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Civil Rights and the White Manel

Civil Rights and the White Manel

Memo to those who organize conferences, especially conferences on civil rights: your panels should include women and people of color. Bonus tip: when an invited panelist says that she can only participate in good conscience if the demography of the panel is adjusted, don’t disinvite herWe’re ready to flip the calendar to 2018; why are we still having this conversation? Diversity is too often invoked as an interest disembodied from policy, but there is a direct line between the diversity of legal discourse and the legal rules that such discourse produces. Yes, diversity is desirable for lots of moral reasons — diversity at the upper echelons of the legal profession remains a national embarrassment and, good god, the way academic panels get populated is straight out of the 1950s — but what gets lost is that diversity is also desirable because it produces good law.

It’s difficult to think of a better example of the relationship between diverse discourse and good policy than when talking about overzealous policing. Obviously — obviously — having a bunch of older white dudes monopolize the conversation suppresses the institutional response to the very outgroups whose communities experience the worst elements of modern policing. So, in 2017, after spending the last several years staring at an endless loop of footage documenting over-escalated police encounters involving people of color, those interested in “serious” policing discourse are attentive to diversity, right?

Apparently not. The Tenth Circuit just announced its annual Bench and Bar Conference, and the attendees include Justices Sotomayor and Gorsuch. The Conference will include a panel on qualified immunity. For those who are unfamiliar with the significance of qualified immunity, it’s the asteroid that destroys police accountability. Some high profile exceptions over the past few years notwithstanding, force escalation is rarely prosecuted as a crime, and it almost never produces a criminal conviction. Ordinarily, rules of civil liability work in tandem with criminal punishment to produce behavioral incentives, but qualified immunity means that police officers do not have to pay damages for force escalation (including killings) unless they acted “unreasonably” in light of “clearly established law.” And whereas those constructs could theoretically preserve space for damages-based incentives to do some work, the Rehnquist and Roberts Courts have defined those terms in ways that make it really hard for claimants to win. Qualified immunity, then, is really at the center of how law mediates relationships between law enforcement and the outgroup communities — particularly communities of color — that they police.

University of Denver law professor Nancy Leong (who is nonwhite) is one of the country’s leading experts in qualified immunity, and happens to live and work around the proverbial corner from the Conference. (The Conference is in Colorado Springs.) The Tenth Circuit Conference organizers invited Professor Leong, who noticed that she was the only panelist who wasn’t a white man. She responded: “Perhaps I am mistaken, and I am glad to be corrected, but I appear to be both the only woman and the only person of color on this panel. I’m not willing to appear on a panel so lacking in demographic diversity, given that it’s 2018. Particularly not on a topic related to civil rights. I hope those in charge will add some diversity to this panel. Otherwise, I respectfully ask to be replaced.” Firm, polite, and spot on. (Professor Leong’s response is part of a growing trend in which invited participants refuse to participate in nondiverse panels.) Much to her credit, Magistrate Judge Suzanne Mitchell seemed to recognize the urgent importance of panel diversity, particularly on this subject: “I very much understand your position. I will try to contact you next week. We would very much like to have you participate.” Several days later, however, Judge Mitchell, having consulted with the Conference organizers, conveyed to Professor Leong that the “best route is to find another speaker to replace you.” Even if Professor Leong were eventually to be replaced by a woman or a person of color — an outcome that is completely speculative at this point — seventy-five percent of a civil rights panel will still be white men.

People should not be concerned about Professor Leong, who does not need to be featured on this panel to cement her status in the field. It’s something else that everyone should find deeply troubling. (Well, several things, but I’m going to set aside what white “manels” say about how uncritically the keepers of professional privilege reproduce it.) Whether Judge Mitchell is expressing her own views — which I doubt in light of her first email — or whether she is expressing the preferences of other Conference members, the message is clear enough: having a panel with a suitable demographic makeup was just too inconvenient. But diversity is not some accommodation for women, people of color, and other outgroups; it’s necessary for the Conference to do its job. If it wants inform its audience about qualified immunity — to have an informed discussion about the use of force in policing — then don’t have a panel that consists entirely of people who can’t identify with over-policed communities. Its decision is like convening an all-white-man panel on the effects of affirmative action in higher education, or on sexual harassment in the workplace. It’s a #metoo conference in a men’s locker room.

This is how institutional discrimination happens. There is no reason to think that any individual decision-maker harbors any discriminatory animus towards the excluded groups. The Tenth Circuit, however, is staging an event to educate its bar membership about the use of force by police and appears not to be including a single black person; and when fielding a reasonable request for more diversity, it could not be bothered. At least as of now, conference attendees will be treated to a panel that is bleached of outgroup perspectives. Those perspectives, in turn, are necessary to critically evaluate incumbent assumptions about what sorts of police responses are “reasonable,” and the way accepted policing models are actually experienced in communities whose input has been historically marginalized. There is a direct line between decisions like that made by the Tenth Circuit Conference organizers and the practices of modern law enforcement institutions. In Denver, where the Tenth Circuit is headquartered, the city has paid out $14.5 million in the last three years just to settle lawsuits against the police — many of which involve people of color.

Amid Opioid Crisis, Pennsylvania District Attorneys Advocate for War on Drugs

Pennsylvania Attorney General Josh Shapiro
Jessica Kourkounis / Getty

Amid Opioid Crisis, Pennsylvania District Attorneys Advocate for War on Drugs

Overdoses on fentanyl, an uber-potent synthetic opioid, are the main driver of the opioid crisis: deaths related to the drug more than doubled from 2015 to 2016, killing nearly 20,000 people, according to the Centers for Disease Control and Prevention.

Pennsylvania is a locus of the crisis. In 2016, fentanyl was present in over half of the overdoses in the state. And yet despite PR-savvy law enforcement messaging about a “public health response” to mitigate the toll, district attorneys there are doubling down on harsh, punitive drug laws. “The stronger we can be in our state sentencing, the better,” Pennsylvania’s Attorney General Josh Shapiro, a Democrat, recently said during a roundtable discussion on opioids. “Stiffer penalties for fentanyl would go a long way in helping us.”

The Pennsylvania District Attorneys Association supports Shapiro’s push for increasing sentences for fentanyl-related crimes. “An increase in the sentencing guidelines for #fentanyl will help prevent deaths,” the Pennsylvania DAs Association tweeted on December 11. “PA Sentencing Commission is considering changes.”

Many advocates, however, believe that increasing sentences for drug crimes will do little to reduce overdose deaths and prevent people struggling with addiction from seeking help in the first place. Addiction is a chronic medical condition, yet it is still being treated as a sin or a crime, say advocates who specialize in public health, criminal justice and addiction recovery.

“The [public health] rhetoric doesn’t match with the prosecutory practice,” Devin Reaves, a recovery advocate who studied social work at the University of Pennsylvania, told In Justice Today about the recent push for stiffer drug penalties. “In Pennsylvania, we need to embrace the ideals of harm reduction: How do we lessen the harm of an inherently racist War on Drugs?”

“Those are the questions prosecutors should be asking,” adds Reaves, “I am a huge of fan of Josh Shapiro, I just think he’s off on this one issue.”

Bill Stauffer, co-chair of the public policy committee at Faces & Voices of Recovery, who has been sober for 31 years, told In Justice Today that he’s worried about mandatory minimums being applied to people with addiction. “The legislation I’ve looked at emphasizes going after high level distributors,” he said. “But that’s generally not what happens. We’re quite concerned about going down this road again — we don’t want to reinvigorate the prison system.” Stauffer, who lives in Allentown, Pennsylvania, hopes to see his state expand access to treatment, not punishment.

new report by the Vera Institute of Justice, an independent nonprofit research and policy organization, shares Reaves’ and Stauffer’s concerns. “Increased enforcement and severity of punishment has not reduced illicit drug use or associated crime,” the report concludes. “It has, however, led to more incarceration and exacerbated racial disparities in the criminal justice system, with particularly devastating impacts on black communities.”

“Fentanyl is clearly a huge problem, so we need to focus on the extent to which its driving overdoses,” Jim Parsons, research director at Vera and an author on the new report, told In Justice Today. “All the evidence shows that a harm reduction approach is the most effective way to respond to health consequences. The problem with a punitive response is it means people are less likely to contact authorities when someone is experiencing an overdose or other health crisis.”

Law enforcement officials are often quoted in news media saying, “We cannot arrest our way out of addiction” and that they don’t write the laws, but merely enforce them. Prosecutors in Pennsylvania, however, are choosing to prosecute overdoses as homicides and are advocating, without evidence, that stiffer drug penalties will help save lives and help their state ravaged by overdoses. Since 2013, nearly half of all homicide cases in Cumberland County have been for “drug delivery resulting in death.” Yet the overdose death rate continues its steep rise.

“For the past 30 years we’ve had this tough on crime approach,” says Reaves. “And it has not only not worked, but has made things worse.”

Thanks to Burke Butler.

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New Ruling May Force Louisiana To Stop Using Poor People To Bankroll Its Courts

New Orleans. Criminal Courts Building at Tulane & Broad
Infrogmation of New Orleans [CC BY-SA 3.0]

New Ruling May Force Louisiana To Stop Using Poor People To Bankroll Its Courts

A groundbreaking new ruling may force a reckoning over the way the most incarcerated state in the world pays for its criminal justice system.

On Thursday, Judge Sarah Vance of the Eastern District of Louisiana found that New Orleans’ criminal district judges are operating their courts with a clear conflict of interest: The judges control the revenue from the fines and fees they levy on poor defendants. The unsurprising consequence of this arrangement is that judges often jail people who can’t afford the fines without considering their ability to pay, creating a de facto debtors prison.

Vance found that this conflict of interest violated defendants’ right to due process. This unconstitutional practice isn’t limited to New Orleans. In fact, it’s dictated by state law.

“This conflict of interest exists by no fault of the Judges themselves,” she wrote. “It is the unfortunate result of the financing structure, established by governing law, that forces the Judges to generate revenue from the criminal defendants they sentence. Of course, the Judges would not be in this predicament if the state and city adequately funded [the criminal court].”

Vance’s ruling was limited to New Orleans. But it poses a clear shot across the bow to the state legislature.

Louisiana has long funded its courts on the backs of its predominantly impoverished, African American defendants. Judges rely on fines and fees to boost their budgets and pay for basic court functions. This is known as a “user pay” system— where the “users” are the people being funneled through the criminal justice system.

New Orleans’ judges were caught spending this user-generated revenue on luxury health insurance plans and other perks for themselves in 2010. After that scandal was exposed, the fund has mainly paid for staff salaries.

The statute explicitly encourages other Louisiana courts to use these funds to pay for court reporters, clerical or maintenance staff, a law library, and any equipment the judges deem “germane” to court operations.

No matter how they choose to spend the money, the judges’ power over fines and fees revenue creates a conflict of interest.

“This funding structure puts the Judges in the difficult position of not having sufficient funds to staff their offices unless they impose and collect sufficient fines and fees from a largely indigent population of criminal defendants,” Vance wrote.

Another lawsuit targeted Ascension Parish’s funding scheme in 2016, pointing out that fines and fees fed directly into the salary of the judge who set them. The state legislature quickly passed a law that transferred control of the fund to the parish government’s financial officer — and required Ascension Parish to allocate enough money to fully fund the court. But they left the state’s overall financing structure intact.

Meanwhile, these fines and fees constitute a massive transfer of wealth from working-class African American communities to the system that arrests and incarcerates them at disproportionate rates. A recent report by the Vera Institute of Justice detailed how court costs target and destabilize defendants and their families. Altogether, poor New Orleanians pay more to government agencies than they receive. New Orleans defendants paid $4.5 million in fines and fees in 2015, a sum that surpasses the total amount of Temporary Assistance for Needy Families (TANF) cash welfare New Orleans residents received in the same time period by a million dollars.

This system is not only unconstitutional; it’s financially unsound. Vera’s reportfound that the revenue generated from fines and fees was dwarfed by the amount the city spent jailing people who couldn’t pay. By transferring the financial burden to those who can least afford it, “the state has one hand in the pockets of poor communities, and with the other hand it’s picking the pocket of city government,” Vera executive director Jon Wool wrote.

The state’s infamous indigent defense crisis also stems from the user pay scheme. Two-thirds of the public defense budget relies on traffic tickets and court costs. Dwindling traffic fines have thrown the system into crisis and triggered lawsuits attempting to force the state to adequately fund public defenders’ offices.

If Vance’s ruling is upheld, it will leave other courts in the state vulnerable to similar challenges until the state changes the law.

The user pay system has allowed Louisiana to hide the full cost of its exceptionally high incarceration rates. Finding the money to fully fund the state’s hyperactive criminal system will be no small task for the state legislature. Louisiana has been slowly clawing its way out of a “historic fiscal crisis” manufactured by years of steep tax cuts and corporate subsidies under former Governor Bobby Jindal.

However, in recent years, the massive budget pressure inspired lawmakers to examine exactly how much the state is spending to arrest and imprison its citizens. Republican legislators repeatedly cited costs to push sentencing reform and release nearly 2,000 people from prison. The final criminal justice reform package passed in June is expected to save the state $262 million.

Once the state government is forced to shoulder the true cost of its courts, it could accelerate the sudden momentum for criminal justice reform. Or it may simply find a new way to sidestep the price of mass incarceration.

Thanks to Burke Butler.

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