Law Enforcement, Race and the Gun Culture – Part VII

This is the eighth post in this series, if you count the Discussion post. I recommend that you read or re-read the earlier posts.

Part I is here, Part II is here, Part III is here, the Discussion is here, Part IV is here, Part V is here and Part VI is here.

In the third part of this series I wrote:

I will come back to this in another context, but for now allow me to express my disappointment that our President, in his sixth State of the Union address did not speak about this subject. It is one of the few areas where he might be able to find common ground with Republicans.

I urge the reader to return to Part III and read the relevant portion.

I cannot resist noting that in raising this issue, I did so well before the New York Times picked it up. But since they finally did, allow me to refer my readers to the Times article entitled “Unlikely Cause Unites the Left and the Right: Justice Reform” and their editorial entitled “A Judge’s Idea for Grand Jury Reform.”

Even the American Legislative Exchange Council (ALEC) which has been the frequent target of liberal ire has joined in calling for reform.

I quote from their website: 

The United States currently incarcerates 1 in nearly 100 American adults. America’s incarceration addiction grew during the late 1980s and early 1990s as state and local governments passed “tough-on-crime” legislation. For example, California’s “three strikes” law called for mandatory sentencing of repeat offenders, and New York adopted the “Broken Windows” strategy that called for the arrest and prosecution of all crimes large and small.

I do need to interject at this point that the “Broken Windows” strategy, which is a cornerstone of the NYC policing strategy of Police Commissioner William Bratton, is one that I support, even though that was a factor in the untimely death of Eric Garner, but a minor violation should not bring about an arrest. A citation, like a traffic ticket, is the proper approach, and certainly, even in the absence of proper identification, the violence by the police can never be justified, particularly in dealing with what should be no more than a misdemeanor.

ALEC sets forth as its solution:

Research and practice over the past two decades by stakeholders across various jurisdictions shows that there are better ways to protect our communities than mass incarceration. States still need to be tough on crime, but in ways that emphasize personal responsibility, promote rehabilitation and treatment, and allow for the provision of victim restitution where applicable. Community supervision programs and strategies that serve as alternatives to incarceration can effectively hold offenders accountable while providing them with an opportunity to get back on their feet. These policies are proven to reduce the rate at which offenders return behind bars, in turn cutting the crime rate, protecting our communities, and achieving the best public safety return per taxpayer dollar.

ALEC members have approved model policies that help maintain public safety and reduce criminal justice spending:

▪                Recidivism Reduction Act

▪                Swift and Certain Sanctions Act

▪                Community Corrections Performance Incentive Act

▪                Community Corrections Performance Measurement Act

▪                Earned Compliance Credit Act

▪                Justice Safety Valve

We tend to assume that overcrowding and abuse of inmates in our prisons is likely to be most prevalent in jurisdictions that are illiberal. But, regretfully that is not the case.

The Bloomberg Administration managed to get a consistently favorable press. But now that it has been replaced, its atrocities are coming to light. The New York Times reports that at Riker’s Island under the Bloomberg Administration:

...brutality spiked … An influx of inmates with mental illnesses, a breakdown in discipline and a lack of interest by top officials in the Bloomberg administration all culminated in the crisis facing Rikers today. The rise in brutality by guards has been particularly stark. During Mr. Bloomberg’s last term in office, use of force by officers against inmates jumped by 90 percent.

ALEC reports that:

California’s prison population is one of the largest in the country.

leading to:

...a three-judge court rul(ing) that California must reduce its prison population by approximately 40,000 in two years

and at a cost of $9.3 billion and a cost per inmate: of $45,006

According to the Huffington Post: 

Since 1980, higher education spending has decreased by 13 percent in inflation adjusted dollars, whereas spending on California's prisons and associated correctional programs has skyrocketed by 436 percent. The state now shells out more money from its general fund for the prison system than the higher education system... 

Fifty-five percent of the growth of corrections spending is the result of the state simply putting more people in jail. Over the past three decades, the number of inmates in California facilities has increased eight times faster than the size of the overall population. 

The report notes that, while the average salaries for employees of the state's world-renowned higher education system have stagnated or even dropped with regard to inflation, prison guards have seen sustained salary increases. Correctional officers in California typically make somewhere between 50 and 90 percent more than comparable jobs in the rest of the country.

In Colorado:

Twelve of Colorado’s 21 facilities had inmate population above design capacity in 2011.

In Massachusetts:

The total custody overcrowding rate for DOC facilities as of June 25, 2012 was 146%. The overcrowding rate for medium security facilities was 155%.  

In my home state of New Jersey the Dept. of Corrections has an:

Annual budget: $1,000,000,000. 

Average annual cost per inmate: $34,600

And this is while our bridges are falling down and our roads are crumbling.

But the human costs are even greater, not only for the incarcerated but for their families and particularly their children. According to the Urban Institute: 

More than half of the 1.4 million adults incarcerated in state and federal prisons are parents of minor children. The vast majority of incarcerated parents are male (93%) and are held in state prisons (89%). Among the men held in state prison, 55 percent report having minor children. Among the women, who account for 6 percent of the state prison population, 65 percent report having minor children. Over half (58%) of the minor children of incarcerated parents are less than 10 years old.

Great distances typically separate children from their incarcerated parents. Women are housed in prisons an average of 160 miles from their children, while men are an average distance of 100 miles away. These distances serve as a barrier to prison visits by family members. More than half of incarcerated parents report never receiving a personal visit from their children  Contact in the form of phone calls and letters often proves problematic as well. The number of calls or letters per prisoner is typically limited by corrections policy. The high cost of collect phone calls, reflecting surcharges imposed by telephone companies or the departments themselves, can make this form of contact quite expensive. Despite these barriers, nearly 60 percent of mothers and
 40 percent of fathers report having weekly contact with their children while incarcerated. 

See here. 

For which credit goes to the inmates and their families, not to our policies.

As pointed out above, keeping in touch by phone is made almost impossible. The New York Times reports: 

For most people, talking on the phone is cheap. But for many families with a loved one behind bars, astronomical phone bills mean they have to choose between covering their living expenses and staying in touch.

The problem is that prisons and jails give companies like the industry leader, Global Tel Link, monopoly contracts in exchange for a share of the proceeds...

Global Tel Link, for example, charges $9.50 to make a $50 deposit, and $5 to issue a refund when someone is released from prison or jail. It’s hard to understand why Global Tel Link’s fees are so high, given that the company has 57 percent of the state prison market and its smaller competitors charge far lower fees.

The good news is that the Federal Communications Commission has new rules that will cap the cost of interstate calls at 21 to 25 cents a minute starting on Feb. 11. The F.C.C. also proposed to limit the account fees, but a federal court suspended that proposal after the phone companies sued.

So we can see that there is money to be made from the families of those incarcerated. Of course they want more in prisons.

But even beyond that we have had a trend toward privatizing prisons. The ACLU reports: 

Private prison companies, however, essentially admit that their business model depends on locking up more and more people... ” As incarceration rates skyrocket, the private prison industry expands at exponential rates, holding ever more people in its prisons and jails, and generating massive profits. 

And while supporters of private prisons tout the idea that governments can save money through privatization, the evidence that private prisons save taxpayer money is mixed at best – in fact, private prisons may in some instances cost more than governmental ones. Private prisons have also been linked to numerous cases of violence and atrocious conditions. 

Isn't it time we did something about it? And what better time than when the Right is for reform.

Why are we not seeing action at least on this front?

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

Law Enforcement, Race and the Gun Culture – IV

This is the fifth in this series if you count the Discussion post. I recommend that you read or re-read Part I here, Part II here, Part III here and the discussion here. 

While killings by police have been prominent in the news lately, it is but the tip of the iceberg. Brutality, and even simply disrespect, are equally unacceptable, and under the last mayor, Michael Bloomberg, and his police commissioner, Raymond Kelly, respect for the law hit a low ebb.

This took many forms. The Civilian Review Board, set up as a body independent of the police to take complaints about the police, investigate them and then send them to the Commissioner, was frequently ignored.

According to the New York City ACLU:

Of the cases referred to an administrative trial during this period, consistent with the CCRB’s recommendation, 64 percent resulted in no disciplinary action. (Emphasis added)

But I think that what has happened is that there has been far too much emphasis on police officers as being the main problem.

Law enforcement policy is made at the top and the outrageous policy of "Stop and Frisk" in NYC came right from the top, the mayor and the police commissioner. It was denounced for its racial profiling, but that was not all that was wrong with it. It was an outrageous violation of our Constitutional protections, and had it not targeted men of color, I suspect it would have been challenged much sooner and much more vigorously.

Amendment IV of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I cannot think of a more egregious violation of that portion of the Bill of Rights then for a person to be stopped on the street without cause, entirely at random, and to be forced to submit to a body search.

This was not done by rogue police officers, but on the orders of the mayor, Michael Bloomberg, and his police commissioner, Raymond Kelly.

But the media, and even civil rights and civil liberties groups, have spent far too much time on the misconduct of the police. There are far more egregious parts of our Law enforcement apparatus.

Among these are the offices of the District Attorneys. As I set forth in my post "Law Enforcement, Race and the Gun Culture – II," When a DA wants an indictment he gets one, but DAs, who by the nature of their work need the cooperation of the police, rarely want to indict a police officer, and so we see the charade of a presentation to a Grand Jury, which in accordance with the DAs wishes, fails to indict. The Abner Louima case was an exception, but that was so egregious that it could not be ignored, but nevertheless was to the credit of the Brooklyn DA, whose office handled it, and the prosecuting attorney, Loretta Lynch, who represented the people in court, and who has now been nominated for Attorney General of the US.

But it may be that this case was so egregious that it could not be ignored.

But District Attorney offices are a very large part of what is wrong with our Criminal Justice System, not just for their failure to prosecute police officers who commit crimes, but worse their putting the winning of convictions, over seeking justice. Thus under our system of law, a defense attorney only has the responsibility to present his clients case, while the DA’s office is charged with seeking justice.

Unfortunately, this is rarely the case, with DAs seeking convictions, rather than justice, and failing to turn over exculpatory evidence to the defense, as they are required to do by law. It is but the tip of the iceberg that is revealed in cases where convictions have been overturned, e.g. for every case overturned there are many false convictions that are not. I  quote from the Innocence Project: 

In 1985, John Thompson, a 22-year-old father of two, was wrongfully convicted of murder and sent to death row at Angola State Penitentiary in Louisiana. While facing his seventh execution date, a private investigator hired by his appellate attorneys discovered scientific evidence of Thompson’s innocence that had been concealed for 15 years by the New Orleans Parish District Attorney’s Office.

 Thompson was released and exonerated in 2003 after 18 years in prison, 14 of them isolated on death row. The state of Louisiana gave him $10 and a bus ticket upon his release. He sued the District Attorney’s Office. A jury awarded him $14 million, one for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. This spring, Justice Clarence Thomas issued the majority 5-4 decision in Connick v. Thompson that the prosecutor’s office could not be held liable.

The requirement that prosecutors must turn over exculpatory evidence to the defense was settled by the Supreme Court in 1963 (Brady v. Maryland, 373 U.S. 83), which held that:

… prosecutors (must) disclose materially exculpatory evidence in the government's possession to the defense. "Brady material" or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused-- evidence that goes towards negating a defendant's guilt, that would reduce a defendant's potential sentence, or evidence going to the credibility of a witness.

 If the prosecution does not disclose material exculpatory evidence under this rule, and prejudice has ensued, the evidence will be suppressed. The evidence will be suppressed regardless of whether the prosecutor knew the evidence was in his or her possession, or whether or not the prosecutor intentionally or inadvertently withheld the evidence from the defense.

But this requirement is observed more in the breach than in its observance. The Innocence Project has found and I quote: 

Such violations have led to an incalculable number of wrongful convictions. Because of the often covert nature of prosecutorial misconduct, it is impossible to estimate how many innocent people have been affected. Furthermore, the vast majority of felony cases are resolved through plea bargaining and never go to trial. Prosecutors may have engaged in misconduct in those cases as well.

 In at least 63 of the wrongful convictions later overturned through DNA testing, innocent defendants alleged prosecutorial misconduct in their appeals or civil trials. Examples of misconduct include eliciting perjured testimony; destroying, concealing or fabricating evidence; making improper and inflammatory statements and more.

 Recent studies of these and other cases have shown that prosecutors are rarely found at fault, and even when they are, they are very rarely disciplined for it. A USA Today investigation found that only one federal prosecutor has been disbarred, even temporarily, for misconduct in the past 12 years despite 201 documented cases of violated laws or ethics rules. The federal prosecutor in that one case was suspended from practicing law for just one year. A study conducted by the Northern California Innocence Project supports these findings. In that study, over 700 California prosecutors engaged in misconduct from 1997 to 2009 and only seven of them were disciplined.

With no penalties for deliberately seeking wrongful convictions is it any wonder that prosecuting attorneys build careers around getting as many convictions as possible, without regard to guilt or innocence.

Most of the cases where exonerations have been obtained have been through DNA evidence. How many innocent people may be incarcerated, though innocent, where DNA evidence cannot prove their innocence, is impossible to tell.

According to the Innocence Project: 

There have been 325 post-conviction DNA exonerations in United States history. These stories are becoming more familiar as more innocent people gain their freedom through post conviction testing. They are not proof, however, that our system is righting itself.

 The common themes that run through these cases — from global problems like poverty and racial issues to criminal justice issues like eyewitness misidentification, invalid or improper forensic science, overzealous police and prosecutors and inept defense counsel — cannot be ignored and continue to plague our criminal justice system.

 •     Twenty people had been sentenced to death before DNA proved their innocence and led to their release.
•     The average sentence served by DNA exonerees has been 13.6 years.
•     About 70 percent of those exonerated by DNA testing are people of color.
•     In almost 50 percent of DNA exoneration cases, the actual perpetrator has been identified by DNA testing.
•    Exonerations have been won in 38 states and Washington, D.C.

For those who still think that justice is colorblind I call attention to the fact that with “people of color make up about 30 percent of the United States’ population, they account for 60 percent of those imprisoned” and 70% of those wrongfully convicted. (See above)

But what makes it even worse is that Parole Boards expect prisoners to express remorse for their crimes, which is rather difficult for the innocent to do. This dilemma is dramatically illustrated in an Iowa Law Review article at pages 524 & 527, where the prisoner, being innocent, could not express remorse for something he did not do, but as the case unfolded, and again I quote:

Goodman had always maintained his innocence and continued to do so in the aftermath of his conviction. Still, more than a decade later, when appearing before the Utah State Board of Pardons and Parole in 2000, Goodman “admitted his culpability for the murder in order to curry favor with parole officials.

But much later:

… in discussing the case … in the weeks following the disclosure of the DNA test, lawyers from the Utah State Attorney General’s Office noted Goodman’s admission of guilt at his 2000 parole hearing as one reason for their hesitancy to declare his innocence.

Thus the convicted innocent found himself damned if he did, and damned if he didn’t, a common occurrence in our crazy quilt system of “justice”.

How Kafkaesque such situations are! But we take pride in our pretense of evenhanded justice.

We have long claimed to believe that:

"It is better that ten guilty persons escape than that one innocent suffer", and this is enshrined by the English jurist William Blackstone in his seminal work, Commentaries on the Laws of England, published in the 1760s, which we claim to adhere to.

But as I have set forth above, in practice it is far from true. In future posts I will illustrate just how we have come to practice the opposite.

Comments, questions, or corrections are welcome, and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified. However, please give your full name and the town and state in which you reside or have an office.

We are Americans!

In my post I entitled "The Media in General and the New York Times in Particular" I decried the tendency on the part of the media and in that case PBS to “create an artificial or false equivalence…”

That is even truer as between the parties. As I watch the present campaign rhetoric and compare it to history I am struck by the fact that Democrats, as a group tend to be more American first and Democrats second, while the reverse is true about Republicans.

This came to me quite by accident as I was reviewing some old material on my computer. I found the following first person description of one who was in the World Trade Center on 9/11. It is very dramatic and I urge the reader to read it here. 

But the point that struck me most of all was the ending of that piece. Allow me to quote it here:

Today the images that people around the world equate with power and democracy are gone but “America” is not an image it is a concept. That concept is only strengthened by our pulling together as a team. If you want to kill us, leave us alone because we will do it by ourselves. If you want to make us stronger, attack and we unite. This is the ultimate failure of terrorism against The United States and the ultimate price we pay to be free, to decide where we want to work, what we want to eat, and when & where we want to go on vacation. The very moment the first plane was hijacked, democracy won.

Compare that to the long running smears against Democrats that I related in my post: "The Election (Discussion)" Allow me to quote:

… for some reason Democrats have always been held to a much higher standard than Republicans. You will remember Joe McCarthy's charge during the Truman Administration of "twenty years of treason." What was worse is that when the Democratic led Tydings Committee "concluded that the individuals on McCarthy's list were neither Communists nor pro-communist, and said the State Department had an effective security program" and "labeled McCarthy's charges a "fraud and a hoax". Republicans responded in kind, with William E. Jenner stating that Tydings was guilty of "the most brazen whitewash of treasonable conspiracy in our history.” The full Senate voted three times on whether to accept the report, and each time the voting was precisely divided along party lines.”

But that is not even ancient history. Ann Coulter, a darling of Republicans recently, wrote: "Twenty years of treason hasn't slowed them down." and charged "50 years of treason.” 

Now compare that to the reaction as shown in the quote above. In response to 9/11 Democrats rallied around the President. They did so even though there were many questions about Bush’s negligence in not stopping the attack. The outgoing Clinton Administration had warned the President that a major attack on the US was a serious threat. It was ignored.

The hijackers were training for the attack in American flight schools, and agencies of the Bush Administration knew about it, but they did not “connect the dots.” The Bush Administration was clearly negligent in a major and dangerous way. But this was not the time for recriminations. Democrats held their fire. The said we are Americans first and partisans second. This was a time for unity.

Contrast that with the way Republicans are treating the attack in Ben Gazi, Libya, (Which by the way is not the capital of Libya and is not where our Embassy is located. What was attacked was a Consulate. The Embassy is in Tripoli.) Again we have been attacked. A time for unity? Not for Republicans! It is, as it has always been, a chance for divisiveness. Not for patriotism. Not for unity. A chance to divide the country on National Security.

Have they, or we, already forgotten how even after 9/11 Al Qaeda continued its terrorist attacks, if not on our territory on the territory of our allies. Have we forgotten the bombing of the London subway, or the attacks on our allies in other parts of the world? Obama put a stop to it even before he tracked down and killed Osama bin Laden. A decimated Al Qaeda staged they Libyan attack in order to seem relevant again. And Republicans, led by Romney and Ryan are giving them the stage they were, and are, seeking.

For shame! For shame!

They wave the flag! They wear flag pins! And they don’t know the meaning of patriotism. Only how to advance their agenda.

And what is their agenda? They accuse the President, “No Drama Obama” of being soft. He may have been in the first debate, but he sure isn’t when it comes to being what he was elected to do. He isn’t the best at blowing his own horn, or exposing the hypocrisy of his opponent, but as President, as Commander in Chief, he is always there.

Ryan during his Debate with the VP criticized Obama on Iran. He claimed that it took Republicans in Congress to toughen sanctions. Wow, we got a bipartisan bill through Congress 421-6 in the House and by voice vote in the Senate and it is promptly signed into law by “No Drama Obama” and Ryan claims this somehow reflects badly on the President and/or Democrats.

But of course no unilateral sanctions by the US has any meaning unless such sanction are imposed by a multiplicity of countries. That has been the genius of this Administration. They got something, that none of these unilateralist could have gotten! They got effective international sanctions against Iran.

Bloomberg news reports: 

Iran’s freefalling currency is turning meat into a luxury, sparking overnight price surges and spurring shoppers to stockpile goods…. Iran’s rial is in a tailspin, having lost more than half of its value against the dollar in street trading in the past two months as U.S. and European sanctions aimed at curbing the country’s nuclear program bite. Riot police yesterday fired tear gas and sealed off parts of downtown Tehran after the currency’s plunge triggered street protests.

Short of military action, whose effectiveness is problematic, and which Romney/Ryan do not advocate, (or maybe they do ---who knows, they make statement all over the map) what more could have been done. It has now been effective beyond any expectation or hope. It might end up bringing the regime down.

But how did we get here in the first place? 

It was Republican Secretary of State, Foster Dulles, and his brother Allen Dulles head of the CIA, in the Eisenhower administration who overthrew an Iranian Democratically elected government and installed the hated Shah, which in turn led directly to the Shah’s overthrow by the Ayatollah.

It isn’t just people. Parties matter. And while Democrats are not angels, (the system will not allow it) the differences between them are like night and day.

They (Republcians – Romney – Ryan) say Obama has not created enough jobs since he took office in January. They do this by counting the job losses the country sustained on the day the President took office. This is an absurd approach. Presidents don’t control events on the day and in the months immediately after they are sworn in. Obama acted fast! He got the stimulus bill signed into law on February 17, 2009 less than a month after being sworn in. It took until the end of March to have an effect. Look at the graph below: 

By April job losses had gone from 850,000 the day he took office to only 200,000 by May and except for a small spike in the middle of summer, the trend has been for the better every year. Republicans have been touting “Unemployment is still over 8%.” Well, it isn’t any more. This is a party that celebrates unemployment. It may not be good for the country, but it is good for the party.

But say Republicans through the mouth of Romney and Ryan does he (Obama) have any other plans. Well yes! On August 2, 2011 Business Insider had the headline “Congress AWOL ON Jobs.” They hold the country hostage and then blame our President. That is their patriotism.

And what of their nominee? He is the Invisible man*! Well, he may not be invisible, but his plans for the American people are top secret. He will cut $5 trillion in taxes, mostly for the rich, and make it up with ------ “it’s a secret.” He will find it in tax expenditures, but not of the most important kind, not the advantaged (for the rich) capital gains tax – that’s off limits. Dividends mostly earned by the rich – that’s off limits. Inheritance taxes, the means by which inherited aristocracies are built – that’s off limits. What’s left –it’s a secret.

           

What nefarious secrets are contained in his tax returns? We don’t know. It’s a secret.

This shouldn’t be a close election. Obama ought to win by a landslide and get a Congress that will work with him. But the American people, or about half of them, are deluded and deceived.

I pray for the future of my country, for I AM AN AMERICAN.

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*Borrowed from the book by that name by H.G. Wells