Congressional Lawmaker Give Up Attempt To Dump Qualified Immunity In Police Reform Efforts

from the actual-accountability-is-still-just-a-dream dept

The judicial construct known as qualified immunity will continue to make it harder for people to obtain redress for rights violations… at least for the time being. While there has been a more sustained movement to reform law enforcement across the nation, thanks to cops doing the sort of stuff they've been doing for decades, qualified immunity seems particularly bulletproof.

It probably seemed like a good idea at the time. It provided government employees a way to avoid being entangled in frivolous litigation based on unsustainable allegations of rights violations. But since that point, it has morphed into an easy button for civil suits, a route cops can use to escape accountability for actual rights violations so long as they violate rights in a way courts haven't previously declared an obvious rights violation.

Last year, as protests against police brutality raged around the nation, federal legislators offered up a reform bill that would have altered qualified immunity, changing it from a de facto defense to something officers would actually have to prove in court. Rather than just offer up a motion to dismiss based on qualified immunity, officers would have to show their rights violations were performed in good faith, using more than a couple of boilerplate sentences. Evidence and justifications would need to be offered and, given the lack of an early out, more civil rights cases would subject officers to a jury of their peers, rather than a rote recitation of Supreme Court decisions before granting a dismissal.

Of all the things cops want to hold onto, qualified immunity is at the top of the list. Their legal reps -- housed in numerous police unions around the nation -- have an even greater desire to see this doctrine remain intact. These two entities hold a lot of power, and have held this power for years. And there's a certain contingent of legislators, at every level, who will never do anything that might be perceived as being anti-cop. So, the struggle continues. And, for the moment, hopes of seeing qualified immunity rolled back at the federal level have died along with the reform bill that once threatened this extra right granted to government employees.

Here's Marianne Levine and Nicholas Wu with more details for Politico.

Police reform negotiators are no longer considering changes to a controversial legal doctrine known as “qualified immunity," according to three sources familiar with the matter.

Qualified immunity, which shields police officers from civil liability for misdeeds, has remained one of the main points of contention in the police reform negotiations. It being taken off the table could make the final product tough to sell to progressives, who want to see it scrapped altogether and have been outspoken about their demands to change the doctrine. But Republicans have been firm that they have no interest in getting rid of qualified immunity.

What's being offered now is a "slimmed down" version. It appears it only needed to lose the qualified immunity alteration to get back to its fighting weight. Republicans refuse to budge on this point, making it all but impossible to move forward with the bill with this intact.

Some have suggested simply shifting the legal burden from cops to their employers in hopes of reducing police union opposition to qualified immunity reform. But that wouldn't solve the problem. It would only relocate it. And it would codify qualified immunity, making it that much more difficult to roll back in the future. As of now, it's solely a construct of the Supreme Court, albeit one that has considerable power.

For the moment, qualified immunity remains alive and well, an enabler of rights abuses by government employees. As long as it remains alive, cops will continue to abuse rights with near impunity. But, as long as cops continue to do that, they will continue to provide more motivation and ammo for those seeking to strip away this immunity judges have granted to far too many dangerously underqualified law enforcement officers.

Filed Under: civil rights, congress, criminal justice reform, police, police reform, qualified immunity

District Attorneys Have Figured Out How To Turn Criminal Justice Reform Efforts Into Revenue Streams

from the cash,-money,-records dept

Reform efforts targeting cash bail, plea deals, and life-altering criminal charges have occasionally hit on the idea of pre-trial diversion. In exchange for payment and possible an educational class or two, people now have the possibility of satisfying their obligation to the government while keeping their criminal record clean.

It sounds like a good idea. But there's a huge gap between the theory and the practice. In some cases, corporations like Walmart have inserted themselves into the criminal justice system, freeing shoplifters of criminal charges provided suspects pay the store a few hundred dollars and attend mandatory "don't be a criminal" classes. Unlike the government version, there's no chance you'll be found innocent by a jury of your peers. If Walmart accuses you, you pay the fines, do the classroom time, or get hit with criminal charges anyway.

Elsewhere, government agencies are moving forward with pre-trial diversion programs. It makes a limited amount of sense. People don't want to go to jail. And prosecutors don't necessarily want to put in the prosecution work for every rinky-dink case cops toss their way. Yes, there's not a lot of due process in it, but there really isn't much in the system anyway, not when most criminal accusations result in plea deals, rather than jury trials.

These programs could result in positive outcomes for accused citizens, who are able to keep their criminal/driving records spotless despite being cited or arrested for violations. Unfortunately, the programs are being warped to serve prosecutors, rather than the public, as Jessica Pishko reports for Politico.

In Louisiana, the Rapides Parish District Attorney's office asked for $2.5 million in funding from the cash-strapped parish. The treasurer, Bruce Kelly, dug into the DA's numbers to see what had caused this shortfall. Kelly saw a steady decline in the funds collected by the DA's office for court fines and traffic tickets. He also saw an office in good physical condition with a fleet of new cars. None of this added up. So, Kelly dug deeper.

Kelly went through old state audits and other public information, and came to the conclusion that Terrell’s office was bringing in plenty of money but keeping it for itself.

He was right. Under [District Attorney Phillip] Terrell, the DA’s office, as shown by public documents, had ramped up its “pretrial diversion” program, also sometimes called “pretrial intervention,” or PTI. As the website for the Rapides Parish DA’s office explains, the program provides “nonviolent offenders an opportunity to avoid conviction and incarceration” through “tailored” agreements in which the offenders pay money in exchange for their charges being dropped and their cases dismissed. In the program’s simplest form, instead of receiving and paying speeding tickets, offenders were paying fees not to get tickets. And those fees were going directly to the DA’s office—whose website features a prominent MAKE A PAYMENT button.

Ah. So the "diversion" in "pre-trial diversion" refers to the diverting of funds directly from citizens to the DA's pockets. Unlike other areas of the state, diversion fees collected by the Rapides Parish DA go to the DA, rather than a general fund that might make this repurposed reform effort a bit more palatable. But it doesn't, so the first thing you see at the DA's website is a payment button.

This resulted in a lawsuit filed by the parish against the DA's office. The lawsuit contained more details about DA Terrell's personal enrichment scheme.

In 2017, according to the suit, Terrell’s office had brought in $2.2 million through PTI fees—more than 10 times what the previous DA had captured from diversion fees annually—by charging dismissal fees that ran from about $250 for traffic tickets, $500 for misdemeanors and $1,200 to $1,500 for felonies. Those rates were substantially higher than those of the previous district attorney, according to Kelly.

For years, DA's offices have just been leaving this money on the table. Sure, collecting fines and fees is cool, but what's really cool is giving members of the public the dubious opportunity to pay money for fewer due process protections. The DA's office spends less on prosecutions and collects more money -- none of which it has to share with other government agencies.

This isn't just Rapides Parish or Louisiana. It's all over the nation. Whatever the public sector hasn't already stumbled upon, private companies are pitching to prosecutors. It works well enough prosecutors are sort of getting out of the prosecution business. And it may actually help a few people avoid having a momentary, stupid mistake disrupt their futures.

But it's mainly just a cash grab -- one that's more lucrative than over-enforcement and over-zealous prosecution. Government agencies getting shafted by DAs hijacking revenue streams should be angry enough to sue about it. I mean, the public won't necessarily come out ahead, but at least they'll be equally screwed by a number of agencies, rather than a single office with an outsized "MAKE A PAYMENT" button.

Filed Under: criminal justice reform, district attorneys, pre-trial diversion, profit

Pennsylvania Legislators Quickly And Quietly Passed A Law That Strips Power From Its Reform-Minded DA

from the dirty-deeds-done-with-amazing-alacrity dept

The residents of Philadelphia elected Larry Krasner as their new DA in 2018. Krasner promised reforms to the criminal justice system. And he delivered. He secured 33 resignations from prosecutors and staff who didn't feel they could back his reforms. Shortly after this, he received the best possible (inadvertent) endorsement for his reform efforts, one that took the form of criticism from the head of the local police union.

Krasner eliminated cash bail for nonviolent defendants and made it clear he would not tolerate misconduct or abuse by police officers. More importantly, he did more than talk. Two officers were criminally charged for performing an illegal stop of a pedestrian and Krasner secured an indictment from a grand jury against a cop who shot an unarmed man in the back.

Local law enforcement isn't happy. Neither are many politicians. As Akela Lacy and Ryan Grim report for The Intercept, moves have been made to blunt Krasner's reform efforts.

Lawmakers in Pennsylvania have quietly muscled power away from reformist District Attorney Larry Krasner, passing new legislation giving authority to the state’s attorney general to prosecute certain firearms violations in Philadelphia — and nowhere else in the state. The provision will expire in two years, or just after Krasner’s first term ends.

The bill silently sped through the legislative process. It was referred to the Judiciary committee on June 11th and signed into law by the governor on July 2nd. That's amazing turn-time for a bureaucracy. It appears there are plenty of state legislators who prefer their prosecutors to be hard-nosed punishers, rather than actual arbiters of justice who realize the normal way of doing things (cash bail, stiff sentences, over-prosecution of minor crimes) contributes very little to anyone's idea of "justice."

Krasner's office has responded by pointing out the obvious.

In a statement, Krasner’s office said the move is an attempt by the legislature to undermine the will of voters who turned out in record numbers to elect him. “District Attorney Larry Krasner was elected by an overwhelming margin to push for badly needed criminal justice reforms in one of the most highly incarcerated big cities in the country, and he has serious concerns about what Act 58 does, the potential precedent it sets, and what it signifies for the justice movement at large,” said spokesperson Jane Roh, referencing the legislation the new law amends.

Unfortunately, sometimes you have to point out the obvious to put something on the record in black-and-white -- something the legislators who hastily shepherded this bill through the state legislature can't ignore. And there's more to it than a bunch of legislators yearning to stick it to the new reformer. It appears some legislators were completely unaware targeting Krasner was the goal of this legislation.

Multiple legislators made statements to The Intercept indicating the version the House approved did not match the Senate version, which was apparently surreptitiously changed to narrow the focus of the bill to Philadelphia and Krasner in particular. The version these legislators voted for gave smaller towns better access to attorney general resources. The final bill does none of that. All it does is wrest power away from Krasner and hand it to the state's AG.

Meanwhile, the AG's office is claiming this has nothing to do with Krasner -- whose power it preempts -- and everything to do with the city's gun violence problem. But this is bullshit because the problem the AG's office and supportive legislators have with Krasner's exercise of prosecutorial discretion is that he exercises it too often.

Supporters of the legislation say Philadelphia was singled out not because of Krasner, whose office would still technically have jurisdiction over the offenses, but because the city is home to the bulk of the state’s gun violence. “The Philadelphia DA continues to have the authority to prosecute these crimes, should he decide to start enforcing the law,” Republican Rep. Rob Kauffman, who sponsored the bill and worked directly with White to craft the amendment, wrote in a statement to The Intercept. “This wasn’t done statewide because prosecuting these gun offenses doesn’t seem to be a statewide issue.”

If Krasner passes on gun cases, the AG can now prosecute instead. Prosecutorial discretion means nothing when another prosecutor can push cases dropped by a city DA. The city has found one way to undermine a DA who actually changed things. I'm sure they'll keep experimenting until they can undo the good he's done.

Filed Under: criminal justice, criminal justice reform, da, larry krasner, pennsylvania, philadelphia, prosecutors