Category Archives: Criminal Justice

Comey, Continued….

Yesterday, while editing an post that I intended to send out this morning. I inadvertently hit “publish” rather than “save,” so subscribers received an extra transmittal yesterday.

Sorry about that! But let’s continue that discussion….

I don’t know what the effect of Comey’s actions will be on the election; we still have 8 days, and given the magnitude of the criticism he has received, perhaps he will clarify or otherwise clean up his mess prior to election day. There is speculation that his action will generate more enthusiasm and higher turnout among Trump voters, but it is also possible that anger at what will seem to many Democrats a “dirty trick” will motivate Clinton voters.

My own concern is the potential effect on the down-ticket races. Who knows? We’re in uncharted waters here.

That said, let’s revisit the ethics of Comey’s action.

letter in yesterday’s New York Times addressing that issue deserves broad readership. It was from Richard W. Painter, currently a professor at the University of Minnesota Law School, who formerly served as the chief White House ethics lawyer from 2005 to 2007, during George W. Bush’s administration.

Mr. Painter has filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations.

The opening paragraphs of his letter explain the reasons for the rules that are in place–the rules Comey disregarded.

The F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect.

Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.

It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.

But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

The letter deserves to be read in its entirety, but here is Painter’s conclusion.

Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate for public office that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position. Serious questions also arise under lawyers’ professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.

This is no trivial matter. We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.

The Price of Justice

The fact that politicians seem to get away with incredibly slanderous and libelous comments has been a particular annoyance during this election campaign. Granted, it’s hard to match the invective of Donald Trump, but if we’re honest, we have to admit that he has simply normalized and amplified the growing nastiness of too much of American politics and culture.

Seen any Senate ads lately?

Of course, candidates know what they are getting into, and I suppose they can slug it out (although it does make you wonder how many nice, qualified people who would do a good job simply decline to get down and dirty), but other objects of vitriol and unsubstantiated accusations are rarely in a position to fight back.

Think about the women (I believe the number is currently 12) who summoned their courage and shared their “Trump experiences” following disclosure of the appalling “pussy tape.” They probably anticipated his rage and bluster and denial, but those reactions have been accompanied by threats of lawsuits. Trump is clearly someone who issues empty and even ludicrous threats (see: letter to the New York Times), but he has also been involved in literally thousands of actual lawsuits, and not always as a defendant. In fact, as Ed Brayton reports, 

The New York Times reports that the American Bar Association prepared a report calling Donald Trump a libel bully for his decades-long use of defamation suits to stifle criticism of him, but they chickened out on releasing it because — drumroll, please — he might sue them.

The New York Times can take care of itself, but if the threat of litigation can chill and intimidate the ABA, think of the effect on even the most blameless and resolute accuser. If you lack the financial wherewithal to mount an adequate defense to a lawsuit, no matter how unfounded, the person pursuing that lawsuit starts out with a grossly unfair advantage. Even a loss is a win, when the real goal is to inflict damage.

This problem goes well beyond the antics of the spoiled brat running for President, and it isn’t simply relevant to libel cases. Ask any lawyer who has defended  or sued on behalf of a “little guy” against a large corporation represented by a major law firm. For that matter, ask the twenty-year-old stuck in the Marion County Jail awaiting trial on a relatively minor charge, who doesn’t have money to post bail and is represented by an overworked public defender because he can’t afford private counsel.

In far too many situations–not all, but too many–justice is something only the affluent can hope for.

Americans talk a lot about the obvious problems with our justice system: (1) inexcusable delays in the federal courts because there aren’t enough judges (thanks to Mitch McConnell and the GOP lawmakers who simply refuse to fill judicial vacancies so long as Obama is nominating the candidates for those positions), (2) unarmed people getting killed because police departments’ training programs–especially in smaller communities– are spotty at best and nonexistent at worst, (3) hundreds of thousands of people–mostly black– suffering mass incarceration and lifelong stigma thanks to a Drug War that we now know had little to do with controlling drugs and lots to do with continuing Jim Crow practices (I urge everyone reading this to watch Netflix’ documentary, “13th.” It gives chapter and verse.)

There’s much more.

The good news is that there finally seems to be a bipartisan recognition of at least some of these problems and even some evidence of a willingness to address them.

Bottom line: your chances of achieving justice–whether that’s redress of a wrong done to you, or the fair and timely resolution of a charge against you–shouldn’t depend upon  who is in office or what’s in your wallet.

The American justice system needs to be fixed, sooner rather than later.

 

 

 

Unequal Justice

A last word on criminal justice disparities.

I still remember how astonished I was when, some twenty years ago, at a meeting of a small group of executives and government officials of which I was then a part, someone asked “how many of you have ever been stopped for speeding?” Every hand went up. The follow-up question was: “How many of you then had your vehicle searched?” Every black hand went up; no white one did. These were well-educated, well-dressed, well-spoken upper-middle class citizens.

Discriminatory laws are easier to change than the historic social structures and ingrained attitudes that have privileged white citizens and disadvantaged black ones for over two hundred years.

Social change tends to be slow and difficult, and racial disadvantage isn’t just economic. Even when the laws of the land are facially neutral, they are not always neutrally applied. If you are black, and especially if you are poor and black, the justice system you encounter is markedly different—and considerably less just—than the system that governs your Caucasian fellow-citizens.

In 1999, David Cole wrote what has come to be regarded as a seminal work on the issue of equality in the American justice system, No Equal Justice: Race and Class in the Criminal Justice System. The book documented pervasive race- and class-based double standards in criminal justice.

Cole’s unsparing look at the American justice system examined everything from police behavior and jury selection to sentencing; he argued that our system not only fails to live up to the promise of equality, but actually requires double standards to operate. Cole argued that it is the disparities in the system that allow the privileged “to enjoy constitutional protections from police power without paying the costs associated with extending those protections across the board to minorities and the poor.”

In its review of the book, the New York Times said “No Equal Justice makes a strong case that we have tolerated a law enforcement strategy that depends on the exploitation of race and class divisions.”

Although this unequal application of the law falls most heavily on poorer African-Americans, more affluent members of the community are hardly exempt. (There was something of a media firestorm when prominent Harvard scholar Henry Louis Gates was arrested for “breaking in” to his own home after a trip to China; police initially refused to believe he lived there.)

White America has finally begun to confront the reality of our unequal application of the laws. Thanks to technology and the proliferation of smartphone cameras and other digital recording devices, social media is filled with visual evidence of police conduct that challenges our most cherished beliefs about the maintenance of law and order. Recent books, like Michelle Alexander’s The New Jim Crow, an eye-opening examination of the drug war, have added to the evidence of dysfunction.

Even Congress—in a rare bipartisan effort—has acknowledged the inequities and is attempting to reform the system.

If we are to create a truly equal society—defined as a society that gives its citizens a level playing field and genuinely equal protection of the laws—we must look beyond economic security, important as that is. We also need to ensure that our government institutions are not treating similarly-situated citizens differently based upon the color of their skin rather than upon their behavior.

 

 

 

 

 

Good Cop, Bad Cop

Yesterday’s post about the Department of Justice’s investigation of the Baltimore police department contained several suggestions about implementing change. A recent series of articles in the Washington Post pointed to a reform I omitted.

The Justice Department’s investigation of Baltimore police this month rebuked the agency for an entrenched culture of discriminatory policing. Deep within their findings, Justice investigators singled out a core failure: Baltimore’s system for identifying troubled officers was broken and existed in name only.

In Baltimore, Justice found that critical disciplinary records were excluded from its early intervention system, that police supervisors often intervened only after an officer’s behavior became egregious and that when they did, the steps they took were inadequate.

According to the Post, many police departments have inadequate “early warning” systems, and many have none at all. As a result, “bad apples” are protected, rather than identified, until they do something so egregious that it cannot be covered up.

An early-warning system, of course, is only as good as the data it includes. Some systems, according to the Post, exclude the sort of information one would expect–complaints filed, incidents of excessive force–instead recording things like grooming violations (growing a beard in violation of the rules) or absences. And as one officer noted, recording even relevant data doesn’t do any good if no one is reviewing it and acting on it.

The real problem is a very human one: the deeply-embedded tribalism that causes us to see the world as “us versus them.” The culture of a police department is very similar to that of a military group. Such “bonding” can be an important asset when danger approaches, but it can lead to a counterproductive protectiveness when one of “ours” is accused of improper behavior. When the accusation comes from someone who doesn’t look like “us”–someone who is culturally or socio-economically or racially different–that tribal instinct can overcome good judgment.

As strong as that impulse is, it behooves us to recognize that there are a lot of good guys in blue who play by the rules and require others to do the same.

Back in my City Hall days, I remember a conversation with the then-Chief of Police, about a lawsuit that had just been filed against a member of his force. Far from being defensive, he immediately agreed to investigate the allegations, saying “When we give someone a lethal weapon and the authority to use it, we have an obligation to make sure he is well-trained, emotionally healthy, and wearing a badge for the right reasons.”

Says it all.

Breach of (Social) Contract

Thanks to ubiquitous smart-phone cameras, social media and Black Lives Matter, the general public can no longer ignore accusations that officers in a number of police departments routinely use excessive force and engage in unconstitutional behaviors.  Investigations by the U.S. Justice Department—most recently in Baltimore— confirm persistent, systemic practices that violate the rights of the citizens we expect police to serve and protect.

For a year following the death of Freddy Gray, the Justice Department monitored the Baltimore police department. The results of that investigation were unambiguous: unconstitutional practices included disproportionate rates of stops, searches and arrests of African-Americans, and excessive use of force against juveniles and people with mental health disabilities. The report attributed these practices to “systemic deficiencies” in training, policies, and accountability structures that “fail to equip officers with the tools they need to police effectively.”

A DOJ investigation of police in Ferguson, Missouri, reached a similar conclusion, finding a “pattern and practice” of discrimination against African-Americans that targeted them disproportionately for traffic stops, use of force, and jail sentences.

Baltimore and Ferguson are hardly unique.

As a practical matter, widespread distrust makes policing infinitely more difficult. Good policing depends upon access to reliable information and co-operation with community leaders; avenues of communication dry up when police are seen as enemies rather than protectors.

Far more troubling than the practical consequences of unprofessional behavior, however, is the damage done to America’s social fabric by what can only be seen as a breach of our most fundamental social contract.

The Enlightenment philosophers who influenced America’s founders proposed a trade of sorts; we call that trade the “social contract.” Citizens would give government the exclusive right to exercise coercive force; in return, government would use that force to protect individual rights—to provide for a society of “ordered liberty,” within which the strong could not prey with impunity on the weak.

We Americans argue constantly about the proper role of government, but there is no serious debate about the state’s obligation to provide for the public safety, or about the right of all citizens to expect equal justice before the law.

When government fails to keep its part of that essential bargain, when it breaches the social contract, it damages the bonds of citizenship and undermines the rule of law.

An old lawyer once told me that there is only one legal question: what should we do? How can our dysfunctional police departments go about changing entrenched, perverse cultures? A few suggestions, drawn from the research literature:

  • Training is key—and currently very uneven. A number of police departments across the country have instituted effective training programs that help individual officers understand implicit bias, calibrate their responses to the magnitude of the threats encountered, and learn techniques that calm, rather than exacerbate, confrontations. Those programs need to be replicated everywhere, but especially in troubled departments.
  • Policies governing police activities need to be clear, effectively communicated to the rank and file, and fairly and strictly enforced. Those policies should also be vetted by lawyers familiar with the Constitution and especially the jurisprudence of the First and Fourth Amendments.
  • Collection of accurate, relevant data is critical. Data is the means by which we measure progress, the standard against which we determine the appropriateness of behavior. It allows self-evaluation, and its public availability also allows other stakeholders to hold police accountable. That data should allow the department to identify problematic officers and intervene before they cross a serious line.
  • Every police department should have a transparent complaint process accessible to citizens, and complaints against police officers should not be evaluated solely by their peers. (In Baltimore, this was evidently a source of considerable—and understandable—distrust.) Complaints should be reviewed by disinterested parties, and policies prohibiting retaliation for filing a complaint should be strictly enforced.

In the long term, departments should focus more attention on the way they recruit and select new police officers. The recruiting process should include psychological examinations to weed out men and women who are likely to abuse authority, or who are otherwise unsuited to the stresses of the profession. And it should go without saying—so I’ll say it—departments should aim for recruits who are representative of the populations they will serve. That sounds easier than it is, but the results are worth the effort.

If Americans still believe in e pluribus unum—if we still want to unite, rather than divide, our many communities—fixing our policing problem is an essential first step.