“It’s Not Just Bad Cops; Prosecutors Run Wild”: The Ones Who Lie And Cheat To Win At Any Cost
One year ago, Michael Brown was shot dead by a police officer. Since then, the nation has debated the justice system more feverishly than any other period in recent memory. Most of the scrutiny has rightly fallen upon the police, which is where the justice system meets the people viscerally and sometimes fatally. Cops only have the power to arrest, though; the power to prosecute and put millions of Americans in prison—and more than a few to death—rests with prosecutors.
And too many are abusing that power.
Suppressing evidence, coddling informants, even outright lying are some of the instances of prosecutorial misconduct that sent away nearly half the 1,621 people convicted for crimes they didn’t commit since 1989, according to the University of Michigan Law School’s National Registry of Exonerations. These are only the cases we know about, and they are surely only a fraction of the wrongly convicted. Even so, the figure is stunning—especially when you consider that 115 of them were people condemned to die.
The punishment for bad prosecutorial misconduct is virtually nil. In a 2011 report on 707 such cases, only six prosecutors were disciplined. Almost all still have their licenses, and are still practicing law.
Almost nothing is being done to systematically fix prosecutorial misconduct despite multiple avenues available for reform and bipartisan agreement that there’s an epidemic on our hands. But, let’s face it, convicted criminals (even wrongfully convicted ones) don’t play well at the polls.
Over the next several weeks, The Daily Beast will dive into this blight on the judicial system. We’ll look at how money, race, and politics distort the judicial system, and incentivize even decent attorneys to misbehave. We’ll talk with some of the leading critics of the system, liberal and conservative. And we’ll hear some of the most appalling tales of prosecutors run amok—in many cases, involving attorneys still on the job, unsanctioned and undeterred.
The prosecutorial role is an unusual one in the American judicial system. Usually, attorneys have one client, and their responsibility is to advocate solely for that client’s interests. Prosecutors, however, have a dual responsibility. On the one hand, they are the government’s lawyers, charged with making the state’s best case against the accused. On the other hand, prosecutors are also part of the judicial system, and they are meant not simply to secure convictions, but to pursue justice.
At times, those two obligations conflict. When a prosecutor discovers potentially exculpatory evidence, he or she must disclose it—as confirmed by the Supreme Court in the 1963 Brady decision. No civil lawyer would do this; nor would any criminal defense lawyer. But prosecutors are uniquely cast in the dual roles of advocates and what some have called “ministers of justice.”
In theory, anyway. In practice, numerous factors cause many prosecutors to tilt toward convictions. Perhaps the best known recent example is the corruption trial of former Senator Ted Stevens, which resulted in his conviction, and in which the government was later found to have withheld exculpatory evidence. By that time it was too late for Stevens, who had already died.
America is the only country in the world in which many prosecutors are elected—and many of them run as being “tough on crime.” The disciplinary commission that sanctioned Durham County, North Carolina District Attorney Michael Nifong—prosecutor of the Duke lacross team on false rape charges—noted his upcoming primary election as a motivating factor for his misconduct. The pressure to produce wins has led to a “win-at-all-costs” mentality in some offices, especially when voters reward such behavior.
Perhaps most importantly, prosecutors are granted immunity for most kinds of misconduct. It’s easy to see the reasons for this policy: otherwise, every well-heeled convict would sue, clogging the system and making it impossible for prosecutors to do their jobs. At the same time, that immunity is so absolute that prosecutors simply get off scot-free, even when misconduct is established. Even worse, most states lack any meaningful oversight of prosecutors: no commissions, no review boards, nothing.
Then there’s race. Ninety-five percent of elected prosecutors are white, and two-thirds of the states that elect prosecutors have no black ones. Yet 40 percent of the incarcerated population is black and one in three black men will have spent time in prison. How is the justice system supposed to be seen as fair when this crucial element of it is almost exclusively run by white people?
Despite the racial divide, the response to prosecutorial misconduct and overzealousness has been striking in its bipartisan nature.
In some ways, the issue of prosecutorial misconduct is an ideal opportunity for Republicans and Democrats to work together. Republicans wary of overzealous state action become concerned “when district attorneys attack,” to quote the National Review. Conservatives also place a high value on public trust in the justice system, and are thus keen to root out bad prosecutors who may undermine it.
Judge Alex Kozinski, no bleeding heart liberal, recently called the problem an “epidemic,” excoriated a California prosecutor for trying to maintain a conviction (in probably the only appellate court recording to qualify as “viral” on YouTube), and proposed a host of major reforms.
Liberals, meanwhile, may see overzealous prosecutors not as anomalies within an otherwise just system, but as examples of an inherently unjustice system doing little to protect the vulnerable, especially people of color. Liberals tend to value fairness and compassion over the strong administration of justice, even when some guilty people may go free as a result. Thus they, too, are wary of prosecutorial misconduct, albeit for very different reasons from conservatives.
It’s odd, then, that so little has been done. For example, efforts to create an oversight commission in New York have failed two years in a row, and there is nothing on the congressional agenda.
That’s not for lack of proposed reforms, which The Daily Beast will explore in detail in the coming weeks. These include proposals to:
– Create oversight boards, like those that already exist for judges, to monitor, censure, and report misconduct;
– Allow the wrongly convicted to sue for monetary relief—including from the prosecutor’s office, if misconduct is established;
– Reduce prosecutorial immunity to a qualified, rather than absolute, form. In particular, open prosecutors to be tried for perjury if they have lied under oath;
– Eliminate the election of prosecutors, which distorts the incentives they face;
– Expand Brady requirements with model rules which states could adopt as they see fit. These could include an “open file rule,” in which all information about a case must be shared with defense counsel; and
– Investigate the racial disparity among prosecutors and treat it as a civil rights issue.
Perhaps the time for such reform is, at last, at hand. The seemingly unlimited use of police violence against people of color, and the failure of prosecutors to take action against it, has led to a crisis of confidence in the criminal justice system at large—one amplified by the racial disparities within that very system.
Is it possible that the left’s concern with racial justice, and the right’s concern with law and order, might converge in this area where reform is so desperately needed? Will there be progress at last?
By: Jay Michaelson, The Daily Beast, August 8, 2015
“What Bernie Sanders’s Rise Means For American Politics”: Candidacy Will Leave Behind Policy Markers And Arguments About The Future
The exhaustive and exhausting analysis of the Fox News debate promises to produce days more of Trump-mania. It’s thus an excellent time to ponder the other big surprise of the 2016 campaign: the Democrats’ extended Weekend at Bernie’s.
No one is more amazed about the buoyancy of his presidential candidacy than Bernie Sanders himself, which only adds to its charm. The Vermont independent and proud democratic socialist got into the race mainly to remind the country what a progressive agenda actually looks like. You can’t keep calling President Obama a socialist once you are confronted with the real thing.
Then magic struck: Sanders started surging in the polls in Iowa and New Hampshire, two states that are demographically well set up for him and that also happen to hold next year’s first two contests. A poll this week from WMUR-TV in New Hampshire showed Sanders within 6 points of Hillary Clinton. The survey had a relatively small sample size and a rather large margin of error, but the trend it measured is consistent with other polls.
To paraphrase the late Robert Bork, the Sanders candidacy is a political analyst’s feast because it allows everyone to peddle his or her favorite preconceptions.
Conservatives point to his strength as proof positive of how left-wing the Democrats have become. Clinton’s critics cite his rise as a product of her weaknesses. Progressives argue that Bernie taps into a deep frustration with inequality and the power of big money in politics while also reflecting the public’s interest in bold proposals to correct both. And those who go for big sociological theories link Sanders and Trump as avatars of a populist rebellion rooted in widespread impatience with the system and traditional politicians.
Let’s begin with a caveat: Bernie is for real, and his authentic authenticity is enchanting. But it’s not clear how big his candidacy will get. He is drawing large and boisterous crowds, but he is still not close to threatening Clinton in the national polls, partly because he hasn’t broken through among African Americans and Latinos. They matter in the states that vote after Iowa and New Hampshire. This week’s NBC News/Wall Street Journal poll showed Clinton with a 59 percent to 25 percent lead over Sanders nationally. Clinton’s share was down 16 points from June while Sanders was up 10 points. But a 34-point lead is still a 34-point lead.
Is Sanders’s ascent about Clinton’s problems? The evidence is mixed. In the WMUR poll, 73 percent of New Hampshire Democrats had a favorable view of Clinton; Sanders’s favorability was at 69 percent. A fair share of Bernie’s people like Hillary, too.
But when asked about specific personal qualities, the poll’s respondents presented Clinton with a to-do list. Clinton was far ahead of Sanders as a strong leader, as having the best chance of winning in November and as having the right experience to be president. But Sanders led as the most likable and most progressive. And when asked who was the “least honest,” 31 percent picked Clinton; only 3 percent picked Sanders. Washington punditry exaggerates Clinton’s problems, but her campaign should not underestimate them.
The ideological claims are more complicated. It’s true that Democrats — and not only Democrats — are far more aggressive in their opposition to economic inequality than they were, say, in the 1990s. But that’s because the problems of inequality, blocked mobility and wage stagnation are now more severe. And anybody who doubts that the super rich have gained even more power in the political system isn’t following the super PAC news. Sanders is marshaling these discontents.
On the other hand, Democrats have not changed nearly as much ideologically as conservatives claim. In 2008, according to numbers the Pew Research Center ran at my request, 34 percent of Democrats called themselves liberal, 37 percent called themselves moderate, and 24 percent called themselves conservative. In 2015, 41 percent were liberal, 35 percent were moderate, and 21 percent were conservative. Is there an uptick in Democratic liberalism? Yes. Has the party shifted sharply leftward? No.
As for alienation from the system, Trump and Sanders do speak to a disaffection that currently roils most of the world’s democracies. But their way of doing it is so radically different — Sanders resolutely programmatic, Trump all about feelings, affect and showmanship — that they cannot easily be subsumed as part of the same phenomenon. Sanders’s candidacy will leave behind policy markers and arguments about the future. Trump’s legacy will be almost entirely about himself, which is probably fine with him.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, August 5, 2015
“Emerging From The Ferment”: The Real Irony Of Scott Walker’s Messy Personal Finances
The finances of Wisconsin Gov. Scott Walker got a rather stern once-over from National Journal on Monday.
“Walker has two credit-card debts of more than $10,000 apiece on separate cards and is paying an eye-popping 27.24 percent interest rate on one of them,” the Journal harrumphed, before quickly lasering in on the irony. “The Republican presidential candidate has cast himself as both a fiscal conservative leader and a penny-pinching everyman on the campaign trail, often touting his love of Kohl’s, the discount department store.”
Walker isn’t the first Republican presidential hopeful to get this treatment either. Back in June, The New York Times took Sen. Marco Rubio of Florida to task for a “strikingly low savings rate” and some household purchases of questionable wisdom.
This is a deeply silly genre of journalism. It treats troubles the vast majority of Americans grapple with as vaguely scandalous. And it implicitly assumes the same rules of thumb that should guide household budgets should also guide the federal budget, which is catastrophically wrong.
More to the point, other details in the Journal piece offer a brief look at a presidential candidate of relatively modest means.
“Walker listed only six investments worth between $1,000 and $15,000, a whole life insurance plan worth between $15,000 and $50,000, and a deferred compensation plan from Milwaukee County worth between $15,000 and $50,000,” the Journal continued. Walker received a $45,000 advance for a book in the last year, and it looks like his annual salary since assuming the governorship in 2011 has been around $140,000. That’s certainly a lot of income compared to most Americans — it puts Walker just below the threshold for the top 10 percent — but it’s obviously nothing compared to the fortunes Jeb Bush and Hillary Clinton have amassed.
This gets at something poignant about Walker the politician, and by extension Walker the man. While most all presidential candidates and politicians have a significant amount of socioeconomic distance from the median American, Walker has less than most. Besides his income and wealth, Walker came from modest beginnings as a preacher’s kid in a small Wisconsin manufacturing town. He attended Marquette University in Milwaukee, but didn’t finish his degree — passing on one of the key status symbols that American elites use to separate themselves from the pack.
And yet few Republicans, and certainly no other Republican presidential candidate, has been so ferociously focused on grinding everyday workers into the ground.
Like any good conservative, Walker pushed massive tax cuts for the well-to-do through Wisconsin’s state budget, creating a hole he’s now trying to fill by slicing education spending. But he also drove a blistering and brutally successful push to crush Wisconsin’s public-sector unions, followed by “right to work” laws that will likely cripple the state’s private unions as well.
Nor does it look like Walker did this because Republican and business interests were demanding it — he did it because he wanted to, as a matter of ideology.
An explanation probably lies in the unique and poisonous way the history of race and class intersected in the Milwaukee political milieu Walker came from. In the early 20th century, large numbers of black Americans migrated from the South to northern urban centers. But no sooner had they put down roots than the mid-century collapse of manufacturing arrived, sucking away jobs and bringing poverty to the cities.
Black Americans had never been permitted to build up the wealth that white Americans had: Along with the aftereffects of slavery and the social consequences of segregation, they were initially excluded from policies like Social Security and the G.I. Bill, which helped build the white middle class. And racist policies like redlining and the construction of the highway system destroyed many of their neighborhoods and prevented them from accessing areas of economic vibrancy.
So when the white middle class fled to the suburbs, the poorer black populations could not follow. That set up Reaganite white suburbs, which surrounded and disdained the urban interiors of impoverished African-Americans, and all the vicious politics that followed. The funny thing, as Alec MacGillis laid out in a 2014 profile of Walker, was that this process came a few decades late to Milwaukee. The future governor cut his political teeth as a member of Milwaukee’s fleeing white upper-middle class, just as this conflict was reaching its apex.
So it should come as no surprise that those public-sector jobs Walker helped crush have also been one of the great economic havens where black Americans can actually earn a decent living.
For decades, American macroeconomic policy has done a terrible job providing enough work to keep everyone employed. That’s introduced a bottom-up desperation that’s trickled higher and higher over the years. On top of that, while America has a hidden welfare state for the rich and the upper-middle class, its explicit social safety net is skimpy and targeted at the poorest Americans. This creates a perverse circumstance in which many Americans in the middle of the pack feel left behind, while they see people with different skin colors and alien cultural habits — habits often shaped by poverty — receiving aid (however grossly inadequate).
More and more, American society is becoming a brute contest, in which the groups of varying power must trample one another for the scraps that fall from the elite table. This sort of divide-and-conquer effect, in populations that should be uniting over common interests and common foes, has a long history in U.S. labor struggles.
When people find themselves outside the elite inner circle, and see themselves as in a zero-sum economic game with impoverished subcultures that look and act different from them, the likes of Scott Walker is often what emerges from the ferment.
By: Jeff Spross, The Week, August 5, 2015
“Official Justifications For Savagery”: Police Officers Must Be Held To Higher Standard Of Conduct
The omnipresence of video cameras hasn’t restrained the impulses of violent police officers, it seems, but cameras have at least repudiated the narratives that have saved so many police from prosecution. In several cases, video footage has offered a truth that defies official justifications for savagery.
Because he was wearing a body camera that contradicted his account (stunning, yes, that he was aware he was being recorded), Ray Tensing has been charged with murder in the July death of Cincinnati motorist Samuel DuBose, whom Tensing, then a University of Cincinnati police officer, had stopped for a traffic violation. Tensing claimed that he shot DuBose because he feared for his life, but the footage doesn’t appear to show him in any danger.
Yet, the decision by Tensing’s superiors to prosecute him merely lays bare the remaining inequities in a criminal justice system that is by no means just. It is quite rare for police officers to be convicted and sent to prison for their unjustified violence, no matter the evidence against them.
(Indeed, it is still quite rare for police officers to be charged in the deaths of civilians. So far this year, 558 civilians have died at the hands of police, according to The Washington Post, which says that officers have been charged in only four cases, all of which were captured on video. In three of the cases, the victims were black, while the officers were white. In the fourth, the civilian was also white.)
Indeed, the criminal justice system is one of the last bastions of blatant racism, a pastiche of prejudices, wrongheaded stereotypes, and all-too-human assumptions. The implicit and explicit biases that color black people as dangerous and anti-social tend to let police officers, especially white officers, off the hook. Their crimes often go unpunished.
Perhaps you remember the trial of four Los Angeles cops in the brutal 1991 assault on Rodney King. Videotaped by a passer-by as they repeatedly beat and kicked a prostrate King, they were charged with assault with a deadly weapon and use of excessive force. Yet, none were convicted in a Simi Valley courtroom.
Two of the four, Stacey Koon and Laurence Powell, were later convicted after federal authorities charged them with violating King’s civil rights.
Still, U.S. District Court Judge John Davies was clearly sympathetic to the two men, saying that King had “contributed significantly to provoking the offense behavior.” While they faced up to 10 years in prison, he sentenced them to 30 months.
Now fast-forward a quarter-century. In May 2015, Cleveland police officer Michael Brelo, who is white, was acquitted of manslaughter in the 2012 deaths of an unarmed black motorist, Timothy Russell, and passenger, Malissa Williams. After other officers had ceased shooting and Russell had stopped his car — he had led the officers on a high-speed chase — Brelo jumped onto the hood of the vehicle and fired 15 shots.
The U.S. Department of Justice, by the way, considered that case when it issued a report that found the Cleveland Police Department had engaged in a long-running pattern of unnecessary force. More than 100 police officers pursued Russell’s vehicle because they believed they heard gunfire coming from the car, but Justice found it likely that the car had backfired.
Nevertheless, Cuyahoga County Judge John P. O’Donnell ruled that the “state did not prove beyond a reasonable doubt that the defendant, Michael Brelo, knowingly caused the deaths of Timothy Russell and Malissa Williams.” (O’Donnell presided over a bench trial — or trial without a jury.)
Law enforcement defenders would undoubtedly note that neither Rodney King nor Timothy Russell was a paragon of virtue. Both motorists failed to stop their vehicles, choosing to flee police. Their conduct was clearly wrong.
But neither King nor Russell took an oath to protect and serve. Neither man was given the badge and gun that ought to suggest a rigorous moral code and a significant degree of restraint.
In other words, police officers should be held to a higher standard of conduct. And if they behave like murderous thugs, they should be treated as such. Until they are, justice remains tantalizingly out of reach.
By: Cynthia Tucker Haynes, Pulitzer Prize for Commentary in 2007; The National Memo, August 1, 2015
“Why Progressives Must Stay United”: A Split Would Only Play Into The Hands Of The Right
A new report finds more U.S. children living in poverty than before the Great Recession. According to the report, released Tuesday from the Annie E. Casey Foundation, 22 percent of American children are living in poverty (as of 2013, the latest data available) compared with 18 percent in 2008.
Poverty rates are nearly double among African-Americans and American Indians. Problems are most severe in South and Southwest. Particularly troubling is a large increase in the share of children living in poor communities marked by poor schools and a lack of a safe place to play.
Which brings me to politics, power, and the progressive movement.
The main event at the Netroots Nation conference in Phoenix, Arizona last weekend was a “Presidential Town Hall” featuring one-on-one discussions between journalist and undocumented American Jose Antonio Vargas and presidential candidates Governor Martin O’Malley and Senator Bernie Sanders.
It was upstaged by #BlackLivesMatter activists who demanded to be heard.
It’s impossible to overcome widening economic inequality in America without also dealing with the legacy of racial inequality.
And it is impossible to overcome racial inequality without also reversing widening economic inequality.
They are not the same but they are intimately related.
Racial inequalities are baked into our political and economic system. Police brutality against black men and women, mass incarceration disproportionately of blacks and Latinos, housing discrimination that has resulted in racial apartheid across the nation, and voter suppression in the forms of gerrymandered districts, voter identification requirements, purges of names from voter registration lists, and understaffed voting stations in black neighborhoods – all reveal deep structures of discrimination that undermine economic inequality.
Black lives matter.
But it would be a terrible mistake for the progressive movement to split into a “Black lives matter” movement and an “economic justice” movement.
This would only play into the hands of the right.
For decades Republicans have exploited the economic frustrations of the white working and middle class to drive a wedge between races, channeling those frustrations into bigotry and resentment.
The Republican strategy has been to divide-and-conquer. They want to prevent the majority of Americans – poor, working class, and middle-class, blacks, Latinos, and whites – from uniting in common cause against the moneyed interests.
We must not let them.
Our only hope for genuine change is if poor, working class, middle class, black, Latino, and white come together in a powerful movement to take back our economy and democracy from the moneyed interests that now control both.
By: Robert Reich, The Robert Reich Blog, July 22, 2015
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