Jeff Session's Farewell Memo

https://www.propublica.org/article/why-jeff-sessions-final-act-could-have-more-impact-than-expected

By Ian MacDougall

Jeff Sessions hides emotion poorly — his face is reflexively expressive — and last Wednesday night, it betrayed a mixed set of sentiments as he stepped outof the Robert F. Kennedy Department of Justice Building in downtown Washington. He had the stunned appearance of a hostage emerging out of an underground prison for the first time in months. But for a moment, in the news-camera glare, another look flashed across his face: the impish grin of a man who knows he’d managed to leave a little surprise behind.

Earlier that day, Sessions had resigned as the head of the Justice Department at the request of President Donald Trump. But before he left the job, the soon-to-be former attorney general had some last-minute business to attend to. With a black-ink pen, he initialed, in an illegible scrawl, a document formalizing the terms of what will be one of his abiding legacies: a Justice Department disengaged from its role in investigating and reforming police departments that repeatedly violate the civil rights of the people they’re sworn to protect. Police reform had been a DOJ priority during the Obama administration, and that work played a significant role in the federal response to the deaths of black men at the hands of police in cities such as Ferguson, Missouri.

Sessions’ Last Act Deals Blow to Police Reform

Hear Ian MacDougall talk about Jeff Sessions’ last memo and police reform. Listen to “What Next" from Slate.

Sessions, however, had long opposed the federal police oversight and the consent decrees — long-term reform plans supervised and enforced by a federal judge — that defined DOJ’s approach during the Obama years. In his view, they undermine law enforcement and amount to improper federal meddling in state and local affairs. (This summer, I documented the human consequences of the dramatic extent to which Sessions and his deputies had scaled back federal police oversight.)

The seven-page memorandum Sessions initialed last week caught Justice Department officials by surprise, and many of them are still puzzling through what it will mean in practice. “People aren’t happy that this came out with no notice and no discussion,” one DOJ official said. “What does this really mean day-to-day? Nobody’s really sure because they weren’t included in the conversation.”

The memo places significant hurdles in the way of DOJ entering into consent decrees with state and city governments. It mandates closer control by the Justice Department’s most senior political appointees, requires sunset dates for consent decrees, and limits what the DOJ can require of state and city agencies.

And there was a broader significance that passed largely unnoticed in the press coverage of Sessions’ memo: Current and former Justice Department officials note that the new policy also applies to other areas of the department’s work, such as efforts to curb pollution. They worry its effects will be most profound and far-reaching in those realms.

That’s in large part because, as I reported earlier this year, Sessions had already succeeded in all but halting DOJ’s police-reform work. He wrote, in a 2017 department memo, that “it is not the responsibility of the federal government to manage non-federal law enforcement agencies,” and followed it up with an Op-Ed in USA Today further expressing his opposition to consent decrees.

Although most vocal about police reform, Sessions believed consent decrees with state and city governments in general constitute federal overreach. Within the Justice Department “everybody knew consent decrees were disfavored,” one department official put it. “I don’t know of anybody working on cases in the Civil Rights Division that thought, ‘We’ll get a consent decree,’ and now are thinking, ‘Oh no, now we won’t get to do it.’” Indeed in areas of civil rights enforcement such as fair housing and disability rights cases, the DOJ has also largely abandoned judicially administered consent decrees in favor of out-of-court settlements. In that sense, last week’s memo amounts to Sessions, on his way out the door, seizing a kind of dead-hand control over the department the president has wrested away from him.

But in at least two respects, Sessions’ memo does far more than merely memorialize the status quo. The DOJ had continued to rely on consent decrees in certain areas, like environmental protection and voting rights. As recently as a week before the mid-term elections, the Justice Department’s environmental unit filed a consent decree with Ironwood, a small town on Michigan’s Upper Peninsula, over cleanup of a shuttered gas plant that was leaching coal tar and other waste into the groundwater and the nearby Montreal River. In the past year, voting rights attorneys have entered consent decrees to fix absentee-voting procedures in Wisconsin and Arizona and to improve voter roll maintenance in New York City. Attorneys handling civil rights and environmental law cases fear last week’s memo may take these types of consent decrees off the table. (A spokesperson for the DOJ did not immediately reply to a request for comment.)

The second concern cited by current and former Justice Department officials is the message Sessions’ parting memo sends to states and cities already subject to consent decrees. “I don’t think you can overstate the chilling effect of this memo on the enforcement of existing consent decrees,” said Christy Lopez, who supervised attorneys handling police-reform cases for most of the Obama administration.

Career civil rights attorneys at DOJ already felt hesitant to push back against recalcitrant state and city officials for fear that their superiors wouldn’t side with them. Last week’s memo makes that lack of support — already obvious internally at DOJ — a matter of official policy. “Now DOJ’s position is public; the states all know,” one Justice Department official said. “This gives the states more leverage. Why would you do that — lay out to the people you’re regulating, your adversaries, the limits of your negotiating power?”

One example former DOJ officials point to is Ferguson, a city that became a flash point for the national dialogue over policing after a white officer in 2014 shot and killed Michael Brown, an unarmed black resident. The police force there has been subject to a wide-ranging consent decree since 2016, but according to court records and complaints from local advocacy groups, it has been slow to implement many of the required changes, like dismissing illegal warrants issued prior to the consent decree. “DOJ just isn’t pushing back,” one former Justice Department official said, and Sessions’ memo only makes it harder for Justice Department attorneys to resist intransigence.

“They have no leverage,” the former official said. “This memo is just a clear signal to the whole world that these DOJ lawyers have no power, and they won’t be allowed to do anything meaningful. That’s a huge blow.”

California Revisits Police Accountability

http://www.latimes.com/politics/la-pol-ca-police-misconduct-rules-changed-20180930-story.html

By Liam Dillon and Maya Lau

Gov. Jerry Brown ushered in a new era of transparency in California law enforcement on Sunday, signing two new laws that for the first time give the public access to internal police investigations and video footage of shootings by police officers and other serious incidents.

The measures begin to undo decades of laws and court decisions that had made California the nation’s most secretive state for police records.

“With Governor Brown’s signature, California is finally joining other states in granting access to the investigatory records on officer conduct that the public truly has a right to know,” said Sen. Nancy Skinner (D-Berkeley), the author of one of the measures, Senate Bill 1421, in a statement.

Here's how California became the most secretive state on police misconduct »

Skinner’s bill allows the public to view investigations of officer shootings and other major uses of force, along with confirmed cases of sexual assault and lying while on duty.

The availability of these records will allow the public to press California police departments and elected officials in ways not possible before, said Peter Bibring, director of police practices at the American Civil Liberties Union of California, which was a principal supporter of both bills.

“People have seen there are systematic problems and the police aren’t being held accountable — or at least the public isn’t aware of it because it’s secret,” Bibring said. “That’s something the public is not willing to ignore.”

Legal experts also say SB 1421 could have a significant effect on the state’s justice system by allowing broader access to records that could bear on the credibility of a police witness who has a history of discipline for dishonesty or other significant misconduct.

California is the only state in which even prosecutors cannot directly obtain officer personnel files. Under the current system, prosecutors and criminal defendants must navigate a labyrinthine process in court to glean information from those files. The procedure, which requires filing a so-called Pitchess motion, often yields only the name and contact information of a complainant against an officer.

A recent Times investigation into secrecy surrounding law enforcement discipline found that past misconduct by police witnesses, whether alleged or proven, routinely is kept hidden in court as a result of California’s confidentiality laws.

The new law opens up interview transcripts, evidence and full investigatory reports to the public, prosecutors and defense attorneys alike.

“This is revolutionary,” said San Francisco Public Defender Jeff Adachi. “It would unveil what we have been wanting for a long time.”

Lara Bazelon, a professor at the University of San Francisco School of Law, said the measure could expose officer misconduct that was long withheld from defendants and could lead to numerous convictions being dismissed.

“We are going to see a lot of skeletons falling out of the closets dating back years, if not decades. That means people who were convicted unjustly and unfairly will finally get a chance to be heard,” Bazelon said.

Contra Costa County prosecutors tossed 19 convictions in 2016 and 2017 after a police lieutenant revealed to a judge that files showing internal investigations into two officers had not been disclosed in criminal cases featuring the officers.

California’s rules prohibiting the public release of law enforcement records date back four decades. At the time, police unions and other law enforcement officials were complaining that criminal defense attorneys had flooded departments with requests for complaints against officers. Before the 1978 law was passed, the Los Angeles Police Department shredded four tons of prior complaints against officers that hadn’t resulted in a finding of wrongdoing.

In previous years, law enforcement labor groups waged aggressive campaigns to successfully shut down attempts to loosen the state’s police confidentiality laws.

Police unions opposed SB 1421 as well. Brian Marvel, the head of the Peace Officers Research Assn. of California — the state’s largest law enforcement labor organization — said he worried the new disclosure rules would put officers at risk. Earlier this year, protesters angry over the killing of Stephon Clark, an unarmed black man in Sacramento, gathered at the wedding of a police officer after identifying him as one of the officers who shot Clark, and Marvel said releasing more information about officers could lead to more confrontations that could turn violent.

“There would be a greater potential for officers and their families being harmed by having all of their information being put out publicly,” Marvel said.

Labor officials had used similar arguments in the past to defeat transparency proposals. But Marvel said their position wasn’t as effective this year because public opinion has shifted against officers, pressuring lawmakers to act differently. Legislators and civil rights activists similarly have cited the rise of the Black Lives Matter movement and increased scrutiny on police killings of civilians as reasons why SB 1421 passed when prior attempts at changing the transparency laws failed.

Brown signed the original 1978 police confidentiality law during his first term in office. He did not issue a statement after signing the bill, and a spokesman declined to comment on the decision.

Besides the open records law, Brown signed a second measure, Assembly Bill 748, requiring departments statewide to release body-worn camera and other video and audio recordings of officer shootings and serious uses of force within 45 days unless doing so would interfere with an ongoing investigation.

This law, modeled after a new LAPD policy on releasing body-camera video, makes California’s rules for releasing footage some of the most transparent in the country, according to research by Reporters Committee for Freedom of the Press.

The body-camera law also breaks a long stalemate in the Legislature over setting statewide rules on releasing the police recordings. Multiple proposals in recent years either to make the videos public or limit access had failed before AB 748.

“Public access to body camera footage is necessary to boost confidence and rebuild trust between law enforcement and the communities they serve,” said Assemblyman Phil Ting (D-San Francisco), the bill’s author, in a statement.

The new transparency laws could spur more efforts to increase public access to policing records in the state. Marvel, the police union leader, said he’d like to release body-camera footage of day-to-day interactions officers have with community members, such as typical traffic stops, so that the public has a better sense of what regular policing is like.

“If the only thing we’re releasing is negative contacts with people, then that becomes the narrative,” Marvel said.

The new open records law takes effect Jan. 1. The body-camera law won’t be implemented until July 1 to give police departments more time to update their policies on disclosure.

5:45 p.m: This article was updated with comments from the bills’ authors and additional information about the governor’s decision.

This article was originally published at 5:25 p.m.

Is the Criminal Justice System Racist?

https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theres-overwhelming-evidence-that-the-criminal-justice-system-is-racist-heres-the-proof/?utm_term=.b190777fedea

By Radley Balko

Opinion writer

September 18


A couple years ago, Sen. Tim Scott (R-S.C.) gave a powerful speech on the floor of the U.S. Senate. Scott talked about how he had been repeatedly pulled over by police officers who seemed to be suspicious of a black man driving a nice car. He added that a black senior-level staffer had experienced the same thing and had even downgraded his car in the hope of avoiding the problem. Given that Scott otherwise has pretty conservative politics, there was little objection or protest from the right. No one rose up to say that he was lying about getting pulled over.

The thing is, most people of color have a similar story or know someone who does. Yet, there’s a deep skepticism on the right of any assertion that the criminal-justice system is racially biased. In early August, National Review editor and syndicated columnist Rich Lowry wrote a column disputing the notion that our system is racist. Andrew Sullivan wrote something similar in New York magazine. (Interestingly, both Lowry and Sullivan cite criminologist John Pfaff to support their positions. Pfaff has since protested on Twitter that both misinterpreted what he wrote.) And attempting to refute the notion that the system is racist has become a pretty regular beat for conservative crime pundit Heather Mac Donald.

Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal-justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal-justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.

In any case, after more than a decade covering these issues, it’s pretty clear to me that the evidence of racial bias in our criminal-justice system isn’t just convincing — it’s overwhelming. But because there still seems to be some skepticism, I’ve attempted below to catalog the evidence. The list below isn’t remotely comprehensive. And if you know of other studies, please send them to me. I would like to make this post a repository for this issue.

I, of course, can’t vouch for the robustness or statistical integrity of all of these studies. I’m only summarizing them. But for the most part, I’ve tried to include either peer-reviewed studies or reviews of data that tend to speak for themselves and don’t require much statistical analysis. I will note that most (but not all) of these studies do factor in variables that address common claims such as that the criminal-justice system discriminates more by class than by race, or that racial discrepancies in sentencing or incarceration can be explained by the fact that black people commit more crimes. And I’ve also included a section for studies that do not find bias in various aspects of the criminal-justice system. There are far fewer of these, though I’m open to the possibility that I missed some.

Finally, none of this is to say that race is the only thing we need to worry about in the criminal-justice system. Certainly, lots of white people are wrongly accused, arrested and convicted. Lots of white people are treated unfairly, beaten, and unjustifiably shot and killed by police officers. White people too are harmed by policies such as mandatory minimums, asset forfeiture, and abuse of police, prosecutorial and judicial power.

There are problems here that are inextricable from race. And there are problems that aren’t directly related to race. But even the latter set of problems tend to be exacerbated when you factor race into the equation. On to the evidence.

Skip to a section: Policing and profiling | Misdemeanors, petty crimes and driver’s license suspensions | The drug war | Juries and jury selection | The death penalty | Prosecutors, discretion and plea bargaining | Judges and sentencing | School suspensions and the school-to-prison pipeline | Prison, incarceration and solitary confinement | Bail, pretrial detention, commutations and pardons, gangs and other issues | The dissent — contrarian studies on race and the criminal-justice system

Policing and profiling

I’ve had more than one retired police officer tell me that there is a running joke in law enforcement when it comes to racial profiling: It never happens . . . and it works. But the problem with trying to dismiss profiling concerns by noting that higher rates at which some minority groups commit certain crimes is that it overlooks the fact that huge percentages of black and Latino people have been pulled over, stopped on the street and generally harassed despite the fact that they have done nothing wrong. Stop and frisk data, for example, consistently show that about 3 percent of these encounters produce any evidence of a crime. So 97 percent-plus of these people are getting punished solely because they belong to a group that statistically commits some crimes at a higher rate. That ought to bother us.

  • In their book “Suspect Citizens,” Frank R. Baumgartner, Derek A. Epp and Kelsey Shoub reviewed 20 million traffic stops. In an interview with The Post, they shared what they found: “Blacks are almost twice as likely to be pulled over as whites — even though whites drive more on average,” “blacks are more likely to be searched following a stop,” and “just by getting in a car, a black driver has about twice the odds of being pulled over, and about four times the odds of being searched.” They found that blacks were more likely to be searched despite the fact they’re less likely to be found with contraband as a result of those searches.

  • A 2013 Justice Department study found that black and Latino drivers are more likely to be searched once they have been pulled over. About 2 percent of white motorists were searched, vs. 6 percent of black drivers and 7 percent of Latinos.

  • In 2015, the Charleston Post and Courier looked at incidents in which police stopped motorists but didn’t issue a citation. These are sometimes called “pretext stops,” because they suggest that the officer was profiling the motorist as a possible drug courier or suspected the motorist of other crimes. The paper found that after adjusting for population, blacks in nearly every part of the state were significantly more likely to be the subject of such stops.

  • A 2017 study of 4.5 million traffic stops by the 100 largest police departments in North Carolina found that blacks and Latinos were more likely to be searched than whites (5.4 percent, 4.1 percent and 3.1 percent, respectively), even though searches of white motorists were more likely than the others to turn up contraband (whites: 32 percent, blacks: 29 percent, Latinos: 19 percent).

  • According to the Justice Department, between 2012 and 2014, black people in Ferguson, Mo., accounted for 85 percent of vehicle stops, 90 percent of citations and 93 percent of arrests, despite comprising 67 percent of the population. Blacks were more than twice as likely as whites to be searched after traffic stops, even though they proved to be 26 percent less likely to be in possession of illegal drugs or weapons.  Between 2011 and 2013, blacks also received 95 percent of jaywalking tickets and 94 percent of tickets for “failure to comply.” The Justice Department also found that the racial discrepancy for speeding tickets increased dramatically when researchers looked at tickets based on only an officer’s word vs. tickets based on objective evidence, such as vs. radar. Black people facing similar low-level charges as white people were 68 percent less likely to see those charges dismissed in court. More than 90 percent of the arrest warrants stemming from failure to pay/failure to appear were issued for black people.

  • These figures are similar to others throughout St. Louis County. For example, in the town of Florissant, 71 percent of the motorists pulled over by police in 2013 were black. Blacks make up 27 percent of the town at the time (they now make up 33 percent). Blacks were also twice as likely to be searched after a stop, even though white motorists were more likely to be found with contraband.

  • A study of “investigatory” traffic stops — that is, stops that did not result in a citation — by police in Kansas City found that blacks were 2.7 times more likely to be pulled over in an investigatory stop, and five times more likely to be searched.

  • A study of stop and frisk incidents in Boston between 2007 and 2010 that did not result in a citation or arrest found that 63 percent of such stops were of black people. Blacks made up 24 percent of the city’s population. Incredibly, 97.5 percent of these encounters resulted in no arrest or seizure of contraband.

  • A 2015 statistical analysis of police shootings from 2011 to 2014 found that the racial disparity in police shootings of black people could not be explained by higher crime rates in majority-black communities.

  • A 2018 Post investigation found that murders of white people are more likely to be solved than murders of black people. There’s also a strong correlation between areas that are black-majority and low-income and the areas with the lowest clearance rate for homicides.

  • Similarly, a study published in June reviewed every reported homicide between 1976 and 2009 and found that “homicides with white victims are significantly more likely to be ‘cleared’ by the arrest of a suspect than are homicides with minority victims.”

  • Another ACLU study, this time on the use of stop-and-frisk in Milwaukee between 2010 and 2017, found that in nearly half of the more than 700,000 such stops, the police failed to demonstrate reasonable suspicion as required by the Constitution. The study found that between pedestrian stops and traffic stops, black people were six times more likely to be stopped and searched than white people, and that less than 1 percent of those searches turned up any contraband. Here again, while black and Latino drivers were more likely to be searched, they were 20 percent less likely to be in possession of any contraband.

  • Going back to 2002, data show that when New York City was implementing its stop-and-frisk policy, white people generally made up only about 10 percent of such stops, despite making up about 45 percent of the city. Black and Latino people made up more than 80 percent of the stops, despite making up just over half the city population. Consistently, between 85 and 90 percent of such stops produced no arrest, citation or evidence of criminal activity. Fewer than 1 percent of stops produced a gun, the alleged reason for the policy.

  • Between 2012 and 2014, the Los Angeles Police Department received more than 1,350 citizen complaints of racial profiling. The department didn’t uphold a single complaint.

  • A 2016 report found that between 2011 and 2015, black drivers in Nashville’s Davidson County were pulled over at a rate of 1,122 stops per 1,000 drivers — so on average, more than once per black driver. Black drivers were also searched at twice the rate of white drivers, though — as in other jurisdictions — searches of white drivers were more likely to turn up contraband.

  • A 2017 study of interactions between officers and citizens taken from footage captured by police officer body cameras found that “officers speak with consistently less respect toward black versus white community members, even after controlling for the race of the officer, the severity of the infraction, the location of the stop, and the outcome of the stop.”

  • An NAACP survey of citizen complaints against police officers in North Charleston, S.C., between 2006 and 2016 found that complaints by white citizens were about two-thirds more likely to be sustained than complaints filed by black citizens. When the complainant alleged excessive force, white complaints were sustained seven times more often than black complaints.

  • A 2015 study found that though black women are just 6 percent of the female population of San Francisco, they account for 45.5 percent of female arrests.

Opinion | What NFL players like me, and people like you, need to do next.

Malcolm Jenkins of the Philadelphia Eagles says addressing racism in the criminal justice system will require much more than taking a knee. (Ashleigh Joplin, Kate Woodsome/The Washington Post)

Misdemeanors, petty crimes and driver’s license suspensions

  • A national study of misdemeanor arrests published this year in the Boston University Law Review found that the “black arrest rate is at least twice as high as the white arrest rate for disorderly conduct, drug possession, simple assault, theft, vagrancy, and vandalism. The black arrest rate for prostitution is almost five times higher than the white arrest rate, and the black arrest rate for gambling is almost ten times higher.”

  • According to a Justice Department study released in 2013, throughout the United States, black drivers are about 30 percent more likely to be pulled over than white drivers. Black drivers are also more likely to be pulled over for alleged mechanical or equipment problems with their automobiles, or for record checks. White people are actually more likely to get pulled over for noticeable traffic violations such as speeding. Black drivers are more likely to not be told why they were pulled over.

  • Between 2001 and 2013, blacks and Latinos made up 51 percent of the population of New York City, but about 80 percent of the misdemeanor arrests and summonses.

  • In 2016, the ACLU of Florida released a report that found that black drivers in that state were twice as likely to be pulled over for seat-belt violations as white drivers.

  • A 2017 Chicago Tribune investigation found that as the city ramped up its ticketing of bicyclists, black neighborhoods received more than twice as many citations as white and Latino neighborhoods. A year later, black neighborhoods were getting three times more bicycle tickets than white neighborhoods.

  • A ProPublica and Florida Times-Union report published last year showed that black residents of Jacksonville are three times more likely to receive a citation for a pedestrian violation than white residents. The report found no correlation between aggressive enforcement of jaywalking laws and where pedestrians were most likely to be struck by cars and killed. Instead, they found that most citations were issued in majority-black neighborhoods. Residents of the three poorest zip codes in the city, for example, were about six times more likely to get pedestrian citation tickets.

  • A study of traffic citations issued in the Cleveland area in 2009 found that while blacks represented 38 percent of the driving population, they received 59 percent of police citations. Interestingly, when it comes to readily observable violations such as red-light running or speeding, the numbers were more even — whites actually received a greater percentage of speeding tickets. Black motorists, however, were far more likely to be pulled over and cited for violations that are either much less obvious (they received 61 percent of seat-belt violations) or that aren’t readily observable at all (they received 79 percent of the citations for driving on a suspended license).

  • Missouri has been keeping data on traffic stops for 18 years, and for 18 years, the numbers consistently show that statewide, black people are more likely to be pulled over than white people. The data from 2017 showed the problem actually got worse, with blacks 85 percent more likely to be stopped. 

  • A 2015 ACLU study of four cities in New Jersey found that black people were 2.6 to 9.6 times more likely to be arrested than white people for low-level offenses.

The drug war 

Black people are consistently arrested, charged and convicted of drug crimes including possession, distribution and conspiracy at far higher rates than white people. This, despite research showing that both races use and sell drugs at about the same rate.

  • As of May, data from New York City showed that black people are arrested for marijuana at eight times the rate of white people. In Manhattan, it’s 15 times as much. Black neighborhoods produce far more arrests than white neighborhoods, despite data showing a similar rate at which residents complain about marijuana use.

  • White people have made up about 45 percent of New York residents (about 33 percent if you count only non-Hispanic whites) over the past two decades but have made up fewer than 15 percent of the city’s marijuana arrests.

  • A 2014 ACLU survey of SWAT teams across the country found that “dynamic entry” and paramilitary police tactics are disproportionately used against black and Latino people. Most of these raids were on people suspected of low-level drug crimes.

  • When The Post in 2014 reviewed 400 recent instances of questionable asset forfeiture, a majority of the motorists who had property confiscated by the police were nonwhite.

  • A 2013 study by the ACLU found that black people were 3.73 times more likely than white people to be arrested for marijuana possession. And 88 percent of marijuana arrests are for possession. (The disparity is actually lowest in the West and South, and highest in the Northeast and Midwest.) The study found that the racial disparities were also getting larger, not smaller.

  • In contrast to the assertion that blacks are more likely to be arrested because they’re more likely to use drugs in public, a 2002 study of narcotics search warrants in the San Diego area — that is, warrants to search for drugs in private homes — found that black and Hispanic residents were “significantly over-represented as targets of narcotics search warrants,” even after adjusting for usage rates. The study also found that “searches of White suspects were more successful in recovering the targeted drug than were searches of either Black or Hispanic suspects.”

  • According to figures from the National Registry of Exonerations (NER) black people are about five times more likely to go to prison for drug possession than white people. According to exoneration data, black people are also 12 times more likely to be wrongly convicted of drug crimes.

  • When Harris County, Tex., saw a flaw in how drug testing was conducted at its crime lab, officials went back and exonerated dozens of people who had been wrongly convicted for possession — most pleaded guilty, despite their innocence. This is because prosecutors often promise harsher sentences or more charges for defendants who take a case to trial. Black people comprise 20 percent of the Harris County population but made up 62 percent of the wrongful drug convictions.

  • Not included in these wrongful conviction figures are cases in which police and narcotics task forces conducted mass arrests of entire black or Latino neighborhoods or towns. Hundreds of people were persuaded to plead guilty to drug charges. By the NER’s estimate, there have been more than 1,800 such “group exonerations” in 15 cities since 1989. Almost all those exonerated were black or Latino.

  • Black people comprise about 12.5 percent of drug users but 29 percent of arrests for drug crimes and 33 percent of those incarcerated.

  • A 2017 report by the Sarasota Herald-Tribune of Florida’s drug convictions found that while blacks made up 17 percent of the state’s population, they made up 46 percent of felony drug convictions since 2004. Blacks were also three times as likely to get hit with — and made up two-thirds of — the sentencing enhancements for committing drug crimes near a school zone, church, park or public housing. In all, when blacks and whites committed similar drug crimes, blacks on average received a sentence that was two-thirds longer. In some parts of the state, it was two or three times longer.

  • An analysis of drug war data by the Vera Institute of Justice published this year found that “the risk of incarceration in the federal system for someone who uses drugs monthly and is black is more than seven times that of his or her white counterpart.”

  • A 2017 report of civil asset forfeiture seizures in Chicago showed that the vast majority of such actions were in poor, predominantly black neighborhoods. The average value of the property seized was $4,553; the median value was $1,049.

Juries and jury selection

Though the Supreme Court made it illegal for prosecutors to exclude prospective jurors because of race in the 1986 case Batson v. Kentucky, that ruling has largely gone unenforced. The New Yorker reported in 2015 that in the approximately 30 years since the ruling, courts have accepted the flimsiest excuses for striking black jurors and that prosecutors have in turn trained subordinates how to strike black jurors without a judicial rebuke. A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.”

There are no comprehensive national data on the rate at which prosecutors strike black jurors, but there have been quite a few regional studies.

  • A study of criminal cases from 1983 and 1993 found that prosecutors in Philadelphia removed 52 percent of potential black jurors vs. only 23 percent of nonblack jurors.

  • Between 2003 and 2012, prosecutors in Caddo Parish, La. — one of the most aggressive death penalty counties in the country — struck 46 percent of prospective black jurors with preemptory challenges, vs. 15 percent of nonblacks.

  • Between 1994 and 2002, Jefferson Parish prosecutors struck 55 percent of blacks, but just 16 percent of whites. Although blacks make up 23 percent of the population, 80 percent of criminal trials had no more than two black jurors in a state where it takes only 10 of 12 juror votes to convict.

  • A 2011 study from Michigan State University College of Law found that between 1990 and 2010, state prosecutors struck about 53 percent of black people eligible for juries in criminal cases, vs. about 26 percent of white people. The study’s authors concluded that the chance of this occurring in a race-neutral process was less than 1 in 10 trillion. Even after adjusting for excuses given by prosecutors that tend to correlate with race, the 2-to-1 discrepancy remained. The state legislature had previously passed a law stating that death penalty defendants who could demonstrate racial bias in jury selection could have their sentences changed to life without parole. The legislature later repealed that law.

  • Most recently, American Public Media’s “In the Dark” podcast did painstaking research on the 26-year career of Mississippi District Attorney Doug Evans and found that over the course of his career, Evans’s office struck 50 percent of prospective black jurors, vs. just 11 percent of whites.

  • In the 32 years since Batson, the U.S Court of Appeals for the 5th Circuit — which includes Mississippi, Texas and Louisiana — has upheld a Batson challenge only twice. That is out of hundreds of challenges.

  • A survey of seven death penalty cases in Columbus, Ga., going back to the 1970s found that prosecutors struck 41 of 44 prospective black jurors. Six of the seven trials featured all-white juries.

  • In a 2010 study, “mock jurors” were given the same evidence from a fictional robbery case but then shown alternate security camera footage depicting either a light-skinned or dark-skinned suspect. Jurors were more likely to evaluate ambiguous, race-neutral evidence against the dark-skinned suspect as incriminating and more likely to find the dark-skinned suspect guilty.

The death penalty

Prosecutors on aggregate don’t seem to seek the death penalty more for black people than white people, though there are definitely some gaping disparities in a few states and in some counties. Instead, the real racial bias when it comes to the death penalty pertains to the race of the victim. Killers of black people rarely get death sentences. White killers of black people get death sentences even less frequently. And far and away, the type of murder most likely to bring a death sentence is a black man who kills a white woman.

  • While white people make up less than half of the country’s murder victims, a 2003 study by Amnesty International found that about 80 percent of the people on death row in the United States killed a white person.

  • A 2012 study of Harris County, Tex., cases found that people who killed white victims were 2.5 times more likely to be sentenced to the death penalty than other killers.

  • In Delaware, according to a 2012 study, “black defendants who kill white victims are seven times as likely to receive the death penalty as are black defendants who kill black victims. … Moreover, black defendants who kill white victims are more than three times as likely to be sentenced to death as are white defendants who kill white victims.”

  • A study of death penalty rates of black perpetrators/white victims vs. white perpetrators/black victims through 1999 showed similar discrepancies. Interestingly, the study found that blacks are underrepresented on death row in proportion to the proportion of murders they commit. But this is largely because most black murderers kill other black people, and prosecutors are far less likely to seek the death penalty when the victim is black.

  • A study of North Carolina murder cases from 1980 through 2007 found that murderers who kill white people are three times more likely to get the death penalty than murderers who kill black people.

  • A 2000 study commissioned by then-Florida Gov. Jeb Bush (R) found that the state had, as of that time, never executed a white person for killing a black person.

  • A 2004 study of Illinois, Georgia, Maryland and Florida estimated that “one quarter to one third of death sentenced defendants with white victims would have avoided the death penalty if their victims had been black.”

  • According to a 2002 study commissioned by then-Gov. Frank O’Bannon (D), Indiana had executed only one person for killing a nonwhite victim, and though 47 percent of homicides in the state involved nonwhite victims, just 16 percent of the state’s death sentences did.

  • Studies in MarylandNew JerseyVirginiaUtah and the federal criminal-justice system produced similar results.

  • 2014 study looking at 33 years of data found that after adjusting for variables such as the number of victims and brutality of the crimes, jurors in Washington state were 4.5 times more likely to impose the death penalty on black defendants accused of aggravated murder than on white ones.

  • Black people are also more likely to be wrongly convicted of murder when the victim was white. Only about 15 percent of people killed by black people were white, but 31 percent of black exonorees were wrongly convicted of killing white people. More generally, black people convicted of murder are 50 percent more likely to be innocent than white people convicted of murder.

  • Innocent black people are also 3.5 times more likely than white people to be wrongly convicted of sexual assault and 12 times more likely to be wrongly convicted of drug crimes. (And remember, data on wrongful convictions is limited in that it can only consider the wrongful convictions we know about.)

  • A 2000 study of federal cases found that federal prosecutors were about 50 percent more likely to offer a plea bargain to white murder suspects than black suspects that allowed them to avoid the death penalty.

  • In Houston County, Ala., prosecutors struck 80 percent of black people from juries in death penalty cases.

  • In Tennessee, blacks make up 17 percent of the population but 44 percent of death row. In the last 10 years, eight of the nine death sentences handed down in the state were to black defendants.

  • A 2006 Stanford report found that when a black person was accused of killing a white person, defendants with darker skin and more “stereotypically black” features were twice as likely to receive a death sentence. When the victim was black, there was almost no difference.

  • A 2016 study found that in Louisiana, killers of white victims were 14 times more likely to be executed than killers of black victims. Black men who killed white women were 30 times more likely to get the death penalty than black men who killed black men. Those convicted of killing white people were also less likely to have their sentences overturned on appeal, and Louisiana hasn’t executed a white person for killing a black person since 1752.

  • Studies in other states have produced similar results: In Oklahoma, killers of white women were 9.5 times more likely to get the death penalty than killers of minority men. In Ohio, they were 6 times more likely, and in Florida, 6.5 times more likely.

Opinion | The plea bargain trap

Imagine you're a public defender in a criminal justice system that penalizes people who want their day in court. What do you do? (Danielle Kunitz, Kate Woodsome/The Washington Post)

Prosecutors, discretion and plea bargaining

Depending on which study you look at, somewhere between 80 and 95 percent of criminal cases are resolved with a plea bargain before ever getting to trial. While most legal observers agree that plea bargaining is widely abused and does little to serve the interests of justice, most also believe believe that if every defendant were to insist on a trial, the system would come grinding to a halt. The bias here comes in when we look at who gets plea bargains, what kinds of deals they’re offered and how many, though innocent, feel pressured to accept.

  • A 2015 study by the Women Donors Network found that in three-fifths of the states where prosecutors are elected, there isn’t a single black prosecutor. Overall, the study found that in the United States, 95 percent of elected prosecutors are white, and nearly 80 percent are white men. In nine death penalty states (Colorado, Delaware, Idaho, Montana, Oregon, South Dakota, Tennessee, Washington and Wyoming), all of the elected district attorneys were white in 2015.

  • A 2017 study of about 48,000 criminal cases in Wisconsin showed that white defendants were 25 percent more likely than black defendants to have their most serious charge dismissed in a plea bargain. Among defendants facing misdemeanor charges that could carry a sentence of incarceration, whites were 75 percent more likely to have those charges dropped, dismissed or reduced to a charge that did not include such a punishment.

  • A 2014 study of Manhattan criminal cases found that black defendants were 19 percent more likely to be offered plea deals that included jail time.

  • A 2011 summary of the research on race and plea bargaining published by the Bureau of Justice Assistance concluded that “the majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas,” that “studies that assess the effects of race find that blacks are less likely to receive a reduced charge compared with whites,” and that “studies have generally found a relationship between race and whether or not a defendant receives a reduced charge.”

  • A 2016 review of nearly 474,000 criminal cases in Hampton Roads, Va., found that whites were more likely to get plea deals that resulted in no jail time for drug offenses. While facing charges of drug distribution, 48 percent of whites received plea bargains with no jail time, vs. 22 percent of blacks. Among those with prior criminal records who pleaded guilty to robbery, 36 percent of whites got no jail time, vs. 8 percent of blacks.

  • A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.

  • A 2008 analysis found that black defendants with multiple prior convictions are 28 percent more likely to be charged as “habitual offenders” than white defendants with similar criminal records. The authors conclude that “assessments of dangerousness and culpability are linked to race and ethnicity, even after offense seriousness and prior record are controlled.”

Judges and sentencing

  • While white, non-Hispanics make up about 61 percent of the U.S. population, they comprise 83 percent of state trial court judges and 80 percent of state appellate court judges.

  • A survey of data from the U.S. Sentencing Commission last year found that when black men and white men commit the same crime, black men on average receive a sentence almost 20 percent longer. The research controlled for variables such as age and prior criminal history.

  • In Louisiana, which is 33 percent black, a survey sampling half the prisoners serving life without parole for nonviolent offenses found that 91 percent were black. After including violent crimes, it was 73 percent. The figure is above 65 percent in several other states, including Georgia, Illinois, Michigan, Mississippi and South Carolina. Nationally, about half of murders are committed by blacks.

  • When it comes to federal gun crimes, black people are more likely to be arrested, more likely to get longer sentences for similar crimes and more likely to get sentencing “enhancements,” according to the U.S. Sentencing Commission. 

  • A New Jersey study found that 96 percent of defendants subject to an enhanced sentencing under “drug-free school zone” laws were black or Latino.

  • study published last May found that when a white person and a black person are convicted of similar crimes, Republican-appointed judges sentence the black person to three months longer in prison.

  • A 2007 Harvard study found sentencing discrepancies among black people, depending on the darkness of their skin. The study looked at 67,000 first-time felons in Georgia from 1995 to 2002. The average sentence for white men was 2,689 days. The average for black men was 378 days longer. But light-skinned blacks received sentences of about three and a half months longer than whites. Medium-skinned blacks received a sentence of about a year longer. Dark-skinned blacks received sentences of a year and a half longer.

  • A 2015 study in the Journal of Legal Studies found that black federal judges are about 10 percentage points more likely to be reversed on appeal than white federal judges. The study adjusted for variables like who appointed the judges, judicial circuits and demographic data.

  • A 2015 study of first-time felons found that while black men overall received sentences of 270 days longer than white men for similar crimes, the discrepancy between whites and dark-skinned blacks was 400 days.

School suspensions and the school-to-prison pipeline

  • A 2011 study of school discipline in Texas found that after isolating race by adjusting for 83 other variables, a black student had a 31 percent greater chance of being disciplined than an identical white or Hispanic student.

  • A study of suspensions in Chicago schools from 2013 to 2014 found that black male students were more than five times more likely to be suspended than white and Asian male students. Black female students were seven times more likely than white and Asian female students. After adjusting for academic level and social disadvantages, black males were still five times more likely to be suspended, while the disparity for black females grew to 13 times more likely.

  • A Brown Center on Education Policy study released last year found that suspension rates of black students begin to escalate during middle school, and that the racial disparity in suspensions increases dramatically once black students comprise 16 percent or more of a school’s student population.

  • Data released in 2016 from the Department of Education found that black students were nearly four times more likely to be suspended than white students.

Prison, incarceration and solitary confinement

Black people are of course overrepresented in the prison population. And, as noted in one particular study below, they’re overrepresented even after you account for variables such as the crime rate among blacks.

  • Data from the Massachusetts Sentencing Commission released in 2016 found that black people in the state are eight times more likely to be incarcerated than white people. Hispanic people were about five times more likely.

  • A 2016 Yale University study of solitary confinement in 48 jurisdictions across 45 states found that black prisoners were more likely to be held in isolation than white prisoners. The discrepancy was even greater among women — black women made up 24 percent of the female prison population but 41 percent of those who had been held in isolation (that figure came from 40 jurisdictions.) A report published this year found that in Texas, black prisoners are much more likely to be sent to solitary confinement, even as Texas prisons are phasing out the practice.

  • In surveying the research on the topic, the Sentencing Project estimates that 61 to 80 percent of black overrepresentation in prisons can be explained by higher crime rates in the black population. (Of course, those higher crime rates themselves could be due in part to racial bias.) The rest is probably because of racial bias.

Bail, pretrial detention, commutations and pardons, gangs and other issues

  • According to a 2014 study by the Vera Institute of Justice, black and Latino defendants in New York City were more likely to be detained before trial for comparable crimes. They were also more likely to have charges dismissed. The study didn’t look at this, but that may have been because they were more likely to be wrongly arrested in the first place. The study found that race played a role at nearly every step in the process, from arrest to detention to setting bail to sentencing.

  • A 2011 study of bail in five large U.S. counties found that blacks received $7,000 higher bail than whites for violent crimes, $13,000 higher for drug crimes and $10,000 higher for crimes related to public order. These disparities were calculated after adjusting for the seriousness of the crime, criminal history and other variables.

  • In 2014, the Urban Institute looked at probation offices in four locations across the country: New York City; Multnomah County, Ore.; Dallas County, Tex.; and Iowa’s Sixth Judicial District. After adjusting for criminal history, seriousness of the crime and other factors, the study found that black people were 18 to 39 percent more likely than white people to have their probation revoked.

  • A 2017 study of more than 10,000 cases handled by a public defender’s office in San Francisco found that black and Latino defendants were more likely to be incarcerated while awaiting trial, had to wait longer for their trials to begin, were less likely to see their charges reduced and were more likely to see new misdemeanor charges added.

  • An ACLU report issued this year found that in Miami, black people faced “2.2 times greater rates of arrest, 2.3 times greater rates of pretrial detention, 2.5 times greater rates of conviction, and 2.5 times greater rates of incarceration.” Hispanics were “subject to four times greater rates of arrest, 4.5 times greater rates of pretrial detention, 5.5 times greater rates of conviction, and six times greater rates of incarceration.”

  • A 2011 investigation of presidential pardons by ProPublica found that white federal prisoners are almost four times as likely to receive a pardon than minority federal prisoners. There’s also some evidence of a racial disparity when it comes to presidential commutations.

  • About 16 percent of sexual assaults of white women are committed by black men, but half of the exonerations for sexual assault involve cases in which an eyewitness wrongly identified a black man for the rape of a white woman.

  • A study of the pardons granted in Mississippi during former governor Haley Barbour’s tenure found that although blacks make up almost two-thirds of the state’s prison population, they make up fewer than a third of the people to whom Barbour granted clemency. (It is worth noting that this isn’t about the severity of the crime — Barbour pardoned at least eight men who killed their wives or girlfriends.)

  • A 2016 New York Times report of thousands of parole hearings found that fewer than 1 in 6 black or Latino men was released after his first parole hearing. Among white men, it was 1 in 4.

  • A 2016 study from a consortium of civil rights groups found wide racial disparities in the suspension of driver’s licenses of California residents. Some black and Latino communities had suspension rates five times the state average.

  • A 2016 report from the Black Alliance for Just Immigration found that black immigrants were significantly more likely to be deported than immigrants of other races.

  • Portland Oregonian report of the city’s gang database found that 64 percent of the list was black, though blacks make up only 6 percent of the city. White supremacist gangs appeared to be significantly under-included.

  • Though more than half the people on Mississippi’s gang registry are white, every person prosecuted under the state’s anti-gang law from 2010 to 2017 has been black.

The dissent — contrarian studies on race and the criminal-justice system

  • A longitudinal study released in January by the People’s Policy Project suggests that class is a more prominent driver of incarceration than race.

  • A 2015 study of parolees found that “violation rates are consistently higher for African American parolees, a result not consistent with a parole board bias against African Americans.” A similar study of Pennsylvania parolees from 1999 to 2003 found high recidivism rates among blacks, again suggesting that parole boards were not discriminating based on race. (Neither study accounted for the possibility of racial bias among parole officers — that officers might be more inclined to find violations against black parolees than against white ones.)

  • A 2017 study of school suspensions at the five largest school districts in Wisconsin found that the districts were implementing suspensions in a way that was counterproductive to a positive learning environment but that there was little evidence that the suspensions were driven by racial bias.

  • A 2015 analysis of prison data by the Marshall Project found that though there are still wide racial disparities when it comes to mass incarceration, the black-white divide in prison populations is narrowing, particularly among women. Unfortunately, the gap appears to be widening among juveniles.

  • A 2002 study of alleged racial profiling in New Jersey found no such bias among New Jersey police officers. Instead, it found that black motorists were more likely to drive above the speed limit. A study of North Carolina drivers came to a similar conclusionOther researchers have since questioned the methodology of both studies.

  • A 2006 study of police stops in Oakland measured stops during the day with those made at night, on the theory that if police officers were profiling, there should be more stops of black and Latino motorists during daytime hours, when race would be more discernible. The study found no significant discrepancy.

  • In 2016, the New York Times reported a working paper (i.e., not peer-reviewed) by Harvard’s Roland G. Fryer Jr. found that though there was evidence of racial bias in how and when police generally use force, there was no evidence of bias when it came to police shootings. Fryer later criticized the way his study had been reported, and critics(including me) pointed out several limitations to his study.


Judge OK's New Cleveland Police Policy that Expressly Prohibits Racial Profiling

By Eric Heisig, Cleveland Plain Dealer (Mar. 26, 2018)

CLEVELAND, Ohio -- A federal judge on Friday signed an order approving a new bias-free policing policy that must be adhered to by all city of Cleveland's police officers.

The move is the latest in a series of reforms the city agreed to in a 2015 consent decree designed to end what the Justice Department said was a longstanding pattern of unconstitutional policing at nearly every level of the department's ranks.

The Justice Department's investigation into the police department didn't set out to examine racial bias on the part of officers. But its 2014 report that summarized its findings says that "when we interviewed members of the community about their experiences with the police, many African-Americans reported that they believe (Cleveland Division of Police) officers are verbally and physically aggressive toward them because of their race."

The union that represents the city's rank-and-file officers has long denied that it racially profiles while patrolling.

The monitoring team recommended to U.S. District Judge Solomon Oliver Jr. in February that he approve the new policy. Oliver took that action on Friday, immediately ordering it into effect.

The new policy demands that police officers patrol without bias and says they must treat people they encounter with respect. It also says officers must make their decisions based on reasonable suspicion and probable cause, without discriminating based on demographic.

The policy also states that officers must use "procedural justice," which means they must give people a chance to be heard when approached. They must make decisions fairly, clearly explain them and convey "goodwill and trustworthiness," according to the policy.

Officers are also forbidden from engaging in or ignoring policing with bias, using harassing or derogatory language concerning any demographic or determining suspicion or probable cause based only on a person's criminal record.

The police department started drafting the policy in April 2016. It underwent multiple revisions after the department received feedback from the monitoring team and the Justice Department. A draft circulated for public comment last year.

James Hardiman, president of the Cleveland NAACP, said the new policy is "long overdue."

"It's a step in the right direction, but only a step," Hardiman said. "The ultimate test is how it's implemented, if officers take it seriously."

Jeff Follmer, president of the Cleveland Police Patrolmen's Association, said he can't remember a single instance where an officer has been disciplined for racial profiling.

"Police officers do their job day in and day out," he said. "It's not based on race. It's based on victims, bad guys and good guys."

http://www.cleveland.com/court-justice/index.ssf/2018/03/judge_oks_new_cleveland_police.html

250 Cops Being Hired In Cleveland

By Chris Mosby, Cleveland Patch (Mar. 19, 2018)

CLEVELAND, OH — The Cleveland Police Department is looking to bring in some new faces. A lot of new faces, actually.

The department took to social media to announce that it would be hiring 250 police officers in 2018. To apply for a position, click here.

It's worth noting that the Cleveland Police department is still under a consent decree and has is being monitored in its behavior. Officers have new use-of-force policies to follow and different training to undertake.

The Monitoring Team filed a report on the department's progress in late January 2018. The city's police department has multiple areas where they have been found to be only in "partial compliance" with the team's policies. There are also a handful of areas where the department has been found to be non-compliant.

https://patch.com/ohio/cleveland/250-cops-being-hired-cleveland

Federal Judge Approves Plan for Next Phase of Seattle Police Reforms

As part of a consent decree, the Seattle Police Department must demonstrate over the next two years that it is maintaining reforms to address allegations of excessive force and biased policing.

By Steve Militech, Seattle Times (Mar. 13, 2018) 

U.S. District Judge James Robart on Tuesday approved the city of Seattle’s plan to submit a series of reports to show whether federally mandated police reforms are locked in place, with an ultimate goal of terminating a court-ordered agreement by 2020.

Robart asked for the plan as part of his January ruling finding the city in full compliance with the main terms of a 2012 consent decree with the U.S. Justice Department.

As part of the consent decree, the Seattle Police Department must demonstrate over the next two years that it is maintaining reforms to address allegations of excessive force and biased policing.

Under the plan, the city will take the lead role in carrying out the “critical self-analysis,” although the Justice Department and the court’s monitor, Merrick Bobb, will scrutinize the progress. The Justice Department and monitor concurred with the plan, labeling it a joint approach that resulted from extensive discussions.

The city will submit seven quarterly reports to the court beginning in July, with the hope of including a joint motion to terminate the consent decree with its final filing in January 2020.

While the city’s proposal is designed to pinpoint concerns so they can be quickly fixed, the timeline could change if “significant shortcomings” are identified, according to a city memorandum submitted to Robart.

“The City recognizes that, ultimately, it is more important to get this right than to simply get this done,” the memorandum says.

Under the plan, the Police Department’s Audit, Policy & Research Section will conduct audits, paying particular attention to concerns flagged by the monitor and the court during the first phase.

The reports would be designed not only to sustain compliance, but to “drive reform beyond the requirements of the Decree and after federal oversight has ended,” according to the memorandum.

The city also will provide updates on protracted contract negotiations with the Seattle Police Officers’ Guild to ensure any agreement with the union, which represents sergeants and officers, “falls within the boundaries” of the consent decree, the memorandum says.

https://www.seattletimes.com/seattle-news/crime/federal-judge-approves-plan-for-second-phase-of-seattle-police-reforms/

New Cleveland Police Policy Designed to Protect the Mentally Ill

By Eric Heisig, Cleveland Plain Dealer

CLEVELAND, Ohio -- When the city of Cleveland set out to create a new crisis intervention policy that governs how police officers handle encounters with the mentally ill, it wasn't explicitly because of Tanisha Anderson, but rather a pattern of similar incidents.

The 37-year-old's death while handcuffed by police in front of a family member's home during a November 2014 mental health episode came less than a month before the Justice Department issued a blistering report highlighting decades of unconstitutional policing and use-of-force abuses within the ranks of the Cleveland police.

"Officers too often use unreasonable force against individuals with mental illness, individuals in medical crisis and individuals with impaired faculties," according to a 58-page letter from the Justice Department addressed to Mayor Frank Jackson.

The Justice Department's criticisms of how the police handled encounters involving the mentally ill included incidents that had many of the hallmarks that led to Anderson's death. In the three years that passed since she died, the city agreed to a court-enforced reform agreement with the Justice Department and has taken steps to retrain how every officer within the department's ranks is supposed to deal with people in the throes of a mental-health crisis.

The city implemented new policies for all officers as of January, after nearly all city police officers were trained during 2017. It outlines specific steps officers must take when dealing with the mentally ill when responding to a call for help.

David Malik, an attorney representing the Anderson family, says he thinks the new policy potentially eliminates "brain freeze" in officers responding to someone in crisis.

A Cuyahoga County grand jury, after hearing evidence presented by the Ohio Attorney General's Office, declined to issue charges Fridayagainst officers Scott Aldridge and Bryan Myers, who responded to a call for help with Anderson.

Anderson suffered from schizophrenia and bipolar disorder and was suffering from a breakdown when her family called police to its home on Ansel Road. She died after Aldridge and Myers cuffed her hands behind her back and placed her in the back of a police car following a struggle.

What happened next is disputed. Family said one of the officers engaged a take-down move on Anderson and put a knee on her back. The officers told investigators that Anderson struggled and wiggled her way out of the car and onto the ground, and that she kicked at the officers before she lost consciousness.

The Cuyahoga County Medical Examiner's Office said Anderson died from a "sudden death associated with physical restraint in a prone position" and ruled her death a homicide. Her heart disease and bipolar disorder were considered factors that increased her chance of sudden death, the office said.

However, that ruling and cause were not presented to the grand jury, as the Medical Examiner's Office relied on material later deemed improper to make its findings.

Whether or not either officer used force, the city's new policy contains specific steps for officers to use when responding to a call involving people in crisis.

They includes: assessing risk to officers and others, requesting emergency medical services if required and treating each case as unique.

If a friend or family member can provide information to help, seek it out, the new policy states.

Most importantly, officers should take steps to calm the situation if possible. An officer should try to establish a rapport and speak slowly and calmly. They should ask questions instead of stating orders and show empathy, among other steps.

Officers should show patience and move slowly, trying to wait out a person as long as possible. Force should only be used when necessary and proportional to the threat the subject poses.

However, it is OK to use handcuffs if an officer finds it reasonable, even if it's just to take the person to a hospital. However, if a person is lying down after an officer used force or the person was handcuffed, he or she should be moved to a seated position to prevent asphyxiation.

There are other aspects that deal with steering people in crisis toward the help they need and not to a jail cell.

While all officers were required to undergo eight hours of training on the new policy, the city is still forming a team and training protocol for a specialized team to deal with calls involving crisis intervention.

The monitoring team said in a filing last week that the new policy "has been recognized as a national model of crisis intervention."

Malik called the new policy "potentially a win-win."

"And it's obviously long overdue, but the good news is that the initial steps they have taken to make changes and that's very encouraging," Malik said. "I think that deaths will be prevented."

http://www.cleveland.com/metro/index.ssf/2018/02/new_cleveland_police_policy_de_1.html

Cleveland Makes Progress on Use-of-Force, Crisis Training

By Matthew Richmond, WKSU.com (Jan. 24, 2018)

The federal monitoring team overseeing the police consent decree in Cleveland released its fourth progress report today.

The city’s accomplishments include training for all officers on new use-of-force and crisis intervention policies. And the city is close to completing its new bias-free policing policies. But the backlog of civilian complaints may have actually grown since the last time the Cleveland officials appeared in court. 

According to the monitor, there are about 380 open civilian complaint cases against Cleveland police officers. The monitor’s office has found more since the last hearing in U.S. District Court because the city’s Office of Professional Standards incorrectly closed an unknown number of cases.

Judge Solomon Oliver told the city during a November hearing that more intrusive measures might be needed if the backlog isn’t cleared. Cleveland officials said at this hearing that the process for handling cases is being overhauled. A new administrator is being sought, outside investigators will be hired and progress should be made within six months.

http://wksu.org/post/cleveland-makes-progress-use-force-crisis-training-lags-handling-complaints#stream/0

Seattle Times: A Laudable Victory Toward Police Reform

More work remains, but Seattle reached an important milestone this week when its police department was found to have substantially reformed and ended unconstitutional and excessively forceful practices.

Seattle Times Editorial Board (Jan. 12, 2018)

Seattle crossed an important threshold this week when a federal judge determined that its police department was greatly improved and in compliance with its 2012 consent decree.

This offers Seattle a fresh start, just as its new mayor begins the process of hiring a new police chief. With the cloud of federal oversight clearing, Mayor Jenny Durkan, who played a role in pushing the reforms as a U.S. attorney, remains strongly committed to reforms. She now will have a better chance of attracting the best candidates.

Most important, Seattle’s progress proves that reforms and training to reduce police use of force are effective and don’t compromise public safety.

Seattle is the latest and largest city to reach compliance with Obama-era consent decrees in 15 cities across the country. The positive outcome sends a strong message to a Trump administration that appears less inclined to confront troubled police departments.

Seattle police aren’t completely in the clear. Federal oversight will continue for two years to ensure reforms are sustained and that a list of remaining concerns is addressed.

Those concerns are significant. They include assurance that tragic incidents such as the shooting death of Charleena Lyles aren’t indicative of any systemic problems with use-of-force during crisis intervention.

The city and police officers’ union must also agree to a contract that incorporates the reforms, without the public having to pay extra for constitutional policing.

These are surmountable problems, especially now that core issues are largely addressed and a strong foundation of training is in place.

Statistics cited by U.S. District Judge James Robart, in his finding of initial compliance, quantify the improvement.

Over a two-year study period from 2015 to 2017, overall use of force decreased 11 percent. Compared to the 2009-2011 period preceding the consent decree, the use of higher-level, serious force fell 60 percent. Yet crime rates remained essentially flat.

Police were dispatched to 760,000 incidents during the study period. They used force just under 2,400 times, or less than 0.5 percent, and 80 percent of those involved low-level force.

Having reached this milestone, Seattle and its police can proceed in a more normal fashion. Changes can be made to the department for their own sake and evaluated on their own merits, not through the lens of the decree.

“The training wheels are off,” Durkan said.

The to-do list must include public concerns about safety and civility downtown and property crime in neighborhoods. Plans to hire 200 additional officers and increase community-oriented “beat” cops should help.

Local accountability should also improve. City officials can no longer use the cost and distraction of the consent decree as excuses for performance issues.

The ruling validates the work of advocacy groups, particularly the American Civil Liberties Union, that rightly called for a civil-rights investigation into the department’s treatment of minorities and misuse of force nearly a decade ago.

That prompted a Department of Justice investigation in 2011, back when that agency had its priorities straight. It found Seattle police engaged in a pattern of violating constitutional rights by using excessive force, attributed in part to weak oversight within the department.

After sparring with then-Mayor Mike McGinn, the DOJ and city reached the consent decree in 2012. It mandated reforms and federal oversight to ensure their completion. As U.S. attorney in Seattle at the time, Durkan negotiated the agreement for the DOJ.

All members of the community should be reassured that Durkan is now mayor and invested in maintaining compliance and the higher performance that it represents.

Judge Robart also deserves kudos for his firm and persistent oversight.

Credit is also now due to police department employees at all levels. They worked hard to transform the force into a model of constitutional policing.

Still, disproportionate treatment by law-enforcement across the United States remains a critical problem. Police in Seattle and elsewhere must continue building trust throughout their communities, and every department must modernize its use-of-force training and policies.

But this milestone and the efforts of all involved should be appreciated.

In Seattle and beyond, this demonstrates that unconstitutional policing and excessive force can be addressed with reforms and training, without compromising public safety and law enforcement.

https://www.seattletimes.com/opinion/editorials/a-laudable-victory-toward-police-reform/

Seattle Police Found in 'Full and Effective Compliance' With Court-Ordered Reforms

The ruling represents a momentous turning point for the police department, recognizing its efforts to address allegations that officers used excessive force and displayed troubling evidence of biased policing.

By Steve Miletich and Mike Carter, Seattle Times

In a landmark ruling, U.S. District Judge James Robart on Wednesday found the Seattle Police Department in “full and effective compliance” with court-ordered reforms imposed on the city more than five years ago after a string of high-profile incidents involving use of force.

The city will enter into a two-year review period in which it must show the sweeping reforms are locked in place and address a list of issues Robart laid out in his 16-page ruling.

“Fulfilling Phase I is an enormous milestone and one in which the City and SPD should take pride,” Robart wrote. “Nevertheless, the court cautions the City and SPD that this does not mean their work is done. In many ways, Phase II is the most difficult portion of the Consent Decree to fulfill.

Timeline of Seattle police reform

Key dates in the U.S. Department of Justice investigation of the Seattle Police Department and the resulting court-ordered reforms.

“The ability to sustain the good work that has begun is not a foregone conclusion,” the judge added. “It will require dedication, hard work, creativity, flexibility, vigilance, endurance, and continued development and refinement of policies and procedures in accordance with constitutional principles.”

Mayor Jenny Durkan agreed, saying “the next two years are going to be critical” to continuing the work. She noted during a Wednesday afternoon news conference that the city’s work is not done — “and we know we’re not done.”

But, for the moment, the ruling represents a major turning point for the Police Department, recognizing its accomplishments since the city entered into a consent decree with the U.S. Justice Department in July 2012 to address allegations that officers had engaged in a “pattern or practice” of using excessive force and displayed troubling evidence of biased policing.

“This is a very significant and good day for the city of Seattle, for the Police Department and for the community,” Durkan said, flanked by the department’s brass and city leaders.

Robart, who has overseen the consent decree, granted a motion, filed by the city in September, asking that it be found in full compliance with the agreement. The Justice Department and Community Police Commission, a citizen body created as part of the consent decree, had joined in the city’s request.

The department began to move toward compliance under the leadership of former Seattle Police Chief Kathleen O’Toole, an ex-Boston police commissioner who was hired by the city in June 2014 at a time the reform effort was foundering. She stepped down Dec. 31, citing mostly personal reasons for her decision.

Interim Police Chief Carmen Best, who has said she wants the permanent job and lauded the work of the department’s employees Wednesday, will inherit the responsibility of maintaining the changes, bolstered by a boost in department morale that is certain to greet Robart’s ruling.

The ruling also clears the path for Durkan — who was the U.S. attorney in Seattle when the Justice Department in 2011 found deficiencies in the Police Department — to push for the continued reforms she has pledged to carry out.

During the news conference, she promised that the next police chief will “continue in this very important process of police reforms.”

“It will be critical we hire someone who can be the leader we need in this community” to champion the reform process, she said.

Years of friction between police and minority communities — many centered on allegations of officers escalating petty situations into confrontations, and then using force to quell them — came to a head in 2010 and 2011 with a series of publicized and controversial incidents, many of which were caught on video.

Included was an officer’s threat to beat the “Mexican piss” out of a prone Latino man.

The public outrage reached a peak on Aug. 30, 2010, when then-Officer Ian Birk shot and killed a First Nations totem carver who was walking downtown carrying a piece of wood and a small folding knife. A dashboard camera in Birk’s patrol car captured the audio of the encounter and revealed that only about four seconds passed between the time Birk issued commands to put down the knife and when he fired the shots that ended the life of John T. Williams.

The shooting proved a catalyst within the communities that had over the years witnessed repeated attempts at police reform falter or fail. This time they responded with a single voice and to a higher authority, the Justice Department.

In December 2010, the American Civil Liberties Union of Washington, joined by 34 community groups, sent a letter to the Justice Department asking for a formal investigation into the Police Department.

When the Justice Department gave credence to the complaints in a scathing report in December 2011, then-Mayor Mike McGinn and then-Police Chief John Diaz reacted defensively, setting off a tortured, monthslong process that culminated in the consent decree. City Attorney Pete Holmes had warned that McGinn’s strategy had put the city on the verge of a civil-rights lawsuit that could have dire consequences.

The consent decree led to the appointment of a court monitor, Merrick Bobb, whose initial reports to Robart raised concerns about the pace of reform.

But after the election of Mayor Ed Murray, who took office in January 2014, and the hiring of O’Toole, Bobb began issuing increasingly positive report cards.

The most significant finding occurred last April, when Bobb issued a report concluding the department had carried out a dramatic turnaround in the use of force.

Citing data and case samples over a 28-month period, the monitor found overall use of force dropped both across time under the consent decree and when compared with the period that led to the Justice Department’s findings in 2011.

In contrast to the 2011 numbers, there had been what appeared to be a net decrease of 743 incidents — a 60 percent drop — in the use of moderate and high-level use of force. Of 2,385 incidents, 39, or 1.6 percent, stemmed from the most serious type of force, including 15 officer-involved shootings.

Yet Bobb filed court papers in September in which he told Robart the city had not met all of its obligations in the consent decree. Sources not authorized to publicly discuss the matter contended Bobb subsequently softened his position.

Robart, in his decision, makes it clear the city still has significant and difficult work to do in the coming two years.

Particularly, he noted that the city has not yet named a civilian inspector general to oversee police internal investigations, nor has it concluded negotiations with the Seattle Police Officers’ Guild (SPOG), which has been working without a contract since 2014.

SPOG has filed two unfair-labor-practices complaints against the city over reforms related to the consent decree, the most recent just last week over police-accountability legislation passed by the City Council.

Robart has warned that he will not allow reforms to be derailed by the union.

“If collective bargaining results in changes to the accountability ordinance that the court deems to be inconsistent with the Consent Degree, the City’s progress in Phase II will be imperiled,” the judge wrote.

SPOG President Kevin Stuckey, who attended the news conference as a spectator, said he looked forward to working with the new city administration to resolve differences.

“I’ve said this before and I’ll say it again, we do not wish to impede the progress,” Stuckey said, adding that it was critical the city play by the collective-bargaining rules.

Much of the progress on police reform took place under Murray, the former mayor who made the mandate a key campaign issue when he defeated McGinn in the 2013 race for mayor. It was Murray who hired O’Toole, whom Robart singled out in his ruling for her “exceptional work.”

Murray resigned last year amid sex-abuse allegations.

Murray, in an emailed statement Wednesday, offered his thanks to the “women and men of the Seattle Police Department who have created a national model for reform.”

U.S. Attorney Annette Hayes said the achievement was a “milestone” and a “credit to the hard work of SPD and City leadership, engaged community members including the Community Police Commission, and SPD officers whose dedication to the mission is essential to reform.”

In November, Robart asked the city for more information on the Police Department’s finding that the fatal shooting on June 18 of an African-American woman, Charleena Lyles, was reasonable before he decided on the city’s motion.

Lyles, a 30-year-old mother of four, was shot by two white officers, who said they fired after she pulled one or two knives on them while they were investigating a burglary call from her at her Northeast Seattle apartment.

In submitting the finding to Robart, city attorneys argued the conclusions should have no bearing on the motion.

Lyles’ death occurred after Bobb’s assessments, they wrote, noting that if the department was found to be in compliance with the consent decree, it will be required to keep that status during the two-year “sustainment period.”

“If Ms. Lyles’s death or the City’s response to it demonstrate, along with other evidence, that SPD has failed to comply with one or more requirements of the Decree, the court can make that determination on a complete record at that time,” their brief says.

Tim Burgess, the former Seattle City Council member who spearheaded reform and was praised Wednesday by city leaders, issued a statement on Robart’s ruling, saying, “This is such wonderful news. Lots of people deserve credit, especially the officers, detectives and civilian employees of SPD.”

https://www.seattletimes.com/seattle-news/crime/seattle-police-found-in-full-and-effective-compliance-with-court-ordered-reforms/

PARC's Matthew Barge Talks to Wichita Eagle about Use of Force Issues

By Tim Potter, Wichita Ealge (Nov. 21, 2017)

When the Barber County undersheriff fired a beanbag that killed an unarmed man, he went against national recommendations for use of the “less lethal” weapon.

According to an attorney’s preliminary investigation on how the shooting unfolded and based on the guidelines, the undersheriff fired the beanbag round too close to the man and hit him in the chest – a part of the body he was supposed to avoid if he meant to avoid a fatal wound.

In interviews, The Eagle has gathered a detailed account of the shooting by the attorney for Kristina Myers, the wife of the man killed, 42-year-old Steven Myers. Lawyer Michael Kuckelman shared notes he took when he was allowed to view and listen to body-camera video and audio from the scene of the Oct. 6 shooting in Sun City, a town of 53 northwest of Medicine Lodge. The recordings come from body cameras worn by a deputy and the sheriff.

Officials have not released the video.

The recordings show Undersheriff Virgil “Dusty” Brewer fired the beanbag round from a shotgun from less than 10 feet into Myers’ chest, Kuckelman said. The round hit just below the left nipple. Kuckelman said he bases the distance on what he saw in the video, what he saw at the scene and what he learned from an eyewitness.

According to guidelines in a 2009 report by Los Angeles-based Police Assessment Resource Center, the beanbag shot was too close and hit the wrong spot if it was intended not to be fatal. The report said that “beanbag rounds present a risk of death or serious physical injury at less than 10 feet when fired at the chest, head, neck, and groin.” The report put the “optimal distance for a beanbag” at between 21 and 50 feet.

Beanbag rounds, designed to be less lethal than normal law enforcement weapons, are not intended for “up-close encounters,” said Matthew Barge, a police practices expert and executive director of the center’s New York City office.

“You want to avoid center mass” when aiming, Barge said Monday.

Law enforcement agencies usually limit the use of a beanbag – a small fabric pillow filled with lead pellets and usually fired from a 12-gauge shotgun – to specially trained officers or supervisors, Barge said. That’s partly because beanbag shotgun use differs from handgun use, in which officers are trained to fire at the “center mass.”

The Barber County Sheriff’s Office has no written policy on beanbag use, Kuckelman said. It’s not clear whether Brewer had training in firing beanbags, he said.

Sheriff Lonnie Small couldn’t be reached for comment Monday.

The Wichita Police Department has a seven-page policy on use of less-lethal weapons.

“The body’s upper center mass … should be avoided, unless lethal force is the intent. … At less than 7 yards (21 feet) the risk of serious injury or death is greatly increased,” the policy says.

Beanbags must be used “with the utmost judicious consideration,” it says.

Shooting recordings

According to Kuckelman, 911 received a call at 6:26 p.m. and dispatched the first deputy less than a minute later.

The first deputy on scene, Deputy Mark Suchy, arrived at 7:07 at Buster’s Saloon in Sun City – about 41 minutes after the 911 call about a disturbance involving Myers. The Kansas Bureau of Investigation said the caller reported that Myers had been threatening people with a gun outside the bar.

Myers had worked in oil fields and was a ranch hand. He had had been drinking that day at Buster’s, Kuckelman said. Besides being a husband, he was a father of three children, ages 1, 9 and 11.

Myers ended up in a neighbor’s shed down the street from the restaurant and bar. Myers had already put a shotgun away at his home, where the gun was found hours after the shooting during a search, Kuckelman said.

Myers was obeying commands when he was shot, Kuckelman said Monday. “He had just responded to a sheriff’s command to come out the shed.”

Kuckelman has filed a motion in Barber County District Court seeking copies of law enforcement video and audio recordings of the shooting. A hearing on that has been set for Dec. 1.

Last week, the attorney said in a news release: “I have viewed the video, and what I saw was disturbing. Every resident of Kansas should be calling for this video’s release. The video captures an extreme violation of a man’s civil rights and a shocking use of excessive force.”

In interviews with The Eagle, Kuckelman said the audio began with Sheriff Small shouting, “Steven, come out of that shed.” The sheriff, Undersheriff Brewer and Deputy Suchy and a K9 dog were in the kitchen of a small house on Main Street.

Small gave the command through a screen door in the kitchen, toward the shed 15 to 20 feet away, Kuckelman said.

‘Mind-boggling’

After Myers stepped out of the shed, the sheriff turned with the K9 dog and walked toward the front door – away from Myers.

It doesn’t make sense for the sheriff – as the supervisor – to leave just as the incident is unfolding and reaching a key stage, Kuckelman said. “That’s mind-boggling – you’re in charge,” he said. Also, the dog was being led away when the animal could have been used to help subdue Myers if needed, Kuckelman said.

According to Kuckelman, about eight seconds elapsed as deputies gave inconsistent commands to Myers.

Two people shouted commands: one excited voice saying, “On the ground!” another exclaiming, “Hands up!” Then: “On the ground!” All in quick succession.

“And then the gun goes off,” Kuckelman said. “It all goes very rapidly.”

Right before the shot, the video shows Myers’ left arm extended out in front of him. “He clearly no longer had the shotgun,” Kuckelman said. The other hand, his right, isn’t visible in the video.

No one ever yelled out that Myers had a weapon, he said.

It was toward the end of the day. But the sun still illuminated the back yard, and Myers could be seen clearly and closely by the undersheriff who fired, Kuckelman said.

‘You can’t’ then ‘boom’

Just before Myers suffered the fatal shot, he blurted out. “Damn it … You can’t…”

Deputy Suchy’s body camera didn’t capture the view of Brewer firing the gun. Later, the video shows someone taking the shotgun used to shoot Myers.

When Brewer fired, he had moved from the kitchen to just outside the screen door and was definitely less than 10 feet from Myers, Kuckelman said.

Under a policy like the Wichita Police Department has, Brewer should have realized he was too close to fire a less-lethal shot, the attorney said.

The shotgun went “boom.”

Myers yelled “Ow!” as the blast hit.

He pivoted, collapsed to his hands and knees, then went face down, the video shows.

His blood began pooling on the dirt.

On the ground, Myers didn’t move as Brewer put handcuffs on him.

At that point, the resident said, “God damn, that was a little drastic wasn’t it!”

Brewer rolled Myers, still in handcuffs, onto his back.

“He’s obviously dying,” Kuckelman said. “You can hear the air escaping from his lungs.” Blood covered the front of his T-shirt.

‘Pretty damn close’

The undersheriff left as two relatively new deputies did CPR on Myers, Kuckelman said. One deputy held gauze on the wound while the other did chest compressions.

After the sheriff put the dog in the patrol car, he went to the back yard, were Deputy Suchy told him: “Lonnie, he ain’t got a pulse.”

According to the audio, Suchy said it was difficult to do CPR because the wound was near where he needed to place his hand.

The coroner pronounced Myers dead at the scene at 8:08 p.m.

After the coroner saw the wound, Kuckelman heard him say: “That’s from a beanbag? Straight-on shot. Holy shit. Was pretty damn close.”

Deputy Suchy then noted some of the evidence: “Clear cartridge by the porch.”

During more discussion, an EMT asked whether Myers had a gun and Suchy answered, “No,” Kuckelman said.

According to the Kuckelman’s notes from the audio, as the coroner asked questions, Sheriff Small told Suchy, “Don’t tell him everything.”

About two minutes later, the sheriff told told Suchy to stop recording, Kuckelman said. And the recording ended.

http://www.kansas.com/news/local/crime/article185785463.html