The Perils of Big Data Policing

The criminal justice system is increasingly relying on algorithms to prevent crime and punish wrongdoers. Law professor Andrew Ferguson warns in a new book that it’s time to take a close look before these systems are locked in.

As the criminal justice system comes to rely increasingly on computer analytics, so-called “big data” that captures and collates enormous amounts of information are being used in many cities to identify potential lawbreakers. But this form of predictive policing has also been criticized for its lack of transparency and potential for racial bias.

big dataIn his new book, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law EnforcementAndrew Guthrie Ferguson, a law professor at the University of the District of Columbia, argues that the criticisms are valid, and should generate a conversation about the use of new technologies before this form of policing becomes institutionalized.

Ferguson, in a recent conversation with TCR news intern Julia Pagnamenta, discussed the economic factors that have driven the use of big data in police departments, how it is has spread to prosecutors and judges, and why cities should consider holding regular “surveillance summits,” so communities can examine what’s being done in their name.

The Crime Report: In your book, you argue that explaining this technology to the public is only one element of the challenge. Can you elaborate?

 Andrew Ferguson: One of the responses to the (growth) of big-data policing is the fear of a lack of transparency. People ask, “What do you mean I am being targeted by an algorithm that I don’t understand and that I can’t see?” But that doesn’t feel right to me. I make the argument that while we should be debating and thinking about this idea of transparency, transparency itself may not be an answer.

If you go forward just a few years, when we’re really going to be talking about machine learning, artificial-intelligence predictive systems are designed (so) you can’t look into them and see how they’re made, because they are constantly learning from the data that’s being inputted, which keeps changing, and so if you went back to look at what they did, it has changed already, because that’s how it’s being taught to learn.

We have to come up with systems of accountability, and that may (involve) a chief of police or the city council, or whoever is funding this, explaining to citizens why they are using this technology, why they think it’s accurate, why they think it’s a good use of taxpayer dollars, and what they’re going to do to audit it, to make sure it is working in the future. I call those moments of public accountability “surveillance summits.”  We need to have surveillance summits in every city in America.

(If) you deal with the problem of transparency in that way, it won’t matter if you don’t understand what an algorithm is, and it won’t matter whether you understand what artificial intelligence does. You’ll feel comfortable that there is an open conversation (involving) the citizenry, the technologists, the civil libertarians, and also the police who have to justify why they think this particular technology makes sense for their particular city.

TCR: Big data isn’t singular to the criminal justice system. Our information is being collected every day when we use our credit cards or our smart phones.

Ferguson: In many ways the rise of big data in a consumer space far outpaces where we are in the criminal space. We live in a world where Google knows everything we search for; Amazon knows everything we’ve bought; our smart cars know everywhere we’ve driven; our smart houses reveal when we leave for the day, when we go home. Our digital trails are revealing the patterns and practices of our lives. Big data in a consumer space has recognized that insight and in some way has tried to monetize it. We are the product. Our data is the product. We are being sold using the data trails, and in many ways we’ve bought into that by the convenience of this data.

What began as a database—although certainly not a big database—is the idea of CompStat, of being able to start mapping crimes and understanding crime patterns using crime data. (Former New York Police Commissioner) Bill Bratton built a data- driven policing system. When he went to Los Angeles, he was overseeing the origination of predictive policing as we now know it, and he brought it back again to New York when he took over the NYPD again in his last iteration there. After the stop-and-frisk practice was declared unconstitutional, Bratton said, “don’t worry, we have a new technology that’s going to replace it, called predictive policing.” The NYPD is up there with the LAPD as the most sophisticated local surveillance system that we have in America. They have networked cameras. They are using their own social networking analysis. They’re mapping crimes. They’re connecting with the Manhattan D.A.’s office to prosecute crimes. They are the cutting edge of how big data technology is changing law enforcement.

TCR: Everything we do is being tracked. Do privacy issues even enter the debate in the criminal justice arena?

 Ferguson: There is definitely a debate about it. In the book I point out how, as our lives have shifted to social media, and as our virtual selves are playing a role in communicating with other people, so has crime. People who are involved in criminal activity and gangs are posting threats on social media; they are bragging about crimes on social media. Naturally police are watching, building cases.  That obviously impacts individual privacy rights.

The Supreme Court [recently] heard a case, Carpenter vs. the United States about whether our third-party records, in that case cell phone information—really if you think about our digital lives, everything is a third party record—can be obtained by police without a warrant or whether police need a probable cause warrant to obtain some of this information. When that case is decided in the next couple of months, it may very well shape our feelings about privacy and some of our expectations of privacy under the Fourth Amendment. What we share with others, we don’t necessarily think we are sharing with police, but without either legislation guiding us or constitutional law guiding us, it’s pretty uncertain about whether we can really claim any expectation of privacy in things we are putting out in the world.

TCR: How has big data affected the way prosecutors do their job?

 Ferguson: Cy Vance, Jr., and the Manhattan D.A.’s office, have been at the forefront of pushing a new type of prosecution, which is part data-driven, where they are looking for the areas that are creating and generating violence; and part intelligence driven. They call it intelligence-driven prosecution. Intelligence in the sense of how intelligence analysts and the intelligence community might try and figure out whom to target. Their stated goal is to identify the individuals who are the prime drivers (of crime) in a community, and take them out by any means they can.

Andrew Ferguson

Andrew Ferguson

They also get community intelligence from gang intelligence detectives, and other community organizers, to try to take out those people, under the theory that if they can incapacitate these folks, crime overall will go down. They have recognized that one way to do that is build a big data infrastructure.

(Like police), they too have partnered with companies like Palantir which built a data system to track various people. Lots of people get arrested in Manhattan, and if one of their targets should show up, even on a low-level offense like (subway) turnstile jumping, they’ll know about it, and they can get that information to the line D.A. in time because it’s sort of automated—instead of someone cycling through the system and getting out because it’s a low level offense, there will be a different request for a bail hold. There will be different sentencing considerations; there will be less of an opportunity to plead guilty on the theory that they are trying to bring this person out of the society, figuring that if person is out, they will reduce crime. It’s really been a change in mentality (for) prosecutors.

TCR: Critics of these strategies say they disproportionately affect the city’s more marginalized communities.

Ferguson: I think (you) run the risk of targeting the data you are trying to collect.   So if what you care about is low-level “broken windows” policing and that becomes the data you are looking for, it’s obviously going to change policing patterns, and result in, lots of poor people being brought into the system who wouldn’t have otherwise if you weren’t targeting them.

It doesn’t have to be that way. You can use data-driven policing to target folks who you think are the most violent and most at risk—and not target others who aren’t in that category. Data is dependent on how you use it, and who uses it, and the choices being made to utilize it. There are many fair criticisms on the way the data-driven system changed what police were doing in New York. It became very much about quantifying arrests, and not about quality of life or policing.

We are able to target people that we think are the most at risk for violence in Chicago and intervene in a way that has similar concerns about who are the people being targeted. They tend to be poor; they tend to be people of color. They tend to live in certain communities. Is that simply reifying the same kinds of profiling by algorithms that we might be concerned about? I think these are real questions and concerns we should be raising. We should be having that debate right now, and (examine) how these new technologies are playing out in our communities.

TCR: You note that these algorithms falsely assess African-American defendants as high risk at almost twice the rate of whites. How do these high-priority target lists affect African American communities?

Ferguson: Take Chicago again. Part of the input of the Chicago “heat list” are arrests, and we know that arrests are discretionary decisions of police. We know that they are impacted by where police go, where they are sent, where the patrols are, where they are looking. You can’t be arrested if no one is looking at what you are doing.

We also know in Chicago, thanks to the Department of Justice Civil Rights Division report in 2017 that there is a real problem of racial bias throughout the Chicago Police Department. It’s pretty systemic. So if you think that some Chicago police have either implicit or explicit biases and if they are using their discretion to make their arrests, and if those arrests become part of your big data system of targeting, you have to worry that that discretion and that bias is going to affect the outputs of whatever system because it’s affecting the inputs.

My concern is that we tend to stop thinking about racial bias when we hear that something is data-driven. It sounds objective. It sounds like it doesn’t have the same concerns; it doesn’t raise the same concerns of ordinary policing. But if your inputs are based on ordinary policing, and that has some problems in some cities, well some of your outputs are going to be based on those and that’s a real problem.

(That is) part of the reason I wrote the book. People talk about this move to data- driven policing, as if it is response to the concerns we saw in Ferguson, and in Staten Island, and in Chicago. Really, the same concerns exist and we need to make sure that we are aware and conscious of them, and are working to overcome them, because they can be overcome.

TCR: You refer to Chicago quite a bit in the book. How have certain of the city’s neighborhoods, and their residents, been affected by these algorithms?

Ferguson: Chicago is at the forefront. They have created what they’ve called the strategic subjects list, also known as the heat list. And that list essentially looks at individuals who they believe are the most at risk of violence, or being the victim of violence, or the perpetrators of violence in society, and this is the algorithm. They look at past arrests for violent crimes. Narcotic offenses, and weapons offenses. They look at whether the person was a victim of a violent offense, or a shooting. They looked at the age of the last arrest; the younger the age, the higher the score.  And they look at the trend line: is this moving forward; are there more events happening, or is it slowing down; is age less a factor?

They take those numbers, punch them into an algorithm, to come up with a rank ordered score from 0 to 500 about who are the most at-risk people, and then they act. If you have a 500-plus score, a Chicago Police detective or administrator shows up at your door, maybe with a social worker, and says: “Look you are on this list. And we know who you are, we know what you are doing, we know that you are at risk, and you’ve got a choice. You can either turn your life around, or if you don’t, we’re going to bring the hammer down. We know who you are and we are warning you.”

They might bring you in as a group, as a sort of call-in session, a scared-straight-session where they do the same thing but in a group setting. It is a measure of social control. It’s a measure of possibly offering social services (if there were money to offer those social services), and it is a recognition that there is a targeting mechanism going on in this town.

Depending on who you ask, it has not worked, or worked. It fluctuates. Shootings have obviously been a terrible problem in Chicago in certain districts where they are using it. Just this last year, they claim shootings have gone down, so they are taking credit for it.

Rand did a study of the early version of the strategic subjects list and said look we can’t find any correlation. It seems like it really became shorthand for the virtual most-wanted list of people you want to target anyway. The Chicago Police Department response to that was, well we changed the algorithm. We think we’ve improved it, and in some ways that’s a fair answer, because that’s what you do with computer modeling. You change it, if it’s not working, or if you think you can improve it. Computer models are supposed to keep evolving.

TCR: What do the police mean when they say these algorithms are working? 

 Ferguson: If you listen to the folks in Chicago who are defending it, they say: Look, if you want to know the people who are getting shot, they are on our list. Like 80 percent of the people are on our list on a particular weekend, and so we’re not wrong. We know that there are certain lifestyles and certain actions and certain groups that are more likely to be shot.

They tend to be folks who are in certain social groups, or gangs; they tend to have, a distrust of police, so if there is a violent action they respond with violence. This sort of reciprocal violence keeps things going forward, and the (police) response is “look, we’re not wrong about the people we are targeting, whether or not we can reduce violence.”

This isn’t an attempt to create some magic black box. There is a theory behind it, and the theory is that there are certain risk factors in life that will cause you to be more at-risk of violence then other people, so targeting those people might be an efficient use of police resources in a world of finite resources. The problem is that we just don’t know if the input is all that accurate and we don’t really know if this is the best use of our money and time and energy. It sounds like an idea or a solution when you don’t want to face the real solution.

Maybe, instead of using a “heat list,” we should invest in schools, invest in communities, invest in jobs, and invest in social programs that will change lives. But it takes more money than people are willing to spend. The chief of police of Chicago has one of the most difficult jobs in America. He has to answer the question, what are you going to do about crime? Sometimes (technology) is enough to quiet the critics who want you as chief to do the impossible, which is stop the shootings without the resources.

TCR: In the book you contrast New Orleans’ Palantir system with Chicago’s use of preventive algorithms. How do they differ?

Ferguson: In New Orleans had a terrible shooting problem, and the mayor partnered with Palantir to see if they could figure out who are the people who are most at risk for either being involved with violence or being violent themselves. And then to explore whether there are program services that can target them.

The difference I think, in New Orleans is that, at least initially, in addition to person-based identifications, they also brought in a lot of city data. They started looking at where the crime patterns were. They investigated whether there were institutional players who could be leveraged to stop some of the patterns of violence.

For instance, they’re able to say, that when students are let out of school at certain places there tend to be violent fights between different groups. Could we change the environment so when kids get out of school, they are not going to start the fights? Are there places where the lighting system is such that we constantly see crimes, because of course if you want to do a crime, you might want to go where no one can see you….Initially this sort of holistic data collection of city, local, state, and also law enforcement, brought down some of the shootings in New Orleans.

Unfortunately, it’s gone up since I published the book. But data can be used in a more holistic, constructive way, to identify some of the same problems (and) doesn’t have to necessarily require a pure policing response. It might actually be better to invest in social services, invest in fixing up neighborhoods. That might actually have a greater impact on crime reduction than simply putting a police car, or a police officer at a door, or a street corner.

TCR: You propose creating a risk map in the book. Can you talk about this suggested shift from mapping crime to mapping social services?

 Ferguson: I write about how, if you separate out the risk-identification innovations from the policing remedy, you might get other uses of predictive analytics. You could have a map of all the people who don’t get enough food in their lives, or all the individuals who’ve missed four days of school for whatever health reasons. You can use the same sort of identification for the social risks of society, for people who are in need.

Right now, we focus our energy on crime and policing because that’s where the funding came from, but it doesn’t have to be that way. Maybe some of the innovations being created by these same companies, and by these same technologies, can be used for different purposes, and maybe with different outcomes.

TCR: You say that we should be viewing violence as a public health problem rather than law enforcement related.

 Ferguson: You have to understand why big-data policing has arisen at this time. In part it was a reaction to the recession, and it was a reaction to the fact that police officers, and administrators, and departments all across the country were being gutted.

Police needed a solution. (They could claim) that predictive policing technology is going to help us do more with less. And when you are in that mindset, it’s really hard to then also ask for help with what we know are the real crime drivers: poverty, hopelessness, lack of economic opportunity, lack of education, and an inability to sort of get out of a certain socioeconomic reality. As we’ve moved out of the recession, data (remains) our guiding framework for policing. I think there is an opportunity for chiefs to say, we are at a better place to figure out why crime is happening in this area. We can tell you where it is. We can tell you the people involved, but there is something beneath that, which is the why?

The risk factor is here, and that’s in part because this parking lot has been abandoned for the last decade. If you fixed it up and made it into a nice park, maybe we wouldn’t have killings or robberies there, right? We know there are certain people dealing drugs because all the jobs in this area have gone away. If we could figure out sort of economic opportunity potentials for these same young men, we might not have that same crime problem.

The data can visualize what we all know is there, but does so in a different way that might potentially offer a way forward. We might have partnerships with police and communities that deal with some of the underlying environmental, socioeconomic issues, and the data can lead us to a part-policing, but also a part-social services, civic investment strategy.

TCR: Judges have also had to learn to adapt to this new technology. How has it influenced the outcomes of trials, and decision-making?

 Ferguson: I’m a law professor, and I got my start trying to figure out how new technologies like predictive policing and big-data policing would affect trial courts, and Fourth Amendment suppression hearings, and the idea of reasonable suspicion. Reasonable suspicion is the legal standard that is required for police to stop you on the street. They have to have some sort of particularized, articulable information that you are involved in criminal activity. In a small data world, which is the world we had when the law was being created, it was only what the officer saw. (For instance, a suspicious individual hanging around a jewelry store.)

Our laws are created based on that very tangible reality of what officers can see. In a big data world, there is a lot more information. Now that officer might know who that individual outside the jewelry store is. He might know his prior record. The data could tell him who the individual is associating with, and any prior criminal records. That information t has nothing to do with what that person is doing at that moment; but it might influence what the police officer thinks is happening. That’s natural. If you now know that an individual in front of you is not just a person walking by the jewelry store, but one of the computer driven, most-wanted, most at- risk of violence, it might change how you are suspicious of that person.

(In a similar way, big data) might change how a judge is going to evaluate that suspicion and say, well it makes sense. The officer knew from the dashboard that this person had a really high score. The judge knew that the reason for that high score was his gang involvement, and his prior arrests, and convictions for jewelry store robberies. Of course that should factor into his suspicion, and what has just happened is, data, big data, other information, has changed the constitutional analysis of how a police officer is watching an individual do the same thing.

That’s happening right now, as these cases make their way through the courts. And there’s a way that the courts haven’t really thought about what are we going to do with these predictive scores. What do we do if a police officer stops someone in a quote unquote predictive area of burglary? A computer told him to be on the look-out; how do we as a judge, or as a court, evaluate that information in our constitutional determination of whether this officer had enough suspicion? And we just haven’t seen great answers to that. We’ll see how it plays out in the future.

This conversation has been condensed and slightly edited. Julia Pagnamenta is a news intern with The Crime Report. She welcomes readers’ comments.


Murder in Your Living Room: Rethinking TV Crime News

Veteran Chicago TV newsman Robert Jordan, Jr. argues in a new book that the media—especially broadcast outlets—too often concentrate on the most violent stories while “sleeping” through more significant developments in American justice. He explains what he means in a chat with TCR.

Even in the Internet era, the broadcast media –especially local TV stations—are the major source of news about crime and justice issues. And they remain a huge influence on public perceptions of crime. How do they handle that responsibility?

That’s one of the central questions Emmy Award-winning TV newsman Robert Jordan Jr. tries to answer in his new book, Murder in the News, published by Prometheus Books. Jordan, currently a weekend anchor for WGN-TV’s News in Chicago, applies the lessons learned during his 47-year career in broadcasting to an examination of the role reporters play in advancing (or hampering) understanding of the criminal justice system in his book.

murderIn a chat with TCR’s Megan Hadley, Jordan discusses the contrast between media coverage of today’s opioid epidemic and the crack cocaine crisis of the 1980s; how TV audiences have more influence than they think they do on what local stations decide to cover; and the constant conflict in broadcast newsrooms between “beauty and substance.”

The Crime Report: To me, the main issue of your book is summed up when you write that in connection with gang homicides, it’s “bad guys killing bad guys… who cares?” How do you get the public to care?

Robert Jordan: The answer to that, is we really don’t (care). There’s a feeling that “they” deserve it, whenever it’s bad guys dealing with bad guys, we in the media are no different. We have wives and children and husbands, and we too are victims of crime. Our own prejudices creep into our thinking, even though we try not to, you can’t help it.

But that is not what our jobs ought to be. We are here to tell stories and not to be judgmental. Over the years, I’ve had to slap myself in the face and go “wait a minute—that’s not the way I want to phrase this.” Let me go back and talk to this guy’s mother. We have to make the effort to overcome our prejudices and inclinations to think bad guys getting bad guys is OK. There are great stories hidden there that need to be told. For example, gang-related violence stories are not pretty stories, until you dig into them and they are incredibly interesting stories about survival and determination.

If you ask someone “is the life of one person more important than the life of another?” they would say everyone is equal. But we truly don’t believe that, and the coverage of murders is proof. The murder of a doctor, lawyer, newsman or child is given much more attention than (the murder of) a homeless person or a gang member.

TCR: Early in your book, you describe how gang violence received very little media attention in the 1970s, 1980s and 1990s, and still even today. Could gang violence have been reduced if it was covered in the media earlier on?

Jordan: It probably would. (In the book), I talk about how during years when we do cover a lot of gang violence in the media, politicians to feel the heat and will either enact laws, or flood communities with more police, or do reactive things that make a difference. So to answer your question, I think there would have been a different outcome, based on the reaction that our coverage causes.

This is likewise the case when there are high-profile cases. Gang members feel it because the police are out there. And the police will tell you “oh no we do this for every case, we were out there with eager and equal intensity,” but that really isn’t true. In a high-profile case, they flood the neighborhoods. They put extra cops and detectives on, and they get into the neighborhoods and there is more pressure applied.

TCR: Should there be an entire news channel dedicated to gang-related homicides?

Jordan: I don’t think so. I think that if you had a diet of nothing but murder, you would get a few people to watch but you would not get a large audience. You would get a few eyeballs, but not enough viewers to sell advertisements and support it.

Does that mean what we are doing now has to change? I think it does. In the book, I write about the need to get producers and assignment editors out of the office and onto the streets more often so that they are plugged into the realities of the neighborhoods. Let them sit in a truck; let them go knock on the door when someone’s been murdered. If you haven’t done that before, you’re in for a surprise.

Robert Jordan

Robert Jordan Jr

You talk about tense: Walk up to someone’s house when there’s been a shooting. Folks are standing on the front porch, they are waiting for people to come by any moment with guns, and you’re standing there with a camera crew wanting to do some interviews. That will pucker your lips up.

It’s a different life in the streets. But for the most part, you are dealing with human beings who are 90 percent good, wonderful people. We forget that. We allow ourselves to be jaded by that five to ten percent of gang members, and forget about the grandmas, grandpas, brothers, sisters, and kids who are good people.

TCR: You write in the book “sooner or later, the thug life will inch its way into middle and upper class neighborhoods.” Please explain.

Jordan: We didn’t see this in the 1970s and 1980s, when crack was explosive in black neighborhoods. Now that drugs are hitting middle-class America and suburban teens with epidemic proportions, we see a different attitude about trying to get these kids help. It’s not “let’s lock them up;” it’s “let’s get them treatment.” Addiction has moved into every neighborhood and every family. So there is a realization that we all have to do something. The shame of it is that it took so long for us to come together and realize this was a social issue that we had to work across races and social status to combat. That lapse of time has resulted in hundreds of thousands of deaths and the shattering of millions of lives.

(The media) kind of slept through that story. Now we understand the depths of the epidemic for the first time. We’re talking about it because it is so widespread in Middle America; but it should’ve been something that we talked about years ago. There are unintended consequences when the media sleeps through stories. Heroin never went away. Crack has been given over to opioids. But the epidemic remains.

TCR: You write about the need for producers and assignment editors to cover a balanced mixture of stories, while also acknowledging the role of the audience as well. In your opinion, who is in charge of changing the types of stories we see in the media: the newsroom or the audience?

Jordan: Ultimately, the consumer. The reader, the viewer, the listener. But in the short term, it’s the assignment editor or the producers. They decide what the viewers will see because they make the initial decision. They decide whether or not to send out a crew on a story. They have the gut feeling which allows them to decide the hierarchy for the day. They decide what stories to put in the first segment, how to stack them.

Those are the media filters, but viewers and listeners are also determinate factors. They can text the stations and say “hey I didn’t see anything about this story,” and they can apply pressure and become a force in determining what the media covers. Because if viewers, readers and listeners say they want more of ”this or that,” then I guarantee you the media will give them more of that. That is what we do, that is our job. But for consumers, you don’t know what you don’t know. So if a murder happened in a neighborhood and we didn’t cover it, but another station did, how would viewers know? They wouldn’t. It makes pressuring the media tough.

TCR: Why is it that most television stations are using the same yardstick for deciding which murders to air, as well as which stories? Your book notes that most news channels air the same kinds of stories in the same order.

Jordan: We all go to the same journalism schools, we do the same internships, we follow the same websites, we are trained similarly and we have a manner of thinking which is very similar. We all have this understanding about what is big and what isn’t. We know the elements that cause a story. Like Harvey Weinstein, I’m sure he walks out the door and the paparazzi are all around him.

There’s a tacit feeling among us when there is a big story. We sense it. We have an understanding of our industries and we sense that a story is going to be a grabber and the audience will like it.

TCR: You discuss protest symbols, such as the hoodie Trayvon Martin was wearing and the skittles he was carrying when he was killed. The skittles and hoodie became symbols for protesting his death. Are symbols important ways for the media to spotlight social change?

Jordan: We are always looking to the unusual; that’s news. And when there is something unusual that attaches itself to a story, the reporter sees that and will run with it, because it gives it a nice hook. It’s something to hang that story on, as opposed to the usual mundane murder we cover time after time.

Sometimes it might not be just a symbol, but an element of the story. For example, a (Chicago) girl was shot in her neighborhood after performing in Obama’s second inauguration. She was an honor student. It might not always be a symbol like a skittles, but it’s an element. An element the reporter can seize upon and help drive that story differently.

TCR: As we have seen over the past few weeks, movie director Harvey Weinstein, actor Kevin Spacey and many other powerful men have suffered accusations of sexual assault. It began with media attention focused on the allegations. But others wonder why it took so long for the media to catch up with systematic harassment of women in the workplaceor other forms of misbehavior.

Jordan: In the book I give an example of John Burge, a police officer in Chicago, who was torturing innocent men into confessions. I remember when that was going on and it’s one of the most embarrassing times of my career because I had heard about it, but we all tended to believe the authorities. So if the police said that’s not true, we believed it. Consequently, so many things slipped through.

See also: Cracking the Stonewall on a Nun’s Murder: A Reporter’s Story

In the case of many of these alleged predators, there were mumblings about their lifestyles that we, in the media, tended to overlook. Well, all it takes is a crack; and then, as you have seen, the dam breaks and there is a flood. There isn’t a day of the week that goes by now that there aren’t new revelations about sexual impropriety. I was just talking with some friends and saying we hope this continues. Inevitably, we move on after a while to something else.

We allow stories to remain hot, headline issues, but then at some point, something else comes along and we move on to it. But the consequences will be enormous, and as a result there will be change.

I think women now are no longer afraid to speak up and that is a huge breakthrough. I’m not critical of the fact we move on from these stories; I’m pleased that there is a causal change because we were giving a topic so much attention.

TCR: You write that the more viewers you have, the more you can charge for advertising and this has caused some stations to come up with the dumbest, wackiest, ill- conceived ideas a TV station could think of. Is this a problem of today’s broadcast media?

Jordan: Broadcast television is fighting over the bones of the audience, because most of the audience is gone. People have gone to cable, viewing (news) on computers, cell phones, tablets. They record news shows and fast-forward through commercials. The paradigm has shifted away from broadcast journalism and stations are fighting for the scraps of the audience. They are trying to figure out ways to gain viewers through promotions or goofy commercials.

There is an emphasis on beauty over substance. A “weather girl” is placed on the air as opposed to a meteorologist. They are going for more of a beauty queen look rather than someone who has substance in an effort to attract viewers. But stations are starting to realize you better have a trained meteorologist on the screen.

It goes back and forth, but it doesn’t mean stations aren’t always searching for a way to gather viewers by any means necessary. And over the years, there have been dumb and inappropriate things done.

TCR: Americans of color are not well represented in newsrooms today. How has that affected coverage of crime and justice issues?

Jordan: A  multicultural newsroom adds to the richness of ideas, and expands the thought process in editorial meetings and discussions. The debates can sometimes become heated—especially if they become personal—but they allow journalists to examine a subject from many different angles, including some we may not have considered before.

As an African American I found it difficult to cover a rally of the Ku Klux Klan in Nashville, Tennessee; and, years later, a rally by Nazis in Skokie, Illinois. I remember wondering to myself if I could be fair and honest in telling the story. I couldn’t just let the words flow from my pen as I would normally do. I had to scrutinize each word and ask myself, was this the most appropriate way to tell the story? When I turned in the Nazi story, my editor said I had done a good job. I didn’t know quite how to take that compliment. I still don’t.

TCR: You are critical of  today’s news coverage of crime.  How can TV do a better job?   

Jordan: I am not critical of television stations that focus on crime. These are necessary and important stories that should be covered and dissected and explored from many different angles. What does bother me is the use of crime stories as a tool for gaining ratings points: having blaring banners and agitated news anchors, taking viewers to a reporter standing in front of yellow police tape with nothing to report other than, “Our News Chopper 7 is overhead in this neighborhood where a suspect is on the loose.”

I think newsroom gatekeepers, assignment editors and producers, are too quick to “poo poo” a story—especially a murder in minority neighborhood—without looking deeper into the case to see if there might be a good story that was about to be overlooked. We miss some really good stories because we let our old perceptions about “who is important and who is not” blind us. (Those perceptions) keep us searching for the same types of victims and perpetrators instead of breaking the mold, and going after potentially good stories that are right in front of our faces.

TCR: The accusations of sexual harassment we discussed earlier also include some powerful media figures, both on and off  TV. What’s your take?

Jordan: I’m old enough to remember the days of the “Good Ol’ Boys Network.” If you were a CEO or powerful politician or respected civic leader, what you did behind closed doors was your business. Many times, the private lives of these individuals were whispered about in private conversations, but their scandalous activities were seldom reported. I can remember hearing men say outrageous, salacious things to women. I also remember admonishing men for making filthy remarks or telling off-color jokes around women. I was not alone in standing up for women and gays at a time when it was not popular to do so. But still, lamentably there weren’t many men who did stand up for women’s rights: Neither did the press.

Fortunately, these (sexual harassment charges) are more than a “trending” story that will drop off the news radar any time soon. This is a watershed moment, a turning point, in how men will be allowed to treat women and “get away with it.” Women are determining what is and what is not acceptable in a relationship. The new adjustment in sexual protocol will make some people uncomfortable. That’s too bad. There needs to be a sexual etiquette that men and women (mostly men) clearly understand, and when it is breached there should be grave consequences. But this will take time. An entire older generation, maybe two, of wrong-thinking male chauvinists will have to die out, so their way of thinking becomes extinct along with them.

This interview was condensed and slightly edited. Megan Hadley is a news intern with The Crime Report. She welcomes comments from readers.


The Skewed Politics of the Death Penalty

A Texas man condemned to death for a crime he didn’t commit was freed only after his attorney discovered a concealed phone record that proved his innocence. The attorney, Brian Stolarz, who wrote a book about the case, tells TCR that it’s an example of how capital punishment in the U.S. is hostage to a system that depends on whether you have enough money to pay for good legal help.

Alfred Dewayne Brown was condemned to death in 2005 after his conviction for killing a Houston police officer and a store clerk in a botched robbery in Texas. He spent a decade trying to prove his innocence, but it was only when an attorney named Brian Stolarz took his case and helped uncover the records of a phone call that proved he wasn’t anywhere near the scene of the crime—records that had been concealed from the grand jury—that Brown was finally exonerated and released in 2015.

Stolarz’ book about the case, Grace and Justice on Death Row (Skyhorse Publishing), arrives at a time when the movement for abolishing the death penalty continues to be stymied at the federal level—even as it has won more support in the states.

In a conversation with TCR’s Julia Pagnamenta, Stolarz discusses the outlook for the abolition of capital punishment in the U.S., how the politics of electing judges makes death sentences more likely, and how his Catholic faith influenced his own approach to the issue.

The Crime Report: Why write this book now?

Brian Stolarz: The death penalty debate in this country is trending towards abolition. In a new Gallup poll, approval is the lowest it’s been since the 70’s. A Pew research poll had [the approval rate] below 50 percent. It is my belief that it will be abolished one day. And I hope that cases like Dewayne’s shine a light on why.

TCR: And yet in the current political climate, it doesn’t seem like the death penalty will be abolished on the federal level. 

Brian Stolarz: I think the best way to attack the death penalty right now is through the states. Nebraska was a good example of a traditionally red state having that important debate. I think the federal death penalty will stay in large part because of the make-up of the Supreme Court. Now, with [Neil] Gorsuch taking Justice Antonin Scalia’s seat, I think it will be a number of years, if not decades, before the court shifts to a 5-4 for unconstitutionality of the death penalty.

So the way to attack that is on the state level and to identify what is called the “outlier counties.” There are only certain counties in this country that use it, and if there’s pressure even in those states to narrow it, and get rid of it, then maybe we can chip away at this brick by brick. If Nebraska is doing it, then other states can too, and if we get it so that it’s done only in a couple of states, then it becomes even more unconstitutional, and you may even have a federal challenge to it.

TCR: Let’s talk a little about Dewayne’s case: the prosecutor coerced Dewayne’s girlfriend, Ericka Dockery, into giving false testimony, and then hid the phone record that would have exonerated him. How did this happen?

Brian Stolarz: This case was in our view a rush to judgment. You have a high- profile case in which a black defendant is being charged in the murder of a white police officer, and there is a sense that they want to get quick justice. And so because there was never any science that connected Dewayne to the case, (and) never will be, this case was based largely on the testimony of his girlfriend Ericka Dockery.

Dewayne’s alibi was incredibly straightforward: He was at Ericka’s apartment at the time of the murders, and made a phone call to where she worked. Ericka testified that way in the grand jury.

The DA, and the grand jurors in particular, were badgering her, and in our view threatening her, and they kept pressing on her. I’ve never seen anything like the transcript in this case. But she held firm to Dewayne’s alibi. And the DA—and this is the moment where the case changed—decided that on his own, he would charge her with perjury, and ask for a very high bail, and then she sat in jail for four months. Her life fell apart. She lost her job, her kids…and so she said “fine, I’ll say whatever you want.”

Alfred Dewayne Brown

Alfred Dewayne Brown is released from prison after his exoneration. Photo courtesy Death Penalty Information Center.

But then we uncovered through our investigation that she testified about the phone call occurring on the caller ID box. The DA, Dan Rizzo, subpoenaed the phone company the day after she testified in the grand jury. The documents were sent by the phone company to the police, and it showed that Dewayne paid (for) that phone call, but they never turned the record over.

And that is still astonishing to me. The reason we got it was because the DA who was in charge of the writ of appeal emailed us in May of 2013, and said that the cop in charge of the investigation had recently spring-cleaned his garage, and found a box of documents. He sent it to us, and in the middle of the box was the phone record we had been looking for (over) eight long years.

TCR: You write about the lack of money and resources for public defenders, especially compared to the funding and political backing prosecutors receive. Please explain.

Brian Stolarz: Sadly, it’s easier to be rich and guilty than poor and innocent in this country, and it’s always more popular to pay the prosecutor than to pay a public defender. I hope that is going to change, because the Constitution is only upheld and preserved and maintained if the process is fair for everybody. In this case, Dewayne had a court-appointed lawyer, and the DA had all the resources to investigate. I see that in cases I work on all the time, and it’s bothersome to me because if Dewayne had the law firm I worked at, K & L Gates, that could have thrown a lot of resources at it, it might have been a different result for him, and he might not have spent 12 years and 62 days in jail for something he didn’t do.

Further Reading: “Legal Aid for Capital Punishment Cases Depends on Where you Live” (TCR Nov 7, 2017)

TCR: You worked pro bono nature on Dewayne’s case. Is this a common practice for private law firms?

Brian Stolarz: A strong public defender is always the first line of defense and that should be where our resources go. You can’t depend on large law firms to pick up the slack on everything because there are only a few law firms that will put the kind of resources that our firm put towards it.

TCR: How important to the capital punishment issue is the fact that judges administering these cases are elected?

Brian Stolarz: There’s a part in the book where I write that the Alabama judicial system had a jury override function, that the jury could recommend life, but then the judge could override that and give death. Well, in election years, the judges would override the jury verdicts more. It’s transparent to me to why they did that: to get elected. To me, that’s not justice, that’s political gain; I think all judges across the country should be appointed by their respective governors, or whatever bodies can do it. I think that when you politicize law, you are making it such that certain things are valued over other things, whether it’s these tough-on-crime sentences, or whether it’s a judicial override, so that a person can say at a rally, I put ten people to death. Well that’s not what I want my judge to be up there saying.

TCR: Your Catholic faith guided you through Dewayne’s case, and informs your opposition to the death penalty. And yet, in the book you recall how a religious group outside of Dewayne’s prison refused to serve you any food after you told them you were defending a person on death row. How did that affect you?

There is a certain level of hypocrisy that I see when I speak in churches. When I talked to this group, where they were all too happy to give a fish platter to the guard but they wouldn’t give one to me because I was defending someone in there. They were all happy to advocate for this man’s death. It just didn’t seem like the Christian way. Growing up Catholic, I was told that life was life, beginning and end, no matter what you’ve done, and it’s not the state’s role to kill anybody. Pope Francis has put a finer point on that now, and I hope that that combined with the advocacy work of Sister Helen, we can finally show that the Christian stance is that the death penalty should not happen.

TCR: Justice Scalia, also a practicing Catholic, supported the death penalty.

Brian Stolarz: Justice Scalia and I differed on our application of it even if we both had a strong Catholic faith.

TCR: Well, maybe in his case it wasn’t a Catholic interpretation, but a Constitutional reading of the death penalty?

brian stolarz

Brian Stolarz

Brian Stolarz: Yeah, it had to be. That’s what I read into it, but my faith has told me it’s not the right thing to do. If I were a judge I guess I would have to think about it differently, but from where I sit right now, it’s not the right thing to do. The state shouldn’t do this, and I hope Pope Francis’s message carries some weight.

TCR: There is currently an art exhibit, “Windows on Death Row” at Columbia Law School. People on death row made the art, and Columbia hosted several events this fall around the topic. At the first event, a Swiss representative who introduced the discussion said a central tenet of Switzerland’s foreign policy was a universal abolition of the death penalty. It’s also a European Union foreign policy objective. Why is it that the United States is one of the only countries in the Western world that still uses the death penalty?

Brian Stolarz: I spend a lot of time talking to folks in the European Union (EU). I’ve been to a few conferences and people are still shocked that we have it. We’re on a list with countries like Iraq and Iran and China, countries we don’t normally want to be on a list with as far as human rights. You can’t be a member of the EU if you have the death penalty. EU companies are not allowing drugs to be shipped here for this reason. Their advocacy is really important, and I think with more pressure like that, it may begin to change how we all think.

The American frontier spirit, and the Old Testament “eye-for-an-eye” approach has carried the narrative for us up to now. But I think that’s changing given the recent public opinion polls.

Julia Pagnamenta is a news intern for The Crime Report. She welcomes comments from readers.


The End of Policing? 

The drive to diversify police forces and the renewed interest in community policing are transforming law enforcement across the country. But a provocative new book by a Brooklyn College sociology professor argues that these efforts don’t address the underlying problems. He explains why in a conversation with TCR.

Policing in the United States is in the midst of transformative changes, partly spurred by the well-publicized officer-involved shootings around the country—but also as a consequence of generational change, as police ranks open up to a more diversified group of recruits and as departments modernize their training. But Alex Vitale, a professor of sociology and coordinator of the Policing and Social Justice Project at Brooklyn College, argues that little will happen unless police agencies rethink their roles in public safety.

In The End of Policing, Vitale offers a different framework for thinking about how law enforcement relates to the communities it serves. In a chat with TCR’s Isidoro Rodriguez, he explains why the current policing model perpetuates racial bias, why he believes community policing is misconceived, and what he means by the provocative title he chose for his book,


Alex S. Vitale

The Crime Report: The title of your book will attract a lot of attention. But do you really think that policing needs to end? 

 Alex Vitale: The title has a kind of double meaning. On the one hand, it means should we look at a complete rethinking of policing. But, also, within that, what is the purpose of policing? What is it that we have asked police to do functionally?

The book is really about trying to lay out a process of interrogating our over-reliance on policing, and using evidence-informed alternatives to try and reduce that reliance. And behind that is the understanding that policing is inherently a problematic tool for cities to use to solve problems because it comes with a legacy of reproducing inequality, especially along the lines of race. Also, it relies on the tools of coercion, force, and punitiveness to solve problems; and that brings with it a lot of potential collateral consequences that we should be looking to avoid whenever possible.

TCR: The punitive aspect of policing is a key issue today. Departments across the country continue to face controversy as a result of their officers’ often aggressive methods. As a result, many have implemented programs such as Crisis Intervention Training and placed new emphasis on de-escalation and conflict resolution. Are these the right ways to go?

AV: First of all, a lot of departments aren’t making meaningful changes. They’re not actively embracing significant new training regimes. My view is that, ultimately, training police to better do things that they shouldn’t be doing in the first place is not the ultimate solution. If we could really dial back the things we ask police to do, then we could talk about what kind of training and protocols would be best for doing what’s left. Police is the unit of government that we rely on to be able to use force.

It’s a mistake to think that, somehow, we can just train police to be nice and friendly all the time. Rather than creating this idea that we can make the police nicer, we should really just reduce the number of things we ask them to do.

TCR: One of the main areas where police are taking on more responsibilities than many feel they should is policing the mentally ill. Should we take the responsibility for this population off the shoulders of police who often aren’t even trained to deal with them?

AV: Absolutely. Instead of trying to fine-tune the police response, we need to just end the police response to most of these calls. And we can just look at the United Kingdom as an example of how to move in that direction. There, when someone in a family is having a mental health crisis and a family member calls for help, they call a phone number that’s tied to the national health service. It has nothing to do with the police. A trained mental health nurse practitioner, or other trained mental health worker, responds to that call.

Now, if there is a concern, or an articulation of violence, than it may be necessary for some police backup. But that call is handled as a health crisis call. The UK police don’t want to take those calls, are happy to have mental health professionals doing that work, and are angry that mental health services in the UK are being dialed back and more of the burden is falling on them. And, frankly, there are a lot of cops in the United States who think it’s a mistake to send police on those calls. They don’t want to do them;, they don’t believe that what they’re doing helps; and it’s incredibly fraught.

TCR: Why is there such reticence on the part of American police forces to adopt international examples of successful alternative policing methods like those practiced in the UK?

AV: Because it has nothing to do with the police. This is not their decision to make. This is a decision that’s been made by political leaders not to fund adequate community based mental health services due to a bipartisan consensus around the politics of austerity.

TCR: In the debate on how best to deal with the mentally ill, there’s a strong push for diversion methods such as mental health courts. Do you see that as a successful step of reform?

AV: The courts are not always that successful in diverting people. Whether it’s mental health courts, trafficking courts, or drug courts, they rarely provide the services that are often most needed in these situations: stable supportive housing and access to a stable income, whether it’s through employment or government transfers.

End of PolicingThey engage in a lot of therapeutic regimes, which may provide some aid in helping people stabilize, but don’t totally do so in a way that avoids future interactions with these systems.

Instead, we see a lot of churning of people through these courts, through therapeutic regimes and, also, through emergency rooms, police lockups, and jails—often at the cost of hundreds of thousands of dollars a year per person. I think what we should be looking at is not pre-incarceration diversion, but pre-arrest diversion. Instead of limiting access to drug treatment to people that get arrested, why not have drug treatment on demand for anyone who needs it? Why not have actual adequate community based mental health services?

Then, if we have those services in place, and there are people who are still producing problems in the community, let’s talk about how to address those individuals from a comprehensive standpoint. Instead, we make no services available, and then we criminalize people for engaging in antisocial behavior.

TCR: Another issue your book addresses is the militarization of the police, both in tactics and the supply of military-grade hardware, a reality memorialized by the protests in Ferguson. Please explain your perspective.

 AV: Political violence is a political problem, and it needs to be solved in the political arena. But, too often, rather than addressing those political concerns, our political leaders hand it off to the police to deal with. That leaves, again, police in a no-win situation where they feel the need to use force to resolve what are ultimately political problems. The other thing is that militarization of policing is about a lot more than humvees and tactical vests. It’s about a whole ethos that has become widespread in policing in the United States. About politicians telling police to wage a war on crime, a war on drugs, a war on terror, and a war on disorder and then giving them budgets to buy military equipment and create paramilitary units with training regimes that treat the public as enemies to be neutralized.

We have seen that ethos at work in some of the most horrible abuses of policing. So what is to be done? Quit telling the police they’re at war with the public, scale down the kinds of thing that they’re being asked to deal with, and then think about what kinds of tools, training, and technologies are best for accomplishing that. In my mind, that would result in a vast reduction in the use of militarized equipment and training.

TCR: In your book, you point out that poor and minority populations almost exclusively shoulder the burden of overpolicing. Why?

 AV: We persist in a fantasy of color blindness that says the police response is merely a professional technocratic response to where the crime is, but ignore the ways in which our society has been structured along racialized lines and the ways in which poverty in the United States is growing and becoming more entrenched. This includes a lot of white rural communities that are suffering from opioids and other kinds of crime problems.

Our political leaders have chosen to define those communities as criminal rather than as communities that are in deep distress because of entrenched joblessness, discrimination, geographic isolation, etc. If they were to admit that the problems in those communities were the result of market failures, rather than individual moral failures, then they would have to intervene in markets in ways that those who put them in office don’t want them to. To address the problems of inequality in any way other than policing is politically unacceptable in our current political environment.

TCR: As you write in your book, today’s policing issues have deep historical roots—in some cases as far back as the 17th century. Does this history hold any lessons for policing today?

AV: Our popular culture, which is the main source of information that people have on policing, is suffused with the myth of police as neutral, professional crime fighters. In the book, I discuss things like Adam 12, which was created in the wake of the Watts riots, as a tool that the Los Angeles Police Department was actively using to restore public confidence in police along really invented lines. That has become the way police are portrayed primarily in our popular culture. What we don’t see, are the concrete ways in which the police reproduce enforced ghetto segregation, Jim Crow, and carry out the war on drugs and terror along racial lines.

TCR: In your book you describe the “hero narrative” that dominates police thinking about their role. Does that need to be addressed at the start of police training?

 AV: Most young people that I know, who have wanted to go into law enforcement, are motivated by a very real and genuine desire to help their communities. They believe that policing is the way to do this. What they don’t understand is the profound legacy of the structural impediments to using policing to truly solve community problems. So, police officers are often very frustrated in their jobs, because what they thought was going to be both exciting and helpful is bureaucratic and pointless. If you read memoirs from police officers, you often get “we spent years arresting people for drugs, and yet everyone in the community could get drugs any time they wanted them.” It’s the utter pointlessness of the enforcement.

TCR: The motivation to help the community is behind many police departments’ renewed drive for adapting community policing methods as a means of creating safer and more effective policing practices. Is this a step in the right direction?

AV: No. I think that community policing merely expands our reliance on police to deal with social problems that would be better handled in other ways. As long as the police are asked to wage simultaneous wars on drugs, terror, disorder, and crime, they cannot do this in a friendly and respectful way. And what the police consider to be the community excludes large portions of these neighborhoods and consigns them to being the enemy.

TCR: So much of your book emphasizes taking money out of criminal justice and putting it into viable progressive social programs. In your opinion, on a party level, is there any push for this kind of monetary change on either side of the fence?

Isidoro Rodriguez

AV: No. My hope is that the theatrical excesses of the Trump administration will create more political space to talk about the kinds of reforms and shifts in social spending that will actually make a difference. But I don’t see too much of that in the works among existing big city politicians. New York City Council members have written me letters, some elected officials came to my book launch in New York, but we have yet to see a true political tendency.

Of course, there are community- based organizations all across the country making these same points. What we need to do is bring together those groups, critical academic researchers, and progressive political leaders, and turn this into a real political movement.

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


Why White-Collar Crime is a Growth Industry

In a new book, Michigan criminologist Gregg Barak warns that the failure to effectively regulate multinational corporations allows corporate chicanery to flourish on a global scale.

Critics of the business world lament that crimes “of the street” are much more aggressively prosecuted and punished than crimes “of the suite,” but Gregg Barak, professor of criminology and criminal justice at Eastern Michigan University and author or editor of 20 books, believes the problem goes deeper.

In his new book Unchecked Corporate Power, Barak argues that governments’ abdication of their responsibility to effectively regulate multinational corporations has enabled white-collar chicanery to flourish on a global scale. In a chat with Nancy Bilyeau, Deputy Editor of The Crime Report, Barak discusses why he believes there’s little chance of policymakers taking action in the near future, the connection between corporate crime and climate change, and how the Harvey Weinstein sexual harassment scandal illustrates the impunity of powerful CEOs.

 The Crime Report: Fewer criminologists are doing work on white-collar crime than on other crime sectors, and less work is being published in academic journals. Is this a factor in elite players presently being “unchecked”?

Gregg Barak: Interestingly, in my “White Collar Crime” class this semester, more than one student has asked me the exact same question. In a very indirect kind of way, the lack of investigation by criminologists of multinational corporate crime compared to their investigation of street or index crimes does contribute to the impunity of these acts and omissions, or to the normalization or routinization of these crimes. Certainly, if the field of criminology were paying due diligence to these crimes, there would be more attention given to them However, that also imagines that public policy on crime and crime control, whether in the suite or the street, is in fact responding to evidence-based research on the matter—which I believe is not the case, generally speaking.

Gregg BarakTCR: How long has “state- routinized crime” committed by multinational corporations been at the unchecked level it is at now? 

 GB: Actually, the track record of checking multinational corporate misbehavior has for the most part always been beyond incrimination, so at the present time, it is pretty much business crime as usual.

TCR: Is there anything you can single out as bringing us to a fever pitch on this?

 GB: While fundamentally these crimes are related to the contradictions in global capitalism, the one condition that I think stands out in relation to the present state of crisis has to do with global warming and climate change.

For example, in the not-too-distant future, overcoming or succumbing to corporate and multinational pollution—from ecocide to global shortages of water to fracking to electronic waste disposal and so on—in the context of climate change and the need to abandon our dependency on harmful fossil fuels, regardless of the bottom-line profits that will disappear, or else face the possibility of human extinction, speaks to the necessity of reconstructing or reconstituting what corporations are as legal entities.

Replacing an unencumbered, privately controlled capitalism, and capitalist state, with an environmentally and democratically controlled public capitalism, and capitalist state, no longer driven by the irrational and unsustainable exponential growth of capital and consumption, is at the heart of the contradictory relations in both the routinization of licit and illicit behaviors of multinational corporations as well as capitalist states’ routinization of the noncriminal responses to these crimes.

TCR: What role do the media play in the lack of public awareness of unchecked corporate power?

GB: Let me just say that the major online newspapers in the U.S., including The New York Times, Wall Street Journal, Washington Post, Financial Times, Bloomberg, etc., do cover, report on, reveal and expose much of the unchecked corporate power in this world. There are those economic and business journalists that have and are connecting the dots. However, they are a minority of reporters and are up against a larger narrative, if you will, like the myth of Too Big To Fail, for example.

As for the lack of public awareness, I would say that they are not paying attention. If the public hasn’t figured it out after the implosion of Wall Street and the Organize Wall Street movement, after the ongoing high-end securities and financial frauds that have continued unfettered to the present day, and after Supreme Court decisions like Citizens v. United, I do not know what it will take.

TCR: In the last presidential election Wall Street’s unchecked financial power got a lot of attention. A year later, do you hear these debates continuing? 

GB: I would say that there are discussions in the world of academia, in many online blogs, and in posted electronic mailings like nakedcapitalism, but less so in the mainstream media. Certainly, if folks are running for office and bring up neoliberal policy, it will be debated. After all, it is these policies that constitute most of our current crisis and facilitate unchecked corporate power. They need to be abandoned unless we want things to continue to decline.

TCR: Is there any hope for the creation of an international apparatus of regulatory control? 


Gregg Barak

GB: In the short term, I do not believe so. In the long term, if we do not come up with some kind of democratically based apparatus of international and regulatory control of these ways of conducting business as usual, then it is highly unlikely that unchecked corporate power will wane in the future.

TCR: Do you see a possibility that federal prosecutors will return to pursuing difficult and prolonged cases such as Enron instead of negotiating fines?

GB: I do not see any indication of that, especially with the current administration. A first step for that to occur would require the creation of a Corporate Fraud Division within the U.S. Department of Justice.

TCR: I realize that a producer of independent films is not in the same category as the executives of multinational corporations, but I was struck by a parallel in the Harvey Weinstein case—of his ability to ward off criminal investigations of sexual harassment through a compliant press and corporate partner enabling—and some of what you outline in your book. Do you agree?

 GB: In a way there are similarities, because these are mostly extremely wealthy and powerful men. The sexual abusers at Fox News had a lot of power over those people around them and there’s the fact that they have the money to settle, settle, settle, over and over, for their habitual misdeeds and to avoid the criminal law.

Nancy Bilyeau is Deputy Editor (Digital Services) of The Crime Report. She welcomes readers’ comments.


How the Mental Health Industry Fails the Mentally Ill

A new book argues that mental health authorities’ failure to address the public safety challenge posed by individuals with serious mental illness unfairly shifts the burden to police and the courts. DJ Jaffe, the author, explains why in a conversation with The Crime Report.

Most experts acknowledge that the seriously mentally ill are a formidable challenge to the resources of the justice system. DJ Jaffe, executive director of MentalIllness Policy Org, a nonpartisan think tank, argues that mental health authorities’ failure to address the issue has placed the burden unfairly on police and the courts.

In Insane Consequences: How the Mental Health Industry Fails the Mentally Ill, Jaffe says that it’s long past time for the nation to make this a priority. In a conversation with TCR’s Isidoro Rodriguez, Jaffe explains why he wrote the book, how the mental health “industry” has helped to distort public opinion about mental illness, and why he thinks Republicans are “better” on the issue than Democrats.

The Crime Report: What was your motivation for writing this book?

DJ Jaffe: About 20-30 years ago I became guardian to my wife’s sister-in-law, who had schizophrenia. We didn’t know she had schizophrenia. She was an adorable teenage girl living in Wisconsin with her old-world mom and they were getting into fights. We thought it was just a culture clash between an American teen and an old-world mom and that we would bring her to live with us and everything would be fine.

We would listen to her saying that people were planting transmitters in her head or the buildings in New York were going to fall on her. We’d hear her screaming in her room at the voice only she could hear. Eventually we called the police [who] took her to a hospital. Back then, the hospital would take people who were seriously mentally ill; so she got in and was stabilized after maybe a month. But she would come out and it would keep happening, and we didn’t know what was wrong with her because they wouldn’t tell us. Eventually, in passing, a nurse told us she was schizophrenic. So, we looked it up. We were shocked by our ignorance. I started volunteering for a local group dealing with the issue, and started raising money for them. [The experience] made me realize how messed up the system was.

TCR: In your book, you discuss ways in which the mental health industry has skewed public opinion about the seriously mentally ill in this country. What part do the media play in this?

 DJ: The media repeat all of the myths: The mentally ill are no more violent than others, everyone recovers, prevention works. The media, for instance, will continually emphasize the success of “peer support.” One person with a mental illness talking to another person with mental illness. There’s no data showing this has led to improvement by any meaningful metric, but this story is everywhere. It’s very tough for the media, I think, because they’re relying on so-called experts.

What the media should do is talk more often with police and criminal justice about these issues. Ten times as many people with mental illness are incarcerated as are hospitalized. The police have much more experience. The police and sheriffs can’t do what the mental health system does, which is when they get a call, say that the person is too ill, or has “high needs”—we can’t do anything for them. The police and sheriffs don’t have that option: they have to go in. They are much more realistic and want to help because it puts their lives in danger as well ….when the seriously mentally ill go untreated. All the progress that’s come out has been the result of the criminal justice system speaking up after tragedies: Kendra’s Law in New York, Laura’s Law in California, the reform of the Baker Act in Florida.

TCR: What can police do to get this sense of urgency and understanding out to the public?

DJ: This is where I’m trying to focus my efforts. The criminal justice system has not gotten involved at the political level in changing things. When there’s an incident where an officer shoots someone, the answer is always, “we’re going to train police better.” But the answer really is we have to get the mental health system to not turn these people over to police. That should be the answer.

And the danger goes the other way. A large amount of line-of-duty deaths are on mental illness- related calls. So, what they really need to do is get involved politically. Sheriffs around the country are outraged because they’re running the largest mental hospitals. The largest mental hospitals are [today] the Rikers Island [jail complex] in New York, the Los Angeles County Jail, and Cook County Jail. My effort is to get police and sheriffs involved in political change. Now, whenever there is a high-profile instance of violence, the reaction is to form a joint task force of police and mental health people. The police assume the mental health people know more, so when they start proposing solutions, the criminal justice system doesn’t know enough to say those will hurt.

DJ Jaffe

For instance, if you ask any officer, any sheriff, what we have to do to solve the mental health problem, they are going to instantly say, we need more hospitals because we can’t get people in, we need them to hold people longer so they’re really stabilized, we need easier civil commitment processes, and we need to be able to keep people on medication when they’re outside the hospital. Brilliant solutions. [But] if you ask a person in the mental health industry the same thing they will say we have to reduce stigma, we have to do more public education, and we have to train police better. All these things are totally irrelevant to solving the problem.

TCR: In your book you do write that stigma is one of the hurdles to solving this problem.

DJ: I don’t believe there is stigma to being mentally ill. It’s a no-fault biologically based illness, so there’s no stigma to having it and we should stop teaching that. But the system has diverted attention away from the sickest individuals, the small minority who commit violence. In public service announcements you won’t see homeless and psychotic people eating out of dumpsters. They won’t admit that some people need hospitals or some people don’t recover. The whole stigma movement is premised on diverting attention from those [individuals] the police and sheriffs are called to intervene with.

That takes attention away from the solutions. The mental health industry’s response to high-profile acts of violence is to tell the media: “That’s stigmatizing, don’t report on that, the mentally ill are no more violent than others.” What I say, is that our response should be to propose solutions to that very real violence that did occur and hope the media reports on it.

TCR: Why is there, seemingly, so much resistance to serious and practical reform?

DJ: You’d have to ask the people who are doing it. I’m not being coy. We all want to feel that we’re helping, so we often default to easier things. There are also financial incentives to do the easier job. Taking care of people with serious mental illness is exceedingly difficult and time-consuming, and people aren’t paid enough to do it. But, why, for instance, are they saying that we should put more money into prevention when there is no way to prevent it? My mind boggles. We don’t even deal with seriously mentally ill adults.

There are worthy social services today that focus on the issues of “trauma” or “at-risk” individuals. Trauma is not a mental illness, everyone loses a loved one, or experiences [personal stress] like losing a job. That’s not mental illness. We’re wrapping all these social services in the mental health narrative and diverting funds that should go to help the seriously mentally ill.

TCR: In your book, you note the success of mental health courts. Is that a sign of progress?

 DJ: Mental health courts are, again, an example of turning this problem over to the criminal justice system. As long as the mental health system isn’t doing its job, mental health courts are needed. The fascinating thing about them is what they do. If a prosecutor or district attorney believes a person who has been charged with a low-level crime has a mental illness, they may divert him or her to a mental health court. The mental health court will say, if you accept treatment for X amount of time, we will drop your charges and the person comes back every week to see if he’s still complying. Basically, you have somebody who has committed a crime—often because the mental health system didn’t treat them—deferred to a court, which then tells the mental health system to treat them. It’s a long, unnecessary round trip. The mental health system should just treat them.

Now, there is no single solution. But something I strongly support is assisted outpatient treatment. Basically, it’s the same thing as a mental health court, except it happens before the crime is committed, after the person already has a history of multiple instances of homelessness, arrest, incarceration, or hospitalization due to being off medication. If the person has that history, then the court, with all due-process protections, can order the person to six months of mandated and monitored treatment while he or she continues to live in the community. It doesn’t involve criminal justice, it doesn’t involve locking someone up or in-patient commitment, it’s less expensive, less restrictive, more humane. We should make more use of that.

TCR: However, according to your book, one of the main groups resisting solutions like assisted outpatient treatment and mental health courts are civil rights activists, who claim that such methods encroach on people’s rights. 

DJ: I just don’t understand the opposition. It’s an anti-science, anti-common sense, anti-public and anti-patient position. Being psychotic is not a civil right to be protected; it’s an illness to be treated. They fail to understand that. People with mental illness lack the maturity of their faculties. They have an inability to exercise free will. We shouldn’t protect the civil rights of a person who thinks the devil planted a transmitter in his head and he has to shoot first or the devil will get him. We should be helping such people regain their ability to exercise free will.

TCR: In addition to being anti-patient, you point out that many today are also anti-medication. 

DJ: In general, both the civil libertarians and the anti-psychiatry movement fail to differentiate between serious mental illness and people who need their mental wellness improved or have minor issues. So, a lot of what they say is true about those with minor mental health issues, but it’s not true about the seriously mentally ill. There are people with minor mental health issues who can get by without medications, but most of the seriously mentally ill, mainly those who are bipolar or suffering from schizophrenia, need medications in order to access other support.

While [they are] psychotic, no programs will accept them. However, it is true that medications have side effects, and those side effects can be devastating. No one’s denying that, and we need more research on it, but as a kind and compassionate society we have to help those who need help the most. What these groups are focused on are those who need help the least, and they are using them as the poster children for what we should be doing. There is clear evidence, mainly from deinstitutionalization, that medications help people. They got them out of the hospitals.

TCR: Most mental health facilities exist in prisons, and most incarcerated individuals who are mentally ill wind up worse when they come back out—and end up incarcerated again. How can we stop this revolving door?

 DJ: One positive solution is community monitoring of people coming out of jails. One of the proposals that I make in the book is that there should be mandatory evaluation. We’re spending millions on outreach. We’re going to grammar schools and giving speeches and training people to identify the asymptomatic, but we know who the most seriously mentally ill are and who we should help: the ones who are most prone to homelessness, arrest, incarceration, or violence. There should be mandatory evaluation of everyone coming out of prisons or jails who used mental health services or needed [those] services while they were there, to see what they need to stay safe in the community. But we’re just releasing them and saying “time served.”

TCR: In one chapter, you advocate changing the Health Insurance Portability and Accountability Act (HIPAA).  Why?

 DJ: HIPAA is a patient confidentiality law and, depending on the state, once your child turns a certain age he or she is entitled to confidentiality. This means the parents can’t know what’s happening. How this plays out, frequently, is parents provide housing for a mentally ill kid or have placed him in a program that’s providing housing—and the kid goes missing. If the parent calls the program, the program can’t tell them the kid is missing. If they’re missing from their own house, and the parents call the hospitals, the hospital won’t tell them if they’re there.

This just happened recently to the former president of the New York State [organization of] chiefs of police who has a mentally ill kid who went missing from the program. Even though he’s a police chief, he still could not find out if his daughter was in a hospital when he called around. When your relative gets out, you’re not allowed know the diagnoses, what medications they’re on, what outpatient program they’re supposed to go to. [That means] parents can’t arrange transportation, can’t see that prescriptions are filled, or that appointments are kept.

The typical media story is “why didn’t the parents do anything?” People don’t realize that we have all the responsibility but none of the authority. If you’re providing housing, case management, and transportation services out of love, you should be able to get the same info that those that provide those services for money get. If I were an insurance company providing medications, I would be able to get that info.

TCR: One of the most surprising details of your book is that you strongly believe that this new administration will make positive steps towards change. Why?

 DJ: On this issue, Republicans are a lot better. Democrats are willing to throw money at mental health, but aren’t willing to admit the politically incorrect things that are necessary to admit to help the seriously ill. Democrats won’t admit that some mentally ill are more violent than others, that not everyone recovers, that they are more violent than others, that some need hospitals, that involuntary commitment can be a good thing.

Republicans see this as a quality- of-life thing. They see homeless people eating out of dumpsters, they see jails fill up, and want to know why we’re not helping those people. The legislation aimed at helping the seriously mentally ill is mainly coming from republicans. I hate to admit it, I’m a Democrat, but we’ve been basically useless. We throw $100 million at children’s issues, and serious mental illness, schizophrenia and bipolar disorder, are mainly adult illnesses.

Suicide is a huge one. It’s exceedingly rare. We’re throwing a lot of resources at it that haven’t reduced suicide in any way, shape, or form, and we’re throwing them at kids who are the least likely to commit suicide. It’s primarily an adult illness. But kids are a sympathetic population and so they get greater resources. And that sympathetic population plays an important part in who gets served by government.

Isidoro Rodriguez is a contributing writer to The Crime Report. Readers’ comments are welcome.


Hidden in Plain Sight: America’s Slaves of the New Millennium

The author of a new book on human trafficking tells TCR that victims can be as close as the neighborhood beauty salon or the person who knocks on your door to sell you a cheap bauble. Most of them young women in dire straits, they are easy prey in a largely invisible but spreading form of organized crime in America.

“The perfect crime, that’s what this is.”

When Kimberly Mehlman-Orozco began her research into human trafficking in America she was determined to take readers beyond the Hollywood version in which a determined hero comes to the rescue with guns blazing. “This isn’t the movie Taken,” she said.

“Liam Leeson isn’t going to show up in a black Audi to rescue his innocent victim daughter from gun-wielding Albanian mobsters.”

Instead, in her forthcoming book,  “Hidden in Plain Sight: America’s Slaves of the New Millennium,” she makes clear the problem is both more complicated and more nuanced—and needs a number of different policy tools to deal with what she describes as a “clandestine activity, hidden within the commercial sex industry that has flourished in our country for decades.”

Mehlman-Orozco, who holds a Ph.D. in Criminology, Law and Society from George Mason University, and has testified as a human trafficking expert witness, discussed her book, which will be published by Praeger/ABC-Clio this year, with TCR’s Megan Hadley.

The Crime Report: Is there a human trafficking epidemic in the country—perhaps equal to the drug epidemic?

Kimberly Mehlman-Orozco: Experts say human trafficking is the fastest growing organized crime in the world. So if you’re looking at the rates of organized crime, it was the sale of drugs, sale of guns, then sale of people. But human trafficking has surpassed all as a criminal enterprise.

It’s a win-win for traffickers because they have a plausible alibi by suggesting their victims were consenting, and the penalties are very low in that case. If you’re looking at something low-risk for human enterprise, trafficking is that. Criminals see that, they know that, so they are turning to trafficking of persons as a cornerstone to committing crimes. The perfect crime, that’s what this is. There’s little liability in the court system and the monetary gain is so high that you’re having criminal enterprises taking this approach to how they fund other criminal activities.

TCR: Did you ever encounter any human trafficking victims who did not want your help or were in denial about their circumstances?

Mehlman-Orozco: We usually see victims that are manipulated to such a degree they do not see themselves as being exploited. They develop a trauma bond with the offender and it’s difficult for them to see their exploitation for what it is.

Editor’s Note: In her book, Orozco defines the trauma bond as a strong emotional attachment between the abused and abuser, which helps maintain victim compliance and inhibits the ability for successful prosecution by undermining the credibility of the victim.

Rescues usually do not happen overnight.  They occur through gaining trusting relationships. But developing trust with victims is hard. Re-victimization is very prevalent. But in the long term, every victim I have encountered hit a point where they start questioning the lies they are being told, and they will ask for help and be receptive towards receiving help.

TCR: You write in the book, “Human trafficking is a crime because people value money over human life.” Please explain.

Mehlman-Orozco: It’s a combination of money and public accolade. The current purposed legislation, the Stop Enabling Sex Traffickers Act of 2016, is a symbolic victory for political leaders. What matters to them is that passing legislation looks good, but it will actually make the crime more clandestine.

The public won’t see advertisements as much, giving them the perception that it was a success even though there was no data to say it worked. In actuality, it will be harmful and reduce saving victims. I (argue) that if a buyer can find it, we can find it as well, and use it as catalyst for rescues and arrest. The National Center for Missing & Exploited Children found that 73% of trafficking cases occur on, and they use that to say is the root cause of trafficking.

But correlation does not equal causation.We are seeing that 73% because it is the most well-known place sex is shown.

TCR: What kind of human trafficking signs (both sex trafficking and labor trafficking) should your everyday person be looking for?

Mehlman-Orozco: All of us encounter slavery in our day-to-day lives and it’s important to discern when you do encounter victims. For example, people in the service industry. If you encounter someone in the beauty industry who said they haven’t gotten paid, these things raise concerns. It could further a conversation (that can enable you to) to find out this person is in an exploitive situation. Or if you encounter a door-to-door salesperson, traveling with 15 other kids living in the same hotel room, these are red flags.

We do know that trafficking can happen in these industries. Wherever you work or whoever you are in life, try to understand the type of trafficking that you are most likely to encounter. If you work at a hotel, understand the red flags for sex trafficking. Work with management to get training from credential professionals and understand other ways in which you could intervene for the safety of yourself and the potential victim.

TCR: Given the trauma that human trafficking survivors will experience throughout their life, how can organizations help re-integrate and support survivors?

Mehlman-Orozco: First and foremost, any organization that is receiving funding to help victims needs to receive training that meets a level of standards on trauma-informed care. Right now there is no standard, and organizations can receive funds and provide services without being trained on the complex needs of the survivors.

Kimberly Mehlman-Orozco

Consequently, they can provide harmful services. Other things that should be considered: There should be a third party external evaluation on their outcomes. Where are their survivors going? Are they returning to trafficking and being re-victimized? Those outcome needs to be documented and currently they are not.

One of the victims I worked with described it as swinging a baseball bat halfway… you need to follow through with care. Given the complex needs of most victims, one organization may not be the total provider. Right now there’s lots of competition for the same set of funds, so each organization wants to portray itself as an organization that can do everything.

The answer lies within partnerships and collaborations, which should receive funding over single organizations that claim they can do everything.

TCR: You write, “U.S Legislators should continue efforts to address the socioeconomic factors that contribute to the motivation of offenders and targeting of victims.” What do you believe is the underlying issue here?

Mehlman-Orozco: It’s important to look at the root cause of trafficking and understand that while we do see persons of lower socioeconomic status brought into the trafficking situation, everyone in society can be a target. We all have certain needs that need to be met, and this is how traffickers trap their victims. First, we are searching for food, shelter, water, and safety. After safety we are seeking love, belonging and esteem, and that is what a trafficker is likely to fulfill.

You see a lot of faux relationships being used and traffickers provide those needs temporarily to control their victims. That’s a key piece.

TCR: What is the difference between a consenting sex worker and a sex victim?

Mehlman-Orozco: Often, a victim of sex trafficking is mistaken for a consenting sex worker. They look exactly identical. But in the way we handle each crime, they are supposed to be helped. Yet consenting sex workers are treated as criminals. That’s why we see police criminalizing victims of trafficking. Consenting sex workers have been victimized at some point in their lives, or they are victimized during the course of their sex work. Consenting sex workers will say, ‘I am doing this in order to survive and feed my family, and the alternative is homelessness and not being able to live sustainably.'”

I advocate for de-criminalization, not legalization. I don’t want sex trade to be legal, but we shouldn’t go after sex workers, who are highly likely to have been victimized. By doing that, we empower victims to come forward to law enforcement and admit it instead of hiding in the shadows and being fearful. The better approach is to discern whether they are victims or not.

Not arrest them, but get them into other systems so they can see they can live a sustainable life without the sex industry.

Megan Hadley

TCR: In the book you describe police officers blatantly ignoring sex workers, who may also be victims. Why are police turning a blind eye to this problem?

Mehlman-Orozco: The police make short-term arrests that don’t lead to a conviction and they become jaded and frustrated towards the criminal justice process. It takes a lot of work to take someone out of a trafficked situation and get them to successfully testify against their traffickers. It’s very rare. There is also a misconception that all the women are consenting. It’s the assumption that everyone there is not in chains and doesn’t look distraught, so police officers take it at face value.

Megan Hadley is a news intern with The Crime Report. She welcomes comments from readers.


How Texas Turned the Page on Police Reform

The Sandra Bland Act, which came into effect this month, has been called an “example for the nation” in setting policies for police reform and dealing with troubled individuals. Texas State Rep. Garnet Coleman, the bill’s sponsor, sat down with TCR West Coast Bureau Chief Joe Domanick to discuss why one of the country’s toughest law-and-order states adopted it.

Now in his 26th year as a Houston Democrat in a conservative Texas House, Texas State Representative Garnet Coleman is the ranking member of the Public Health Committee, and chair of the powerful, wide-ranging County Affairs Committee.

Sandra Bland. Courtesy Wikipedia

He was the sponsor of the Sandra Bland Act, named in memory of the African-American motorist who, while driving in the Houston suburb of Prairie View in 2015, was pulled over by a white Texas State trooper. Both her stop and her subsequent arrest were caught on video, and proved highly controversial. Most striking was how quickly the trooper moved from mild arguing with Bland to suddenly arresting her with no attempt at de-escalation. Later, in an even more contentious development, Bland—who had some history of mental illness—died in custody in the Waller County jail, in what was later ruled a suicide.

The Act, which came into effect this month, has been called an “example for the nation” in setting policies for reform of police practices. Among other provisions, it earmarks money to train law enforcement in de-escalation practices, and requires authorities to divert justice-involved individuals with mental health and substance abuse issues into treatment.

In a chat with West Coast Bureau Chief Joe Domanick, Coleman discussed why he fought so hard for the Act, the peculiarities of Texas criminal justice law, and how legislators in one of the country’s toughest law-and-order states were persuaded to take a major step towards justice reform.

 TCR: Your focus in the past has been on children’s issues and mental health, yet you played the key role in passing the Bland Act. Why?

 Coleman: It’s very personal. I’m a black, born in the early ‘60s. I grew up at a time when I was a police target for just being me. I was stopped recently [by the police] just before the Bland hearing. And I was scared. All that [police officer] intimidation and worry when you’re stopped. [Editor’s note: In Texas a citizen can be arrested simply for committing a traffic violation, as was Bland.] People react to it differently. But why should someone be fearful for their life when they get pulled over? I have a daughter who is 21, a son who is 25. There were so many other things that this officer [who arrested Bland] could have done to avoid the situation that he didn’t do.

 TCR: What advantages did you start out with in getting the Bland Act passed?

 Coleman: The County Affairs committee that I chair has wide jurisdiction over [Texas] jails and sheriffs and the department of public safety. I’ve been working on mental illness since 1995, so I knew I could get that piece passed. And that’s the piece that had no opposition. The sheriffs and law enforcement were always for the mental health provisions. So I could say to them—and I did—you are getting nothing if you keep blocking the bill.

[In addition] I went to the [House] speaker and told him that the problem had gotten too big, that something had to be done. [Bland] had died; [there were recent videos] of another woman in Austin being violently thrown up the side of a car; a 14-year-old girl tackled in her bikini by an officer for nothing; and a teenager shot in the back of the head by an officer whom [the state of] Texas admitted was at fault in the civil suit.

Texas State Rep. Garnet Coleman

TCR: Who were the opponents of the Act?

 Coleman: The Sheriff’s Association. We have 254 counties. That’s 254 [very powerful] sheriffs. The Texas Metropolitan Police Association. The Police Chiefs Association. Most of your law-and-order members of the legislature were opposed. They were all opposed. At first, we couldn’t even get it out of the committee in the House.

 TCR: Eventually, as I understand it, the governor and lieutenant governor, who are powerful players in Texas, came out in favor of the bill.

 Coleman: They did not come out for it [at first]. They asked us to remove some important things from the bill: gathering data on pretext stops, on consensual searches and stop-and-frisk vehicle data—the kinds of things that really lead you to being able to have a provable finding of racial profiling. But once that happened, it passed out of the Senate. And I do believe that once the lieutenant governor and governor said this draft is fine with us, that everyone just backed off.

 TCR: So the fact that they were not opposing it, was in itself a message?

 Coleman: That’s exactly right. Once it got to the floor of the Senate, it passed unanimously and I picked it up in the house and the bill went through.

 TCR: Do you still think the law has teeth?

 Coleman: Most definitely. There are [now] more and easier ways to complain about police stops and abuse. Also included is [the requirement to keep] data on every stop and data on [police] violence—whether it’s a death or assault. And then there’s the big increase for de-escalation training.

TCR: Let’s talk about the Act mandated de-escalation training

 Coleman: Every peace officer in Texas now has to go through 40 hours of Crisis Intervention Training; meaning they have to undergo 40 hours of de-escalation training in dealing with people who have mental illness; and we also mandated de-escalation training that has nothing to do with crisis intervention—that is to be used routinely in general circumstances. The police departments in Dallas are already using de-escalation techniques.

 TCR: Every peace officer statwide?

 Coleman: Yes.

 TCR: Do you think the 40 hours of training, even if it’s best practices, is enough?

 Coleman: Most definitely. That’s the ideal number of hours, according to best practices in mental health Crisis Intervention Training. Now it’s the law, part of the suite of training that all peace officers must have.

 TCR: Will that 40 hours of training be ongoing?

 Coleman: Yes, it’s on-going. They do the training again every couple of years. It’s not just at the academy. And it’s for both styles of de-escalation—mental health and in general circumstances. [The provisions of the Act] are there in perpetuity unless somebody removes them by law.

 TCR: What does de-escalation mean to you?

 Coleman: Peace officers should not approach people with a command-and-control stance, but use their soft skills to approach in a way that keeps everyone safe. Using distance, using reason to see how that person is at that moment and not rile everybody up, just trying to get everyone to obey what the officer is asking.

Fort Worth just adopted de-escalation training. Dallas is already doing it. So I believe it’s a way to move law enforcement in a different direction rather than just the same old actions every single time.

 TCR: Did you give up anything in terms of the de-escalation provisions now?

 Coleman: No. We still haven’t instituted the de-escalation rules and protocols yet. We want to make sure the training standards are strong, and meet current best practices in de-escalation training, and that we are not doing something that’s four or five years old.

 TCR: So all that still has to be developed.

 Coleman: Yes.

 TCR: You spoke about the mental health provisions bill, which survived and became law?

 Coleman: First, [informational] card swipes now have to be posted on the jail cells of people being jailed who are at risk of suicide or have emotional distress [so that jailers will be aware of a prisoner’s status.]

Joe Domanick

Second, the Act also mandates telemedicine and telemagistrates to be on call so that in smaller areas of the state so that [diagnosis and treatment] can be very quickly available.

 TCR: Is there anything else you’d like to add?

 Coleman: I guess that I’m still in disbelief the first bill in Texas named for somebody that was a victim of the police actually passed.

Joe Domanick is West Coast bureau chief of The Crime Report. He welcomes readers’ comments.


The Real Lessons of Bernie Madoff’s Crimes

The jailed Wall Street financier has been a poster symbol for the corruption and fraud that many believe led to the 2008 financial meltdown. But a new book by sociologist Colleen Eren argues that the real problem is the economic culture that allowed him to flourish.

Bernard Madoff has been a poster symbol for the corruption and fraud that many believe led to the 2008 financial meltdown. Now serving a sentence of 150 years for perpetrating a multi-billion-dollar billion Ponzi scheme that bilked an estimated 4,800 investors over three decades, he has never ceased to fascinate.

But a new book by sociologist Colleen P. Eren of LaGuardia Community College of the City University of New York challenges the popular image of him as a cold-blooded Wall Street monster—most recently portrayed by Robert de Niro in HBO’s The Wizard of Lies—who singlehandedly wrecked the nation’s financial ecosystem.

In Bernie Madoff and the Crisis: the Public Trial of Capitalism (Stanford University Press), Eren suggests that the focus on Madoff as the incarnation of financial corruption ignores the economic culture that has allowed him and other white-collar fraudsters to flourish. And his role in the Wall Street meltdown is poorly understood. “In some people’s minds, he’s to blame for the whole 2008 crisis, but he had nothing to do with mortgage-backed securities or the credit crunch,” Eren says. “There is a feeling that he’s in prison, and so all is well.”

In a chat with TCR Deputy Editor Nancy Bilyeau, Eren discusses her interviews with Madoff as well as the journalists who wrote about him, why some of those reporters shed “tears of joy” at covering his story, and how some individuals benefited from his scheme. “It kind of breaks my heart when people say to me, ‘You wrote a book about Bernie Madoff,’ ” said Eren. “It is about Bernie Madoff, yes, but it’s more about us; and what his case and our reaction to it say about our relationship to free market capitalism.”

The Crime Report: What prompted your interest in writing about the media’s coverage of the Madoff story?

Colleen Eren

Colleen Eren: There was an image in Psychology Today of his disembodied head on a platter and it was all about the blood lust of the Madoff victims. I was in graduate school at the time and we had always been taught that white collar crime is not that titillating and it doesn’t inspire intense anger. This image really contradicted that. It was what first sparked the question: Well, what is going on here?

TCR: In your book you describe the joy that some reporters felt when the Madoff story broke and their enthusiasm for covering him.

CE: I was talking to one financial editor, and he was effusive. The story broke at such an incredible dark period in history. The feeling was, “We were all exhausted, we couldn’t take any more bad news, and all of a sudden across the desk comes Madoff.” It was like a holiday. I was told, “We were almost in tears of joy with Madoff.”

TCR: What sustained the media interest? In your book you identified five components.

CE: First there was the mythological sum of $50 billion. In the midst of the economic crisis, if it was millions of dollars or even a few billion, it wouldn’t have been the same. Second, they liked that it was the scheme of one man and in the American and British press’s favoring of individualistic narratives we want to find one person responsible for the crime. Then there was the celebrity factor that almost brought the story to a supernatural level. If Steven Spielberg could be affected, and Kevin Bacon and John Malkovich are affected, then it was tabloid- worthy.

But the case wasn’t confined to the celebrities; it was about sympathetic, ordinary Americans. And so the fourth thing is that it invited the narrative that this is the perfect example of the rich taking advantage of the poor. Fifth: there was an ethno-religious dimension to Madoff because it disproportionately impacted the Jewish community. This was during a time of rising anti-semitism with horrible stereotypes reemerging, and the story fed into that, consciously or subconsciously.

TCR: The $50 billion is not correct?

CE: It is a myth circulating and I hear it all the time about Madoff—the $50 to $65 billion Ponzi scheme. It was $17.5 billion, which is still a huge number. That was funny money.

TCR: Where did the larger figure come from?

CE: It originally came from Madoff, which I find interesting. Is it part of his narcissism that he threw out that $50 billion number? It had nothing to do with the actual money that was in play. At some point the newspapers should have stopped using the wrong number.

TCR: I was taken aback to learn that many people in the end financially benefited from Bernard Madoff. The image in our collective mind is of everyone being wiped out.

CE: I read about 20,000 articles, and I’ve never seen an article that pointed out that the majority of individual investors made more money on Madoff than they put in. So yes, they were victims in some sense, but they got their principal plus some money. I do wonder why no one was willing to touch that data.

TCR: One of the themes of your book is that by focusing so intensely on Madoff we ignore many things that really should not be ignored.

CE: The first question I’ve been asked by the press about my book is, usually, “Is Madoff a sociopath?” My response is I can’t conjecture [whether] he’s a sociopath or not—that’s a psychological question—but that kind of obscures what enabled him to commit a crime like that for 30 years. It wasn’t just his sociopathy. It was a host of different socio-political economic constructions.

TCR: You argue that white collar crime is difficult to write about without that emotional narrative of one terrible criminal at the heart of it.

CE: It’s marginalized and ignored at our peril. Even in the academic world, I believe that 3.5 percent of all journal articles in the top 10 journals are about white collar crime. But in the media we need thoughtful discussions about what enabled Madoff to (operate) in the first place. (Issues such as) the Securities and Exchange Commission (SEC) being defunded….are not discussed.

Without trying to understand how his crime could have possibly happened—why did the SEC miss him seven times?—and by just focusing on him being a pathological character, you’re not understanding what made (his crimes) possible to begin with. If they had checked to see whether or not the securities he said he held he actually held, he would have been stopped ten years before his arrest.

TCR: It is a matter of controversy that there were so few prosecutions that came out of the 2008 meltdown. What’s your theory?

CE: These cases are expensive and long to pursue, so if you can get a plea bargain or go about it through a fine, you get a fine that is substantial and it doesn’t require any kind of sustained criminal prosecution. There is the knowledge among the prosecutors that these companies have ample funds to fight back, and you might not win.

See also “White Collar Crime: Why Top Execs Escape Prosecution” in TCR July 12, 2017.

TCR: Madoff himself in his emails and his interviews with you is angry over the fact that there were so few criminal prosecutions.

CE: I think it’s kind of ironic that it takes someone who perpetrated one of the largest Ponzis in history to point out structurally what’s wrong with the way we treat white-collar crime. It may be a technique of neutralization, a rationalization, or sociopathy—but you have to admit he’s on point in his discussion about the lack of prosecution of large-scale economic crime.

TCR: In your dealings with him, he was very manipulative. He was not certain at first he would cooperate with your book, and he created this image of an exclusive club that you might not get into.

CE: He’s an elitist. The book being published by Stanford University Press helped. He can be charming and say, “Your analysis is particularly on point. Other people don’t get what I’m saying but you do,” He sends out these emails with a blind cc and you don’t know how many other people are reading the emails.

TCR: Has he read your book?

CE: I haven’t sent him a copy yet, because they can’t take hard-cover books in a prison, it’s against the rules. So I have to send him a soft-cover copy which I am waiting on.

He’s a narcissist, so he will always see something that was not portrayed in the way he dreamt it would be. I didn’t try to be sympathetic, but the overall message, that Bernie Madoff distracted us from larger problems with free-market capitalism, would appeal to (him) because he wants that story out, but for different reasons than I do.

Nancy Bilyeau is Deputy Editor (Digital) of The Crime Report. She welcomes readers’ comments.


‘The Nearly Perfect Recidivism Machine’

Texas criminologist William Kelly’s new book calls for a top-to-bottom transformation of a justice system that recycles thousands of Americans without offering them a way to change the behavior that sent them behind bars. He explains his recipe for “disruptive innovation” in a conversation with TCR.

“One would have to look far and wide to find a greater public policy failure than the American criminal justice system,” writes Texas criminologist William R. Kelly in the opening chapter of his new book, From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice (Rowman & Littlefield).

William R. Kelly

Kelly, a University of Texas-Austin sociology professor, has long been one of the country’s toughest justice critics. In this book, he offers a plan for top-to-bottom transformation of the system, in collaboration with federal judge Robert Pitman and psychiatrist William Streusand.

A key “disruptive innovation” of the book’s title would include reforms to rein in the charging powers of prosecutors. Kelly recommends the creation of independent panels of clinical experts that would screen offenders and recommend to prosecutors who ought to be diverted to treatment.

“There is nothing about punishment that changes the underlying conditions, disorders and deficits that the majority of criminal offenders bring into the justice system,” Kelly says. Arrestees with mental illness, substance-use disorders, homelessness and other problems churn through the system and into prison, where the underlying issues that led to a lawless life are ignored.

In a conversation with TCR Contributing Editor David J. Krajicek, Kelly explains why he believes the system should incorporate more carrot and less stick for offenders and how the Trump administration’s approach threatens to make things worse. He also suggests that the public already has a more sophisticated view of how to fix the system than our political leaders.

The Crime Report: What is the impact of the country’s justice policy failures?

William R. Kelly: The short financial and statistical answer is that over the past 45 years, we have spent $1 trillion on the war on crime, $1 trillion on the war on drugs and have accomplished a recidivism rate of 65 percent. Nearly all of this effort has focused on trying to punish crime out of people, based on naïve conceptions of criminality such as “hanging around with the wrong people” and “making bad decisions.” The evidence is quite clear that crime has much more complex origins and correlates.

What we have accomplished is a nearly perfect recidivism machine, placing all of us at the unnecessary and avoidable risk of criminal victimization, and wasting extraordinary amounts of money.

TCR: You refer to “the culture of American criminal justice.” What are its key characteristics and how do you change it?

Kelly: It is squarely based on the “tough on crime” mantra. This has dictated the decisions of legislators, prosecutors, judges, and corrections officials. The focus over the past 45 years has been driven by retribution and misguided assumptions that punishment deters re-offending. The question that has been routinely asked is how much punishment does this offender deserve. A more productive question for many offenders is how do we reduce the likelihood a particular offender will reoffend…

We need to provide clear incentives to motivate changing how we think about crime and punishment. Cost-benefit analyses conclusively show that behavioral change through clinical intervention like mental health and substance use disorder treatment is much more effective and cost efficient. The financial advantages should motivate legislators and local government officials. Reducing recidivism should be an incentive for prosecutors, judges, public defenders, and probation and parole officers, who will benefit from reductions in caseloads. Then there is the greater good of enhanced public safety, something we incorrectly assume the justice system already does.

TCR: You say the facile American view of crime and punishment got us here. Have voters grown more sophisticated, or are reform-minded pols still at risk of being Willie Hortoned?

Kelly: Public opinion data demonstrate that much of the public has a more nuanced view of crime and punishment than many legislators, prosecutors and judges. The public believes that the purpose of corrections is to rehabilitate offenders and therefore reduce recidivism. Many have moved beyond “lock ‘em up and throw away the key.”

Unfortunately, many policymakers, elected officials and some segments of the public still seem to be holding on to the idea that criminals are just bad people deserving maximum punishment. I’m sorry to say that Willie Horton is alive and well…There appears to be a reluctance to really embrace meaningful, comprehensive criminal justice reform.

TCR: You write, “We have arrived at the nadir of politics and policy.” Did you write that before or after Donald Trump’s election?

Kelly: I wrote that before Trump was elected when I incorrectly believed that we had already reached bottom. Who would have thought that anyone with any sense of history and even a superficial exposure to the evidence would run as the law-and-order candidate and resurrect the war on drugs?

TCR: How do you demonstrate that “tough” and “dumb” are synonyms when it comes to criminal justice?

Kelly: You focus on the enormous financial waste that the justice policy has produced. While there will be endless debates about what’s right or just and who deserves what, it is pretty hard to ignore the bottom line. A recent study estimates that the criminal justice and collateral social costs of tough on crime is $1 trillion per year. And it’s hard to reconcile 65 percent recidivism.

TCR:  Who’s to blame for the state of “correctional malpractice” you say we are in?

Kelly: First and foremost, elected officials who have blindly championed “tough on crime” policies to their political benefit, but to the detriment of public safety and the prudent use of tax dollars. State legislators and Congress have provided the mechanisms for tough on crime—mandatory sentences, restrictive parole release laws, and an ever-expanding criminal code that seems to make criminal justice the go-to system for just about every social ill.

But the culpability of elected officials goes well beyond that. The vast majority of offenders in the criminal justice system have a substance-use disorder, 40 percent are mentally ill, and 60 percent have had a least one traumatic brain injury often leading to neurocognitive dysfunction…The decision to not properly fund public health, schools and social welfare agencies has created problems that by default are managed by the criminal justice system.

Criminal justice reform means much more than merely reforming the criminal justice system. It requires massive changes to and investment in a variety of collateral institutions.

TCR: Your book articulates and recommends a scientific approach to justice reform. Yet science is out of favor in Washington and many state houses. Is there a scientific path forward?

Kelly: Yes there is, but I am afraid that we need to disguise it for some, by minimizing the science and emphasizing the public safety benefits and cost savings.

TCR: You note an overlooked data point: The country has 21 million people with substance-use disorders, the world’s third-highest rate. What explains this particular American exceptionalism?

Kelly: It is largely a result of the lack of public substance abuse resources, including inadequate treatment capacity and insurance coverage. Much of it can be attributed to the failure of the war on drugs and the belief that we can either punish or threaten substance abuse out of people. Criminalizing substance abuse rather than treating it as a public health problem has led to the failure to provide adequate funding for treatment.

Unfortunately, the picture is bleaker. The majority of substance abuse and mental health treatment in the U.S. is paid for by Medicaid. Current versions of repeal and replacement of the Affordable Care Act call for substantial cuts to Medicaid. That does not bode well for a problem that is crippling the country, the economy, communities, families, and the justice system.

TCR: You write that we have used an absurdly simplistic approach (lock ‘em up) for a boundlessly complex problem. Explain briefly the research on co-morbidity among inmates.

Kelly: The vast majority of offenders in the criminal justice system have clearly identifiable disorders, deficits and impairments. Many have more than one disorder, known as co-morbidity or co-occurring disorders. For example, the majority of offenders with a mental illness also have a substance-use disorder. Neuro-cognitive problems are often co-morbid with mental health and substance abuse. It does not require a clinician to appreciate that “lockin’ ‘em up” does nothing to alleviate these conditions and in fact typically exacerbates them.

When we do attempt to address these problems–diversion to a drug court or a mental health court–our focus is on just one crime-related condition. Our correctional treatment and rehabilitation efforts typically ignore co-morbidity.

TCR: What do the rest of us in a presumably civilized society owe these damaged people?

Kelly: I don’t think it’s so much what we owe them, but what do we owe ourselves: lower crime and recidivism, lower risk of being victims of crime, and lower cost of criminal justice. We have the tools to accomplish these things, but making it a political priority has been elusive.

TCR: You compare the U.S. system to those of Germany and Holland; it doesn’t stack up well.  You cite one lesson we can learn from those countries: “If you treat inmates like humans, they will act like humans.” How is it possible that we don’t know that already?

Kelly: In order to justify our draconian and dysfunctional reliance on punishment, we need to think of criminals as “not like us” in fundamental ways, as deserving retribution and harsh punishment. Punishment is what we have been told is the only thing “these people” will understand.

Our Western allies have better outcomes for those they incarcerate because they focus on preparing offenders to be released and live crime-free, productive lives. Our approach often is to de-humanize prison inmates and emphasize punishment over rehabilitation. We do little to facilitate successful reentry into society.

Psychological research confirmed a long time ago that, in most cases, incentives work much better than punishment for changing behavior. This is another example of the disjuncture between scientific evidence and criminal justice policy.

 TCR: Your key recommendation is an “unprecedented expansion” of diversion away from court toward intervention and treatment. Describe the panel review process you suggest.

Kelly: Traditional criminal prosecution, conviction and punishment are entirely appropriate for many offenders. For example, violent offenders and chronic, habitual offenders probably need to be separated from society through incarceration in the interest of public safety. For many others, such as non-violent offenders and many drug offenders, we have a much better chance of reducing recidivism by diverting them and mitigating the factors that are associated with their criminality. One of the key issues here is making good decisions about who to divert and who to prosecute.

We developed the concept of independent panels of clinical experts to facilitate better decision-making, both in terms of who should be diverted and what treatment or intervention will decrease the probability of recidivism. Offenders often have complex clinical needs that require the special expertise of psychiatrists, psychologists and clinical social workers who can assess and diagnose, determine the risk of re-offending, and make recommendations to prosecutors.

The goal is to divert appropriate individuals away from traditional prosecution to situations where their risk can be supervised and managed and where they can receive adequate treatment and intervention.

TCR: And this is the “disruptive innovation” of your book title?

Kelly: The panels are part of it. Implementing this concept will require a substantial shift in how prosecutors do their jobs, as well as how we think about crime and punishment. In effect, this requires changing the criminal justice culture.

We also argue that all levels of government need to address major deficiencies in public health, a fundamental consideration in assuring adequate capacity and expertise for intervention and treatment. The bigger picture is that criminal justice reform requires disruptive innovation of collateral institutions, such as public health.

TCR: And how might it be greeted by prosecutors, who hold all the power right now?

Kelly: This will not be easy. However, reasonable incentives for prosecutors should be recidivism reduction, in turn reducing caseloads.

The primary reasons that prosecutors’ caseloads are so large and unmanageable relate to the failure to reduce recidivism.

TCR: You say these changes will force us to redefine success in our justice system. How so?

Kelly: Success should be measured by recidivism rates, something directly related to performance of criminal justice. As it stands now, there really is no accountability. Everyone involved in criminal justice–legislators, police, prosecutors, defense attorneys, judges, and corrections officials–should all be held responsible for recidivism reduction. That would also be a disruptive change.

TCR: Tell me about the process of partnering with Robert Pitman and William Streusand in this book.

Kelly: I wrote the book, but both Pitman and Streusand played very important roles in devising solutions. For example, Pitman, a former U.S. Attorney who is now a federal judge, brought his knowledge and expertise to the task of developing statutory and procedural details for how the expert panels would fit into the roles and responsibilities of prosecutors, defense counsel and judges.

The input of Streusand, a psychiatrist, was crucial in the development of the clinical protocol for the expert panels and assessing offender dysfunction, as well as the discussions about fixing public health.

TCR: You were going through a serious health crisis while writing this book, as you point out in the introduction. I hope you are doing well. I wonder if that diversion somehow informed the book’s content.

Kelly: Thank you. I am in complete remission and feel very blessed. To be honest, it could not have worked out any better. I was diagnosed in early March of 2016, when I had a rough draft of one chapter written. I was so fortunate that I had this project to distract me from the reality of being pretty sick and going through some difficult chemo. It was also fortuitous that I had two collaborators who are very good friends and played important roles in my recovery.

I’m not sure that being sick informed the content, but I suspect it influenced the tone. If I sound impatient at times in the book, it is probably a result of being confronted with the reality that life is short.

David J. Krajicek (@djkrajicek), a contributing editor with The Crime Report, has been writing about criminal justice since the 1970s. He welcomes readers’ comments.