Category Archives: Criminal Justice

Private Prisons And Perverse Incentives

Every once in a while, my city gives me something to brag about. Most recently, that’s the current administration’s approach to Criminal Justice.

A recent article from Fortune Magazine, of all places, sets it out.

When the city heads to Wall Street Thursday to borrow $610 million to build a jail and criminal justice complex on the site of an old coking factory, it’s betting it can better house criminals and rehabilitate them on its own. That means CoreCivic, which has run a Marion County jail for two decades, will lose the contract when the new one opens.

The decision to sever ties with CoreCivic is part of a shift in policy-making that seeks to address a cycle of recidivism that keeps sending repeat offenders back to jail. It joins other governments nationwide, including California, that are reconsidering a reliance on the private companies that stepped in as the war on drugs and mandatory minimum sentencing laws caused inmate populations to soar, leaving more than half of the states paying businesses to incarcerate their residents.

There is a mountain of data detailing what’s wrong with private prisons. (When my graduate students choose to write their research papers on the subject of for-profit prisons, their conclusions range from highly critical to horrified, and for good reason.) Zach Adamson, Vice-President of the Indianapolis City-County Council is quoted in the article with what may be the best summary of the problem with prisons for profit:

“The idea that there would be profit to be made through the imprisonment of our neighbors is something that’s abhorrent to a number of people—many of our constituents cannot process that,” said Zach Adamson, vice president of the council that oversees the consolidated government of Indianapolis and Marion County. “Criminal justice is not getting better as long as our primary concern is looking to cut corners and save costs.” (emphasis supplied)

In 2016, the city convened a task force to consider ways Indianapolis could cut crime and address jail overcrowding. The task force recommended addressing “underlying causes,” in an effort to reduce both crime and the $440 million dollars Indianapolis spends on criminal justice each year–far and away the city’s biggest expense.

The issues facing Indianapolis are hardly unique: some 40% of people detained in the country’s jails are mentally ill and up to 85 percent suffer from substance abuse (with respect to those who are mentally ill, psychiatrists tell us that substance abuse is an effort at “self-medicating.”)

The complex will consolidate the courthouse, its jails, and rehabilitation operations in one modern site. The city-county council voted in April 2018 not to privatize the new lockup, dealing a blow to CoreCivic, which has managed a facility there since 1997.

“The goal of the jail system shouldn’t be to fill the beds,” said Andy Mallon, corporation counsel for the government. “We’re trying to reduce crime and reduce the number of people who are involved in crime.”

Mallon’s observation is at the heart of what’s wrong with privatizing these elements of the criminal justice system. Private prison companies are in business to fill beds, and to do so as cheaply as possible, not to rehabilitate offenders. Their lobbyists work to criminalize additional behaviors and increase prison terms for offenses already on the books–measures that feed their bottom lines.

Their goal isn’t public safety, it’s profit, and the big private prison companies donate generously to politicians in order to protect those profits.

During the Obama Administration, the Department of Justice and several state governments  responded to the research, recognized the existence of the perverse incentives, and began  terminating contracts with companies like GEO and CoreCivic. Then, of course, we got Trump, and headlines like these:”Trump’s First Year Has Been the Private Prison Industry’s Best.”  and “Trump’s Immigrant-Detention Plans Benefit Private Prison Operators.”

In Indianapolis, I am happy to say, the city has chosen to bring best practices to bear on its criminal justice problems, to evaluate those it incarcerates in order to determine appropriate interventions– and to stop paying for-profit companies to warehouse offenders.

 

 

Now He’s Pardoning War Criminals

Every morning, Americans wake up to news of additional Trump efforts to roll back rational regulations, to insult long-time allies, or attack and undermine the rule of law.

And then there’s misuse of the Presidential pardon power.

I’m not talking about his documented efforts to suborn perjury by dangling the promise of a pardon to people like Michael Cohen. I’m not even referring to the shameful pardon of racist lawbreaker Sheriff Joe Arpaio. I’m talking about his recent pardon of a soldier convicted of a war crime, and his publicized intent to pardon others who have committed such crimes.

Senior U.S. officials have reported that Trump has been examining high-profile war crimes cases from Iraq and Afghanistan, and that he has had aides preparing paperwork so that he can issue pardons.

Not only would such pardons encourage horrific behaviors, they would put American soldiers at risk.

The possibility that Trump could issue pardons has brought a flood of opposition from current and former high-ranking officers, who say it would encourage misconduct by showing that violations of laws prohibiting attacks on civilians and prisoners of war will be treated with leniency.

“Absent evidence of innocence or injustice, the wholesale pardon of U.S. service members accused of war crimes signals our troops and allies that we don’t take the law of armed conflict seriously,” retired Army Gen. Martin Dempsey, the former chairman of the Joint Chiefs of Staff, said in a tweet Tuesday. He added: “Bad message. Bad precedent. Abdication of moral responsibility. Risk to us.”

Time Magazine ran a column by retired Admiral James Stavridis in which he reminded readers that service members convicted of these crimes had received more than adequate due process:

The circumstances, motivations, outcomes and punishments all differ. But [the cases] share one crucial element: the military members went through, or still face, the military judicial system, which includes a strong presumption of innocence by fellow military members; a very high bar for conviction; a set of judges, prosecutors and defense teams composed of military personnel, most with real combat experience themselves; and a fully engaged appellate system that likewise was composed of military judges. While there may be a very atypical case wherein a Presidential pardon could right an obvious wrong, such a situation is extremely rare — the punishments meted out take fully into account the circumstances.

These individuals have been convicted by their peers of violating both the laws of war and the code of military conduct.

It appears that President Trump is considering pardoning those men, as well as other military members credibly charged with a variety of crimes, including murdering an enemy captive or killing unarmed civilians. (The President is also reportedly considering pardoning a security contractor twice convicted by a federal court.) All of these actions are gross violations of the laws of war and the U.S. code of military conduct. They are extreme ethical and moral failures.

The Admiral also warned of the consequences of issuing such pardons: it would undermine American military standards, be a gift to enemy propagandists, and further undercut our relations with allies (who have strong systems in place to prevent these kinds of actions).

Worst of all, such an action would encourage our enemies to engage in barbaric behavior.

This kind of pardon disrespects every single one of our soldiers, sailors, airmen and Marines who follow the strict standards of the Code of Conduct. They do not abuse captives who have surrendered, use torture to interrogate, cause needless casualties to civilians through collateral damage or desecrate corpses.

In the New York Times, columnist Jamelle Bouie described the conduct for which these men had been convicted.

Last year, a federal jury in Washington convicted Nicholas Slatten, a former security contractor, of first-degree murder for his role in killing one of 14 Iraqi civilians who died in 2007 in a shooting that also injured more than a dozen others. Matthew Golsteyn, an Army Green Beret, was charged late last year with the murder of an unarmed Afghan man during a 2010 deployment. Edward Gallagher, a Navy SEAL who served in Iraq, was reported to authorities by his own men, who witnessed him “stabbing a defenseless teenage captive to death,” “picking off a school-age girl and an old man from a sniper’s roost” and “indiscriminately spraying neighborhoods with rockets and machine-gun fire.”

Why would any President–even Trump–want to pardon such behavior?

For Trump, this toughness — this willingness to act cruelly and brutally — is a virtue. That’s especially true when the targets are racial others.

We saw this 30 years ago when he called for the return of the death penalty in the wake of accusations against the Central Park Five. We saw it during his presidential campaign, when he called for American soldiers to commit war crimes in the fight against the Islamic State. “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families,” Trump infamously said during a 2015 interview on “Fox & Friends.”

This is the moral code of a caveman. Or a Nazi.

 

Crime And Punishment II

As if we needed added confirmation of the concerns raised in yesterday’s post, a very thoughtful opinion piece from the New York Times set out the reasons why “going back to normal” (a hope shared by Representative Cummings in the Michael Cohen hearing) isn’t what we should want.

At the end of his eloquent remarks concluding a hearing where the president was accused of multiple crimes by his former attorney, Representative Elijah Cummings, the Oversight Committee chairman, pined for a return to a pre-Trump America. “We have got to get back to normal,” he said.

But Normal America produced Donald Trump, fueled his cult of personality and created the conditions for him to rise to the height of political power. If anything, Michael Cohen’s testimony was a devastating indictment of decisions that Normal America made over the past few decades that produced President Trump in 2016.

The essay challenges readers to consider the implications of facts that are currently known:  Paul Manafort, a man guilty of tax evasion and bank fraud, was tapped to lead a presidential campaign.  Michael Cohen, who committed tax fraud and bank fraud became deputy finance chairman of the Republican National Committee, a post he held until June 2018.

The author attributes that situation–the elevation of out-and-out crooks to positions of authority and prestige–to the stunning decline in prosecutions of white-collar crimes.

Then there’s the president himself, Exhibit A of what happens when a country spends decades treating crimes by the poor as felonies and crimes by the powerful as misdemeanors.

At the start of Mr. Trump’s career, he and his father were charged with discriminating against African-Americans in their apartment rentals. Father and son settled with the government and admitted no wrongdoing.

Later in life, Mr. Trump’s casino was charged with money launderingand got off with a fine. Just after Mr. Trump was elected, his cardboard castle of a university that bore his name settled a class-action lawsuit brought by from former students.

It took a shoe-leather investigation by The Washington Post to prompt authorities to assess that the Trump Foundation, founded in 1987, was being used as the family A.T.M. The New York State attorney general charged the foundation with “improper and extensive political activity, repeated and willful self-dealing transactions, and failure to follow basic fiduciary obligations or to implement even elementary corporate formalities required by law.” Imagine if the foundation had been scrutinized years before Mr. Trump ran for president.

According to the author, more than 60 percent of federal criminal prosecutions last year were in cases related to immigration. But while the feds were pursuing crimes committed by undocumented immigrants, there were fewer resources available to investigate and prosecute other types of crimes, and the number of such prosecutions is accordingly, as he writes, “way down.”

When the Internal Revenue Service’s Criminal Investigation Division gets stuck with the same number of special agents it had 50 years ago, lots of tax cheating is going to go undetected and unpunished.

No equal justice indeed. As the author says, “Normal America” gave white-collar criminals parking tickets, and sent SWAT teams after drug dealers. If that was America’s “normal,” we  certainly shouldn’t return to it. It was that “normal” that allowed a racist con man and cheat  (with absolutely no compensating qualities) to aspire to–and win–the Presidency.

We have to do better.

Crime And Punishment

I read the more credible left and right-wing Internet sites with a grain (or cup) of salt, knowing that they may begin with factually-accurate information, but that they will spin that information to make their points. Inevitably imperfect aspects of human society are typically treated as examples of pervasively evil intentions: Democrats are “socialists” who want to deprive you of your liberty and property; Republican businesspeople are “right-wing plutocrats” working night and day to worsen inequality.

It would be refreshing to read “this aspect of society isn’t working very well, and we should probably pay attention to it” rather than “this is the tip of the rotten iceberg and we need armed revolution.”

But a recent post originally from Daily Kos struck me as basically accurate.

In sentencing documents, the special counsel’s office referred to Paul Manafort’s crimes as both “bold” and “brazen.” The word they didn’t use was “overlooked,” but that’s also absolutely true. Manafort is heading to federal prison for the rest of his life on a list of felonies a mile long—but if a special prosecutor had not been appointed, he would, at this moment, be getting fitted for a new vest made from some endangered species.

 Manafort and his partner Rick Gates committed multiple felonies over a span of decades. They weren’t sly about it. They weren’t particularly cautious or clever or even competent in their efforts to cover up illegal lobbying, money laundering, and tax fraud. They just never expected to get caught because guys like them never do. The same is true of Roger Stone, who was another of Manafort’s partners at the lobbying firm charmingly known as the “Torturer’s Lobby” for its willingness to help out brutal dictators and even-more-brutal would-be dictators.

As the post went on to note, the appointment of a Special Prosecutor has uncovered criminal behaviors that probably would not have been prosecuted but for that appointment, beginning with Donald Trump. (Trump’s history of money laundering hasn’t exactly been a secret). That includes Michael Cohen and Michael Flynn and Erik Prince, among others.

The real revelation of the investigations into Trump and his foreign connections isn’t even that the man occupying the White House is a crook, and the man who ran the Republican convention three times and acted as an adviser to a half-dozen presidents is a crook, and so is his partner, and so is his partner, and so are they all. The real revelation is that it took a special counsel to see any of these men face serious prosecution no matter what they did, or how often they did it, or how “bold” their crimes might be.

Stripped of the somewhat florid language (and the unstated but implied accusation that all  rich people and their “fixers” fall into the same category), the post makes a valid point: the rule of law is not equally applied.

What Trump knows, and what should be the most sobering discovery to emerge from the entire investigation, is that, barring the extraordinary circumstances of a special counsel or someone with similar authority, men like him will not face justice for crimes. And in fact, they will go on lying, cheating, stealing, with impunity.

If we are honest, we know that the criminal justice system doesn’t treat rich and poor people–or white and black people–equally. David Cole’s eye-opening book, No Equal Justice, was published in 1999, and little has changed since then.

The problem isn’t simply the unfairness of a justice system that applies different standards to different groups. The problem is that–as evidence of the disparity becomes more obvious–respect for law declines. Precipitously.

The most basic premise of the rule of law is that the rules apply to everyone; that “similarly-situated” citizens have the same rights and duties, and are subject to the same legal constraints. And “similarly-situated” in this context does not refer to finances or skin color.

When government winks at privileged persons’ misdeeds while punishing similar–or lesser– behaviors by less fortunate citizens, there is no justice and no rule of law. And that’s a problem that deserves some florid prose.

 

The God Squad In The Courts

Rewire has a feature called “Gavel Drop,” with brief descriptions of recent lawsuits involving religion and the First Amendment, and providing links to longer descriptions of the parties and issues involved. This particular issue highlights the current (sad) state of “faith-based” America.

Allow me to share a few of the featured entries.

The Alliance Defending Freedom is now arguing in federal court to allow homeless shelters to deny services for transgender people. Downtown Soup Kitchen in Anchorage, Alaska, filed the religious freedom lawsuit against Anchorage earlier this year over the city’s nondiscrimination law; a case had been filed against the center after it denied a transgender woman admission to its shelter. The shelter director said that the woman was denied because she appeared drunk, but also that it would never accept a “biological man.”

In the linked article describing the lawsuit, ThinkProgress points out that ADF’s claim for relief  isn’t simply a request to allow this particular discriminatory act; it is a demand that the court overturn the city’s anti-discrimination ordinance in its entirety. It’s part and parcel of the Christian Right’s persistent attacks on any and all LGBTQ protections, in the name of “religious liberty.”

If a homeless transgender woman has to be thrown out into the cold Alaskan street in order to show proper deference to the religious sensibilities of the “Christians” who run the shelter, well, those are the breaks.

Speaking of religious liberty, the Gavel Drop also reported on this lawsuit from Illinois.

Illinois’ Fourth District Appellate Court upheld a lower court’s dismissal of a lawsuit challenging a state law that provides funding to Medicaid and state employee health insurance plans that cover abortion services. Anti-abortion groups, represented by the Thomas More Society, are planning to appeal the case to the Illinois Supreme Court.

I note that, for these “good Christians,” religious liberty goes only one way: their way. Adherents of religions that permit abortion are to be denied the liberty to follow their beliefs.

Nothing more clearly demonstrates the hypocrisy of the “religious freedom” movement as piously promoted by people like Mike Pence and organizations like ADF and the Thomas More Society than this insistence that “liberty” means their right to have government impose their beliefs on everyone else.

The theologies of these “Christian” plaintiffs prohibit abortion (for them and for any of their neighbors); but those theologies evidently do allow flat-out lying in service of their “godly” goals. Their argument against the law included the repeated accusation that the measure promoted taxpayer-funded abortion services.

“Taxpayer-funded abortion” is a myth pedaled by abortion-rights foes that feeds on public ignorance about abortion funding. Two-thirds of the public is unaware the federal Hyde Amendment prohibits paying for abortions with federal Medicaid dollars, according to a Kaiser Family Foundation poll.

Also among the lawsuits listed in the Gavel Drop was yet another effort to have government endorse Christianity by displaying a cross on public property.

The city of Pensacola, Florida, is asking the U.S. Supreme Court to intervene and allow a large memorial cross to remain standing on public land in Bayview Park. Earlier this month, the U.S. 11th Circuit Court of Appeals upheld a lower court judge’s ruling that displaying the cross on publicly owned land violated the Establishment Clause of the U.S. Constitution. The city of Pensacola is represented by The Becket Fund for Religious Liberty.

These public monument cases are brought repeatedly, and just as repeatedly dismissed under a long line of precedents invoking the Establishment Clause. Not only do I fail to see how moving the cross to private property violates anyone’s  “liberty,” I fail to understand why the Christian Right is so dead-set on having the government endorse their brand of religion.

Okay, that’s a lie. I do understand.

They’re theocrats, just like the Taliban. They want government to post their symbols in order to remind the rest of us that this is their country, and the rest of us are just here by virtue of their forbearance.

I don’t know about the rest of you, but I really get tired of these people.