Cops and General Deterrence

There’s a reason why police officers continue to kill mostly black people around the country. It’s because they know that even in the rare cases where they are charged, they probably won’t be convicted. And even if they walk into the wrong home and gun down a guy who was just enjoying some ice cream, the judge will probably hug them after they get a sentence that accounts for a fraction of the time a normal person would serve.

General deterrence is important. Every time I’m in federal court, I’m lectured by judges about it: that one of the purposes of the criminal law is to create respect for the law, and ensure that people in general know that, if they commit crimes and get caught, they will eventually serve a sentence of sometime.

This concept of general deterrence is somewhat overstated: most people are aware they might be caught and that they might be punished, but they often don’t value the the risk adequately. So I’m not here to say that general deterrence works as a general principle, and certainly when it comes to the death penalty, general deterrence doesn’t really work at all.

But general deterrence would work very well in the sort of context where it matters most. If police officers knew that, were they to shoot and kill someone, they would be subject to a thorough and impartial investigation, and would be charged with the highest possible crime, police officers would stop killing citizens.

But that doesn’t happen. It doesn’t happen because District Attorneys – the elected officials who prosecute crimes on the state level – often depend on cops for votes come election time, and depend on cops to do their job prosecuting other citizens.

Can you imagine what a signal it would’ve sent to cops around the country if Eric Garner’s killers had been sent to prison for 30 years? Can you imagine what a signal it would’ve sent to cops around the country if Philandro Castille’s killer had been convicted over first degree murder? Or if Derek Chauvin had been prosecuted the first time he killed a citizen?

George Floyd would probably still be alive.

Joe Biden’s Criminal Justice Record is Appalling

Normally I don’t talk about partisan politics on this blog, limiting my comments to policy and criminal justice issues. But I was recently elected as a Bernie Sanders delegate to the Democratic National Convention, which is scheduled to be hosted in Milwaukee this year. But the Party is considering hosting the convention by virtual means – Zoom, I suppose. The decision about how to host the convention is still being considered.

As a practical matter, given that Bernie Sanders suspended his campaign, and Joe Biden will have the substantial majority of ballots, it is unlikely that the individual delegates will be required to actually voice a preference. And, as a matter of party rules, delegates sent on behalf of a particular candidate – in my case Senator Sanders – are required to vote for that candidate on the first ballot. Since there will not be a second ballot – in all likelihood, but this being 2020, who knows – I suspect that vote will be a mere formality, if it even occurs.

Since Senator Sanders announced the suspension of his campaign, I have not followed the day-to-day politics. But Joe Biden seems to want to create all kinds of issues that make it more difficult for him to win. I suppose there’s a reason he withdrew twice – in 1988 and 2008 – in previous presidential campaigns. In 1988, he was caught plagiarizing speeches, and lying about his resume. His lies about his resume have continued, unabated for decades. Recently he falsely claimed he was arrested in South Africa during the apartheid era, that he marched in the 1960s for civil rights, that he co-sponsored the Endangered Species Act, and about his vote for war in Iraq in 2003. The man is an inveterate fibber.

But most striking is Joe Biden’s problematic record on race. Biden was selected in 2008 as Barack Obama’s vice president because it was thought that having Biden on the ticket would convince white voters in Pennsylvania, and the midwest, for instance, that President Obama would not be dangerous.

But in the 1970s, Biden was not just a backer, but a sponsor of bills to permit and encourage busing favored by whites to deny African-Americans equal access to good schools. Biden was cozy with some of the Democratic Party’s worst segregationists – Jim Eastland and Herman Talmadge, both senators.

But Biden’s record on criminal justice is just absolutely appalling. He was either co-sponsor or a strong supporter of a string of bills that went through Congress in the 1980s and 1990s that produce federal sentencing mandatory minimums that led to mass incarceration and put a generation of black males in prison.

If Biden had changed his tune, he’d be more acceptable today. But here he is in the last week saying more nonsense:

When Every Defendant is a Nail…

Prisons clangWhen Every Defendant is a Nail… every solution is a harsh prison sentence.

It’s good to see that criminal justice reform has become a topic of the debate, and that that debate isn’t about how many more mandatory minimum sentences we can impose, but, rather, how we can return some sanity to the system.

And even if the Sentencing Reform Act of 2015 isn’t really a major step in the right direction, it’s good to see the federal government is taking steps on its own to release at least some of the more than 200,000 federal prisoners in the Bureau of Prisons.

A fundamental rethinking of the criminal justice system, however, would require a few things. At the policy level, a recognition that our drug policy should view addiction as a condition that needs to be treated, rather than criminalized, would go a long way toward righting the ship. After all, nearly half of all federal prisoners are victims of the drug war.

But a deeper reckoning is in order, and that more profound consideration of our criminal justice policy would ask: Just how much time is enough?

Consider Norway. Anders Breivik killed eight people by setting off a van bomb in Oslo. While police were responding to that crime, Breivik made his way to Utoya, an island where the Norwegian Labour Party held its youth camp. Dressed as a police officer, Breivik killed dozens more. The final count: 77 dead, mostly young people.

It was a monstrous crime even though Breivik, one expert testified later in court, may have suffered from schizophrenia.

Breivik was sentenced to a maximum time frame of 21 years, although, given the type of crime and the concern about mental health, Breivik could be held indefinitely under a special form of sentence called “containment.”

(The U.S., it should be noted, also has special forms of confinement, in which, for instance, sex offenders may be held indefinitely for treatment.)

While indefinite detention or confinement or confined treatment is deeply worrying, there’s something very sane and deeply humane about Norway, a country where the public policy caps regular prison sentences at two decades, and then proceeds to treat the vast majority of prisoners as human beings who one day will return to society.

Contrast that with the United States, where federal judges routinely dispense ten and twenty year sentences.

The urge to punish is overwhelming in the United States. It is likely influenced by some combination of a puritanical culture, and the reality that the harshest sentences often fall on African Americans. It is shaped by policies – the drug war, the death penalty, and the all-to-common life imprisonment.

When prosecutors measure their worth by the number of months they’ve put fellow human beings in jail.

Warehousing of human beings is often done by federal judges, whose context for punishment is shaped by their environments. When the routine sentence is counted in dozens or hundreds of months, then the sentence that’ll next be handed out will be measured in dozens or hundreds of months.

Unions and Criminal Justice Reform

Frank RizzoThe problems confronting American policing and interactions with citizens, particularly African-American citizens, are multifaceted. Briefly, they can be described in no particular order as a consequence of:


  1. The proliferation of crimes

  2. The broken windows theory
  3. Institutional racism
  4. Social and economic distress
  5. Militarization of the police

Into that mix, throw police labor relations: a major proponent of increasingly harsh police (and correctional tactics) have been police and correctional unions who, on behalf of their members, have lobbied government in favor of broad authority to deploy whatever tactics they see fit in the performance of their duties, and have opposed efforts at reforming police abuses.

This is nothing new. I grew up in Philadelphia where Frank Rizzo, a Philly beat cop turned police commissioner, was beloved by his (mostly) male police force for pushing a brutal approach to policing. Rizzo reportedly remarked about one group of anti-police demonstrators: “When I’m finished with them, I’ll make Attila the Hun look like a fag.”

Whether he said it or not, Rizzo’s lawlessness – in contrast to Robert Peele’s principles of policing – is something that police unions have sought for their members in different forms, whether in Philaelphia or elsewhere.

Police unions rarely speak as frankly as Frank Rizzo, but the basic point remains the same: they want their members to have virtually limitless authority to use force, with virtually no accountability.

Exhibit One: Norm Stamper retired as Seattle’s police chief shortly after presiding over his police department’s response to the WTO demonstrations in 1999. Horrified by the militarization of Seattle’s police that increased the violence in 1999, Stamper proposed an approach for future protests in which police would dress in normal uniforms, in lieu of the military-style helmets and body armor they had worn during the 1999 protests.

Stamper’s attempts were opposed by the Seattle police union, viewing the matter as a “a black-and-white world in which police unions serve above all to protect the brotherhood.” In other words, any risk to police officers was viewed as unacceptable even though there was good reason to believe handling the demonstration as a normal event would’ve de-escalated the situation.

Exhibit Two: With brutality of the guards at Rikers Island – the pre-trial detention facility for New York City – on the rise, efforts to reform the way correctional officers are disciplined have been stymied by Norman Seabrook, the powerful president of the Correction Officers’ Benevolent Association.

But current and former city officials repeatedly described Mr. Seabrook as the biggest obstacle to efforts to curb brutality and malfeasance at Rikers. He has vigorously resisted stiffer penalties for the use of excessive force by guards and has fought stronger screening measures designed to stop correction officers from smuggling weapons and drugs into the jails. Time and again, Mr. Seabrook has shielded his members from serious punishment when investigators like Ms. Finkle have tried to go after them.

Perhaps the most naked display of Mr. Seabrook’s power came on Nov. 18, 2013, when a Rikers inmate, Dapree Peterson, was scheduled to testify against two correction officers in a brutality case. Mr. Seabrook essentially shut down the city’s courts by sidelining the buses that ferry inmates to and from court, interviews and documents show. As a result, hundreds of inmates missed court dates, including Mr. Peterson, whose beating had been investigated and referred for prosecution by Ms. Finkle.

Exhibit Three: The response by some police union officials even to the mildest of criticisms been infantile. Tamir Rice is the 12-year-old shot dead by a Cleveland Police Officer who lept from his vehicle and within seconds of arriving on scene shot the boy. Timothy Loehmann, the officer who shot Rice, had previously been deemed emotionally unstable and unfit for duty by the Independence, Ohio police department. Loehmann’s partner, Frank Garmback, was involved in an excessive force lawsuit that Cleveland settled in 2014 for $100,000.

But what riled police union officials? Cleveland Browns player Andrew Hawkins’ decision this weekend to wear a t-shirt calling for justice for Tamir Rice. If even the mildest of criticism – a t-shirt worn during in a football game warm-up – results in such a backlash from union official, imagine the pushback that unions exert when real reform is imposed.

Exhibit Four: Certain kinds of unions – most notoriously, the California Correctional Peace Officers Association has backed substanative criminal law reforms that have been designed to increase the number of incarcerated human beings, thereby increasing the work load and the benefits to the union.

The union has been one of the leading backers of tougher sentencing laws. It spent over $100,000 to pass the original Three Strikes law. It dropped another $1 million to defeat Prop 5, which would have reduced sentences for nonviolent crimes and allocated more resources to treating drug addiction. It spent over $1 million to beat Prop 66, which would have reduced the number of crimes that carry mandatory life sentences. Politicians are also on the menu. CCPOA spent nearly $2 million supporting Jerry Brown’s gubernatorial campaign.

Reform of the criminal justice system across the board is needed to alleviate the pressure on policing. Certainly many police officers are good, hardworking people. But the institutional incentives against reform are strong. And among those institutional incentives is the role of police unions and correctional officer unions in blocking attempts to reign in police violence and bring common sense to our criminal justice system.

U.S. prison population is larger than any other country

There’s still one thing that America excels at: putting human beings in cages. Thanks to a dug war that knows no bounds, and very harsh-on-crime politics in which each party attempts to see who can be more punitive, the U.S imprisons a larger proportion and a larger absolute number of people an any other country in the world, including Russia and China.

Read more…

Life, the Other Death Penalty

Yesterday I posted about the life long consequences early mistakes and, yes, crimes can have for young people convicted. In that post, I was talking primarily about those convicted of non-violent and drug offenses.

This New York Times article shows how slow criminal justice reform is to take root, even when the Supreme Court speaks. In 2010 and 2012, the Supreme Court attempted to limit the use of mandatory life sentences for children, even those convicted of murder, on the argument that children, including those convicted of violent crimes, are capable and deserve a chance at redemption. A broader attack on life sentences is warranted: they are far too common.

Nonetheless, let’s begin with the children

Our brief argued that these sentences are unconstitutional pursuant to the United States Supreme Court’s ruling in Graham v. Florida, which held that juvenile offenders cannot be sentenced to life without parole without a meaningful and realistic opportunity to re-enter society prior to the expiration of their sentences for non-homicide offenses (130 S.Ct. 2011, 2010 (2010)). The Supreme Court based this holding on the fact that the unique characteristics of youth that make children less culpable, in addition to the developmental differences between children and adults, make it more likely that a child can reform.

The Times article cites the case of Shameek Gridine, who, at the age of 14, attempted to rob a man, along with his 12-year-old partner. Gridine pleaded guilty to attempted murder and robbery in Jacksonville, Florida, requiring a sentence of at least 25 years.

Adrian SoudJudge Adrian Soud, who had been out of law school barely 10 years and who had been on the bench less than a year prior to sentencing Shameek. Soud, who had worked with his brother at the Sound Law Firm, which appears to primarily focused on personal injury cases, apparently has a twitter feed.

Stroud’s dad was an elected judge, his mom was an elected city council member, and so he was destined to be elected to preside over his fellow citizens, including kids. This is not to say he couldn’t be a good judge.

In sentencing Shameek, Soud called the crime “heinous”. And certainly it is a terrible crime. But the idea that a 14 year old – or really anyone – necessarily must serve the rest of his life in jail for a crime in which no one died, especially given that the 14 year old had no prior criminal history raises the question of what kind of society we have created.

Rethinking our Criminal Justice System

Wake County Justice Center

Years ago I had a client, the son of two caring parents who themselves had done well. Upper middle class professionals. The son wasn’t a bad kid. Incredibly bright, he was socially awkward and “lacked direction” as the phrase goes. He was also not street smart, which probably was a consequence of his awkwardness. He allowed himself to be taken advantage of by other kids who themselves were not evil, but were aware they were breaking the law in more serious ways.

My client was linked to property that had a few days earlier been stolen out of cars around the neighborhood. It was clear to me that he had not participated in the breaking and enterings. But it was also clear that at the very least, he probably knew what he was doing was not on the up-and-up when he agreed to buy the property and pawn it. He probably did not know just how serious the conduct was.

It was certainly a triable case, but the State could argue that the doctrine of recent possession was enough to link the client to the breaking and enterings, and that the client knew or should’ve known that he did not lawfully own the goods when he pawned them (using his own ID!) for less than $100 a few days later.

Not a lot of money was at stake. My client probably did what he did to fit in, which is probably why a few months later, in the midst of facing a raft of charges in the stolen property incident, he was caught in the next town over with marijuana following a police stop.

The stop was legal. And while he did not consent to a search of the car, the “odor of marijuana” from the car was pungent enough to allow a search based on probable cause. Felony marijuana charges.

Now, you can say: what is wrong with this kid? Why, in the midst of facing felony charges, was he around any marijuana at all?

And that’s a fair question. Believe me, it was a question asked in raised voices and with stern demeanors for months.

Ultimately, knowing that, depending on the order in which he was tried and potentially convicted, he could face some active time, he pled guilty to a subset of the charges.

What I think about is that these were serious and terrible mistakes made in his early 20s that left this young man a felon for the rest of his life.

The Burden of a Criminal Conviction

The burden of a criminal conviction is real, not just because of the social stigma and the limitation on gun ownership rights. The burden of a criminal conviction means an economic future that is more uncertain than it otherwise would be.

One third of Americans today at age 23 have been arrested at some point in their young lives (excluding minor traffic offenses). This is outrageous, not because the conduct is bad, but because we have made a society which arrests so. many. people.

If you’re white and reading this, then you may think this statistic exaggerates the problem. And that’s because people of color are arrested at much higher rates than whites. Is the problem a socio-economic problem? Or is the problem one in which communities of color face more aggressive policing? Or is it that certain communities of color lack resources to address problems outside the purview of the criminal justice system, and therefore young people color find themselves in the system having been arrested, and facing conviction.

Rethinking the Problem

The criminal justice system has evolved from a place in which predominately violent and serious property crime was addressed, into a system in which all kinds of social ills are dumped, with the idea being that if we can’t fix a social problem, at least we can label the offender with a “criminal conviction” for the rest of his or her life.

That is an incredibly costly way to approach the problem. The costs are hidden from the majority culture: felt largely in communities of color, among the poor, and individuals by people who not only have inadequate resources to deal with their real life problems, but now have a criminal conviction to boot.

I’m not sure what the ultimately solution to these deep seated problems is. There probably isn’t any solution. But one approach would de-emphasize the criminal justice system, making it an extraordinary remedy for society’s most serious offenders, and not something into which we cavalierly toss people (especially young people) in order to “teach them a lesson.”

DWIs: For Every Nail, A Hammer?

Governor McCrory recently created a new Impaired Driving Task Force, including judges, the executive director of North Carolina’s chapter of Mothers Against Drunk Driving (MADD), and law enforcement and lawyers.

The task force is part of an effort to reform and strengthen North Carolina’s Driving While Impaired laws, especially in light of new NHTSA recommendations released in 2013 that recommend lower the BAC from .08 that qualifies as a per se violation of DWI law, and imposing interlock restrictions on larger number of people convicted of DWI offenses.

North Carolina, already has some of the toughest DWI laws in the country. Those laws, coupled with fairly lenient criminal procedures that allow the admission of evidence over defendants’ objections into court proceedings, and “no drop” policies in almost all counties, mean that a person charged with a DWI faces an uphill battle to win a not-guilty result.

Every Problem, A Nail

The mentality in North Carolina, a state that, incidentally, whose major sport (NASCAR) has its origins in Prohibition when bootleggers souped up cars to evade law enforcement in delivering moonshine to market, has been that every DWI problem is a nail, and every solution requires a hammer.

Sometimes a hammer is what’s called for: in 2011, Wake County’s District Attorney tried a local plastic surgeon who had previously had a run-in with the law in Georgia for an impaired-driving offense, with second degree murder when he killed Elena Shapiro, a ballerina with the Carolina Ballet.

Raymond Cook CarA jury did not find malice sufficient to convict Shapiro’s killer of DWI, even though he was driving more than 80 miles-per-hour in a 45 mile-per-hour zone and even though his blood alcohol concentration was more than twice the legal limit.

The ADA prosecuting the defendant in that case had an uphill battle. He did secure a conviction for felony death by motor vehicle, and Judge Osmond Smith sentenced the defendant to the maximum. But the maximum under the law as it was in 2011 meant that the defendant was on work release and home visits within two years of his conviction.

The North Carolina General Assembly was right to enhance punishments for the felony death by motor vehicle offense. Instead of trying to shoe-horn a prosecution for second degree murder, the appropriate charge was that charge, but it needed to carry a tougher sentence. It does.

Every Solution, A Hammer?

But every solution does not need to be a hammer. In fact, certain solutions require a different tool. A kneejerk “tough on DWIs” approach in North Carolina has created a misdemeanor court system, especially in our larger counties, that is bursting at its seams with DWI cases.

These cases are serious, but so are Domestic Violence, assaults, larcenies, and hit and run offenses. A sound criminal justice system is balanced. The one we have right now is unbalanced.

One solution is a carrot and stick approach: Because defendants have a constitutional right to a jury trial that cannot be stripped form them, they have leverage in a system that is focused on plea deals. If you don’t offer defendants a plea option, then defendants are in the position of either dragging out cases for an eternity, or of appealing cases when they are found guilty in District Court.

In addition, while there is no excuse for misconduct or corruption, such corruption – such as the DWI scandal in Wake County and Johnston County – is much more likely in a system that has no release valve.

The DWI Task Force needs to focus on a release valve: sometimes a DWI is a terrible mistake. And where that DWI is the only impaired driving offense, and involves no damage to property or injury to persons, that DWI needs to be treated differently than other such DWIs especially if it is resolved early.

While it is unpopular to say so, incentivizing DWI defendants to resolve their cases quickly through a plea option is one way to quickly resolve a large number of cases that are overwhelming our court system, and creating inadequate justice in other types of cases.

Why is video so important in criminal investigations?

Scott Greenfield, a New York criminal defense lawyer, comments on a recent case involving allegations of police brutality by law enforcement officers in New Jersey. Following claims that troopers in New Jersey were racial profiling, the State Highway Patrol required all troopers to maintain and activate dashcams to record any police enforcement encounters with citizens.

In this recent case, the trooper failed to activate his camera and, in fact, had been subject to sanctions by the highway patrol in the past for failing to activate his camera on previous occasions

The utility of video in revealing what really happens when cop encounters citizen can’t be understated, as it has fundamentally changed our understanding and appreciation of the ugliness on the street. Before, we relied on the sanitized, fantastical descriptions given by police officers on the witness stand, where they never uttered a mean word and were invariably professional and courteous in every interaction. It wasn’t their fault that the perp ended up with a gun-shaped bruise across his left cheek. He must have attacked the gun with his face. It can happen, you know.

Greenfield’s reference to “sanitized, fantastical descriptions” calls to mind this funny-because-it’s-true video of a cross examination of a police witness at a suppression hearing. I don’t know how many times I’ve heard “based on my experience and training” I concluded that… followed by a bad opinion.

Videos can indeed be helpful, not only for “officer safety” (which is a real concern) but also to show what happened to the trier of fact. Was the car really swerving? Did the driver really consent to the search? How soon after the stop were the drug dogs brought to the car? Is this a pretextual stop? And if pretextual, is there any good faith, independent reason to stop the car other than the officer’s ulterior motive?

Many officers I’ve encountered actually like video cams because, in many encounters, the video cams actually show a criminal offense, or suspicious facts giving rise to probable cause.

Video can also help resolve cases more quickly, by allowing a client to see exactly the strength of the state’s case. In DWI cases, in particular, a person may not realize just how impaired they seemed. If the video shows impaired behavior and conduct beyond the normal “slurred speech, red glass eyes,” the video can resolve the matter quickly.

Video can also be used to defend a client by showing to the judge or jury, as the case may be, that the officer, was at the very least, mistaken when he put in his report that the car was swerving.

Unfortunately, North Carolina does not have a general requirement that police equip their vehicles with videos. This creates for a mishmash of results depending on the agency and on the officer. It can result in shoddy investigations, and prolonged criminal cases.

Expanding and Reforming North Carolina’s Grand Jury System

A criminal case in North Carolina normally starts in District Court where, after a period of time and one or more “probable cause” dates at which a probable cause hearing is almost never held (at least in Wake County), the case is sent to a grand jury.

In the meantime, the North Carolina grand jury meets in secret with only the law enforcement officer present to give his side of the story. The case is almost invariably indicted – meaning that the grand jury by a vote returns a True Bill of Indictment – which is a fancy way of saying that the accusation against the Defendant has now moved the case into Superior Court.

(Cases can also reach Superior Court by criminal information, and that must be done with the consent of the Defendant. This happens when the Defendant is pleading guilty to a crime and is waiving indictment and proceeding on a separate charging instrument drawn up by the prosecution so to speed the case along.)

Except in certain drug conspiracy cases, North Carolina lacks what are called “investigatory” grand juries. These are grand juries that are convened for the purpose of subpoena’ing witnesses, and having people testify under oath, with the idea that it is a prosecutor’s tool to collect additional sworn testimony.

Grand juries can be problematic. In North Carolina, defense counsel has no right to be present at a grand jury, and cannot put on any evidence to the grand jury to try to counter the state’s claims.

Grand juries were once thought of as counterweights to runaway prosecutorial discretion – by involving citizens who form the Grand Jury early in the process. But they have become just tools of prosecutors and police.

If North Carolina wants to expand the use of grand juries, as Attorney General Roy Cooper has proposed to include investigations involving financial fraud or public corruption, then North Carolina should also look at reforming grand juries so they are fairer with respect to all our rights.

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