The so-called FOSTA-SESTA legislation aimed at curbing sex trafficking has increased the vulnerability of women in tribal lands for whom sex work is often the only way of earning a living, a Native American call-in show was told Thursday.
A law signed by President Donald Trump this spring to curb sex trafficking has created new risks for sex workers in tribal lands, Native American women and advocates said Thursday.
The women, speaking on Native America Calling, a live call-in program dedicated to issues specific to Native communities, charged that the so-called FOSTA-SESTA legislation has made life more “dangerous” for sex workers—and has left Native American women especially vulnerable.
“The intention sounds positive, but the impact that [the law] has on people who are being trafficked and on sex workers is pretty negative,” said Becki Jones, a sexual health educator for Planned Parenthood of The Rocky Mountains, and a member of the Diné tribe.
But, said Jones, FOSTA-SESTA’s restrictions on commercial sex sites effectively removed sex workers ability to the “screen for particular clients that might be super violent.”
By shutting down what amounted to protective online resources for sex workers, the measures in effect closed off a source of networking and mutual aid for women whose occupations often left them victims to violent predators.
The show’s guests said many Native American women turned to sex work because of the scarce opportunities for other work in a climate where tribal values largely empower men.
With few other work options open to women, they said sex work deserves legal protection and must be de-stigmatized.
“The stigma is definitely hard to talk about and combat,” said Jones. “I hear it in the classroom, too. One way I can combat and stand up for sex workers is to help squash myths (such as) talking about how sex workers are ‘dirty’, or have unprotected sex, when in general a lot of sex workers take really good care of themselves, of their bodies, and of their health.
The central intention of the law is to crack down on online prostitution rings. Its supporters claim that one key measurement of success will be its ability to reduce female homicide rates resulting from Craigslist personals ads.
Nonetheless, participants in the “Native America Calling” program said, the law has also had the consequence of forcing sex workers to revert to street walking and other high-risk methods of the sex trade.
“There are not a lot of resources for sex workers, and a lot of law enforcement were getting tips from these websites, as well,” said Jones.
Online sex work allows a worker to screen the individual requesting sex, and gives the worker the agency of selecting her client, rather than being forced to accept any and all requests, she said.
Until the passage in April of FOSTA-SESTA, Section 230 of the 1996 Communications Decency Act ensured that user-generated content that was posted to websites was not the legal responsibility of the website to police.
Now, under the FOSTA-SESTA laws, websites themselves are responsible for such content. Many websites have thus deleted sexual classified ads and services, consensual or not.
“These new laws are completely dangerous,” said Cheyenne Antonio, another Diné, who is Sex Trafficking Program Coordinator of the Coalition to Stop Violence Against Native Women, and an advocate of legalizing prostitution.
“Sex work is a human right, and the criminalization of sex work was the root of the problem.”
However, none of the guests on show said they would advise or encourage a young person to enter the sex industry.
“The only reason that sex work is more dangerous is because it’s not legally protected,” said Alex Trujillo (of the Diné and Laguna Pueblo), and a trans sex worker.
“There are no laws in place to protect sex workers, and if we face violence we can’t go to the police because prostitution is illegal. We’re being murdered as trans women at really fast rates.”
Alex was raped in high school, and after graduating she became a sex worker.
“My sisters are having to go back to pimps,” she said. “It’s really heartbreaking, and this bill has messed up our lives in ways you can’t imagine.”
Trujillo spoke about the importance of philosophically distinguishing between selling yourself and selling a service.
“It’s like any other form of labor,” she said. “I feel like if we separate selling yourself from selling a service; that’s really important because selling yourself is dehumanizing, but that’s not what sex workers are doing.”
The distinction between sex workers and victims of sex trafficking was a distinction that the program’s guests were eager to point out, as part of raising awareness around sex work and to humanize those who work in the sex industry.
“This bill was put in place by rich white men, and when I was doing in-person escorting, that was 90 percent of my clientele,” said Trujillo. “I feel like the reason this has been done is because if it was legalized there would be ways to trace it back to see, oh, this person paid for sex work.”
Antonio wrapped up the program by describing her organization and the importance of having a conversation with sex workers about on what screening “looks like now that we can’t practice sex work online.”
The organization does street outreach, but Jones said more services are needed, such as “drop-in centers, condoms…we need to share as many resources as we can and maintain our visibility on the streets.”
Two new studies of the impact of state legalization of marijuana offer a mixed verdict. One uncovered an association between legal pot and increased crime clearance, while the other detected a correlation between legalization and the frequency of serious mental illnesses.
While the sale and possession of marijuana remain federal offenses, the state-level impact of legalization on public health and safety has been hotly debated.
Two new studies demonstrate that legalization can be a mixed bag: one finds a correlation between legalization and the frequency of serious mental illnesses, while the other uncovers an association between legalization and increased crime clearance.
Advocates have long asserted that police effectiveness would increase if marijuana were legal, because officers would have more time and resources to devote to other offenses.
The paper, published this month in Police Quarterly, notes significant increases in the clearance rate—the ratio between the number of crimes solved and the total number of crimes recorded by the police—for violent crime in both Colorado and Washington state, the first two states to legalize recreational cannabis, following legalization.
The data did not allow the study’s authors to attribute the increased clearance rate to legalization or to posit why the observed trend occurred. But the timing and the lack of other probable explanations lead them to hypothesize that legalization did indeed enable officers to focus on other crimes.
Notably, national trends remained relatively flat during the time period examined, and there were no kinds of crime in either state for which legalization negatively impacted clearance rates.
The authors of the paper, all from Washington State University, were David A. Makin, Dale W. Willits, Guangzhen Wu, Kathryn O. DuBois, Ruibin Lu, Mary K. Stohr, Wendy Koslicki, Duane Stanton, Craig Hemmens, John Snyder and Nicholas P. Lovrich.
But if legalization boosts public safety, it appears to strike a small but not insignificant blow to mental health.
The prevalence of serious mental illnesses was 0.3 percent higher in states with liberal laws compared with other states once cannabis use was taken into account.
Previous research has linked high levels of cannabis consumption with psychotic disorders. Citing such studies, researchers hypothesize that legalization leads to increased use among state residents, which increases users’ likelihood of developing psychosis.
The study’s authors were Lauren M. Dutra, William J. Parish, Camille K. Gourdet , and Jennie L. Wiley, all of RTI International; and Sarah A. Wylie of the Oregon Health Authority.
Nearly half of Americans currently live in states where marijuana use is legal in some form. Authors from both studies stressed the need for further research to verify their claims and to determine what the effects of legalization truly are.
Elena Schwartz is a TCR news intern. Readers’ comments are welcome.
It’s not just moms and kids who benefit when mothers involved in the justice system are provided with opportunities to serve their sentences under community supervision. Public safety does too, according to a researcher at the R Street Institute, a nonprofit in Washington, D.C.
Although Mayes has finally been reunited with her two children, routine departures from home still cause her children to become anxious and worry that she might not return. Both she and her children bear the pain of her prior absence.
Her story is not uncommon. The most recent estimates from the Bureau of Justice Statistics show that over 147,000 children had a mother incarcerated in a state or federal prison in 2007 – a 231 percent increase from 1991. When you include children with mothers incarcerated in local jails, such as in Mayes’ case, this number increases substantially. The latest counts show that over 99,000 women were incarcerated in local jails at the end of 2015, and almost 80 percent of these women are thought to be mothers.
Alternatives to incarceration ensure that moms don’t miss the monumental or mundane moments that are so important to both mom and child.
Thankfully, Washington state has acknowledged this problem and has made an effort to change these mothers’ situations. In 2010, the Washington Department of Corrections (WDOC) worked with other state agencies and the state legislature to formulate and pass two Parenting Sentencing Alternatives (PSAs); the Family and Offender Sentencing Alternative (FOSA) and the Community Parenting Alternative (CPA).
Similar in purpose to other programs such as drug or mental health courts, Washington’s PSAs were crafted with the specific needs of justice-involved mothers and fathers in mind—as well as their children.
Washington’s FOSA allows judges to sentence eligible parents to a year of intensive community supervision in place of their sentencing. Meanwhile, the Community Parenting Alternative allows eligible parents currently incarcerated to serve the last 12 months of their sentence at home under electronic monitoring and supervision. Both hold parents accountable for their actions while ensuring that the moments missed between parent and child are minimized.
Program results show that it’s not just moms and kids who benefit when a mom is home to see her baby take his or her first steps. Public safety does, too.
According to a fact sheet shared by Washington Department of Corrections staff, over 540 parents have successfully completed one of these programs, with only five percent of those who completed the FOSA program and 12 percent of those who completed the CPA program having since returned to prison on a new felony charge as of December 2017.
The average “return to prison” rate among those who completed the PSA program is a surprisingly low nine percent. While these statistics are not directly comparable to those regarding the general correctional population due to a different measure and timeline of recidivism, this data suggests extraordinary benefits for public safety.
Washington taxpayers are benefiting too. A year-long community-based alternative costs less than multiple years in a jail or prison. And when parents remain at home with their kids instead of returning to a cell, the savings only increase. Moreover, the Bureau of Justice Statistics estimates that approximately 11 percent of incarcerated mothers have a child in the foster care system.
When mothers remain in the community, their kids do too, saving both taxpayer money and children from the additional collateral consequences of being a child in the foster care system.
These mothers may not be an Olympic medalist who missed a precious moment because of intense training. But these mothers are still missing important memories, and their children need them just as much.
Our criminal justice system must aim to hold people accountable in the most effective manner possible. This means remembering that many of the individual confined behind bars in our justice system are parents too, and reminding incarcerated mothers and fathers that a life without crime allows them to be around to see those precious first steps.
Emily Mooney (@emilymmooney) is a justice policy associate at R Street Institute. She welcomes comments from readers.
Staying safe in prison is a daily challenge for Native-American transgender inmates, after the Trump administration rolled back 2012 guidelines issued by Barack Obama. Several provided tales of abuse and discrimination in a “Native America Calling” program Tuesday.
Each time Cathy Kapua, a transgender Native Hawaiian inmate who was serving time in a men’s prison for an offense committed when she was male, was transferred to a new facility in Hawaii’s correctional system, she found herself in an isolation cell.
“The (staff and warden) felt I couldn’t be put in the general population,” she said on Native America Calling Tuesday. “But they were discriminating against me…under the guise that they were protecting me.”
Prison officials claimed that Kapua would be at a greater risk of assault or rape if placed among the male inmates with whom she was housed. But Hawaii state law, which classifies prisoners based on biological sex regardless of how they present or identify, barred her from being transferred to a women’s facility.
Kapua’s predicament was precisely the kind of situation that the Obama administration hoped to address with regulations established in 2012 to protect transgender inmates from violence under the Prison Rape Elimination Act. A guidance memo was issued days before Obama left office on how to handle transgender inmates, noting that transgender prisoners face an “increased risk of suicide, mental health issues and victimization.”
But those protections were rolled back by the Trump administration in May, in response to a complaint from four Christian Evangelical women in a Texas prison. The Bureau of Prison’s Transgender Offender Manual now requires transgender inmates to be housed according to their biological sex, rather than the gender with which they identify, and restricts access to hormone treatments and other gender transition therapies.
The special problems posed to Native American trans inmates by the policy shift were explored in “Native America Calling,” a live call-in program dedicated to issues specific to Native communities, and heard on nearly 70 public, community and tribal radio stations in the United States and in Canada.
Hayley Domingo, a formerly incarcerated student and member of the Navajo tribe, described facing difficulties similar to those experienced by Kapua, adding that during her sentence, she and other trans prisoners had trouble procuring their hormone treatments and other medications.
“They told us we were not allowed to have it because it was cosmetic medicine or something,” she said. “And when we tried to order bras and underwear that we felt comfortable in, we were not allowed to.”
Both women reported abuse at the hands of other prisoners and correctional officers (COs).
On Christmas one year, Kapua described being punched in the face by another inmate while on the phone with her family.
“He said voices were telling him I was the Devil, that I didn’t belong here, that he needed to exterminate me,” she said.
Renee Gray, a Navajo consultant on LGBTQ issues, said she was repeatedly directed to undress in front of guards during her sentence, which she served in a men’s prison.
The day she was first brought to the facility, “I was told to get naked…and really just stand there and have all the men stand there and look at me as well as the COs.”
“When I went to prison I had breasts…the whole prison system had known about it, and COs would pull me aside and want me to strip down to my boxers.”
“Every single day that I worked, I had to get searched,” she said. “Or when I’m walking to the library or something, I would be told to go into a room and strip down.”
“I couldn’t ask why, or say, ‘No, I won’t do that,’ because if I did, it would be insubordination on myself and I would be sent to segregation.”
Max Lucky, an organizer with the Trans Pride Initiative and a member of the Northern Cheyenne and Choctaw tribes, said that prisoners face a tough decision when choosing whether or not to report abuses.
“On the one hand, if you advocate for yourself you could get labeled a snitch,” they said. “But on the other hand, you need to advocate for yourself in order to stay safe.”
The Trans Pride Initiative, which seeks to be a support system “on the outside” for incarcerated trans individuals, is currently challenging a statute in the Texas Family Code that bars those convicted of felonies from changing their names or their gender markers until two years after completing all terms of their sentences.
Though the state claims the statute prevents the formerly incarcerated from changing their identities to evade the law, Lucky said this concern is misguided, as the changes, once processed, are reflected in all legal documents.
Instead, Lucky said the law is a form of discrimination “that extends the sentence for trans people.”
“We can’t get jobs, we can’t access healthcare, we’re made more vulnerable when our gender identity doesn’t match our gender on our IDs or our names, so it places those barriers up,” they said. “And for someone in a lifelong sentence, they’ll never be able to change their name at all.”
Kapua, Gray and Lucky agreed that respecting the dignity of trans individuals is the first step in improving their experiences behind bars. This requires better equipping prison staff to interact with LGBTQ inmates.
“Treat me as a human person, not someone who is less than anyone else,” Gray said.
“COs need to be trained,” she continued, “because they don’t know how to talk to me or even how to refer to me. It was always ‘he, he, he, he.’”
Lucky echoed Gray’s concerns, saying, “There needs to be more accountability and transparency for prison officials and administration to protect trans people from sexual assault and rape, and that starts with giving them basic human dignity: calling them by their correct gender pronouns, calling them by their affirming name.”
Kapua believed that the voices of formerly incarcerated trans individuals could be instrumental in sparking these changes.
She first found her “calling” in advocacy when the Oklahoma facility where she was housed requested that she and other trans Hawaiian inmates teach staff members about the Native Hawaiian culture surrounding mahu (the Native term for LGBTQ) identities.
“That’s when I realized I’m not just standing up for myself,” she said. “I have an opportunity to stand up for other people so protections can be made for them as well. They don’t have to fall into the same pothole that I did.”
Today, Kapua advocates on behalf of transgender individuals like her so that others can be spared the trials she underwent.
“We’re working very hard to make sure…there’s not a double punishment just because of who you identify as,” she said.
Elena Schwartz is a TCR news intern. Readers’ comments are welcomed.
The large volume of information used for so-called “predictive policing” is rapidly changing the way police do their jobs. University of District of Columbia law professor Andrew Guthrie Ferguson says in a Washington Post podcast that it’s also crowding out other strategies for keeping America’s cities safe.
Do Americans need protection from the growing police use of “Big Data”?
According to University of District of Columbia law professor Andrew Guthrie Ferguson, the large volume of information used for so-called “predictive policing” is rapidly changing the way police do their jobs—and is crowding out other strategies for keeping America’s cities safe.
”It affects where they patrol, who they target, and how they approach the people they end up coming in contact with,” Ferguson told Jonathan Capehart of the Washington Post, in a recent edition of Capehart’s Cape Up podcast.
The strategy borrows from a larger industry of data collecting by companies like Amazon and Google that collect all kinds of information on their users.
The new policing tactic puts forth “this idea this idea of quantifying, ‘data-fying’ and controlling communities based on the info they collect.”
Some data can be purchased from data brokers, and police are also developing their own systems to collect it.
“Police are building dossiers of individuals they think are most at risk, what they’re doing online, on social media, YouTube and other sites, and what groups are connected to that,” said Ferguson.
Surveillance data has become an important tool for police as well. New York City has 9,000 linked surveillance cameras, giving police a detailed look at nearly every corner in Manhattan.
“The Domain Awareness system in Manhattan, can go back as far as a month, and look for people wearing Yankee hats, or Giants shirts, look at the time, place, or any cars that come through,” said Ferguson.
Gang databases are being built in New York, as well as Los Angeles. The Los Angeles Police Department (LAPD) has partnered with Palantir, whose data technology was originally used by U.S. intelligence and the military to track terrorists around the globe.
“We’re seeing the same sort of social network analysis used to profile terrorists now coming back to the U.S. to see if we can predict gang members or whatever,” said Ferguson.
While Ferguson admitted data has always been used by police, he noted that it’s being aggregated in different ways through the use of technology. Police can now search for a fragment of a license plate, a tattoo, or even a nickname to find someone in their system.
The LAPD also works with a company called PredPol, which was founded by an anthropologist named Jeff Brantingham. Once he realized there were patterns of behavior between cultures and communities, he and several other academics used an algorithm originally developed for earthquake seismology and applied it to crime.
When asked by Capehart whether all of this was constitutional, Ferguson responded that the public is not very well protected by laws created in a small-data age.
Ferguson said the origins of the Big Data approach are in the 1990s, when then-New York Mayor Rudy Giuliani and Police Commissioner Bill Bratton started CompStat, a program used by law enforcement to keep and aggregate crime data.
Bratton subsequently served as police chief in Los Angeles, where he helped greenlight the first predictive policing test in the city. He brought “precision policing” back with him to New York after he served a second stint as NYPD Commissioner.
In Chicago, police use a so-called Heat List, which ranks how dangerous a person is based on their previous records and other information.
“In Chicago we’re giving people threat scores, from 1 to 500+,” Ferguson said. “So when you get pulled over, there’s a score on the dashboard computer, and you can imagine how a high threat score will affect how the police treat that person.
“The officer will see them by a numerical score that’s based on an algorithm that’s secret, and no one’s ever shown that it proves someone is actually more of a threat or not…Our ‘data-fying’ of threats is changing the relationship between police and individuals.”
When asked why so many police departments are adopting these tactics, Ferguson replied that police chiefs were too easily attracted by technology that promised to protect public safety.
“We’re seeing that in real time right now with Baltimore,” he said. “You have corruption scandals, Freddie Gray protests, bad race relations, so they fire the police chief, and say we’re going to hire one of the architects of LA and Chicago’s predictive policing tech to come here and help us out.
“Whether it’s true or not, it’s an answer.”
While there may not be anything inherently wrong with the technology, it overshadows other kinds of responses to crime, Ferguson said.
“We have risk-identification technology, which shows areas of individuals who are more likely to commit a crime,” he added. “Right now our remedies are policing, but we could build a park in that high crime area, or instead of sending a police officer…send an employer, or a teacher.”
Ferguson said he hoped communities will start to demand more input in the adoption of these kinds of technologies by law enforcement. He pointed to some examples where that’s happened like Seattle, Berkley, Oakland, and outside of Boston.
“I hope the takeaway is that this technology is here, and as citizens we need to start challenging this and have a conversation now before it’s too late.”
Dane Stallone is a TCR news intern. He welcomes readers’ comments.
The spread of marijuana legalization may account for some of the decline, say the author of the study in the Addictive Behaviors journal. But they add more research is needed to understand the role that peer pressure and behavioral problems play in substance abuse disorders among young people.
The prevalence of drug selling among adolescents has undergone a significant downward trend, falling from 4.1 percent in 2002 to 2.3 percent in 2015, according to a forthcoming study published in the peer-reviewed scientific journal, Addictive Behaviors.
At the same time, arrests of the general population due to possession and trafficking of illegal substances in 2005 have grown by three times, when compared to drug arrests in 1980, notes the study.
Subsequently, “incarceration for drug offenses (has) risen even more steeply over the past 30 years.”
To address continued youth involvement with drugs, researchers and youth workers must explore the role that behavioral problems play in substance abuse disorders, the study says.
Adolescents’ peers are major sources of obtaining drugs, indicating the pressure teens face to become involved in usage and/or dealing, according to the authors of the study.
Drug dealing is often linked to other risky and delinquent behaviors among youth, making it an imperative topic of research and point of action in our criminal justice system, explains the study.
In order to examine these trends, the study used responses from 233,435 US youth between 12 and 17, collected between 2002 and 2015 from the National Survey on Drug Use and Health (NSDUH), a national survey of persons over the age of 12 about substance use and abuse (tobacco, alcohol, drugs) and mental health issues.
To acquire this data, participants were asked how many times they had sold illegal drugs in the past year. It is important to note that the drug and alcohol portion of the survey were self-reported, meaning the information collected could be subjected to reporting errors due to poor memory or self-biases.
In addition to the prevalence of drug-selling among youth, the survey also recorded the respondents’ gender and ethnicity (restricted to non-Hispanic White, non-Hispanic African American and Hispanic) in order to consider additional impactful factors.
The researchers ran a statistical analysis on the prevalence of year among the general sample and then reran the measure to stratify by gender and racial subgroups.
The results found a 40 percent reduction in the prevalence of reported drug-selling among youth—which they called a significant decrease from a 4.1 percent prevalence rate in 2002 to 2.3 percent in 2015.
More precisely, this decrease in drug-selling was predominately identified in males across all racial groups. Although a significant reduction in selling was found among girls who did not use an illegal substance in the last year, were African American, or were between 15 and 17 years old, the overall trend remained stable for females.
To explain the overall decrease in drug-selling prevalence, the researchers argued that youth with law enforcement was primarily effected by the spread of marijuana decriminalization.
Though all 30 states which have legalized marijuana require an individual to be over the age of 21 to partake in the benefits of the law, the change in legality and subsequent change in acceptability of society may continue to erode the prevalence of drug-dealing among youths, they said.
The study was conducted by Michael G. Vaugh and Katherine J. Holzer of Saint Louis University’s School of Social Work; Millan A. AbiNader and Christopher P. Salas-Wright of Boston University’s School of Social Work; and Sehun Oh of the University of Texas at Austin’s School of Social Work.
The complete study is available for purchase here.
This summary was prepared by TCR news intern Laura Binczewski. Readers’ comments are welcome.
A new book examines the arrest data produced by police stops in North Carolina, and finds the public safety benefit was minimal. In a conversation with The Crime Report, co-author Frank Baumgartner says it should make police departments across the US reevaluate a practice that is often considered racial profiling.
Traffic stops represent one of the most common interactions between police and citizens in this country. According to the Bureau of Justice Statistics, an estimated 42 percent of face-to-face contacts that U.S. residents had with police in 2011 occurred for this reason alone.
However, in the wake of the tragic shooting deaths of Philando Castile, Terence Crutcher, Walter Scott, and others—all of which resulted from seemingly routine traffic stops—fears about the influence of racial profiling and police bias on these common, day-to-day policing practices have grown.
Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race, co-authored by Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill; Prof. Derek Epp of the University of Texas at Austin, and fellow researcher Kelsey Shoub, statistically analyzes recorded traffic stops from North Carolina to discover the hard truth about similar accusations made in the state nearly 20 years ago, and paint a comparative picture for today.
In a conversation with TCR, Baumgartner explains how traffic stops have become an ineffectual tool for catching criminals, why the numbers found in North Carolina represent a systemic problem in law enforcement around the country, and how the argument of “a few bad apples” in policing falls short of reality.
The Crime Report: This book is the end result of a law passed in North Carolina almost 20 years ago that sought to find the truth behind suspicions of racial profiling in policing by collecting and analyzing traffic stop data. Can you explain how it got from there to here?
Frank Baumgartner: When the law was passed that mandated the data collection back in 1999, the law mandated that the state itself, the attorney general, or somebody in the department of justice for North Carolina, should issue periodic reports, every six months, to evaluate these allegations. The law was passed because there were allegations in the (state) General Assembly, essentially members of the black and Hispanic caucus, elected officials, who said they thought there was rampant profiling going on. It was part of a nationwide conversation about the issue of driving while black and brown.
North Carolina was the first state in the nation to mandate collecting the data, so those lawmakers deserve credit. They said that either we’ll put to rest spurious allegations or we’re going to validate these concerns and our police will take immediate steps to alleviate them. And none of that happened. Nobody ever issued a single report. So, when we got the data, and delved further and further into it, it pretty much validated all of those concerns of those legislators back in the 1990s. Everything they alleged and were concerned about, we can show is really true: two-to-one search rates; two-to-one increased likelihood of being pulled over if you are nonwhite.
TCR: Why was there no follow up? And is this sort of inaction suggestive of a national problem?
FB: Nobody likes to have someone looking over their shoulder in their workplace, and these allegations were really quite troubling. They were about racial bias within the police forces and they were nationwide. I think it’s a hot button issue, the police agencies are very politically powerful, and this is a topic that a lot of police departments would rather not have in the public domain. It’s uncomfortable. I give a lot of police chiefs credit for engaging with the conversation.
It’s a tough conversation because they’re put on the defensive. So, I think it’s natural that people didn’t want to go there. But we had to. Even though it’s uncomfortable, we have to validate the fact that black and brown Americans are subjected to a quite different style of policing than white middle-class Americans. And if white middle-class Americans don’t understand that, then there’s a terrible empathy gap for the realities of people on the ground who are black and Hispanic. We have to understand how policing works in all of our communities.
TCR: How do traffic stops reflect an evolution in today’s policing that has led to a general increase in racial profiling?
FB: In the 1960s and 1970s policing changed. It went from being more reactive, finding out that there had been a crime and then trying to hunt down the bad guy, solve the crime, and bring the perpetrator to justice, to a more proactive style of policing where the police thought they could solve the crimes before they happen by interrupting people who look like they might be up to no good. So, I think we developed a whole method and ideology in the profession of policing around an idea that they could keep us safe by interrupting criminal activity before it even happened.
At the core of that idea is the assumption that you can tell if someone might be involved in criminal activity just by looking at them. And that’s where racial profiling became such a concern. The magic of this system is that white middle-class people were unaware that the police were using visual cues towards young men of color and treating them in such a different manner. If you’re black or brown, you’re a suspect citizen right from the beginning.
TCR: How do police use traffic regulations to pursue this kind of biased policing?
FB: The method came out of hunches and seat-of-the-pants ideas that developed into accepted practices in policing. Back in the 1970s, airports were trying to develop profiles of who might be a hijacker and who might be a drug courier, and those are all based on appearances. Police then applied these to the highways.
The first sheriff to do this was in Florida. He kept getting his cases thrown out because judges all said he had no probable cause because he was literally just pulling people over because of appearances. That sheriff then went to the vehicle and highway codes and found that Florida highway laws gave him 500 reasons to pull someone over. He studied the manual and he studied the law and he found that there were so many technical violations of either the vehicle code, such as tinted windows or a crack on the brake light, or the traffic code, such as touching the yellow line, that you can be pulled over for.
The key decision by the U.S. Supreme Court was one that said that if you’re breaking the law you can be investigated. That means if everybody is speeding, then the police can pull over those who they want and say they pulled you over for speeding. Most people speed, so everyone’s open to a police investigation. Once they pull you over, and they start a conversation, they might ask for permission to search your car, and that’s where all the profiling happens. They really did have to find a methodology. The methodology of a traffic stop is fantastic because, if you’re driving a car, you’re pretty much opening yourself up to a police investigation.
TCR: According to your book, the logic behind this practice is that “you have to kiss a lot of frogs before you find a prince.” How did such a general practice come about and is this defence of it valid?
FB: I think that it came to be used because of the war on drugs and the idea that there’s this incredible mania among the law enforcement community about the danger of drug couriers and drug kingpins. But the thing about kissing a lot of frogs, for one, is that it’s unfortunate that the police would think of citizens driving down the road as frogs. They’re citizens and they have the right to their own privacy and the right to be free from unreasonable search and seizure. I think that the idea was that thousands of people would be deprived of their constitutional right to privacy and to travel unimpeded in the hope that one out of a thousand or one out of a hundred might be found carrying some drugs. And the Supreme Court validated this idea.
The police said everybody has to pay a small price so we can all be safe, and the Supreme Court said that since it’s only a momentary inconvenience, it’s a reasonable price to pay. And that makes good sense if you are white and middle class, like most of the Supreme Court justices, and it might happen to you once every ten years. You’re not subjected to that many police pullovers, and certainly not to very many searches. But if you’re a young black or Hispanic male, you might be pulled over frequently. So, it’s not just a momentary inconvenience, it’s a consistent statement by the government that they suspect you of wrongdoing. So, that’s where we really wanted to make the case that the court system has kind of misunderstood this.
They’ve given the police the green light to do these dragnets and very large scale traffic stops, justified by the war on drugs and crime, but it’s a very inefficient use of time and a very big waste of police money that, in addition, alienates so many people.
TCR: What are the psychological effects on minorities from these continual stops?
FB: Philando Castile, before he was killed in Minnesota, was in his early 30s and had been pulled over by the police, even in his short time as a driver, dozens of times. I’ve been driving since the 1970s, I’ve only ever been pulled over two or three times, and I’ve never been searched. So, if it happens to you once every 25 years, it’s true that that’s a momentary inconvenience.
But, if you’re just a young man of color, and you simply happen to fit a certain demographic profile that the police associate with crime, or if you just happen to live in a neighborhood where there’s more policing because there’s more crime, you might find that to be a routine occurrence. And when you know that it was a pretext, and you really weren’t driving in an unsafe manner, it teaches you that you are not a full citizen, that the police think of you as a potential criminal. And that’s a harsh lesson for a young man to learn.
TCR: When it comes to tragedies like Philando Castile, there is always the argument that it happened because of a “bad apple.” How valid is that argument?
FB: It’s valid, but it’s incomplete. We found that there were a lot of officers who had statistical patterns that are really quite troubling and I can tell you that I think some of them lost their jobs after their chiefs had seen some of this data. But, that’s not the whole picture, the entire system of racial profiling or disparate outcomes of traffic stops cannot be put at the feet of just a few bad apples, it’s really much more systemic.
Even when we take the bad apples out of the equation or we control for them statistically, we still see dramatic differences in how white and black drivers are treated, even when they’re treated by officers who are not the bad apples. We identified about a third of all officers as having more than a two-to-one ratio of searching black drivers compared to whites. So there are systemic, institutional patterns that are widespread, and then there are a lot of bad apples.
TCR: How does the level of officer discretion contribute to this problem?
FB: I keep thinking, I’m a college professor, and I think there are a lot of us in public service who are supposed to follow rules. Imagine you’re a third-grade teacher, and you teach reading. It’s not optional whether or not to cover certain parts of the curriculum. Principals and other supervisors are going to be pretty hands-on in making sure that all the third-grade teachers in the school are teaching the same curriculum. You have good teachers and bad teachers, easy teachers and hard teachers, but still the curriculum is the curriculum. Policing is really not like that. The disparities in behavior that we see from officer to officer are shocking. It is not particularly a racial thing, but a dynamic of the great degree of freedom and discretion that an individual police officer has. I think that’s an important characteristic of policing as work. It’s a decentralized workplace; it’s really hard for supervisors to monitor exactly what employees are doing.
As it turns out, when we looked at …the cases where they pulled someone over for speeding and the percentage of times they gave a ticket rather than a warning, the number goes from 0 percent to 100 percent, from to A to Z. It’s shocking how much variability there is in the outcome of a traffic stop based on who’s the officer. Some officers never search anybody, and some search 30 percent of the people they pull over. Some officers never make an arrest and some arrest 10 percent of the people they encounter. There’s a huge difference.
TCR: What are the different kinds of searches police can engage in?
FB: Essentially, if a police officer develops the idea, based on the situation, that there’s a probable cause that the individual is engaged in a crime or hiding contraband, then the officer has the legal right to search that individual and bring them into custody if they don’t agree. Let’s say they see what appears to be a gun, then they have probable cause to believe you have a concealed weapon and they don’t have to ask your permission to search you.
If they don’t have probable cause, then their only way to do a search is to ask the driver if they have drugs in the car and if they can search the trunk. And it’s your constitutional right to say no. But, of course, it’s very intimidating when an officer with a gun says I’d like to search your car. It technically has to be phrased in the form of a question, but that can be done in a way that’s quite intimidating.
TCR: Are there ways to tackle this issue of potential intimidation?
FB: One of the most effective reforms that we found in North Carolina was that some cities mandated the use of a written form. It says, “I hereby voluntarily consent to have my car searched and all of its belongings, and here’s the password to my iPhone because I understand that’s going to be searched as well.” And, of course, nobody signs this form. Once you lay out your constitutional rights to privacy, and you lay out that the officer does not have probable cause and he’s just asking for permission, nobody signs that form. It’s a very effective protection of people’s constitutional right to privacy.
The counter-argument is that this will lead criminals to go free. So, we looked at that very carefully and, essentially, our analysis of all these traffic stops shows that they just don’t catch many criminals. It’s better for the police to just enforce the speeding laws and pull people over who are drunk driving, running through stop signs, and driving dangerously than to use the vehicle code as an excuse to fight the war on drugs. It’s just not very efficient.
TCR: Aside from consent forms, what else needs to be done to create a change?
FB: Our main proposal is that the traffic police should focus on traffic safety. Don’t use the vehicle code as an excuse to fight a war on drugs or a war on crime more generally. It’ll keep us all safer if you do that and it will reduce the probability that a police officer is going to just make a pretextual traffic stop just because he doesn’t like the look of somebody, and use the traffic rules as excuses to do a police investigation. That’s contrary to our basic American freedoms, and it’s not effective.
Second, de-emphasize the regulatory and equipment failure traffic stops, all these traffic stops that are used as a pretext to get to talk to somebody, and, instead, emphasize ones that are truly related to safety. The problem with these equipment failure stops is that they bring poor people into contact with the police more commonly than wealthy or middle-class people. Middle-class people are less likely to have expired tags or bald tires because money is not a barrier to getting their inspection sticker. But poor people might be in that situation on a much more routine basis because they just can’t afford to get their tires replaced. Now that’s fair when a vehicle becomes dangerous to drive, but many of them are pretexts to pull a person over and see if they’re carrying drugs. It’s a waste of everyone’s time.
We found that police don’t find contraband very often, even when there’s a probable cause search, and when they do find something it’s usually a very, very small amount, so little that they won’t even arrest the person in a typical case. It’s not a cache of guns, or a stack of money. Which calls into question the public safety benefit of all these millions and millions of traffic stops.
TCR: What do you say to those who may claim that this is just a North Carolina problem?
FB: Well we have a paper where we’ve been gathering data. We’ve collected all the data from the statewide databases for Illinois, Maryland, and Connecticut. We’ve looked at other cities and state highway patrol agencies who’ve made their data available. We’ve found the same patterns, and actually much more serious patterns in the Chicago area.
If you remember the DOJ report on Ferguson, Missouri, they did an in-depth analysis of all the troubles in that community and one part of their report was looking at the traffic stops and the searches that resulted from them. And in Ferguson they were concerned by a 70 percent disparity: black drivers were 1.7 times likely to be searched. That’s below the average for North Carolina. Ferguson was an outlier, a tinderbox, in terms of racial resentment between the community and police department, and they only had a 70 percent disparity.
North Carolina is not a hot spot of racial disparity, (but) we find these same things all throughout the country. The state is not peculiar. It is quite generalizable. We should all look at this and try to understand that there is a reason for this resentment. We should take that seriously and police departments should look and see if these policies are really worth the trouble.
Isidoro Rodriguez is a contributing writer to The Crime Report, specializing policing issues. He welcomes readers’ comments.
Public defenders are tasked with ensuring the poorest and most vulnerable defendants have their day in court. Sometimes that means swallowing their ideals of social justice.
A recent communiqué from my HR department casually let fall that we’re now a “social justice organization” dedicated to the interests of “the most vulnerable.”
And all these years we thought we were a public defender! We feel like the hero of Kafka’s “Metamorphosis” who woke up one morning to find himself turned into a giant beetle.
As an appellate squawk, we represent people charged convicted of crimes.
Illustration by Squawk.
Sometimes we think they might be innocent or that what they did shouldn’t be a crime, but we’re still not going to enter them into any “most vulnerable” contest. You want vulnerable, go read the Brooklyn DA’s press handouts about crime victims.
Just kidding, don’t go near them.
As for “justice,” that’s exactly what we’re defending our clients against. “Bringing to justice,” “obtaining justice,” etc. are gassy expressions for prosecution and punishment. The Italians are more candid: giustiziare means putting to death. Tacking “social” onto it doesn’t make it less retributive.
How would a defense lawyer look plumping for social justice?
DEFENSE COUNSEL: The machete allegedly found on my client should be suppressed as the fruit of an unlawful search. The officer testified that his only reason for stopping him was that he was wearing a Red Sox cap.
PROSECUTOR: We concede there’s no possible interpretation of the Fourth Amendment that could justify the search. But the defendant had the machete hidden in his jacket while walking around the hallway of a public housing project inhabited by itty-bitty little children, marginalized women and the gaga elderly.
DEFENSE COUNSEL: Golly, I guess the interests of the vulnerable come first.
COURT: You bet. Suppression denied.
DEFENSE COUNSEL: The statute requires the indictment to be dismissed if the People aren’t ready for trial within 180 days without good cause. Since it’s now the 181st day, my client is entitled to dismissal.
PROSECUTOR: We candidly admit the delay is due solely to our laziness and incompetence. But the defendant was caught shooting into the window of a bodega, thereby offending the dignity of huddled masses yearning to breathe free.
DEFENSE COUNSEL: Well, I certainly don’t want to be a xenophobe. We’ll let it go this time.
DEFENSE COUNSEL: I move to preclude any testimony about my client’s prior record, pursuant to People v. Rodriguez.
COURT: What does Rodriguez say?
DEFENSE COUNSEL: How should I know? The point is, my client belongs to a marginalized, powerless, historically underrepresented group.
PROSECUTOR: So does the victim.
DEFENSE COUNSEL: Oh, yeah? What supposedly powerless group does your so-called victim belong to?
PROSECUTOR: Dead people.
DEFENSE COUNSEL: Oh. Okay, you win.
Moral: If you need to wear a halo, don’t go into criminal defense.
Appellate Squawk is the pseudonym of an appellate attorney in New York City, and the author of a satirical legal blog of that name. Readers’ comments are welcomed.
The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, Israeli law professor Boaz Sangero writes in a paper for the Pace Law Review.
The U.S. legal system should apply engineers’ tactics for minimizing risk to the plea bargaining process to prevent innocents from going to jail, according to Israeli law professor Boaz Sangero.
In a paper entitled “Safety from Plea Bargains’ Hazards,” Sangero, who heads the Criminal Law and Criminology Department at the Academic Center of Law and Business in Israel, claims plea bargains pose a safety hazard because of the way they incentivize defendants to plead guilty regardless of their actual innocence or guilt, resulting in false convictions.
Sangero’s article, published this summer in the Pace Law Review, argues that this risk can be mitigated through the adoption of an engineering safety model called the “System-Theoretic Accident Model and Processes” (STAMP).
STAMP seeks to identify potential safety hazards and put “constraints” in place to prevent them before they occur.
The vast majority of cases in the American criminal justice system are settled through plea deals—97 percent of all federal cases and 94 percent of state ones. In a plea-bargain arrangement, the defendant admits to an offense in exchange for a lighter sentence from the prosecutor than could be expected following a conviction at trial.
Advocates of plea bargaining emphasize their supposed benefits for the state and the defendant. The former saves the resources it would otherwise spend on conducting a full trial; the latter receives more lenient sentencing.
But for precisely these reasons, the plea-bargain system runs the risk of locking up the innocent.
Plea bargains make sentencing significantly more efficient for prosecutors, allowing them to file many more indictments than they realistically could try.
This spares prosecutors from needing to screen cases before indicting. While they might otherwise be forced to weed out those cases where the charge is minor and the evidence weak, plea bargains enable them to overcharge, knowing that most cases will be resolved quickly and without going to trial.
Meanwhile, the threat of heavy “trial penalties”—more severe punishments should defendants go to trial and lose—incentivize defendants to plead guilty regardless of their actual innocence or the strength of the case against them.
Sangero cites the 1999 Tulia scandal, in which the testimony of one undercover cop in Tulia, Tx., later shown to be an unreliable witness, resulted in the conviction of 38 people on drug charges, as one example of a case where many innocent defendants were charged, and a majority of them pled guilty.
A judge later overturned all 38 convictions, begging the question why so many innocent people pled guilty in the first place.
The likely answer lies in the disparities in sentencing. A Tulia defendant who accepted a plea bargain received an average of four years in prison, compared to the 51 years received by a defendant who plead innocent and was convicted at trial.
Citing data from the Innocence Project, Sangero estimates that the false conviction rate is at least five percent for the most serious crimes, and potentially higher for more minor infractions.
To put that number in context: in 2006 (more recent aggregate data is difficult to come by), state courts sentenced an estimated 1,132,290 persons for a felony conviction. Using the Innocence Project estimates, that translates to over 55,000 false felony convictions at the state level alone.
But while false convictions are not uncommon, they often go undetected. Exonerations are exceedingly rare, leading policymakers and the public to believe that the justice system is functioning well when in fact large numbers of innocent people are behind bars.
“The plea-bargain system in its entirety is truly a disaster, particularly from the perspective of the need for safety from false convictions,” Sangero writes.
“Indeed, it is an anti-safety system.”
Though Sangero himself is a proponent of abolishing plea bargains entirely, he concedes this is unlikely to happen any time soon. So to mitigate the harm he says is caused by the process, he proposes applying STAMP to the criminal justice system to reduce the number of innocent defendants who are incarcerated on plea deals.
STAMP involves determining what “constraints” are necessary to make the system function without mishap and creating a structure that will enforce those constraints.
In the case of the plea-bargaining system, this means strengthening the pre-screening procedures for indictments. Courts, Sangero says, should review whether the evidence of the defendant’s guilt merits his or her indictment in the first place.
He also calls for recognizing defendants’ right to a fair plea-bargain offer so that the offer a defendant receives is not dependent on the goodwill of a particular prosecutor.
The court should supervise the prosecution’s policy for determining the divergence between the punishment offered in a plea deal and that expected if convicted at trial, Sangero writes, so as to remove any enticement to confess for the innocent. This it a normal practice in the German legal system, he points out.
In the event that a guilty plea is entered, the court must ensure that the defendant’s confession of guilt was made with adequate legal representation and not under duress from the prosecution.
“There have always been, and always will be, accidents. In some aspects of our life, this appears to be an inevitable reality,” Sangero writes.
“However, a high rate of accidents is not an unavoidable fact of life, but rather the product of human negligence; or even indifference—when we are aware of the danger but do not act purposefully to reduce it.”
Sangero argues that adopting STAMP will “significantly reduce the terrible phenomenon of false convictions based on plea bargains.”
Elena Schwartz is a TCR news intern. Readers’ comments are welcome.
Restrictions on sex offenders, regardless of the details of their cases, have created a huge population of people whose potential contributions to society have been foreclosed. It’s time to give them the same chance as other returning citizens for full reintegration when they pose no further threat, says a former sentencing mitigation researcher.
Before soliciting a teenage girl who turned out to be an undercover cop on the internet, Joshua Hoe was director of the University of Michigan’s debate team.
Although he now runs a podcast that features staffers from prestigious criminal justice reform organizations like the Brennan Center for Justice, Families Against Mandatory Minimums, and #Cut50, he still cannot get a salaried day job in the field because of his conviction for a sex crime.
A number of those on the registry were in fact convicted for offenses committed when they were children themselves.
But the stigma applied to the sex offender, which treats him or her the same as the worst rapist and child abuser imaginable, regardless of the details of the case, has created a huge population of people with skills whose potential contributions to society have been foreclosed.
Civil liberties advocates have begun to acknowledge the need for a more humane approach to individuals who have been involved with the justice system and have paid the price with time served.
The American Civil Liberties Union (ACLU), for example, has pushed to end employment discrimination against those with criminal records. But only recently has the organization started to hire people who had previously committed serious violent acts.
There is no sex offender equivalent of these redemption stories.
The closest example is Guy Hamilton-Smith, who is on the sex-offender registry for looking at pictures of naked underage teens on the internet. Hamilton-Smith graduated toward the top of his law school class at University of Kentucky, and was categorically rejected by the Kentucky Bar due to his registry status.
Such black-and-white thinking, which is frequently encouraged by law enforcement officials, leaves out a multitude of victim experiences, offenses, and cultural attitudes.
After David Bowie’s death, the internet went into a frenzy over a statutory rape he had committed in his early-to-mid 20s against a 15-year-old girl who many decades later still considers the encounter consensual.
The imbalance produces Kafka-esque cases like Edward Marrero, who admitted in court, while testifying in defense of a friend, that he took sexual photos of his 17-year-old girlfriend when he was only 20.
Is a close-in-age relationship between a young adult and a teenager morally worse than murder, kidnapping, or robbery? The dearth of otherwise-qualified sex offenders in criminal justice reform careers shows how far we have tilted the scales from reality.
Criminal justice reform organizations should be able to ask these questions and answer them realistically, without putting too much credence in the byzantine and cruel state of American sex laws.
After all, we know better than anyone that the law is not always what is right. Let’s hire sex offenders when we believe in them.
Rory Fleming, founder of Foglight Strategies, worked as a sentencing mitigation researcher on felony sex offense cases, where he employed a sex registrant. He is also a friend of Guy Hamilton-Smith, mentioned above, and facilitated Smith’s writing for the Appeal, a publication of the Fair Punishment Project, at Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Fleming blogs at The Digest and tweets from @RoryFleming8A.