Do You Want A Police State? Because This Is How You Get A Police State

from the MARTIAL-LAW-[WIP] dept

AND NOW, A WORD FROM OUR NEW PRESIDENT:

One of the fundamental rights of every American is to live in a safe community.¹ A Trump Administration will empower our law enforcement officers to do their jobs and keep our streets free of crime and violence. The Trump Administration will be a law and order administration. President Trump will honor our men and women in uniform and will support their mission of protecting the public. The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it.

^{1 There is no such right. But that doesn't stop police defenders from invoking it, like this police union rep defending the burning of a toddler with a flashbang grenade:}

^{You have to draw the line between your right as a citizen to privacy and a community's right to live in a crime-free environment. You can't have them both.}

But is the "anti-police atmosphere" really "wrong?" Let's ask the federal government.

DOJ Civil Rights Investigation of the Albuquerque PD, 2014

[O]fficers used deadly force against people who posed a minimal threat, including individuals who posed a threat only to themselves or who were unarmed. Officers also used deadly force in situations where the conduct of the officers heightened the danger and contributed to the need to use force…

Officers also often used Tasers in dangerous situations. For example, officers fired Tasers numerous times at a man who had poured gasoline on himself. The Taser discharges set the man on fire, requiring another officer to extinguish the flames. This endangered all present.

DOJ Investigation of the Cleveland PD, 2014

Officers also use less lethal force that is significantly out of proportion to the resistance encountered and officers too often escalate incidents with citizens instead of using effective and accepted tactics to de-escalate tension...

At times, this force appears to have been applied as punishment for the person's earlier verbal or physical resistance to an officer's command, and is not based on a current threat posed by the person. This retaliatory use of force is not legally justified. Our review also revealed that officers use excessive force against individuals who are in mental health crisis or who may be unable to understand or comply with officers' commands, including when the individual is not suspected of having committed any crime at all.

DOJ Civil Rights Investigation of the Ferguson PD, 2015

[O]fficers frequently make enforcement decisions based on what subjects say, or how they say it. Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents—sometimes called “contempt of cop” cases—are propelled by officers’ belief that arrest is an appropriate response to disrespect...

FPD officers believe criticism and insolence are grounds for arrest, and... supervisors have condoned such unconstitutional policing...

Many officers are quick to escalate encounters with subjects they perceive to be disobeying their orders or resisting arrest. They have come to rely on ECWs, specifically Tasers®, where less force—or no force at all—would do. They also release canines on unarmed subjects unreasonably and before attempting to use force less likely to cause injury. Some incidents of excessive force result from stops or arrests that have no basis in law. Others are punitive and retaliatory.

DOJ Civil Rights Investigation of the Baltimore PD, 2016

Officers frequently resort to physical force when a subject does not immediately respond to verbal commands, even where the subject poses no imminent threat to the officer or others…

BPD uses unreasonable force against people who present little or no threat to officers or others. Specifically, BPD uses excessive force against (1) individuals who are already restrained and under officers’ control and (2) individuals who are fleeing from officers and are not suspected of serious criminal offenses…

DOJ Civil Rights Investigation of the Chicago PD, 2017

We found that officers engage in tactically unsound and unnecessary foot pursuits, and that these foot pursuits too often end with officers unreasonably shooting someone—including unarmed individuals. We found that officers shoot at vehicles without justification and in contradiction to CPD policy. We found further that officers exhibit poor discipline when discharging their weapons and engage in tactics that endanger themselves and public safety, including failing to await backup when they safely could and should; using unsound tactics in approaching vehicles; and using their own vehicles in a manner that is dangerous...

We reviewed instances of CPD using less-lethal force, often Tasers, including in drive-stun mode, against people who posed no threat, and using unreasonable retaliatory force and unreasonable force against children.

And here's more, in officers' own words. Here's an officer's greeting to a veteran who found his house surrounded after a mistaken suicide hotline call:

I don’t have time to play this constitutional bullshit. We’re going to break down your door. You’re going to have to pay for a new door.

Here's a police impound lot staffer, responding to the questions of a man whose car was unconstitutionally seized:

When Mr. Zullo asked the defendant’s employee why he had to pay for the tow, the defendant’s employee told him that the tow cost was Mr. Zullo’s fault for exercising his rights.

And here's an unnamed officer accosting someone for filming prisoner transfers from a public sidewalk:

You must be doing something wrong if you invoke your rights.

In exchange for a fake right, the Trump Administration is apparently willing to sacrifice citizens' actual rights. And hand out even more rights to an already-well-protected group. The only parts of the DOJ that don't actively make American law enforcement worse will be the first against the wall.

At the Department of Justice, the blueprint calls for eliminating the Office of Community Oriented Policing Services, Violence Against Women Grants and the Legal Services Corporation and for reducing funding for its Civil Rights and its Environment and Natural Resources divisions.

And if martial law's your kink, the Donald has you covered:

Until Americans are more willing to lift police morale, Trump's administration will ensure those in charge of morale-lifting beatings are fully-backed by the US government.

Filed Under: civil liberties, civil rights, criminal justice, law and order, police state

DOJ Pretty Sure The Problem With The Criminal Justice System Is Everyone Else

from the so-many-feelz dept

Earlier this year, Judge Alex Kozinski went much further than his one-off comments in judicial opinions to take the prosecutors to task for… well, pretty much everything. The "epidemic of Brady [exonerating evidence] violations" he noted in 2013's USA v. Olsen decision was just the leadoff. Kozinski teed off on faulty forensic evidence (comparing arson "specialists" to "witch doctors"), the way the "first impression" almost always favors prosecutors (who get to present their case first in criminal trials), and the general unreliability of eyewitness testimony, which is often portrayed as infallible when it's the goverment presenting the witnesses.

Several months later, the Department of Justice -- home to a great many prosecutors -- has finally responded. And its feelings are terribly hurt.

Federal prosecutors, who Judge Kozinski actually described in glowing terms, took offense at the fact they are not considered infallible by the Judge. And in the last few weeks, they have made their hurt feelings known.

Andrew Goldsmith, National Criminal Discovery Coordinator at the Department of Justice, and John Walsh, United States Attorney for the District of Colorado, wrote a letter to the Georgetown Law Journal expressing their displeasure with Kozinski’s contribution to the journal. Rather than take the opportunity to join in Kozinki’s call for a more careful justice system, Goldsmith and Walsh demonstrated a stunning lack of awareness about what they do and how often it goes wrong these days.

According to this defensive group of prosecutors, Kozinski's "provocative preface" was certainly food for thought for whoever Kozinski was referring to, but not them, because federal prosecutors are upstanding men and women whom the judge has insulted deeply.

While the preface raises several points that merit discussion, such as the reliability of certain forms of evidence, Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country. His preface seemed to question not only the integrity of our agents and prosecutors, but also the government’s capacity to self-correct in the (very small) minority of cases when someone falls short.

The problem is, Kozinski is one of a very few judges to question the integrity of prosecutors. And for all the umbrage being hauled in by the semi-truckful, Kozinski was rather restrained when discussing federal prosecutors. Still, the DOJ cannot sit idly by while someone suggests a few prosecutors don't play by the rules and that the rules themselves are faulty. So, it does what the DOJ always does in these situations: defends the honor of the (not even directly) accused. When the DOJ takes down a local police force for misconduct or abuse, it always makes sure to rub the bellies of the police force at large before getting to the bad stuff.

In this case, the bad stuff preceded the defensive statements from the DOJ, which now have to stand alone.

We have both worked with many prosecutors during our combined thirty-three years at the Justice Department. We have served as line prosecutors and supervisors, and now hold positions with national responsibility. Throughout our careers, what has always struck us is the professionalism, integrity, and decency of our colleagues. They care deeply about the work that they do, not because they are trying to rack up convictions or long sentences, but because they seek to ensure that justice is done in each and every case they handle. This extends to the seriousness with which they take their discovery obligations. Our prosecutors comply with these obligations—because they are required to do so and because it is the right thing to do. It is a principle embedded not only in the Department’s internal rules, but in the Department’s culture.

And being so good is oh so exhausting.

At the Department of Justice, we recognize our responsibility to work tirelessly to improve the work that we do, and to enhance the fair administration of justice.

In support of its assertions, the DOJ claims only a small handful of prosecutions have resulted in the courts calling it out for abusive actions. But that does nothing to diminish Kozinski's points. All it does is distract from them, as Fault Lines blogger Josh Kendrick points out:

Indeed, there are far more cases than the few Kozinski discusses that demonstrate an issue with the prosecution disclosing favorable evidence. And when the evidence comes to light, the DOJ rarely admits to the problem. Instead they argue the evidence wasn’t important, wasn’t available, wasn’t in their specific office, didn’t affect the outcome of the case, or could have been found by the defendant on his own. And the courts are usually cool with any of those arguments. Because once somebody is convicted, the courts hate to unconvict them.

[...]

They don’t actually deny the problem, they create a decoy argument. Sure, there are probably a lot of prosecutors that work very hard to make sure they meet their obligations. In fact, that is exactly what Kozinski meant when he called them “fair-minded, forthright and highly conscientious.” But that doesn’t mean there aren’t some that aren’t. And the enormous amount of power wielded by prosecutors, and especially federal prosecutors, means there is no minimum number of bad apples we should accept.

Furthermore, even if the DOJ is staffed with the best prosecutors in the nation, they're still there to perform a certain task. The DOJ calls it "justice," but in reality it's to obtain convictions. There's a lot of area between "justice" and "jail sentences," but prosecutors rush across this open ground to obtain the latter. The DOJ doesn't second-guess its actions and if others do, it second-guesses their conclusions.

Because of its focus, even the best prosecutors who've never committed a Brady violation in their careers are still part of the problem. And that problem will never be addressed if prosecutors immediately elevate their hackles whenever someone suggests their methodology, tactics or submitted evidence might be questionable. Great people can be great prosecutors and still be part of the problem Kozinski wrote about. The culture (for lack of a better word) doesn't exactly encourage retrospection or restraint, as Above the Law's Matt Kaiser points out:

To be clear, I do think the vast majority of AUSAs are fundamentally good people who are trying to do what they do with integrity. I also think that the vast majority of AUSAs are bright aggressive lawyers who want to win.

Federal prosecutors aren’t trained to read rules or facts to give an edge to the other side. They don’t high-five each other for giving someone suspected of a crime the benefit of the doubt. They don’t send at-a-boy emails to their colleagues for the exercise of discretion in favor of leniency.

It isn’t a question of whether federal prosecutors are good people; it’s whether these people, trusted with enormous power, are exercising that power in the way they ought.

This is the situation everywhere, not just at the DOJ. Federal prosecutors are bitterly licking their Kozinski-inflicted paper cuts and failing to see the larger point of his essay. There are problems in the justice system -- some inherent, some more deliberate. But no one on this end of the equation wants to discuss them. It's left to judges to correct prosecutors' misconduct and it just isn't enough. Too many defendants are talked into plea agreements pre-trial or simply dissuaded from challenging their prosecution by the amount of time and money that must be expended in an effort that's far from guaranteed.

Misconduct goes ignored by some judges and, in a majority of cases, by the offices these prosecutors work for. Convictions are the goal and prosecutors aren't praised for showing restraint, leniency or anything else but prosecutorial efficiency. Corners will be cut, shaky evidence will be backed by questionable experts, and even the most dubious prosecutions seem to have better than a 50% chance of resulting in a conviction. Why would they change? Their side has a lion's share of the "wins."

Filed Under: alex kozinski, andrew goldsmith, criminal justice, doj, prosecutors

Compare And Contrast Prosecution And Sentences Of David Petraeus With Government Whistleblowers

from the high-court,-low-court dept

Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that's less than Petraeus receives for giving one speech.)

The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists—sometimes for disclosing information much less sensitive than Petraeus did. It's worth remembering Petraeus' leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here's how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:

The books "collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States."

While Petraeus' supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail. 

Let's also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn't charged for lying at all. As the New York Times pointed out today, "Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers." Just apparently not former CIA directors.

Petraeus' deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency—Jeffrey Sterling. In Sterling's case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News' James Rosen, has also objected to the "profound double standard" in Petraeus' case versus Kim's.

To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus' case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.

Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department's reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:

[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.

The Justice Department's fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It's not one of the elements of the crime, so prosecutors don't have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers "if you're going to leak classified information, make sure it's something really classified." 

It's possible that Petraeus' deal was so egregious that this could be good news for other leakers. The Daily Beast's Kevin Mauer argued as much earlier today:

Petraeus's relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.

However, given the government's unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face. 

Reposted from the Freedom of the Press Foundation

Filed Under: criminal justice, david petraeus, high court, leakers, leaking, low court, sentences, whistleblowing

Mandatory Sentencing Guidelines Have Nothing To Do With 'Justice'

from the throwing-people-away dept

One of the many problems with America's criminal justice system is the use of federally-mandated sentencing guidelines. These policies take a one-size-fits-all approach to sentencing, stripping away the chance of any leniency being applied by the presiding judge. The guidelines demand ridiculously lengthy prison terms for certain crimes -- the foremost being anything drug-related. Following close behind it are mandatory sentences for sexual offenses. What's meant to act as an effective deterrent has instead become an easy way to lock up people for far longer than their criminal activity would warrant.

One judge found out just how out of touch federal sentencing guidelines are when he did something out of the ordinary: he asked the jury's opinion. (via Simple Justice)

The crime was one of the most universally-loathed: the collection and distribution of child porn. And the perpetrator was completely unsympathetic.

When government agents used cutting-edge software to hack into the hard drive of Ryan Collins’s computer, they found more than 1,500 sexually-explicit images of children, some of whom were younger than twelve. The agents also discovered file-sharing programs, indicating that Collins may have been distributing the pornography online.

Collins was unrepentant, even after a jury in Cleveland, Ohio convicted him of possessing, receiving, and distributing child pornography. The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.

Even when faced with someone as apparently damnable as Ryan Collins, the jury's suggested sentence was lower than the sentencing guidelines called for. Far lower.

Before dismissing the jury, [Judge Gwin] asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.

This admittedly-small sampling shows that mandatory sentencing guidelines do not match up -- at all -- with what the public believes to be fair and just. These guidelines are supposedly written on behalf of the general public, with Congress and other government bodies acting to "protect" us from drug dealers, sex offenders, hackers, etc. by locking them away for extended periods of time. But it appears the public may still feel "protected" without putting child porn enthusiasts behind bars for a quarter of a century.

And it's not just Judge Gwin's peculiar query -- although he appears to be the first to make this line of questioning public. Other judges have heard similar answers from jury members, behind the scenes.

Iowa district court judge Mark W. Bennett:

"Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence -- every time – even here, in one of the most conservative parts of Iowa, where we haven't had a 'not guilty' verdict in seven or eight years – they would recommend a sentence way below the guidelines sentence."

Why wouldn't judges ask the jury's opinion on sentencing? After all, it's supposedly composed of the accused's "peers." They're entrusted with determining guilt or innocence, but somehow can't be trusted to offer up a worthwhile opinion as to the "reasonableness" of the sentence recommended by Congress? Those intimately familiar with the details of the case should at least be trusted to give their view on the ensuing sentence. Their view is no less informed than that of their representatives, who mostly deal with criminals and the criminal justice system in the abstract -- and are often far more inclined to appease the prosecutorial half of the equation than appear to be "soft on crime."

Judge Gwin's informal jury straw poll shows that the word "justice" -- in the context of mandatory sentencing guidelines -- is nothing more than a prosecutorial term of art, completely removed from the actual definition of the word.

All those people being sentenced to decades in prison under the pretense that it’s what society wants and needs is revealed, as Judge Bennett says, as baloney. While the Sentencing Commission won’t heed the defense lawyer perspective, perhaps a few federal judges making this point clear might carry sufficient weight to end the needless destruction of a life or two under the draconian guidelines. For the rest, maybe they will start taking the admonition of § 3553(a), “sufficient, but not greater than necessary.” seriously.

As for Judge Gwin, he did what he could in response to this gaping disparity by sentencing Collins to the minimum allowed under the guidelines -- five years, or roughly four years longer than the jury felt was reasonable or just. The prosecution had recommended the maximum -- 27 years -- a number so far removed from the public's sense of justice it may as well have been a number pulled out of thin air by a government lawyer who had stumbled into the wrong courtroom.

We're imprisoning people at an alarming rate in this country, and the nation's unofficial hobby shows no sign of slowing. And we're doing it for far longer than the public itself feels is necessary. We're destroying lives by taking criminals out of circulation for decades at a time, based on little more than Congressional appeasement of professional moral panickers and the law enforcement officials who love them. The fact that so many of our prisons are now run by private corporations makes the situation worse, because nothing pays better -- or more consistently -- than cell after cell of long-term "tenants."

Filed Under: criminal justice, justice, mandatory sentencing, sentencing, sentencing guidelines

District Superintendent Claims 14-Year-Old Student Bullied Her By Using Her Photo In A Criminal Justice Class Project

from the the-only-adult-here-is-the-one-pulling-her-daughter-out-of-this-district dept

14-year-old Lucero Tovar's project for her criminal justice class was supposed to depict the inside of a courtroom. In an unexpected turn of events, her diorama instead proved an unlikely theory: there's a child running Texas' Santa Maria Independent School District.

A 14-year-old Texas student was suspended last week after she created a diorama of a courtroom using pictures of school board members to represent various people in her project, including a prosecutor and "fake" defendant.

The assignment, which was due Oct. 20, was to create a miniaturized 3D courtroom setting, she told KGBT-TV.

She decided to use photos of school district personnel and elected board members, which she printed out from the Santa Maria Independent School District’s website.

Tovar also used photos of family members and relatives, along with various dead presidents, to ensure every "person" in her diorama had a face.

But one of the people "depicted" in her diorama had a problem with her face being used: Santa Maria ISD superintendent Maria Chavez.


As you can see from this screengrab of KGBT's report, Chavez's face was applied to the "defendant's" body.


Somehow, Superintendent Chavez was informed of Tovar's criminal justice project, resulting in Tovar being called to her school's office.

“The principal just looks at me and is like, ‘You know why you're in here right?’” Tovar explained. “I said no. She said, ‘You're harassing people.’ And I was like, ‘Huh?’ For me, I was like, ‘What?’"

Tovar adds: “She just told me that I was harassing and that she's going to suspend me for 4 days.”

Tovar's mother -- perhaps realizing there would be no reasoning with the childlike-but-in-all-the-wrong-ways entity running the district -- pulled her child from the school rather than deal with the ridiculous suspension.

If you think I'm being too harsh on Maria Chavez (and by extension, everyone under her command), read on. The suspension notice obtained by KGBT says the following:

You are hereby advised that Lucero Tovar is assigned an In-School-Suspension (ISS) from Santa Maria High School for the following Code of Conduct violation(s): damaging innuendo message on class project to another’s reputation — district personnel.

After dodging KGBT reporter Ryan Wolf for an entire day, Maria Chavez finally answered one of his phone calls and made the following statements.

Chavez did not want to appear on camera but said over the telephone how she felt Tovar’s depiction of her and others was “bullying” to personnel...

Chavez said she found the rationale behind her face on the defendant in an orange jumpsuit as “politically” motivated, “distasteful” and a complete deviation from the project’s “requirements."

And while Chavez found it “distasteful,” she told Wolf none of the board members, whose faces are also featured in the project, complained to her about harassment or a damaged reputation.

Chavez also claims Tovar's project caused a "disruption," which is a really lame way to shift blame to the victim. (Meaning the actual victim -- Lucero Tovar -- and not the fake victim who's supposed to be acting like an adult.) There would have been no disruption if school personnel hadn't somehow arrived at the conclusion that Tovar's use of district personnel photos was a form of bullying.

What's even sadder than Chavez's gratuitous display of power is that she continues to maintain the pretense that this is really about Tovar's unwillingness to follow the project's instructions. This assertion (and nothing to back it up) leads to non-sequiturious paragraphs like the following:

There was no written description required, according to Tovar.

Tovar said she was just trying to be creative with the assignment and used photos of her relatives as well.

Wolf asked the superintendent if the teacher listed any requirements to students ahead of the assignment to which she responded “yes.”

Unless the instructions specifically stated that no photos of district personnel were to be used, then this assertion is a painfully stupid attempt at misdirection. Even if there were certain instructions Tovar didn't follow, the worst she should have expected was a low grade from her teacher, not accusations of bullying from the district superintendent and a suspension.

What makes it even stupider is Chavez's actions following the assertion that Tovar didn't follow the project guidelines.

[Chavez] also said [the project instructions] would be faxed over to Action 4 News around noon time.

They were never received as of 11 p.m. Wednesday.

Maria Chavez may not have liked her face being pasted to an orange jumpsuited body, but the proper response for someone in her position would have been to tell the teacher or administrator that brought it to her attention to find something productive to do with their time. Instead, she chose to be the victim in a situation that clearly wasn't crying out for anyone to fill that role. To become the victim, she had to turn a 14-year-old student into someone capable of intimidating the top of the district's organization chart. Now, because she chose to fully inhabit the victim role, she's exposed herself as someone incapable of filling the role of district superintendent and unworthy of the trust inherent to the position.

Filed Under: criminal justice, diorama, lucero tovar, maria chavez, school project
Companies: santa maria high school