Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

Thinking Outside the Cell: Software Cuts Recidivism Among Texas’ Mentally Ill

In Dallas County, the main outlet of psychiatric care for those with mental illness is no longer the corrections system. A five-year initiative using predictive technology is helping to divert justice-involved mentally ill individuals into effective treatment programs.

In Dallas County, Texas, the main outlet of psychiatric care for those with mental illness is no longer the corrections system.

A five-year initiative aimed at bridging the gap between the legal and medical communities is successfully diverting justice-involved mentally ill individuals to effective treatment programs.

The key to the program is technology. The initiative uses software created by HarrisLogic, a Missouri-based technology and clinical services company that allows information about mentally ill individuals who fall afoul of the law to be shared among law enforcement, courts and health care providers.

Experts say such a tech-based approach could be critical to reducing overcrowding in U.S. jails.

There are now nearly ten times the number of mentally ill patients behind bars than those residing in the remaining state hospitals, according to a 2014 report by the Treatment Advocacy Center, an Arlington, Va.-based national nonprofit focused on mental illness issues.

A prime example is the Dallas County Jail, whose jurisdiction stretches from the cities of Carrollton to Mesquite, to just outside of Arlington. Dallas County’s major detention center, the Lew Sterrett Justice Center, is the second largest mental health facility in Texas, according to the County Sheriff’s Office.

In 2014, the county received a $7 million grant from the W.W. Caruth, Jr. Foundation for a “Smart Justice Initiative” to provide alternatives to jail for individuals with mental health problems who come into contact with the justice system. The county partnered with the Meadows Mental Health Policy Institute (MMHPI), a research and development organization that helps Texans connect to mental health care.

Now in its fourth year, the jail diversion program has reduced recidivism from 31 percent in 2014 to 26 percent in 2017, according to the National Association of Counties.

It’s “an impressive example of how local jurisdictions can implement data-driven innovations that enhance public safety, reduce jail costs to taxpayers, and provide effective and humane interventions for people with mental illness,” said Marc Levin, vice president of criminal justice at the Texas Public Policy Foundation.

Alternatives to Punishment

Relieving jails of the burden of providing mental health services is only a first step towards the goal of developing alternative and non-punitive options for treatment. It doesn’t address the decisions that bring mentally ill individuals into the justice system in the first place, mental health advocates say.

The Dallas County initiative uses technology to assist in the decision-making by police, courts and health providers.

Following a 911 call, if it is determined that jail is an initially appropriate response to a troubled individual, data from the standard mental health and suicide screening tests (as per Texas standards) is automatically integrated with any other data related to the individual’s medical history contained in police or emergency response records as well as hospital data.

Traditionally, such data was kept in separate silos, but the software implemented through the Jail Diversion Platform, created by Harris Logic, integrates all the personal information critical to determining a defendant’s immediate needs and subsequent care.

That includes information such as previous arrests or incarcerations, previous mental health rehabilitation, and current medication, Hudson Harris, chief engagement officer of HarrisLogic, said in an interview with The Crime Report.

This data is entered in the County Adult Information System, a “master index,” which is used to share information in a manner that allows for access by court and jail authorities, clinicians, legal professionals, and pretrial staff.

Privacy Protection

No mental health assessment is conducted without the prior permission of a defendant’s attorney—likely a public defender. Further privacy protections require that each agency using the data can only view what is authorized to them through a data usage agreement.

By involving multiple agencies, the combined knowledge and expertise allows future treatment to be tailored to an individual’s needs─better than simply checking a box during a mandatory evaluation, authorities say.

This step is arguably the most crucial. Without accurate and swift identification, issues stemming from an individual’s illness can make it more difficult for persons to follow jail rules, increasing the likelihood they will face harsh disciplinary measures, or be subjected to violence from other inmates or from guards.

The second intercept in the initiative is through pretrial release, providing an escape from being trapped in the justice system.

“Mental health patients often spend more time in jail waiting for their case to be resolved than that of a mentally healthy convict,” observed Alisa Roth, author of Insane: America’s Criminal Treatment of Mental Illness, in a recent article.

This may be due to the requirement in many states that inmates with serious mental illness undergo additional evaluations or be restored to competency before standing trial.

According to a survey of 40 state hospital officials by the Treatment Advocacy Center, 78 percent of the respondents were wait-listing pretrial inmates for hospital services. Often, mentally ill inmates spend more time behind bars waiting for their case to be heard than they would serve if they were convicted of the offense.

To remedy this delay, the comprehensive technology utilized in the Smart Justice program increases the likelihood of a pretrial release by allowing officials to determine if the person is a flight risk, or a danger to the public.

Using this complete data, a judge is more likely to issue a pretrial release, but with conditions for connection to treatment.

An evaluation of the Smart Justice Initiative from April 2017 to January 2018 showed that of the individuals presented before the magistrate for a release decision, 89 percent were successful in being granted a pretrial release bond. Of those granted bond, 100 percent were “released, connected to treatment, and supervised on bond with monitored treatment for the Court,” reports Dallas County.

Need for Coordinated Care

So why are mentally ill offenders more prone to getting re-arrested and re-booked than the general population, even with increased treatment availability?

The main reason, explains Hudson Harris, is the lack of coordinated care. This refers to the absence of follow-up treatment or supervision of mentally ill persons after they have been released from jail, typically back to the same environment that caused them to get arrested in the first place.

It’s here that the third intercept comes into play.

The software directly assigns an individual to a treatment program based on the data provided. Normally it takes weeks to find a person eligible for mental health care programs, but with this technology it takes an estimated 15 minutes or less.

Inadequate coordination is not only a problem within the jail system, but also in an individual’s contact with hospitals.

When dealing with an individual with a mental health illness, a hospital’s main goal is only to focus on the individuals’ current state of health─stabilize them, get them locked down, and then out the door as quickly as possible—with little to no coordination of care, says Harris.

There is no link between simply going to the hospital and getting better when you have a psychiatric condition.

In fact, a 2018 study from the American Psychological Association found that hospitalization has an iatrogenic effect on mental health, meaning the treatment causes a worsening of the condition.

 Follow-up Care Crucial

Connecting mentally ill persons with the care and follow-up that they require will ensure they are less likely to become involved in the justice system, said Levin.

“The initiative has resulted in rapid screening and diversion to appropriate treatment programs for thousands of individuals arrested for conducted related to a serious mental illness,” he said.

Providing access to treatment and follow-up care can also help authorities save money on their corrections budgets.

When mentally ill inmates do not receive consistent treatment, they frequently cycle in and out of the jails, forcing the facility (and taxpayers) to spend additional money on health professional staff, medication needed for certain mental illnesses, and simply housing them behind bars for longer periods of time.

A 2003 study reports that in Texas prisons, “the average prisoner costs the state about $22,000 a year compared to the cost of prisoners with mental illness, which ranges from $30,000 to $50,000 a year.”

Also at a state level, Texas spends $1.4 billion in emergency room costs and $650 million in local justice system costs annually to address mental illness and substance use disorders that are not otherwise being adequately treated, according to MMHPI.

The operation of increased treatment may seem like a burden to the jail’s budget, but simply by providing individuals with the appropriate care that they need, the cost of doing so declines; breaking the high-utilizer cycle and reducing contact of the mentally ill with the corrections system.

According to HarrisLogic, the Smart Justice Initiative will be able to trim over $30 million in these expenses over the five-year implementation period.

While the initiative has resulted in significant savings to Dallas County on jail costs and indigent defense costs, and helped reduce overcrowding in the courts system, Levin notes the challenge is to replicate it in other jurisdictions.

Laura Binczewski

Laura Binczewski

While Dallas received a large grant, other jurisdictions would have to provide upfront funding or use a pay-for-performance model in order to get similar initiatives off the ground, which may prove difficult for less-fortunate counties, he said.

However, the prospects for similar programs elsewhere have brightened thanks to the increased interest of private funders, and a call to action by the Stepping Up Initiative, a national effort to divert people with mental illness from jails by asking state and local officials to pass mental health legislation.

Noting that 451 counties across the nation have already passed motions calling for reforms to the justice system’s treatment of mentally ill, the initiative organizers said a nationwide consensus for change was crucial.

“Without change, large numbers of people with mental illnesses will continue to cycle through the criminal justice system,” the organization declared on its website, “often resulting in tragic outcomes for these individuals and their families, missed opportunities for connections to treatment, inefficient use of funding, and a failure to improve public safety.”

Laura Binczewski is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Thinking Outside the Cell: Software Cuts Recidivism Among Texas’ Mentally Ill

In Dallas County, the main outlet of psychiatric care for those with mental illness is no longer the corrections system. A five-year initiative using predictive technology is helping to divert justice-involved mentally ill individuals into effective treatment programs.

In Dallas County, Texas, the main outlet of psychiatric care for those with mental illness is no longer the corrections system.

A five-year initiative aimed at bridging the gap between the legal and medical communities is successfully diverting justice-involved mentally ill individuals to effective treatment programs.

The key to the program is technology. The initiative uses software created by HarrisLogic, a Missouri-based technology and clinical services company that allows information about mentally ill individuals who fall afoul of the law to be shared among law enforcement, courts and health care providers.

Experts say such a tech-based approach could be critical to reducing overcrowding in U.S. jails.

There are now nearly ten times the number of mentally ill patients behind bars than those residing in the remaining state hospitals, according to a 2014 report by the Treatment Advocacy Center, an Arlington, Va.-based national nonprofit focused on mental illness issues.

A prime example is the Dallas County Jail, whose jurisdiction stretches from the cities of Carrollton to Mesquite, to just outside of Arlington. Dallas County’s major detention center, the Lew Sterrett Justice Center, is the second largest mental health facility in Texas, according to the County Sheriff’s Office.

In 2014, the county received a $7 million grant from the W.W. Caruth, Jr. Foundation for a “Smart Justice Initiative” to provide alternatives to jail for individuals with mental health problems who come into contact with the justice system. The county partnered with the Meadows Mental Health Policy Institute (MMHPI), a research and development organization that helps Texans connect to mental health care.

Now in its fourth year, the jail diversion program has reduced recidivism from 31 percent in 2014 to 26 percent in 2017, according to the National Association of Counties.

It’s “an impressive example of how local jurisdictions can implement data-driven innovations that enhance public safety, reduce jail costs to taxpayers, and provide effective and humane interventions for people with mental illness,” said Marc Levin, vice president of criminal justice at the Texas Public Policy Foundation.

Alternatives to Punishment

Relieving jails of the burden of providing mental health services is only a first step towards the goal of developing alternative and non-punitive options for treatment. It doesn’t address the decisions that bring mentally ill individuals into the justice system in the first place, mental health advocates say.

The Dallas County initiative uses technology to assist in the decision-making by police, courts and health providers.

Following a 911 call, if it is determined that jail is an initially appropriate response to a troubled individual, data from the standard mental health and suicide screening tests (as per Texas standards) is automatically integrated with any other data related to the individual’s medical history contained in police or emergency response records as well as hospital data.

Traditionally, such data was kept in separate silos, but the software implemented through the Jail Diversion Platform, created by Harris Logic, integrates all the personal information critical to determining a defendant’s immediate needs and subsequent care.

That includes information such as previous arrests or incarcerations, previous mental health rehabilitation, and current medication, Hudson Harris, chief engagement officer of HarrisLogic, said in an interview with The Crime Report.

This data is entered in the County Adult Information System, a “master index,” which is used to share information in a manner that allows for access by court and jail authorities, clinicians, legal professionals, and pretrial staff.

Privacy Protection

No mental health assessment is conducted without the prior permission of a defendant’s attorney—likely a public defender. Further privacy protections require that each agency using the data can only view what is authorized to them through a data usage agreement.

By involving multiple agencies, the combined knowledge and expertise allows future treatment to be tailored to an individual’s needs─better than simply checking a box during a mandatory evaluation, authorities say.

This step is arguably the most crucial. Without accurate and swift identification, issues stemming from an individual’s illness can make it more difficult for persons to follow jail rules, increasing the likelihood they will face harsh disciplinary measures, or be subjected to violence from other inmates or from guards.

The second intercept in the initiative is through pretrial release, providing an escape from being trapped in the justice system.

“Mental health patients often spend more time in jail waiting for their case to be resolved than that of a mentally healthy convict,” observed Alisa Roth, author of Insane: America’s Criminal Treatment of Mental Illness, in a recent article.

This may be due to the requirement in many states that inmates with serious mental illness undergo additional evaluations or be restored to competency before standing trial.

According to a survey of 40 state hospital officials by the Treatment Advocacy Center, 78 percent of the respondents were wait-listing pretrial inmates for hospital services. Often, mentally ill inmates spend more time behind bars waiting for their case to be heard than they would serve if they were convicted of the offense.

To remedy this delay, the comprehensive technology utilized in the Smart Justice program increases the likelihood of a pretrial release by allowing officials to determine if the person is a flight risk, or a danger to the public.

Using this complete data, a judge is more likely to issue a pretrial release, but with conditions for connection to treatment.

An evaluation of the Smart Justice Initiative from April 2017 to January 2018 showed that of the individuals presented before the magistrate for a release decision, 89 percent were successful in being granted a pretrial release bond. Of those granted bond, 100 percent were “released, connected to treatment, and supervised on bond with monitored treatment for the Court,” reports Dallas County.

Need for Coordinated Care

So why are mentally ill offenders more prone to getting re-arrested and re-booked than the general population, even with increased treatment availability?

The main reason, explains Hudson Harris, is the lack of coordinated care. This refers to the absence of follow-up treatment or supervision of mentally ill persons after they have been released from jail, typically back to the same environment that caused them to get arrested in the first place.

It’s here that the third intercept comes into play.

The software directly assigns an individual to a treatment program based on the data provided. Normally it takes weeks to find a person eligible for mental health care programs, but with this technology it takes an estimated 15 minutes or less.

Inadequate coordination is not only a problem within the jail system, but also in an individual’s contact with hospitals.

When dealing with an individual with a mental health illness, a hospital’s main goal is only to focus on the individuals’ current state of health─stabilize them, get them locked down, and then out the door as quickly as possible—with little to no coordination of care, says Harris.

There is no link between simply going to the hospital and getting better when you have a psychiatric condition.

In fact, a 2018 study from the American Psychological Association found that hospitalization has an iatrogenic effect on mental health, meaning the treatment causes a worsening of the condition.

 Follow-up Care Crucial

Connecting mentally ill persons with the care and follow-up that they require will ensure they are less likely to become involved in the justice system, said Levin.

“The initiative has resulted in rapid screening and diversion to appropriate treatment programs for thousands of individuals arrested for conducted related to a serious mental illness,” he said.

Providing access to treatment and follow-up care can also help authorities save money on their corrections budgets.

When mentally ill inmates do not receive consistent treatment, they frequently cycle in and out of the jails, forcing the facility (and taxpayers) to spend additional money on health professional staff, medication needed for certain mental illnesses, and simply housing them behind bars for longer periods of time.

A 2003 study reports that in Texas prisons, “the average prisoner costs the state about $22,000 a year compared to the cost of prisoners with mental illness, which ranges from $30,000 to $50,000 a year.”

Also at a state level, Texas spends $1.4 billion in emergency room costs and $650 million in local justice system costs annually to address mental illness and substance use disorders that are not otherwise being adequately treated, according to MMHPI.

The operation of increased treatment may seem like a burden to the jail’s budget, but simply by providing individuals with the appropriate care that they need, the cost of doing so declines; breaking the high-utilizer cycle and reducing contact of the mentally ill with the corrections system.

According to HarrisLogic, the Smart Justice Initiative will be able to trim over $30 million in these expenses over the five-year implementation period.

While the initiative has resulted in significant savings to Dallas County on jail costs and indigent defense costs, and helped reduce overcrowding in the courts system, Levin notes the challenge is to replicate it in other jurisdictions.

Laura Binczewski

Laura Binczewski

While Dallas received a large grant, other jurisdictions would have to provide upfront funding or use a pay-for-performance model in order to get similar initiatives off the ground, which may prove difficult for less-fortunate counties, he said.

However, the prospects for similar programs elsewhere have brightened thanks to the increased interest of private funders, and a call to action by the Stepping Up Initiative, a national effort to divert people with mental illness from jails by asking state and local officials to pass mental health legislation.

Noting that 451 counties across the nation have already passed motions calling for reforms to the justice system’s treatment of mentally ill, the initiative organizers said a nationwide consensus for change was crucial.

“Without change, large numbers of people with mental illnesses will continue to cycle through the criminal justice system,” the organization declared on its website, “often resulting in tragic outcomes for these individuals and their families, missed opportunities for connections to treatment, inefficient use of funding, and a failure to improve public safety.”

Laura Binczewski is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

Do Jail Diversion Programs Really Work?

The ACLU has filed suit in Kansas, alleging that the state has failed to give defendants sufficient opportunity to benefit from diversion programs. But a TCR investigation finds many experts who argue that the effectiveness of such programs depends on how well they are executed.

Melissa Braham, 27, had no adult criminal history when she was apprehended by police in Kansas last fall while moving from Colorado to Missouri. After searching her car, officers charged Braham and her boyfriend with misdemeanor marijuana and paraphernalia possession.

Under state law, she was entitled to receive notice that she could apply for a diversion program to avoid criminal charges. Instead, she was jailed for a month, during which time she lost her job and had her children taken from her and placed in foster care.

“My kids came to see me in jail, and it was really hard to see my baby crying,” Braham said in a video produced by the American Civil Liberties Union (ACLU) of Kansas. “They’re still in foster care and I’m still trying to get them back.”

“All of this big heartache really could have been avoided if I had known about diversion.”

Braham is one of thousands of Kansas defendants who could have benefitted from diversion programs had they been given the opportunity. According to figures collected by the ACLU of Kansas, elected prosecutors in the state use diversion in only about five percent of felony cases—about half the rate diversion is used nationally.

The ACLU brought a lawsuit against a county prosecutor in Kansas in June for failing to disclose diversion opportunities to defendants in accordance with state law.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, a National ACLU attorney who is partnering with the ACLU of Kansas in the lawsuit, in a press release on June 8.

“We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

But how effective is diversion in the first place?

Diversion allows low-level defendants to avoid criminal charges, and thus divert them from the criminal justice system, if they follow a prescribed program set out by a prosecutor. Conditions can include some combination of classes, community service, addiction treatment, mental health counseling, and restitution.

The central promise, should defendants complete diversion successfully: a clean record.

Diversion programs seek to address the root causes of crime. Proponents say they can be a means of relieving overburdened courts and crowded jails, and can save offenders from the adverse consequences of a criminal conviction.

Nearly every state has some form of diversion program, according to the National Conference of State Legislatures, but advocates claim the programs are vastly underutilized and are often inaccessible to low-income defendants.

Prosecutors exert almost total control over diversion: they alone have discretion over whether to grant a diversion, and have exclusive responsibility for determining whether a defendant is complying with the diversion agreement’s terms. The district attorney’s decision is almost always final, and defendants have no way to appeal a rejection.

Rules about who is eligible are different in different jurisdictions. Drunk drivers are eligible for diversion in Oregon, but not in Tennessee. In Saline County, Kansas, diversion is not offered for drug offense; three counties south, it is.

Does Diversion Work?

But the availability of diversion does not always successfully prevent defendants from becoming ensnared in the justice system.

Even in cases where diversion is offered, the fines and fees that come with it prove prohibitive for many defendants.

In 2016, the New York Times analyzed 225 adult diversion programs run by prosecutors in 37 states. Two-thirds of lawyers who answered a Times questionnaire about diversion reported that fees were a barrier for their clients.

The exact cost of diversion varies widely. In some places, prosecutors charge nonrefundable application fees that can go up to $250. Additional charges—for counseling, classes, drug tests, monthly supervision, charitable contributions, court costs—mount quickly. The ACLU estimates that a defendant in diversion could pay up to $5,283 for a marijuana possession charge.

“To tell somebody that if you can pay for this, you can get your charges dismissed, but if you are poor you are going to go through the system? That’s completely unfair,” Mark Kammer, who runs diversion programs for the Cook County State’s Attorney in Chicago, told the Times.

Sometimes even after a defendant successfully completes diversion, the promise of a clean record can prove false.

Prosecutors can opt to leave a case open until diversion has been completed, and the resulting pending charge can then stymie defendants’ efforts to find work or housing. Once the case has been closed, expungement is often not automatic, meaning a dismissed case can still show up in a background check.

Diversion vs Punishment

Some district attorneys require defendants to enter a guilty plea that can later be used to prosecute them, undermining the benefits of diversion. And when requirements are strict—hundreds of hours of community service, years of probation—diversion can look very similar to punishment.

A widespread lack of data about fees, success rates, recidivism, and who is accepted or rejected from diversion programs, precludes accountability and improvement almost nationwide.

When diversion is done well, however, its results can be significant. Cook County’s diversion program (in Illinois), which is widely recognized as a model, is an example: a year after finishing felony diversion, 97 percent of graduates have no new felony arrests, and 86 percent have no new arrests of any kind. The program’s drug school alone saves the county an estimated $1.5 million annually.

In the Cook County program, which handles about 5,000 defendants a year, participants are not obliged to plead guilty, and they pay no fee for participation. If they do not successfully complete their program, they are either returned to traditional prosecution with no penalty or are switched to a more comprehensive program.

The intensity of the program is proportionate to the offense: misdemeanor defendants might be required to attend only two counseling sessions, while those charged with high-level felonies can be sent to Branch 9, a yearlong program that connects members to services such as classes for a high school equivalency diploma, substance abuse evaluations, and health insurance.

The Miami-Dade diversion program in Florida, another oft-cited example, focuses specifically on redirecting people with mental illness away from the criminal justice system. In the 18 years it has been in operation, the Criminal Mental Health Project (CMHP) has both reduced the county’s jailed population and improved public safety.

County Judge Steven Leifman began the program in 2000 after realizing that while 9.1 percent of the county’s population has a serious mental illness, only about one percent receive services in the public mental health system, leading to preventable crime and arrests.

CMHP includes a pre-booking program and a post-booking program that divert mentally ill people who might otherwise be arrested for minor offenses or who are already jailed to crisis units for treatment.

To be eligible for the program, a defendant must have a primary diagnosis of a serious mental illness such as schizophrenia, bipolar disorder, major depression, or PTSD. They may also have a co-occurring substance abuse disorder. Defendants can be charged with any non-traffic misdemeanor case, as well as third-degree felonies and second-degree felonies in select cases.

All cases must be approved by the state attorney’s office.

“People with serious mental illnesses need access to the treatments and services that will help them to get better, and they don’t get better in jail,” said Cindy Schwartz, the jail diversion program director.

“We believe this a much better alternative for the people we serve, and it’s a much better alternative for our community.”

In 2016, the New England Journal of Medicine reported that CMHP had facilitated 4,000 diversions, and that the annual recidivism rate among participants was about 20 percent—less than a third of the 75-percent recidivism rate among defendants not in the program.

In some places, diversion takes the form of specialty courts, such as drug courts and veterans’ courts. In these cases, judges take the lead. Generally, however, diversion is a prosecutors’ game: it falls to the district attorney to give or withhold.

Many opt for the second option. Diversion is currently utilized in a small minority of felony cases nationwide, about nine percent.

“The incentives within a prosecutor’s office are skewed towards conviction and long sentences—it’s how they justify their existence,” Trivedi said. “So that is the default approach.”

“If somebody has broken the law, then the only approach to rectifying that wrong is to convict someone of a crime and send them to jail. That’s deeply ingrained in the culture.”

But Trivedi believes it’s time for that culture to change.

“The reason that this issue is so important is that it addresses all the issues we want the criminal justice system to address, but in a smarter way,” he told The Crime Report.

“If prosecutors say they want to keep their communities safe, well, getting people with substance abuse problems the proper treatment they need is a much smarter long-term solution to keeping the community safe, because you’ve eliminated the problem that was driving the criminal activity.”

“If we say we want to save taxpayer money…well, diversion programs save money, because having the state take care of you from morning to night is much more expensive than keeping tabs on someone while they’re in an outpatient program.”

“And if we’re reducing recidivism and keeping people from reoffending, we’re also reducing the cost of the overall system,” he said.

“If states and municipalities and district attorneys and police were serious about keeping the community safer long-term, then these would be much more frequently used programs.”

Elena Schwartz is a TCR news intern. She welcomes readers’ comments.

from https://thecrimereport.org

The Immigration Case That Stymies Trump’s Border Crackdown 

An obscure 1997 federal court decision, known as the Flores Settlement, limits the government’s ability to keep undocumented immigrant families detained for extended periods. No surprise that it’s a prime target of the Trump administration.

As the debate on family separation flares along the southern border, President Donald Trump’s signature issue will boil down to one court battle about an obscure law most media were unfamiliar with until last week.

The Trump administration wants to do away with a 1997 federal court decision, known as the “Flores Settlement,” which in recent years has limited the government’s ability to keep immigrant families detained for an extended period of time. Trump says the case is the reason why his administration is “forced” to separate parents from their children for criminal prosecution.

The policy push from May to a few days ago was to separate the children from the parents, and send them to facilities operated by the Department of Health and Human Services and contractors for unaccompanied minors. The parents were sent to immigrant detention centers.

This resulted in more than 2,500 children being separated from their parents in less than two months. As of June 20, there were 589 individuals at Karnes detention facility, 1,978 at South Texas facility, and 56 at Berks facility. An April 2018 GAO report lists the total capacity of the three as 3,326.

As of Monday, only 522 have been reunited with their guardians.

By allowing children to remain with their parents, Trump has reverted to the Obama-era policy of keeping immigrants in family detention centers. The catch here is that those facilities need to be complying with the Flores settlement.

That means the federal government needs to do two things. One is give the children with a relative or family friend, rather than keeping them in separate custody. The second is to keep the children in that custody in the “least restrictive conditions” possible.

At one point, family detention was indefinite, with some women and children remaining for over a year at a time in the most extreme cases. But Flores changed that in 2015, limiting family detention to 20 days.

Origins of the Flores Settlement 

In 1985, 15-year-old Jenny Flores crossed the US border to flee El Salvador’s civil war. She was detained by the now defunct United States Immigration and Naturalization Service (INS) in California, during a time when a Reagan appointee tightened restrictions on releasing detained immigrant minors.

She could only be released to her mother. But Jenny’s mother, herself undocumented, was afraid to come forward for fear of being deported to El Salvador. INS refused to release Jenny to her aunt for two months because they alleged that unaccompanied minors could not be released to “third-party adults.” Flores’ attorneys filed a complaint stating she and other minors had been strip searched, as well as searched vaginally in a CoreCivic (then Corrections Corporation of America) facility.

Over a week later, a judge issued an injunction freeing Jenny and other plaintiffs.

The case was eventually settled by the Supreme Court in 1996. The final ruling requires that juveniles be held in a non-secure facility licensed to care for minors. Minors are to be released without delay to a legal guardian, family member, or adult seeking custody of the juvenile. In 2018, Flores applies to juvenile individuals detained by the Department of Homeland Security (DHS) and Human Services’ Office of Refugee Resettlement.

Despite finding that the release procedures in 1985 had not violated Flores’ due process rights, the case became integral to detention advocates because it holds facilities to the standard of meeting state licensing requirements for the care of dependent children. Legal immigration advocates allege that ICE’s current no-release policy detainees with children violates the terms of the Flores settlement.

During winter of 2015, Peter Schey and Carlos Holguin, lawyers at the Center for Human Rights and Constitutional Law in Los Angeles, filed a motion to enforce Flores, stating that all three agencies (ICE, DHS, and CBP) were in violation of the settlement. The motion claims that the Texas and Pennsylvania families are not licensed, non-secure facilities where children are only in short-term custody.

Government attorneys countered that the Flores agreement did not apply to children in family detention centers. In July 2016, Judge Dolly M. Gee of the Federal District Court in Central California ruled that conditions at Karnes and Dilley failed to meet the legal standards of the Flores agreement.

According to a summary from the Congressional Research Service, Flores requires minors who would be kept in federal custody be placed in the “least restrictive conditions” and be provided with some basic necessities, like food and water, access to medical treatment, access to running water, and that they be separated from adults to whom they had no relation. Advocates argue the very existence of family detention violates that.

The House of Representatives hearing that same month resulted in 178 House Democrats, led by U.S Representative Zoe Lofgren (D-CA) to send a letter to DHS demanding the end of family detention, citing Judge Gee’s decision. The case has been appealed by the government to the U.S. 9th Circuit Court of Appeals.

The Department of Homeland Security agreed to decrease the length of detention for children and mothers that did not pose a national security risk to 20 days. Prior to October 23, 2015, some immigrants remained in detention for as short as three weeks, and as long as 13 months.

 So What Does This Mean?

In the current interpretation of Flores, two of the three current family detention centers violate the settlement agreement.

The South Texas Family Residential Center in Dilley, Texas, is not licensed. Berks County Residential Center is licensed as a secure facility, but only has a few hundred beds, and several complaints about medical care and detainee rights that put into question its licensure. Karnes’ license is invalidated.

Together, they have about just over 3,300 beds, according to a 2018 DHS report to Congress.

In the Executive Order, Trump says the Secretary of Defense will take all “legally available measures” to provide any existing facilities available for housing of “alien” families, and will build more in consistency with the law. Meanwhile, he had Attorney General Jeff Sessions file a request Thursday with the US District Court for the Central District of California to modify Flores. The government wants to detain families together throughout “the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”

That means during the duration of a legal proceeding. According to TRAC, such proceedings take an estimated two years

That means going from 20 days to two years.

Clara Long is a senior US researcher for Human Rights Watch, and has been assessing conditions in immigrant detention centers for many years. She says “detaining children for prolonged periods of time — as the government is attempting to do with this motion — is very harmful.”

Long says indefinite and long detention is particularly harmful.

“The research clearly shows uncertainty causes profound distress,” she said. “It matches what I heard in interviews in family detention in 2015 after the Obama administration also attempted to flout the Flores requirement to place kids in the ‘least restrictive setting available’ and release them ‘without unnecessary delay’ to a parent, adult relative or guardian.”‘

Long says many families begin to experience depression, anxiety and suicidal thoughts.

Getting Flores changed is a stretch, and Judge Gee isn’t expected to approve further adjustments. Regardless, the federal government is working to move their plans forward. Questions remain if any additional facilities, including those housing children and mothers on military bases, comply with Flores.

And although Trump administration is temporarily putting a pause to referring border-crossers for criminal prosecution due to the amount of beds available at facilities, plans are under way to house more people on military bases, and build additional facilities.

The Office of Refugee’s contractors, including Southwest Key Programs Inc., have opened a slew of positions, ranging from caseworkers to medical coordinators.

Sarah Betancourt is a freelance writer who covers immigration affairs. She welcomes comments from readers.

from https://thecrimereport.org

The Silent Threat to Justice

Stress is an occupational hazard for lawyers, driving some to alcoholism and substance abuse. But when public defenders succumb, it can also affect the right of the poorest individuals to a fair trial, a Crime Report investigation finds.

Laura’s alcoholism started well before she became a public defender. She began drinking every day in law school “because the culture permitted it, even celebrated it.”

“People would drink in the library while they were studying,” she told The Crime Report.

Laura, who is 40 years old and has been a public defender for seven years, joined a public defender’s office in the Northeast immediately after graduating law school. Right away, she was overwhelmed by the hardships of her clients and the 100-plus cases she was expected to handle.

Struggling to keep up with her work, Laura found support in the office camaraderie. This often took the form of “happy hour” in the evenings—which typically started around 4 pm and lasted until 2 o’clock in the morning.

Thursday and Friday were “big days,” but “pretty much every day after work, you could find someone who’s going out for happy hour.”

“It was the adult thing to do,” she recalled. “To go and get the court off of you, get the client drama off of you.”

At the time, Laura didn’t see any problem with that routine. Many of her coworkers “drank hard and heavy” and still managed to come to work ready for court each day, she said.

But in Laura’s case, the drinking began to take a toll. She felt depressed and intimidated by the scale of her workload. The office culture, however, which regarded binges as a normal way to de-stress, kept her from attributing her unhappiness to alcohol.

Endemic Addiction

Laura, whose real name has been kept confidential, is far from unique.

In 2016, a study conducted by the Hazelden Betty Ford Foundation and the American Bar Association uncovered widespread problem drinking and mental health issues among legal professionals.

Published by the Journal of Addiction Medicine, the study reports that 21 percent of licensed, employed attorneys qualify as problem drinkers, compared to 12 percent of the highly-educated workforce.

The study also found elevated levels of mental health disorders: 28 percent of attorneys surveyed struggled with some level of depression, compared to an estimated seven percent of the general population. Some 19 percent experienced anxiety.

While the study inquired about drug use, only 25 percent of participants chose to answer the relevant questions. Of the lawyers who did respond, 5.6 percent used cocaine, crack, and stimulants; 5.6 percent used opioids; 10.2 percent used marijuana and hash; and nearly 16 percent used sedatives.

As for the 75 percent of participants who declined to answer, Patrick Krill, the study’s lead author, believes legality played a greater role than lower rates of use.

“It makes sense to me that there were far fewer attorneys willing to discuss their drug use, because that potentially raises legal implications and implications for their licensure,” he said in an interview.

“So even in the context of an anonymous online survey…lawyers just aren’t comfortable discussing this.”

That’s not to say that drug use among lawyers isn’t an issue.

“What I know from practical experience and what I can tell you anecdotally from working with lawyer assistance programs around the country is that lawyers use plenty of drugs,” said Krill, who is also a licensed drug and alcohol counselor, and whose consulting firm, Krill Strategies, works with law firms on drug abuse and mental health issues.

Whether the emotional problems lawyers reported resulted from problematic drinking, or whether attorneys drink to cope with existing emotional issues is unclear.

But “the ubiquity of alcohol in the legal professional culture certainly demonstrates both its ready availability and social acceptability, should one choose to cope with their mental health problems in that manner,” the study says.

A Rite of Passage

Indeed, a culture of drinking pervades the entire legal profession, according to Kevin Chandler, Director of the Hazelden Betty Ford Foundation’s Legal Professionals Program.

“The notion that you work hard and play hard and drink hard goes back for decades,” he said. “It’s seen as a rite of passage.”

Chandler recalled speaking to a judge once who told him, “I drank heavily every day for over 23 years, and in all that time, I never had a drink I didn’t deserve.”

“I think that’s the attitude of much of the legal profession,” Chandler said. “That’s something that goes hand in hand with practicing law, whether as a defender or a prosecutor or [an attorney] in a private firm.”

Raúl Ayala, a 65-year-old federal public defender from Los Angeles who abused alcohol for over 30 years before finally getting sober, agreed.

Like Laura, Ayala’s alcohol intake ramped up during law school to deal with what he described as “cutthroat pressure.”

“Everybody was out to outdo you,” he said. “Because they wanted to make the law review, for example, or to get the good corporate job, or the clerkship.”

Addiction itself is not particular to public defenders, and there is currently no data comparing the rate of substance abuse by public defenders to other attorneys.

Nevertheless, defenders dealing with addiction face unique challenges given the nature of their work, according to Krill.

“These are offices that tend to be under-resourced, and the people have extraordinary caseloads that they are unable to keep up with,” he said. “They don’t have the same level of support that they might have in a law firm setting.”

The most recent workload data at the national level comes from a Bureau of Justice Statistics study published in 2010, which found that the majority of public defender offices far exceeded the maximum recommended number of cases per attorney.

Figures at the state level, which are more up-to-date, demonstrate that this trend continues. In Kentucky, for instance, the Guardian reported that individual defenders took on an average of 448 cases in 2016—54 percent above recommended national standards.

This workload does not leave defenders with much room to handle personal issues.

“People’s firms can put off cases to an associate, or they might have paralegals working with them,” said Laura. “But public defenders have the entire responsibility for their caseload.”

Public defenders are also among the lowest-paid members of the legal profession, meaning they often lack the funds to address addiction properly.

According to the National Association for Law Placement, which collects statistics on legal professionals, the median salary for entry-level public defenders was $58,300 in 2017—less than half of the median first-year salary of an associate in the private sector, which was $135,000.

“Defenders’ benefits and salary just don’t provide them with the same level of health care and access to resources that someone else might enjoy,” said Krill.

“They have the same barriers as all lawyers—fear of how it’s going to impact their job and their reputation—but beyond that, they have this compound barrier of not having that level of resources at their disposal.”

Public defenders also must contend with the emotional toll of their work. The trauma that sometimes ensues from dealing with clients’ misery can exacerbate addiction, even when it’s not the root cause.

Chandler reported seeing many defenders using drugs and alcohol to self-medicate.

“I had a patient not long ago who was given a big case in which he was required to review reams of evidence on infant pornography,” he recalled. “He said it was so disturbing that it really caused him to up his usage of alcohol.”

The State Bar of Wisconsin undertook a study to learn just how significant the emotional toll of public defense is. The study examined the prevalence of “compassion fatigue,” or the cumulative physical, emotional, and psychological effects of continual exposure to traumatic stories or events when working in a helping capacity.

Researchers found serious impairment among the public defenders they studied, with 39.5 percent demonstrating significant symptoms of depression and 11 percent with clinically significant PTSD symptoms.

Laura herself would be diagnosed with depression. As time went on, she felt increasingly fatalistic about her ability to execute justice.

“The reality…is that you walk in thinking you’re going to free everyone, and in effect you end up spending 99 percent of your time negotiating how much time someone is going to be in prison or on probation, and what they will admit to,” she said.

“The problems we are responsible for aren’t making sure that somebody doesn’t have to pay $200,000 for a breach of contract. Our responsibility is to make sure somebody doesn’t go to jail. And the weight of that—it’s psychologically heavy.”

Ayala spoke to the pressures of public defense as well.

“We’re dealing with people’s lives and their liberties,” he said. “Their ability to raise a kid and hold a job and have homes and have families and just be a regular member of society.”

“We take it on ourselves a lot emotionally.”

Perhaps because of the burden of her responsibility, Laura took great pride in her job—which only increased her alcohol intake.

“You are the ones who are willing to do this work that so few people are willing to do,” she said.

“There’s this sense that you’re a better lawyer, you have more integrity, you’re more moral, you work harder for less money, you don’t have the prestige. And you carry people’s lives in your hands.”

“That’s what makes it OK when you’re drinking to keep up with work. There’s some sense that you will handle everything at all times.”

“Serious Access-to-Justice Issues”

Because defenders are tasked with aiding vulnerable populations—people facing criminal charges who often cannot afford to hire other legal counsel—there can be more serious consequences when they are unable to cope with their substance use.

Krill said addiction among defenders raises “rather serious access-to-justice issues.”

A defender’s struggles with substance abuse can lead to “everything from minor delays or glitches in a defendant’s case…to on the other end of the spectrum, a complete miscarriage of justice,” he said.

“I remember working with a patient once who was in treatment, and in the depths of their addiction sometimes they wouldn’t pick up the phone and wouldn’t answer clients, basically just ignore them, because they were too burned out and engaged in too much self-medication to really care,” he said.

Krill had not personally dealt with patients who revealed that their addiction lead to a wrongful conviction—“as you can imagine, those are not the types of things that people are very inclined to discuss”—but he was confident such instances existed.

The National Registry of Exonerations, which tracks every known exoneration in the US since 1989, lists inadequate legal defense as a contributing factor for 565 of 2,239 exonerations—about one in four.

What this means exactly is unclear. To begin with, the number of exonerees does not come close to the number of people who have been wrongfully convicted. Many more people have gone to prison for lack of adequate defense than have been exonerated for this reason.

That said, defense can be inadequate for many reasons other than substance abuse.

The data that exists, therefore, doesn’t put a hard number on how many miscarriages of justice have taken place because a defender’s addiction went untreated.

Still, it is easy to imagine the ways big and small that substance abuse can take a toll on job performance.

“We have great potential to cause harm to our clients,” said Ayala. “Either by not looking at the case properly, not investigating it, not aggressively litigating motions, plea negotiations, trials, appeals, habeas….There’s a lot of moving parts, and if you have an attorney that’s off-kilter, that could spell problems.”

Laura said she wasn’t fully aware of the ways alcohol impaired her at work until she got sober.

“At the time I would have told you, ‘I’m fine, I’ve got it,’ but I have to say, [there is] no way I could have performed optimally under that condition,” she said.

“Do I think I was providing ineffective counsel? I wouldn’t go that far….But do I think that I was the good lawyer that I am now? No, I don’t think anyone under that condition can do that job well.”

The Road to Recovery

Laura tried to quit drinking multiple times before she finally got sober for good. The first time she enrolled in a 12-step program, she found it impossible to quit drinking and simultaneously keep up with her workload.

“I didn’t know how to get sober and go to work and experience the withdrawal symptoms I was going through and not have a place to talk about it,” she said. “I didn’t think you could be a public defender without drinking.”

Particularly difficult was forgoing the happy hours that had been her support system in the past.

“Because that’s really where you would get to know that you’re not crazy,” she said. “Like, ‘Yes, that judge was horrible to you, those clients are really challenging, you did the best you could.’”

“If you don’t have a place to go hear that at the end of the day, how do you do that work?”

She ended up leaving the defender’s office and taking on work as an attorney in a solo practice. Her logic: no colleagues meant no exposure to alcohol.

“I thought the only way to be sober and be a lawyer was to be by myself,” she said.

But finding that she missed representing indigent clients, she soon returned to public defense—and promptly began drinking again.

Within a year and a half back at the public defender’s office, Laura had an emotional breakdown. She was taking prescription drugs by that point to cope with her anxiety and depression, and decided she needed serious help. She took medical leave and went to a rehabilitation program for a month to get clean.

When Laura returned to work, she initially isolated herself again. But she quickly realized that without some kind of support from her colleagues, she would be unable to do her job.

“If you do not have lunches, if you do not hang out after work, if people don’t come visit you in your cubicle, then you just can’t do it,” she said.

So she began to seek out the other members of her office who drank less, and realized, to her surprise, that fewer people were partaking than she had previously thought.

“My perception of the entire office changed when I stopped drinking,” Laura said. “I thought when I was drinking that everyone went out to drink.”

Many treatment programs are available to lawyers who are dealing with addiction and substance abuse issues. Every state has a Lawyer’s Assistance Program, which takes calls from people suffering from addiction or mental health issues and provides short-term interventions along with service referrals to appropriate providers in an individual’s community.

In addition to general rehabilitation programs, some organizations provide treatment catered specifically to legal professionals, such as the Hazelden Betty Ford Foundation, Caron, and Sunrise House.

Still, many say that the resources available are insufficient.

Krill wants to expand prevention services, including trainings and awareness programs, “so defenders can understand some of the signs of substance use disorders and mental health problems.”

He would also like to see offices hire managers or counselors that are trained to detect signs of trouble and direct attorneys to the appropriate services.

“I say all this with the appreciation that this would sound like complete fantasy land in most public defender offices, because they’re sometimes struggling to have enough office supplies, let alone mental health resources,” Krill said.

“Silence is the Biggest Enemy”

One large obstacle to addressing addiction in the legal world is changing the discourse around substance abuse.

“Silence is the biggest enemy, and for too long in the legal profession we have swept this under the rug,” said Chandler. “That’s why we have twice the addiction rate of the larger population.”

Ayala, who now speaks to other attorneys about his journey to sobriety, expressed a desire to see increased dialogue surrounding substance abuse within the profession also.

“I think that we should do more as defenders by addressing this openly and honestly as much as we can,” he said. “At least once or twice a year, let’s get recovering lawyers to give programs on these issues to try to bring down that silence.”

Slowly but surely, the conversation is changing.

According to Laura, many in the younger generations of lawyers advocate placing a social worker or mental health professional in each office, as Krill hopes, to work through trauma with the defenders the same way that defenders provide such services for their clients.

This might help to diminish the stigma that leads many to keep their struggles with addiction to themselves.

When asked what barriers might prevent them from seeking treatment, participants in the ABA study had one major answer: not wanting anyone to find out.

Ayala spoke to the stigma he feared when he was first getting clean: “Are people going to hold that against you? Will your clients stay away, will your reputation suffer, will the prosecutors know that and try to exploit that?”

Laura shared this fear, but she was less concerned for her reputation and more worried about seeming weak.

“If you’re going to be a public defender, you have to be Teflon,” she said. “You have to be scraped at by judges and prosecutors and your own clients, and you have to withstand it.”

“After work we go out and drink and we laugh about it. So I didn’t see that there was a space for me to say, ‘Hey, I’m having a hard time.’”

Elena Schwartz

Elena Schwartz

After she quit drinking, however, she slowly began coming out to people in her office. The more she shared her history, the more she heard from other people experiencing the same things—and the more respect she had for her own struggle.

“To be in that environment and deal with the trauma, the horrific injustice that you experience once you get to know your clients and see what they’re experiencing, and to be sober in the face of that is incredibly strong,” Laura said. “And that’s not something I realized until I got sober.”

Elena Schwartz is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Disgraced Movie Mogul Harvey Weinstein Might Go Free: Here’s Why

The #MeToo era has improved the climate for prosecuting accused sexual predators like Harvey Weinstein and Bill Cosby. But according to experts, the legal hurdles to conviction remain formidable.

At the dawn of the #MeToo era, will changing attitudes towards sexual assault against women be enough to convict former Hollywood producer Harvey Weinstein?

Over 70 women have accused Weinstein of sexual assault, sexual harassment and rape (allegations he fervently denies).  The deplorable conduct he has been accused of in Hollywood and other places has sparked national outrage and fueled the fire for the #MeToo movement. Women across the country have started to speak out against sexually exploitive and abusive behavior of powerful, wealthy men like Weinstein–and the world is listening.

But, despite his many alleged crimes and the public’s cry for justice, Weinstein could walk away unscathed by the criminal justice system.

Here’s why:

Due to outdated sex crime laws not only in New York (where Weinstein is being charged with sex crimes against two different women) but across the country, the movie mogul could escape a damning prison sentence, experts tell The Crime Report.

In criminal court, prosecutors must prove beyond reasonable doubt that a sex crime did occur, and “that can be very difficult,” said Jeff Herman, known as a “go-to” lawyer for sex crime cases in Hollywood.

Herman acknowledged his doubts about the prosecution because the burden of proof is “very high” in these kinds of “he said-she said cases.”

Editors note: Herman is currently representing Dominique Huett and Kadian Noble, two of Weinstein’s accusers, in civil court.

Prosecutors will also have to prove the encounter was non-consensual, raising issues about the definition of consent under state law.

Proving Forcible Compulsion is Hard

In New York, rape is defined as “forcible compulsion” — compelling the victim through the use of physical force or the threat of immediate death, physical injury or kidnapping.

Many of Weinstein’s victims claim they were coerced into performing sexual acts, but Weinstein could argue they were not physically forced or fearful for their lives, lawyers warn.

“One of the problems in a case like this is [that] Weinstein will have the ability to argue that it doesn’t matter that the victim didn’t want to do what he wanted, because she eventually gave in,” said Wendy Murphy, an impact litigator and adjunct professor of sexual violence law at New England Law in Boston.

“And a jury might respond ‘she didn’t want to consent but she did eventually. Yes he pressured her, but it was consensual,’” said Murphy.

For example, actress Lucia Evans, one of the accusers in the criminal case against Weinstein, ‘sort of just gave up’ when she was being assaulted, she told The New Yorker.

Evan’s full account of the assault, as reported by Ronan Farrow in the groundbreaking New Yorker article “From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories,” shows the loopholes Weinstein’s defense may be able use against her. 

“He forced me to perform oral sex on him.” As she [Evans] objected, Weinstein took his penis out of his pants and pulled her head down onto it. “I said, over and over, ‘I don’t want to do this, stop, don’t,’ ” she recalled. “I tried to get away, but maybe I didn’t try hard enough. I didn’t want to kick him or fight him.” In the end, she said, “he’s a big guy. He overpowered me.” She added, “I just sort of gave up. That’s the most horrible part of it, and that’s why he’s been able to do this for so long to so many women: people give up, and then they feel like it’s their fault.”

Under US law, giving up could be seen as an indication of consent.

“In a civilized country, it wouldn’t be a debate about whether its acceptable to coerce someone and cause them to give up control of their body; it would simply be illegal to coerce someone,” said Murphy.

“But I am concerned that Weinstein’s lawyers will be able to argue ‘she said no, but then she changed her mind.’”

Weinstein’s victims’ feelings of distress, coercion or desperation may not be enough to convict him.

Will Victims Testify?

This sobering reality is juxtaposed with one facet of the criminal justice system that has proven to work in the #MeToo era: bringing in all the victims in to give their testimony.

In the Bill Cosby trial, five women were able to give their testimony in front of a jury and judge.

Cosby’s victims were brought in as “prior bad acts” to demonstrate his pattern of drugging women and then raping them. And it worked. Cosby was convicted on three counts of sexual assault for drugging and sexually assaulting Andrea Constand in 2004.

Under rule 404, multiple victims can be brought before a jury to show “character evidence, crimes, or other acts” and can be a saving grace in sex crime cases.

Without the five other women who testified, Cosby probably wouldn’t have been convicted, experts told The Crime Report.

“A one on one case would be very difficult to convict” said Jonathan Mandel, a Los Angeles criminal defense attorney and a former L.A. County prosecutor and public defender.

“It matters that all the woman stood up,” he said.

Although Weinstein has over 70 woman accusing him of sex crimes, due to statute of limitation laws, among other reasons, Weinstein is only being charged with crimes against two women. But the same statute of limitation laws do not apply to victim testimony.

Under rule 404, all of the women who have accused Weinstein might be allowed to give their testimony in front of the court.

Perhaps. Ultimately, the decision will come down to the judge. If Weinstein’s case goes to trial, the judge will have the final decision over whether or not character evidence can be used.

“That’s the ammunition,” said Mandel. “They [the prosecution] need 15 women to stand up and say ‘I wasn’t interested in advancing my career, this guy is an animal.’”

Mandel said he was sure the prosecution would bring in a brigade of victims, if permitted by the judge.

“It’s going to be really ugly if it goes to trial,” he concluded.

Megan Hadley is a staff writer for The Crime Report. She welcomes comments from readers.

from https://thecrimereport.org

Police in America: Warriors or Peacemakers?

Training cops to avoid excessive use-of-force is only part of the challenge. The hardest part is learning a different mindset about policing—in the face of society expectations and peer pressure, experts and senior officers tell TCR.

In the wake of well-publicized cases of excessive force and officer-involved shootings, police departments in major cities like New York and Los Angeles have rolled out popular new training programs meant for both veteran officers and recruits.

Emphasizing de-escalation, conflict resolution, and empathy over the more force-oriented practices of the past, these programs may, indeed, be a step in the right direction. However members of the criminal justice community still warn that, while training is important, it alone is not going to stem police misconduct and, in some cases, might be part of the problem.

“Training becomes a simple solution,” Seth Stoughton, an assistant law professor at the University of South Carolina School of Law and a former Tallahassee police officer, said in an interview with The Crime Report.

“Whenever we’re talking about something as complicated as human dynamics, as complicated as racial interactions throughout the history of this country, as complicated as policing itself, I think we should be very skeptical of simple solutions.”

According to Stoughton who, as an officer, trained other officers and created policies to govern the use of new technologies, training may help─but it does little to change the underlying systems that govern police behavior.

Though officers may receive some form of de-escalation training at the academy, a major problem is that this can often be immediately contradicted by the guidance they receive from their peers after moving into the field.

“Every cop has heard some version of, ‘Forget everything that you learned in training, now it’s time to learn how we do it on the street,’” said Stoughton.

Certain departments have met this contradiction with a Field Training Officer (FTO) program, which assigns newly sworn-in officers with a veteran who guides and evaluates them based on the principles they have just learned at the academy.

Ideally, these programs would reinforce any de-escalation training new officers may have received, and steer them away from habits that violate the policies and procedures they’ve just learned.

However, Stoughton is quick to warn that policies and procedures are different for every department in the country, as are their training programs.

“The variety from agency to agency can be staggering,” said Stoughton.

According to a 2016 report by the Bureau of Justice Statistics, there are roughly 18,000 state, county, and local law enforcement agencies in the US today. These range from large departments like the New York City, to small, local agencies with 50 officers or less.

And with no national standards, two departments in two neighboring towns may have completely different rules for procedure and training.

Creating a ‘National De-Escalation Model’

That, says Chuck Wexler, executive director of the Police Executive Research Forum (PERF), is one of the greatest challenges to changing the culture of modern policing.

“The kind of policies, the kind of training, tactics, and culture that we are talking about are really significant changes to the way we think,” said Wexler, whose organization is currently seeking to establish a national de-escalation model.

“90 percent of these agencies are smaller agencies, and they aren’t easy to influence in terms of changing policy.”

In fact, a 2017 study from APM Reports shows that, despite growing support for de-escalation training, only 8 states have officially mandated it for all of their officers. 34 other states have no de-escalation requirement. While APM Reports reveals that 24 of those states could have mandated de-escalation administratively, it found that most conduct no─or very little─de-escalation training at all.

In most of the training that does occur, Wexler believes the emphasis is misplaced.

In a survey conducted by PERF of nearly 300 agencies, they were asked what percentage of time was spent on firearms training versus de-escalation, crisis intervention, and communication.

“(We found) the lion’s share of the time is spent on firearms,” Wexler said.

According to PERF’s 2015 survey, among more than 280 law enforcement agencies, new recruits received an average of 58 hours of firearms training, and only eight hours of de-escalation training.

In some cases, it could even be as much as two weeks of firearms training. The survey also found that the fragmented nature of the training, where different elements such as using a firearm and the legal issues governing lethal force, are discussed often days, weeks, or even months apart, makes it difficult for officers to understand how everything fits together.

To tackle this issue, in 2016, PERF released it’s Guiding Principles on Use of Force, a report detailing the methods necessary to changing conventional thinking on how the police handle certain confrontations, particularly those that involve the seriously mentally ill who do not have a firearm.

Following this report, they created the Integrating Communications, Assessment, and Tactics (ICAT) training guide, available online for any department’s use, which implements those methods through six training modules emphasizing critical thinking, situational awareness, and informed assessment.

“It’s all about education,” said Wexler.

For Tom Wilson, director of PERF’s Center for Applied Research and Management, part of that education means replacing what he says has become the traditional decision model of most departments today: described as the “use-of-force continuum.”

‘Use-of-Force Continuum’

“The use-of-force continuum assumes if someone has a rock I use a baton, if someone has a knife I use a gun, increasing the level of force,” said Wilson, in an interview with TCR.

A 24-year veteran of the Anne Arundel County, Maryland Police Department, Wilson insists that this process only exacerbates a potentially explosive situation, especially when considering interactions with people suffering from a serious mental illness.

“If someone is mentally ill and they have a knife, and you pull out a gun and start screaming at them, you raise their anxiety level,” said Wilson.

“So, rather than dropping the knife, they start to come toward you, which is the exact opposite of what you anticipated.”

Sadly, these sort of scenarios have become all too common.

A 2015 study by the Treatment Advocacy Center found that people with untreated mental illness are 16 times more likely to be killed by law enforcement. In this year alone, according to the Washington Post’s Fatal Force analysis database, 68 mentally ill men and women have been shot and killed by the police.

Decision-making systems like the use-of-force continuum are directly linked to these statistics and yet, unfortunately, they are still the norm among many police departments in this country.

“We call them lawful but awful,” said Wilson.

“Lawful in the sense that they fit within the supreme court decision of Graham v Connor; awful in that the outcome is not what anyone wanted.”

The 1989 Supreme Court ruling in Graham v. Connor, declared that an officer’s use of force is considered constitutional if it would be considered reasonable, considering the facts and circumstances of the case, from the perspective of anofficer on the scene.

The Court added that this “calculus of reasonableness” must take into account that police officers often have to make split-second decisions, in often tense and unpredictable circumstances, about the amount of force that is necessary for any given situation.

“This reasoning is why cases where an officer is brought to court, or even faces charges, for a use-of-force incident are so rare,” said Wilson.

It is also why many police departments still function on a shoot-or-don’t-shoot principle, effectively drawing a line in the sand no matter the circumstances.

Using PERF’s training module and philosophy, Wexler and Wilson insist that officers can be trained out of these outdated─and dangerous─practices and come to understand that, in a lot of situations, there is another way of doing things.

“We say there are some situations where, rather than increasing the level of force, you use another option, you step back,” said Wilson.

However, while the ICAT program may represent the best tenets of a new and necessary national police training model, both men agree it can only succeed if it occurs alongside a simultaneously national, and equally necessary, shift in American police culture: changing the idea of police as warriors to, instead, peacekeepers.

Alex Vitale, professor of sociology and coordinator of the Policing and Social Justice Project at Brooklyn College, warns that changing policing’s war mentality might be easier said than done.

“There is a very toxic thin-blue-line ideology in American policing,” said Vitale in an interview with TCR.

“It has these components that say that the only thing that is holding society together is the constant threat of armed force, and that it’s the police that make civilization possible.”

Vitale points out that this “war” narrative is maintained on a political level, with police constantly being told by politicians that they are waging a war on crime, a war on drugs, and a war on terrorism and disorder.

All of this feeds into an accepted mentality that the only thing people will understand is brute force. And while he agrees that changes to training and ethos are, indeed, necessary, Vitale believes that effectively changing those things will be hard so long as the mission and scope of policing remains the same, especially when considering the most heavily armed and tactically trained branch of any department: SWAT.

“Look at what heavily armed SWAT teams actually do,” said Vitale.

“They’re not fighting terrorism, they’re not going after barricaded suspects, they’re not fighting off armored bank robbers, they’re serving low-level drug warrants in poor communities.”

The SWAT Toll

These paramilitary units are a representation of the popular, and ineffective, model of American policing. A 2017 examination by the New York Times revealed that thousands of these raids, in which officers issue warrants through forced entry into homes called “dynamic entries,” occur every year and that, while their toll has been mostly ignored by governments at all levels, they have continually led to avoidable deaths and multi-million dollar legal settlements.

The same piece reports that between 2010 and 2016, at least 81 civilians and 13 law enforcement officers have died in such raids. On average, most of the searches yielded little more than misdemeanor level stashes, or nothing at all. Despite these numbers and results, the Times found that 13 states have still enacted laws authorizing dynamic entries, and another 13 have “blessed them” through rulings by appellate courts.

“It’s gone a long way towards fostering the kind of military ethos in policing that has contributed to some horrible shooting incidents,” said Vitale.

Vitale also points out that SWAT forces are usually not required to complete any form of force reduction training at all. Instead, especially in smaller departments, they do exactly the opposite: receiving additional military grade hardware, worst case scenario training, and actually training with former military special forces units.

Elite units like SWAT are not the only ones contributing to the prevalent military narrative of policing in this country.

The very recruitment methods of many departments around the country utilize the same dialogue to draw in applicants. Recruitment videos for departments such as the Newport Beach Police Department are loaded with heart-pounding music, camouflage-wearing officers yelling and in pursuit of criminals, attack dogs, assault rifles, and fight training.

Even a video for Newport Beach Explorers, cadets aged 14-21, runs like an action movie and focuses intensively on weapons and tactics.

Frontier Mentality

This contributes to a cycle of violence that puts the lives of both civilians and officers at risk. In fact, a 2017 analysis by the Washington Post found that law enforcement agencies just having access to military hardware can lead to more violent behavior from its officers.

“It’s a frontier mentality,” said Vitale. “a Cowboys-and-Indians mindset.”

However, according to Sue Rahr, executive director of the Washington State Criminal Justice Training Commission, that mentality can be changed by altering the paramilitary environment that new recruits face from the moment they first step into the academy.

It can start with a simple change in decoration.

“When I first started, there was a display case at the lobby of the academy filled with police batons, handcuffs, and commendations,” said Rahr, in an interview with TCR.

“We replaced it with a mural of the preamble and Article I of the Constitution.”

In addition, Rahr got rid of the myriad of posters that continually warned and reminded recruits of the dangers of the job. While she strongly agrees that recruits must be made aware of the very real risks they may face, Rahr also warns that repetitive messages like these can further ingrain new officers with the false bias that they are stepping out into a war zone, one with enemies on all sides.

“It favors possibility over probability,” said Rahr.

A 33-year veteran officer and former chief of the Spokane Police Department, Rahr is all too familiar with the war narrative of policing that sprung up in the late 1970’s, with police seeing themselves as soldiers during a time of rising urban crime rates and the crack epidemic.

Changing the Military Mindset

However, she insists that policing is not the military, and has taken steps to move her academy from the traditional, boot camp style of the past, to something a bit more collegial.

“Before, recruits would snap to attention and salute their superiors,” said Rahr.

“Now they are expected to start a conversation, even a casual one.”

In addition, Rahr created the LEED model of training: Listen and Explain with Equity and Dignity. The idea being that people are more likely to cooperate with the police if they believe they are being treated fairly.

This type of environment reminds recruits that they must know how to talk to people and that this is one of the most important skills an officer actually needs to succeed at the job. Recruits are also given a copy of the constitution, further reminding them of their responsibilities to the communities they serve.

In the auditorium, an excerpt of Plato’s definition of “guardians” is emblazoned on the wall: In a republic that honors the core of democracy — the greatest amount of power is given to those called Guardians. Only those with the most impeccable character are chosen to bear the responsibility of protecting the democracy.

But while Rahr’s approach represents one of the most forward-thinking programs today, and has been embraced statewide in Washington, some among the criminal justice community remain skeptical, raising concerns that tactics like hers may put officers in greater harm’s way.

Is Restraint Always Healthy?

“There’s a real issue now about whether officers are being unnecessarily endangered and whether officers can protect themselves,” said Eugene O’Donnell, a retired and decorated NYPD officer and professor of Law and Police Studies at John Jay College of Criminal Justice, in an interview with TCR.

In addition, O’Donnell points out that there is possibly a larger question of whether officers are even inserting themselves into problem situations when necessary or are, instead, just avoiding them entirely.

“Police departments are being awarded gold medals for avoiding conflicts and I think that’s a real concern,” said O’Donnell.

This is best exemplified in New York, where a 2016 poll by the Patrolmen’s Benevolent Association found that 97 percent of 6,000 respondents believe that they might be demonized and condemned as “bad cops” for engaging in any sort of conflict whatsoever. For cities that have real public safety issues, O’Donnell feels that stigma like this can result in departments that are dangerously ineffectual and disengaged.

“It’s starting to become restraint above all else and restraint to an extent that it’s a danger to themselves and even other people if the police are unwilling to protect themselves,” said O’Donnell.

In fact, a 2017 survey by the Pew Research Center found that 76 percent of officers polled are reluctant to use force when it is appropriate, while 72 percent have become less willing to stop and question people who seem suspicious. O’Donnell also warns that, while new ideas about changing the culture and training methods in policing may be encouraging, they may also rely on what he calls a fantastical opinion of a recruiting pool that doesn’t exist.

According to an report by NBC News, police hiring is at an all-time low due to diminishing pay, high risk, and the recently popularized negative image of police in general. And while a 2017 report from the Bureau of Labor Statistics reports the growth rate for police and detectives at seven percent the national average, the bottom 10th percentile of an officer’s salary is still only roughly $35,000.

This is poor incentive for a job that ensures long hours, offers few to no holidays, and that recent FBI statistics have found to be increasing in danger.

“Policing is in an extremely bad place,” said O’Donnell.

These seemingly dire circumstances are only exacerbated when considering that many today feel, training or not, that police are taking on responsibilities beyond their capabilities, especially when it comes to dealing with the mentally ill.

“The police alone are not the right responders,” said Carla Rabinowitz, advocacy coordinator for Community Access, a New York based nonprofit that assists individuals with mental illness, in an interview with TCR.

Today, when a mentally ill person is in crisis, 911 is almost always the number called. And while the NYPD has embraced Crisis Intervention Training (CIT) tactics of de-escalation and conflict resolution, Rabinowitz warns that the challenges it faces may be indicative of broader problems.

“CIT is going well with the NYPD, but police have two problems: they’re not getting the newly trained CIT officers over to those calls and, under police protocol, the first officer on the scene takes the call, whether he has CIT training or not,” said Rabinowitz.

As Rabinowitz explains it, the average 911 calls can last anywhere from 17 seconds to four minutes. In that time, a crisis call has to be routed to a sergeant at the precinct where it occurs, that sergeant then has to find a CIT officer and move that officer over to the call. All of this takes time that she insists people in crisis often do not have.

“If you have to wait that time, police are not going to be there in time,” said Rabinowitz.

When and if officers do arrive, the current protocol of the first officer on the scene being in charge can often result in life threatening mistakes. This was the case in the shooting death of Dwayne Jeune, a mentally ill Brooklyn man wielding a bread knife, where, according to the Gotham Gazette, of the four officers who responded, the one without CIT training pulled the trigger.

Rabinowitz warns that even with CIT training, mistakes are made. Thus far, he notes, there has been little progress..

“The police started their training in June 2015. Two years after the training, from July 2017 to now, less than a year, there have been five deaths,” said Rabinowitz.

“Training alone is not going to do it.”

Co-Responding to 911 Calls

Instead, she points to cities like Denver, where co-response teams of officers and social workers are responding to 911 calls together, providing more opportunity for de-escalation and less risk of violence or death when confronting mentally ill individuals in crisis.

Rabinowitz and Community Access also advocate for the creation of diversion centers, such as those under Law Enforcement Assisted Diversion Bureau, as well as a similar program in Florida, that provide police with an option other than jail for those in crisis.

In New York, according to an article in The Observer, litigation has begun to establish a different phone number people can call for situations concerning mentally ill persons in distress, similar to 411, 911, or 311.

“The whole goal is to get these crisis calls out of the hands of the police,” said Rabinowitz.

However, while programs and practices such as these are necessary, they currently only exist in a very small number of states and communities, and when crises arise the public still turns to the police for help. A 2017 report by the NYPD estimated that it responded to roughly 400 mental health crisis calls a day, more than 12,000 a month.

In San Diego, mental health crisis calls have increased by 92 percent since 2009, according to an article by KPBS.org.

In the face of a failed mental health system, police are the only ones picking up the slack. That seems to be accepted stoically as something that does with the job.

The Camden Model

“Over time, police are going to wear many hats. It’s the reality of the profession,” said Lieutenant Kevin Lutz, deputy director of the Camden County College Police Academy, in an interview with TCR.

Since 2013, when the shift began, the Camden Police Department has embraced that reality, doing everything possible to become a department that their community can trust and rely upon for any situation.

At the academy, officers are trained to use guns and handcuffs as only a last resort, focusing instead on the de-escalation tactics and communication skills recommended by PERF ICAT initiative and used by major departments around the country.

For Lutz, just putting these methods into practice has led to a shift in mindset.

“Our officers today are a new breed. They’re proud to talk, to de-escalate, to be protectors instead of warriors,” said Lutz.

This change was exemplified in 2015, when Camden Police confronted a man brandishing a steak knife and threatening the patrons of a Crown Fried Chicken. When police arrived, the man was ordered to drop the knife, when he did not and began to walk away, instead of engaging in physical confrontation, officers simply followed him.

Forming a cordon around him, they cleared the street ahead and repeated the order until, eventually, the man conceded. The video of the incident exemplifies the best possible result for what this new change in police culture can, and should, yield.

Since then, according to The New York Times, the Camden police have continued to evolve their life-saving practices, recently mandating a new “scoop and go” policy, in which officers are required to drive gunshot victims to the hospital themselves, rather than waiting for an ambulance, if the situation demands it.

Officers walking the beat are required to knock on doors, introduce themselves, and establish relationships with community members.

“The department has become very transparent,” said Dan Keashan, Director of Communications for Camden City Hall.

“Lieutenants are on a first name basis with the community, and they all walk a beat.”

Since implementing these new practices and policies, Keashan reports that excessive force complaints have fallen from 65 in 2014 to only 15 as of 2017. According to a yearly report by Camden County Police Department’s Strategic Analysis Unit, the overall crime rates have dropped 23 percent since 2013.

And the department’s initiatives don’t stop there.

“Internal Affairs makes house calls to people who don’t even complain,” said Keashan.

“They go out and conduct surveys.”

Keashan explains that these surveys help the Camden County Police better serve their community and get back to the roots of policing, to the idea of the job as that of “public servant.”

Returning to that idea earned them the attention of President Obama in 2015, who touted the department as a “symbol of promise for the nation.”

“We’re putting out a good product,” said Sgt. Raphael Thornton, lead instructor for the Camden County Academy, and a 22-year veteran of the force.

“Officers who imagine themselves as peacekeepers.”

Isidoro Rodriguez

It is a “product” that serves as an example of the benefits that come with embracing and enacting this new mindset and culture of policing. And while officers like Thornton and Lutz agree that more programs and facilities are needed so that communities can one day have other options, both maintain that, until that time, police can and will be wholly capable of meeting whatever challenges may arise.

“If not us, then who?” asked Thornton.

Isidoro Rodriguez is a regular contributor to The Crime Report on policing issues. He welcomes comments from readers.

from https://thecrimereport.org

For These Returning Inmates, Rebuilding Lives Starts Behind Prison Walls

Bryan Kelley spent half his life behind bars. Now out of prison, he heads a Texas program that prepares inmates for the challenges of rebuilding their lives after they serve their sentences.

In April 2018, Bryan Kelley became chief executive officer of a Texas-based nonprofit, called Prison Entrepreneurship Program (PEP), that helps incarcerated people reenter society more easily once they’re released from prison.

Kelley, 52, was not a successful CEO looking for new challenges outside the business world; nor did he have rich experience with NGOs. He’s a convicted murderer who spent nearly half his life behind bars and was released from prison only four years ago.

It wasn’t too long ago, as he admitted, that he had never Googled anything, sent an email, used a cell phone, nor seen a debit card. “Prior to prison,” he told The Crime Report. “I was a terrible employee.”

Now, for those joining the program he leads, he’s an example of why a term behind bars doesn’t have to mean a lifelong sentence to invisibility and failure in civilian society.

Born in Ottawa, Kansas, Kelly’s early life was clouded by financial struggles and alcoholism within his family. His first of many arrests happened in his early 20’s, for unpaid traffic tickets. In 1992, Bryan was convicted of the murder of his cocaine dealer in what he calls “a drug deal gone horribly wrong.”

He was sentenced to life in Texas prisons and was first eligible for parole after just six years due to the state’s regulation at the time. However, the parole board wouldn’t consider him for release until he completed at least 20 years inside. In his 13th appearance in front of the board, he finally made parole—but turned it down.

Instead he asked for a transfer to another prison so he could participate in PEP.

“I knew what a unique experience it was going to be because I had served as peer educator for the program years before,” he said. “Going through PEP was worth another year in prison.”

Many people fail at the difficult task of remaking lives after prison.

According to various measures of recidivism rates, around two-thirds of all formerly incarcerated people are rearrested within three years of their release. Texas recidivism rates are fairly low compared to other states, but they are stable nonetheless: according to the latest Statewide Criminal and Juvenile Justice Recidivism and Revocation Rates report from January 2017, around 62 percent of the adults and juveniles who were released between 2011-2013 from a state jail were rearrested within three years, and 46 percent of those who were released from prison were rearrested.

These numbers aren’t mere statistics.

They represent lives and a lot of money. It’s well known that other than the moral problem embedded in such high incarceration rates, the issue is a financial one as well. You hear about bi-partisan efforts to address the problem, both at state and federal level. But what is really being done? What programs really work?

Last April, around the time Kelly began his new job, a Koch Brothers initiative for prison reform called Safe Streets and Second Chances launched a pilot project aimed at giving inmates the counseling and education they need before getting out of prison. The initiative has White House support, through the Office of American Innovation, headed by President Trump’s son-in-law Jared Kushner.

But the program’s administrators might borrow a page from PEP.

The program is highly selective. Recruiters focus on men and women who are within three years of their release, whether on parole or a full discharge. They can’t be sex offenders due to the tough restrictions imposed after their imprisonment, which make it hard for them to fit in the program. Those who show interest get application forms, which by themselves constitute a tough screening point.

Eighteen pages of questions cover the candidate’s full life history and beyond, including questions about the meaning behind their tattoos, gang history, childhood, sexual orientation and faith. Getting through it can have a dampening effect on an incarcerated person’s motivation to succeed.

And that’s just the first stage.

The inside program takes nine months, “just like the time it takes to create a child,” says Kristie Wisniewski, PEP’s chief of staff. It has a few phases, from re-building the person’s character to creating a business plan. As part of the program, businessmen and other volunteers visit the prisons and meet the participants to share their experience and give professional tips.

Last December, PEP accepted its first class of women in the Lockhart Unit, 40 minutes ride south of Austin. This first class was shorter than the men’s program, as the team of PEP still works on adapting the character development phase to women, so it included only the hardcore business parts.

The second class is scheduled to begin in July, and by then it will include the full curriculum.

PEP’s expansion to the women’s population couldn’t come at a better time.

According to data presented by the Prison Policy Initiative in the Beyond the Bars conference held in March at Columbia University, the incarcerated women population is growing. In some states, the women population grew sharply enough to offset the reduction in the number of incarcerated men.

Since 1978, the nationwide women’s state prison population grew 834 percent—more than double the pace of growth among men. In Texas while the men’s prison population declined by 6,000 between 2009 and 2015, the number of incarcerated women grew by 1,100.

Mock Interviews

On a warm cloudy Friday on the second week of March, Lockhart hosted one of its first mock interview events, one of the program’s highlights, with the 33 female graduates of the first class of PEP. About 50 volunteers arrived to help the women prepare for their job interviews outside. They were excited to see us and eager to impress.

Bert Smith, PEP’s CEO emeritus, said that so far they have found the women have more common characteristics with their male colleagues than differences. Due to the experience some of the women already have in business, however, he believes more of them will succeed outside.

We started our visit in the families’ visiting room, where Smith and the executive relations manager in Houston, Charles Hearne, briefed us on what’s expected. The room is wide and its walls are colorful, decorated with paintings of Disney characters, Sesame Street and Minions.

When we entered the prison itself it felt more like going back to elementary school than prison. Every other door led to a classroom in which a lesson was taught, including math, reading and writing and other things many of us consider basic. Empowerment slogans decorate the walls and the uniforms are colorful: pink for the kitchen workers, yellow for those who work outside, and the women in orange – not really the “new black”– are maintenance workers.

The hall where we conducted the interviews didn’t have tables— only chairs— so it provided a less formal and less intimidating atmosphere. In the corner of the room was an entrance to a small, completely new computer room and next to it a small storage space for musical instruments that are used in special occasions.

The women were charming and impressive. Though many were victims of abusive spouses, addiction or troubled parents, they all seemed to glow with pride and enthusiasm about the future.

Michelle, a mother of two in her early forties, told me about trying to stay sane in a place that can easily seem like to a Cuckoo’s Nest: “some girls let the time do them. I don’t want to become a product of my environment.”

Michelle was sentenced to five years for stealing from her employer and in the time of the event was going through her review period toward her parole hearing. She told me she does crosswords and logic riddles to keep her gray cells in shape.

Her struggle to maintain the essence of herself is a perfect representation to the difference between an incarcerated woman and an inmate. This is not merely a linguistic distinction; it’s a matter of character.

Kelley, for his part, continues to rebuild his life as a normal member of society. In a few months he will marry his fiancé, a certified public accountant, whom he met at church. In one of their first dates near a local lake she asked him if he feels comfortable telling her about his past.

He took out a little smooth stone he held in his pocket from their walk along the waterfront. He reached out to her hand and put the stone in it, saying: “every time I tell my story, it’s like I’m carrying around a heavy burden and I’m giving a little piece of it away. My burden is not as heavy as it was.”

Anat Kamm

Anat Kamm

That is where their relationship started.

Anat Kamm is a 2018 John Jay/Harry Frank Guggenheim Justice Reporting fellow. This article was produced for her fellowship reporting. Kamm spent over two years in an Israeli prison. Released on parole, she reports that she “was lucky enough to have an easy landing, thanks to my family who had both the means and the will to help me reintegrate into society.” She welcomes comments from readers.

from https://thecrimereport.org