Tag: criminal justice

Deep Racial Divide in Perceptions of Police and Reported Experiences, No Group Is Anti-Cop

In the wake of the mistrial of police officer Michael Slager accused of shooting and killing unarmed Walter Scott as he ran away, a new Cato Institute/YouGov survey of public attitudes toward the police finds a 38-point gap between white and black Americans’ perception that police are too quick to resort to deadly force.

Nearly three-fourths (73%) of African Americans and 54% of Hispanics believe the police are “too quick to use deadly force,” compared to 35% of white Americans. Instead, 65% of white Americans believe police resort to lethal force “only when necessary.” 

When it comes to police tactics overall, black Americans (56%) are more likely to think they are “too harsh” compared to white (26%) and Hispanic (33%) Americans. Majorities of whites (67%) and Hispanics (58%) believe police generally use the right amount of force for each situation.

Find the full public opinion report here.

Is the Justice System Impartial? 

Only 17% of African Americans believe the criminal justice system treats all Americans equally and only 31% are highly confident their local police department treats all racial groups impartially. Whites are 32 points more likely to believe the justice system treats everyone equally (49%) and a solid majority (64%) are confident their local police are impartial. Hispanics fall in between with 27% who think the justice system and 42% who believe their local police treat everyone the same. Among all Americans, only 42% think all are treated equally by the justice system but 56% are highly confident their local police department treats everyone equally. 

Are Police Trustworthy and Held Accountable?

Strikingly high numbers of whites (46%), blacks (61%), and Hispanics (61%) think that “most” police officers “think they are above the law.” Overall, nearly half (49%) of all Americans worry that police think the law doesn’t entirely apply to them. 

Nearly two thirds (64%) of black Americans and a majority (51%) of Hispanic Americans believe police are “generally” not held accountable for misconduct when it occurs. This is 21 points higher than the 43% of white Americans who also share this view. Instead, a majority (57%) of whites think police are generally brought to account. 

Are Police Effective?

African Americans (41%) and Hispanics (41%) are twice as likely as white Americans (29%) to say they are “extremely” or “very” worried about crime. Furthermore black Americans (41%) are more than twice as likely as whites (17%) or Hispanics (15%) to say they know someone who was murdered.

Despite more salient fears over safety, only 44% of African Americans are highly confident their local police department responds quickly to a call for help. White Americans are 15 points more confident (59%) in their local police to come quickly if needed.  In a similar pattern, white Americans are about 20 points more likely than black Americans to give their local police high marks for protecting them from crime (60% vs. 38%) and enforcing the law (64% vs. 44%). Hispanics fall in between with about half who give their police high marks for enforcing the law, protecting them from crime, and responding promptly.

Do the Police Care About You?

Only 37% of African Americans are highly confident their local police department cares about the people they serve. White Americans (59%) are far more confident that their local police cares. A little less than half of Hispanic Americans (47%) agree.

Are the Police Courteous?

White Americans (62%) are 19 points more likely than African Americans (43%) and 13 points more likely than Hispanic Americans (49%) to rate their local police departments highly for being courteous.

White, Hispanic, and Black Americans Report Different Experiences with Police

Most Americans have personally had positive experiences with the police but those who have experienced verbal and physical misconduct are disproportionately black and Hispanic.

African Americans are nearly twice as likely as whites to say a police officer swore at them. About a quarter of African Americans (26%) and Hispanics (22%) report a police officer personally using abusive language or profanity with them compared to 15% of white Americans. The study also found some evidence that suggests whites who are highly deferential toward the police are less likely to report experiences with police profanity, whereas blacks and Latinos who are highly deferential do not report similarly improved treatment. [1] 

African Americans are about twice as likely as white Americans to know someone physically abused by police. Thirty-nine percent (39%) of African Americans know someone who has been physically mistreated by the police, as do 18% of whites and 27% of Hispanics.

Higher-income African Americans report being stopped at about 1.5 times the rate of higher-income white Americans. In contrast, lower income African Americans report being stopped only slightly more frequently than lower income white Americans.

African Americans (50%) are also about 30 points less likely than whites (70%) and Latinos (66%) to report being satisfied with their personal police encounters over the past 5 years.

Favorability Gap Toward Police Has Changed Little Over Past 50 Years

Taking these results together, it comes as little surprise that there is a wide racial gap in favorability toward the police.  Only 40% of black Americans have a favorable view compared to 68% of white Americans. Hispanic Americans fall in between with 59% who share a positive view of the police.

What is particularly surprising, however, is that these numbers haven’t changed much since 1970 when 67% of white Americans and 43% of African Americans had a favorable view of the police—nearly identical to today’s numbers.[2] 

New In the Summer Issue of Regulation

The latest issue of Regulation magazine has been released on the Cato website.

The cover article, by Christopher Robertson and Jamie Cox Robertson of the University of Arizona, examines the extent of over incarceration in the U.S.  Why are so many innocent people convicted of crimes? They review recent scholarship that concludes that many types of evidence introduced by prosecutors to convince jurors of guilt, such as bite mark, fingerprint, and bullet analysis, are not scientifically reliable. The authors suggest various remedies to the wasteful incarceration problem including public rewards for attorneys who demonstrate that a prisoner should be released.

Researchers John Lott and Gary Mauser explore empirical research on firearms. They found that the findings of such research vary systematically with the disciplinary orientation of the authors.  A large majority of articles written by economists find that expanded legal access to firearms reduces crime and does not increase the suicide rate, and that gun owners who are approved for concealed-carry are less likely to commit crimes than ordinary Americans. In contrast Criminologists were more evenly divided on these questions.

Two articles critique regulatory rationales rooted in behavioral economics. In Infantilization by Regulation law professors Jonathan Klick and Greg Mitchell argue that protecting people from the effects of their choices reduces their ability to think critically about them.  Georgetown ethics professor John Hasnas explores how much liberty is preserved under modern “libertarian paternalism.” He then asks whether the insights of behavioral economics apply to public decisions, argues yes, and concludes that U.S. Constitution is an excellent example of choice architecture.

One of the most discussed topics in higher education policy is the rate of inflation in university tuition. Top William and Mary economists find empirical evidence that highly selective schools reduce financial aid to students who receive federal tuition support.

In our Briefly Noted articles economist Ike Brannon argues that cities harm transit riders by over-providing subsidized parking near street corners. Brannon and the American Action Forum’s Sam Batkins question whether expanded family leave policies would harm workers. University of California, Irvine emeritus professor Richard McKenzie shares the results of his survey that found servers at fast-casual restaurants would not support substituting higher hourly wages for the current tipped-wage system. Finally, University of Michigan professor Thomas Hemphill lays out a practical approach to reforming occupational licensing laws.

Book reviews include Free Market Environmentalism reviewed by Timothy Brennan, Robert Reich’s Saving Capitalism and Robert Gordon’s The Rise and Fall of American Growth reviewed by David R. Henderson, and Phil Murray’s review of Dani Rodrik’s Economics Rules.

 

My Working Papers column describes papers on cigarette taxes and food stamps, e-cigarettes and adolescent smoking, corporate inversions, and public housing and crime.

Time to Overhaul the Criminal Justice System?

This week I hosted a debate between two federal appellate judges on the question, “Does the American Criminal Justice System Need an Overhaul?”  Judge Alex Kozinski says it does; Judge Jay Harvey Wilkinson says it does not.  Watch it here and decide for yourself.

By way of background, Kozinski authored a much discussed article titled, “Criminal Law 2.0.”  One problem he identifies (among many others), is that federal prosecutors too often shirk their legal and ethical obligations.  The Department of Justice tried ignoring his criticism, but is now responding.  Here is a snippet from an article in the National Law Journal (November 16 – sorry, pay wall for this one).

Justice Department Rebuts Judge Kozinski’s Criticism of Prosecutors

In a rare public war of words, top officials at the U.S. Department of Justice are pushing back against recent criticism about prosecutors’ ethics from Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

The thrust of the DOJ argument is the familiar, “Trust us – we’ll do the right thing.”  Kozinski rightly insists upon a “trust, but verify” posture as it relates to government promises.

Related items here & here.

 

“Take a Valium, Lose Your Kid, Go to Jail”

During pregnancy “occasional, small doses of diazepam (the generic name for Valium) are considered safe,” writes Nina Martin in a new ProPublica investigation. “But one morning a few weeks later, when [Casey] Shehi was back at her job in a nursing home and the baby was with a sitter, investigators from the Etowah County [Alabama] Sheriff’s Office showed up at the front desk with a warrant. She had been charged with ‘knowingly, recklessly, or intentionally’ causing her baby to be exposed to controlled substances in the womb — a felony punishable in her case by up to 10 years in prison. The investigators led her to an unmarked car, handcuffed her and took her to jail.” 

Read the whole thing here to learn what happened next. “Shehi had run afoul of Alabama’s ‘chemical endangerment of a child’ statute, the country’s toughest criminal law on prenatal drug use.” It provides for imprisonment of up to ten years in cases where the developing baby has suffered no ill effects from an exposure, as in this case. More than 1,800 women have been arrested under its terms since its passage in 2006. 

In the 2001 case of Ferguson v. City of Charleston the Supreme Court ruled 6-3 that a joint state hospital-police program in Charleston, D.C., infringed the Fourth Amendment rights of pregnant women by subjecting them to drug screening without their knowledge or consent and relaying the results to authorities for prosecution. My colleague Tim Lynch wrote about that case here

You can explore Cato’s decades of research on the Drug War and its consequences for liberty here (adapted and expanded from Overlawyered).

New Policy On White Collar Prosecution Risks Scapegoating

Last week, the Department of Justice announced a new policy regarding its approach to corporate criminal investigations.  Instead of focusing first on the company and, having resolved that portion of the investigation, turning to the task of identifying potential individual criminal suspects, prosecutors are now directed to build their cases against individual wrong doers from the start.  Media coverage of this policy statement has focused on criticism levied against the administration for being too soft on Wall Street and too cozy with corporate donors.  The New York Times trotted out the old complaint that no one went to jail in the wake of the financial crisis (even though, to my knowledge, no one has ever identified a criminal law the violation of which caused any part of the crisis).  While the administration’s rhetoric about equal justice before the law is admirable, the policy memo and its surrounding coverage have a distressing whiff of scapegoating about them. 

Erie County Forced to Hand Over Stingray Documents

A few weeks ago, a New York judge ruled that the Erie County Sheriff’s Office had inappropriately denied a freedom of information request from the NYCLU regarding the office’s use of Stingray cell phone trackers.  The judge ordered the sheriff to release the documents that had been inappropriately withheld.

Yesterday, the sheriff complied and the documents prove exactly what transparency and civil liberties advocates have been arguing: these devices are often deployed in complete secrecy and with no judicial oversight.

Per the NYCLU press release:

The Sheriff’s Office used Stingrays at least 47 times between May 1, 2010, and October 3, 2014, including to assist other law enforcement departments like the Monroe County Sheriff’s Office. It appears that the office only obtained a court order in only one of those 47 circumstances, in October 2014, and even in that case it was not a warrant but a lower level court order (called a “pen register” order). This contradicts what the sheriff said to a local reporter and undermines what he said to the legislature – that this device is being used subject to “judicial review.”

Further, the federal government is directly complicit in this secrecy, forcing law enforcement agencies to sign non-disclosure agreements in exchange for use of the devices.  The agreements forbid participating law enforcement agencies from disclosing the nature of these devices, even to judges and defense attorneys.  The agreement even contains provisions giving the FBI the authority to compel prosecutors to drop criminal cases rather than reveal the Stingray use to the court.

From the non-disclosure agreement:

In addition, the Erie County Sheriff’s Office will, at the request of the FBI, seek dismissal of the case in lieu of using or providing, or allowing others to use or provide, any information concerning the Harris Corporation wirelesss collection equipment/technology, its associated software, operating manuals, and any related documentation (beyond the evidentiary results obtained through the use of the equipment/technology), if using or providing such information would potentially or actually compromise the equipment/technology. This point supposes that the agency has some control or influence of the prosecutorial process.  Where such is not the case, or is limited so as to be inconsequential, it is the FBI’s expectation that the law enforcement agency identify the applicable prosecuting agency, or agenices, for inclusion in this agreement.

This is not just idle boilerplate.  Although that provision of the agreements has until now been redacted, civil liberties advocates have long assumed its existence based on several instances of serious criminal charges being dropped when scrupulous defense attorneys or judges start inquiring into how police were able to locate suspects. Perhaps more troubling, the conditional nature of that provision implies that police and prosecutors can use information gleaned from these devices unless the judge or opposing counsel asks the right questions to expose the Stingray use.  That implication raises a troubling question: how often has evidence from illicit Stingray use been allowed to stand because neither the judge nor the lawyer knew what to look for?

A legitimate justice system requires transparency and accountability.  It requires checks and balances and respect for the rule of law. With every revelation about the widespread and unfettered use of cell site simulators by police, it becomes more clear that this program flies in the face of our cherished principles of justice.

 

Stingrays and Police Secrecy

The New York Times this week published a troubling article detailing the secrecy surrounding police use of Stingray cellular site simulators.  Essentially, these devices (which can be mounted on vehicles or carried by hand) mimic the signals of a cell phone tower in order to force cell phones in a given area to connect to the device.  Both data on the phone (including numbers, texts, emails, and any other data stored on the phone) and the phone’s physical location can then be accessed and recorded by police.

Additionally concerning is the extensive use of non-disclosure agreements by the Harris Corporation, which sells the devices, to prevent the public (and in some cases even judges, defense attorneys, and prosecutors) from finding out how these devices are being used or even whether a given department owns any.   The preference for secrecy is so powerful that prosecutors have dropped serious criminal charges simply to avoid having the police use of Stingrays subjected to examination by defense attorneys or judges.

According to the Times,

The confidentiality has elevated the stakes in a longstanding debate about the public disclosure of government practices versus law enforcement’s desire to keep its methods confidential. While companies routinely require nondisclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.

The stated reason for the secrecy is the common refrain that terrorists will circumvent the technology if they know what law enforcement is up to.  However, a recent ACLU report was unable to uncover a single instance of these devices being used to bring domestic terrorists to justice in any jurisdiction surveyed. 

The ACLU report estimates that Stingrays are in wide and rapidly increasing use in law enforcement agencies across America.  However, there appears to be very little oversight structure for police departments, legislatures, or courts governing the use of these devices. In some instances, it seems that courts have even unwittingly been authorizing their use without the judge’s full understanding.  For instance, a sampling of applications for court orders from Florida law enforcement agencies informs the judge that the order is for cell phone records, but doesn’t mention anything about how they’re to be obtained.  Police claim such vague orders authorize Stingray deployment, but some judges have been less than enthused upon finding out.