Murder on Hold: Rural Cops Need Help to Solve Rising Cold-Case Backlogs

The rising number of unresolved homicides nationwide taxes the resources of most police agencies. But the hardest challenges are faced by smaller departments. Here’s one way to address that.

In an earlier column for The Crime Report, I wrote that the number of unresolved or “cold case” homicides accumulating around the country represents a major public safety challenge.

Since 1980, the national total of such cases has grown to more than 240,000—and with present clearance rates of about 61%-62%, the number of unresolved homicides nationwide is increasing by 6,000 to 7,000 each year.

I suggested that one way to tackle the cold case issue is to form “dedicated” cold case teams.

But for smaller departments, that represents a significant challenge. A research project I completed in 2016, entitled “Cold Cases: An Exploratory Study of the Status of Unresolved Homicides in the USA.” found that of those agencies which reported having cold cases but do not have a cold case team, 83% of them were departments with less than 100 sworn officers.

That should concern all of us. The evidence suggests that resolving these cold cases saves lives and reduces crime by getting criminals off the streets.

In smaller jurisdictions, the public safety challenge represented by these cold cases is no less serious. But even with the best will in the world, the kind of multi-disciplinary team I suggested is often beyond their reach—because of lack of adequate staffing, lack of funding, or both.

More tax dollars allocated to crime labs would help turn around evidence more quickly, especially considering that it can take more than 12 months in some jurisdictions to process DNA evidence. But a smart way to tackle the larger manpower and funding issues felt most keenly in smaller jurisdictions would be forming regional cold case teams with surrounding agencies.

Police have successfully used “Multi-Agency Task Forcing” for decades to combat drugs, gangs, human trafficking, and locating fugitives. Why not use the same multi-agency task forcing concept to investigate cold cases?

Here are two ways such a task force can be structured, the first using combined police agencies themselves; and the second by working through District Attorneys’ offices.

The Police Agency Model

City and county agencies can easily form their own multi-agency cold case team where the burden of manpower and even funds can be evenly distributed and not bankrupt one single agency.

One department will have to take the lead, but the contributions should be equally distributed based on size of the agencies, number of cases involved and the availability of funding.   Consideration should also be given to including the State Police in cases where broader powers and jurisdictions are involved—or even to including a federal representative such as the FBI.

A good example of such a state-sponsored regional unit can be found in the Grand Rapids area of Michigan where the team is configured with multiple agencies and run by a Michigan State Police detective. According to the team leader, 18 murders have been solved through this process between 2007 and 2016—which is a satisfactory figure for a good working unit.

The District Attorney Model

A significant number of district attorneys (DA) in this country have legal jurisdiction over several counties that include multiple police agencies. Under the leadership of the DA, each police department in his/her jurisdiction can provide a representative to the cold case team to supplement the DA’s investigative staff.

Each team member brings with them his or her department’s own cold-case homicides. Consolidating them will maximize efforts.

This concept has already had successful roll-outs in places like Orange County, FL, and Hamilton County (Chattanooga), TN. Data available so far from the Hamilton County program shows that nine cold cases have been resolved in the last few years—again an impressive result.

If such regional teams didn’t exist, the likelihood of any cold cases begin resolved would be slim to none.

Can either the regional law enforcement or DA model work in other parts of the country?

I believe it can. Dedicated teams enable jurisdictions to attack the cold-case problem at both ends of the spectrum—hot cases and cold cases—at the same time. That’s as much of a priority for smaller jurisdictions as for larger ones.

It is time to be pro-active, and to stop chasing our tails reactively by putting out fires, from one hot homicide to another.

Working them from both ends will reduce the number coming in the door, and help create a better and safer environment for all— which will in turn restore confidence in local police.

The research makes clear that in jurisdictions with populations of less than 100,000 and/or departments with less than 100 sworn officers, there is very little effort to resolve the problem.

So why not consolidate efforts?

Any effort to resolve cold, unresolved homicides is worth applauding.  But, as we know from experience and research, without a “dedicated” team, properly trained in the nuances of cold case investigations and utilizing an organized process that maximizes effectiveness, the effort is counter-productive. Time is being wasted.

James M. Adcock

A colleague of mine who works on a non-dedicated cold case team related that about 70% of the cases he works on come either through news media inquiries or from a family’s request through the police command and staff.

Research tells us that this is the least likely method to bring about a successful resolution; yet we do it all the time.

It’s time to think differently.

James M. Adcock, PhD, a retired US Army CID agent, a former Chief Deputy Coroner of Investigations in Columbia, Richland County, SC, and a former Tenured Professor at the University of New Haven, 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. He also lectures on cold case investigations at the Dutch Police Academy, Apeldoorn, the Netherlands. Readers’ comments are welcome.

from https://thecrimereport.org

The Deepening Opioid Crisis Among Native Americans

The Cherokee Nation’s lawsuit filed last month against pharma firms and drug distributors is likely just the opening act in a broader legal campaign by Native Americans to stop the flood of prescription opioids that have devastated tribal communities.

The Cherokee Nation of Oklahoma has launched a lawsuit against three national retail pharmacy chains and two of the largest national drug distributors in the country. The complaint charges that they knowingly flooded the tribal community with prescription opioids, fueling a deadly drug epidemic that has taken hundreds of lives and cost hundreds of millions of dollars.

The landmark lawsuit, filed on April 20, 2017, contends that retailers Walmart, CVS and Walgreens, and wholesalers AmerisourceBergen, McKesson, and Cardinal Health, “allowed massive amounts of opioid pills to be diverted from legitimate channels of distribution into the illicit black market in quantities that have fueled the opioid epidemic in the Cherokee Nation.

 The suit alleges the defendants ignored red flags and “turned a blind eye” to known problems in their supply chains. Todd Hembree, the Cherokee Nation Attorney General, said the drug companies failed to keep their opioids from being diverted and did nothing to prevent rampant over-prescribing.

The rate of drug-related deaths among American Indian and Alaska Native people has quadrupled since 1999 and is double the rate of the country as a whole. The diversion of millions of opioid pills over the past 18 years has contributed to nearly 400 deaths among the Cherokee Nation – double the death rate of the country at large – and 10,000 hospital visits.

 Actions like the Cherokee suit can be expensive—especially if you lose and have to cover the legal expenses.

Despite this, considering the social destruction that prescription opioids have caused the American Indian and Alaska Native populations, it’s possible we will see other tribal nations follow with their own lawsuits.

The reason: there’s strength in numbers.

Similar lawsuits have snowballed among cities, counties and states, where opioid addiction has cost taxpayers and citizens billions of dollars. From coast to coast, they’ve come to the same conclusion: Drug companies are complicit in the opioid epidemic, and they need to be held accountable.

The combined pressure is starting to have an effect. Recent federal cases against drug companies show that lobbyists and armies of lawyers are getting companies off rather lightly.

“They pay fines as a cost of doing business in an industry which generates billions of dollars in revenue,” the Cherokee suit says.

Light fines and no jail time helps fuel the problem. The industry has to start paying for its lack of responsibility.

I support the Nation’s suit, but much more legal pressure is needed.

 Almost every day we see new state, county and city laws and statutes that increase funding for local treatment and law enforcement.

At the federal level, the new 21st Century Cures Act has allocated the first half of a $1-billion grant to the states and territories for drug treatment, law enforcement and prevention programs.

Another important piece of federal legislation is the Drug Supply Chain Security Act (DSCSA). Enacted in 2013 and set for completion in 2024, the DSCSA helps ensure prescription drugs get to where they are supposed to go.

Right now, drug companies are scrambling to be in compliance by November, when on-pack label serialization and tamper-evident packaging must be in use to prevent theft and counterfeiting. These new requirements are going to make a difference.

 All of this is helping. But for communities like the opioid-devastated Cherokee Nation, it’s mostly too little too late.

In the tribal communities, which are at high risk for substance use disorders, local governments need to expand education, treatment and prevention programs now.

We need insurance regulations that add to, not take away from, coverage for treatment of substance use disorders. And we need more access to medically supervised detox programs that help ease the pain and discomfort of prescription opioid withdrawal. These encourage people to attempt recovery, not avoid it. With more effective drug detox, rehab and support programs, we can greatly reduce relapse rates and enjoy successful long-term recovery.

I urge healthcare leaders and lawmakers everywhere to strengthen and more rigorously enforce all regulations that pertain to drug diversion. We must hold manufacturers, distributors and pharmacies responsible for the failures in the supply chain that lead to illicit diversion.

I heartily applaud the Cherokee Nation for its preemptive actions to deter diversion. They have implemented their own prescription monitoring program, and eliminated some of the most widely abused opioids from their own formulary.

 As an executive deeply involved in the world of drug and alcohol recovery, I have been outraged many times over the past 10 or so years as drug company after drug company has been charged with breaches of the law, brought to court, found guilty and paid enormous fines—from hundreds of millions to even billions of dollars—only to return to the same pattern of behavior as before

No one of consequence is ever jailed.

Bryn Wesch

We deal with the results of the opioid epidemic on a daily basis. We see and hear first-hand how these situations of dependence and addiction can develop, regardless of age or station in life, and so often from a single pill or two or three, usually borrowed or innocently gifted.

Every day we hear how opioids—meant to relieve pain—can ruin lives.

It is critical that we take immediate action to prevent further loss of life, deteriorating health issues and increased economic consequences.

Bryn Wesch is Chief Financial Officer at Novus Medical Detox Center, a Joint Commission Accredited inpatient medical detox facility that is also licensed by the Florida Department of Children and Families and known for minimizing the discomfort of withdrawal from prescription medication, drugs or alcohol. She welcomes comments from readers.

from https://thecrimereport.org

Memo to Sessions: Why Treatment for Drug Addiction Makes More Sense Than Prison

The Attorney General believes a tough approach to drug offenders is the right policy to pursue. Most Americans don’t agree. The fact is, says a journalist who writes on addiction issues, the kind of help that will keep substance abusers from committing further offenses can’t be found behind bars.

Americans have always viewed drug addiction as a serious issue, yet they increasingly believe that punishment is the wrong way to address the problem.  According to the Pew Research Center, 67 percent of Americans now believe that the focus on heroin and cocaine abusers should shift toward treatment, rather than incarceration.

Despite the hard-line approach on drug offenses recently announced by Attorney-General Jeff Sessions, most states seem to agree with this shift: possession penalties and mandatory sentences for nonviolent drug crimes are becoming less common.

There are many reasons why it’s a good idea to keep this momentum going.

Treating the actual addiction problem itself would likely cost much less in the long run. Incarceration costs add up when you factor in expenses such as jail time, court, law enforcement, and emergency health care. Even when individuals are released, it is likely that they will find themselves in the same situation again.

Prisoners today are often put in a position where they are set up to fail, and their cycle of addiction will only spiral further out of control without proper treatment.

The treatment  alternative gives individuals a much better chance to return to society as contributing citizens.  It will also save taxpayers money. The state of New York alone has claimed that a more treatment-focused approach has saved the state $250 million  annually.

The bottom line:  helping drug addicts recover will lessen the expenses of the incarceration process and boost the economy by adding more capable individuals to the work force.

 While there are some cases where sending drug offenders to jail may help them break their cycle of addiction, sending them to specialized treatment will actually make that a focus. Rather than getting a slap on the wrist, substance abusers who are sent to treatment are counseled to find the roots of their drug- or alcohol-related issues.

Sending a person to jail should help him or her learn from mistakes and return as a contributing member of society later. Going to jail may help people overcome these mistakes, but if they leave without treating their mental and substance abuse issues, you can expect history to repeat itself.

Substance abuse is an illness, and like any other illness, if you do not get the proper care, you are going to remain sick.

The Prison Environment

The way most prisons are set up today, convicts are likely to continue their criminal behavior rather than getting help. In prison, people are typically confined and unable to improve on basic skills that will help them when they are released. Prisoners are already punished enough by being completely isolated from the rest of society, they should at least be given the tools to effectively rehabilitate themselves. Unfortunately, that is far from the case now.

One way states can change this culture is by implementing Residential Substance Abuse Treatment (RSAT) programs. There are already many of these rehabs in Michigan and other states set up within select correctional facilities. Prisoners are given the option to apply to be housed in RSAT centers while receiving treatment from dusk ‘til dawn every day. If states are going to insist on incarcerating drug offenders, adding programs like this can go a long way in helping these prisoners rehabilitate.

Connor Hayes

Many people would prefer to see jail space used for violent offenders rather than drug offenders, and for good reason. People with drug abuse issues need help, which can be much more difficult to find when behind bars. After being released from jail, these people might end up being public safety risks, since they feel that they have no options. Shifting towards community-based treatment and supervised probation could end up being effective alternatives to incarceration.

Many fail to realize that drug addicts are battling a serious illness. If we send them back to the streets without treatment, the chances are that they are just going to revert. Throwing drug addicts in jail may help for a short period of time; but in the long run, both the addict and the rest of the community will benefit more from treatment instead.

Connor Hayes is a freelance writer on addiction issues based in Rochester Hills, Michigan. He welcomes comments from readers.

from https://thecrimereport.org

The Justice Dilemma: When the Cure is Worse Than the Disease

We’re now paying the price for simplistic assumptions that establishing “control” is a requisite for tackling the roots of criminal behavior. Could sensible, evidence-based approaches help make communities safer?

Harm to a patient caused by treatment rather than disease is called “iatrogenic”—coming from the healer.

Some iatrogenic harm is caused by medical error—surgery on the wrong patient or at the wrong site on the right patient.   Other iatrogenic harm—some fatal drug interactions— might have been impossible to anticipate.

Predictable consequences of treatment—a scar after necessary surgery—could be called iatrogenic too.  Some iatrogenic injuries, such as a toxic needle-stick to a nurse, hurt the staff—not the patient.

No decision process in health care is considered complete before it resolves the question of whether the benefit of treating a particular threat with a particular therapy is ultimately outweighed by the “countervailing risk” that the proposed method of attacking the “targeted risk” might create.

Treatment carries its own risks.  Is this cure worse than the disease?  You can’t let the risks paralyze you, but you have to balance them.

We don’t remember to do that in criminal justice, and now we are paying the price.

Mandatory minimum sentences produce startling iatrogenic levels of mass incarceration among young African-American men in the neighborhoods.  Pretext “zero tolerance” and “broken windows” arrests, pretrial detentions and prosecutions generate immediate unemployment and debt.

Ad they build iatrogenic “permanent CV’s” that put jobs out of reach.

Two new books, one by MSNBC commentator Chris Hayes, and the other by Yale Law School Professor James Forman, accept that violent crime is a serious disease afflicting the African-American inner city and agree that the disease must be treated.  Both authors remember to weigh the harms our treatment choices have risked.  The books illuminate each other.

 Chris Hayes’ title, “A Colony in a Nation,” places him squarely within a conventional approach  I have been ranting about in taverns and law reviews for 25 years.   His book reflects the capture of contemporary American thinking about urban criminal justice by the mental world of the colonial officials who governed the Third World for the old European empires.

Hayes is not a Kipling, glorifying the empire’s White Men while they beat “natives” with rifle butts. He’s the honorable heir to the old empires’ insider critics:  skeptical writers like George Orwell in Burma, T.E. Lawrence in the Middle East, or Joseph Conrad in Southeast Asia, Latin America, and Africa.

He is alert to the havoc that well-intentioned criminal justice operators have wrought and sympathetic to the inner city’s residents.

Still, Hayes remains a travel/adventure writer, crossing an invisible frontier into the Colony (his term for the inner city) and returning to bring us the news.  His heart is with the residents; but in the end, he cannot escape reinforcing the Manichean vision of two radically different worlds that has helped to get us where we are.

Ultimately, the problem is Them and There.

Why is it that ordinary white Americans never go to the African-American inner city?  Because, thanks in part to well-meaning commentators like Hayes, they are very certain of what they would find if they did go:  a desolate arena of full-time predators and their full-time prey. The place seems distant; the people mysteriously different.  Why do they live this way?  How?

This fixation on imaginary distance and difference breeds policy.

The “colonial” imperative at work in the inner city, as it was in the Third World, is control.  Yes, other things—in education, in health care—might follow. But without control there is nothing.

The mainstream histories of our urban crime wars in books like Hayes’ provide narratives of law enforcement efforts to gain control.  Strategies are devised and executed; they succeed or fail; they are resisted or accepted. Mandatory minimums, broken windows policing, “hot-spot” targeting, are introduced, tried and analyzed.  Control ebbs and flows.  Is the crime rate up or down?

While Hayes stands in the shoes of Orwell and Conrad, James Forman fills the role of post-colonial writers like C.L.R. James, or Edward Said.  Foreman shows us Hayes’ “Colony” as it is looks from within.

Forman’s focus in “Locking Up Our Own is the reaction to the threats of drugs and violent crime of the inner city’s residents (and particularly its leaders).

Like very few writers about contemporary criminal justice (the New Yorker’s Jennifer Gonnerman is another) Forman, who worked for six years as a public defender in Washington, D.C., renounces the charms of the exotic.

In Forman’s account, there’s no vivid journey to a Heart of Darkness.  Like Hayes, he sends news, but Forman sends news from home, not from a torrid-zone dystopia.  His inner city is right out your window.  Its residents have more in common with white suburban Americans than either group has in common with anyone else.

“Locking Up Our Own” makes it clear that mandatory minimums, aggressive anti-gun dragnets, and rampant pretrial detention (to lock “the revolving door”)—all of the initiatives that we now see as causes of enormous iatrogenic harm—were at one time supported by African-American leaders in government, media, and the churches.

But the key point that emerges from Forman’s book—key not just for our past, but for our futures—is that while the local leaders supported similar policies and practices (for example, aggressive gun sweeps), they did so with a fundamentally different orientation.

It is clear (to me, anyway) from “Locking Up Our Own” that the local leaders’ imperative was not control, or even resisting control; it was safety.

That perspective mobilizes a long list of productive insights from writers who take safety—in medicine, in aviation, and a range of other dangerous fields—as their subject.

Safety experts would tell us, for example, that the decisions that in hindsight look perverse—for example, supporting mandatory minimums—were almost always “locally rational”: they seemed to solve an immediate problem.  Community leaders wanted more than mandatory minimums; they wanted treatment programs, jobs, and education.

But mandatory minimums were the safety tool they could get, so it seemed to make temporary, local sense to support them. They were reacting to an environment.

The safety experts would also argue that dangerous situations are seldom arrived at by one giant leap.

The mandatory minimum sentences that seemed to African-American political and church leaders to offer surgical drone strikes on selected drug kingpins eventually turned into the carpet bombing of generations of young African-American men, but we didn’t get there all at once.

The threat to safety isn’t the legislation itself  (after all prosecutors didn’t have to seek mandatories); it is drift toward the promiscuous use of the legislation in practice that creates the harm—just as the promiscuous over-prescription of antibiotics, not the antibiotics themselves,  leads to resistant organisms.

One case at a time, mandatory minimums were handed out in less and less serious cases, to less and less culpable defendants:  each successive case constituting the new normal—the new “going rate”—that was, in turn, departed from the next day.

Police stop and frisk to find guns and take them off the street.  Whether this treatment strategy and its low “hit rate” will traumatize innocent community residents and breed distrust of the law is above the cops’ grade in pay.  They deal with things one transaction at a time. The Compstat numbers have to be ready at the end of the month: you need them to prove that you’re working out there.

The docket list has to be cleared by the close of business every day; so the Assistant DA’s wheel out the mandatory minimums and try to leverage a plea.  That’s “locally rational” too.   Does the prison population aggregate to a gigantic and racially imbalanced horde?  That iatrogenic harm is not any frontline practitioners’ job to balance.

Both Hayes and Forman end their books with a story.

Hayes recounts sitting in Prospect Park, in Brooklyn, NY, watching a group of black teenagers horse around on their bikes.  It reminds him of his own “youthful hijinks.”  But then, the kids snatch a white pedestrian’s cellphone, and ride off. Hayes struggles with the meaning of the event.

It is an event Rudy Giuliani would be glad to explain to him.  Rudy would say Hayes witnessed a Central Park Five “wilding” in embryo—a failure of control in the Colony’s border zone, to be treated by incarceration. Iatrogenic consequences are beside the point.

Forman’s concluding tale is very different.  He describes defending a juvenile named Dante, caught dead to rights robbing an African-American construction worker and facing years of miserable juvenile detention.  Forman goes to see the victim, a hard-working (and probably illiterate) man facing many challenges of his own, and asks him to agree to Forman’s proposed alternative to incarceration:  probation together with an innovative carpentry program—an effort to protect Dante’s potential.

The victim agonizes, “I don’t know if I can forgive this young man, but I will try.”   In the end he agrees to stand up for Forman’s recommendation in court.  The judge imposes probation.  Years later, Forman meets Dante on the street.  He has never been rearrested; he is working at a construction job; he has a son of his own.

In safety terms, this is a “near miss,” or a “good catch.” Here’s a life that was almost thrown away, then wasn’t.

But safety thinking requires a disciplined look at where that “good catch” came from.  That’s what a “culture of safety” does to learn from its experience.  This “good catch” required, for example, a carpentry program to send Dante to, and a well-funded public defender with a reasonable caseload, and therefore the time to find the program and visit the victim.

Most importantly, it required doing criminal justice with the community not “for” it (or, when the iatrogenic consequences are considered, “to” it.)

Forman’s book is an enormous contribution because it underlines the potential for a pivot from control to safety in inner city criminal justice.

James Doyle

It tells us that an all-stakeholders collaboration in dealing with criminal justice problems is not a wild dream; it is a new use of an existing will to make everyone safe—young men, cops, and communities—and safe from everything: from crime itself, and also from unnecessary iatrogenic harms inflicted by the struggle to combat crime.

We should have known that all along.  Now, thanks to Forman’s meticulous scholarship, we know it for sure.

An obsession with control has brought us neither control nor safety.  A focus on safety might bring us both.  We got into this together.

Together is the only way we are getting out.

James Doyle is a Boston defense lawyer and author, and a  frequent contributor to The Crime Report. He welcomes  readers’  comments.

from https://thecrimereport.org

Sex Trafficking: A Surprising Rescue Story

A researcher uses Backpage.com to identify a potential victim and get police help. The lesson, she writes, is that commercial sex trafficking sites are increasingly useful tools for law enforcement—and outlawing them is counterproductive.

Over the last few weeks, anti-trafficking advocates, partisan opponents and the media have been blasting politicians who accepted donations from the online classified advertisement site, Backpage.com.

To a large segment of the American population, the website is nothing more than “the world’s top online brothel” and “the Walmart of sex trafficking.”

However, this opinion does not facilitate the rescue of victims and prosecution of sex traffickers.

In fact, Backpage.com not only actively cooperates with law enforcement, but is a critical tool for investigation.

For example, on April 24th I identified a potential case of sex trafficking through online commercial sex advertisement and review forums. At the time, I was cross-referencing quotes from commercial sex consumers online for my forthcoming book, Hidden in Plain Sight: America’s Slaves of the New Millennium.

The book—an effort to take readers behind the headlines of the human trafficking scourge in America—features direct quotes from convicted human traffickers, victims, sex workers, and commercial sex consumers (who refer to themselves as “mongers” or “hobbyists”).

At approximately 9:30pm, I came across a Backpage.com advertisement for a young woman in the Winston-Salem area of North Carolina that read:

“Hey baby I’m PANDORA come give me a call see what in my box and come on show me some love or what ever u like baby I even do massage too with nice touch to unwind from hard day work I rub u down with the magic touch come on down give PANDORA a call.”

Prima facie, this young woman, who claimed to be 25, may have been perceived as a consenting sex worker. However, reviews about her—which were posted on USASexGuide.info, a commercial sex review forum—told a different story.

Men on the website provided information that suggested the young woman was being trafficked.

On March 31, one man wrote:

“This girl has a developmental disability and is being used by her mother. Even mongers, need to draw a line somewhere. It can be argued that her disability means she doesn’t really know what she is consenting to. This is not like a woman who has demons (that) she should have known better to avoid. This is someone who is fully being abused by a parent.”

Upon seeing this review and the accompanying advertisement, I took a break from editing my book and immediately alerted the Winston-Salem and Thomasville police. Since the advertisement didn’t include a specific address, the police officers I spoke with weren’t sure which jurisdiction the case fell under.

I was uncertain whether the information from the websites was reliable, but on the off-chance it was, I wanted to report it to the police.

After notifying law enforcement, I took screenshots of the advertisements and reviews for evidence, and alerted Backpage.com administrators as well. Within minutes, the advertisements for this girl were removed from their website.

Less than two hours later, by approximately 11:30pm, the police had conducted an undercover sting at a hotel and had the girl from the advertisements in custody. One of the officers confirmed  to me that the woman appeared to suffer from a developmental disability, but explained they needed to conduct further investigation to determine if and how she was being exploited.

The officers told me that they would try to connect the woman with social services and thanked me for bringing the information to their attention.

This is why my anti-trafficking advocacy doesn’t conflict with my support of cooperative policing with websites like Backpage.com. Although people can use classified advertisement forums to publicize marginalized women and children who may be sex-trafficked, these websites are also the catalyst for rescues and investigations across the United States.

They have been for years.

The movement of the commercial sex industry off the streets and online brought the previously clandestine crime of sex trafficking into the open. However, although  Backpage.com ads initiate a large proportion of child sex-trafficking identifications and victim recoveries, the website continues to be publicly vilified through arrests and civil lawsuits, as well as by public shaming of supporters and politicians who receive donations from them.

Criminalizing Backpage.com will not reduce the commercial sex industry. If anything, it will simply displace commercial sex advertisements from Backpage.com to other websites, such as CityVibe.com­–Your Local Escort Directory.

It’s like playing a game of Whack-a-Mole.

Instead of continuing to criminalize these websites and hold them liable for the actions of third parties, anti-trafficking advocates, law enforcement, and victim service providers should identify mechanisms to facilitate more information sharing and cooperation.

Internet-based commercial sex advertisement and review websites are undeniably contributing to the knowledge base of researchers and law enforcement, and we should facilitate–not stymie–this information-sharing.

In less than two hours, the aforementioned Backpage.com advertisement allowed me­—a Washington D.C. based criminologist—to initiate an investigation, which brought a potential victim into custody over 300 miles away. This is one out of hundreds of examples of how the website has been used as an effective tool.

Kimberly Mehlman-Orozco

America needs to start focusing our anti-trafficking efforts toward policies and interventions that have measurable impacts, instead of blaming scapegoats and avoiding hard decisions just to collect  cheap headlines.

Kimberly Mehlman-Orozco holds a Ph.D. in Criminology, Law and Society from George Mason University, with an expertise in human trafficking. She currently serves as a human trafficking expert witness for criminal cases and her book, “Hidden in Plain Sight: America’s Slaves of the New Millennium,” will be published by Praeger/ABC-Clio this year. She welcomes comments from readers.

from https://thecrimereport.org

Can We Stop Online Violence?

A program called E-Responder, launched by the NYC Citizens Crime Commission last year, helps workers identify risky posts on social media before they go viral–and has already reported successes in violence intervention. The group’s president says it’s worth a look by other cities, and social media providers like Facebook.

The live-streamed murder of Robert Goodwin on Easter Sunday was a brutal and shocking online event—but it was merely the latest in an increasing number of violent and deadly acts on Facebook and other social media networks.

Social media providers are struggling to deal with this troubling trend. They have responded to widely publicized violent events with promises of new internal processes and commitments to add more human “monitors” to catch violent posts before they go viral.

But if the goal of all that is to actually prevent online violence, Facebook and others will continue to fail miserably.

Facebook, for instance, mostly relies on its users to report violent posts—a policy that allowed the video of Mr. Goodwin’s death to stay online for two hours before it was removed. By then, of course, it had already spread around the world.

Here’s what Facebook said about their failure to take down the video: “We disabled the suspect’s account within 23 minutes of receiving the first report about the murder video. We … are in touch with law enforcement in emergencies when there are direct threats to physical safety.”

This very “hands off” approach means that Facebook will frequently be late to address serious violence.

Facebook’s excuse for not catching violent posts immediately is essentially that it’s impossible for them to do it alone. Even though they have “reviewers” who monitor the network for dangerous activity—and just pledged to add 3,000 more—it is logistically impossible for Facebook to track more than one billion users in real time. Or so they have inferred.

But that’s not the case. Advances in search capability and artificial intelligence now make it possible for violent posts to be detected and blocked almost immediately.

Facebook just must utilize the technology to create a user-safe experience.

Artificial intelligence techniques such as deep learning can be used to automatically identify and process human text and images and determine if the content is risky or violent. Google has already come up with this kind of smart-tech. Facebook can develop its own deep learning algorithm that is specifically tailored to flag violent posts and give instant feedback.

Early warning systems based on deep learning algorithms that can identify violent content by image, text and facial recognition can help trained employees to improve situational awareness and secure our communities.

Indeed, pairing this level of technology with Facebook’s team of “reviewers” could have saved Mr. Goodwin’s life.

Facebook could also make it easier for its community to access critical services. For instance, Facebook should expand its outreach to include other types of prevention services, such as referrals to more national hotlines and the ability to chat to an online crisis counselor. They already do this for suicide prevention.

Facebook should also be using technology and training to identify a range of troubling behavior on its own platform, bypassing the need for untrained users to report others’ behavior.

There are efficient, effective ways to keep the virtual from turning violent. We are already doing it at the New York City Citizens Crime Commission with the launch of E-Responder.  E-Responder is a program that trains people to identify dangerous posts on social media, help those at risk, and de-escalate conflicts online before they turn in to real world violence.

E-Responder launched last year, and the Citizens Crime Commission has since trained dozens of New York City-based anti-violence workers across the city. Ninety-seven percent of interventions performed by E-Responders resulted in positive outcomes. E-responders were also significantly more likely to identify risky posts.

We now plan to expand the program outside of New York City. With knowledge and training, we believe tragedies that start or end online can be avoided.

Richard Aborn

Facebook and other social media platforms should take note. They have a responsibility to lead the way and protect their community members and the wider world. Because, with their help, we will not just have the ability to identify and block dangerous posts—we will have the ability to stop violent behavior.

In fact, if we all do more, social media can give us the clues and the tools we need to interrupt and effectively address the behavior that foreshadows tragedy.

Richard Aborn is President of the Citizens Crime Commission of New York City. He welcomes readers’ comments.

from https://thecrimereport.org

America’s Real Gang Threat is Domestic, ICE Figures Prove

The Trump Administration’s official narrative that illegal immigrants pose a crime threat to the U.S. was undermined last week by the official figures released from Project New Dawn, ICE’s nationwide sweep of gang members. Nearly 70 percent of the more than 1,300 arrested were US citizens—and just 104 allegedly belonged to MS-13, the El-Salvador-based group that has been the focus of Washington rhetoric.

Earlier this month, US Immigration and Customs Enforcement (ICE) wrapped up what it called the largest anti-gang crackdown in the agency’s history. The six-week operation, dubbed “Project New Dawn,” nabbed more than 1,300 alleged gang members across the country, according to the official news release last week.

But a closer look at the suspects’ alleged affiliations suggests that, when it comes to the threat of Latin America-linked gangs in the United States—particularly the El Salvador-based Mara Salvatrucha-13 gang, known as MS13—recent rhetoric may not match reality

Of the 1,378 arrested, 1,098 were detained on “federal and/or state criminal charges” such as murder and sexual assault, while the other 280 were arrested on “administrative immigration violations.” Additionally, 933 of those arrested “were US citizens,” while 445 were “foreign nationals” from Central and South America, Asia, Africa, Europe and the Caribbean, the news release said.

Nearly 80 percent (1,095) of the arrestees were described as gang members or affiliates. ICE said that “137 were affiliated with the Bloods, 118 with the Sureños, 104 with the Crips, and another 104 with the MS13.” The remaining 283 individuals arrested “claimed no gang affiliation,” according to the official news release.

Throughout the six-week operation, the Homeland Security Investigative unit (HIS) and other law enforcement agencies seized “238 firearms, 22 kilograms of cocaine, 15.5 kilograms of methamphetamine, 3.2 kilograms of heroin, less than a kilogram of fentanyl, 227 kilograms of marijuana and almost $500,000 in US currency.”

Operations were carried out around the country, with the majority of them in the Houston, New York, Atlanta and Newark, New Jersey areas.

The activities of Latin America-linked gangs in the U.S., particularly the MS13, have been used as a rationale for the Trump Administration’s tough immigration policy. In fact, only a relatively small fraction of the arrestees allegedly belonged to the MS13—less than 10 percent, or 104 out of the more than 1,300 total.

Other gangs saw more of their alleged members arrested. For instance, 137 suspects were identified with the Bloods, a predominantly, though not exclusively, African-American street gang founded in Los Angeles. The next largest number (108) were identified with the Sureños, a predominantly Mexican-American street gang. Additionally, HSI arrested 104 suspected members of the Crips, another primarily African-American gang that was born in Los Angeles.

In other words, the vast majority of those arrested had no alleged affiliation with the MS13.

Yet, in many major US media outlets such as CNN, the administration’s rhetoric seems to be having an effect. Videos and photos associated with the MS13 were used to illustrate stories about the operation. Despite the fact that relatively few MS13 members were arrested, the gang somehow grabbed the headlines.

To be sure, the MS13 does maintain a violent presence in the US, which has been evident most recently in Suffolk County, New York where local police say the gang is behind at least 10 murders. In response, the New York state Senate approved a bill earlier this week targeting the MS13.

But the gang landscape in the US is extremely complex, which means **the disproportionate attention given to the MS13 may distract from more pressing gang-related problems.

For example, the Federal Bureau of Investigation’s (FBI) 2015 National Gang Report cited cross-border crime as a significant concern for law enforcement in the United States. And the Sureños, Barrio Azteca and Tango Blast gangs were identified as being the most involved in cross-border crimes, according to the report. While the report indicated that the MS13 was also involved in these crimes, it was not ranked as the primary cross-border threat. (See the FBI’s graphic below)

Courtesy InSight Crime

The outsized focus on the MS13 likely has more to do with US politics surrounding immigration policy than with the actual threat posed by the gang.

For instance, President Donald Trump recently tweeted (incorrectly) that the “weak illegal immigration policies” of his predecessor’s administration had contributed to the growth of MS13 in the United States. And Attorney General Jeff Sessions claimed that “years of lax immigration enforcement” had encouraged gangs to send “both recruiters and members to regenerate gangs” by “smuggling members across the border as unaccompanied minors.”

Yet again, the figures from the ICE operation cast doubt on these claims. Nearly 70 percent of those arrested were US citizens. Moreover, only 10 of the more than 1,300 people arrested as part of the operation—that is, less than 1 percent—had entered the country as unaccompanied minors. And only eight of those 10 were alleged to be affiliated with the MS13.

Trump’s administration has essentially made it official policy to paint all immigrants—particularly those from Mexico and Central America—as criminals.

Parker Asmann

Consequently, it makes political sense for the president and his allies to promote a narrative that portrays the MS13 as the nation’s most severe gang threat. This narrative, however, risks obscuring the threats posed by other gangs, and potentially harms broader US anti-gang efforts in the long term.

Parker Asmann is a writer for InSight Crime, a website specializing in crime and security issues in  Latin America. The above is a slightly edited version of an article published last week.  Readers’ comments are welcome.

from https://thecrimereport.org

Sex and the DHS

Homeland Security chief John Kelly says the crackdown at the U.S.-Mexico border will deter vulnerable women from making the dangerous trip north. But if he wants to prevent sexual abuse of immigrants, he should look closer to home—at the actions of his own border agents, says an immigration expert.

John Kelly, Secretary of the Department of Homeland Security (DHS), sometimes responds to questions about stricter immigration enforcement on the southern U.S. border by suggesting it will deter women who otherwise risk sexual assault when they make the dangerous trip north.

“You’ll  probably. . .  have been [sexually] assaulted once—if you’re lucky,” the Secretary said in a typical response.

But if Secretary Kelly really wants to prevent, and punish, sexual assault, he can begin much closer to home.

From 2010 to 2016, there were “33,126 complaints of sexual and/or physical abuse against DHS component agencies.” This data was reported by the San-Francisco-based Community Initiatives for Visiting Immigrants in Confinement (CIVIC) in an April 11th letter to Kelly and others, and is based on documents from the DHS Office of Inspector General (OIG). Of those complaints, 44% were made against Immigration and Customs Enforcement (ICE), and 31% against Customs and Border Protection (CBP).

The Inspector General’s office opened investigations into just 247 of the 33,126 complaints.

CIVIC, which organizes volunteer visitation to detainees and aims to end immigration detention altogether, obtained the OIG documents through a Freedom of Information Act (FOIA) request.

 

“We are preparing a response to the CIVIC letter,” Joanne Talbott of DHS Public Affairs wrote in a May 11 email.

Meanwhile, Talbot provided a prepared statement by DHS calling the CIVIC report “grossly inaccurate.” DHS “believes the overall incidence of such activity is very low,” the statement says, citing no evidence.

The issue of abuse by DHS agents is not new.

  • In 2014, the  Los Angeles Timesreported that “13 of 809 abuse complaints sent to the [Border Patrol] agency’s internal affairs unit between January 2009 and January 2012 led to disciplinary action.”
  • In 2015, the  ACLU sued DHS “for its failure to produce records related to the abuse and mistreatment of children in the custody of” CBP and the Border Patrol.
  • In 2016,  Human Rights Watch reported that “ICE has failed to . . .  ensure that transgender women are protected from sexual abuse and harassment by guards.”

All of this was during the Obama years —before the Trump administration decided it was necessary to “to take the shackles off” ICE and CBP agents.

As the Trump administration works toward expanding detention centers and gutting detention center standards, it seems inevitable that the number of such abuses will increase.

That’s because sexual predators in ICE and the Border Patrol have been protected by the very nature of the immigration enforcement system. Not only do officers have broad discretion in detaining, releasing, and transferring detainees; but when a victim is subject to deportation, speaks little or no English, and has no statutory right to legal assistance, she is of course even more vulnerable.

Retaliation against detainees who complain has always been the norm. This can include solitary confinement and transfer to distant detention centers, both of which were alleged by ICE detainees on hunger strike in Tacoma just this month.

The administration’s rhetoric about “shackles” has gotten plenty of attention. So did Kelly’s scripted petulance when he said critics  “should shut up and support” the troops. But the latter was only surprising because Kelly had fooled so many people with his mask of calm.

In fact, he had already given us several, less sensational, signals of the danger posed by his appointment.

DHS Secretary John Kelly. courtesy Joint Chiefs of Staff via Flickr

In January, during the chaotic days of the President’s first Executive Order on travel, Kelly gave a briefing at CBP headquarters which made clear how he would address alleged abuses in the agencies under his control.

When asked at that January briefing by a reporter from Congressional Quarterly whether he was looking into allegations that DHS employees had violated court orders related to the Executive Order, Kelly said: “Without question, no member of the Homeland Security team ignored a court order, nor would they ignore a court order.

“I’ve heard these reports. I’ve asked people . . . [to] run down some information for me, and of course we don’t have any information [yet], but we would not ignore a court order.”

Translation: We haven’t investigated, but we know it’s not true.

Another reporter asked about allegations from lawyers at Dulles Airport that travelers had been denied access to counsel in violation of a court order, and that CBP officials had coerced lawful residents into abandoning their legal status.

CBP acting commissioner Kevin McAleenan came to the podium. He took issue with the first allegation, but his answer left open the possibility that the latter might have happened while his staff were still getting a handle on contradictory orders. McAleenan did not say his agents had broken the law, but he did promise to look into the allegations and to “make any corrections.”

Kelly smelled danger. Although he had just acknowledged that McAleenan knew more than he did about what actually took place in the airports, the Secretary stepped back to the microphone and, in a bit of heavy-handed theatre, directly addressed his subordinate instead of the press.

“Just to be clear . . . Kevin: to the best of our knowledge, no CBP officer knowingly, intentionally violated the court order?”

McAleenan: “That’s correct.”

Kelly: “Ok.”

(In April, the ACLU filed  lawsuits to obtain documents related to CBP’s implementation of the executive order because “the government has failed to substantively respond” to its  Freedom of Information Act requests.)

ICE and Border Patrol agents understand that the former Marine Corps general regularly praises their “heroic efforts” because he believes in the enforcer, not in the law. That’s why he could calmly   tell a congressional committee: “I have nothing but respect for judges, but in their world, it’s a very academic, very almost-in-a-vacuum discussion. And of course in their courtrooms, they’re protected by people like me.”

In this new version of political correctness, Kelly also seeks victimhood status for the heroes. At George Washington University, he whined that DHS agents “are often ridiculed and insulted. . . . and frequently convicted in the court of public opinion on unfounded allegations.”

In the history of ICE and the Border Patrol, whether Kelly wants to face it or not, “morale” has always meant the arbitrary exercise of authority with a minimum of constraint, oversight, or investigation into abuse allegations.

The Secretary’s political obligation is to bolster that paradigm; it’s why he was appointed.

But Kelly also has a legal obligation to protect the non-citizen detainees in his custody. There is no reason to believe he will have the courage for that job.

Mark Dow is the author of American Gulag: Inside U.S. Immigration Prisons (California). He teaches English at Hunter College in New York. His commentary on Attorney General Jeff Sessions and ICE detainers appeared at AL.com. He welcomes comments from readers.

 

from https://thecrimereport.org

Suicide, Aaron Hernandez and the Presumption of Innocence

The jail suicide of the former New England Patriots’ player triggered a request for vacating his murder conviction—which was under appeal when he died. That’s perfectly within the law, but does it represent justice for his victim?

In April 2015, former New England Patriot Aaron Hernandez was convicted of murder for the killing of Odin L. Lloyd and sentenced to life without parole. He appealed that conviction; Lloyd’s mother filed a wrongful death civil lawsuit against him.

Two years later and while those cases were pending, Hernandez again faced murder charges for the deaths of two men in a drive-by shooting outside a Boston nightclub. But this time, the jury acquitted him on most of the charges, although it did convict him of illegal possession of a firearm.

However, just five days after the acquittal, Hernandez was found dead in his prison cell, having committed suicide by hanging himself with a sheet.

You might think that the Lloyd family would feel some relief or sense of closure with the death of Hernandez. But due to an unusual legal rule called “abatement ab initio,” his conviction for Lloyd’s murder may be vacated because his appeal was still pending when he died—and voiding that conviction will impact the still-open wrongful death lawsuit.

“Abatement ab initio” is Latin and means to roll back a process to its beginning. The idea is that an appeal is a critical component of the criminal justice system because, among other things, it gives the public confidence that a conviction is valid.

If an appeal of a conviction is undecided when a defendant dies, there’s a chance that the verdict wouldn’t have stood. Thus, the conviction is voided and the defendant is treated as he was at the start of the criminal process: as if he’d never been charged, much less convicted.

Abatement of Hernandez’s conviction will mean that the Lloyd family won’t be able to rely on that conviction in the wrongful death lawsuit as proof that Hernandez was responsible for Lloyd’s death. They’ll have to present the evidence that established that conviction all over again, including having the witnesses re-testify.

The Hernandez case is hardly the first high-profile conviction vacated due to abatement.

For example, in 2006, the conviction of former Enron chairman Kenneth Lay on federal securities, conspiracy and fraud charges was voided after his death because his appeal was still pending.

Because Lay’s conviction was nullified, the government could no longer seize his estate’s assets to compensate the victims of his crimes. Instead, the government was forced to file a civil forfeiture action against Lay’s estate, seeking almost $13 million.

Both the Hernandez and Lay cases illustrate an essential flaw with abatement. The concept completely ignores the interests and rights of the victims of the crimes underlying the vacated convictions.

Why is the reputation of a dead man more important than the rights of those whom he was convicted of victimizing?

The impact of abatement on victims is very clear in a case like Lay’s, where the victims suffered easily quantifiable financial harm for which they deserve restitution. Victims in such cases may be able to get restitution through the civil courts, but they won’t be able to rely on proof of the conviction to make their cases.

Abatement’s impact is harder to quantify in a case like Hernandez’s but it nonetheless affects victims and their families. As the Supreme Court of Idaho explained in State v. Korsen, “Abatement of the conviction would deny the victim of the fairness, respect and dignity guaranteed by these laws by preventing the finality and closure they are designed to provide.”

The federal Crime Victims’ Rights Act gives victims specific, enforceable rights, including the right to be treated with “fairness and with respect for the victim’s dignity and privacy” as well as the right to “full and timely restitution as provided in law.”

Similarly, all states give crime victims certain rights. Most enshrine these rights in their constitutions. The continued use of abatement flies in the face of this national recognition of such rights.

As a bulletin from the National Crime Victim Law Institute says, “The death of a defendant, found guilty in a court of law, should not erase the rights of the victims left behind.”

Yes, the right to appeal one’s conviction is very important, as is the presumption of innocence. And that principle only applies until a defendant has been found guilty by a judge or jury. The presumption of innocence disappears upon conviction.

Abatement essentially extends the presumption of innocence until confirmation of the conviction on appeal and, practically speaking, presumes that the defendant would have prevailed on appeal had he lived.

However, it’s not logical or reasonable to presume that every dead defendant would have been vindicated by an appeals court.

For example, Lay’s co-defendant Jeffrey K. Skilling was convicted of similar charges, which were affirmed on appeal. As a result, Skilling was sentenced to 168 months in prison and ordered to forfeit approximately $42 million to be applied toward restitution for the victims of the fraud at Enron.

According to Bureau of Justice Statistics for criminal cases in state appeals courts in 2010, of the cases that were reviewed on the merits on appeal, 81% of the convictions were affirmed. In Massachusetts, where the Hernandez case is pending, of the 709 criminal cases decided by the appeals court in 2015, 603 (85%) affirmed the lower court’s decision.

Thus, most defendants’ convictions are not overturned on appeal, so why are we giving dead defendants the benefit of the doubt?

It’s also important to remember that, under abatement, the strength of the evidence against the defendant and the likelihood of his prevailing on appeal are irrelevant. The conviction is vacated as a matter of procedure and without any consideration of the merits of the defendant’s case.

For that reason, I believe abatement undermines the criminal justice system. No conviction should be overturned automatically without any regard for—or assessment of— the evidence or merits of the case.

Of course, the way around that concern would be to let the defendant’s appeal proceed after his death.

In fact, some states take this approach, allowing another individual, such as a family member, to substitute for the defendant for appeals purposes. But doing so is a waste of limited court resources. And where does it end—how many levels of appeal are enough? Must we let the case go all the way to the U.S. Supreme Court before letting the conviction stand?

A key difference between the Lay and Hernandez cases is that Lay died from a heart attack, while Hernandez killed himself. You could argue that when Hernandez chose to end his life knowing that his appeal was still pending, he essentially waived that appeal.

That argument is one that prosecutors in Massachusetts are making in challenging the application for abatement in the Hernandez case. They argued that dismissing the conviction would reward Hernandez for his “conscious, deliberate and voluntary act” of committing suicide.

Prosecutors also argued that because Hernandez was imprisoned for life without parole, his death means his sentence has now been served in its entirety. So arguments against “punishing” a dead man by letting his conviction stand are baseless.

Not to be crass, but once a defendant is dead, the status of his conviction doesn’t matter to him anymore.

That’s why the state of Connecticut dismisses the pending appeal of a deceased defendant on the grounds that it’s moot since the defendant is no longer alive and so wouldn’t benefit should the conviction be overturned. Moreover, if a new trial was granted on appeal, it couldn’t proceed because the defendant can no longer participate in his defense.

Robin Barton

Some commentators point to the potential unfair impact of letting the conviction stand on the defendant’s estate or family. Although it’s not unreasonable to consider those interests, they shouldn’t outweigh the interests of the criminal justice system as a whole or of the victims of the crime.

Bottom line: Abatement doesn’t further justice. The concept is innocent until proven guilty—not until proven guilty and confirmed on appeal.

 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.

from https://thecrimereport.org

Big Brother Online: Policing and the Cloud

Government agencies, including law enforcement, are able to access more of our personal data stored online than ever before. A Vanderbilt Law School professor says it’s time to develop a “21st century framework” for stronger privacy protection.

It is now a commonplace that virtually everything we do is memorialized on databases.  Some of these electronic repositories are maintained by government, but most are in the hands of Internet service providers, credit card companies and other commercial enterprises.

Databases contain an astonishing range of our intimate daily activities, including financial transactions, Internet connections, travel routes, tax information, and even medical treatment and biometric information—as well as more prosaic matters ranging from employment and residence history to movie-watching habits and how often we turn on our lights.

It may be surprising that the police can access this information with relative ease. For instance, government officials seeking data from third parties virtually never need a warrant, because of Supreme Court decisions that have held, in essence, that once information is surrendered to a third party like a bank, one loses all constitutional privacy protection.

In order to obtain records of our Internet, phone, bank and similar transactions, the police usually only need to obtain an “ex parte subpoena,” which at most requires a showing that the information is somehow relevant to an investigation and which does not permit the target of the investigation to contest it prior to disclosure.

In many other situations, such as accessing commercial camera footage or obtaining data about credit card purchases or past travel routes, most jurisdictions do not require police to follow any judicial process, but rather allow them to obtain the information at their discretion and that of the data holders.

Several decades ago, this regime might have made sense.

The effort required to obtain data from hard-copy files was itself a significant obstacle to data aggregation and analysis.  Today, however, digitization has vastly increased the scope of databases and at the same time increased government agencies’ ability to access, aggregate and scrutinize them, in ways that could only be imagined just a few years past.

Can this information be protected from prying government eyes?

Database searches by law enforcement come in at least five different guises: suspect-driven, profile-driven, event-driven, program-driven, and volunteer-driven.  In each area, the regulatory regime needs to be rethought.  A warrant may not be necessary in all of these situations, but in many a subpoena might not be enough.

Some database access by the state is aimed at getting as much information as possible about individuals suspected of wrongdoing. Here legislatures and courts should require increasingly demanding justification requirements—sometimes even a warrant—based on the nature and amount of data sought.

Other efforts do not start with a particular suspect, but rather with a profile of a hypothetical suspect, purportedly depicting the characteristics of those who have committed or will commit a particular sort of crime. Both national security agencies and ordinary police departments are increasingly relying on this type of “predictive policing.”

Courts should be involved here as well, making sure both that there is justification for profile-driven identification, and that the profiles are properly validated and do not rely on obviously biased risk factors.

A third type of data search starts neither with a suspect nor a suspect profile but with an event—usually a crime—and tries to figure out, through location and related information, who might be involved. At least when this type of “data dump” is extensive, judges should evaluate the need for and scope of such investigations.

Fourth, in order to have the information needed for suspect-, profile-, and event-driven operations at the ready, government itself often initiates data collection, as with the National Security Agency’s metadata program made famous by Edward Snowden.  These collections of data ought be maintained outside of government to the extent consistent with governing needs, and wherever maintained should be authorized by specific legislation and administrative rules transparently and democratically arrived at.

Christopher Slobogin

Finally, restrictions should be placed on the extent to which third parties should be able to proffer to the government personal information they have acquired from us solely because we must surrender it to receive basic services such as communicating, travelling or purchasing. Further, courts should scrutinize any government incentives, financial or otherwise, that encourage third parties to “voluntarily” transfer information that normally would be subject to the other four types of access and collection limitations.

It is time to rethink when government can gain access to The Cloud and other electronic databases.  Otherwise, everything we do will increasingly become available to law enforcement agencies at little more than the touch of a button.

Christopher Slobogin is the Milton R. Underwood Chair in Law and Director of the Criminal Justice Program at Vanderbilt Law School. This op-ed was adapted from his white paper for the National Constitution Center’s white paper series entitled “A Twenty-First Century Framework for Digital Privacy,” supported by Microsoft. The white paper series will be released at an event at the National Constitution Center on Wednesday, May 10, 2017.

 

 

 

from https://thecrimereport.org