Topic: Law and Civil Liberties

David Simon on Baltimore’s Policing Nightmare

If you happened to miss it last week, go catch Bill Keller’s extraordinary Marshall Project interview with David Simon, former Baltimore Sun reporter, creator of the crime drama “The Wire,” and longtime Drug War critic. A few highlights:

I guess there’s an awful lot to understand and I’m not sure I understand all of it. The part that seems systemic and connected is that the drug war — which Baltimore waged as aggressively as any American city — was transforming in terms of police/community relations, in terms of trust, particularly between the black community and the police department. Probable cause was destroyed by the drug war. …

Probable cause from a Baltimore police officer has always been a tenuous thing. It’s a tenuous thing anywhere, but in Baltimore, in these high crime, heavily policed areas, it was even worse. When I came on, there were jokes about, “You know what probable cause is on Edmondson Avenue? You roll by in your radio car and the guy looks at you for two seconds too long.” Probable cause was whatever you thought you could safely lie about when you got into district court.

Then at some point when cocaine hit and the city lost control of a lot of corners and the violence was ratcheted up, there was a real panic on the part of the government. And they basically decided that even that loose idea of what the Fourth Amendment was supposed to mean on a street level, even that was too much. Now all bets were off. Now you didn’t even need probable cause. The city council actually passed an ordinance that declared a certain amount of real estate to be drug-free zones. They literally declared maybe a quarter to a third of inner city Baltimore off-limits to its residents, and said that if you were loitering in those areas you were subject to arrest and search. Think about that for a moment: It was a permission for the police to become truly random and arbitrary and to clear streets any way they damn well wanted.

North Carolina Forfeiture Case Reveals Limits of Executive Reform, Government Defensiveness

In March, we detailed reforms announced by Attorney General Eric Holder to federal asset forfeitures under the Bank Secrecy Act’s “structuring” law.  Those changes mirror an earlier policy shift by the Internal Revenue Service.  Unfortunately for some, those changes were not made retroactive, meaning people whose property was seized before the announcements in a way that would violate the new policies did not automatically have their property returned.

Lyndon McLellan, the owner of a North Carolina convenience store, has not been charged with a crime.  He has, however, had his entire business account totaling $107,702.66, seized by the federal government.  As Mr. McLellan attempts to recover his money, he is now being represented by the Institute for Justice, which issued this release:

“This case demonstrates that the federal government’s recent reforms are riddled with loopholes and exceptions and fundamentally fail to protect Americans’ basic rights,” said Institute for Justice Attorney Robert Everett Johnson, who represents Lyndon. “No American should have his property taken by the government without first being convicted of a crime.”

In February 2015, during a hearing before the U.S. House of Representatives Ways & Means Oversight Subcommittee, North Carolina Congressman George Holding told IRS Commissioner John Koskinen that he had reviewed Lyndon’s case—without specifically naming it—and that there was no allegation of the kind of illegal activity required by the IRS’s new policy. The IRS Commissioner responded, “If that case exists, then it’s not following the policy.”

The government’s response to the notoriety Mr. McLellan’s case has received was nothing short of threatening.  After the hearing, Assistant U.S. Attorney Steven West wrote to Mr. McLellan’s attorney:

Whoever made [the case file] public may serve their own interest but will not help this particular case. Your client needs to resolve this or litigate it. But publicity about it doesn’t help. It just ratchets up feelings in the agency. My offer is to return 50% of the money. 

What “feelings in the agency” could possibly be “ratchet[ed] up” by highlighting a case in which the owner is accused of no wrongdoing while both the Department of Justice and the Internal Revenue Service have announced reforms to prevent these seizures from occurring?

Perhaps the government is sensitive to the avalanche of negative press that civil asset forfeiture has received over the past several years (thanks to the tireless efforts of organizations like the Institute for Justice and the ACLU).  Perhaps the government feels that the game is nearly up, after dozens of publicized cases of civil asset forfeiture abuse.

Cases like this show that the executive branch, now under a new Attorney General who has her own controversial civil forfeiture history, cannot be trusted to stay its own hand.  State and federal legislators must take the initiative, as some already have, if this abusive practice is going to end.

We Should Be Wary of Federal Body Camera Funds

Last week, the Department of Justice (DOJ) announced a $20 million police body camera pilot funding scheme to assist law enforcement agencies in developing body camera programs. In the wake of the killings of Michael Brown, Walter Scott, and Freddie Gray there has been renewed debate on police accountability. Unsurprisingly, body cameras feature heavily in this debate. Yet, despite the benefits of police body cameras, we ought to be wary of federal top-down body camera funding programs, which have been supported across the political spectrum.

The $20 million program is part of a three-year $75 million police body camera initiative, which was announced by the Obama administration shortly after the news that Darren Wilson, the officer who shot and killed Michael Brown in Ferguson, Missouri, would not be indicted. It is undoubtedly the case that if Wilson had been wearing a body camera that there would be fewer questions about the events leading up to and including his killing of Brown. And, while there are questions about the extent to which police body cameras prompt some “civilizing effect” on police, the footage certainly provides welcome additional evidence in investigations relating to police misconduct, thereby improving transparency and accountability.

“Just Follow the Damn Constitution”

At a hearing this week on mobile device security, law enforcement representatives argued that technology companies should weaken encryption, such as by installing back doors, so that the government can have easier access to communications. They even chastised companies like Apple and Google for moving to provide consumers better privacy protections.

As an Ars Technica report put it, “lawmakers were not having it.” But a particular lawmaker’s response stands out. It’s the statement of Rep. Ted Lieu (D-CA), one of the few members of Congress with a computer science degree. He also “gets” the structure of power. Lieu articulated why the Fourth Amendment specifically disables government agents’ access to information, and how National Security Agency spying has undercut the interests of law enforcement with its overreaching domestic spying.

Give a listen to Lieu as he chastises the position taken by a district attorney from Suffolk County, MA:

Baltimore and the Rights of the Poor

​Well… there goes our trip to Baltimore. ​We’d been hoping to see the annual Kinetic Sculpture Race, but I see it’s been postponed sine die.

If you’re inclined, now is your chance to laugh. Get it out early.

Here’s a problem in describing how cities work: Any example I might pick to symbolize the decay of Baltimore can always be ridiculed: Weep, weep my friends for that lousy corporate CVS, the one that nobody really liked anyway!

See how easy that was?

The one direct effect I have experienced from the recent riots is that my daughter and I will possibly not be seeing a giant pink taffeta poodle pedaled down the streets of Baltimore by a bunch of probably inebriated art students. I’m unlikely to suffer any of the riots’ more troubling effects, like having to walk an extra half mile to get my asthma medication. Or like getting my car torched.

(And yes: Leading with the pink taffeta poodle might just be the definition of white privilege, but at least I’m, you know, aware of it.)

Cities are hard to explain. They’re made up of millions of tiny little things, and of the networks of trust and expectation that exist among them. Any one of those things—a CVS, a giant pink taffeta poodle, a population of inebriated art students—does not make a city. Almost any one of them can be laughed at, or just dismissed as trivial, in isolation. But good, functional cities are networks. They’re not isolated nodes. A city isn’t the big taffeta poodle, but it might be the expectation that there will be something fun, and free, to do in the streets on some warm spring afternoon. For which we can thank the art students.

President Obama Wields Much More Influence over Police than He Admits

Taking time out of his press conference with Japanese Prime Minister Shinzō Abe on Tuesday, President Obama addressed the chaos in Baltimore following the unexplained death in custody of Freddie Gray. 

While pleading for calm, President Obama lamented his lack of authority to fix the problem:

Now, the challenge for us as the federal government is, is that we don’t run these police forces.  I can’t federalize every police force in the country and force them to retrain.  But what I can do is to start working with them collaboratively so that they can begin this process of change themselves. 

Obama also lamented the lack of political momentum to address the poverty and violence afflicting communities like Baltimore:

That’s how I feel.  I think there are a lot of good-meaning people around the country that feel that way.  But that kind of political mobilization I think we haven’t seen in quite some time.  And what I’ve tried to do is to promote those ideas that would make a difference.  But I think we all understand that the politics of that are tough because it’s easy to ignore those problems or to treat them just as a law and order issue, as opposed to a broader social issue.

Both of those lamentations are misleading.

While it’s true that the federal government generally lacks the power to “force” local police departments to change their behavior, Obama’s comments completely omit his role in administering several federal policies that facilitate, and even incentivize, the abuses and tensions he condemned.

The federal drug war tears apart families through mass incarceration and violence and unjustly forces millions of (especially poor, minority) Americans to carry the stigma of being a convicted criminal. Prohibition, just as it did in the 1920s and 30s, has turned huge swaths of urban America into battlefields in the competition for black market real estate. President Obama has already demonstrated a willingness to ease federal drug enforcement in several states, and there is nothing keeping him from expanding that rollback.  He has also pardoned several non-violent drug offenders, even while federal prosecutors convict new ones every day.

Sec. Clinton’s Criminal Justice Reform Proposals

Today, presidential candidate Hillary Rodham Clinton addressed criminal justice reform in a speech at Columbia University. Earlier in the week, the Brennan Center released a book with chapters from politicians across the political spectrum discussing the need for criminal justice reform, and Secretary Clinton contributed one of them. Now that the Democratic front-runner has joined Republican presidential aspirants in addressing reform, criminal justice appears to be a significant 2016 campaign issue.

Three of Clinton’s policy suggestions are problematic.

First, and perhaps the one that will get the most headlines, she called for making police body cameras “the norm everywhere,” by using federal grants and matching funds. Putting aside the considerable price tag to subsidize the roughly 18,000 American law enforcement agencies to buy body cameras, how officers use those cameras and how law enforcement uses their data must be of utmost concern. As my colleague Matthew Feeney noted in a blogpost yesterday, the proposed body camera policy in Los Angeles would allow officers to review body camera footage before giving statements on use of force incidents. That policy would not serve transparency interests, but instead police officer self-interest.

Throwing money for cameras to local police departments as a solution to police transparency may sound good in theory, but making it work will be much more difficult in practice. 

Second, she argued that low-level offenders, “must be some way registered in the criminal justice system.” The criminalization of drug consumption has been one of the primary drivers of incarceration. Diverting low-level offenses to drug courts, as Clinton suggests, could be an improvement over jailing offenders, but for many of these cases, it’s not clear that the criminal justice system should be involved at all.