Why ‘Liberal’ Policing Shouldn’t Be a Contradiction in Terms

American policing has drifted disturbingly far from the liberal values that gird our democracy, warns Luke William Hunt, a justice professor and a former FBI agent. In a conversation with TCR, he discusses his new book, which offers a blueprint for getting us back to our roots.

book coverDo the threats and pressures faced by today’s policing organizations justify departing from the principles that gird our democracy?

According to Luke William Hunt, the “toolkit” of American law enforcement too often sidesteps those principles in the interests of fighting terrorism or using informants to tackle criminal organizations.

Hunt, an assistant professor of Criminal Justice at Radford University and a former FBI Special Agent, argues in his new book, “The Retrieval Of Liberalism In Policing,” that police need to reconsider many of the practices that have now become standard if they want to restore trust, confidence and legitimacy. In a conversation with TCR, he explains how we arrived at this point, why a close understanding of our philosophical roots provides an answer to the harsh punishment ethic favored by politicians like former Attorney General Jeff Sessions, and why federal involvement is necessary to ensure policing organizations follow through with positive change.

[The following is a condensed and slightly edited version of the conversation.]

The Crime Report: What prompted you to write this book and why is its message important today?

Luke Hunt: My time as an FBI special agent certainly inspired a lot of the ideas. When I made the decision to leave the FBI and go into academia, there was no doubt that I would try to make sense of and grapple with the questions that were raised when I was in law enforcement. While my experience may not be representative of all law enforcement officers, I feel that in recent years norms have changed. We have deviated from some of the core principles of the liberal tradition, and liberalism as a political philosophy. Some of our practices, with respect to policing, have become illiberal because they have deviated from the core of that tradition.

So, the goal for me was to [explore] the basic tenets of a liberal tradition, and a constitutional democracy, and evaluate the extent to which we’ve deviated from those principles [in policing]. The overall project is about the scope of police power and how far we’ve moved from the appropriate limits of that power.

TCR: In your book you point out that, while some may point to September 11th as a catalyst for this deviation, this problem has been much longer in the making. 

LH: I don’t think this shift happened on a single date or due to a single event. It’s taken generations. A lot of it has to do with technology and a lot has had to do with perceived threats. The threat of terrorism has certainly played a role. When you have perceived threats, coupled with enhancements in technology, our governments institutions are willing to reduce liberty at the price of perceived enhancements in security. We’re trying to have a perceived improvement of security at the expense of moving away from norms. Some of these things have been happening for a long time.

Obviously, the police have been using confidential informants, deceptive practices, and breaking the law to enforce the law for a long time. But they’ve ramped up, and it’s a very common tool in the toolkit today. Things like surveillance have been going on for a long time too, but technology has allowed the police and intelligence agencies to do so much more today.

TCR: When it comes to surveillance practices, how do we go about regulating law enforcement agencies discretion and power? What’s the limit?

LH: Different kinds of discretion are certainly necessary and are a justified part of the job. For example, routine law enforcement discretion to stop one person for speeding as opposed to another person. There’s also discretion about whom to surveill. That’s necessary because you can’t do everything and you have to make judgment calls and use your prerogative power in seeking justice. The limits of discretion are reached when we begin doing things that deviate from  rule of law principles.

For example, we were justifiably worried about terrorism after 9/11. We enhanced our surveillance powers in national security cases through a broad reading of the Foreign Intelligence Surveillance Act. The administration, the executive branch, tried to authorize a type of domestic surveillance that you could get the green light to use even if you acted outside of the FISA parameters.

There was a process to engage in this kind of surveillance and this was an attempt to circumvent that. And it played out in this very dramatic fashion: Attorney General Ashcroft was sick in the hospital and President Bush’s officials tried to go to the hospital to get him to authorize this new surveillance procedure. Then-FBI Director Robert Mueller, and James Comey for the Department of Justice, had to race to the hospital to prevent this. When you’re trying to promote security at the expense of violating the law, that’s certainly the limit.

TCR: How does your book tackle the issue of violating the law to promote security?

 LH: My real concern in the book is a little bit more philosophical, in the sense of trying to articulate the very broad constraints of surveillance power. I think there are certain cases when the government, and law enforcement agencies, should be able to deviate from the rule of law, But I think those are very rare and unique situations. If you go all the way back to the philosophers who have laid the foundations for our form of government, like John Locke, it’s a very narrow set of circumstances, limited to cases in which there’s a national emergency or there’s some sort of imminent threat to life.

Today, police are authorized to break the law all the time. Now, they have authorization to do that because you can sell drugs or illegal guns in order to enforce the law. But, is that promoting the rule of law? Is that really a justified use of that kind of operational activity?

TCR: Some in the criminal justice community would say that an academic’s point of view can’t be taken seriously,

 LH: I’m very cognizant of the fact that if you have someone like me, an academic, writing on what the police should and shouldn’t do, it may not display a clear understanding of how difficult the job is. I have a tremendous amount of respect for law enforcement. I know it’s a hard job and that’s because I’ve done it. It helps to have been a prior law enforcement officer when you write from the “ivory tower.” But, beyond that, in the book itself, I do try to balance it out: the first half is more theory, the second half is more practical.

Regardless, I think it’s important to ask if we have deviated from the philosophical and moral principles that our form of government is based on. It may have implications for the real world and policing, and it may make things more difficult for police, but that doesn’t mean that it’s a bad question to ask and that theory and philosophy aren’t relevant. That’s part of who we are.

Policing and the Constitution

The [liberal] philosophers who inspired the founders of our country are relevant to who we are today. To suggest that we should forget about those principles—that political morality [is no longer important] because life is just really hard today and we have these really important problems—is a fallacy. We need to be consistent with those principles and who we are.

TCR: From a criminal justice standpoint, can we look to our history to decide what those principles should be?

 LH: We really need to look at our roots, our history, and what the framers of the country and the drafters of the Constitution said. History and philosophical approaches are not mutually exclusive. That history was inspired by philosophy, by views that maybe aren’t manifested or articulated formally in the Constitution. You have to take a holistic perspective when you view historical practice and say there’s a bigger purpose and goal of what that history means and we should try to aim for that.

The Equal Protection Clause for a long time, seemed to permit “separate but equal” status for African Americans. Historically, that was the correct interpretation for a long time.But if you look at the basis of that concept, equality, and the spirit it entails philosophically, there’s a much broader and more accurate interpretation that promotes the ideal.

TCR: When it comes to policing in this country our philosophy has always been a punitive one. Does that philosophy of policing, and criminal justice in general, need to change in order to get closer to an ideal of equality?

 LH: Historically there has been a very big push to focus on law and order when it comes to policing, and since 2017, when Jeff Sessions became attorney general, we’ve been very much law-and- order focused. What that does is promote a particular role of the police, the law enforcement role. Now, no one would doubt that law enforcement is a huge part of what it means to be a police officer and policing in general. Police enforce the law, they investigate crimes and perform arrests, and that’s, perhaps, the most important part.

But there are also all these other roles that police officers fulfill. For example, they are emergency operators: when someone has a wreck on the highway, they respond. That has nothing to do with law enforcement. Another role is a social enforcement role, there may be some sort of domestic issue or community problem that police have to respond to before a social worker can get there, one that doesn’t involve any kind of investigation or arrest.

We shouldn’t just focus on law and order, we should have a holistic view of what the police do. That’s when you get into ideas like community policing, procedural justice policing, and policing that promotes people’s dignity.

It’s not just about stopping crime, law and order, and arresting people. Police play a much broader role in the community and that role has to be promoted in a legitimate way that keeps the peace. It makes no sense to have a practice, like mass incarceration, that just exacerbates the problem, costs a lot of money, and makes people more likely to reoffend when they get out. It’s counter-intuitive and irrational.

TCR: Your book deals with the handling of informants and the involvement of civilians in criminal justice practices. How can policing organizations use these kinds of holistic approaches to improve what can be an already dangerous relationship?

 LH: Some of these practices, not all, are just fundamentally inconsistent with the core principles and values of the liberal tradition. One thing to note is there are a lot of different kinds of informants. Some do it because they want to be patriotic, some do it for financial reasons. The cases that I’m focusing on are the more common cases: ones where the police leverage the informant. They have something on the informant, they have them jammed up for something they did, and they say if you agree to help us with this operation, do this thing for us, we will agree to consider telling the judge or prosecutor what you did and maybe they’ll help you with your case.

Luke Hunt

Luke William Hunt

That sort of a scenario is very much like a contract; you have an offer, acceptance, and a bargain. Sometimes contracts are justified and good, and should be upheld, and sometimes they shouldn’t. I think many of these cases should not be justified or permissible because they are basically unconscionable, they’re unjust and unfair. The way that these bargains are entered into suggests that the informant’s consent is deficient. A lot of times an informant doesn’t have a real choice. If your option is basically go do this very dangerous thing that may put your life at risk or you’re going to jail for a long time, is that a real choice or is it borderline duress?

The other thing is knowledge: do they have an adequate understanding of what they’re getting into? Police officers are trained for undercover work, they know what the risks are. Maybe some informants are savvy and sophisticated, but some are not and they are put into a situation where they don’t really understand what they’re doing.

A very well known example is Rachel Hoffman. This young woman was sent to an operation to buy drugs and guns. She’d never done anything like this, and ended up getting shot with the gun she was sent to buy. So procedurally, was there actual consent to do this work? Was there a real choice? And was there adequate knowledge? If not, then you don’t really have true consent.

Policing and Consent

TCR: Can the police still be in the wrong even if there is legitimate consent? 

 LH: Even if you do have some kind of adequate consent to engage in this kind of bargain, it’s possible that just substantively the terms of the agreement are just unjustified given who we are as a society. Are these agreements an affront to the informant’s dignity? Another case I reference in the book is one where the police had leverage on a woman and got her to engage in oral sex as an informant with a target, spit the semen on a napkin, and bring it back as evidence in exchange for money. This was an act of prostitution that was upheld as justified evidence collection. And even if she consented and there’s no procedural problems, there’s just something substantively wrong with the operation given who we are and how we view people as moral agents with dignity.

Some of these agreements rise to what you would describe as punishment. These kinds of acts, the harm and risk, meet the criteria of what a clear case of punishment would be. However, it’s being administered by the police, in a sense outside the rule of law, because the police are allowing the informant to break these laws and are breaking these laws themselves. And it may not be justified. You might say these informants are being subject to a form of illegitimate punishment because this sort of act is not justified. We don’t usually subject people in our society to punishment unless it’s legitimate.

TCR: Given this potential for illegitimate and dangerous circumstances, what situations actually merit the use of informants?

 LH: I think informants are a necessary tool, there’s a lot of different ways we use them. I think the primary focus for informants, in terms of policy, is that we should rely on informants for intelligence collection. They’re a great asset for gathering info and understanding the domain and territory that law enforcement are operating in. However, in these situations where you’re leveraging your power over an informant and you’re getting them to do these things with, basically, deficient consent or what might be an affront to a person’s dignity, those sorts of things are unjustified given our principles.The only cases in which something like that might be justified is if there’s some sort of imminent threat to life.

TCR: How do we improve our criminal justice system and turn the kind of philosophy your book talks about into policy, and do we need federal oversight to really bring change about?

 LH: When you leave the realm of philosophy and look towards policy more, there are two components. The first that will be helpful is training. The diversity of departments, state, local, federal, we’re all over the place. To the extent that you can have a more comprehensive and consistent training regimen that highlights some of these points, that your role is not just to enforce the law and impose security.

You are a community police officer who is protecting citizens, serving the community, and you have a variety of roles that you have to promote. You need to view these people that you are serving as citizens with dignity who have these sorts of moral civil rights. That may seem obvious, but that needs to be central to our training. What’s happening in practice today is a lot of the training tells these new police officers that you are a warrior, you are going to battle every day, you need to not hesitate, not be weak in your use of force. You need to protect yourself because they are out to get you. That is a confused understanding of the police role. You are not a warrior. You are a civil servant who is promoting security in your community. You’re not doing battle in a military sense. To train like that is ineffective.

Should there be more federal oversight? One of the last things Attorney General Sessions did before he left office was draft a memo scaling back the federal oversight of departments, many of whom have had problems in the past. I think we should have that kind of federal oversight. Civil rights are federal rights that need to be protected by the Department of Justice.

Isidoro Rodriguez

I understand that it’s not going to be easy and it’s going to feel like the local community is being infringed upon by the big brother federal government, but that’s who we are. We’re a collective, national government, and if you have potential threats to civil rights that needs to be protected.

As we move forward in looking at next steps on addressing criminal justice, we need to promote oversight of local and state community’s departments that are having potential issues with these fundamental civil rights violations. If you have potential threats to civil rights, if you have evidence of that, there needs to be oversight at a federal level because it’s just that important.

Isidoro Rodriguez is a contributing writer for The Crime Report. He welcomes readers’ comments.

from https://thecrimereport.org

The Sessions Debate: Did Ex-AG Take Deliberate Aim at Police Reform?

Two analysts square off over the motives and impact of Jeff Sessions’ parting shot, when he reined in the use of Justice Department consent decrees to reform local police departments.

Did police-reform advocates and the news media exaggerate or even misinterpret the meaning of Jeff Sessions’ parting shot when he changed Department of Justice policy on consent decrees? Over the past week, two analysts squared off over that question and what’s at stake in the struggle over policing strategies.

See also: TCR’s Sam Walker on “Why Police Reform isn’t Dead: The Case for Optimism”

First, at the National Review, Walter Olson said Sessions’ Nov. 7, 2018, order addresses a longstanding controversy over DOJ consent decrees with local governments on a range of issues, not just policing.

Olson, a senior fellow at the libertarian-leaning Cato Institute and founder of the Overlawyered blog (“chronicling the high cost of our legal system”), notes’ Sessions’ criticism of consent decrees’ structural flaws dating back a decade.

Among those flaws, says Olson: “they let outside critics manage (and micro-manage) local agencies” indefinitely, without proper oversight or restraint. Sessions’ order merely places sensible limits on the DOJ’s powers, giving state or local governments more due process and DOJ leadership more authority to rein in underlings.

There may be principled arguments against Sessions’ new standards, Olson writes. But, he concludes, “to the daily media, primed as it was to fit Sessions’s every move into a pre-set frame of criticism, these questions didn’t even seem worth asking.”

Not so, responded journalist and commentator Radley Balko at the Washington Post.

Calling Olson’s critique “the most concise and well-argued piece in opposition to consent decrees,” Balko — author of the book Rise of the Warrior Cop, an indictment of the sorts of policing abuses often targeted by consent decrees — says the criticism of Sessions’ move was entirely justified by Sessions’ own record as a critic of police critics.

Sessions, Balko writes, “objected to the very notion that there could be systemic problems in police departments (such as in, say, Little Rock). He said in his confirmation hearing that mere criticism of a police department damages all police departments and, therefore, hinders effective policing.”

After describing examples of the need for decrees and oversight, and the ingrained culture they aim to root out, Balko cites evidence that consent decrees work, in that they greatly increased public trust in police in places like Seattle and New Orleans.

In the face of sometimes “jaw-dropping” systematic abuse, Balko concludes, “there’s a good argument” that the DOJ is obligated to act. “Morally,” he writes, “the case is even clearer.”

from https://thecrimereport.org

Why We Don’t Need William Barr (V2.0) as Attorney General

The former AG, whom President Trump has nominated to return to his old job, is likely to continue the hardline policies of his official predecessor Jeff Sessions. Americans hoping for justice reform deserve better, writes one of the nation’s leading criminologists.

We are finally at the point where the public, the experts, and many (perhaps most) elected officials and policy makers agree that there is something seriously wrong with the American criminal justice system.

While the concerns vary, there is general agreement that our “tough-on-crime” experiment has not been successful. We’ve spent approximately $1 trillion on trying to punish bad behavior out of people with little effect, and another $1 trillion on failed efforts to control the supply of drugs. That investment has bought us an 85 percent recidivism rate.

Another sobering element in this pessimistic picture is the broader social and economic costs of our hardline crime and criminal justice policies, estimated to be $1 trillion a year.

The current movement for criminal justice reform is relatively new, born out of the recession of the late 2000s and concern by state governments over the cost of incarceration. But it has been gaining significant traction.

Whether the concern is recidivism, the price tag, mass incarceration, racial inequality, the excessive use of pretrial detention, the failed war on drugs, police use of force, or dozens of other issues, reform has become a central theme in the media and policy circles, among an ever-increasing number of non-profits and advocacy groups, as well as in many state legislatures and Congress.

Yet we are facing a throwback to the “lock ‘em up and throw away the key” policies that seemed on their way to the drawer of failed ideas.

His name is William Barr.

william barr

William Barr. Photo taken when he was the 77th Attorney General. Via Wikipedia

The former Attorney General whom President Trump has nominated to return to his old job is, at best, likely to preside over a continuation of the policies of his official predecessor Jeff Sessions— who, among other things ordered U.S. Attorneys to charge the maximum offense in federal prosecutions, ramped up the war on drugs, and opposed sentencing reform.

There are good reasons to expect more of the same from Barr.

The 68-year-old Barr served as the 77th U.S. Attorney General from 1991 to 1993 in the administration of the late President George H. W. Bush, who made tough on crime a central theme (the Willie Horton ads are exhibit A). In this, Bush was following the lead of President Ronald Reagan, who facilitated the massive expansion of state and federal prison populations, the implementation of state and federal mandatory sentencing and truth in sentencing laws, and ramping up the war on drugs.

William Barr was a perfect fit for that era.

Americans should be asking whether he belongs in this one—at a time when the momentum for changing the policies of the past four decades has never been stronger.

Barr was one of the chief architects for the incarceration boom, writing in The Case for More Incarceration in 1992:

Ask many politicians, newspaper editors, or criminal justice “experts” about our prisons, and you will hear that our problem is that we put too many people in prison. The truth, however, is to the contrary; we are incarcerating too few criminals, and the public is suffering as a result.

 Barr also was responsible for expansion of drug control policies.  During his tenure, the budget for the war on drugs increased by 140 percent.

After Barr left the Attorney General’s office, he worked in Virginia to eliminate parole, expand the prison population, and increase prison sentences.

Time does not appear to have softened his views about crime and punishment.

He co-authored (with Edwin Meese and Michael Mukasey) an op ed in The Washington Post on November 9, 2018 that sang high praise for Jeff Sessions and his accomplishments as Attorney General.  Among other things, they lauded Sessions’ record on federal prosecution and targeting drug offenders.

Barr also went public in his opposition to the federal Sentencing Reform and Corrections Act (SRCA). The SRCA is a bipartisan bill that would reduce federal mandatory sentences and mandatory minimums, reduce sentences for possession of crack cocaine, and require the Bureau of Prisons to provide more rehabilitative programming to reduce recidivism.

(This week, in a hopeful sign, Senate Majority Leader Mitch McConnell agreed to give the long-stalled bill a floor vote.)

In a system like ours, where justice is for the most part administered at the state and local levels— only about 12 percent of all prisoners in the U.S. are federal inmates— some might think that the impact Barr could have on criminal justice reform is limited to the relatively small federal criminal justice system.

I believe that’s overly optimistic.

Among other things, federal law and policy set standards for others to follow.  If nothing else, an attorney general determined to defend and implement the discredited policies of the past could act as a dampening influence on comprehensive criminal justice reform.

The evidence is clear that Barr has been and will continue to be a tough-on-crime advocate.

Chances are he will pass through his nomination hearings easily, although Democrats vow to ask him tough questions about his approach to the Mueller Commission probe into the links between the Russians and the Trump election campaign.

For many, an establishment figure like Barr might be a welcome moderating force in an administration that shuns science and sets policy based on gut feelings.

Bill Kelly

William R. Kelly

But considering the high stakes of our justice challenges, Americans deserve better.

Kelly is professor of sociology at the University of Texas at Austin and the author of four books on criminal justice reform. He discussed his latest book, co-written with U.S. District Judge Robert Pitman, “Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform,” in a recent conversation with TCR’s J. Gabriel Ware.

from https://thecrimereport.org

Assaults by President Won’t Stop Justice Reforms: Former AG Sally Yates

The former acting attorney general, fired by Trump for opposing his Muslim travel ban, says the “norm-busting” culture of the current administration has only stiffened the resolve of career Justice Department officials to follow the law and pursue their jobs conscientiously.

Sally Yates, the former acting attorney general fired by President Trump for opposing his Muslim travel ban, says science-based justice reforms have taken root at the Department of Justice (DOJ) despite the regular barrage of “assaults” from the president on the integrity of her former colleagues.

Speaking at the annual meeting of the American Society of Criminology, Yates said career DOJ officials “are trying to keep their heads down and keep doing their (jobs) based on facts and the law,” even as the department has been plunged into new uncertainty following the firing of former Attorney General Jeff Sessions.

“It’s a tough time for folks at the DOJ,” said Yates, noting that DOJ employees have been “essentially assaulted on what feels like a daily basis by the President of the United States, undermining [their work], accusing them of being corrupt.”

She said the administration has perpetrated a “norm-busting” culture through presidential comments, tweets and actions that would once have been considered “presidency-busting, but now just get people to roll their eyes.”

“We’ve come to accept that this is just normal,” she said.

Yates, a 27-year-veteran prosecutor and U.S. Attorney, served as Deputy Attorney General in the Obama administration. She was appointed acting attorney general by Trump on Jan. 20, 2017.

But she was fired for insubordination 10 days later, after ordering DOJ staff not to defend a presidential order temporarily barring citizens from some Muslim-majority nations from entering the U.S., on the grounds that it was unconstitutional—a position later upheld by federal courts.

Matthew Whitaker

Acting Attorney General Matthew Whitaker. Photo courtesy Wikipedia

Efforts by the White House to undermine what it considers the too-liberal justice establishment at “Main Justice” have continued through the tenure of Sessions and are unlikely to end with the appointment of the controversial Matthew Whitaker to replace him as acting A-G, she said.

“I have felt good that folks at DOJ are resisting” the politicization of the department, said Yates, who is now a partner at her former Atlanta law firm.

Yates was participating with other former DOJ officials at a discussion panel on “criminal justice policy and practice in the current administration.”

Also on the panel were: Joe Whitley, a former Associate Attorney General in the George W. Bush administration; and Nancy La Vigne, now vice president of justice policy at the Urban Institute.

Asked by former assistant attorney general Laurie Robinson, whether the evidence-based reform initiatives begun under previous administrations would survive, Yates said she was optimistic.

“Regardless of the priorities of this administration, the benefits have been seen in progressive and conservative states,” said Yates, citing the gathering movement to loosen harsh sentencing guidelines and develop alternatives to incarceration.

At the federal level, she was concerned that efforts begun under the last administration to modify federal sentencing guidelines, which resulted for instance in a 20 percent reduction in the use of mandatory-minimum penalties and a corresponding decline in federal prison populations “for the first time in decades” had been stalled.

And she said there was a danger that public support for such reforms would decline as a result of the administration’s tough-on-crime rhetoric.

“If it’s framed as ‘American carnage,’ people start believing that stuff,” Yates said.

Nevertheless, she pointed out, “criminal justice reform is one of the few issues on which there is bipartisan agreement.”

She welcomed Trump’s recent endorsement of a modified federal sentencing reform bill, which she called a “modest step but an important step.”

In an ideal scenario, the Justice Department would reinforce efforts to invest more in prisoner education and programs to explore more alternatives to incarceration.

“The good news is that (the changes we’ve seen) are rooted in the states,” she said. “The bad news is (continuing reform efforts) are not getting the research and grant support they were getting before (from the federal government).”

Stephen Handelman is executive editor of The Crime Report.

from https://thecrimereport.org

Are ‘Orders’ from the Tweeter-in-Chief Legally Enforceable?

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore President Trump’s tweets calling for investigations into cases like the recent unsigned op ed in The New York Times. But how long can we rely upon this assumption? 

While many commentators have written about President Trump’s predilection for interpreting law via Twitter (whether the actions of his personal lawyer, Michael Cohen, in allegedly arranging “hush money” payoffs, were a crime, for example), a different presidential tweet poses even more difficult questions.

After Attorney General Jeff Sessions committed to not allowing the Department of Justice to be improperly influenced by political considerations, the President tweeted the following:

Jeff, this is GREAT, what everyone wants, so look into all of the corruption on the “other side” including deleted Emails, Comey lies & leaks, Mueller conflicts, McCabe, Strzok, Page, Ohr…FISA abuse, Christopher Steele & his phony and corrupt Dossier, the Clinton Foundation, illegal surveillance of Trump Campaign, Russian collusion by Dems – and so much more. Open up the papers & documents without redaction? Come on Jeff, you can do it, the country is waiting!

While the tweet about Michael Cohen’s actions not being a crime raised questions about whether the tweet constitutes a legal determination that is binding on the executive branch, the tweet about Sessions amounts, in my view, to what appears to be a presidential directive to investigate political opponents.

To what extent may federal authorities, particularly the DOJ and the FBI, respond in ways that are consistent with their interpretation of law and policy?

The question has become even thornier with the president’s recent comment that Sessions should investigate an anonymous Op Ed published by the New York Times. The author of the Op Ed claimed that members of the administration have worked to thwart some of the president’s agenda and inclinations, though he did not suggest any crimes were committed.

On the face of it, there is no reason why such an unclassified Op Ed would not be protected by the First Amendment.

The jabs at Sessions thus raise questions about a president’s constitutional duty—as Chief Executive—to “take care that the laws [be] faithfully executed” (Article II). Let me try to unpack some of those questions from the vantage point of the civil servants actually conducting investigations.

In other words, when President Trump calls for Sessions to investigate Op Eds or look into the “other side,” what does that mean for investigators?

Most FBI agents don’t carry around a copy of the Constitution in their pocket (well, some probably do), but they all have easy access to the Domestic Investigations and Operations Guide (DIOG), which “applies to all investigative activities and intelligence collection activities conducted by the FBI within the United States” (DIOG, § 1.1).

More generally, as both an intelligence agency and a law enforcement agency within the Department of Justice, the FBI’s power is dependent upon the authority vested in the office of the Attorney General, who may delegate authority to the FBI’s officials. This has been done in part through the DIOG, as well as through documents such as the Attorney General’s.

These documents standardize the FBI’s investigation policy in national security and criminal law cases. Specifically, the DIOG permits four basic ways for the FBI to “look into” crime:

  • Assessments
  • Preliminary Investigations
  • Full Investigations, and
  • Enterprise Investigations

An Assessment is the most basic type of formal FBI investigation. Notably, the DIOG states that “[a]lthough ‘no particular factual predication’ is required, the basis of an Assessment cannot be arbitrary or groundless speculation, nor can an Assessment be based solely on the exercise of First Amendment protected activities…FBI employees who conduct Assessments are responsible for ensuring that Assessments are not pursued for frivolous or improper purposes….” (DIOG, § 5.1).

The DIOG goes into great detail about the various types of Assessments that may be opened and the standards for conducting them. As one would expect, moving to Preliminary (DIOG, § 6), Full (DIOG, § 7), and Enterprise Investigations (DIOG, § 8) requires even more exacting rules with respect to investigative scope, predication, techniques, and so on.

Preliminary Investigations are predicated based upon “’allegation or information’ indicative of possible criminal activity or threats to the national security” (DIOG, § 6.1), while Full Investigations are predicated upon an “’articulable factual basis’ of possible criminal or national threat activity” (DIOG, § 7.1).

Finally, Enterprise Investigations are opened as Full Investigations, but with respect to “a group or organization that may be involved in the most serious criminal or national security threats to the public” (DIOG, § 8.1).

Does the unsigned Op Ed, or for that matter, the suggestion to look at corruption “on the other side” fulfill any of these four guidelines for launching an investigation?

Working outside of this stringent framework would indeed be uncharted territory—at least since President Richard Nixon (and presidents before him) ordered investigations that resulted in solely political and personal information unrelated to national security.

So it hasn’t been terribly long since presidents successfully used the FBI as their personal spy agency.

The US Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (or the “Church Committee”) helped expose a variety of widespread information-gathering tactics—including illegal searches and surveillance under the FBI’s COINTELPRO program from the mid-1950s through the early 1970s.

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore requests for investigations without a firm, non-arbitrary investigative basis that is consistent with policy.

But how long can we rely upon this assumption?

And there is a deeper question that has higher stakes: If there is disagreement about whether the Executive is taking care that the law be executed faithfully, what are the long-term implications for the rule of law in the United States given a dysfunctional executive branch?

Our history illuminates how executive authority and discretionary power have grown to such a degree that it is trending toward illiberal practices and policies. This is not a Republican or a Democratic problem. It is a broader problem regarding the limits imposed by the legal, political, and philosophical norms of a constitutional democracy in the liberal tradition.

Luke Hunt

Luke William Hunt

Although it may sound alarmist, the evidence suggests that we are returning to an older model of executive power that entertains political whims. There is no doubt that presidential executive power includes a great deal of discretion, but all of us should take care that we remain a state governed by the rule of law—not executive discretion.

Luke William Hunt is Assistant Professor of Criminal Justice at Radford University. After law school and a federal judicial clerkship, he worked for seven years as an FBI Special Agent and Supervisory Special Agent in Charlottesville, VA, and Washington, D.C. After leaving government service, he completed his doctoral work in philosophy at the University of Virginia. He is the author of “The Retrieval of Liberalism in Policing,” forthcoming with Oxford University Press.

from https://thecrimereport.org

How Criminal Justice Reform Can Move Forward in the Trump Era

Criminal justice reforms are under attack in the Trump era and require immediate attention from state and local governments,  as well as action from the formerly incarcerated, according to a Yale Law professor. 

Criminal justice reforms are under attack in the Trump era and require immediate attention from state and local governments, as well as action from the formerly incarcerated, according to a Yale Law professor.

Author Miriam Gohara, writing in the Stanford Journal of Civil Rights and Civil Liberties, said that progressive criminal justice reformers must remain vigilant to threats against rollbacks of mass incarceration, particularly when Attorney General Jeff Sessions “has redoubled his commitment to policies designed to put more people behind bars.”

Gohara cited Sessions’s May 2017 memorandum to U.S. Attorneys requiring federal line prosecutors to pursue the most serious provable charges against defendants as one rollback to criminal justice reform.

The memo rescinded then-Attorney General Eric Holder’s 2013 directive that federal prosecutors should avoid charges to which mandatory minimum sentences would apply to certain low-level non-violent drug offenders.

Aside from “executive branch policy,” she also noted Sessions has remained staunchly opposed to legislative sentencing reform, even when his stance puts him at odds with congressional Republicans and other conservatives.

For instance, during President Trump’s first year in office, Republican Senator Charles Grassley introduced a criminal justice reform bill that included provisions curtailing the applicability of mandatory minimums and reducing enhanced penalties for previous drug crimes.

Sessions, citing concerns about rising violent crime rates, called the bill a “grave error.”

Gohara proposed that justice reform should be left to local governments and formerly incarcerated.

More, she suggested that they focus on reforms that address non-violent crime.

First, she he advised local policymakers reward, replicate, and expand local reforms because the building blocks of mass incarceration were laid by countless state and federal politicians, policymakers, prosecutors, and judges for the past four decades.

But local governments also have the power to unravel mass incarceration, if they so choose.

“The good news is new initiatives have begun in many places, and federal policy will have little, if any, detrimental effect on most state and local reforms,” Gohara wrote.

Non-violent should be at the heart of criminal justice reform, she continued.

Notably, most Americans are sitting in prison for non-violent offenses, which is why “any meaningful dismantling of mass incarceration will need to reckon with punishment for violent offenses.”

Last, Gohara argued formerly incarcerated people have a large role to play in justice reform. They should be “co architects” of a new framework for justice.

In reality, imprisoned people are also disproportionately victimized by crime.

So, by bringing together the formerly incarcerated population and victims of crime, both parties can work together to reform the system.

This “creates a powerful opportunity for crime survivors who have served time in prison to join forces with those who have not to identify a reform agenda that treats everyone swept into the criminal justice system with humanity,” the law professor concluded.

A full copy of the report can be found here.

Megan Hadley is a staff reporter for The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

Caught in White House Turf War, Federal Prison Boss Quit

Last week, Mark Inch suddenly walked away from his job as director of the Federal Bureau of Prisons. The New York Times says that his surprising departure after nine months on the job was prompted by policy gamesmanship between Attorney General Jeff Sessions and Jared Kushner, the president’s son-in-law.

A turf war between presidential adviser and son-in-law Jared Kushner and Attorney General Jeff Sessions prompted the sudden resignation last week of Mark Inch, who served just nine months ago as director of the Federal Bureau of Prisons, reports the New York Times. Inch, a retired Army major general, had complained to Deputy Attorney General Rod Rosenstein that Sessions had largely excluded him from major staffing, budget and policy decisions. Inch also felt marginalized by Kushner in drafting prison reform legislation, officials said. He found himself caught in an ideological turf war between Kushner, who has championed reforms to the corrections system and more lenient federal sentencing, and Sessions, who has opposed significant parts of the bipartisan prison reform bill that Kushner backs.

The departure of Inch, who tried to navigate a middle course, creates a vacuum at a time when the bureau is grappling with issues such as workplace harassment, violence, gang activity, sentencing fairness and the funding of rehabilitation programs. “It’s disappointing,” said Jack Donson of FedCure, a nonprofit advocacy group for federal inmates. “The bureau finally gets someone from outside the culture who can, maybe, clean things out and within nine months he’s been railroaded out the door.” But some see Inch’s exit as an opening for Trump to take a more sweeping approach that would include sentencing reform — one of the few issues that offer him a chance for the kind of big, bipartisan deal he promised during the 2016 campaign.“The rap against General Inch is that he wasn’t a real reformer. In that sense, his departure is an opportunity,” said Kevin Ring, president of Families Against Mandatory Minimums.

from https://thecrimereport.org

The Newest Allies for Pot Legalization: Conservatives

In an unlikely reversal of roles, key conservative Republicans are supporting state moves to legalize medical or recreational marijuana, while progressive Democrats are wary. That could trump hardcore opponents like AG Jeff Sessions, says an addiction specialist.

Now that marijuana legalization seems to have reached a tipping point, it may be necessary for conservatives in politics and government to give it that last push to legalization at the federal level.

At least 28 states already have legalized medical marijuana use and nine of those have also approved recreational use. Voters in three more states seem poised to approve medical use this November, and another may add recreational use.

As many as eight other states have at least a chance of some form of legalization sometime this year.

It’s not a surprise, then, that longtime anti-cannabis warrior and US Attorney General Jeff Sessions wants to enforce the federal marijuana laws and wage drug war on states that have willfully violated those laws.

The fact that those violations almost exclusively were at the behest of their voters doesn’t matter.

On average more Democrats than Republicans seem to favor marijuana legalization—although even 90 percent of Republicans support making medical marijuana legal. Recreational pot gets a thumbs-up from 51 percent of Republicans, though much of that support comes from younger cohorts.

In Michigan, where a recreational legalization proposal has made it onto the November ballot, the Republican-majority legislature considered passing an identical law first to keep at least some Democrat supporters home.

Relatively few Democrats and liberals in Congress have come out for legalization, perhaps fearful of seeming like extreme leftists or otherwise “soft” on drugs or crime. Even former US President Barack Obama, who had a reputation as a heavy-duty toker in college, didn’t do much to push a pro-legalization agenda.

Sitting politicians of either stripe seem far more reluctant to embrace those state laws, oftentimes doing what they can to prevent the laws going into effect or adding requirements—such as not allowing marijuana in cigarette or vape form, or delaying or refusing to grant the licenses to marijuana businesses.

In New York, one of the more progressive states in the country, marijuana legalization has been opposed by progressive Democrats.

New York City Mayor Bill de Blasio has resisted all moves towards legalizing cannabis, as has New York Governor Andrew Cuomo. Now Cuomo—perhaps due to the inevitability, possibly because of a primary challenge from actress and marijuana proponent Cynthia Nixon—“has appointed a commission to study the issue”. De Blasio also—maybe bowing to pressure from his district attorneys—agreed to stop arresting marijuana users where there is no public safety concer, citing apparent racist enforcement of existing laws.

Still, many observers believe that the momentum towards marijuana legalization in the US reached a point of no return just in time for this year’s 4/20 informal cannabis celebration.

What’s changed? For an answer, look to some top conservative Republicans.

Current president Donald Trump doesn’t seem to believe in anything more intoxicating than cola—his elder brother died of alcoholism-related causes—but he’s been of at least two minds about marijuana legalization.

He appointed ferocious marijuana opponent Jeff Sessions as Attorney General, and Trump’s first Secretary of Health and Human Services, Tom Price, also opposed legalization in the strongest possible terms.

During the presidential campaign, however, Trump more-or-less stated he would let the states decide whether and how to legalize marijuana. His choice of Sessions seemed to be a reversal, but lately, it seems as if he’s been holding Sessions back.

Last month he agreed, under pressure from Colorado’s Republican US Sen. Cory Gardner to not interfere with Colorado’s marijuana industry. (Gardner had vowed to block every Justice Department nominee until he received such a reassurance.).

Another politician who recently has reversed himself and now supports legalization—at least for medical use and study—is former House Speaker John Boehner. He has joined the board of Acreage Holdings, a cannabis company “with cultivation, processing and dispensing operations across 11 states.”

In 2011, Boehner wrote, “I am unalterably opposed to the legalization of marijuana or any other FDA Schedule I drug” because he was “concerned that legalization will result in increased abuse of all varieties of drugs, including alcohol.”

Now, Boehner says, “my thinking on cannabis has evolved. I’m convinced de-scheduling the drug is needed so we can do research, help our veterans, and reverse the opioid epidemic ravaging our communities”.

Cynics might say the money Boehner will no doubt receive was a motivating factor, but opponents of legalization face similar suspicions.

Former Rhode Island Democrat Patrick Kennedy is and has been a strong opponent of legalization. Just last month he urged Congress not to do as fellow Democrat Chuck Schumer proposed and legalize marijuana.

Kennedy’s opposition seems to come from deeply held beliefs, and his experience of addiction personally and among his family in general. Kennedy, whose father was Sen. Ted Kennedy, has seen the effects of alcoholism as a son and in his personal life. He also had an addiction to prescription pills and other drugs, and suffered from bipolar disorder.

(Mental illness and drug addiction often go together; it’s called a dual diagnosis.)

Kennedy is an “honorary adviser” for Smart Approaches to Marijuana (SAM), though a more accurate name would be No Approaches to Marijuana. Among its goals are:

  • Stopping and reversing “the commercialization and normalization of marijuana,” including preventing the creation of a Big Marijuana after the model of Big Tobacco.
  • Finding “a middle road between incarceration and legalization”.
  • Decreasing “marijuana use and its consequences.“

According to SAM, it wants “an approach that neither legalizes nor demonizes marijuana.” They don’t believe it’s healthy or helpful, though they wouldn’t imprison users or prevent research.

Kennedy also is a founder of Advocates for Opioid Recovery (AOR), which promotes non-moralistic and scientific opiate addiction treatment, and The Kennedy Forum which promotes effective behavioral health treatment.

What gives some pause is that a firm that makes a scientific opiate addiction treatment of the kind advocated by AOR has contributed to one or more of his organizations, and Kennedy is on the board of an addiction treatment center.

One of Kennedy’s co-founders of AOR is conservative former Speaker of the House Newt Gingrich. While in 1996 he called for the execution of dealers of drugs, including marijuana, in 1982 he wrote in support of medical marijuana in the Journal of the American Medical Association. During his 2012 campaign for president, he said (without fanfare) that he wasn’t in favor of busting people for marijuana possession.

Other conservatives who have voiced some support for the relaxation of marijuana laws include Meghan McCain (daughter of Arizona Sen. John McCain), right-wing pundit Glenn Beck, former Alaskan mayor and vice presidential candidate Sarah Palin, Fox News host Sean Hannity and televangelist Pat Robertson.

Not that there’s a full red wave of legalization support.

Last year the final report of the President’s Commission on Combating Drug Addiction and the Opioid Crisis—led by former New Jersey Governor and Republican presidential candidate Chris Christie—was opposed to marijuana use even as a treatment for opioid addiction.

Still, as the worst fears of recreational marijuana opponents fail to materialize in states such as Colorado, Washington, and California, and with full legalization of cannabis in Canada likely to begin by summer’s end, politicians are faced with the consequences of not legalizing marijuana: lost profits, tax revenues, and credibility.

In almost a half-a-century of the War on Drugs and “Just Say No,” Americans have learned they can’t believe what their government says about the dangers of marijuana. Their own experience refutes it.

Prohibition never works when what you’re prohibiting is something the people want or maybe need.

Stephen Bitsoli

Stephen Bitsoli

Many Americans, including war veterans, believe marijuana helps them cope with their post-traumatic stress disorder or chronic pain. Marijuana can be harmful, but so can any legal product, most notably tobacco, alcohol and prescription opiate drugs.

Conservatives often espouse Henry David Thoreau’s belief “That government is best which governs least.”

Some are now concluding that should apply to marijuana, too.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.

from https://thecrimereport.org

‘Tough Love’ for Mississippi Gun Offenders: An Out-of-State Prison Term

Under an initiative inspired by the Trump Administration’s crime crackdown, the U.S. attorney in Jackson, Ms., plans to expel convicted gun offenders outside the state. But criminologists say “Project EJECT” will complicate efforts to help returning prisoners rebuild their lives.

On a cool, breezy and overcast morning this past December, U.S. Attorney Michael Hurst called a press conference on the steps of the U.S. District Court in downtown Jackson, Ms.

President Donald Trump, who had appointed Hurst the previous June in a second wave of U.S. attorney nominees, described him as sharing “the president’s vision for ‘Making America Safe Again.'”

A sign with a large red button and “Project EJECT” written across the center leaned on a tripod easel.

Hurst had invited media, Hinds County District Attorney Robert Shuler Smith, Hinds County Sheriff Victor Mason, FBI Special Agent-in-Charge Christopher Freeze, and clergy to stand by him as he unveiled Project EJECT (Empower Jackson Expel Crime Together).

“Today is a new day,” Hurst began, adding, “(T)he message to violent criminals in Jackson is simple: you break the law, you terrorize our neighborhoods, and you will be ejected from our community.”

Hurst has charged 35 people since he first announced the anti-crime initiative in late 2017. In the next two months, 13 people are going to trial before a federal jury of their peers to decide whether they will be among the first ejected from Jackson under the strategy that Hurst, Freeze and Sessions embrace, with (qualified) support from the City of Jackson.

But the program has already prompted skepticism from community residents, criminologists and reformers from all sides of the political spectrum.

John Koufos, the national director of re-entry initiatives for the Koch family-funded Right on Crime, who was in Jackson recently to urge conservatives to support prison reform and re-entry, slammed the idea of ejecting offenders to another state.

“Many times … you’ve got people locked up all over the country. How are you supposed to re-integrate these folks back into the community when they’re in Kansas?” said Koufos, a former felon in New Jersey, in a speech at Jackson’s Old Capitol Inn.

Phillip Goff, co-founder and president of the Center for Policing Equity at John Jay College of Criminal Justice, said there were risks involved in removing people from their social supports.

“The people making decisions about removing folks, shunning folks, and excommunicating them from their homes are often not the same people who are in community with those committing crimes,” said Goff in a phone interview.

“That’s a fundamental flaw with the way that we handle the criminal-legal system right now.”

The system tends to be comprised of the poorest, most vulnerable, poorly educated, least advantaged and least connected to opportunities, and those prosecuting them do not tend to be of that demographic, he added.

Sending Firearms Offenders into ‘Exile”

Every single case Hurst is pursuing under Project EJECT involves illegal use or possession of firearms in some way under an initiative U.S. Attorney General Jeff Sessions has resuscitated from the years before Barack Obama became president.

Many begin as cases that would normally put them under state jurisdiction, even for acts committed with guns. But Hurst takes the cases when they can be shown to involve interstate commerce.

In example, three individuals charged with armed robbery used a stolen Grand Am car for their getaway. But the fact that the Grand Am had been transported, shipped and received through interstate commerce made them candidates for Project EJECT.

Similarly, two individuals who allegedly held up a store in October 2017 came under Hurst’s scrutiny because their offense involved a plan to steal a getaway car manufactured outside the state.

“Carjacking is a federal crime because the car was manufactured in interstate commerce,” Hurst said in his office in February.

Hurst’s goal to “eject” violent criminals into federal court and then prisons outside the state is much like Project 
Exile in Richmond, Va., in the 1990s, which sent felons into “exile” for firearm violations.

The FBI’s Freeze, who joined Hurst at his December press conference, in fact, worked for the agency in Richmond at the time, back when James Comey was the U.S. attorney leading the program there. Freeze started pushing a version of Exile in Mississippi soon after he arrived in late 2016.

“Project Exile was founded and based on the concept that if you’re a convicted felon, caught in commission of a crime, with a weapon, there’s a five-year automatic sentence to federal prison,” Freeze told WDAM in Hattiesburg in April 2017.

Under the program, special agents from both federal and state agencies join local law enforcement to identify crimes Hurst can prosecute. A task force determines if there is enough evidence to prosecute suspects in the federal system.

Authorities will lock suspects up immediately in detention without bond, and law enforcement will not cut a deal so the suspect could be out in a few months. Once convicted, the theory goes, the felon would spend time without parole in the federal system “far, far away from Mississippi so that they cannot continue their criminal activity behind bars,” Hurst said in December.

The federal system no longer offers parole.

The idea is that the criminals would be away from their criminal networks and, thus, be likely to commit less crime.

Hurst acknowledged that they would also be removed from their families and existing support networks, while in prisons known for rough gang activity.

Nevertheless, Project EJECT won early praise from local police. Then-Jackson Police Chief Lee Vance, said at Hurst’s press conference that his “greatest wish” for the strategy is that a young man in Jackson rethinks a life of crime and will rethink his actions after watching others go to federal prison “for a long time, perhaps thousands of miles away from here.”

But some local critics have their doubts. One called it a “sinister law-and-order initiative aimed at criminalizing, victimizing and ethnically cleansing poor black people from Jackson while using violence and crime reduction as a way to cover its nefarious intent.”

The critics say they are also angered by the silence from Jackson Mayor Chokwe A. Lumumba, who has offered few public statements on Project EJECT.

Calandra Davis

Jacksonian Calandra Davis expressed her dissatisfaction with Project Eject in Jackson over the last year at a city council meeting on February 27, 2018. Photo by Stephen Wilson.

Meanwhile, citizens are forcing a public conversation about Project EJECT.

“(Since) police in the City have implemented the Project EJECT program…there have been at least seven officer-involved shootings,” Calandra Davis said at a Jackson City Council meeting on Feb. 27.

“And to realize that this program and these shootings affect African-Americans disproportionately should raise concern for all of us….”

Jackson Mayor Chokwe A. Lumumba has since put some distance between the program and city government.

“Project EJECT is (not) and has never been an initiative of the City,” Lumumba said at the council meeting. “… This administration has never said it is in favor of Project EJECT.”

Chokwe Lumbumba

Jackson Mayor Chokwe A. Lumumba has both distanced himself and the City from Project EJECT and criticized it. Photo by Stephen Wilson

But he added: “I will say that some of the comments that were made during the (Hurst) press conference where it talked about people not getting bonds and everything else was inappropriate.”

Hurst insisted in an interview with the Jackson Free Press that his initial statement had been “misconstrued.”

“We are only a part of the judicial process, and our part will be to move for detention,” he said.

He pushed back on the suggestion that his promises meant violating people’s rights to bond; prosecutors will not suggest bond, he said.

“We’re moving for detention, and the judge makes a decision based upon the facts.”

He argued that the program was really part of the federal government’s “reboot” of  Project Safe Neighborhoods, a pre-Obama-era program that Attorney General Jeff Sessions said he was re-invigorating, according to an October, 2017 statement, to “reduce the rising tide of violent crime in America.” He announced that he was allocating 40 new prosecutors to approximately 20 United States Attorney’s Offices to focus on violent crime reduction.

The George W. Bush-era initiative, which had cost the government about $2 billion since its inception in 2001, was highly controversial, and drew charges of racial bias.

But former U.S. Attorney Gregory K. Davis said Project EJECT is not precisely the same as the Jackson Violent Crime Initiative launched by his office in 2015.

Davis said in an interview that his program did not specifically threaten to send convicted criminals far away from Mississippi.

“Our issue was more so that violent people need to be prosecuted, the law needs to be enforced, and once they’re sentenced, they will be sent to a prison,” he said. “More than likely, that would be at a different location other than a local area.”

Some of those convicted were imprisoned in state. Others went to Arkansas, West Virginia, Florida or Georgia, but Davis made clear he did not set out to have people who commit violent crimes sent far away like Hurst; that is where they landed.

Ceasefire Fires Back

What rankles many observers is Hurst’s insistence that the program is a natural continuation of violence intervention programs like Richmond’s Project Exile or Operation Ceasefire in Boston.

“On the prosecution side, we’re not reinventing the wheel,” he explained. “We’re taking a lot of what has been done in other cities.”

But David Kennedy, the violence expert who helped design Operation Ceasefire—which launched as the Boston Gun Project in 1996—did not mince words when asked about Project EJECT and its earlier models in Richmond, Va., Rochester, N.Y., and other cities in the U.S.

Kennedy calls Sessions’ crime strategies “evidence-free”, despite violence statistics its proponents cite to prove otherwise. Not to mention, he said, strategies like EJECT and Exile have little to do with his Ceasefire approach, which is often referred to as the “Kennedy model” of violence deterrence.

“One of the innumerable mistakes is to say that Project Safe Neighborhood was built on Kennedy’s work,” Kennedy said in his office at John Jay College of Criminal Justice in New York where he is a professor.

“… That’s not right. It was in a small way based on my stuff. … We produced the first research that really showed there was such a thing as illicit markets in firearms.”

But the approach that became Project Exile under U.S. Attorney James Comey in Richmond ignored vital aspects of his team’s work to decrease group violence, Kennedy said, calling his work “a partnership approach focused on groups.”

David Kennedy

David Kennedy

“The other (approach) was Exile, which actually has its roots in opposition to my work,” Kennedy added.

Unlike Operation Ceasefire, Project Safe Neighborhoods declined to focus on how violent people get firearms, whether legally or illegally. The Exile approach, which was also endorsed by the National Rifle Association, puts the prosecutorial onus on the street-level shooters with little attention to where the supply of weapons came from or how to stop it. That led to charges of racial disparities, and contributed to increased distrust between police and communities of color, Kennedy said.

The Operation Ceasefire approach, which Kennedy’s team now brings to cities through the National Network for Safe Communities, is about prior engagement with those believed likely to commit gun violence, offering them help and services, and also threatening them with arrest on the state or federal levels if they or their associates commit violence. It is also about identifying illicit markets for weapons. And those who traffick the weapons aren’t usually the young black people who get caught up in federal Exile-type enforcement.

Initially, the NRA liked his approach, Kennedy said, but redirected its support away from a program that identified illicit markets to supporting the street-level federal arrests the Bush administration adopted.

Those arrests sent a disparate number of people of color to a gang-packed prison thousands of miles away for additional years, while not bothering to also focus on how they got the guns in the first place. Kennedy also said the federal prosecutions were brought unevenly, deepening distrust in communities toward law enforcement.

In his office, Hurst backed away from Ceasefire when asked if his alliance was also including the services and prevention side of the strategy, as Kennedy’s approach requires.

“It’s really not something, that aspect of Ceasefire, we have not really considered. (EJECT is) really going to be more in line with Exile. It’s almost Exile Plus in the sense of Exile was very strong. But I don’t know how much of the prevention and, yeah, re-entry they did, but it’s hard to argue with their numbers during the time.”

Kennedy does argue with the numbers of Richmond’s Exile and all its clones. Violent gun crime did fall dramatically in Richmond then, but it did not in other cities that emulated the strategy, raising his suspicion that more was going on, he said.

“The reason we know Exile doesn’t work is … because there’s a small body of really good formal evaluations … that say it doesn’t work,” Kennedy said. “I’m not aware of any place where (Exile) was associated with violent crime reduction.”

“What else was going in Richmond at the time? Was there something else that accounted for the reduction?” he added.

Jackson ostensibly tried an Operation Ceasefire approach at one time called “MACE” supposedly modeled on Baton Rouge’s BRAVE strategy, but a Jackson Free Press investigation found that local law enforcement just left out the services and outreach components and used the resources for massive enforcement, which violates the principles of Ceasefire.

Juan Cloy, a former Jackson police officer who was assigned to the FBI’s Safe Streets Task Force, is the Mississippi project director of Fight Crime, a nonprofit to help prevent youth crime.

In a perfect world, Cloy said, no one would need to go to prison. He wants to approach the justice system with the kind of equilibrium David Kennedy talks about—balancing the stick of arrest with compassion and programs that preempt people from entering the system, especially kids.

“So what we’re trying to do is keep young people from even being introduced into the federal system or into the local or state system…,” Cloy said.

“That way we don’t have to worry about any acronyms at all, right?”

Gregory Davis

Former U.S. Attorney Gregory Davis said Project EJECT differs somewhat from his violent-crime initiative. Photo by Imani Khayyam.

Greg Davis agrees. While in office, the former U.S. attorney had an initiative called LEAD: Mississippi’s Legal Enrichment and Decision Making Program. Through it, he spoke to students around the state about staying on the right path—but still focusing on what would happen if they did not.

“One of my primary goals as a prosecutor is to prevent crimes from happening in the first place,” Davis told a group of students at N.R. Burger Middle School in Hattiesburg in October 2014.

“Educating students about the social and legal consequences of their decisions is essential to reducing negative behavior and making our communities safe,” he added.

Does “Tough Love” Work? 

When Hurst announced Project EJECT, he grinned as he drew connections between his initiative and basketball—particularly what happens when you commit a foul against another player.

“Goodness knows, I had my fair share of fouls,” Hurst said in December. “But, if you intentionally, flagrantly violate the rules, you will be ejected. That’s the consequence. What we’re announcing today with Project EJECT are consequences, but also hope.”

Hurst added that even if you get ejected from a basketball game, you don’t have to leave the sport for life. Rather, you can come back the next game and abide by the rules. He sees the same thing happening for people sentenced far from home under Project EJECT.

“Come back after you serve your sentence, be rehabilitated, abide by our rules, and we will welcome you back with open arms in our community,” Hurst said.

Hurst maintains that the threat of being shipped away can have a “deterrent effect.”

“I know that’s tough love, but it’s combined with the fact that if you want to come back and follow along, we really will help you re-enter society. It can’t just be tough love; it’s got to be that (promise of help).”

The non-law enforcement piece of Project EJECT involves the faith-based community, nonprofits, neighborhood associations and businesses, Hurst said.

In fact, local stakeholders represent the “T” in EJECT—together. Hurst wants business owners to give people a second chance once they have served their time and returned.

He does talk about getting to the root cause of crime through prevention, education, rehabilitation, communication and collaboration, but it is not built into Project EJECT with federal resources and strategies behind it. Hurst made his limitations clear, and leaned on the community behind him instead to achieve better communities.

“We don’t have all the answers, guys,” Hurst said in December. “Project EJECT is fluid, flexible for a reason so we can adapt to the changes and circumstances, and frankly rely upon the expertise of these men and women standing behind me.”

However, Attorney General Jeff Sessions has been less clear—quiet even—on re-entry, especially when compared to his predecessors. In his October 2017 Safe Neighborhoods memo, Sessions promised a “comprehensive approach” to public safety, including prevention, enforcement and re-entry efforts.

But he mentions re-entry only twice, and suggested supporting locally based groups’ re-entry efforts, as Hurst later echoed.

That is, the feds bring the big stick, and locals fund the prevention carrot.

Former attorneys general Eric Holder and Loretta Lynch had zeroed in on re-entry efforts as well. Lynch, in particular, had a National Re-entry Week that Davis implemented in Jackson.

Davis stressed the importance of re-entry efforts for both the offender and the citizens in community.

“Re-entry is important because what happens is this,” he said before pausing and releasing a long sigh. “Once someone has paid their debt to society, they need to have an opportunity to re-enter society and be a productive member.

“If they re-enter society and they’re not prepared, unable to get a job, unable to have a driver’s license, unable to get health care needs, unable to get whatever services that they should have to allow them to be productive, then they run the risk of re-offending.”

Recidivism after spending time in violent prisons is an epidemic.

“If somebody re-offends, they have another victim …” Davis said. “And that’s one way you reduce crime, by not having people who get out re-offend.”

Phillip Goff of the Center for Policing Equity does not consider programs like EJECT, which hat remove people from their support networks, to be forward-looking. In fact, he argued, they make re-integration more problematic.

“What are the chances of when that person gets out, their lives can be transformed?” Goff said.

“Who among us … can be removed from social networks and become better for it? Any policy that removes someone from their social support is not a policy that is aimed at making them more likely to succeed when they re-enter….”

This is a condensed and edited version of a story published earlier in the Jackson Free Press. The complete story is available here. Donna Ladd, founder and editor of the Free Press, is a 2018 John Jay/Quattrone Justice Reporting Fellow. The Quattrone Center for the Fair Administration of Justice at Penn Law School assisted with research. Readers’ comments are welcome.

from https://thecrimereport.org

Sex Workers Fight Efforts to Link Prostitution with Trafficking

As the campaign against sex trafficking emerges as a $47 million cottage industry, it has also spurred a “moral panic” that sex workers say has made them increasingly vulnerable to police abuse, and turns them into targets for those with religious or moral objections to prostitution.

At the height of national outrage over what government officials and activists call a human trafficking “epidemic,” sex workers are challenging what they say are misleading and harmful efforts to link prostitution to sex trafficking.

“People have used this moral panic, this idea that there is a trafficking epidemic, to create so much funding and so much policy that now that they’re being pressured to show the evidence—to show the sex trafficking arrests,” said Tara Burns, researcher and founding member of the Community United for Safety and Protection (CUSP), a group of former and current Alaska sex workers allied with sex trafficking victims.

“That’s where we see police arresting [prostitutes] for sex trafficking themselves, just so they can get those sex trafficking numbers up, and match the moral panic they’ve created.”

CUSP is lobbying for the passage of companion bills (HB 112/SB 73) in the Alaska Senate and House which would expand sexual assault laws to explicitly prohibit law enforcement from sexual contact with trafficking or domestic violence victims—as part of its continuing campaign to protect sex workers from laws that make them “vulnerable to violence and exploitation.”

In California, another group is challenging a state law that criminalizes prostitution, and asking a federal court to allow for a closer examination of studies that link consensual sex work to sex trafficking.

In January, a three-judge panel in the 9th circuit dismissed a suit by the Sex Workers and Erotic Service Providers Legal, Educational and Research Project (ESPLERP) to declare unconstitutional state laws that make prostitution a crime. The panel sided with 13 state and national organizations that wrote in to oppose ESPLERP, arguing that prostitution needs to remain criminalized in order to combat the “attendant evils” of violence against women, drug abuse—and above all, sex-trafficking.

ESPLERP filed for a rehearing before the full 9th circuit on January 31, wanting the court to subject the studies it cited to a higher standard of review. But in an era when pornography has been declared a “public health crisis” linked to modern-day slavery, researchers who do not openly condemn prostitution are fighting an uphill battle—and sex workers themselves find it hard to be heard over the din of victims’ advocates who would speak for them.

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ESPLERP members and their legal team in court on Oct 2, 2017. Photo courtesy of Maxine Doogan

Maxine Doogan, founder of ESPLERP, says that denying sex workers equal protection under the law has led directly to abuse by police and other authorities, and that she and other people in the industry cannot report actual cases of forced trafficking without fearing arrest themselves.

“There are many people, many women, that I know who are prostitutes, who have been caught up in these prostitution sting operations; and have been sexually assaulted by the police, and raped,” she said in an interview with The Crime Report.

“Our activity is illegal. and so that just gives license for anybody to do anything to us that they want at any time, and get away with it.”

In the document submitted to the California court, opposition groups argued that “prostitution is sexual coercion, and closely related to sex trafficking,” and that “decriminalization of prostitution will legitimize sex trafficking.”

The authors of the opposition brief cited numerous “authorities” for their argument, identifying in particular eight publications by Melissa Farley, a clinical psychologist and anti-pornography activist well known for her view that sex work is “a particularly lethal form of male violence against women,” and an expression of “male hatred of the female body.”

“To the extent that any woman is assumed to have freely chosen prostitution, then it follows that enjoyment of domination and rape are in her nature,” Farley wrote in a 2000 article for Women & Criminal Justice.

But according to independent scholars in the field, the majority of the publications cited in the opposition brief have not only been debunked, but also discredited in the Canadian Supreme Court during cross-examination. The court subsequently struck down Canada’s anti-prostitution laws, finding them unconstitutional because of the negative impact they had on the safety and lives of sex workers.

Doogan notes that victim advocates are “not challenging the men who really have control over our world.”

She added: “They want to dismiss the sexual violence that we’re talking about that goes on with police.”

Doogan and other sex-worker advocates argue that the majority of people being rounded up and arrested during anti-sex-trafficking sweeps such as Operation Cross Country are not slaves held in bondage, but women working together, or as independent prostitutes– a claim supported by investigative journalists following this arrest data.

CUSP’s Terra Burns, who has analyzed thousands of charging documents from several states over the past five years, said that the most serious cases of child sex trafficking “are for the most part not cases that are being found in prostitution stings, [but] cases that are being found because somebody came forward and made a report.”

And in jurisdictions that aren’t aggressively charging people for prostitution, more sex workers are coming to police with tips, she added.

Burns, who herself was sex trafficked as a child, has lobbied extensively for legislative amendments in Alaska. She helped push through bills at the state and county level to allow immunity for sex workers reporting a crime, and hopes Alaska legislators will place priority on the proposed measure to make it illegal for police to sexually penetrate someone they were investigating.

“When an officer coerces you into having sex with him under the threat of arrest, or another kind of threat, that is an act of violence,” Burns said.

Police don’t need to have sex with someone in order to charge them with prostitution, but it happens. She describes one charging document where a police officer paid for a hand job at a massage parlor. “They could have arrested her right there, but instead he waited and got a hand job. and then he put her in handcuffs. And when that happens, it’s really traumatic.”

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Doogan (left) and Burns, introducing their first bills. Photo courtesy of Terra Burns

Other charging documents, published on CUSP’s website, describe police having multiple sex acts with women before arresting them.

The Alaska Department of Law as well as the Anchorage police continue to oppose the no-sexual-contact bill, and it has stalled for almost a year.

See also: ‘Invisible No More:’ The Other Women #MeToo Should Defend

In addition to government task forces, the anti-trafficking movement has also created a $47 million cottage industry of victim advocacy.

Significantly, in order to receive funding, organizations are still being asked to sign a Bush-era anti-prostitution pledge (also known as the “global gag rule”), even though it was ruled unconstitutional in a 2013 Supreme Court decision.

The same goes for researchers, according to George Washington University sociologist Ronald Weitzer, who has studied the sex industry and human trafficking for over three decades, and who served as an expert witness in the case before Canada’s Supreme Court. Before the gag rule was overturned, he was asked to sign the pledge in order to conduct an academic literature review for the National Institute of Justice.

“It’s shocking that even something as mundane as a literature review in this area becomes politicized,” he told The Crime Report.

More recent examples include University of Nevada researcher Barbara Brent, who was part of a 2014 task force developing a trafficking education program for first responders in Nevada.

In an email to The Crime Report, she wrote: “Participants, including Las Vegas Metropolitan Police, who receive federal trafficking funds, indicated that I could not include sex worker rights organizations on the team to develop programs because that violated their grant agreement. The task force eventually fizzled out, and I don’t know what happened to those efforts.”

Last year, the New Hampshire Human Trafficking Collaborative Task Force broke ties with its grants manager, Kate D’Amato, for apparently supporting decriminalization during a public event. The Manchester Police Department said D’Amato’s opinions violated a federal grant, though it is unclear whether that claim was ever challenged.

“What it means is often you’ll get religious or evangelical organizations, both in the US and internationally, to get funding for anti-trafficking work but have very little expertise in the area,” said Weitzer.

“And this was a major criticism of the bush administration funding for many of these anti-trafficking organizations during that period.”

For example: Priceless Alaska, a Christian anti- trafficking organization that works closely with law enforcement, engages a team of volunteer mentors to work with trafficking victims. By way of preparation, mentors receive a three-day training. According to its website, the training “focuses on the mentor’s personal spiritual development first and sex trafficking-specific training second.”

Among the organizations that signed on to the ESPLERP opposition brief was Covenant House, the largest privately funded agency in the US that provides services to homeless and runaway youth. Last year, Covenant House worked with Loyola University to produce a multi-city report on forced labor and sex trafficking. The report claims that one in every 5 homeless youth are victims of human trafficking.

In Anchorage, that number was even higher: “Study: 1 in 4 homeless youths in Anchorage victims of human trafficking,” the local headline read.

But Burns, who has been collecting state and county arrest records for over five years, says that the data don’t add up, and that the report is intentionally misleading.

“Nobody’s been charged with trafficking a minor in Alaska since 2008,” she told The Crime Report.

In 2014, following the national trend, Alaska created the Special Crimes Investigation Unit, which is devoted to finding and rescuing juveniles who are being trafficked for commercial sex.

“They’ve existed with that mission for four years now,” said Burns, “and have yet to charge anybody with trafficking a minor.”

The problem with the Loyola report, according to Burns, is the way it switches between various definitions of a sex trafficking victim; from youth that are not involved in the commercial sex industry at all, “youths that are underage and just trading sex for survival means,” and youths who are being coerced or held in bondage and commercially trafficked.

“If [Loyola researchers] had talked to a youth who actively had a violent pimp, they would have had to report that to police and the police would have gone in— because they’ve been looking to charge somebody with trafficking a minor, obviously, to support all this rhetoric. We would see some charges if it were actually going on in that way,” Burns said.

But when “you’re not being honest about what you’re actually talking about, and then you’re turning around and saying ‘oh these kids are being kidnapped by pimps and forced into prostitution’— then the policy that ends up being created is not going to serve those actually kids that really exist–that are out there having survival sex right now.”

Fundamentally, Burns believes that this study—and others like it—are compromised by the “religious agenda” underlying the moral campaign.

“Covenant House and Loyola University are both religious organizations who have a religious agenda to prevent other people from having sex that they disapprove of,” she said.

What Burns has found by looking at thousands of charging documents is that the majority of people arrested in “sex trafficking” stings are women working together as prostitutes, or with a driver—both things that increase safety in the sex industry, she says.

Just three people were charged with sex trafficking in the first two years of Alaska’s new sex-trafficking law. One was a dancer charged with sex trafficking herself, according records Burns obtained.

Another was Amber Batts, the owner of the online escort service Sensual Alaska. Prosecutors were unable to charge her with force, fraud, or coercion, since people were working for the service of their own free will– but they still convicted her on charges of 2nd degree sex trafficking. She was sentenced to five years in prison.

“When you think of sex trafficking, you think of people that are held against their will and made to do things that they don’t want to do,” Batts’ sister, Tiana Escalante, told The Crime Report.

Escalante described being shocked to learn that a woman can be charged with sex trafficking in Alaska for a consensual act—even when she is working independently.

“I think it’s kind of outrageous. It’s her body, her right to choose.”

Meanwhile, despite the funding for sex trafficking “rescue” operations, Burns says that as a first responder she has been unable to get law enforcement to investigate two recent cases where victims were held against their will and sold for sex. In the first case, she said the FBI told her there was not enough evidence.

“I’ve been involved in or around criminal investigations for quite a bit,” she said. “There was so much evidence, there were text messages.”

In the second case, she said, despite having an admission from a violent pimp on social media, “the FBI told me they didn’t have time.”

A year ago, Burns helped one victim who was violently trafficked make a report to the FBI, and managed to get her money from the state Victims of Violent Crimes Compensation Fund.

“But the people from the violent crime compensation board actually called me up and let me know, ‘you won’t be able to receive this money on her behalf because we can’t give money to organizations that don’t oppose prostitution,’” she said.

Describing people who have illegal sex as being incapable of making a choice, or too corrupted to understand their own victimhood, isn’t a new strategy.

“It’s very similar if you look at the history of the laws against gay sex and the stigma around gay people… you look back and remember [people said] ‘well, there’s only gay because they were abused as children. And so the gay people are going to go out and they’re going to rape our children,’” Burns said.

“That’s the same kind of stigma that we see around the sex work. Well, prostitutes are all either victims, or they started out as victims and now they’re going to go and victimize somebody else.

“Imagine if you saw the same kind of rhetoric around domestic violence victims. Saying that domestic violence victims need to be arrested because they’re too morally damaged to know what’s good for them.”

This is precisely what Doogan and her cohort are trying to face down in court. As a sex worker and founder of ESPLERP, she insists that she is not a victim.

“If you were a victim advocate, I wouldn’t even bother talking to you,” she told The Crime Report. She calls them the “Anti’s.” “I think that they’re extremely tone deaf.”

“They’re treating us like the sex slaves that they think that we are. That’s the problem with their approach. I stopped talking to them because they don’t want to hear, and take responsibility for their own exploitative behavior.”

Members of the media are some of the worst perpetrators of this narrative violence, says Doogan, “renaming us, reclassifying us, stripping us of our agency.

“We have been barred from our own authority on these issues.”

Those interested in watching oral arguments in ESPLERP v. Gascon can view them here. Victoria Mckenzie is Deputy Editor of The Crime Report. She welcomes readers’ comments. 

from https://thecrimereport.org