Category Archives: Criminal Justice

Indiana’s Supermajority–Ignoring Citizens Again

Where to start?

The Indiana Lawyer describes the issue: 

Despite opposition from nearly all of the organizations and individuals who testified, a bill that would allow the attorney general to appoint a special prosecutor over certain cases that a local prosecutor declines to prosecute has advanced out of an Indiana Senate committee.

Senate Bill 436, authored by Rep. Mike Young, R-Indianapolis, passed out of the Senate Corrections and Criminal Law Committee on Tuesday with a 6-3 vote. Young, who chairs the committee, did not receive any Democratic support for his bill, and one Republican also voted against the measure.

Calling the legislation a response to “social justice prosecuting,” Young said his bill would allow the Office of the Attorney General to appoint a special prosecutor only if a local elected prosecutor “has announced as a matter of policy that the prosecuting attorney will not enforce all or part of a criminal statute enacted by the General Assembly,” or if “the attorney general has determined that a prosecuting attorney has categorically elected not to enforce all or part of a criminal statute enacted by the General Assembly.”

Mike Young’s sponsorship is the first clue that this is a terrible bill; Young has spent his considerable amount of time in Indiana’s legislature as a committed “culture warrior” and general pain in the you-know-where. The second clue comes from the fact that every single person who testified at the committee hearing opposed the measure.

Organizations ranging from the American Civil Liberties Union of Indiana to the Indiana Prosecuting Attorneys Council (IPAC) were among those testifying against SB 436.

The former director of IPAC shared the organization’s opposition to the bill’s attack on prosecutorial discretion, pointing out that voters regularly respond to prosecutorial decisions they don’t agree with by voting elected prosecutors out of office. (Every four years, voters eject around a third of Indiana’s prosecutors.) A representative of the Public Defenders Council agreed that the bill abrogated voters’ rights.

What prompted this legislative over-reach?

Much of Wednesday’s testimony focused on the recent decision by Marion County Prosecutor Ryan Mears to no longer prosecute cases of simple possession of marijuana. In announcing that decision in September — about a week before he was appointed by county Democrats to succeed former Prosecutor Terry Curry — Mears said the Marion County Prosecutor’s Office should be devoting its resources to the violent crime in Indianapolis.

Young’s bill would deny county prosecutors the discretion to direct limited resources to the most serious threats to public safety. Once again, it would substitute the judgements of state-level lawmakers for those of local officials chosen by the people they serve.

One of the measure’s most egregious insults to local control was language requiring  counties in which the attorney general has overruled the local prosecutor to reimburse the attorney general for the expenses of prosecuting the case. As Doug Masson put it in his blog post on the bill,

The guest that nobody invited and nobody wanted is going to send you a bill for his presence. The AG just sends the bill to the Auditor who is required to pay the bill out of the general fund within 30 days, without appropriation. Because, screw your budget.

Despite the uniform opposition to the bill, it passed out of committee. Here is the vote breakdown:

Yeas:
Sen. Mike Young
Sen. Susan Glick
Sen. Mike Bohacek
Sen. Justin Busch
Sen. Aaron Freeman
Sen. Jack Sandlin

Nays:
Sen. Karen Tallian
Sen. Lonnie Randolph
Sen. Eric Koch

If one of the “yeas” represents you, I’d suggest a call or email letting that person know that he or she should not rely on your vote in the next election.

Who Are The Domestic Terrorists?

Who should we fear? I’ll give you a hint.

The men (they are almost always men) causing death and destruction are rarely Muslims. They are hardly ever immigrants. As a Texas Department of Public Safety report has recently confirmed, by far the largest threat to domestic safety and tranquillity comes from white racists and Incels.

And who–you would be forgiven for asking–are the Incels? Let Juanita Jean tell you.

Incels are white boys who couldn’t get laid at the Chicken Ranch even if they had a chicken under each arm and fifty dollar bill taped to their forehead. But, you always suspected that, didn’t you?

Or– in the less florid language used in the report,

 Based on the prevalence of recently conducted attacks nationwide, White Racially Motivated (WRM) is currently the most violently active domestic terrorism type.

Although not a new movement, Involuntary Celibates (Incels) are an emerging domestic terrorism threat as current adherents demonstrate marked acts or threats of violence in furtherance of their social grievance.

Wikipedia defines Incels, as “involuntary celibates”– members of an online subculture who are unable to find a romantic or sexual partner despite desiring one, a state they describe as inceldom.

A recent article in the New Yorker says that what Incels want is “extremely limited and specific: they want to be able to have sex on demand with young, beautiful women. They believe that this is a natural right.” The article subhead calls this what it is: a belief in male supremacy.

Vox goes further, in an article detailing how a support group for the dateless became one of the internet’s most dangerous subcultures.

Over the past two decades, the incel community, which numbers somewhere in the tens of thousands, has fallen under the sway of a profoundly sexist ideology that they call “the blackpill.” It amounts to a fundamental rejection of women’s sexual emancipation, labeling women shallow, cruel creatures who will choose only the most attractive men if given the choice.

Taken to its logical extreme, the blackpill can lead to violence. The mass media has focused on the risk of more mass killings like Toronto and others before it, and that is indeed a serious concern. But the focus on incels as potential killers risks missing a more subtle threat: that they will commit acts of everyday violence ranging from harassment to violent assault, or simply make the women in their lives miserable.

A column in the Washington Post suggests that the Incel movement is an extreme and worrisome symptom of the struggle men face in a changing society.

Today, the incel subculture has become not just self-reinforcing but self-radicalizing, often with tragic outcomes. At its most horrifying extremes, self-described incels have taken their anger out on the women they believe are refusing them. At least two mass shooters have left behind manifestos identifying themselves as adhering to incel ideology and explaining their actions as taking revenge on the world that hasn’t given them the women they think they deserve.

Meanwhile, in Texas, Governor Abbott is “safeguarding” citizens of the Lone Star State by refusing to accept refugees–who, according to all available research, pose no threat to public safety.

And in the nation’s capital, the Trump administration is caging (brown) children and excluding (and vilifying) Muslims. Worse, they are actively encouraging the racists and white nationalists who, along with the Incels, are responsible for the vast majority of domestic terror attacks.

They’re determined to make America great again– for straight white “Christian” men.

 

Among The Many Things We Need To Rethink..

Political conventions and government structures that have been in place for many years–some since America’s founding–are proving increasingly dysfunctional. I’ve addressed a number of them in this blog: the Electoral College, partisan redistricting, the filibuster and many others are widely recognized to be counterproductive to 21st Century expectations about democratic fairness and effective governance.

We can add a number of other “resistant to change” elements to the list; as one of my sons recently reminded me, thanks to population shifts, the U.S. Senate is wildly unrepresentative. For example, of the  candidates who won election to the 114th Senate, the Democrats received 20 million more votes than the Republicans. For another, by 2040,  predictions are that nine states will be home to half of the country’s population: California, Florida, Georgia, Illinois, New York, North Carolina, Ohio, Pennsylvania and Texas. The populations of those states will be represented by eighteen Senators. The remaining fifty percent will be represented by eighty-two.

Short of revolution, it is unlikely that we are going to be able to change things like the Senate’s disproportionate representation or the Electoral College–at least, not any time soon. But there are other public policies and longtime practices that are amenable to evidence-based change. One example–recently the subject of analysis by the Brennan Center— is the use of cash bail, fees and fines in the criminal justice system

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction. They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

The study examined ten counties in the states of Texas, Florida, and New Mexico, and also looked at statewide data for those three states. The counties were chosen to ensure a variety of geographic, economic, political, and ethnic profiles, as well as in the way they collected and enforced their use of fees and fines.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

States spend a lot of money chasing after fees that will never be paid, mostly because the people against whom they are levied don’t have the money to pay them. The researchers found that one New Mexico county spent at least $1.17 to collect every dollar of revenue it actually realized, losing money through the process.

Funds currently being expended to collect the uncollectible would be better used for efforts that can be shown to actually improve public safety.

While political scientists are trying to figure out how to rescue American democracy from permanent minority rule, we might start addressing issues like this one, which should be more manageable…

 

If This Is True…

When I was much younger, I naively believed that endemic corruption was only a problem in other countries–that America would of course have its share of slimy folks, but their influence would be episodic, not part of the culture.

My experience with Indianapolis’ municipal government was consistent with that conviction.

I began to question whether I could generalize that experience when–as a lawyer in private practice–I represented real estate developers and had occasion to interact with lenders from states like New Jersey, where I was astonished to discover it could take a couple of years and some dubious “arrangements” to get a building permit. (At the time, you could pull such a permit in Indianapolis in a day or two.)

These days, watching the Trump Administration is a Master Class in sleaze. As we learn more about the backgrounds of the people Trump has installed in cabinet and White House positions, it becomes more and more apparent that they aren’t new to corruption and self-dealing (just google “best people” sometime…). Presumably, that’s why Trump feels comfortable with them–they are “his kind of people.”

Then there’s Rudy Guiliani. It appears that Trump’s “you scratch my back and I’ll scratch yours” relationship with his “personal lawyer” goes back some years as well–at least to 1988. According to Daily Kos,

U.S. Attorney Rudy Giuliani had FBI Agent Tony Lombardi end the FBI’s investigation on Trump money laundering.  A few weeks later, Donald Trump raised $2 Million for Giuliani’s mayoral campaign.  Quid Pro Quo?

Now, Daily Kos is not an unbiased news source. It definitely leans Left. But its political preferences tend to dictate what it chooses to report, and how it reacts to actual “facts on the ground.” To the best of my ability to tell, it doesn’t engage in Fox-like distortion/invention.

Here are relevant portions of the rest of the post:

Journalist, and author, Wayne Barrett writes in his 2016 article:

Tony Lombardi, the federal agent closest to then-U.S. Attorney Giuliani, opened a probe of Trump’s role in the suspect sale of two Trump Tower apartments to Robert Hopkins, the mob-connected head of the city’s largest gambling ring.

Barrett explains:

The government subsequently nailed Hopkins’ mortgage broker, Frank LaMagra, on an unrelated charge and he offered to give up Donald, claiming Trump “participated” in the money-laundering — and volunteering to wear a wire on him….

Lombardi, who discussed the case with Giuliani personally (and with me for a 1993 Village Voice piece called “The Case of the Missing Case”), went straight to Donald for two hour-long interviews with him. Within weeks of the interviews, Donald announced he’d raise $2 million in a half hour if Rudy ran for mayor. LaMagra got no deal and was convicted, as was his mob associate, Louis (Louie HaHa) Attanasio, who was later also nailed for seven underworld murders. Hopkins was convicted of running his gambling operation partly out of the Trump Tower apartment, where he was arrested.

Lombardi — who expected a top appointment in a Giuliani mayoralty, conducted several other probes directly tied to Giuliani political opponents, and testified later that “every day I came to work I went to Mr. Giuliani to seek out what duties I needed to perform” — closed the Trump investigation without even giving it a case number. That meant that New Jersey gaming authorities would never know it existed.

I guess the old adage “it isn’t what you know, it’s who you know” was certainly true in New York’s white-collar crime community.

This was 1988. More evidence, as if we needed it, that Guiliani was never entitled to be called “America’s Mayor,” that Trump’s venality is nothing new, and that my naiveté was just that.

 

 

 

Defending The Indefensible

The Independent, among other publications, reports that the United States has voted against a U.N. resolution condemning laws that punish same-sex couplings with death. The lede suggested that America’s vote was yet another example of the Trump Administration’s homophobia.

The US is one of just 13 countries to have voted against a United Nations resolution condemning the death penalty for having gay sex.

Although the vote passed, America joined countries such as China, Iraq and Saudi Arabia in opposing the move.

The Human Rights Council resolution condemned the “imposition of the death penalty as a sanction for specific forms of conduct, such as apostasy, blasphemy, adultery and consensual same-sex relations”.

 It attacked the use of execution against persons with “mental or intellectual disabilities, persons below 18 years of age at the time of the commission of the crime, and pregnant women.”

Although racism, homophobia, and misogyny are central to this administration, and are core elements of Trump’s appeal to his base, attributing this vote to those bigotries is misplaced.

Not that the absence of those motives is exculpatory. The real reason for the “no” vote was something equally indefensible: support for America’s continued use of the death penalty.

Heather Nauert, State Department spokesperson, told The Independent: “The headlines, reporting and press releases on this issue are misleading. As our representative to the Human Rights Council in Geneva said on Friday, the United States is disappointed to have to vote against this resolution. We had hoped for a balanced and inclusive resolution that would better reflect the positions of states that continue to apply the death penalty lawfully, as the United States does.

“The United States voted against this resolution because of broader concerns with the resolution’s approach in condemning the death penalty in all circumstances and calling for its abolition.

I believe her–but to use language appropriate to criminal justice, that explanation doesn’t exonerate us. It just confirms our position as an outlier among civilized countries.

Forget the moral arguments, compelling as many of us find them.

Decades of scholarship have confirmed that capital punishment is not a deterrent to violent crime.  When I last researched the issue, in 2010, I found that states with the death penalty reported murder rates higher than the rates in states without it. Police agree. In multiple polls, police chiefs rank the death penalty last among ways to reduce violent crime; they also consider it the least efficient use of taxpayer money, and complain that it diverts money from more effective crime control measures.

Then there are the fiscal issues.

In 2010, Indiana’s Legislative Services analyzed capital punishment costs in Indiana, and determined that the average cost of a capital trial and direct appeal was over ten times the cost of a life-without-parole case.  In California, taxpayers pay 114,000,000 more each year than it would cost to keep those same offenders imprisoned for life. In Kansas, capital cases are 70% more expensive than non-capital cases, even including the costs of lifelong incarceration. In Texas, a death penalty case costs three times what it would cost to imprison someone in a single cell at the highest security level for 40 years.

Advocates of the death penalty often complain that the higher costs are a result of “interminable appeals,” but that isn’t actually true. Appeals do add costs, but a capital trial is very expensive. Cells on death row and extra staff also cost more.

Of course, we could eliminate appeals and execute people immediately upon conviction. That would save money. Unfortunately, that “remedy” raises another pesky problem with capital punishment—the fact that America’s courts convict innocent people, and do so a lot more frequently than we like to admit.  Between 1973 and my 2010 research, over 130 people had been released from death row because they were found to be innocent. These were not folks freed on a “technicality,” they were people who had been wrongfully convicted.

It isn’t just death penalty cases that result in wrongful verdicts, of course; since the establishment of the Innocence Project, the substantial number of exonerations in all categories has testified to the persistent flaws in America’s criminal justice system.

Making “crimes” like blasphemy, adultery or gay sex punishable by death is worse than medieval. But so is continued imposition of the death penalty.