Ending ‘Death Culture’ for Prison Workers

Employees of the nation’s prisons and jails face significant physical and mental health issues. Experts gathered for a second time at a national symposium to collect more data and develop solutions for worker problems.

In 2003, Mike Van Patten had come to the end of his road. His marriage of 19
years was over.

He was sitting on the floor in his kitchen, a partly empty bottle of gin by his side, tears
running down his face and a loaded 9 mm Smith & Wesson pistol in his hand.

He was ready to end his life as a longtime corrections officer at the Oregon State
Penitentiary in Salem. He believed he could no longer cope with the intense, daily challenges of his job and the failures of his personal life.

Had his 17-year-old son Trevor not walked into the house and found his father about to
shoot himself through head, Van Patten would not be the model corrections officer he is today.

He is a sergeant working at a minimum-security prison who has helped design
programs for his peers that include exercise, openly talking about stressful events and treating inmates with more respect.

“I’ve developed a program for department coordinators to help the staff,” Van Patten
said. “If we can save one person [from suicide], we have done what we could….If we make this stuff stick, they will do all right.”

Ann Jacobs, director of the Prison Reentry Institute at John Jay College of Criminal
Justice, emphasized that while suicide is an attention-getting issue for thousands of corrections officers in the United States, managers of corrections institutions must detect many other problems long before suicide becomes an apparent choice.

High Stress Jobs

Mental and physical health problems among corrections officers span the spectrum from mild depression to suicide and high blood pressure to heart attacks because dealing with inmates is intense work that can require exceptional people skills. Moreover, such demands as mandatory overtime cause additional stress on officers and their families.
Yet no one in the field of corrections seems to know the extent of the problems, nor does much rigorous research data exist.

Nine years into his second marriage, Oregon’s Van Patten said he and his wife have learned to talk about issues he brings home. Trevor, his son from his first marriage, has followed his father into corrections.

“He and his wife openly discuss his issues and his work,” said Van Patten, who said he
never talked with his first wife about the stressful events that happened in his days at the
penitentiary.

Van Patten told his story to a reporter after a version of it was shown on a video screen to about 50 state corrections officials and officers, federal officials and scholars at the second National Symposium on Correctional Workers Health. The video was one of the more compelling moments of the symposium.

The session was held at the St. Louis University Law School in advance of the annual conference of the American Correctional Association (ACA), which concludes Tuesday in St. Louis.

“The ACA conference is how we spread the word” about the necessity of finding ways to
counter the mental and physical health issues that corrections officers face, said Colette Peters, director of the Oregon Department of Corrections since 2012.

Organizers said the symposium’s intent was to build awareness among corrections
professionals about the mental and physical health issues that confront corrections officers in daily contact with inmates.

In an interview, Peters said her agency has been working for several years to create a different culture among its 4,500 employees, administrative as well as
front-line corrections officers.

Words like “offender,” “inmate” and “prisoner” are not used.

Instead, the man or woman in prison is an “adult in custody.”

“We hire corrections professionals,” she said. “Guards stand in the corner. We want our
corrections offices to follow the three Rs: be a role model, reinforce positive behavior and
redirect negatives.”

A litany of common problems cited by corrections officers was recited by several speakers. They include high blood pressure and hypertension, obesity, depression, inability to communicate with spouses and partners, and inability to communicate with peers, superiors and “adults in custody.”

Caterina Spinaris is a clinical psychologist who founded Desert Waters Correctional Outreach, a non-profit corporation that promotes “the occupational, personal and family well-being of the corrections workforce” through “evidence-informed resources, solutions and support.”

In an interview, she termed prison environments throughout the United States a “death
culture” for employees.

“Desensitized to Death”

“They are almost desensitized to death,” Spinaris said. “There is a culture of ‘toughness.’
It’s a culture of false resilience and of avoidance and denial. There is a relative lack of effective coping skills,” meaning corrections officers often are not trained to function in a healthy manner in their jobs.

That problem is compounded, she said, when prisons are located in rural areas where both jobs and professionals who can help corrections officers are scarce.

Many corrections officers have large gun and knife collections in their homes, which makes firearms easy to use if an officer feels he has reached the end of the road and has no way out except to take his own life, Spinaris said, adding that, “Some have guns in every room.”

She developed and expanded her interest and research in the mental and physical
health of corrections officers because they kept coming into her office for counseling.

Asked how long it takes to change the culture of a prison work force, Spinaris referred to
a lack of objective data that was theme throughout the symposium: More hard data, gleaned through research and supported by federal and foundation grants, are needed for the professionals to be able to make long-term, concrete proposals to create positive results for corrections employees.

In a 28-page brochure published in 2013, the U.S. Department of Justice’s Office of Justice Programs Diagnostic Center stated: “There is very little research on the prevalence and effectiveness of correctional officer wellness programs. Both the American Correctional Association and the National Institute of Justice have published guidelines for the development of [correctional officer] wellness programs but neither is evidence-based.”

No one ventured a guess as to how long it would take to change the work environments
and cultures of hundreds of prisons and jails in the United States. “I know of a small probation office where it took 10 years,” Spinaris said.

Repps Hudson is a veteran newspaperman and freelance writer in St. Louis who is an adjunct at local universities. He welcomes comments from readers.

from https://thecrimereport.org

The Dirty Data Feeding Predictive Police Algorithms

The ability to predict crimes before they happen has long been a topic of fascination for science fiction writers and filmmakers. But in real life, the data feeding predictive algorithms is riddled with problems, according to a researcher at the UC Davis School of Law.

The ability to predict crimes before they happen has long been a topic of fascination for science fiction writers and filmmakers. In real life, predictive policing is getting a similar buzz, as dozens of police departments experiment with algorithm-driven programs to help them deploy resources more effectively.

But more attention should be focused on problems with the data that feed predictive algorithms, argues one researcher from the UC Davis School of Law.

“Predictive policing programs can’t be fully understood without an acknowledgment of the role police have in creating its inputs,” writes Elizabeth E. Joh, in a paper forthcoming in the William & Mary Bill of Rights Journal. Police aren’t just passive end-users of these data-driven programs–  they generate the information that feeds them.

The difference between crime, and crime data  

“A closer look at the “raw data” fed to these algorithms reveals some familiar problems,” the study maintains.

Even under the best of circumstances, crime data only partially captures the actual crime that occurs in any given place. To become fact, a crime must first be discovered, investigated, and recorded by police.

See also: Measuring the “Dark Figure” of Crime

Racial bias is only one factor that can influence the way police record crime, as well as the rate at which they record it, writes Joh. Other factors include workplace pressures, contract disputes, funding crises, the seriousness of the offense, “wishes of the complainant, the social distance between the suspect and the complainant, and the respect shown to the police.”

Changes in policy, such as the ‘broken windows’ campaign of the early 90s, also leave an indelible footprint on crime data.

There is also a concern that the algorithms produce self-fulfilling prophecies; send police to an area where crimes occurred in the past, and chances are that they’ll see something, reinforcing the the prediction.

As crime forecasting programs become more and more commonplace in police departments across the country, the consequences of data gaps will also grow in scale.

“Many of these issues will become even more difficult to isolate and identify as algorithmic decisionmaking becomes integrated into larger data management systems used by the police.”

The legitimacy of the “black box” algorithms themselves, which remain hidden behind proprietary information laws, is also uncertain. Last year, ProPublica investigated an algorithm created by Northpointe, Inc, and after comparing risk scores to actual recidivism rates, found the program to be only “somewhat more accurate than a coin flip.”

Ultimately, Joh cautions against “the assumption that algorithmic models don’t have subjectivity baked into them because they involve math.”

The same goes for law enforcement’s role in generating crime data:

“As long as policing is fundamentally a set of decisions by people about other people, the data fed to the machine will remain a concern.”

This summary was prepared by Deputy Content Editor Victoria Mckenzie. A full copy of the report can be obtained here. Readers’ comments are welcome.

from https://thecrimereport.org

Children Exposed to Crime Rarely Get Needed Services: Study

Children are more deeply affected by crime, both directly and indirectly, than previously realized, a sobering new research paper from University of Pennsylvania Law School has found. And while most states provide services for children affected by crime, a world-class bureaucratic labyrinth makes it extremely difficult for anyone, particularly parents who are not highly educated, to access these programs. Yet not providing counseling and other help for these children is a step almost certain to cause more lasting damage both […]

Children are more deeply affected by crime, both directly and indirectly, than previously realized, a sobering new research paper from University of Pennsylvania Law School has found.

And while most states provide services for children affected by crime, a world-class bureaucratic labyrinth makes it extremely difficult for anyone, particularly parents who are not highly educated, to access these programs.

Yet not providing counseling and other help for these children is a step almost certain to cause more lasting damage both to the helpless minors and to society in the long term.

The study, conducted by Michal Gilad, looked at five categories of impact across 50 states: children’s being directly victimized by crime, witnessing crime in the family, witnessing crime in the community, parents being hurt by crime, and parents being incarcerated. While no one thinks that a crime committed against a child won’t cause psychological harm, the report found that even indirect exposure, such as witnessing violence in the community, damages children because of the plasticity of their developing brains and lack of emotional maturity.

“The documented harm ranges from physical and mental health problems to increased risk for learning disabilities, behavioral problems, repeat victimization, juvenile delinquency, adult criminality, and substance abuse,” writes Gilad.

Moreover, the problem is much more widespread than most people may think. The study found that “nearly half of the minor children living in the United States today” have been victimized or exposed to crime in their home or community each year.

And yet, “even when identified, only a minuscule minority ever receive services or treatment to facilitate recovery.” While Gilad was surprised and heartened to discover through a newly designed survey that in the majority of the 50 states, services are in place to help children in four of the five crime-impact categories (the exception being children of incarcerated parents), an extremely challenging bureaucratic labyrinth exists.

Even in conducting the survey for his report, Gilad found that contact information for agencies serving children was hard to come by with phone numbers and emails withheld reportedly for security reasons and “phone contact frequently proved to be futile, as the caller seeking information is transferred from one person to another until reaching a dead end, usually a voice mail filled to capacity.”

In a disturbingly large number of cases, once Gilad was able to communicate with an agency worker, there was lack of awareness of statutorily mandated victim-assistance funds for necessary services. Lack of coordination, and stakeholders not speaking the same language, was apparent.

This report poses the chilling scenario: “Imagine a child in desperate need for assistance to overcome trauma in this environment. The child must depend almost solely on a lay parent with no professional skills, and often with only minimal education and resources, to go through the daunting journey through the thorny terrain of the system.”

The difficulty in finding out how to help children victimized by crime raises the possibility that “these persistent and reoccurring system design flaws and administrative roadblocks are not entirely coincidental,” and are saving states money in the short term, the report says.

“Unfortunately, an evidence-based examination of the problem indicates that such short-term savings are likely to result in epic long-term costs borne by tax payers and society,” Gilad writes.

This summary was prepared by TCR Deputy Web Editor Nancy Bilyeau. A full copy of the report can be obtained here. Readers’ comments are welcome.

from https://thecrimereport.org

Do Criminal Defendants Have Web Rights?

A Supreme Court ruling in June overruled the conviction of a sex offender for violating his probation after posting on Facebook. But that opens up a new legal minefield over limitations on internet access for anyone convicted of a crime, warns a Washington, DC attorney.

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service.

In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in—and specific to—sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts.

Lester Packingham pleaded guilty to having sex with a 13-year-old girl when he was 21. Eight years after his conviction, Lester bragged on Facebook about a happy day in traffic court, using the screen name of J.R. Gerrard, and exclaiming:

“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent…Praise be to GOD, WOW! Thanks JESUS!”

A police officer tracked down court records, obtained a search warrant, and correctly identified “J.R.” as an alias for Lester Packingham.

He was subsequently convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds.

According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD—all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.

There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions. Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior. Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?

There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes. For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world.

The intention of the judges seeking to restrict web access in these cases is understandable. They want to remove potential tools of victimization from the hands of convicted criminals. But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net—likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.

To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.

While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release.

So, somewhat ironically, the next Lester Packingham may find himself spending more time in prison because of his inability to convince a judge that self-restraint on the computer can adequately replace judicially-imposed restraints.

Perhaps the safer bet here is on technology – that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights.

James Trusty

James Trusty is a Member at Ifrah Law, PLLC, where he leads the White Collar Practice Group. He was formerly Chief of the Department of Justice Organized Crime & Gang Section, and has spent 27 years serving as either a local or federal prosecutor. He also teaches criminal Justice courses at University of Maryland (Shady Grove). He welcomes comments from readers.

from https://thecrimereport.org

Teen Overdose Deaths Jumped in 2015 After Decline

The jump in fatalities was driven by heroin and synthetic opioid use and by an increasing number of deaths among teenage girls, the National Center for Health Statistics reported.

The number of U.S. teens to die of a drug overdose leapt by almost a fifth in 2015 after seven years of decline, the National Center for Health Statistics has found. The jump in fatalities was driven by heroin and synthetic opioid use and by an increasing number of deaths among teenage girls, The Guardian reports. Deaths among teenagers represent a tiny portion of drug overdose deaths nationally, under two percent. The report comes just as the Trump administration struggles to craft a plan to fight an opioid epidemic that claimed more than 52,000 lives in 2015. “We wanted to document that in this age group there had been a decline [in deaths],” said Sally Curtin, lead author of the study. “The trends were unique for this age group. But, once again, it did increase again between 2014 and 2015.”

The report looked at the rate of overdose deaths for teens aged 15-19 between 1999 and 2015. Researchers found the rate of teens who died from a drug overdose dropped 26 percent between 2007 and 2014. Among boys, the death rate fell even more – by one-third. Yet in 2015, the rate of overdoses among teens increased by almost one-fifth. That year, 772 teens died of drug overdoses. For the better part of a decade, even as drug overdose rates nationally have soared, a declining number of teens have died of drug overdoses. Indeed, fewer teens reported even trying drugs. A 40-year-running, nationally representative survey called Monitoring the Future recently recorded the lowest rates of drug, alcohol and tobacco use among middle and high school students since the 1990s. Curtin cautioned that it was too early to sound alarms about a potential trend of teen deaths with just one year of data. The larger trends are ominous. Researchers found that the rate of overdose from synthetic opioids has increased sixfold since 2002, while heroin death rates have tripled.

from https://thecrimereport.org

The Wrong Path: Involuntary Treatment and the Opioid Crisis

The use of involuntary commitment for drug addiction is expanding across the country, as desperate families seek help for their loved ones. But it is likely to make things worse.

In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”

The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”

In this case, the facilities housing criminals and patients were, in fact, one and the same.

The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”

Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.

The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.

In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.

That highlights the perversion of our drug treatment system.

It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.

Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.

The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.

Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.

In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.

Leo Beletsky

As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.

Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 in this preliminary analysis.)

Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).

Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).

Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.

Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.

This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.

Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.

Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.

Elisabeth Ryan

Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.

The way services are currently rendered is also a barrier.

Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.

Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.

Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.

See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach 

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs publichealthlawwatch.org, on Twitter at @phlawwatch. They welcome comments from readers.https://twitter.com/phlawwatch 

from https://thecrimereport.org

Report Urges Police Transparency on Forfeiture Slush Funds

A new edition to the 2010 report “Policing for Profit” ranks the states’ efforts to protect citizen rights, spotlighting the lack of transparency by police departments on the use of seized millions.

The aggressive pursuit of people’s homes, cash, and possessions through use of civil forfeiture laws continues to escalate, becoming an essential “cash cow” for law enforcement departments that show little or no transparency in how they spend the money they seize from those who haven’t even been formally charged with a crime, according to an updated report by the Institute of Justice (IJ).

In an expanded second edition of the report Policing for Profit: The Abuse of Civil Asset Forfeiture, IJ ranked states by their protection of citizens’ rights with regard to civil forfeiture. Thirty-five states ranked below a “C,”  with the 10 worst being New Jersey, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, West Virginia, Wyoming. At the very bottom of the list are Massachusetts and North Dakota, the two states to receive an “F.”

The 2010 release of Policing for Profit, along with newspaper stories on questionable police seizures, brought more attention to the controversy. In recent years, New Mexico and Washington, D.C. passed reforms, and lawmakers across the country are taking more of an interest in civil forfeiture’s abuses in light of the staggering increases in seizures—in 2014, annual deposits into the Department of Justice’s Assets Forfeiture Fund reached $4.5 billion, a 4,667 percent increase over 1986.

The IJ report, written by Dick M. Carpenter II, Ph.D., Lisa Knepper, Angela C. Erickson and Jennifer McDonald, with contributions from Wesley Hottot and Keith Diggs, calls for abolishing civil forfeiture, and if not, to prevent law enforcement from seizing money and possessions until the standard is raised to “beyond a reasonable doubt.” As it stands, a person’s home or business can be seized without his or her being convicted or even charged with a crime.

The report also urges lawmakers to “remove any financial incentive for law enforcement to seize property.” When it comes to reform, “Opposition from law enforcement is fierce,” notes the new IJ report, which delves into the lack of transparency on what police do with the money seized in the chapter “Following the Funds.”

According to the report, “most jurisdictions lack any reporting requirements for forfeiture expenditure.” Across the country, the three law-enforcement categories receiving funds appear to be salaries, equipment, and “other.” The IJ was able to obtain “equitable sharing records” from eight states. In this group, between 15 percent and 34 percent of forfeitures went to equipment and between 23 and 40 percent went to “other law enforcement expenses.” Just 1.7 percent of the money seized by police went to community programs such as crime prevention and drug abuse treatment, “despite the importance civil forfeiture’s defenders often place on such spending.” For example, Arizona spent 23 percent ($4.8 million) of state forfeiture gains on salaries, 35 percent ($7.5 million) on “other,” and 23 percent ($4.9 million) on equipment.

“Incentives matter to law enforcement,” the report concludes, “and when decisions are made about civil forfeiture, the ease of the process and, especially, the possibility of financial reward are key factors. This is a dangerous reality given that allowing law enforcement to self-generate revenue undermines democratic controls, distorts law enforcement priorities and puts property owners at risk.”

This summary was prepared by TCR Deputy Web Editor Nancy Bilyeau. The full report can be found online here.

from https://thecrimereport.org

How Private is Your Cellphone? The Next Fourth Amendment Challenge

A case before the Supreme Court next month could decide whether constitutional protections against warrantless searches prevent courts and law enforcement from using evidence discovered from cellphone records, says a former NYC prosecutor.

Most people know that very little they do on the web is private. The terabytes of data held online contain personal information accessible not only to friends, relatives and would-be employers, but to private businesses, which frequently collect user information in order to deliver better services to customers.

Can the government see it too?

In 1979, the Supreme Court ruled in Smith v. Maryland that Fourth Amendment protections against warrantless searches do not cover such “third party” access to online data. In what has since been developed as the “Third Party Doctrine,” the court ruled that an individual has no legitimate expectation of privacy for information voluntarily given to a third party—be it a person, bank, or phone carrier—information that is also then similarly available to government agencies.

But what are government agencies, such as law enforcement, constitutionally permitted to do with the data they collect?  A case before the Court next month may help answer the question.

Carpenter v. United States has the potential to affect application of the Fourth Amendment’s Third Party Doctrine in the digital age.

The case involves a string of robberies, allegedly organized by the defendant, Timothy Carpenter, which occurred over a two-year period. Police acquired cell site location information (CSLI) associated with the phone he used. Although no search warrant was ever obtained, a judge did sign a court order under the Stored Communications Act, a statute that requires reasonable suspicion, not probable cause.

The CSLI records revealed Carpenter’s location and movements over 127 days and showed that during the five-month period his phone was in communication with cell towers near the crime scenes.

Although there is a tendency to read Smith v. Maryland as a blanket rule, where anything given to or accessed by a third party has no Fourth Amendment interest, it doesn’t make sense to apply a doctrine created over 30 years ago to types of communications and data that were neither used at the time nor contemplated by the Court.

Deanna Paul

“Given how much [of] our data goes through third parties, if you take a strong reading of the Doctrine, it essentially wipes out Fourth Amendment protections for most modern communications,” Michael Price, Senior Counsel for the Liberty and National Security Program at New York University’s Brennan Center for Justice, told me.

“There is also nothing about location information in Smith. To rely on it, and say that location information should be accessible without a warrant, is reading the case far too broadly.”

Price’s point is an important one.

To analogize cases is to suggest they should be treated the same under the law and receive the same level of protection. Although the facts may specifically involve cell-site information, Carpenter is about more than just location privacy. Here, as is increasingly the case with Internet-of-Things-based prosecutions, a third-party server already had access to the sought after location data.

Carpenter presents the first chance for the Court to reconsider Fourth Amendment protections against warrantless searches and seizures of information generated and collected by the many modern technologies we use every day.

This is an opportunity at least one Supreme Court Justice has recognized.

In 2012, the Court resolved the issue of location privacy in United States v. Jones, holding that installation of a Global Positioning System (GPS) tracking device on a vehicle and using it to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. In her concurrence, Justice Sonia Sotomayor wrote that the current approach to these cases is “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks”

She suggested it may need to be rethought in the future.

There are signs from recent cases, like Jones, that the Justices are aware of the importance of technology in contemporary life. They appear to recognize that technology is significantly different today than it was ten years ago, let alone when the Court was deciding cases like Smith.

Riley v. California was the first time the Supreme Court identified the central role that cellphones have in today’s society, holding that police need a warrant to search a smart phone belonging to a person who has been arrested.  Writing for the majority in 2014, Chief Justice John Roberts said that cell phones have “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Riley Court went on to say that cellular phones have become essential to freedom of speech and First Amendment rights and, due to the volume and personal nature of the information that can be stored on a cellphone, the data should be presumptively protected by the First Amendment. The decision notes that a cell phone can double as a diary, camera, calendar, or newspaper, which makes the search of one fundamentally different from a physical search or even a search of business records.

“This is an important decision, in terms of First Amendment protections, showcasing the Supreme Court’s comfort with new technology and that it is cognizant of the impact of digital information,” said Andrew Ferguson of the David A. Clarke School of Law at the University of District Columbia, and a national expert on predictive policing and the Fourth Amendment,

See also: Digital Privacy Rights of Probationers

Similarly, earlier this year, the Court decided Packingham v. North Carolina, which addressed the prevalence and necessity of the internet and social media in a digitized society.

Riley embodies the idea that new technologies and the digital space are different, yet fails to view these devices for what they are rather than what they’re most similar to. A cell phone is not a diary, calendar or any of the technologies cited by by the Court, and to draw a series of slightly-off-the-mark analogies and suggesting they should be treated the same, is not a solution.

In reviewing Carpenter, there are only a few scenarios for the Court—each of which will have lasting implications.

The Court might opt to temporarily put tape over the problem, hiding behind the Third Party Doctrine and wait for the next case to make its way up.

Or it could limit the Doctrine’s application to CSLI and recognize that carrying a cellular phone does not, in and of itself, amount to consenting to location tracking.

“One of the difficulties the Court is confronted with is that the Doctrine, as it’s been created, doesn’t offer a nice neat answer,” said Ferguson. “The Court may have to rethink their traditional approach to the Fourth Amendment in order to address this new technological threat to privacy and security.

“The other difficulty is: If Carpenter is really about the future of the Third Party Doctrine, it is about far more than just cell site records—it is about the future of a data-driven third party mediated age.”

That is a huge question to answer. And, due to the far-reaching consequences any of the scenarios the Court may chose, the Court may also just decide to punt it to a future case.

There are few things we do online that aren’t connected, in some way, to a third party. As smartphone technology continues to advance, more and more aspects of our lives will be recorded and stored on third-party servers. Lower courts across the country are only just beginning to consider how the Internet of Things will affect our expectations of privacy.

Carpenter is an opportunity for the Supreme Court to reconceive how privacy and security values can be protected in an era of increasingly sophisticated surveillance technologies that allow us to remotely control the lights and heat in our homes or monitor intruders.

Let’s hope the Justices take it.

 Deanna Paul (@thedeannapaul) is a former New York City prosecutor and adjunct professor of trial advocacy at Fordham University School of Law. This fall she will begin attending Columbia University’s graduate school of journalism. Her nonfiction work has been published by The Marshall Project, Rolling Stone, and WIRED.

from https://thecrimereport.org

Fighting Drug Cartels in California’s Emerald Triangle

A private security firm battles pot traffickers who are destroying northern California’s pristine wilderness. LEAR Asset Management says it is filling a gap left by the depleting numbers of park rangers and game wardens.

When the blacktail deer population of California’s Mendocino County started to decline in the early 2000s, Paul Trouette began investigating why.

It didn’t take long to figure out. Mendocino County is part of an area of northern California, also encompassing neighboring Humboldt and Trinity Counties, that has been called the “Emerald Triangle” because of its production of cannabis plants.

Starting in the 1960s, busloads of hippies migrated to northern California’s redwood forests to tune in, turn on and drop out with the help of “weed”– Cannabis sativa.

But what started out as mellow recreation evolved into a billion-dollar business—accelerating with the passage of Proposition 215 in 1996 which legalized medical marijuana. A decade later, in 2016, California voters passed Proposition 64 to legalize recreational pot.

While pot legalization has been celebrated in many quarters, it has also engendered an illegal grow industry powered by criminal cartels that developed to meet the increased demand. And those cartels, which illegally operate on private, federal and state lands, have in turn destroyed the habitat of wildlife such as the blacktail deer.

Trouette, 55, a former commissioner in Mendocino County’s Fish and Game Commission who has lived in northern California all his life, decided to do something about it.

Photo Courtesy LEAR

Trouette created a company called LEAR Asset Management Inc. to patrol privately owned wilderness areas and engage in what he calls “Counter Trespass Operations.” Established in 2012, the firm employs 15 to 20 contractors who are mostly non-deployed counter drug military, and federal protective security, as well as active law enforcement.

They are contracted by corporate clients to protect privately owned forests and wildlands, and they also perform forest reclamations that are frequently funded by government grants. They are tightly connected with all local, State and Federal agencies in jurisdictions where they operate, often working side by side on operations.

“Deep in the woods,” he says, “We cut down trespass marijuana, arrest growers and scrub the environmental footprint produced by the backwoods drug trade.”

Some might ask why a private security firm is doing work that should properly be done by law enforcement.

Thinning Ranks of Law Enforcement

But the ranks of law enforcement agencies tasked with protecting wilderness areas— game wardens, and rangers working for the Forest Service, National Park Service and the Bureau of Land Management—are due to budget cuts that began in the Obama Administration.

This international drug trade rapes the landscape. Criminal groups who are setting up illegal marijuana grows on public and private forests and wildlands are measurably adding to the increase in crime and violence in America’s wilderness areas—even as they wreak environmental damage

 

The growers cultivate pot gardens with thousands of plants fed by miles of black plastic irrigation pipes that draw water from streams, mix it with illegal fertilizer and pesticides, and produce plants whose street value is now over $1,000 each.

Each plant in these gardens uses about 6-15 gallons of water per day over 150 watering days; and so a trespass grow site with 10,000 plants diverts 60,000 gallons of water per day, or 9 million gallons in a season. Little wonder that legal growers and farmers are complaining about water shortages.

Paul Trouette. Photo courtesy Paul Trouette.

These growers are all armed. They arrive not long after the snow melts and stay on site 24/7 until the crop is harvested. And they are fueling violence. If growers from two different groups decide to grow on the same area, they settle the claim with guns, burying the dead in the woods. Illegal growers also shoot at outdoor recreationists.

In 2011, Jere Melo, the former mayor of Fort Bragg,CA who was then a councilman, was killed while looking for a marijuana plot.

Rich Russell, former commander of the Mendocino County Sheriff’s major crimes task force who has a current relationship with Trouette, estimates that about half of the county’s residents work in the marijuana economy. Some are legal, but many others are illegal.

Today, illegal marijuana gardens on both private and public wildlands typically have 5,000 to 30,000 plants. According to DEA Agents and the California game wardens, a cartel “owns” every national forest, national park, state park, and wildlife refuge in the state.

California has the most cartel-run illegal pot gardens, but they’ve been found in 20 other states and 67 national forests. The Emerald Triangle situation may well be a sign of what’s to come.

 

Weapon found at a pot trespass site. Photo by James A. Swan

Law enforcement agencies have made game attempts to address the challenge. In 1983, the California Bureau of Narcotics Enforcement established CAMP (Campaign Against Marijuana Production) to eradicate illegal marijuana cultivation and trafficking in the state. In 2011, Operation Full Court Press—a three-week raid carried out by CAMP —netted some 632,000 marijuana plants in and around the Mendocino National Forest, with a street value in the neighborhood of $1 billion.

California’s game wardens have also created a special tactical unit to eradicate illegal marijuana gardens, which I described in an earlier article for The Crime Report.

But they are now outmatched by the Emerald Triangle’s powerful cartels.

1.8 Million Pot Seedlings Planted Every Year

Grow areas are increasing, despite the best efforts of CAMP and the game wardens. It’s estimated that in Mendocino County alone, 1.8 million marijuana seedlings are planted every year. California’s legalization of pot has resulted in an even larger demand, which is being met by criminal cartels. The increased demand is associated with higher demand for marijuana, and cartels simply selling their crop in greater quantities and lower prices than at licensed stores.

LEAR Asset Management stepped in to assist Law Enforcement. They began patrolling private properties and that led to timber companies hiring LEAR to tackle the trespass problem. As time passed, LEAR has been accepted into interagency efforts.

“We don’t conduct vigilante activities,” Trouette said in an interview. “Our officers are licensed by the State of California Bureau of Security and Investigative Services (BSIS).”

LEAR employees also receive certification from the California Department of Justice Rural Operations, and have received training by the elite Los Angeles Metro Police Department in Counter Terrorism response, he said.

James A. Swan

“We aren’t deputized—it isn’t necessary,” added Trouette. “We have arrest powers under the California Penal Code and our capabilities and working relationships with Law Enforcement are established. Our funding comes from government contracts and private contracts.”

In cooperation with federal and state law enforcement, LEAR has made a specialty of marijuana eradication, but the company also goes after wildlife poachers, water thieves and even fugitives

According to Trouette, LEAR Assets is the “only private security company in the U.S. that primarily focuses on wildlands conservation and protection.”

Are they the future of law enforcement in America’s embattled wilderness?

James A. Swan, Ph.D., is a Co-Executive Producer of the “Wild Justice” TV series and co-author with Lt. John Nores Jr. of “War In The Woods: Combating the Marijuana Cartels on America’s Wildlands.” Read his earlier op /ed for The Crime Report: “The Thin Green Line Could Use Some Help.” He welcomes comments from readers.

from https://thecrimereport.org

Governors Face Up to Criminal Justice Reform

The DOJ’s “Face to Face” program launched Monday will bring governors and other top state officials together with inmates and corrections officers. The program, organized by the Council of State Governments Justice Center is aimed at encouraging criminal justice policy makers to talk directly to those affected by their actions.

Critics say that criminal justice policy often is made without much regard for some of the people who will be affected by it.

Some politicians call for “tough on crime” sentences, for example, with no apparent recognition that those convicted of crimes will end up serving long terms behind bars with little real hope of rehabilitation.

The Council of State Governments Justice Center (CSG) has started a project to remedy that aspect of policymaking.

With the help of a U.S. Justice Department grant, CSG is arranging for governors and other top officials in states, where most criminal justice policy originates, to meet with inmates, correctional staff members and crime victims.

The “Face to Face” project starts Monday with events involving three governors. They will be joined between now and Aug. 23 by five other governors, a lieutenant governor and a state attorney general.

Gov. Nathan Deal (R-GA), who has led an extensive criminal justice reform effort in his state, said in a statement issued by CSG, “I have learned through my own experience that criminal justice policy decisions are best made when they prioritize the needs and challenges of the people they ultimately impact.”

Then-President Barack Obama took part in a similar activity in July 2015, when he visited the El Reno Federal Correctional Institution in Oklahoma, where he spoke to inmates. He apparently was the first chief executive to tour a federal prison.

Another participant in the CSG project, Gov. Dannel Malloy (D-CT), suggested that if more officials spoke directly with inmates, they would not take “a distant and hard line approach with respect to corrections and public safety policy.”

Malloy urged “a more thoughtful approach to criminal justice policy that focuses not only on data and numbers but also the people behind those numbers.”

The project is issuing a list of “potential action items” for officials to pursue after they meet with inmates and corrections officers. They include things like eliminating occupational licensing restrictions for those with criminal records and addressing the well being of corrections system employees.

The Association of State Correctional Administrators, the organization of state prison directors, is taking part in the project. Its director, Kevin Kempf, said, “The job of a corrections professional is immensely challenging, and often leads to post-traumatic stress disorder.”

Other organizations taking part include the National Reentry Resource Center, JustLeadershipUSA, and the National Center for Victims of Crime.

JustLeadershipUSA was founded by Glenn E. Martin, who served six years in a New York prison. He said, “Incarcerated people and those returning from prison or jail face statutory and practical obstacles that are often misunderstood. There’s no better way to inform our leaders of these issues than connecting face to face.”

The events scheduled so far by the project are these:

Monday

  • Gov. Dannel Malloy (D-CT) meets with advocates for victims of crime and ex-inmates.
  • Gov. Roy Cooper (D-NC) meets with former prisoners now in a “transitional house.”
  • Gov. Eric Greitens (R-MO) works with corrections officers in a prison.
  • Attorney General Mike DeWine (R-OH) visits a mental health facility in a maximum security prison.

Tuesday

  • Attorney General DeWine visits women in a pre-release program, and volunteers.
  • Gov. Gary Herbert (R-UT) meets with inmates in an employment-focused reentry program.
  • Gov. Steve Bullock (D-MT) meets with incarcerated women and prison staff.

Wednesday

  • Gov. John Hickenlooper (D-CO) meets with incarcerated women.
  • Lt. Gov. Rebecca Kleefisch (R-WI) meets with inmates.

Friday

  • Gov. Brian Sandoval (R-NV) has lunch with former inmates and their families.

August 23

  • Gov. Nathan Deal (R-GA) speaks about his interactions with parolees at the premiere of a film on the challenges of serving on community supervision.

For more information, see the project’s website .

Ted Gest is president of Criminal Justice Matters and Washington bureau Chief of The Crime Report. Readers’ comments welcomed.

from https://thecrimereport.org