The Unfinished Business of Juvenile Justice

Most states, with some notable exceptions, have raised the age at which youths are exposed to the adult justice system. But the harder task of improving services for troubled young people is still ahead, warns a Justice Policy Institute expert.

Lawmakers in New York, North Carolina, Missouri, and Texas are currently debating proposals that would move 16-or-17-year-olds (or both) out of the adult criminal justice system and into the juvenile court.

This development comes after seven states raised their age of jurisdiction over the past decade. In those states, as a result, half the number of youth who were previously automatically sent to  adult courts now appear before a juvenile court judge—an outcome which  increases the likelihood that a young person will move past delinquency, and avoid the abuse and harm youth can face in adult facilities.

The governors of New York and North Carolina support “raise the age” proposals.  Now, with a new report issued by the Justice Policy Institute, legislators have evidence that states which made the shift experienced improved public safety and youth-development outcomes, all without overwhelming their juvenile justice systems.

But even with these advances, no state “finishes” the process of building a more effective youth justice system simply by changing a law. Policymaking is an ongoing process of continued improvement and of adopting approaches that will help youth succeed.

For those states that have “raised the age,” and have managed the change without increasing juvenile corrections costs, the next phase of reform will involve revamping their “reinvestment” approach – and stepping up support to serve youth in the community.

There are a number of reasons why Connecticut, Illinois and Massachusetts served tens of thousands of more teenagers in their courts and corrections systems without seeing costs spike.  The juvenile crime decline that the latest national data says is continuing played a big role in helping these three states absorb new populations of youth without overwhelming the system, which should help persuade New York, North Carolina, Missouri and Texas to make the shift.

There is another reason why states that have already changed the age of juvenile jurisdiction were able to keep costs in check.  They took parallel steps to reduce reliance on the most expensive, least effective ways to address a young persons’ behavior.

The most effective youth justice system approaches are focused on serving more youth in the community and reallocating existing resources to support youth and their families at-home.  By diverting more youth from the courts, improving how probation and aftercare processes work, ramping up treatment for youth in the community if they need it, and using strategies to keep youth out of pretrial detention and youth facilities, youth justice systems can manage raising the age of jurisdiction while keeping corrections costs in check.

But unfortunately, just because facilities close it does not mean that all of the dollars saved are reinvested in strategies to help youth succeed.

Connecticut and Illinois raised the age for 16-or-17-year-olds (or both) in the past decade, and significantly downsized the deep end of their correctional continuum.  But in both states, cuts to children’s health, housing, education and workforce development threaten to undermine efforts to serve youth through the “right door”—through strong schools, mental health treatment if they need it, and by organizations staffed by people from young people’s own communities.  

As the Justice Policy Institute interviewed stakeholders in the states that led the raise the age trend, we heard that years of tightening budgets might mean cuts to youth-serving systems that could inadvertently undermine the very approaches that can reduce reliance on the most expensive parts of the youth justice continuum.

Youth corrections budgets—even probation and aftercare budgets—are relatively small compared to mental health, education, workforce development, human services and housing.  When a young person isn’t deeply involved in the justice system, other child-serving agencies coordinate resources, and harness multiple funding streams to address a young person’s needs in their community.

Taxpayers are already paying for an infrastructure to serve young people in the community.  Ideally, stakeholders who fund and run community based services outside of the justice system should coordinate with juvenile justice agencies to provide the support that young people need to make it less likely they will reoffend.

Research has also shown for a decade that youth are less likely to reoffend when they are served by the youth justice system rather than the adult system – something that will save us all money by curbing downstream crime costs.

The community-based approaches that were key to Connecticut, Illinois and Massachusetts avoiding a spike in costs as they raised the age are less expensive than confinement; but they are not free.

Jason Ziedenberg

Lawmakers in New York, North Carolina, Missouri and Texas should vote to raise the age this year. But after lawmakers celebrate the bill signing, they need to be focused on coordinating and supporting efforts to sustain the community-based approaches designed to address what any young person – justice involved, or not—needs to thrive.

Doing so will result in successful implementation of a move to raise the age.

Jason Ziedenberg is the Research and Policy Director of the Justice Policy Institute, a think tank dedicated to reducing the use of incarceration and the justice system by promoting fair and effective policies. He is a coauthor of Raising the Age: Shifting to a More Effective Juvenile Justice System. He welcomes readers’ comments.



Correcting America’s Bail Crisis Isn’t Out of Reach

On any given day, there are about 450,000 people in jail who haven’t been convicted of anything–at an estimated cost to taxpayers of $38 million a day. These men and women sit in jail because they don’t have the money to get out. It’s time to change the system.

On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day.

Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.

Bail is an age-old tool that allows judges to release defendants pending trial by requiring them to post a certain amount of money as a way of ensuring they’ll return to court. To make bail, defendants post collateral, pay the amount in cash or get a bail piece—insurance policy—from a bail bond company, which typically charges a 10 percent fee.

Let’s do the math.  Mr. Smith gets arrested for assault.  The court sets his bail at $1,500.  The bail bond company needs $150 to post Smith’s bail.  Smith doesn’t have it, so he sits in jail for 75 days awaiting trial.  Smith pleads guilty and is sentenced to time served and released.

Because Mr. Smith didn’t have $150, taxpayers shelled out $85 a day for a whopping $6,375.

Bail serves two purposes: To guarantee that defendants appear for court; and to protect the public from those who are a potential threat.  Proponents of cash bail say the money to post bail often comes from family members, and serves as a deterrent to fleeing.

Bail is not punitive. Although violent crime rates are at historic lows, the Trump Justice Department has made violent crime a top priority.  Attorney General Jeff Sessions would do well to be smart, as well as tough, on crime.  A first step might be setting aside funds for states who commit to reexamining pretrial detention.

A recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid.  More than 25 percent of that money was paid by people who were acquitted or never faced trial.

Last fall, Maryland Attorney General Brian E. Frosh told members of the House of Delegates that judges and court commissioners must take into account the accused’s ability to pay before setting bail. According to the Baltimore Sun, Frosh said that if bail is out of reach for a defendant, the courts would find that unconstitutional.

Two years ago, New Jersey voters changed the state constitution to implement a new bail system that focused on expanding assessments of defendants to determine whether they should be released.  The New Jersey Bail Reform and Speedy Trial Act went into effect in January.  The new law will rely on a computerized risk assessment tool to make bail decision and is expected to reduce costs and significantly reduce the state’s jail population.

In New York City, Mayor William de Blasio earmarked $17.8 million to supervise 3,000 defendants in the community who are awaiting trial. The “supervised release” initiative permits judges to release defendants to a supervisory program that allows defendants to remain at home with their families and continue working while awaiting trial.

Those awaiting trial represent 63 percent of the total jail population.  Less than four out of 10 men and women sitting in county and local jails are actually serving a sentence. Those sitting in jail not serving a sentence drain about $14 billion a year from public coffers.

America’s bail system has become a central issue in the fight to reverse mass incarceration. According to NBC News, in courthouses, statehouses and ballot boxes across the country, civil rights lawyers and progressive policymakers are working to curb the practice of demanding money in exchange for freedom before trial.

“The nation needs to reform its bail system. But it’s not as simple as saying, ‘Eliminate cash bail,’ ” Kevin Burke, a Minnesota district judge and past president of the American Judges, Association told Stateline.

According to Burke, judges only get a few minutes to assess a defendant’s case, and often judges set bail without knowing the full circumstances.

“The fear (they have) is ‘I’m going to let somebody go and they’re going to go out and do something terrible, or they won’t come back, so I’ll set bail,.’”  Burke said.

The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes, and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute on pretrial incarceration, which amounts to about six percent of the Gross Domestic Product.

According to the White House Council of Economic Advisers, the use of bail has exploded in the past two decades, driving a 59 percent rise in the number of un-convicted jail inmates.

Matthew T. Mangino

Correcting America’s bail crisis is not out of reach.  This isn’t about being tough on crime.  It’s about being fair.  For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling.

If the cost of pretrial detention could be cut in half, taxpayers could save $7 billion a year. In these challenging economic times those dollars are difficult to ignore.

.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino. He welcomes readers’ comments.





Police Deflection: The Screen Door at the Front of the Justice System

Confronted with people clearly in need of treatment and social services, law enforcement officers need a way to respond, because they know they’ll see them again. A new approach gaining traction across the country offers “a public health approach to better public safety.”

Law enforcement officers know the routine well. They encounter someone who has a drug addiction or a mental health problem. Sometimes they stop the person for a low-level offense, such as drug possession, petty theft, or vagrancy.

Sometimes this might mean arrest, but often it means not being able to do anything.

If an arrest is made and the person is prosecuted, then very often, he or she will be arrested again and the cycle continues.

Confronted with people clearly in need of treatment and social services, law enforcement officers need a way to respond, because they know they’ll see them again. Confronted with violations of the law, officers cannot simply ignore what’s happening.

But continually arresting individuals for low-level offenses only exacerbates problems. As officers have said for decades, “we cannot arrest our way out of social problems.”

What if officers had a third option?

Increasingly, in jurisdictions across the country, they do.

They do in Tallahassee, Florida. In Gloucester, Massachusetts. In Lucas County, Ohio; Montgomery County, Maryland; and Seattle, Washington. These are some of the more than 250—and counting—jurisdictions across the United States that are part of rapidly emerging criminal justice efforts that collectively are called “deflection.”

Deflection is a term coined in 2014 to represent a broad range of alternatives that take place as part of law enforcement’s decision-making before an arrest is made. Existing deflection initiatives may include pre-arrest or pre-booking diversion, law enforcement diversion, and police-assisted diversion.

Deflection involves a different approach than prosecutorial or court-based diversion, where a person already faces criminal charges and is subsequently moved out of the system. It is defined as moving a person away from the justice system and toward community behavioral health and social services without ever being arrested and processed into the criminal justice system.

Deflection is a public health approach to better public safety.

Earlier this month, the Center for Health and Justice at the Chicago-based nonprofit called Treatment Alternatives for Safe Communities (TASC) and the Civil Citation Network co-convened the first-ever National Deflection Summit in Alexandria, VA.

The summit brought together 45 leaders representing law enforcement, behavioral health, research, and public policy partners. Among the participants were “brand name” deflection programs, including Adult Civil Citation, the Angel and Arlington models (part of the PAARI network, the largest number of deflection sites in the country), LEAD (Law Enforcement Assisted Diversion), and STEER (Stop, Triage, Engage, Educate, and Rehabilitate).

The summit involved an exchange of experience, insights and thoughts about deflection, including how deflection can be used in confronting the opioid crisis. At the conclusion of the summit, it was decided to move forward together—law enforcement, treatment, researchers and partners—to provide national vision, leadership, voice and action regarding deflection.

Accountability Without Arrest

Drug use and mental health issues are the major drivers of criminal justice involvement.

Deflection identifies and treats these underlying issues as a health issue first, and public safety event only when they present a real risk to others’ well-being. Through this approach, encounters with law enforcement involve screening to determine who may be deflected to services before an arrest is made and without locking people up.

This real-time sorting is done by officers and behavioral health experts based on the person’s own desire to receive help, behavioral triage, or if criminal charges could be brought, it might involve their risk to re-offend and identified treatment needs. If deflected, there are no criminal charges filed and many deflection initiatives do not require criminal charges even be present in the first place.

Early deflection programs show promising results. For those communities that have practiced pre-arrest diversion to treatment for several years, the rearrest rates for those receiving behavioral intervention services have significantly decreased.

Beyond these early initiatives, there is now a sizable expansion of programs that connect law enforcement to community-based treatment, and that paradigm shift can transform the front door of the justice system. When deflection is scaled using universal screening, referral, and intervention/treatment, the numbers of individuals entering the justice system should drop —assuming the availability of sufficient behavioral health services in the community.

Through expanded use of deflection, law enforcement could become the largest referral source to behavioral health and social services in U.S. criminal justice history.

Deflection makes every law enforcement officer a potential pathway to behavioral intervention services, drug treatment, mental health treatment, and social services when called for. Based on the street-level experiences of police officers who see the same drug users and people with mental illness daily on their beats, and know an arrest will do absolutely nothing to solve the situation, deflection adds to the justice system something new.

A screen door.

By reshaping the American criminal justice system so that it holds only those deemed a danger to society, we will achieve a system that is more nimble, agile, and able to focus on addressing offenses that present a real risk to public safety.

This new type of American justice will be able to systematically focus its full attention, resources and efforts on a smaller number of the most dangerous criminals, most urgent public safety challenges, and most intransigent crime issues, while also providing more support for victims of crime.

Perhaps one of the most timely, though not initially obvious, outcomes is improved police/community relations.

Surveys of officers often show that one of the reasons they joined the profession was to help people. Deflection gives law enforcement departments the opportunity to provide and train officers to use an effective alternative to arrest that has a positive outcome.

And the community will see law enforcement repeatedly doing much more than arresting, by truly understanding what residents and their loved ones may need: A place to stay, treatment, or a real shot at a job.

Jac Charlier,  a national expert on police deflection and criminal justice systems-change initiatives, is National Director for Justice Initiatives at the Center for Health and Justice at TASC. He welcomes comments from readers.



Getting Away With Murder: The National Crisis of Cold-Case Homicides

The murder rate in 2016 was up nationally. But that’s not the worst of it. The unsolved rate of homicides is also on the rise, and that means every year, there are more people who get away with murder than the year before.

The murder rate in 2016 was up nationally. But that’s not the worst of it. The unsolved rate of homicides is also on the rise.

That means every year, there are more people who get away with murder than the year before.

Between 1980 and 2014, according to data I compiled from the FBI’s annual Uniform Crime Reports (UCR) and the Bureau’s Supplemental Homicide Reports, we accumulated well over 230,355 unresolved homicides.  Nationwide, police agencies on average clear—where an arrest is made—about 62% of the cases, which means that over one third of those cases remain unsolved.  Sadly, for 2016, there are indications this clearance number will drop below that percentage to its lowest in our nation’s history.

This isn’t justice. It is also not good for public safety.

Those who kill will continue to commit violent crimes, perhaps even more homicides, until they are arrested and convicted.  At the same time, relatives of the victims will continue to suffer as long as those who took their loves ones from them remain unidentified and un-caught—a population that is likely to grow.

That’s why authorities must make resolving these cold cases as much of a priority as solving the “hot” ones. If we are going to successfully address this problem, we cannot do just one without the other.

The national figures for unresolved homicides are alarming, but they look even more disturbing at the local level.  To take some random examples, listed by order of magnitude:

  • Chicago—9,757
  • Detroit—7,500
  • Washington DC—3,884
  • Philadelphia—3,392
  • Phoenix—2,136
  • St Louis—1,629
  • Memphis, TN—1,480
  • Birmingham, AL—1,364
  • Nashville—1,213

And these just reflect the figures for 1980-2014. The nationwide numbers continued to grow in 2015 and 2016.

Focusing on the problem of open homicide cases means that law enforcement leaders must first identify the unresolved homicides still on their books. That seems obvious, but in fact, many police chiefs have no idea how many cases exist in their jurisdiction.

Yes, you read that correctly. How can this be the case?

First, they are concentrating their efforts more on the present than the past. Smaller agencies might justifiably claim they are constrained by budget or staffing issues, but for the larger ones cold cases just do not have the same priority as more recent homicides.

In fact, avoiding the cold cases only makes their problems worse.

Second, they also must come to understand that by resolving cold cases they will in turn take bad actors off the streets who are committing other crimes. This is accomplished by creating a dedicated cold case team trained on how to properly conduct a cold case investigation.

A dedicated cold case team is defined as a team that does nothing else but investigate unresolved homicides.  The team members should not be introduced to—or brought in— to investigate the hot cases that occur on a regular basis.

Finally, the over-reliance on technology can actually impede quick resolution of these cases.  Research suggests that good, old-fashioned detective work can solve more cases than resorting to poring over physical evidence like DNA.

Cold case detectives tell me that if there isn’t a DNA “hit” or other evidence that comes back from their crime laboratory which is positive for the identification of a perpetrator, then the case is not pursued further.

Have our officials bought into the CSI effect? This type of approach is wrong and it’s making the matter worse.  Technology is no silver bullet. If it were, we would not be suffering the huge backlog of unresolved murders that we face today.

For the sake of justice, and the surviving family members, we should demand that our police agencies properly address this problem with dedicated cold case teams that have received specialized training into the nuances of investigating decades old homicides.

If they don’t, the unresolved homicides and an untold number of surviving victims will continue to increase by the thousands each year.  It’s a national crisis that can no longer be ignored.

James M. Adcock, PhD, a retired US Army CID agent, and a former Chief Deputy Coroner, has spent the past 19 years specializing in cold case homicides by training law enforcement, researching, and reviewing cold cases for agencies around the U.S.  He has written two books one on Cold Case Investigations and the other on Death Investigation, both second editions.  Last month, he presented the results of a 15-month study on the status of unresolved homicides to the American Academy of Forensic Sciences. He welcomes comments from readers.






The Immigration Crackdown: When Pragmatism Trumps Ideology

Alabama’s Etowah County has partnered with the federal government’s immigration enforcement policies under the 287(g) program since 2008. But the record of Republican Sheriff Todd Entrekin suggests he may not follow the tough policies now advocated by pro-Trump hardliners. In a fourth article of his series, John Jay researcher Daniel Stageman explains why.

Last month, President Donald Trump held a  “roundtable”’ with county sheriffs, culled largely from the leadership of the National Sheriffs’ Association. As an early endorser of the Trump campaign, the association and its membership roll of elected sheriffs from largely rural counties across the nation have made highly visible efforts to align themselves with the new administration.

This puts them in the company of rank-and-file police unions like the Fraternal Order of Police—and at odds (on several issues including immigration) with police leadership organizations like the Major Cities Chiefs Association and International Association of Chiefs of Police.

None of the ten sheriffs named in the official transcript oversee jurisdictions with the so-called 287g agreements that allow state and local law enforcement agencies to enter into an agreement with the U.S. Customs and Immigration Enforcement (ICE) agency to enforce federal immigration laws.

Two of the sheriffs mentioned in the lead-up to the event—Sandra Hutchens of Orange County, CA (profiled in an earlier column),  and Daron Hall of Davidson County, TN—do hold current 287g agreements. Regardless of whether Hutchens was present at the sheriffs roundtable or not, Trump made a point of thanking her by name in his remarks to the Major Cities Chiefs Association earlier in the day.

Maintaining close ties with loyal supporters at different levels of government appears to be a characteristic feature of Trump’s approach to governance.  So it will be important to watch closely the implications for immigration enforcement where these political connections are mirrored by administrative links like 287g.

Alabama’s Etowah County has held contractual relationships with ICE (and its predecessor the INS) dating back to its first detention agreement in 1998. Its 287g agreement, though a more recent endeavor, dates back at least to 2008.

These administrative links do not, however, appear to be mirrored by political ones.

Etowah County Sheriff Todd Entrekin was in fact an early supporter of (relative) immigration moderate Marco Rubio. Nevertheless, it’s worth adding his county to this continuing series of “Jurisdictions to Watch” on immigration enforcement against the background of the Trump Administration’s efforts to enforce the 287(g) program and step up deportations of undocumented immigrants.

While Etowah County does not appear to have started deportation proceedings for a significant number of immigrant arrestees under its 287g program, it has processed large numbers in proportion to its small overall population and even smaller immigrant population.

For immigrant advocates,  Etowah County is an important jurisdiction because of this exception, rather than in spite of it.  It presents an opportunity for engagement on issues of public safety that is unusual in 287g jurisdictions nationwide.

Sheriff Todd Entrekin. Courtesy Etowah County Sheriff’s Office.

Sheriff Entrekin is a Republican serving what appears to be a highly conservative Alabama constituency. But he does not appear to be an ideologue.

Rather, his decision-making regarding immigration enforcement appears to be a pragmatic outgrowth of his agency’s long standing role as an immigrant detention provider. The available evidence suggests that Entrekin recognizes the importance of open communication between immigrant communities and law enforcement, which suggests a public-safety orientation more typical of law enforcement executives in larger cities than elected sheriffs.

Here, following the outline of previous articles in this series, is an analysis of  Etowah County.

Etowah County, Alabama

SHERIFF: Todd Entrekin

Entrekin, a Republican, was first appointed Sheriff by then Alabama Governor Bob Riley in 2007, following the death of his elected predecessor, James Hayes. Entrekin has since won reelection twice, in 2010 and 2014. He has been an outspoken supporter of both 287g and Secure Communities, testifying before congress in support of both programs in 2011. This support does not appear to extend to the nativist political posturing adopted by some elected sheriffs, however: in his testimony regarding Alabama’s restrictive anti-immigrant 2011 state legislation, HB 56: Entrekin testified that the law “would not only burden local law enforcement in a negative fashion, it would burden other social services as well.”


There were 63 in 2012, a number considerably smaller than the thousands processed in many other 287g counties, but proportionately significant for Etowah County’s low population (about 104 thousand residents, 3.3% of whom Hispanic or Latino).


The Etowah County Detention Center, with a capacity of 357, occupies an $8 million wing of the Etowah County Jail. In 2003, the Immigration and Naturalization Service (INS) funded this expansion directly in order to outfit the facility to house long-term detainees.

Despite this investment, conditions at the facility have long been considered problematic, sufficiently so that ICE announced the facility’s closure in 2010 (an effort that was halted by the political intervention of local representatives) and it was featured by the Detention Watch Network in its 2012 Expose & Close series as one of the “worst in the country.”


The Etowah County Jail held an average of 341 immigrants on any given day throughout 2012. Per diem/per detainee compensation was $45 in 2015 – consistent with rates at other Alabama facilities but among the lowest in the nation overall. Gross receipts for detention in Etowah thus exceed $5 million ($45 x 341 detainees x 365 days = $5.6 million).

However, Etowah’s IGSA details compensation for additional services such as transportation that have the potential to add significantly to this total. A very small proportion of this total – about $170 thousand ($45 x 63 processed for deportation x 60 day average stay), or around 3% –  could potentially be attributed to enforcement activity under 287g.


As detailed above, 287g enforcement in Etowah County appears largely to be an outgrowth of the relationship established in 1998 with a detention contract, possibly reflecting a desire at the time of its original signing for closer ties to shore up the deteriorating status of the troubled Etowah County Detention Center.

Having neither a significant undocumented immigrant community, nor (as one of the smallest and most densely populated counties in Alabama) a significant agricultural economy that might attract non-resident immigrant laborers, Etowah’s 287g program would be equally difficult to justify as a response to a clearly defined crime problem within an immigrant community, or to postulate as a cynical attempt to increase detention numbers.


 Etowah County’s approach to 287g enforcement raises essential questions about the tools that advocates have at their disposal to directly address the relationship between federal immigration enforcement and local law enforcement agencies nationwide.

The clearly problematic conditions for long-term detainees in the Etowah County Detention Center are an issue for another context; setting them aside, we can perhaps recognize Sheriff Entrekin as a pragmatic decision-maker, managing an inherited relationship with significant budgetary implications for his agency and jurisdiction overall.

It is important for advocates to recognize the potential presented by a pragmatic sheriff who appears to prize evidence-based public safety concerns over ideological posturing. Credible messengers in a position to promote evidence-based public safety policy among elected county sheriffs are few and far between.

This is in sharp contrast to law enforcement leadership from major cities: while it remains to be seen what impact the outspoken support for evidence-based public safety policy among the latter will have on federal law enforcement policy, they have at least set a precedent for engaging directly and publicly with the Trump administration on its law enforcement agenda.

To date, there is no parallel engagement effort on the part of elected county sheriffs.

Indeed, the National Sheriffs’ Association appears more interested in treating the administration’s first 100 days as a prolonged victory lap than engaging on general or specific issues related to an evidence based public safety agenda.

How will 287g enforcement play out in a jurisdiction like Etowah given this context? Will it reflect the kind of outreach Sheriff Entrekin has recently made to the immigrant community in his jurisdiction, and if so, does this indicate the potential for direct engagement with Entrekin around the public safety implications of the Trump administration’s intended approach?

For some pro-immigrant advocacy organizations, any goal short of ending local police involvement with immigration enforcement will be insufficient. Nevertheless, the value of any “credible messenger” within the ranks of the nation’s county sheriffs can hardly be overstated, especially one who might make a case for setting prudent limits around the use of immigration enforcement as a public safety tool.

Daniel Stageman

Whether Sheriff Entrekin has this potential remains to be seen, preferably through the lens of a more thorough local investigation.

Daniel L. Stageman, PhD is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at dstageman(at) His last article in this series, an analysis of Frederick County in Maryland, was published on TCR March 2. on  Dan welcomes readers’ comments.


The Immigration Crackdown: Can Grassroots Resistance Temper Ideology?

In the third article of a series exploring how local jurisdictions will be impacted by stepped-up enforcement policies against undocumented immigrants, a John Jay researcher examines the “bellwether” Frederick County in Maryland, where a hardline sheriff contends with political opposition.

Federal policy on interior and border immigration enforcement is moving quickly. What I had originally envisioned as a set of “jurisdictions to watch” is fast becoming a set of templates for imagining the range of possible approaches to enforcement under the proliferation of new 287g agreements that seems likely to arise under the DHS’ stated intention to pursue them aggressively.

In earlier essays for The Crime Report, I examined the challenge facing immigration activists who oppose the new policies, and focused on Orange County in California.

The leaked February 17th enforcement memo  written by Homeland Security Secretary John Kelly (and later released officially ) leaves us with a great deal of unanswered questions,  primarily centered on the agency’s specific plans for implementing the broad strokes of Trump’s January 25th executive orders.

While the Kelly memo is less sensational than the earlier leaked memo detailing plans to utilize National Guard troops to support enforcement activity in a handful of Western states, its contents have the potential to be every bit as momentous.

If not more so—since they are relatively easy to put into effect.

Perhaps the most momentous statement in the memo (and the competition for that distinction is indeed sharp) comes early on, in the first sentence under Section A.

The President has determined that the lawful detention of aliens arriving in the United States or otherwise described in section 235(b) of the Immigration and Nationality Act (INA), pending a final determination of whether to order them removed, including determining eligibility for immigration relief, is the most efficient means by which to enforce the immigration laws at our borders.

Hiding within this seemingly innocuous statement is an explicit mandate for an unprecedented expansion of the nation’s detention infrastructure, an expansion likely to bring back online every prison bed (and then some) emptied in the painstaking nationwide efforts to reduce mass incarceration.

It is likely to have even more profound effects on parallel efforts to reduce jail populations as well.

This effect may well be most keenly felt at and near the U.S.-Mexico border, where the ending of Customs and Border Protection’s longstanding “catch and release” policy will result in the immediate introduction of an entirely new population into detention. It remains to be seen how much additional bed space will be required in short order to make these new policies a reality, but we can safely make a few assumptions:

  • The vocally pro-enforcement ranks of front-line ICE agents (and their CBP colleagues) will begin enforcement of these policies with a zeal in marked contrast to the resistance with which they met the Obama-era discretion policies that the Kelly memo rescinds in their entirety;
  • The budgetary requirements of this immediate expansion of detention space will require congressional attention (whether in the overall annual budgetary process or an emergency allocation specific to the administration’s immigration enforcement priorities); and
  • The expansion will result in a bonanza for private/for-profit detention providers and administration-friendly local jail authorities alike.

Numerous commentators have singled out the important role local authorities like elected prosecutors  play in maintaining the momentum of criminal justice reform efforts in the Trump era. The importance of elected county sheriffs to the future of immigration enforcement is a significant parallel.

Frederick County in Maryland may be a bellwether.

The recent history of the jurisdiction and its outspoken longtime sheriff, Charles A. “Chuck” Jenkins suggests why. A random sampling of recent news reports on Jenkins, the Frederick County Sheriff’s Office, and its approach to immigration enforcement might give the casual observer highly contrasting ideas about the purpose and effects of its 287g participation, depending on whether one turned up the news of the department’s recent outreach to Hispanic community groups, or the criticisms of some of those same community groups regarding its patterns of enforcement.

A more systematic examination of Sheriff Jenkins’ public statements on immigration, however, reveals him to be an immigration ideologue. His April 19, 2016 public testimony before the House Judiciary Committee makes that clear:

The effectiveness and value of local law enforcement partnering or at least simply cooperating with ICE is beyond measure to local public safety. Failure to cooperate and detain known criminal aliens for ICE has led to American citizens being killed, wounded, injured, and sexually victimized in jurisdictions everywhere. […] It is my belief that if this Congress and the next President do not take action to close and secure the border with Mexico and simply enforce the federal immigration laws that exist, every county in America will become a border county. [emphasis added]

In sharp contrast to the more measured, evidence-based, public safety-oriented approach position outlined by Sheriff Todd Entrekin of Etowah County, Alabama (as profiled in my last entry), Jenkins chooses to align his public stance with the absolutist language (“everywhere”, “every county”) deployed by President Trump throughout his campaign, constructing the narrative of an immigrant crime-wave.

That is  wholly unsupported by evidence, but it signals a commitment to nativist ideology and the policy priorities that accompany it. This contrast adds important context to the key characteristics that qualify Frederick County for inclusion in this series:

  • All the “Jurisdictions to watch” covered in my analyses have operated consistently under the same chief executive since before the Obama administration’s efforts to reform 287g. In most cases, this means that the same individual who signed the jurisdiction’s first 287g memorandum of agreement is still making the relevant executive decisions about involvement in immigration enforcement moving forward.
  • They are (with few exceptions) county law enforcement agencies headed by elected sheriffs;
  • They have started deportation proceedings for significant numbers of immigrant arrestees under their 287g programs in the past;
  • They have clear incentives for directly involving their officers in immigration enforcement. While these incentives are often political, they are often financial as well, with direct income and/or indirect ‘economic activity’ arising from close ties to private/for-profit immigrant detention facilities located within the jurisdiction, and/or Intergovernmental Service Agreements (IGSAs) under which ICE pays the jurisdiction a per-day fee to detain immigrants in the local jail.

Frederick County fulfills all four of these criteria.

A scenic view of Frederick County. Photo by Preservation Maryland via Flickr

Even while posting 287g processing numbers that appear moderate next to some of the larger, more immigrant-heavy jurisdictions under review. Frederick County is a potentially important jurisdiction for immigrant advocates because of the possibilities that it raises for working with other levers of local political power to keep in check the worst impulses of a sheriff who is apparently approaching 287g enforcement under the assumptions of nativist ideology.

While learning Republican, Frederick County is not necessarily an ideological stronghold. Sheriff Jenkins’ support there, while widespread, is not universal. Perhaps more importantly, Frederick County transitioned in 2014 to a County Charter Government, meaning an elected County Executive – currently Democrat Jan H. Gardner – holds approval power over his budget.


SHERIFF: Charles A. Jenkins.

Jenkins, a Republican and public supporter of the far right Tea Party movement, was first elected sheriff in 2006—in part on the strength of campaign promises to ‘crack down’ on unauthorized immigrants – following the retirement of his predecessor James W. Hagy.

Jenkins followed through on those promises with the signing of Frederick County’s first 287g agreement in 2008, and has since won reelection twice, in 2010 and 2014. An early supporter of Trump’s presidential campaign, Jenkins has frequently commented  since the election on the 287g program, on local law enforcement detainer policies, and on the Trump administration’s approach to ‘sanctuary cities’.

Thus far, he has been careful to distinguish his department’s jail-enforcement agreement from the street-based, task-force agreements rescinded by the Obama administration in 2012, stressing that his officers do not engage in “show me your papers”-style enforcement. It will be interesting to know if his rhetoric on this distinction changes once the renewal of 287g task-force agreements is a matter of public DHS policy.


138 in 2012—a number just into three figures and lower than many other 287g counties but proportionately significant for Frederick County’s population of 245 thousand (8.7% of whom Hispanic or Latino). Also of particular note is the statistic in the Frederick County Sheriff’s Office 2012 Annual Report stating that, of the 1,136 detainers lodged in the program’s history up to that point, only 9.5% (108) were “encountered and arrested for felony offenses.”  The figure throws into question Sheriff Jenkins’ repeated statements about not engaging in street arrests on the basis of immigration status.


The Frederick County Detention Center appears to be a purely administrative distinction applied to immigrants detained in the Frederick County Jail, among its general population bed capacity of 348. Its average daily population (ADP) of 54 immigrants would thus account for some 16% of the jail’s general population, or 12% of its total population of 439.


The Frederick County Jail held an average of 54 immigrants on any given day throughout 2012. Per diem/per detainee compensation was $83 in 2007 . Assuming a 3% annual increase and consistent ADP, a conservative estimate of 2016 gross receipts for detention in Frederick County would be $2.2 million ($112 x  54 detainees x 365 days).  A significant proportion of this total, about $930,000 ($112 x 138 processed for deportation x 60-day average stay)—or around 42%—could potentially be attributed to enforcement activity under 287g.


As detailed above, Frederick County entered into its current 287g enforcement agreement in 2008, fulfilling Sheriff Jenkins’ campaign promise to do so. Assuming its growing population of immigrants from Mexico and Central America features a proportionately growing undocumented community, the political/ideological value of Jenkins’ vocal anti-immigrant stance could well be rooted in the anxieties of the county’s core voting demographic of longtime white residents in reaction to the changing character (rural to suburban, agricultural to residential, growing diversity) of the community.

Jenkins’ 63% 2014 reelection victory, despite the controversies dogging his department in prior years, would seem to bear out this view.  Indeed, Jenkins himself attributed his victory to “old Frederick”.


Frederick County bears a very different demographic profile from the overwhelmingly white, overwhelmingly Republican, Etowah County, making it impossible for Sheriff Jenkins to pursue an aggressive approach to 287g enforcement in a vacuum.

The vocal support the Sheriff’s immigration enforcement activities received from the prior County Commissioner have not been matched by the current elected County Executive; and if immigrant detention in the Frederick County Jail has significant budgetary implications for the Sheriff’s Office and the County overall, so do the liability concerns raised by enforcement activity rooted in profiling.

Jenkins has not signaled a willingness to take on the perspective of a law enforcement professional to discuss the evidence-based merits of immigration enforcement as a public safety tool. Thus, the levers available for preventing or mitigating the harm likely to be caused by a ramped-up approach to 287g enforcement in Frederick County are distinct from the kinds of approaches that might bear fruit with a less ideological actor like Entrekin.

These approaches are legal and political.  They rely on the reality that Jenkins is not a fully independent decision-maker in his role as Frederick County’s chief public safety officer. Consistent pressure on Frederick County’s budget, and the political fortunes of its elected decision-makers, may serve to rein in the darker impulses of an ideologue like Jenkins, who would otherwise appear likely to take the freest possible hand allowable under the Trump administration’s new approach to local immigration enforcement.

Daniel Stageman

Daniel L. Stageman, PhD, is Director of Research Operations at CUNY John Jay College of Criminal Justice. He is also a criminologist whose scholarship focuses on making sense of America’s punitive approach to immigrants. He can be contacted at Readers’ comments are welcome. This is the second in his series of profiles of “jurisdictions to watch” on local immigration enforcement under the new policies promulgated by President Trump’s January 25th executive orders. Next up: Alamance County, North Carolina.




Can Policing Really Change? Ten Lessons From the DOJ’s ‘Pattern or Practice’ Bias Probes

The Justice Department’s program to investigate local police departments for bias and other violations of constitutional rights is 20 years old this year. One of the nation’s leading experts on policing draws 10 encouraging lessons from the story so far.

The Justice Department “pattern or practice” program to investigate local police departments for violations of constitutional rights is 20 years old this year. There have been 30 settlements with departments since the first consent decree with Pittsburgh in 1997.

It’s therefore an appropriate time to assess the program’s  impact. What has it achieved? Has it effectively reduced police misconduct?

Has it been cost-effective?

Samuel Walker

Here are 10 quick lessons I’ve drawn from my own research as well as from the 20-year report published by the Civil Rights Division of the Department of Justice in January.

1.Consent Decrees Represent an Historic Attempt to Identify Roots of Police Misconduct

The pattern-and-practice program has been an unprecedented event in American police history. Never before has the Justice Department undertaken such an intense scrutiny of local departments for the purpose of ending systemic abuses, and reducing—if not eliminating—racial and ethnic disparities. Because of the Civil Rights Division’s broad investigatory powers, it has been able to identify the underlying causes of police misconduct. The investigation into Ferguson, Missouri, for example uncovered the shocking evidence that the city pressured the police department to generate revenue government operations.

2.They’ve Been (Generally) Successful

Evaluations of several departments have found that consent decrees have generally  been successful in achieving their goals. A Harvard evaluation of the consent decree involving the Los Angeles Police Department (LAPD)found the LAPD “much changed,” and “quality and the quantity of [law] enforcement activity have risen substantially” because of the consent decree. Evaluations of the LAPD by racial and ethnic minorities had improved. That is quite an achievement for a department with a long history of racial controversy. True, there has been backsliding in some departments, but in no case has a DOJ settlement completely failed.

3.But Are They Sustainable?

Serious questions remain about whether court-ordered reforms are sustained over the long-term. In Pittsburgh, for example, a new mayor with close ties to the police union promptly fired the reform-minded chief, and police practices began reverting to their own ways. The sustainable issue is extremely important, and cannot be ignored. If the reforms cannot be sustained, then the whole effort has not been worth it. The evidence, I think, points to a guardedly optimistic view: cases of documented success and no cases of complete failure.

4.The Organization is the Problem

The DOJ program consolidated the view, already developing among police experts, that establishing professional and constitutional policing requires systemic organizational reform. The report on the Albuquerque police department found that “the use of excessive force by APD officers is not isolated or sporadic. [It] stems from systemic deficiencies in oversight, training, and policy.” All the reports on other departments reached the same conclusion. In short, officer misconduct is not the result of the proverbial “bad apples” but of systemic poor management.

5.Identifying Best Practices is Critical

To achieve systemic organizational reform, the DOJ program has defined a specific set of “best practices.” These include: state of the art polices on officer use of force, including strict force reporting and review requirements; an early intervention system (EIS) to track officer performance and identify officers with persistent performance problems; and an open and accessible citizen complaint procedure. Prior to the DOJ program, there was no equivalent list of accountability-related best practices in policing.

6.Accountability Begins at the Supervisor Level

The DOJ program has illuminated the appalling details of on-the-street officer misconduct. In Seattle, for example, DOJ found “multiple cases in which SPD officers failed to report the use of force at all.” In Cleveland “officers use their guns to strike people in the head in circumstances where the use of deadly force is not justified.” Cleveland officers also “commit tactical errors that endanger themselves and other members of the community and may result in the use of excessive force.” Accountability collapses because supervisors “make little effort to determine the level of force that was used and whether it was justified. In some cases, supervisors take steps to justify a use of force that, on its face, was unreasonable.”

7.Police “Culture” Needs Re-thinking

The program has provided new insights into the much-discussed “police culture.” It is not the result of the recruitment of unqualified individuals. The department ignores and tolerates inappropriate attitudes and behavior. In Albuquerque, the DOJ report found that “The department’s lack of internal oversight has allowed a culture of aggression to develop. This culture is manifested in the routine nature of excessive force and lack of corrective actions taken by the leadership . . . the department’s training, permissive policy on weapons, . . . and the harsh approaches to ordinary encounters with residents.”

8.Consent Decrees Can Pay for Themselves

Criticisms about the financial cost of consent decrees have raised questions about the true “costs” of both police misconduct and police reform. The direct financial costs of a consent decree involve procedures and equipment that a department should have adopted years before. In Cleveland, for example, “basic equipment is either outdated or nonexistent.” For example, “Not all of CDP’s zone cars have computers and, of those that do, the computers do not all reliably work.” The costs of providing modern, up-to-date equipment should not  be blamed on the consent decree.

Additionally, many cities have been paying out enormous funds in civil litigation over police misconduct. Chicago paid out $50 million in 2014 alone. Consent decree-related reforms have succeeded in reducing misconduct and payouts from civil litigation, which represent a long-term cost saving. A full, long-term accounting may well find that consent decrees reduce the costs of policing over time.

Finally, a full accounting also needs to take into account the human and social costs that reforms in most departments have reduced.

9.Tracking Policing Reforms is Essential

The DOJ program has illuminated the enormous challenge of evaluating systemic organizational reform in police departments. Policing involves many important issues: officer uses of force; the treatment of racial and ethnic minorities; disciplinary procedures; citizen complaints and public perceptions of the department, among others. Tracking changes in all of them is a daunting challenge, and police researches need to develop comprehensive and manageable evaluation models.

10. This is (or Should Be) Just the Beginning

Finally, the history of the program highlights the impact of politics and police reform. Two Democratic Party presidents (Bill Clinton and Barak Obama) aggressively pursued the pattern or practice program, while one Republican Party president (George W. Bush) backed away from it, and the new Republican Party president appears hostile to it.

In the end, even allowing for some backsliding, the DOJ pattern or practice program has achieved significant reforms in departments subject to consent decrees.

Most important, the program has made a significant contribution to policing by defining a set of “best practices” necessary for constitutional and bias-free policing. Serious questions remain, however, about how to transform large public bureaucracies and about the long-term sustainability of court-ordered reforms.

These and other questions raised by the DOJ’s program demand further investigation by police experts.

NOTE: A more comprehensive version of Prof. Walker’s analysis can be downloaded here.

 Samuel Walker is Professor Emeritus of Criminal Justice at the University of Nebraska at Omaha, and the author of 14 books on policing, civil liberties and crime police. His new blog can be read here.  Readers’ comments are welcome.


A Prisoner’s Dream—and Disillusionment

In most U.S. prisons, the possibility of clemency keeps inmates’ hopes alive. But speaking from his own experience, one prisoner says it’s often just an “opiate” for the incarcerated.

“Hope springs eternal in the human heart,” wrote Alexander Pope in 1733. Today, his words are ritualized in a production staged quarterly in Olympia, Washington.

Countless Washington prisoners pray to one day star in the show.

It is televised on the public access channel, and produced by the Board of Pardons and Parole.

This Board recommends to the Governor whether a prisoner should receive executive clemency.  However, getting the Board’s five members to make favorable recommendations is no easy feat.

The overwhelming majority of petitions for commutation are rejected out of hand—no hearing deemed necessary. For those few petitions that are heard on the merits, clemency is recommended only if the Board believes that the case is extraordinary.

“Extraordinary”—that is the threshold established by the legislature.

Therefore, were you to watch one of these hearings you would see an attorney toiling away trying to convince the Board that the case is extraordinary because, for instance, the prisoner is not as culpable as decision makers initially believed.

Or the sentence is too lengthy in light of changes in public policy.

Or the victim believes that the prisoner should indeed be released early.

Whatever the bases put forth in support for relief, family and friends of the prisoner are then trotted out to share stories of why he or she is so extraordinary and no longer poses a threat to public safety.

He has done amazing things throughout his time confined.

She is no longer the woman that she used to be.

Everything is in place to allow for a seamless transition into law-abiding society.

It is almost always in vain. Once prosecutors and victims contest the prisoner’s release the Board acts accordingly.

Petition denied.

Rarely do these hearings depart from this script. If rehabilitation is relevant to the calculus of punishment, rarely do the outcomes serve the interests of justice.

What countless hearings have demonstrated to me is this: There is nothing extraordinary about reform in the eyes of this Board.

What is deemed to be extraordinary is when a prosecutor or sentencing judge supports granting clemency. Of course, very few hearings are this out of the ordinary.

However, were clemency still necessary to set me free I probably would be amongst this rare breed.

My trial judge planted the seed when he regretfully imposed a mandatory sentence of Life Without Parole upon me. Unconvinced that the legislature intended that juvenile transfer laws (that allow those under age 18 to be tried as adults) would subject a youth to such a sentence, he urged me to do positive things and, after 20 years, to apply for clemency.

Had I followed his recommendation and sought commutation the Board undoubtedly would have perceived his support to be extraordinary. Never mind that I was confined for crimes committed at age 14.

Yet such situations are exceedingly rare in the criminal justice system. They are the outliers. If anything, they highlight the improbability that the average prisoner will ever receive clemency.

Given these dismal prospects, it is astonishing that large numbers of my fellow prisoners still believe they may one day receive clemency. They are deluded, quite frankly.  Clemency is not meant to serve their interests.   It serves the interests of others who are far more important.

When a judge’s hands are tied by mandatory sentencing guidelines and he must impose a sentence with regret or changes in public perceptions makes a prosecutor want to undue the actions of a predecessor, both need a mechanism to set things right.  The clemency process provides the means to achieve this objective, and thereby helps to maintain the fiction that our criminal justice system is just.

Fortunately, not all is lost for prisoners.

Jeremiah Bourgeois

Faith in clemency keeps hope alive when the situation is hopeless. Ultimately, it is an opiate for the mass incarcerated.

Jeremiah Bourgeois is a regular contributor to TCR, and an inmate at Stafford Creek Corrections Center in Aberdeen, WA, where he is currently serving 25 years to life for a crime committed when he was 14. He will be eligible to go before the parole board in 2017. He welcomes comments from readers.


Psychiatrists and the ‘Duty to Warn’

A conversation with a psychiatrist is traditionally given the same status of “privilege” as a conversation with a lawyer, a physician or a priest–except when there is a specific threat. But should we expect them to take steps to protect someone that a patient hasn’t overtly threatened?

A conversation with a psychiatrist is traditionally given the same status of “privilege” as a conversation with a lawyer, a physician or a priest. The purpose is essentially the same: To encourage individuals to seek advice, guidance and treatment by assuring them that what they reveal won’t be betrayed.

Candor is especially critical when it comes to mental illnesses. A psychiatrist can’t, say, take blood or do an MRI to diagnose and then properly treat the patient. Instead, he or she  must largely rely on what the patient says.

There are exceptions, however, to doctor-patient privilege, when a physician is not only permitted but actually required to break a patient’s confidence. For example, if a patient directly threatens to hurt or kill a specific individual, a doctor must warn that person or the authorities.

 The duty to warn is primarily derived from the 1976 case Tarasoff v. Regents of the University of California, in which the Supreme Court of California ruled that mental health professionals have a duty to protect foreseeable victims of their violent patients by warning them directly or notifying the police.

Several courts have subsequently clarified that this duty applies to “readily identifiable” victims.

 But should we expect doctors to take steps to protect someone that a patient hasn’t overtly threatened? A court in Washington seems to think so.

 Jan DeMeerleer killed Rebecca Schiering, his former girlfriend, and her nine-year-old son Phillip, and stabbed another son, who survived. (A third son was present, but left unharmed.) DeMeerleer then went home and killed himself.

Family members claim that Schiering had moved out of DeMeerleer’s home two months before,  after he had hurt one of her sons. The couple attempted to reconcile, but Schiering broke up with DeMeerleer for good a few days before the attack.

The family of the victims and the surviving sons sued Dr. Howard Ashby, the psychiatrist who had been treating DeMeerleer for almost nine years, and the clinic at which he worked. They argued that Ashby was negligent because he didn’t warn the Schierings about DeMeerleer.

In response, Ashby argued that although DeMeerleer had talked about killing himself and killing his ex-wife and her boyfriend, he never made such threats toward Schiering or her children. The lower court agreed, ruling in Ashby’s favor on the grounds that DeMeerleer had made no specific threats toward the Schierings during his treatment.

But the appeals court reversed that judgment, finding that doctors could be required to warn “all foreseeable victims” of potentially dangerous patients in their care. Whether the attack on the Schierings was foreseeable should be decided by a jury, concluded the appeals court.

On Dec. 22, 2016, the Supreme Court of Washington agreed with the appeals court and ruled that the lawsuit should proceed to trial.

The Supreme Court acknowledged that, “[w]ithout question, mental health professionals face an incredibly difficult task in ascertaining whether a patient will act violently.” Nonetheless, it concluded that such professionals are under a duty of reasonable care to protect the foreseeable victims of their patients.

 The court stressed the public’s interest in safety from violent assaults by the mentally ill, concluding that this interest warranted broadening the liability of mental health professionals for the potential actions of their patients.

(However, the dissent countered that alerting the authorities, in the absence of a clear target or imminent threat by the patient, hardly assists in the prevention of harm, while breaching patient confidentiality.)

In the case at hand, Ashby and DeMeerleer had a doctor/patient relationship that spanned nearly nine years. This “special relationship” required Ashby “to take reasonable precautions to protect anyone who might foreseeably be endangered by DeMeerleer’s dangerous propensities.”

 Some facts the court felt could arguably have indicated to Ashby that DeMeerleer might target Schiering and her kids included:

  •  DeMeerleer’s history of suicidal and homicidal thoughts;
  • His attempts to act out suicide and retribution at different times, such as by playing Russian roulette;
  • His instability at their last meeting; and
  • His history of failing to take his antipsychotic medications.

The Supreme Court concluded that summary judgment was inappropriate because there’s a genuine issue of material fact as to whether, based on the standards of the mental health profession, the harms experienced by Schiering and her family were foreseeable.

The dissent and an amicus brief from the Litigation Center of the American Medical Association and several other medical societies raised concerns about imposing on mental health professionals a general duty to protect third parties from harm by patients.

These concerns apply to the majority opinion’s impact on both doctors and their patients.

The dissent warned that a weakened confidentiality shield may actively discourage the mentally ill from seeking treatment, which isn’t in the patient’s or society’s best interests. Moreover, even if individuals do seek treatment, they may be wary of communicating openly with their doctors, undermining the effectiveness of such treatment.

The amicus brief stated, “Holding mental health professionals liable to third-party victims who were not reasonably identifiable as targets of actual threats places an impossible burden on mental health professionals and limits their ability to treat patients.”

 Another troublesome aspect of the decision relates to the fact that Ashby treated DeMeerleer as an outpatient and thus had little control over his behavior. In fact, the Washington State Medical Association expressed concerns that “this exception to confidentiality…may lead to more involuntary commitments as physicians become reluctant to leave certain patients unsupervised.”

So how do we strike the proper balance?

We want potentially violent patients to seek treatment, and to be honest with their doctors for both their own protection and the general public good. But the decision in the Ashby case threatens to make such patients less likely to seek help and doctors less likely to be willing to treat them.

 Doctor-patient privilege is important and breaches to such confidentiality shouldn’t be taken lightly. Still, there are some things we don’t want doctors to keep to themselves. As the majority said in Tarasoff, “The protective privilege ends where the public peril begins.”

Yet we can’t expect mental health professionals to be clairvoyant, to look into a crystal ball and predict when and against whom a patient may become violent. As the amicus brief explained, although psychiatrists are dedicated to providing treatment for patients who pose a risk for violence, they can’t “accurately predict whether and when any particular patient will have a violent outburst, much less the target of that violence [when], as here, no threat of harm was made and no victim was indicated.”

Dr. Sandeep Jauhur, in an op-ed in the New York Times  responding to the appeals court decision in Ashby, wrote:

Predicting when violence will occur or where it will be directed is difficult under the most straightforward of circumstances. When the threat is not articulated, it is next to impossible.”

Breaching doctor-patient confidentiality in situations where there isn’t a clear threat to specific individuals will likely be self-defeating, Jauhur observed. He worried that “mentally ill patients may not seek treatment, and psychiatrists, saddled with new legal liabilities, may decline to treat them.”

He concluded, “We are more likely to minimize harm if the confidence of patients at the greatest risk for violence is maintained.

Let’s apply the foreseeable victim standard to an actual case to see how impractical it may be.

In 2009, George Sodini entered a gym outside of Pittsburgh, walked into an aerobics class and began shooting. He killed three women and wounded nine before he killed himself. His online diary, as well as notes at the scene and at his home, led the police to believe that Sodini was targeting women in general and not someone specific in that class.

Let’s suppose that, instead of pouring out his feelings into his blog, Sodini shared them with a psychiatrist. Suppose he told his doctor in their sessions how he hated women for constantly rejecting him, that he wanted them to suffer like he did, that he wanted them all dead.

Using the standard set in the Ashby case, would that psychiatrist have a duty to warn Sodini’s foreseeable victims and, if so, to whom would that duty apply—to specific women Sodini threatened? To any women who’d rejected him (assuming the doctor knew their names)? To all the women in his life, including neighbors and co-workers, who he could conceivably target as representative of their gender in general?

Although it would be prudent and reasonable to expect a psychiatrist in this hypothetical to warn any woman specifically targeted by Sodini, broadening the duty to warn to include any foreseeable victims—which could be literally any woman who crossed his path—is unreasonable and burdensome.

And it likely wouldn’t have prevented his ultimate massacre.

 It’s easy to understand the Schiering family’s need for closure given that DeMeerleer killed himself and thus was never held accountable for his actions. They likely need to blame someone who’s still here and can be punished for what occurred.

But their need for closure and justice isn’t sufficient to justify this dangerous expansion of the duty to warn.

The Ashby case isn’t over. After all, a jury could still find that the Schierings weren’t foreseeable victims of DeMeerleer. But regardless of the ultimate outcome, the ramifications of the Supreme Court’s decision, at least in Washington State, could still be detrimental for the mentally ill, mental health professionals and society in general.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.


Minor Crimes, Major Challenges

Aggressive police enforcement of misdemeanor crimes is a major reason for clogged courts and racial tensions. A research network announced yesterday at John Jay College to study data from seven cities is aimed at helping policymakers and law enforcement authorities explore different approaches.

Responding to minor crimes is arguably one of the most critical activities of any police department.

Jeremy Travis. Courtesy John Jay College

The resource demands are certainly substantial.  These enforcement actions also provide opportunities to reduce crime and enhance public trust.  In addition, they pose considerable safety risks to the responding officers.

Given that low-level arrests also clog the nation’s courts and jails, it is remarkable that this police function has received so little public attention.

By any measure, enforcement of minor crimes is a high volume activity.  According to the FBI, only 18 percent, or 1.9 million arrests, made in 2015 were related to the seven major crime categories (homicide, rape, robbery, aggravated assault, burglary, grand larceny, and motor vehicle theft).

The remaining 8.8 million arrests were for other charges, including 13 percent for drug offenses, 10 percent for driving under the influence and another 10 percent for assault.

Federal statistics shed little light beyond the big picture.  The FBI website provides no arrest data for specific police departments, only estimates by region, state and county.

Preeti Chauhan. Courtesy John Jay College

The Bureau of Justice Statistics, which does provide arrest data by police agency, has not updated these numbers since 2012 and several cities have missing data.  Remarkably, neither agency reports on the issuance of summonses, citations, pedestrian stops, or traffic stops.

Without these rudimentary statistics, a national assessment of the enforcement of minor crimes is impossible.

Local jurisdictions can show the way. The work of the Misdemeanor Justice Project in New York, which we launched four years ago, illustrates the power of statistical analysis to illuminate these unexamined police practices.

Using data from our city and state partners, we documented significant shifts in police enforcement activity in New York City. In 2003, the police recorded nearly 891,000 misdemeanor arrests, criminal summons and pedestrian stops.   Eight years later, that number rose to 1.4 million—a 57.5 percent increase.

Yet by 2015, the number dropped to 540,000, a dramatic 61.5 percent decline.

Many hypotheses have been offered to explain this stunning rise and fall, but the bottom line is clear: The interactions between police and public have changed dramatically.

Merely focusing on trends in enforcement activity only scratches the surface.  More research is needed.

At a minimum, the public should know the court outcomes of these arrests.  Policy-makers should also assess the costs—certainly the costs of arrest, prosecution and detention,  but also the individual costs such as lost income, court fees, family expenses, and medical costs.

Harder to measure, but very important, are the psychological costs attendant to being stopped, arrested and detained.

The benefit side of the ledger also deserves analysis.  The simple fact that the police have responded to a citizen’s call for assistance has intrinsic value.  More complex is an assessment of the public safety benefit of these arrests.

The literature on “hot spots” policing and focused deterrence shows significant crime reduction effects and suggests that strategies tailored to specific problems are more effective than general “quality of life” policing.

Research on procedural justice suggests that respectful interactions between police and public yield increased respect for the law and law-abiding behavior in the future.  Negative interactions can contribute to legal cynicism, a lower likelihood to call the police at time of need, and fewer police interactions initiated by the public.  Public trust in the police can be enhanced or undermined by these high volume activities.

The lens of racial justice is also informative.

Even if individual enforcement actions are legally justifiable, a pattern of overly aggressive enforcement practices in communities of color can still give rise to claims of disparate treatment.  These claims demand deeper examination of the reasons for the exercise of police discretion.

For example, our analysis of the impact of enforcement trends on different demographic groups has shown that young men of color have been the beneficiaries of the steep decline. Yet we also found that significant inter-group racial disparities remain, prompting questions about the reasons behind these racial disparities.

The misdemeanor justice agenda should also examine alternatives to traditional arrest practices.  One example is the Law Enforcement Assisted Diversion (LEAD) program in Seattle, which provides community based treatment and support services for individuals involved in drug and prostitution crimes.

Station house release is another option that promotes human liberty while maintaining accountability for wrong-doing.  Because many individuals arrested for low-level offenses also have frequent interactions with emergency rooms, homeless shelters, and mental health institutions, a robust set of alternatives for responding officers would necessarily involve those sectors.

Fortunately, the country is now seeing overdue attention to the front end of the justice system.

In 2015, the John D. and Catherine T. MacArthur Foundation launched the Safety and Justice Challenge, dedicated to reducing jail populations in 40 sites.  The Laura and John Arnold Foundation has pioneered the use of predictive analytics to help judges make better bail decisions.  The Pretrial Justice Institute has infused new energy into the movement to reduce reliance on money bail.

A focus on the role of the police in making arrests for minor crimes will complement these efforts.

In that spirit, we are pleased to announce the creation of the Research Network for Misdemeanor Justice.  Funded by the Laura and John Arnold Foundation, the Research Network will comprise seven jurisdictions committed to documenting misdemeanors, criminal summonses, stops and pretrial detention at the local level.

We received a staggering 39 applications to join the Research Network, demonstrating a strong desire to better understand these trends.  After a rigorous selection process, six jurisdictions were chosen to join New York City:  Los Angeles, CA; Toledo, OH; Durham, NC; Seattle, WA; Prince George’s County, MD; and St. Louis, MO.

Each jurisdiction will work with a local research partner, e.g., University of California, Los Angeles, University of Toledo, North Carolina Central University, Seattle University, University of Maryland, and University of Missouri – St. Louis.

Over the next three years, the Research Network sites will produce reports on enforcement of minor crimes in each jurisdiction, with comparative analyses examining trends across the sites.  These reports will be the first of their kind in the policing literature.

Taken together, they will make a distinctive contribution to an overdue national conversation focused on society’s response to minor crimes, the most frequent interaction between the public and the law.

Jeremy Travis is the President of John Jay College of Criminal Justice, City University of New York.  Preeti Chauhan is an Associate Professor of Psychology at John Jay.  They co-direct the Misdemeanor Justice Project. Readers’ comments are welcome.