Thursday, December 17, 2009

95 years ago...

On December 17, 1914, President Woodrow Wilson signed the Harrison Narcotics Act, P.L. 63-223, 38 Statutes at Large 785, commencing the modern "war on drugs." Will it last an entire century?

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Wednesday, December 16, 2009

New York City police perjury is widespread, Federal Judge declares

U.S. District Judge Jack Weinstein, one of the most famous Federal judges of the late 20th century, recently declared that there is "repeated widespread falsification" [i.e., perjury] by New York City police regarding the arrests that they make. In this case, the lies of NYPD detectives were contradicted by security videotapes, and the detectives have been indicted.

As reported in The New York Times in 1994
, a draft of the report issued by the Commission chaired by Judge Milton Mollen that investigated police misconduct found that perjury was "widespread" and that New York police officers referred to their routine perjury as "testilying." The Manhattan District Attorney Robert Morgenthau told The New York Times he thought the report exaggerated the scope of the perjury problem. Morgenthau is retiring this year.

An earlier story in November 2009 in the New York Daily News noted that the police department did not try to learn the outcome of cases in which the City of New York was sued for the misconduct of police officers, and is now, at the end of 2009, looking for patterns of police officer perjury.

Think of that: for at least 15 years the police department has been on notice that perjury is widespread and it did nothing to find out about perjury that was so egregious that it led to lawsuits against the city. In the criminal law we call this "willful blindness."

My hunch is that such commonplace police perjury is not limited to the New York police, but is prevalent, if not widespread and customary, in police departments throughout the country.

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Tuesday, December 15, 2009

On Evil

David Brooks writes in The New York Times today about President Obama's Christian Realism in international affairs. It is a lovely column about balance in the exercise of power. Brooks suggests that liberals in the 1970s (the period of my young adulthood) abandoned the conversation about evil in international affairs, and the need for force to resist it.

In thinking about and writing about the need for criminal justice reform, about the misconduct of the police, about excessively long sentences, about the absurdities and futility of drug prohibition, about the death penalty, about racism in the justice system, and so forth, liberals may be accused of too often disregarding the evil of many of the nation's criminals who kill, maim, hurt or violate others.

In some instances, such criticism is justified, but it is also understandable, perhaps, in the recognition that such blindness balances -- in a cultural way -- the blindness of the rhetoric of retribution that has flowed in recent decades from leaders of the criminal justice establishment. The press releases of prosecutors, legislators and police chiefs have often focused exclusively (or at least excessively) on the "evil" of offenders, and been indifferent to the "evils" of the justice system. Even non-evil offenders, such as simple drug users, have been the target for retribution by the likes of Dr. William Bennett, first "drug czar," and his political allies.

In the spirit of David Brooks' commendation of President Obama for his balanced view of evil, and the need to fight it, criminal justice liberals must not fail to acknowledge the horror of being a crime victim and the terror that fear of such crime creates.

We must acknowledge that justice demands punishment, even amidst the deep flaws in our "system" of justice that both jails and convicts the innocent and lets offenders escape conviction.

Anti-prohibitionists must acknowledge the tragedy of addiction, and the need to prevent addicted offenders from using drugs if that expensive habit will lead to any more crimes.

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Sex trafficking in America -- A legal system's failures. And victims revictimized by untrained law enforcement officers.

Laura Bauer, writing for the Kansas City Star, has an excellent series of stories about sex trafficking in America. In the first, it is noted that untrained local police can't distinguish a sex trafficking victim from a prostitute.

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Elected Prosecutors -- How do they run their offices? Are they challenged at the polls?

Most prosecutors are never challenged for re-election, reports the Waco Tribune-Herald in a very thoughtful review by reporter Cindy V. Culp.

Culp also wrote a very detailed story about how look at the performance of a prosecutor's office.

The first article identifies questions that incumbent prosecutors ought to be asked:

Questions that should be asked include:

* Is the prosecutor being thoughtful about priorities for his office, or is he just going with the flow?

* To what extent does the prosecutor hold other attorneys in the office accountable for the choices they make? How does he do that — for example, does he sample their work periodically?

* Is there general waste? Are resources being thrown at crimes that don’t really deserve them?

* How accurate is the office in evaluating cases? Put another way, how often do the crimes defendants are convicted of match up with the crimes they were initially charged with?

[University of Arizona law professor Marc] Miller, who has extensively studied prosecutor decision making, said he would add these additional questions:

* What guidelines govern whether prosecutors pursue cases or decline them?

* What percent of the cases that prosecutors receive from law enforcement are pursued?

* For cases not pursued, what are the general reasons?

This is excellent journalism.

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Monday, December 14, 2009

2009 High School Drug Use Study Released: Monitoring the Future

The Monitoring the Future study of drug use among 8th, 10th and 12th graders was released today. The government's press release was balanced, highlighting the successes in reduced cigarette smoking and use of methamphetamine, and noting that declines in marijuana use that had been steady for a decade seemed to have stalled.

Fortunately students perceive that it is harder for them to obtain drugs, especially cocaine, crack, ecstasy, sedatives, tranquilizers and steroids.

Lifetime use of various illicit drugs continues to go down. For 12th grade marijuana use it was down 42.0 percent, down from 49.7 percent in 1999, but still higher than the early and mid-1990s.

Current use of marijuana (last 30 days) is 6.5 percent for 8th grade, 15.9 percent for 10th grade and 20.6 percent for 12th grade -- all slight increases over the past five years.

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Philadelphia: Broken criminal justice system contributes to highest violent crime rate

The Philadelphia Inquirer begins a four-part series analyzing 31,000 cases that finds the courts overwhelmed with high caseloads that cram dockets. The courts are being gamed by defense attorneys, the prosecutors are poorly managed and disorganized, court and correctional administrators can't get subpoenaed inmates to court on time, witnesses are intimidated into silence, and tens of thousands of fugitives who skip bail are never sought or found.

Philadelphia has the highest violent crime rate for large urban counties. Is this the fault of due process and the Constitution? No, this is system-wide failure of the criminal justice system.

System-wide failure incurs a tremendous price. Fear diminishes the quality of life of hundreds of thousands. Thousands of crimes are committed by offenders who learn the system of punishment is toothless. Every city resident pays more for insurance. Most city real estate is worth less because of the incidence and fear of crime. The city's tax base is weakened. Hundreds of thousands of people flee the city over the years, leading to suburban sprawl, damaged watersheds, loss of farms and habitat, and the consumption of millions of barrels of imported oil increasing our dependence on corrupt foreign governments and contributing to long-term global climate change. The city's schools suffer.

System-wide failure also encourages demoralized law enforcers to take vigilante justice, to bend rules, to engage in perjury, to frame defendants they believe are guilty, and to tolerate perjury by defendant-informants who are offered freedom for their testimony. If a chronic offender keeps getting off, the temptation is great to plant evidence like drugs or a firearm to get a public menace off the street.

System-wide failure also enables the concealment of cases that are fixed or thrown to appear as simply the system not working, as usual.

System-wide failure can lead legislators to propose empty, ineffective "fixes" such as longer sentences, across the board limits on bail, or restrictions on civil liberties. The role of budget crises, the low tax on alcoholic beverages, the diversion of resources to pointless drug cases, and the failure to tax the production and use of drugs like marijuana, are rarely examined as features that can contribute to system reform and safer streets.

System-wide failure severely limits the ability of any reformer -- whether a mayor, a new district attorney or a new police chief -- from fixing the system. A mayor may pick the police chief, but she doesn't control the independently elected district attorney, the judges or judicial administrators.

Paraphrasing the wise observation of a criminal justice researcher after evaluating a successful experiment in probation management, "It is easier to change the behavior of hard core drug addicts than it is to change the behavior of criminal court judges!" Lawyers and judges are deeply committed to doing business the way it has always been done.

To achieve change is possible. But it will require sustained pressure from the business community, church leaders, and a broad range of civic leaders. Don't look to the usual actors in the criminal justice system to identify or execute the necessary change.

I used to live in Philadelphia more than 30 years ago when I was actively practicing law in Pennsylvania. My car was stolen from in front of my home in the Mount Airy neighborhood one night. The chop shop's accomplices worked in the police department. In order to dispose of my stripped car, its stolen status was deleted from the police department's computerized database.

Good luck, Philadelphia!

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Wednesday, December 09, 2009

An officer's death 25 years ago fighting heroin dealers in Baltimore

Baltimore Sun columnist and blogger Peter Hermann reports on a commemoration of the murder of Officer Marty Ward. He notes how little has changed!

He also laments a cause of the failing strategy which is that police, prosecutors and judges have no common objective for what they are attempting to accomplish with the criminal justice system. Making arrests is a truly pointless activity when the arrests are detached from what the courts are going to do. Aside from the futility of the economics, the mismanagement of criminal justice resources is also a major part of the failure of our drug policy.

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