former presidential advisors have acknowledged that race bias, deliberate or unintentional, has played a role in the incarceration of African Americans in unfairly disproportionate numbers. We know prosecutors can be drivers of racialized mass incarceration because they hold so much power in our current system of plea bargain justice.

The reality that African Americans are incarcerated at nearly six times the rate of white people is at least in part a result of the discretionary decisions of prosecutors.

Under the circumstances, shouldn’t we ask if any kind of race bias led local prosecutors to defend police who kill instead of objectively investigating them? Given the other evidence of race bias in the system, doesn’t the miniscule number of prosecutions in killings that disproportionately affect the African-American community suggests a disturbing answer?

Until now, prosecutors have been exempt from virtually any scrutiny. It is time for that exemption to expire, and the Department of Justice has the authority and responsibility to act. The Safe Streets Act of 1968 and the Violent Crime Control Act of 1994 authorize the attorney general to conduct investigations and file civil litigation to eliminate “a pattern or practice of discrimination on the ground of race, color, religion, national origin, or sex, in connection with any law enforcement agency that receives financial assistance from DOJ’s Office of Justice Programs and the Office of Community Oriented Policing Services.”

Law enforcement is defined as “all activities pertaining to crime prevention or reduction and enforcement of the criminal law.” Prosecutors, like police departments, receive millions of dollars in federal funding through Justice Assistance Grants and should be subject to the same scrutiny as the police.

Looking for the influence of race bias is not an accusation of racism. The Manhattan District Attorney’s Office investigated the possible role of race bias in its own work without any intervention by the Justice Department. District Attorney Cyrus Vance was not accusing his staff of racism. He was willing to look for any impact race bias might have on carrying out justice. The Vera Institute examined the office’s work, from charging decisions to plea offers, and discovered evidence of racial bias that could not be explained by other factors.

Does this show that Manhattan DAs are racist? No, it points to an equally serious problem — racial bias exists systemically in ways prosecutors have not or will not recognize.

The impact of unconscious bias can be reduced and even eliminated by training to recognize it and using best practices to eliminate its influence. But if you don’t look for it, you won’t find it. And we need to remember that for those injured, killed, or incarcerated—and for their families, who are forced to bear the financial and emotional costs of incarceration—the difference between conscious and unconscious bias means nothing.

The killing of Michael Brown brought no indictment, but investigating the Ferguson police revealed some of the ugliest racist attitudes in America, leading to a Department of Justice lawsuit against the department.

How did it get that bad in Ferguson? For one thing, police knew the DAs wouldn’t hold them accountable for their behavior. We need prosecutors to do their jobs when police officers are the defendants. If they are reluctant to do it, a visit from the feds may help change their thinking.

The Department of Justice must step in and use its authority and power to ensure justice.

Marbre Stahly-Butts is Deputy Director of Racial Justice at the Center for Popular Democracy and works on issues of police accountability and criminal justice reform with groups across the country. Jeffery Robinson is a deputy legal director of the American Civil Liberties Union.

They welcome comments from readers.

Read full entry »

User Comments (0 )

How An Innocent Man Died of Cancer On Death Row

By Brian Stull

Max Soffar was my client for the last 10 years, but also my soft-spoken, Texas-drawling, loyal friend who asked after my family and life as often as he inquired about the status of his appeals.

He was a death-row prisoner wrongly locked up 35 years ago as a troubled, brain-damaged, drug-addicted mental patient, and self-professed “knucklehead.” He falsely confessed to one of Houston’s most notorious multiple murders under the influence of a police officer he thought was his friend.

He then spent decades on death row despite strong evidence that a man named Paul Reid was guilty of the murders.

Max died an innocent 60-year-old man, still fighting his appeals and protesting his innocence, finally reduced to gaunt skin and bones after a three-year battle with liver cancer. Max was convicted, imprisoned, and sentenced to die even though not a shred of reliable evidence tied him to the crime: No DNA, no fingerprints, no blood, no hair, not a single witness.

For decades, so-called law and order politicians have pushed for limits on prisoners' rights to appeal their convictions. They raise the specter of prisoners who are guilty of their crimes getting off on technicalities and running wild through the streets.

This concern about technicalities offends me. Technicalities kept my old friend Max in prison for crimes he did not commit, year after year, decade after decade, from youth to old age.

These technicalities pose the true risk to justice.

Max showed the U.S. Court of Appeals for the Fifth Circuit in 2002 that his 1980 interrogation violated the Constitution because the police continued interrogating him even after he had refused to continue talking. But the state of Texas persuaded the court to reconsider and to rule that, technically, he had not invoked his right to silence.€

When Max showed evidence that he asked for a lawyer, which also should have required the police to stop the interrogation, the court ruled that, technically, he had not invoked his right to counsel. The court ignored altogether the facts that Max was mentally ill, drug addicted, and that detectives did not stop their interrogation until three days later, when they finally obtained the confession they wanted.

In 2004, 23 years after his conviction, the courts ruled in Max’s favor, reversing his death sentence and ordering a new trial. Max and his lawyers had shown that his 1981 trial was unconstitutional because he had been represented by an ineffective court-appointed attorney named Joe Cannon, known for sleeping in court and botched legal work.

But a retrial for Max more than 20 years after his conviction would involve evidence that had become stale over the many years of stonewalling and delays by the prosecutors. Max filed a motion to dismiss the charges in lieu of retrial. The courts refused, ruling, inexplicably, that the delays were caused by Max’s own appeals.

They failed, however, to acknowledge that the prosecutors had argued against his meritorious claim for decades while the courts sat on the claims without action.

In 2006, before the retrial, Max and his lawyers argued that his innocence precluded the state from seeking the death penalty. In capital cases, people only qualify as jurors if they can agree to impose a death sentence. Studies show that such jurors are much more likely than others to believe the state’s allegations about criminal defendants and to convict them.

Having a “death-prone” jury in Max’s retrial meant having a jury predisposed against finding him innocent. But the courts ruled that, technically, such juries do not violate the Constitution and so the trial could go forward as a capital trial.   

At the new trial, Max showed that the overwhelming majority of the details in his confession conflicted with the facts known by the police and verified by the records of the police investigation and the statements of the sole surviving witness, Greg Garner. But the prosecutor, Lynn McClellan, argued to the jury that Max disclosed things in his confession that only the real killer could have known. Unknown to the jury, this was not the truth.

In fact, the only accurate details in Max confession were those details broadcast by the media before his interrogation. Max was sentenced to death, again.

Max appealed. At the Texas Court of Appeals, we showed that his trial judge had erred by preventing Max and his lawyers from introducing the media clips to explain his confession. But the Texas Court of Appeals ruled in 2009 that the “exclusion of the media evidence, if error, was harmless beyond a reasonable doubt.”€

When Max made a persuasive showing to the same Texas court in 2012, three concurring judges of the court issued an opinion stating that “applicant’s confession does not inspire confidence in its accuracy; it appears to be a tale told by one who heard about the robbery-murders rather than by one who committed them.” But the court upheld the conviction, with even the concurring judges shrugging their shoulders and stating that, despite their grave doubts about the confession, they were not, technically, the “chosen factfinder[s].”€

When Max received his diagnosis of terminal liver cancer in the fall of 2014, we knew that his remaining pending appeals would be winding slowly through the courts—too slowly for the time Max had left. We asked Texas Gov. Rick Perry for clemency, based on Max’s innocence, so he could die at home with his loving wife Anita. We argued that his terminal cancer would take his life before his appeals would exonerate him.

However, the parole board blocked our petition without ruling on its merits because, technically, Max had no execution date, as execution dates are only given once appeals are complete. Max’s death sentence by cancer was beside this technical point.

Here’s the final insult to my friend.

Max’s estate now faces potential dismissal of his appeal before the United States Court of Appeals for the Fifth Circuit. This is a big deal. In the first place, under stringent rules of habeas corpus, the federal court of appeals refuse even to consider such appeals, hearing only such cases that are likely to be meritorious.

But a month ago, the conservative Fifth Circuit ordered that the merits would be heard, identifying three troubling issues it wanted to address, including the legal issues surrounding Max’s false confession, the preclusion of the evidence that the media had published his statement’s only correct details, and the strong evidence that Paul Reid was the real killer. In its urgent order scheduling oral argument nearly immediately due to Max’s cancer, the court gave strong indication it was poised to grant Max relief.

Max died on April 24. With oral argument in the Fifth Circuit only two days away, the state moved less than 24 hours after Max’s death to dismiss his petition as “moot” because he is now dead. This after decades of fighting his appeals and causing the delays that ate up Max’s life on death row.

An innocent Texas death-row prisoner can’t win for trying. In this Kafka-esque system, courts and prosecutors elevate technicalities over justice and fairness, repeatedly slamming doors to meaningful review and dropping the case through the systems many cracks. The adjudication of Max Soffar’s claims of innocence is so far from justice that we should all be ashamed.

My friend asked me to keep fighting for justice, for him, and for the others ensnared in this broken and unreliable system.

A rational first step would be to abolish the death penalty.

It distorts the process, destroys the promise of a jury of peers (because only those willing to hand down a death sentence can serve), diverts resources badly needed to separate the guilty from the innocent, and needlessly risks the only thing worse than the nightmare my friend endured for 35 years.

The execution of an innocent person.

Brian Stull is a senior staff attorney with the American Civil Liberties Union’s Capital Punishment Project. He has served as trial and appellate counsel in capital cases in North Carolina and Texas. Before joining the ACLU, Stull worked for five years at the Office of the Appellate Defender (OAD) in New York City. He welcomes comments from readers.

Read full entry »

User Comments (0 )

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.

Read full entry »

User Comments (0 )

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.

Read full entry »

User Comments (0 )

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.

Read full entry »

User Comments (0 )

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.

Read full entry »

User Comments (0 )

1 2   > >

TCR at a Glance

The New Politics of the Drug War

special report May 26, 2016

As presidential candidates focus on the opioid epidemic, grassroots initiatives are transforming the national debate about drugs.

Life After Prison: Opting In or Opting Out

special report May 23, 2016

In Part 4 of our podcast series, Lorenzo Brooks faces the challenges of navigating a now-unfamiliar world he left behind when he went to ...