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Updated: 2016-12-10T00:00:00-05:00

 



Bad Boys

2011-06-27T12:00:00-04:00

You might think that putting an innocent person in prison for a major crime like rape or murder would end or at least impede a prosecutor’s career. But prosecutors are rarely sanctioned for mistakes, even when their misconduct is egregious. In fact, they are often re-elected, promoted to judge, or encouraged to run for political office. Sometimes they even owe these successes to the publicity they get from high-profile convictions of people who turned out to be innocent. Here are some of the worst cases of prosecutors who put more than one innocent person in prison but suffered no significant professional consequences. The Death Row Gambler Forrest Allgood, district attorney for four Mississippi counties  Four people Forrest Allgood has convicted of murder were later set free. Two of them served time on death row. One was Sabrina Butler, an 18-year-old mentally retarded woman Allgood convicted of killing her infant son in 1990. Butler was retried in 1995 after the Mississippi Supreme Court ruled that Allgood had committed misconduct when he told jurors that Butler’s refusal to take the stand in her own defense was an indication of her guilt. In the retrial, the medical examiner that Allgood had used the first time around admitted to making some key mistakes, and outside examiners testified that Butler’s child likely died of Sudden Infant Death Syndrome or kidney disease. Butler was acquitted and released from prison. Another Allgood victim was Tyler Edmonds. In Ed-monds’ 2007 trial, Allgood posited that the defendant and his sister, Kristi Fulgham, had teamed up to kill Fulgham’s husband 13 years earlier. The duo, he argued, had waited until the man was asleep and then simultaneously pulled the trigger. At trial, Allgood called on controversial medical examiner Steven Hayne, who preposterously claimed that he could tell by the bullet wounds in the victim’s body that two people had held the gun. On review, the Mississippi Supreme Court threw out Hayne’s testimony and ordered a new trial. In 2008 Edmonds was retried, acquitted, and released. Kristi Fulgham was convicted in a separate trial and is still on death row. In his 1995 prosecution of Kennedy Brewer, Allgood again solicited testimony from Hayne, this time accompanied by Hayne’s longtime sidekick, the disgraced bite mark specialist Michael West. West testified that he found bite marks on a 3-year-old murder victim that could only have been made by Brewer’s teeth. Based largely on that testimony, Brewer was convicted of raping and killing Christine Jackson, his girlfriend’s daughter, and sentenced to death. After the conviction, Allgood attempted to have the biological evidence from the case destroyed. Brewer’s lawyer objected and managed to preserve it. A decade later, more-advanced DNA testing determined that there was semen from two men inside of Jackson, and neither of them was Kennedy Brewer. The state Supreme Court ordered a new trial. Despite the test results, Allgood planned to prosecute Brewer again. When The New York Times asked him why he hadn’t bothered checking the crime scene DNA against the state’s DNA database, Allgood replied that the state doesn’t have such a database. This came as a surprise to the man who had been running it. Allgood’s decision to retry Brewer and his opposition to checking the crime scene evidence against the state DNA database kept Brewer in prison for another six years. When the DNA was finally checked, it revealed Christine Jackson’s murderer and showed that he had also raped and murdered another young girl two years later, just a few miles away. Allgood had used Hayne, West, and dubious bite mark testimony in that case too, convicting the wrong man. In 2008, that man, Levon Brooks, was exonerated and freed. The DNA in both cases matched a man named Justin Albert Johnson, who later confessed to both crimes. Allgood continues to win re-election, and there are still countless people in prison based on his use of Hayne and West. One of them, Eddie Lee Howard, is still on death row. The[...]



The Crime Rate Puzzle

2011-06-20T12:00:00-04:00

“Crime Keeps on Falling, But Prisons Keep on Filling.” Conservative pundits have been poking fun at that headline ever since it appeared in The New York Times in 1997. For the law-and-order right, it typifies the clueless mind-set of elite liberals. Can they not comprehend that America’s soaring incarceration rate and the historic two-decade drop in crime that began in the mid-1990s might be connected? The idea sounds straightforward enough: As we have put more people in jail, the violent crime rate has indeed dropped, from 758 victims per 100,000 people in 1991 to 429 in 2009. It’s intuitive to say that putting more murderers and rapists behind bars is the reason why. But on closer inspection, the causal link is far from clear.  In a series of studies published in 2009, the University of Missouri-St. Louis criminologist Richard Rosenfeld and the SUNY-Albany sociologist Steven Messner found that during the last 15 years, states with lower incarceration rates saw bigger drops in crime, on average, than those with lock-’em-up policies. Moreover, the historic increase in the prison population began in the early 1980s, a decade after the crime rate began to rise and a decade before it started to fall. The incarceration rate increased by more than 100 percent in the 1980s, but violent crime still increased that decade, by 22 percent. If it wasn’t incarceration, what caused the drop? There is no shortage of theories: Scholars have pointed to everything from the legalization of abortion to the prohibition of lead-based paints. Other theories credit America’s aging population (the vast majority of criminals are under 30), President Bill Clinton’s program to put more cops on the street, and either stronger gun control laws or an increase in gun carrying by law-abiding Americans. The studies behind all these theories claim to produce statistically significant results. Could they all be right? “I don’t think any of them are right,” says Sam Walker, an emeritus professor of criminal justice at the University of Nebraska. Walker has studied crime for 35 years and has written 13 books on criminal justice. “You can alter variables to make them say whatever you want them to say,” he says. “Conservatives say the crime drop was because of incarceration. Liberals say it was programs like community policing. I don’t think there’s much convincing evidence for either.” There is an academic consensus about just two factors: the ebb in the crack trade after its peak in the late 1980s and the growth of the economy since 1992. (While it is commonly thought that the drug itself made people violent, the vast majority of “crack-related” homicides resulted from disputes that arose as dealers fought over an emerging black market.) The crack theory suggests that the anomaly was not the crime drop but the preceding spike. In his 2009 book This Is Your Country on Drugs, the journalist Ryan Grim makes the case that the crack wave may have been a side effect of the Reagan administration’s anti-marijuana policies, which drove the price of pot so high that many dealers switched to crack. It is certainly true that the broader policy of drug prohibition has contributed to crime. The homicide rate began its steep, 20-year ascent in the early 1970s, around the same time that President Nixon gave us the modern drug war. America hadn’t seen that dramatic a shift in the homicide rate since the early 1930s, when the homicide rate bottomed out after the repeal of alcohol prohibition. There is also strong evidence for the other theory: that our ever-improving standard of living has been quietly nudging us toward ever-safer streets. In fact, were it not for drug prohibition, we could well be living in the safest era in American history. In a 2004 study, Randall Shelden, a criminologist at the University of Nevada-Las Vegas, and William B. Brown, research director at the Pacific Policy and Research Institute, examined crime and incarceration rates going back to 1970. They found that w[...]



Wrongful Convictions

2011-06-07T12:00:00-04:00

When Paul House was finally released from prison in 2008, he was a specter of the man who had been sentenced to death more than 22 years earlier. When I visit his home in Crossville, Tennessee, in March, House’s mother Joyce, who has cared for him since his release, points to a photo of House taken the day he was finally allowed to come home. In that photo and others from his last days in prison, House is all of 150 pounds, ashen and drawn, his fragile frame nearly consumed by his wheelchair. In most of the images he looks days away from death, although in one he wears the broad smile of a man finally escaping a long confinement. When House’s aunt called to congratulate him on his first day back, his mother handed him her cell phone so he could chat. He inspected the phone, gave her a frustrated look, and asked her to find him one that worked. That kind of Rip Van Winkle moment is common among people freed after a long stint in prison. Dennis Fritz, one of the two wrongly convicted men profiled in John Grisham’s 2006 book The Innocent Man, talks about nearly calling the police upon seeing someone use an electronic key card the first time he found himself in a hotel after his release. He thought he’d witnessed a burglar use a credit card to jimmy open a door.  “Paul’s first meal when he got home was chili verde,” Joyce House says. “It’s his favorite. And I had been waiting a long time to make it for him.” And apparently quite a few meals after that. House, now 49, has put on 75 pounds since his release. More important, he has been getting proper treatment for his advanced-stage multiple sclerosis, treatment the Tennessee prison system hadn’t given him. The years of inadequate care have taken a toll. House can’t walk, and he needs help with such basic tasks as bathing, feeding himself, and maneuvering around in his wheelchair. His once distinctively deep voice (which had allegedly been heard by a witness at the crime scene) is now wispy and high-pitched. He spends his time playing computer games and watching game shows. In the hour or so that I visit with House, his mental facilities fade in and out. Communicating with him can be like trying to listen to a baseball game broadcast by a distant radio station. He will give a slurred but lucid answer to one question, then answer the next one with silence, or with the answer to a previous question, or just with a random assortment of words. He frequently falls back on the resigned refrain, “Oh, well,” delivered with a shrug. The gesture and phrasing are identical every time he uses them. It’s what House says to kill the expectation that he will be able to deliver the words others in the room are waiting for. It’s his signal to stop waiting for him and move on. In 1986 House was convicted of murdering Carolyn Muncey in Union County, Tennessee, a rural part of the state that shoulders Appalachia. He was sentenced to death. His case is a textbook study in wrongful conviction. It includes mishandled evidence, prosecutorial misconduct, bad science, cops with tunnel vision, DNA testing, the near-execution of an innocent man, and an appellate court reluctant to reopen old cases even in the face of new evidence that strongly suggests the jury got it wrong. House also embodies the tribulations and frustrations that the wrongly convicted encounter once they get out. According to the doctors treating him, his current condition is the direct result of the inadequate care he received in prison. If he is ever granted a formal exoneration—a process that can be as much political as it is judicial—he will be eligible for compensation for his years behind bars, but even then the money comes with vexing conditions and limitations.  Since 1989, DNA testing has freed 268 people who were convicted of crimes they did not commit. There are dozens of other cases, like House’s, where DNA strongly suggests innocence but does not conclusively prove it. Convicting and imprisoning an innocent person i[...]



Fairly Legal

2011-06-01T15:30:00-04:00

(image) USA Network’s legal drama Fairly Legal stars the comely Sarah Shahi as Kate Reed, a San Francisco attorney who grows weary of the rigidity of the law and the court system. She therefore quits her legal practice to become a mediator. The plot lines jump back and forth between Reed’s cases, in which she attempts to resolve disputes in ways that leave all parties satisfied (or at least not aggrieved), and cases involving her colleagues and her husband, an assistant district attorney. Those tend to show how unwieldy, imprecise, and unjust our adversarial legal system can be. 

The show in many ways is typical USA Network fare: glossy, fun, and made for the masses. But that’s part of its charm. It’s refreshing to find a show that can demonstrate to litigation-happy America that it’s possible, even desirable, to amicably resolve disputes without going to court. —Radley Balko




Lethal and Illegal

2011-05-23T07:59:00-04:00

The European Union, the Drug Enforcement Administration, and American prison officials are locked in an unusual battle over sodium thiopental, a drug used for lethal injections in most state executions.

The dispute began in 2008, when the EU called for worldwide abolition of the death penalty. Since that declaration, the U.K., Germany, and other countries have erected regulatory barriers to prevent pharmaceutical companies from exporting sodium thiopental to the United States. Hospira, the only remaining U.S. manufacturer of the drug, announced in January that it would stop making it after Italy nixed the company’s plans to open a manufacturing plant there.

As a result, states have been running out of sodium thiopental. But since there are still executions to be carried out, many states began doing what everyone else does when government policy makes it difficult to legally obtain the drugs they want: They started buying the stuff on the black market. William Montross, an attorney with the Southern Center for Human Rights in Atlanta, told NPR in March that Georgia was illegally purchasing the drug from a company that operated out of the back of a driving school in London. According to various media reports, California, Arkansas, Tennessee, and Kentucky also have obtained the drug illegally.

Enter the Drug Enforcement Administration (DEA). In March the agency seized supplies of sodium thiopental from prison officials in Georgia. Days later, the DEA confiscated the drug from corrections officials in Kentucky and Tennessee. Ohio, Oklahoma, and Texas, meanwhile, have said they will switch to pentobarbital, a drug commonly used to euthanize pets.




Internet Sex Panic

2011-05-23T07:49:00-04:00

(image) Last September the Women’s Funding Network, a feminist philanthropic organization, issued an alarming study about the use of websites such as Backpage.com and Craigslist in the underage sex trade. Spokesperson Deborah Richardson told a House committee that in just six months the number of underage girls advertised online for sex had increased by 20 percent in New York state, 40 percent in Michigan, and 65 percent in Minnesota. Those alarming figures were repeated by media outlets all over the country.

But in March The Village Voice—whose parent company, Village Voice Media, owns Backpage.com—took a closer look at the figures and found glaring weaknesses in the methodology used to generate them. The study, conducted by a public opinion firm, asked 100 people to look at photos of young women and guess which were minors. They correctly identified underage women 38 percent of the time. The study’s authors then asked six new participants to browse sex listings and identify every photo they thought depicted a minor. The researchers then multiplied those numbers by 0.38 to arrive at an underage-advertising estimate.

Needless to say, the mere fact that a group of people had a 38 percent success rate with a controlled group of photos does not mean they or a separate group of people will also have the same success looking at photos of escorts. To make matters worse, the study’s authors told the Voice they “forget” where they obtained the pictures for the control group. When asked how they knew the ages of the women in those photos, one of the study’s authors replied, “Um…I’m afraid I do not remember.”

Despite its weaknesses, the study helped spur a new round of political pressure that led Craigslist to shut down its “adult services” section. So far Backpage.com has refused to follow suit.

Kaffie McCullough, who serves on the board of the Women’s Funding Network, told the Voice that acknowledging the study’s limitations would have made the story too complicated. “We pitch it the way we think you’re going to read it and pick up on it,” McCullough said. “If we give it to you with all the words and the stuff that is actually accurate—I mean, I’ve tried to do that with our P.R. firm, and they say, ‘They won’t read that much.’ ”




Leviathan’s Lawyers

2011-05-12T10:30:00-04:00

In February, Attorney General Eric Holder announced that the Justice Department’s Office of the Solicitor General would no longer defend the Defense of Marriage Act (DOMA) in federal court. Although the administration will continue to enforce DOMA, it won’t defend the law against constitutional challenges. House Speaker John Boehner (R-Ohio) said a few days later that the House of Representatives will have its own lawyers do so. President Barack Obama’s willingness to repudiate a law he believes is unconstitutional raises some significant questions. What about federal cases that don’t involve laws passed by Congress, such as cases where criminal defendants argue that their constitutional rights have been violated? If the president agrees with them, why not take their side, or at least not rush to defend the prosecution? In cases that have come before the Supreme Court, the Obama White House, like previous administrations, has routinely sided with police and prosecutors, except for the rare case where it takes no position at all. In March, for example, Acting Solicitor General Neal Katyal argued that the Supreme Court should dismiss a lawsuit against former Attorney General John Ashcroft by Abdullah al-Kidd, a U.S. citizen who was arrested and detained as a material witness for 16 days in 2003. It is now clear that the government was holding al-Kidd because it suspected him of involvement with terrorist groups, although al-Kidd was never charged. (Nor was he ever called as a witness.) Obama’s Justice Department is essentially arguing for an exception to the Fourth Amendment in federal terrorism investigations. In cases like this, which directly affect federal prosecutors, it is unfortunate but not surprising that Obama would defend the powers he deems necessary to fight terrorism, enforce immigration laws, or disrupt the illegal drug trade. But the Obama administration also has advocated limiting the rights of the accused in state cases, even in states that afford less protection to criminal defendants than federal courts do. In District Attorney’s Office for the Third Judicial District v. Osborne (2009), the Justice Department urged the Supreme Court not to recognize a constitutional right to post-conviction DNA testing, even though Obama supported such a right, at least as a matter of policy, as a state senator in Illinois (where post-conviction DNA testing exonerated several men who had been condemned to death). In Skinner v. Switzer (2011), a case that poses the question of whether federal civil rights laws require such testing, the Obama administration did not file a brief for either side. In Pottawattamie County v. McGhee (2010), the Justice Department urged the Court to protect prosecutors from lawsuits even in cases where they have manufactured evidence that helped to convict an innocent person. In three cases, Obama’s Justice Department has urged the Court to limit Miranda rights, which require police to advise suspects of their rights upon arrest. In Kentucky v. King (2011), Justice Department lawyers argued that exigent circumstances permit police to enter a home without a warrant even if police unknowingly created those circumstances. In Smith v. Alvarez (2009), the administration defended a provision of Illinois asset forfeiture law that allows police with little evidence to seize property they believe is connected to drug activity, then hold it for up to six months before the owner gets an opportunity to win it back in court. This position seems especially hard to defend given that federal civil asset forfeiture laws offer more protections for property owners. The Illinois law was modeled after the old federal forfeiture law, which Congress amended in 2000 to address forfeiture abuses. The Illinois law applies only to property valued at less than $20,000, meaning it also disproportionately affects the poor people of Illin[...]



The "War on Cops" That Isn't

2011-04-26T07:00:00-04:00

Between January 20 and January 25, 13 police officers were shot in the U.S., five of them fatally. Two officers in St. Petersburg, Florida, were killed while trying to arrest a suspect accused of aggravated battery. Two more were killed in Miami while trying to arrest a suspected murderer. An officer in Oregon was seriously wounded and another in Indiana was killed after they were shot during routine traffic stops. In another incident, four officers were injured in Detroit when a man about to be charged in a murder investigation walked into a police station and opened fire. Some police advocates drew unsupported conclusions from this rash of attacks, claiming they were tied to rising anti-police sentiment, anti-government protest, or a lack of adequate gun control laws. Some media outlets were also quick to draw connections between these unrelated shootings. While these incidents were tragic, the ensuing alarmism threatens to stifle some much-needed debate about police tactics, police misconduct, and police accountability. In a January interview with NPR, Jon Shane, a professor at the John Jay College of Criminal Justice, said the shootings "follow some bit of a larger trend in the United States," which he described as an "overriding sense of entitlement and ‘don't tread on me.' " Craig W. Floyd, chairman of the National Law Enforcement Officers Memorial Fund, told UPI, "It's a very troubling trend where officers are being put at greater risk than ever before." UPI reported that several police leaders thought the shootings "reflected a broader lack of respect for authority." Richard Roberts, spokesman for the International Union of Police Associations, told MSNBC, "It's not a fluke.…There's a perception among officers in the field that there's a war on cops going on." Smith County, Texas, Sheriff J.B. Smith told Tyler's KLTV-TV, "I think it's a hundred times more likely today that an officer will be assaulted compared to 20, 30 years ago. It has become one of the most hazardous jobs in the United States, undoubtedly—in the top five." During his interview with Shane, NPR host Michael Martin linked the shootings to the availability of guns. And Salon's Amy Steinberg, describing the crimes as "a disturbing trend," wrote that they demonstrated "an increasingly pressing need to revisit the conversation on gun control." Dig into these articles, and you'll find no real evidence of an increase in anti-police violence, let alone one that can be traced to anti-police rhetoric, gun sales, disrespect for authority, or "don't tread on me" sentiment. Amid all the quotes from concerned law enforcement officials in MSNBC's "War on Cops" article, for example, was a casual mention that police fatality statistics for January 2011 were about the same as they were in January 2010. Right after suggesting to NPR that the recent attacks were related to anti-government rhetoric, Shane acknowledged there has been little research into the underlying causes of police shootings. In fact, the number of on-the-job police fatalities has dropped nearly 50 percent in the last two decades, even as the total number of cops has doubled. According to the National Law Enforcement Officers Memorial Fund, 279 cops were killed on the job in 1974, the worst year on record. That number steadily decreased to just 116 in 2009. The leading cause of death for cops on duty is car accidents, not violence. For the last several years, the number of officers intentionally killed on the job each year has ranged from 45 to 60, out of about 850,000 cops on the beat. (The latter number is from the Fraternal Order of Police; other estimates put the number as low as 550,000.) Contrary to Sheriff Smith's claim, data from the Bureau of Labor Statistics indicate that policing isn't among the 10 most dangerous occupations in the country, let alone "the top five," even if you[...]



Web of Libel

2011-04-24T12:21:00-04:00

“This domain has been seized by ICE-Homeland Security Investigations,” the notice read. “Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

In February this warning was posted on some 84,000 websites seized by the Department of Homeland Security (DHS) as part of Operation Protect Our Children. But only 10 of the 84,000 sites were suspected of involvement in child pornography. Instead of asking the domain host, mooo.com, to shut down the targeted sites, DHS seized the entire domain. As a result, the other 99.9 percent of the sites, mostly associated with individuals and small businesses, were spuriously linked to child pornography for three to five days.

In a terse statement emailed to some media outlets a week later, an Immigrations and Customs Enforcement official acknowledged the mistake, explaining that innocuous sites “were inadvertently seized for a period of time” but “were restored as soon as possible to normal functionality.” The official did not mention that the government had libeled the sites’ owners as child pornographers. Nor did he discuss the due process issues raised by seizing a site and taking it offline with no prior notice.

This isn’t the first time DHS has been criticized for seizing an unnecessarily wide range of websites without advance notice as part of a criminal investigation. Past cases involved suspected copyright violations rather than child porn. 




Search Everyone

2011-04-24T12:12:00-04:00

(image) When police officers in Sarasota, Florida, were having trouble tracking down drug dealers at the Mediterranean Apartments, they came up with an idea that cops across the country are probably kicking themselves for not having thought of first: just search everyone.

The Sarasota Herald-Tribune reported in February that the Mediterranean, a private apartment complex, was known to house drug dealers, but authorities were having a difficult time proving it. When a dead body showed up in the apartments in July, police faced increasing public pressure to clean the place up. Remarkably, they were able to obtain a warrant allowing them to search anyone who set foot in the complex. Warrant in hand, a dozen cops and the city SWAT team descended on the property, stopping and searching everyone in sight.

Despite police assurances that “no innocent people” lived in or frequented the complex, of the dozen people stopped during the raid, only four were charged with a drug crime. The warrant was almost certainly a violation of the Fourth Amendment, and an attorney for one of the four who were arrested has vowed to appeal. 




Constitutional Refuseniks

2011-04-11T12:00:00-04:00

When you run down the list of issues the Oath Keepers are worried about, it reads a lot like a bill of particulars from the American Civil Liberties Union. The Oath Keepers don't like warrantless searches. They're upset that the executive branch has claimed the power to classify American citizens as enemy combatants, detain them indefinitely, and try them before military tribunals. They worry that a large-scale terrorist attack similar to 9/11 could lead to the mass detention of Arabs or Muslims, just as Japanese Americans were detained during World War II. They worry about crackdowns on political speech, protest, and freedom of assembly. They are concerned about the Army 3rd Infantry's 1st Brigade Combat Team, a military unit that is training to deploy domestically in response to terrorist attacks or other national emergencies. And yet the group is a frequent target of the left. Oath Keepers was founded in 2009 by Stewart Rhodes, a Yale Law School graduate and a former staffer for Rep. Ron Paul (R-Texas). Rhodes, 44, considers himself a constitutionalist and a libertarian. His organization's mission: to persuade America's soldiers and cops to refuse to carry out orders that violate the Constitution. On its website, Oath Keepers lists 10 orders its members will always refuse, including commands to conduct warrantless searches, to disarm the public, blockade an American city, or do anything that infringes "on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances." According to Rhodes, the group has about 30,000 dues-paying members. Unlike the ACLU, the Oath Keepers are staunch defenders of the Second Amendment. They worry about the forcible disarming of American citizens, as happened after Hurricane Katrina, and as they fear could happen again after another terrorist attack or major natural disaster. The Oath Keepers are also federalists, vowing to disobey orders that violate state sovereignty. Most of their members are conservative or libertarian. Some of them espouse conspiracy theories that doubt President Barack Obama's citizenship or blame the federal government for the September 11 attacks. These latter positions have drawn suspicion and, at times, outright contempt from liberal groups such as the Southern Poverty Law Center, which lumps Oath Keepers in with militias and hate groups. (The Oath Keepers also have been denounced by some prominent conservatives, including Bill O'Reilly and Michelle Malkin.) Last year Mother Jones accused the organization of promoting treason. Senior Editor Radley Balko spoke with Stewart Rhodes about these criticisms and more in January. reason: What is the purpose of Oath Keepers? Stewart Rhodes: The mission of Oath Keepers is to persuade the guys with the guns not to violate the Constitution. I look at it as constitutional triage. I worked for a congressman; I've worked with judges. And it seems clear to me that judges and politicians don't really care about our rights that the Constitution is supposed to protect. So I'm focusing on the guys with the guns, the ones who ultimately enforce the laws, on educating them about the Constitution. I think most of them are honorable people, but there's an ethos, especially in the officer corps in the military, that focuses on following orders. It's almost as if they're taking the oath to uphold the Constitution to mean that you should categorically defer to the president. Now I think civilian authority is important, but if the president asks the military to do something that isn't constitutional, their loyalty is to the Constitution, not the president.  In the police context, some have the mistaken idea that you're always to enforce the law—leave it up to the politicians, lawyers, and judges [...]



Briefly Noted: A History of Paternalism

2011-04-04T16:20:00-04:00

Government-sponsored public health campaigns have given us many memorably mockable moments, from talking crash-test dummies to “I learned it by watching you!” Now, courtesy of the federal government’s National Institutes of Health, you can relive those campaigns (or at least the print versions of them) via a searchable, browsable online archive at ihm.nlm.nih.gov/luna/servlet/view/all/what/Posters.

(image) Gawk at racy pro-condom campaigns from the 1980s, snicker at the politically incorrect anti-V.D. and anti-prostitution posters directed at World War I and World War II troops, marvel at temperance campaigns from the 19th and early 20th centuries.

The archive includes similar propaganda—er, important public service announcements —from all over the world. If there’s one point on which the United States, apartheid-era South Africa, and the former Soviet Union all agree, it’s that citizens aren’t capable of making good decisions about food, drink, sex, and risk without government prodding. 




Failing Upward in Criminal Justice

2011-03-22T07:00:00-04:00

When the SWAT team came for Richard Paey in 1997, officers battered down the front door of the Florida home he shared with his wife and their two children. Paey is a paraplegic who uses a wheelchair after a car accident and a botched back surgery. He also suffers from multiple sclerosis. Paey was accused of distributing the medication he used to treat his chronic pain, even though there was no evidence he had sold or given away a single pill. Thanks to Florida’s draconian drug laws, he was eventually convicted and sentenced to 25 years in prison. Paey’s prosecution was an outrage, and it generated significant media attention. In 2007, after Paey had served nearly four years of his sentence, Florida Gov. Charlie Crist gave him a full pardon. Yet Scott Andringa, who prosecuted the case as an assistant state attorney in New Port Richey, has never expressed a hint of remorse. In fact, Andringa, now a defense attorney in private practice, brags about his efforts to imprison Paey on his professional website, noting that he “was the prosecutor assigned to a controversial drug trafficking case that was later profiled on 60 Minutes, Nightline, and in the New York Times.” And now Andringa wants to be a judge. In December he announced his candidacy in Pinellas County’s 2012 elections. The position currently is held by Andringa’s father, who is retiring. As of this writing, no one has filed to oppose him. At the time of his arrest, Paey was undergoing high-dose opioid therapy, a relatively new form of treatment for chronic pain that titrates doses upward as a patient develops tolerance. The tolerance eventually plateaus, but at that point the patient is taking large doses of narcotics every day, enough to kill someone who has not built up the same tolerance. Paey was initially under the care of a New Jersey physician, but he found it difficult to find treatment when his family moved to Florida, a state overcome by anti-opioid hysteria. Depending on whom you believe, either Paey’s New Jersey doctor illegally sent him several prescriptions to continue his treatment or Paey forged those prescriptions. In any case, a local pharmacist, alarmed at the volume of medication Paey was taking, tipped off the Pasco County Sheriff’s Office. Although Andringa has conceded he had no evidence Paey was selling or giving away medication, Florida law allowed him to charge Paey with distribution because of the alleged forgeries and the volume of medication he possessed.  But simply because the law allows a charge does not mean it is merited or in the interest of justice. And here’s where Andringa’s discretion comes into question. Over the years, Andringa has said he is “proud” of putting Richard Paey in prison, that he has “no personal or professional” regret about the case, and that he’s certain his office “did the right thing.” Paey’s time in prison was rough. He spent more than 30 days in solitary confinement—retaliation, he believes, for telling his story to New York Times columnist John Tierney. When I interviewed him in 2007, he described systematic sleep deprivation, psychological abuse, and jail cells with little air circulation where the heat index could top 100 degrees. Andringa did not have to file distribution charges, and he could have asked the judge to waive the mandatory minimum 25-year sentence in Paey’s case. He didn’t. He would later tell Tampa’s Weekly Planet, “As a [prosecutor], you normally charge the highest crime that you can prove.” That’s one way of approaching the job. Another would be to charge someone with a crime only when doing so serves justice. (Andringa did not respond to my request for comment.) The injustice of treating Paey as a dru[...]



How Drug Cops Go Bad

2011-03-21T17:30:00-04:00

If you browse the website of Law Enforcement Against Prohibition (LEAP), you will notice a conspicuous theme: The war on drugs is corrupting America's cops. LEAP, a group of current and former cops, prosecutors, and judges who oppose the drug war, lists "police corruption and misconduct" as one of the four main topics covered by its speakers. The profile of former Portland, Oregon, Det. Donald Dupay, for example, says he "witnessed the unintended consequences of the war on drugs that caused some of the officers in his department to become corrupt." The profile of former Oakland, California, prosecutor James Anthony says his opposition to drug prohibition stems in part from observing "the negative impact of the 'War on Drugs' on the integrity of the police force." The profile of Fred Martens, a former undercover narcotics cop with the New Jersey State Police, says he saw the drug war "corrupt innumerable law enforcement officials." The list of law enforcement officials corrupted by the drug war is a long one. Here are some stories from just the last few weeks: • Two Philadelphia cops pleaded guilty to federal charges stemming from their plan to steal heroin from a suspected drug dealer. • A former deputy with the Harris County, Texas, Sheriff's Department pleaded guilty to extortion charges after stealing two kilograms of fake cocaine during a federal sting operation. • A New York City detective was convicted in state court of conspiring to pay off police informants with illegal drugs. • Six San Francisco narcotics cops were accused of performing illegal searches, then covering them up with perjured testimony. • The head of the Mesquite, Texas, anti-narcotics unit was arrested and charged with theft of government money after reports that he was stealing cash seized during drug raids. • The head of the Contra Costa County, California, Narcotics Enforcement Team was charged with leading a conspiracy in which he and other law enforcement officials stole illicit drugs from evidence lockers and sold them on the street. • A second police officer agreed to testify for the prosecution in the state trial of a retired judge and former prosecutor in Wayne County, Michigan, who is charged with suborning and knowingly allowing perjury by cops in drug cases. • A former Texas district attorney, Joe Frank Garza, pleaded guilty in state court to misappropriating $200,000 in drug forfeiture funds. Some of these stories involve public officials on the take; others are stories of cops, prosecutors, and judges who crossed a line in their zeal to fight the drug war. But I'm not sure there's much difference. In fact, one reason drug cops may be so susceptible to corruption is that the legal tactics they use to enforce the drug laws are so ethically dubious. Morally, it is not much of a leap from legal asset forfeiture—in which cops take property from people who have never been charged with a crime, sell it, and use the proceeds for their department's budget—to simply pocketing money from suspected drug dealers. Consider what was happening in Tenaha, Texas, until recently. Cops would pull over motorists, accuse them of drug activity with little or no evidence, and give them a choice: They could sign the cash, jewelry, and other property in their possession over to the police department and be on their way. Or they could fight the charges, risk a felony conviction, spend one or more nights in a jail cell, and possibly pay more in legal fees than their property was worth. Legal niceties are often the only distinction between civil asset forfeiture and a shakedown. It is not hard to see how cops who routinely engage in the former might grow morally complacent e[...]



Distracted Moving

2011-03-20T10:13:00-04:00

After a 30-year decline in pedestrian deaths on America's roadways, there was a tiny increase of 0.4 percent in the first half of 2010. Deciding that cell phones and iPods are to blame, New York state Sen. Carl Kruger (D-Brooklyn) has introduced a bill making it a crime to use them or other electronic devices while crossing the street.

"When people are doing things that are detrimental to their own well-being," Kruger told The New York Times in January, "then government should step in." Other legislators agree. Arkansas state Sen. Jimmy Jeffress (D-Crossett) has proposed a law that would prohibit pedestrians and joggers from using headphones. Lawmakers in Oregon, Virginia, and California have introduced laws banning "distracted bicycling."

Meanwhile, a 2010 study by the Insurance Institute for Highway Safety suggests that laws banning text messaging while driving have made roads more dangerous. The institute surmises that drivers don't stop texting because of the laws, but they do move their cell phones away from the windows, which takes their eyes further from the road.