Tag: doj

Another Confusing Federal Report on Immigrant Incarceration

The Departments of Justice and Homeland Security (DOJ/DHS) will be publishing a quarterly report on immigrant incarceration in federal prisons because of an Executive Order issued by President Trump last year.  The most recent report found that 20 percent of all inmates in federal prison are foreign-born and about 93 percent of them are likely illegal immigrants.  Since immigrants are only about 13.5 percent of the population and illegal immigrants are only about a quarter of all immigrants, many are misreading it and coming away with the impression that foreign-born people are more crime-prone than natives. 

That is simply not true.

This new DOJ/DHS report only includes those incarcerated in federal prisons, which is not a representative sample of all incarcerated persons in the United States.  Federal prisons include a higher percentage of foreign-born prisoners than state and local correctional facilities because violations of immigration and smuggling laws are federal offenses and violators of those laws are incarcerated in federal prisons.        

The report itself almost admits as much with this important disclaimer: 

This report does not include data on the alien populations in state prisons and local jails because state and local facilities do not routinely provide DHS or DOJ with comprehensive information about their inmates and detainees—which account for approximately 90 percent of the total U.S. incarcerated population.

New Government Terrorism Report Provides Little Useful Information

The Departments of Homeland Security and Justice (DHS/DOJ) released a report this morning on the threat of international terrorism.  This report was required by President Donald Trump’s executive order that, among other things, originally established the infamous travel ban.  The new DHS/DOJ report produces little new information on immigration and terrorism and portrays some misleading and meaningless statistics as important findings.  Interestingly, the draft version of the report had more interesting and useful information that was mysteriously edited out of the final public version.  It’s remarkable that, given almost a year to produce such a report and with the vast resources of the federal government combined with reams of government information unavailable to the public, that they were able to produce a report of so little of value.     

The DHS/DOJ report found that about 73 percent of those convicted of international terrorism-related offenses from 9/11 through the end of 2016 were foreign-born.  That means that 27 percent of them were native-born Americans.  By focusing exclusively on international terrorism-related charges, this report intentionally ignores domestic terrorists unaffiliated with international terrorists.  Thus, the results of the DHS/DOJ report are, at best, a snapshot of the international subset of terrorism that ignores the purely domestic variety. 

The DHS/DOJ report ignores the most important statistic: how many people were actually killed by these terrorists on U.S. soil.  In our updated terrorism information that runs through the end of 2017, we found that a total of 155 people were killed on U.S. soil in terrorist attacks since January 1, 2002, 34 of them by foreign-born terrorists and 121 of them by domestic terrorists (going back to September 12, 2001 does not add any deaths by identifiable terrorists on U.S. soil but would diminish the chance of dying, so I excluded it from this blog post to bias the results against me).  Since the beginning of 2002, native-born Americans were responsible for 78 percent of all murders in terrorist attacks committed on U.S. soil while foreign-born terrorists only committed 22 percent.  Including the actual number of deaths caused by terrorists flips the DHS/DOJ statistics on its head.     

From the beginning of 2002 through 2017, about the period of time covered by the DHS/DOJ report, the chance of being murdered in a terrorist attack committed by a native-born American on U.S. soil was about one in 40.6 million per year.  During the same period, the chance of being murdered by a foreign-born terrorist was about one in 145 million per year.  The total chance was about one in 32 million a year.  To put that one in 32 million a year chance in perspective, the annual chance of being murdered in a non-terrorist homicide was about one in 19,325 per year or about 1,641 times as great as being killed in any terrorist attack since 9/11.  These numbers are based on updated and expanded data that we plan on publishing in the near future (available upon request). 

The DHS/DOJ report found that at least 549 people were convicted of international terrorism-related charges in federal court from 9/11 to the end of 2016.  These are fewer than the 627 convictions that the DOJ reported through the end of 2015.  What accounts for the 78 fewer convictions over a longer period?  The DHS/DOJ report does not attempt to reconcile their report here with what they have reported previously.  Furthermore, the DHS/DOJ report does not supply the relevant information about the numbers of convictions for terrorism-related offenses, their names, or the actual offenses they committed.  The DHS/DOJ report should have published this information just as the government has done in the past in request to FOIAs.

The DHS/DOJ relies on “terrorism-related convictions” as their important metric, a definition that encompasses numerous convictions that have nothing to do with terrorism.  There is no definition of “terrorism-related” as a crime in U.S. statutes.  The phrase “terrorism-related” appears mostly in reference to actions of government officials in response to terrorism such as a “terrorism-related travel advisory.”  The anti-terrorism Information Sharing Environment, which integrates information which the GAO, defines “terrorism-related” as relating to “terrorism, homeland security, and law enforcement, as well as other information.” That is a definition that so broad “terrorism-related” is not synonymous with “terrorism.” 

The DHS/DOJ report reveals that the DHS had 2,554 encounters with individuals on the terrorist watch list via the FBI’s Terrorists Screening Database (TSDB) in FY 2017.  That means that DHS could have had multiple encounters with the same individuals who were all counted as separate “encounters.”  The TSDB includes the identities of hundreds of thousands of known and suspected terrorists who are both native-born Americans, foreign-born travelers and immigrants to the United States, and foreigners who have not traveled here.  According to a DOJ audit of the TSDB, frontline officers conducted about 270 million checks against the TSDB every month in 2007 with a total of about 3.24 billion checks per year.  Assuming those numbers were unchanged for FY 2017, even though that number has likely increased, and that only 10 percent of them were conducted by DHS, means that about 0.0008 percent of all TSDB checks conducted by DHS resulted in a TSDB hit, or about one for about every 127,000 checks.  That does sound dangerous until you realize that people flagged by the TSDB are not necessarily terrorists.  Even U.S. Senators and Congressmen have been included on the TSDB list.  Getting one’s name on the TSDB list is easy but getting off is very difficult.  As the DOJ audit of the TSDB noted:

[O]ur file review found that the State Department and the DHS’s Customs and Border Protection did not revise encounter records in a screening database in a timely fashion to reflect modified or removed terrorist identities.

Thus, the DHS/DOJ reported TSDB encounters statistic is virtually meaningless.  It’s a count of people the government is concerned about without evidence or a clear way of being removed.  The DHS/DOJ report could have told us how many of these folks actually committed a terrorist attack, eventually did so over time, or were arrested for a terrorism offense but they missed that opportunity. 

The DHS/DOJ report on international terrorism reveals little new information on the international terrorist threat to Americans on U.S. soil.  Unusual for a government report on terrorism, it isn’t even capable of providing many scary-sounding statistics that could frighten people.  While that last point is an improvement, future reports on this topic should seek to provide information on this important topic that isn’t publicly known.  This report fails to do that.

New Report on Illegal Immigrant Criminality Reveals Little & Admits Its Own Shortcomings

The Department of Homeland Security (DHS) and the Department of Justice (DOJ) today released a report that found that about 94 percent of foreign-born inmates in Federal prisons are illegal immigrants.  That is not surprising, as illegal immigrants convicted of an immigration offense are incarcerated in federal prison and account 7.3 percent of all inmates.  Likewise, drug traffickers who cross international borders are also in federal prison and account 46.3 percent of all prisoners.  Thus, illegal immigrants are overrepresented in federal prison because the federal government enforces immigration laws and many drug trafficking laws but only a small fraction of all those incarcerated for all crimes committed in the U.S. are in federal prisons. 

The authors of this DHS/DOJ report do deserve credit for highlighting its shortcomings.  On the first page, it states:

This report does not include data on the foreign-born or alien populations in state prisons and local jails because state and local facilities do not routinely provide DHS or DOJ with comprehensive information about their inmates and detainees.  This limitation is noteworthy because state and local facilities account for approximately 90 percent of the total U.S. incarcerated population.

The federal prison population is not representative of incarcerated populations on the state and local level, so excluding them from the report means that it sheds little light on nationwide incarcerations by nativity, legal status, or type of crime.  On the last point, it is shocking how unrepresentative federal prison is regarding the types of crimes its inmates are convicted of. In 2016, 67,742 people were sentenced to federal prison.  Almost 30 percent of them were for immigration offenses.  Those immigration convictions comprised 100 percent of the convictions for immigration crimes in the United States in 2016.  By contrast, there were only 85 federal convictions for murder out of a nationwide total of 17,785 murder convictions that year, comprising less than 0.5 percent of all murders.

CADC Rules DOJ Discovery Blue Book Off-Limits…For Now

Earlier this month, the U.S. Court of Appeals for the D.C. Circuit (CADC) ruled that the U.S. Department of Justice Federal Criminal Discovery Blue Book for prosecutions were exempt from Freedom of Information Act (FOIA) requests. The National Association of Criminal Defense Lawyers (NACDL) filed the suit to make the book public, and for good reason.
 
For background, criminal discovery is the process by which a prosecutor’s office turns over evidence to the defense team that is relevant to the criminal case before trial. Particularly, evidence that might be helpful or exculpatory to a criminal defendant must be turned over under Brady v. Maryland (1963) and subsequent cases. For example, if investigators independently found an eyewitness that supports a defendant’s alibi, or discovers that a witness or police officer has a history of dishonesty, that information must be turned over to the defense counsel in the furtherance of justice. Such evidence is known as “Brady material.” 
 
The origin of NACDL’s case dates back to the bungled prosecution of the late Sen. Ted Stevens (R-AK). A federal judge threw out Stevens’ 2008 conviction for corruption because the DOJ hid evidence from the defense team, including contradictory statements by a star witness that were crucial to proving Stevens’ alleged criminal intent. Furthermore, the judge ordered an independent inquiry into the handling of the case that resulted in a damning 514-page report that faulted the DOJ for its mismanagement and “egregious misconduct” in the case.

When Should Courts Defer to White-Collar Prosecution Settlements?

Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place. DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.

So there was a flurry of interest last year when federal district judge Richard Leon in Washington, D.C., declined to approve a waiver, necessary under the Speedy Trial Act, for a DPA settling charges that Fokker Services, a Dutch aerospace company, sold U.S.-origin aircraft systems to foreign governments on the U.S. sanctions list, including Iran, Sudan, and Burma. While acknowledging that under principles of prosecutorial discretion the Department of Justice did not have to charge Fokker at all, Judge Leon said given that it had, the judiciary could appropriately scrutinize whether the penalties were too low.

Arab and Muslim Americans: The New “Others”

Over the last month, GOP presidential hopeful Donald Trump’s counterterrorism policy prescriptions have included creating a database of Arab and Muslim Americans, and more recently, a call for a ban on all Arab/Muslim immigration to the United States. While he has yet to call for the creation of WW II-style ethnic/religious concentration camps for our Arab/Muslim American neighbors, at this point nothing seems beyond the pale for Trump. Unfortunately, as I have noted before, when it comes to stigmatizing–if not de facto demonizing–Arab/Muslim Americans, he’s getting some help from DHS, DoJ, and the legislative branch.

Indeed, in the ongoing legislative battle to pass dubious cybersecurity legislation, House Homeland Security Chairman Mike McCaul (R-TX) is being wooed to support the revised cyber information sharing bill with a new carrot: the inclusion of his “countering violent extremism” (CVE) bill in the FY16 omnibus spending bill–a measure condemned earlier this year by civil society groups from across the political spectrum.

To date, McCaul has been opposed to the Senate’s approach to cybersecurity issues in the form of the Cybersecurity Information Sharing Act (CISA), and, keeping that in mind, House and Senate supporters have largely excluded him from their negotiations over a final cyber bill. By dangling the inclusion of his CVE legislation in the omnibus is a clear effort to get McCaul to drop his opposition to CISA by giving him one of his priorities: Passage of CVE legislation would create yet another bureaucracy in DHS to essentially monitor the Arab/Muslim American population for signs of extremism. 

The fact that a similar CVE effort in the U.K. failed miserably has not deterred Congressional boosters like McCaul from pursuing that same discredited approach at the expense of the civil and constitutional liberties of a vulnerable minority population. Additionally, the expense of American taxpayers is likely to be at least an additional $10 million per year for the proposed DHS CVE office. 

As former NBC Nightly News anchor Tom Brokaw reminded us this week, Arab and Muslim Americans have died for the United States in Iraq and Afghanistan. They have paid for our freedom with their blood and their lives. Proposals that would strip them of their rights and attempt to turn them into political and societal lepers should be repudiated–vocally and forcefully. Those who propose such un-American and unconstitutional discrimination are the ones who should be shunned and permanently confined to the unhinged fringes of American political and social life.

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.