Trump Again Blasts Congress for Not Funding Wall

The president assails a “ridiculous” spending bill making its way to his desk to avoid a government shutdown on Oct. 1. The measure includes funding for the opioid crisis but not for the wall on the U.S.-Mexico border.

President Trump lashed out at Democrats over bipartisan spending bills making their way through Congress, and demanded that Republicans do more to ensure greater funding for border security, particularly for his proposed border wall with Mexico, reports the Wall Street Journal. “I want to know, where is the money for Border Security and the WALL in this ridiculous Spending Bill, and where will it come from after the Midterms? Dems are obstructing Law Enforcement and Border Security,” he said in a tweet on Thursday. The comments came two days after the Senate passed an appropriations package, the second grouping of spending bills, called a “minibus,” approved this month. The House is expected to take it up next week. The bill aims to boost spending for the next fiscal year for the opioid crisis, the Defense Department, and medical research. It funded other departments, including Justice and Homeland Security, through Dec. 7 to avoid a government shutdown before the midterm elections.

“We could knock that wall out in one year if they gave us the funds,” Trump said at a rally in Las Vegas, where he campaigned for Republican congressional candidates. Democrats stood by the bill, which will need bipartisan support to pass the House. “If President Trump wants to throw a temper tantrum by vetoing this bill, blocking pay for our troops, and shutting down the federal government, that is up to him,” said Rep. Nita Lowey (D-N.Y.), top Democrat on the House Appropriations panel. Republicans expect Trump to sign the bill. It gives states grants to help address the opioid epidemic, a move praised by Sen. Roy Blunt (R-MO), a Senate appropriations subcommittee chairman. “These grants will help more people get the opioid treatment and mental health services they need, especially in rural areas and underserved communities,” he said.


GOP Worried After Indicted Congressman Stays on Ballot

The decision by Rep. Chris Collins (R-NY) to remain on the ballot this fall despite his indictment on insider trading charges is drawing fire from Republicans, who believe it could put a safe seat at risk.

The decision by Rep. Chris Collins (R-NY) to remain on the ballot this fall despite his indictment on insider trading charges is drawing fire from Republicans, who believe it could put a safe seat at risk in a cycle where the GOP House majority is in jeopardy, the Hill reports. Even if Collins does win his Buffalo-area district, Republicans worry that having him on the ballot will tar the party as a whole, inviting accusations that the GOP is governing over a culture of corruption. Republican strategist Matt Mackowiak said, “It is unhelpful, but it is his decision to make. The only way it is a good decision is if two things are highly likely to happen: complete exoneration and his own reelection.”

The Cook Political Report changed its prediction for the race from “likely Republican” to “lean Republican.” Collins was arrested on insider trading charges in August, the same month that Rep. Duncan Hunter (R-CA) was indicted for allegedly misusing campaign cash. Both were President Trump’s first supporters in Congress. Prosecutors allege Collins, who served on the board of directors for pharmaceutical company Innate Immunotherapeutics, gave nonpublic information about drug trial results to his son to help him “make timely trades in Innate stock and tip others.” Collins did not sell his Innate shares and lost roughly $17 million after the results were announced, but his son reportedly avoided more than $570,000 in losses because of the alleged tip from the congressman. Collins suspended his re-election campaign three days after the indictment, but changed his mind this week. Democrats had threatened to sue to keep Collins on the ballot, under the belief it would give them a better chance to flip his seat. The threat of Democratic lawsuits was reportedly one reason Collins decided to remain on the ballot.


Solitary Used More Often for Inmates with Mental Illness: Study

The odds that mentally troubled prisoners will be sent to solitary confinement for misconduct are 36 percent higher than for those without mental illness, according to a University of Massachusetts study of data from a 2004 national survey.

Inmates with mental illness are more likely to be placed in solitary confinement than other inmates, and are more likely to be punished with administrative segregation compared with other less disciplinary actions, according to a study published in the Criminal Justice and Behavior.

Kyleigh Clark, a researcher at the University of Massachusetts, analyzed data from the U.S. Census Bureau’s 2004 Survey of Inmates in State and Federal Facilities, which questioned inmates on a wide range of topics including their behavior, criminal histories, personal backgrounds, and experiences within and outside of prison.

The survey also specifically asked inmates whether they have been diagnosed by a medical professional prior to incarceration with various mental disorders: depressive, psychotic, personality, manic/bipolar, posttraumatic stress disorder, anxiety, or any other disorders.

The researcher compared the experiences of those with mental illness to those without them and found that even though both groups most often lose privileges for misconduct, the odds of those with a mental illness being put in solitary confinement for misconduct are 36 percent higher than those without mental illness.

Furthermore, those with mental illnesses are 40 percent less likely to be given other, less severe disciplinary action, 27 percent less likely to lose privileges or be confined to their own cell, 23 percent less likely to be given extra work, and 19 percent less likely to be given bad time.

It is not clear why inmates with mental illnesses are disproportionately placed in solitary confinement, but one possible explanation the author suggests is that prison management may be paying more attention to those with mental illnesses, or more attention to the actions of those with mental illnesses, and this in turn results in more infractions and harsher punishments.

Relatedly, people with mental illness are viewed as dangerous to themselves and to others, the author explained.

“[And] because many institutions suffer from a lack of resources, space, and staffing, isolation of mentally ill prisoners can be seen as the only viable option in dealing with these inmates,” Clark added.

About 37 percent of inmates have mental illness, according to U.S. Department of Justice.

The researcher excluded inmates in federal facilities due to possible unmeasured factors in those prisons that may affect their use of segregation, such as intuitional structures. The sample was further restricted to those who committed at least on misconduct during their incarceration and were not missing data for mental illness and disciplinary action

The author argued that despite news stories outlining the problematic use of isolation for mentally ill inmates, the issues had not been extensively researched until now.

He said future research should investigate whether imposing solitary confinement on mentally ill inmates, even ostensibly for their own protection, is ultimately “counterproductive.”

“Multiple studies have shown that those with mental health problems may be more susceptible to the negative effects of solitary confinement, thereby creating a cycle in which mentally ill offenders are put in solitary confinement due to their mental illness, which is made worse by isolation, leading to further or worsening symptomatic behavior,” he wrote.

“Although solitary confinement may be considered a more economical or practical choice for containing these inmates, better mental health care can be more cost effective in treating their behavior.”

A copy of the study can be downloaded here.

J. Gabriel Ware is a TCR News Intern. He welcomes comments from readers.


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.


Knife-Rights Advocates Gain in State Legislatures

Doug Ritter and his Arizona-based advocacy group Knife Rights has used tactics borrowed from the National Rifle Association to rack up legislative victories. Twenty-one states have repealed or weakened their knife laws since 2010, many with bipartisan support, including Colorado, Michigan and Illinois.

Doug Ritter and his Arizona-based advocacy group Knife Rights has used tactics borrowed from the National Rifle Association to rack up legislative victories across the nation. Many changes have escaped notice amid the nation’s focus on guns, the Washington Post reports. Ritter, 65, says knives, like guns, should be considered arms protected by the Second Amendment. He doesn’t support any restriction on knives, not on switchblades or push daggers or even the ballistic knives that shoot like spears from a handle. Twenty-one states have repealed or weakened their knife laws since 2010, many with bipartisan support, including Colorado, Michigan and Illinois. Ohio could be next. Texas passed its bill last year despite a high-profile stabbing death before lawmakers voted. Knife Rights, with little financial backing, has been working behind the scenes to help make it happen. “A lot of people said it would be impossible to repeal a switchblade law in any state. Insane. Tilting at windmills,” Ritter said. “Turns out they were wrong.”

The success of Knife Rights comes as calls for weapons bans have intensified after mass shootings. Guns are by far the leading cause of homicides. Knives are No. 2, making up 11 percent of killings in 2016 and a growing number of violent crimes. Knives have escaped comparable scrutiny. The FBI records about 1,600 knife slayings a year, a number dwarfed by the 7,100 handgun killings.  There are mass stabbings, too, but they get less attention. Little is known about knife violence in the United States. No national statistics track the kind of knife used in crimes. Knife Rights is going after its biggest legislative target: overturning the 1958 Federal Switchblade Act, which bans the interstate shipment or importation of knives that open at the push of a button. It’s a long shot, but Ritter met this month with lawmakers on Capitol Hill.


James Wins NY AG Primary; Would Challenge Trump

Letitia James, New York City’s public advocate, won the Democratic primary for New York State attorney general, and could become the first African-American woman to hold statewide office in New York. Like other Democratic state attorneys general, she has vowed to take on President Trump.

Letitia James, New York City’s public advocate, won the Democratic primary for New York State attorney general, and could become the first African-American woman to hold statewide office in New York, reports James defeated U.S. Rep. Sean Maloney, attorney Zephyr Teachout, and Leecia Eve, a Verizon executive with past government experience. James won the backing of the state Democratic Party and Gov. Andrew Cuomo’s endorsement, which gave her a boost of name recognition and clout outside of New York City, where shpe reviously served as a City Council member. James had jumped out as the front runner for the attorney general job soon after Eric Schneiderman resigned amid assault allegations. But as insurgent progressive campaigns started to get attention in New York and elsewhere, James’s Democratic Party backing turned her into the establishment figure in the race.

Like her three defeated opponents, James vowed she would take on corruption in Albany, the state capital — and President Trump. The state Attorney General’s Office sued Trump University under the leadership of Schneiderman, and his temporary successor, Barbara Underwood, brought a lawsuit against Trump’s family charity. The office  is reportedly investigating Michael Cohen’s taxes, too. James will face GOP candidate Keith Wofford in November, an attorney originally from Buffalo who is the first African-American Republican candidate for attorney general. Wofford has also vowed to clean up corruption in Albany, and he’s pointed out the many Democratic attorneys generals who have failed to do so in years past. Wofford has been cagey about investigating Trump; he’s said he’ll focus on bringing suits that benefit the interests of New York, not on trying to score political points.


Iowan Dummermuth Heads DOJ Justice Programs Agency

The Trump administration names Matt Dummermuth, former U.S. Attorney for the Northern District of Iowa, to head the Justice Department branch that includes six agencies, including the Bureau of Justice Assistance, Bureau of Justice Statistics, and National Institute of Justice.

The U.S. Justice Department’s Office of Justice Programs has a new leader.

The Trump administration named Matt Dummermuth, who was U.S. Attorney for the Northern District of Iowa during the George W. Bush administration, to the job.

Dummermuth replaces Alan Hanson, who headed the agency since Donald Trump became president. Hanson left recently for the Department of Transportation. He never was nominated by the White House to serve as Assistant Attorney General, the formal title of the agency’s director.

The Office of Justice Programs (OJP) includes six agencies well known in criminal justice. They are the Bureau of Justice Assistance, which gives anticrime grants to states and localities; the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART office, which administers federal programs on sex offender sentencing, monitoring, apprehending, registering, and tracking.

Laura Rogers, director of the SMART agency, has served as the acting head of OJP since Hanson’s departure in July, as reported in The Crime Report.

In a memo to OJP staff members, Rogers said Dummermuth as U.S. Attorney “supervised criminal prosecutions of drug trafficking, child exploitation and financial fraud, and orchestrated the nation’s most successful criminal immigration worksite enforcement action. He also created the first human trafficking task force in Iowa, bringing together law enforcement and victim service providers.”

On LinkedIn, Dummermuth said that until recently he was a partner in the law firm of Hagenow Gustoff & Dummermuth, LLP, leading its eastern Iowa office in Cedar Rapids.

He did not mention his criminal justice experience, noting that he handles “government litigation, including constitutional and civil rights issues, as well as investigations and regulatory matters.”

Dummermuth said that as a seventh-generation Iowan “still actively involved with my family’s livestock and crop farm, I have significant interest, background, and experience in agricultural law, handling matters ranging from commercial litigation and regulatory compliance to complex business and estate planning.”

There was no immediate indication whether Dummermuth has any possibility of being nominated to head the agency, which requires Senate confirmation.

That may depend on the future of his boss, Attorney General Jeff Sessions, who President Trump has indicated may be fired after the November elections.

One of Dummermuth’s major challenges may be to help determine whether federal anticrime funds will be given to “sanctuary cities” that do not cooperate with federal immigration officials. That issue is pending in several federal courts.


Why Did the National Prison Strike Float Under the Nation’s Radar?

Although inmates in just 16 states reportedly participated in the prison strike that began last month, their complaints deserve a better national hearing than they received, prison reformers tell The Crime Report.

The national prison strike that ended Sunday appears to have escaped the attention of most of the country’s lawmakers. Members of Congress responsible for national prison policy admitted to not knowing anything about the 19-day strike that began last month.

And the topic didn’t appear to have come up in the much-publicized White House meeting last week between President Donald Trump and public figures such as Kim Kardashian, which was ostensibly called to discuss prison reform as well as clemency policy.

Past prisoner actions, most notably the 1971 Attica Prison riot in upstate New York, whose 47th anniversary was marked on Sunday, have garnered major headlines. So why did this one float beneath the nation’s radar?

“That’s because it was a peaceful strike,” said Dr. Breea Willingham, a criminal justice professor at State University of New York at Plattsburgh.

“If people were getting killed inside those prisons, people would have been all over it.”

The relative lack of attention to the strike underlined the continued indifference to widespread claims of abuse and inhumane conditions inside the nation’s prison system, observers and prison activists told The Crime Report.

Last month’s protests mostly took the form of inmates refusing to eat, spend money at commissaries and work—but of there had been violence, similar to the Sept. 9, 1971 Attica Prison uprising, which took the lives of 43 people (including 33 inmates and 10 guards and civilian prison employees), it would probably have further harmed the inmates’ case, said Willingham, whose expertise includes the impact of incarceration on families, and race and crime in the media helped.

“(People) would have said ‘see, this is exactly why those prisoners need to be locked up,’” he said.

Perhaps another reason why the strike didn’t garner increased coverage is because it wasn’t widespread enough. Reported protests occurred in only 16 states and even those did not involve the entire inmate populations.

Strikers in Alabama, for example, were among the strike’s major organizers in the beginning, but they appeared to back down—for reasons that are still unclear.

Paul Wright, executive director of the Human Rights Defense Center and editor of Prison Legal News suggested inmates there may have felt intimidated by the authorities.

“The reality is the prison officials that run these systems, they run their system by violence,” Wright told The Crime Report. “They’re petty, they’re vindictive, there’s no oversight.

“They can and do retaliate against people, usually for the pettiest and most trivial of reasons, and it’s not like anyone’s going to stop them.”

It’s not clear how many states participated in the strike, and even reported events are being questioned. Vicky Waters, California Department of Corrections and Rehabilitation’s press secretary, rejected reported claims that a 26-year-old inmate named Heriberto Garcia went on a hunger strike in Folsom State Prison.

“There were no protests or inmates on strike,” Waters said. “Some misinformation has been reported, but we did not have any hunger strikes, work stoppages, or any participation from inmates across our state prisons.”

Reports, however, suggests that inmates in San Quentin protested with the support of family and allies who stood on the outside, marching and chanting.

Willingham says the attention the strike received shouldn’t have been predicated on the size of the strike, or how many incarcerated people were involved.

“The people who were striking are enough for people to pay attention,” she said. “These are human beings, and they’re fed up.”

The national prison strike was sparked by a deadly riot that killed seven inmates in Lee Correctional Institution in April, and wounded over a dozen more. With the help of the Incarcerated Workers Organizing Committee—a part of the Industrial Workers of the World—strikers published a lists of demands that included the right to vote and immediate improved prison conditions and policies.

“It’s not like what they’re asking for is unreasonable,” Willingham said. “These are basic human rights.”

The U.S. has the world’s largest prison population with 2.3 million people behind bars.

J.Gabriel Ware is a TCR news intern. Readers’ comments are welcome.


Kardashian West Meets at White House on Clemency Process

After the president granted clemency to people backed by celebrities, his aides meet with Kim Kardashian West and others to discuss “ways to improve that process to ensure deserving cases receive a fair review.”

Kim Kardashian West was back at the White House on Wednesday to meet with members of the Trump administration and other advocates for criminal justice reform, Politico reports. The “listening session” on the clemency process was to be attended by presidential son-in-law and adviser Jared Kushner, CNN commentator Van Jones and Federalist Society executive Leonard Leo. Participants will discuss “ways to improve that process to ensure deserving cases receive a fair review,” the White House said.

Criminal justice reform has been a Kushner pet project. He championed a bipartisan prison reform bill that passed the House in May. Kushner’s efforts have put him at odds with Attorney General Jeff Sessions, who has opposed efforts at sentencing reform and moved to increase the use of mandatory minimum sentences for drug offenses. Kardashian West made news this summer when she successfully lobbied the president to grant clemency to Alice Marie Johnson, a 63-year-old woman serving life in prison for a nonviolent drug offense. Kardashian West, Jones and other representatives from the criminal justice group cut50 said they were going to work on securing a pardon for another nonviolent drug offender, Chris Young. “When I looked at Alice, I said we can’t just stop with one person. We have to change the laws,” Kardashian West said. Trump has shown an affinity for using his presidential pardon and commutation powers, though his tendency to take up higher profile cases worries activists, who fear that only cases involving well-known personalities or elevated by them will receive relief.


Why Can’t We Rein in Police Misconduct? Blame Prohibition

America’s crusade against alcohol ended over seven decades ago with the 21st Amendment. But Supreme Court decisions aimed at curbing police misbehavior during Prohibition—by excluding evidence obtained unlawfully—have complicated efforts to hold law enforcement accountable for its actions today, according to a new book by a Pennsylvania law professor.

Prohibition in America lasted 13 years—until 1933, when President Franklin D. Roosevelt signed a “beer bill” as one of his first acts in office. The Twenty-First Amendment—­the only constitutional amendment ever to reverse an earlier amendment—went into effect by the end of that year.

But the collateral damage of Prohibition still reverberates through the criminal justice system.

Much has been made of the gangland violence that punctuated Prohibition. Mobsters like Al Capone, who made millions during Prohibition, would stop at nothing to corner the bootlegging market.

However, that was only one facet of the violence.

At times, the police were worse than the mob, and the subsequent efforts to curb Prohibition-era police misconduct have also left a lasting impact on the search for accuracy in prosecutions and limits on excessive force by police officers.

That’s the conclusion drawn by Wesley M. Oliver, a professor at Duquesne University School of Law in his new book The Prohibition Era and Policing.

 His conclusion is especially worth noting as the nation grapples with multiple cases of police misconduct and the failures to hold law enforcement accountable

Oliver quoted the 1931 The Wickersham Report, formally titled “Report on the Enforcement of the Prohibition Laws in the United States,” which blasted law enforcement during the Prohibition era,

Among its key conclusions:

Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizures … started a current of adverse opinion.

al capone

Police mugshot of gangland leader Al Capone. Courtesy Peter K. Levy via Flickr

Prohibition created “enormous” opportunities for police corruption, Oliver wrote.

While the potential benefit to crooked cops was obvious, over-zealous “honest” officers often took advantage of the zealous enforcement climate created by Prohibition to violate individuals’ privacy, destroy property, or engage in physical violence—all in the name of stamping out alcohol use.

As Oliver points out, police behavior during this era shifted the focus from procedures to ensure accurate criminal trials to preventing police misconduct. The result was the exclusionary rule.

Thirteen days after the Volstead Act made it a federal crime to manufacture or sell alcohol, the U.S. Supreme Court decided Silverthorne Lumbar Co. v. United States. The Court found that the Fourth Amendment prohibits the government from introducing evidence gathered as the result of an unlawful seizure.

The exclusionary rule was not restricted to illegal searches. At the time, police were practitioners of the “third degree”—violence-induced confessions. The term is better known as torture.

Oliver examines the rigidity of a rule that excludes reliable evidence of criminal conduct because of the manner in which it was obtained or, as Justice Cardoza famously said, the result of the watchman’s “blunder.”

By 1939, not only was illegally obtained evidence being excluded but any evidence discovered as a result of the illegally obtained evidence was excluded as well. The fruit of the poisonous tree, as it became known, was excluded regardless of its reliability.

About the same time technology began to get in the way of the U.S. Constitution.

As telephones became more and more useful in criminal enterprises the High Court was forced to consider the privacy rights of individuals. Oliver meticulously maps out a history of the wiretap, highlighting that the Court’s first foray into wiretapping was a failure—a precursor to the modern Court’s struggle with rapidly evolving technology.

In Olmstead v United States, Chief Justice William Howard Taft concluded that the Fourth Amendment only protected tangible things—persons, papers, and effects. Since the police eavesdropped on telephone calls while clinging to a telephone pole outside the house, and not in the house, there was no intrusion and no violation of the Fourth Amendment.

According to Oliver, wiretapping during Prohibition “created such a backlash that communication over wires became more protected than information in sealed envelopes or effects in one’s home.”

So how does Prohibition affect us today? Oliver examines, with clarity and finesse, the Warren Court’s landmark decisions in Mapp v Ohio (exclusionary rule); Terry v Ohio (stop and frisk); and Miranda v Arizona (right to counsel and to be free of interrogation).

Oliver wrote that “The Supreme Court’s cases are moving toward eliminating the exclusionary rule.”

Certainly Oliver’s examination of the case law would support that conclusion, but ignoring police misconduct in favor of more reliable evidence of criminal conduct is not an even exchange.

As Oliver writes, the late Justice Antonin Scalia suggested in Hudson v Michigan that the exclusionary rule is obsolete because of an “increasing professionalism of police forces, including a new emphasis on police discipline.”

That increase in professionalism is because of the exclusionary rule— not a reason to abolish it.

Oliver’s work is thought-provoking. Accuracy should be the goal of any system of justice, but protecting the public from unlawful police practices—including excessive force—is also a laudable goal.

Matthew T. Mangino, a regular contributor to The Crime Report, served as an elected District Attorney in Pennsylvania and on the state’s Board of Probation and Parole. He is now of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.