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Conservatives Are Obsessed With Prosecutorial Overreach

Unfortunately for millions of Americans, only one case matters: Trump's.

Theo Wargo / Getty Images

Conservatives Are Obsessed With Prosecutorial Overreach

Unfortunately for millions of Americans, only one case matters: Trump's.

One evening in June, Sean Hannity began his nightly Fox News show indignant about the “Mueller witch hunt.” It is a favorite topic of Hannity’s: A recent study found that, between May 2017 and May of this year, almost 60 percent of his opening segments focused on the special counsel Robert Mueller’s investigation of President Trump and his associates. This particular evening, he was irked by Mueller’s reported request for electronic information from certain witnesses. “[Prosecutors] are demanding that witnesses turn in their phones so that team Mueller gets to review all of their electronic communications.” Hannity said, his graying hair perfectly coiffed and his voice thick with outrage. “Even texts that are on encrypted apps.” He riffed some advice to the witnesses. “Delete all your emails and then acid-wash your emails and hard drives on the phones, then take your phones and bash them with a hammer to little itsy bitsy pieces,” he said. (Later, perhaps realizing that asking people to obstruct justice on national television is not a great idea, Hannity clarified that he was joking.)

Hannity isn’t alone. A May survey found that 76 percent of Republicans think the investigation is a “witch hunt,”while about 75 percent of Democrats consider it legitimate. Conservative personalities and politicians have been publicly wringing their hands, convinced that Mueller is guilty of exceeding the boundaries of appropriate prosecutorial power. The Federalist notes “a pattern of abuse of prosecutorial discretion,” citing Mueller’s decisions during his 12-year tenure as FBI director. The right-wing organization Freedom Watch has filed a federal suit against Department of Justice officials demanding Mueller be removed on account of his “gross prosecutorial misconduct.” And conservative site RealClearPolitics, in a commentary called “Special Prosecutorial Abuse,” characterizes Mueller’s investigation as a “crusade”: “The liberals worried about a police state? In some respects, it feels as though it’s already here.”

Whether Mueller is overstepping his authority is a matter of opinion. But this conservative indignance rings hollow. For over three decades, conservatives—and many liberals—have encouraged the expansion of prosecutorial power. They’ve sat idly by as the prison population exploded. They watched our criminal justice budget skyrocket. They’ve heard stories of primarily Black, brown, and poor people facing draconian punishments that far exceeded the alleged crime. And yet, many of them have looked the other way as prosecutorial discretion grew unchecked.

Tom Fitton, the president of conservative think tank Judicial Watch, claimed on “Fox and Friends” that “[Mueller’s] operation is the most secretive I can remember,” and that “it’s difficult to get basic information about what he’s been up to.” He failed to mention that opaque investigations are the norm. Prosecutors rarely provide information to defendants unless they absolutely have to. In fact, in 10 states, prosecutors can wait until right before trial to give evidence to the defense, including witness names and statements. Often, defendants have to negotiate a plea deal without even knowing if the state has any evidence against them.

Many Republican congressional candidates have claimed that Mueller’s investigation, which started last May, has lasted too long. Yet those same candidates say nothing about the epidemic of excessive pretrial delays in America, even in relatively minor cases. Waiting two or three years for a case to go to trial is not uncommon. And defendants who aren’t rich and connected often spend that time in custody simply because they can’t afford bail. In New Orleans, a man was found to have spent eight years in jail awaiting trial on a drug charge.

Some of Trump’s confidantes are especially hypocritical. Rudy Giuliani, Trump’s lawyer, also complained about the length of the Mueller probe, stating, “It’s about time to say, ‘Enough. We’ve tortured this president enough.” And after rumors circulated that Mueller had wiretapped Michael Cohen, Trump’s former personal lawyer, Giuliani said, “It’s not appropriate. I mean, he’s a lawyer. … [T]hey’ve already eviscerated the attorney-client privilege. This would make a mockery of it.”

In fact, as a former prosecutor, Giuliani often flouted the law, not only infringing on the rights of defendants but boasting about it. One of those rights was, of course, attorney-client privilege. Giuliani was infamous for “extensive wiretaps and the subpoenaing of defense attorneys,” the New York Times Magazine  wrote in 1985. He was also unapologetic. ”If I don’t tip in favor of law enforcement, who will?” he asked, according to the Times. ”The civil libertarians won’t.”

Lest we believe this is just one party’s problem, Democrats have been so blinded by  the Mueller investigation that some are pursuing punitive new laws in the hopes they might be used against Trump and administration officials. One of our most critical constitutional protections is the prohibition of double jeopardy, meaning the right to not be prosecuted twice for the same crime. There are exceptions to this rule: Depending on the state, prosecutors in state court and federal court may be able to both charge a person for the same action. But, generally, this ban on double jeopardy is an important shield against state power for defendants. Yet in New York, a bill that would make it easier to prosecute people twice for the same crime is garnering support because it could be used to prosecute defendants who have received pardons from the president.

As prosecutorial power has increased, so has the prison population, creating a mass incarceration crisis that has seen millions of people spend months, years, even decades of their lives languishing in jails or prisons. But prosecutorial overreach is usually unacknowledged by those decrying it today. Hannity has called the Mueller investigation a “monumental abuse of power” and has claimed that “Mueller is causing irreparable damage to the rule of law in this country.” But prosecutors have been causing irreparable damage for decades, with little attention from Hannity and his fellow conservatives. That damage is only compounded by the countless people in the Republican Party who seem to think that only Donald Trump deserves a more restrained justice system. 

California County Law Enforcement Puts Kids On Probation for Bad Grades

A new lawsuit says Riverside County’s probation officers threaten to prosecute kids for ‘pre-delinquent’ behavior.

Steven Depolo/Flickr Creative Commons

California County Law Enforcement Puts Kids On Probation for Bad Grades

A new lawsuit says Riverside County’s probation officers threaten to prosecute kids for ‘pre-delinquent’ behavior.

Andrew M.’s first interaction with the criminal justice system began with an orange.

On Feb. 9, 2017, when he was 13, Andrew was playfully kicking the fruit around with some friends on school grounds during lunch, when he accidentally sent the orange in the direction of a Moreno Valley officer standing nearby. The orange went through the officer’s legs, and Andrew was handcuffed and shepherded into the principal’s office, where the assistant principal searched his backpack and found marijuana. Andrew received a civil infraction for possession that day. A month later, he was instructed to show up at the police station to discuss probation. Sitting in a windowless room with his father, grandmother, uncle, and two officers, including one who was armed, Andrew was handed a contract and told that he could participate in the Youth Accountability Team (YAT) probation program for six months instead of going to juvenile court.

Andrew, now 15, is one of four named plaintiffs in a federal lawsuit filed in the Central District of California on July 1 against Riverside County, as well as the chief and deputy chief of the county’s probation department, over the Youth Accountability Team. According to the lawsuit, approximately 400 kids and teenagers in 17 school districts in Riverside County are funneled into the program for “pre-delinquent” or “delinquent” conduct each year—labels assigned by school administrators law enforcement officials, community members, and some parents for school discipline problems, mental health issues, poor academics, and family conflicts. One sixth grader was allegedly referred in part because school staff complained that he had used the “race card” against them.

According to the lawsuit, YAT probation skirts due process, leads to unreasonable searches and seizures under California law, violates the right to freedom of expressive association, and adversely impacts Black and Latinx students like Andrew.

Scared, confused, and without a lawyer to consult, Andrew signed the contract. He had to attend school, earn good grades, abide by an 8 p.m. curfew, participate in 25 hours of community service, meet with a probation officer regularly, follow all YAT instructions, go to counseling, go to weekly programs facilitated by the Moreno Valley Police Department, and visit a correctional facility. Any violation could result in a referral to the Riverside County district attorney’s office for possible prosecution. Upon signing, Andrew was repeatedly forced to leave class to talk to YAT officers, who also conducted house visits. On one occasion, he was pulled out of class to fill out a YAT survey, even though it meant he would miss a Spanish quiz. Even after sticking to these strict conditions, Andrew was still summoned to Superior Court less than two weeks after signing. He ultimately pleaded guilty to the marijuana possession charge and received a sentence of 10 community service hours, an agreement to complete a drug test, and a fine.  

The YAT program was created in 2001 to identify “at-risk” youth and intervene before they got into more serious trouble. But teachers, school administrators, and law enforcement officials use the program as a form of school discipline, the lawsuit asserts. Students are often charged with violating Section 601(b) of the California Wellness and Institutions Code, a vague statute that penalizes minors who “persistent[ly] or habitual[ly] refuse to obey the reasonable and proper orders or directions of school authorities” by allowing local officials to place them on probation. Like Andrew, many students say they were told that if they violated these “informal” conditions of probation, they would be referred to the DA. They subsequently have to jump through hoops—like submitting to home searches and drug tests—to avoid violating their contracts.

From 2005 to 2016, 12,971 youths were under a YAT contract, 25 percent of whom were accused of a noncriminal offense, according to the complaint. Black students were 2.5 times and Latinx students were 1.5 times more likely than white students to be accused of a Section 601(b) violation from 2003 to 2016. 

A PowerPoint slide from a Riverside County Probation Department presentation on the Youth Accountability Team at the 2012 Juvenile Delinquency Symposium.
Riverside County Probation Department

“It’s kind of like this expedited version of the school-to-prison pipeline by having this extrajudicial system operating exclusively through the school,” said Hannah Comstock of the ACLU, which was among the plaintiff’s counsel. But, the lawsuit states, young people generally opt into the program without legal counsel present and without a full grasp of their rights—information they would learn if these contracts were established through the courts. 

When reached for comment by The Appeal, the Riverside County Probation Department said they could not discuss the allegations until they had been served with the lawsuit.

YAT can have disastrous consequences by setting youth up for future involvement with the criminal justice system, the complaint argues. Probation officers allegedly use the program to create profiles of participants by accessing school records, reading counseling reports, and compiling extensive family histories—information they can use against participants who encounter the juvenile justice system in the future.

In a YAT presentation recounted in the book Psyche-Soul-ology: An Inspirational Approach to Appreciating and Understanding Troubled Kids, Debbie Waddell, a former senior probation officer, was quoted as saying that YAT is used to “get them into the system by fingerprinting and photographing them. We can search their homes any time we want and work to obtain evidence against them so that when we can get ’em, we can really get ’em!” Former Deputy District Attorney Anthony Villalobos, who participated in the same presentation, also explained, “We can do all kinds of surveillance, including wire taps on phones, without having to get permission from a judge.”

If people end up in court for a first time, low-level criminal offense down the line and they have already completed YAT, they are no longer eligible for diversion. If they started but did not complete YAT, the failure can be considered during the criminal sentencing process.   

The YAT kids “feel like they have broken a law and that this is a punishment,” said Corey Jackson, the CEO of Sigma Beta Xi, a mentorship organization and plaintiff in the lawsuit. The organization works with many of the youth who encounter the probation program, so Jackson has seen its impact firsthand. One mentee under a YAT contract attended a young man’s leadership conference in nearby Los Angeles and received a penalty because the outing wasn’t pre-approved by a probation officer, Jackson recounted. “It’s being sold to these school districts as a mentoring program. There is nothing in the program that has anything to do with mentoring, based upon best practices and national standards,” he said.  

In addition to reading contracts from years past, the ACLU attorneys have met with parents picking up their children from probation meetings and consistently heard that impacted families feel voiceless. But it is hard to fight a system when the charges aren’t clear and there isn’t a lawyer to assist them. “If you don’t know how you’ve been wronged, how can you raise that issue?” Comstock said.

The plaintiffs are asking for the court to prohibit the enforcement of Section 601(b), the signing of  contracts through coercion and without explaining charges against the children or their legal rights, searches of students’ homes and personal property, use of records compiled against a student under probation in the future, and operating in a way that specifically targets Black and Latinx youth.   

“Kicking an orange doesn’t mean you’re going to jail or going to rob somebody. Playing ‘the race card’ doesn’t mean you’re going to break some type of laws,” Jackson said. “We can no longer accept that in Riverside County.”

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Trump’s ‘Zero Tolerance’ Immigration Policy Has an Antidote

New bail funds aren’t just getting immigrants out of detention—they’re helping them stay in the country permanently.

U.S. Border Patrol agents take a group of Central American asylum seekers into custody on June 12, 2018 near McAllen, Texas.
(Photo by John Moore/Getty Images)

Trump’s ‘Zero Tolerance’ Immigration Policy Has an Antidote

New bail funds aren’t just getting immigrants out of detention—they’re helping them stay in the country permanently.

Under the Trump administration, the number of people being held in ICE custody has reached record highs, with over 40,000 people now in detention centers across the country. With no end in sight for the Department of Justice’s “zero tolerance” immigration policy, under which even first-time border crossers are charged with federal misdemeanors, activists and immigrant advocates have been looking for ways to stem this rising tide and get people out of detention as quickly as possible.

“There’s been this push among community groups, lawyers, organizations and also just random groups of people who have been thinking about what they can do that’s practical to actually get people out, and then, to be able to amplify the effect of legal services,” said Benita Jain, an Oakland, California-based supervising attorney at the Immigrant Defense Project. In the days following President Trump’s election, Jain began working with other parents in California public schools to create the Immigrant Family Defense Fund, a bond fund for parents facing deportation.

Since Trump’s election, more than a dozen new bond funds that focus on people in immigration detention have emerged—with most of those already bailing people out of detention, and others still in the process of forming.

These bond funds not only free people currently detained by ICE, Jain explains, but give them a much better chance at eventually winning their immigration cases and being allowed to stay in the country permanently. Once out of detention, immigrants can situate themselves closer to legal assistance and social supports.

Immigrant bond funds have never been more needed: Arrests by ICE are up sharply in the past 18 months, and the backlog of cases in immigration courts has increased by almost a third under Trump. That means if immigrants want to fight their cases and try to stay in the country legally, they will typically wait months and possibly years for their days in court. Many are held in crowded private detention facilities that often lack substantive oversight, are home to incidents of sexual abuse, are devoid of quality healthcare, and, for the most part, are many miles from any legal assistance. Getting stuck in detention puts pressure on immigrants to give up their cases and agree to removal—unless, of course, they get bailed out.

But only 14 percent of immigrants in detention have legal representation, which is not guaranteed to them under the Constitution. “Having legal representation is associated with significantly higher odds of being granted bond,” said Emily Ryo, an associate professor of law and sociology at the University of Southern California Gould School of Law, who has extensively studied the impacts of bail in immigration proceedings. Yet those who are in detention facilities far from big cities often don’t have ready access to the lawyers they need. Ryo notes that there’s “a significant and robust association between being confined in a facility that is close to a dense population of immigration lawyers and shorter detention length.”

Prolonged detention can make it hard to build a case, Jain explained, another reason bail is so important. “If you’re detained, it’s much harder to get an attorney in many parts of the country, and even if you do have an attorney once you’re out, there’s so many things that make it easier for you to fight your case: You can collect documentation and evidence, a pay stub, get letters from families, friends, and community members,” Jain said, adding that each opportunity an immigrant has to prove the need for asylum or ties to a community makes a removal case that much more winnable.

Getting out on bail also allows immigrants to move to parts of the country where courts are less likely to deport them. For instance, over the past 18 years in Queens County, New York, almost half of immigrants facing removal have been granted some form of relief, such as asylum or cancellation of their removal proceedings. That’s in stark contrast to Cameron County, Texas, which had almost an identical amount of cases to Queens during that time, but where less than 5 percent of immigrants facing removal were granted relief.

Immigrant communities in the United States are often situated in cities with robust legal defense organizations, as well as protections for immigrants from targeting by law enforcement. Immigrants who are bonded out are able to search out these cities, and they stand a better chance at a favorable outcome. (It’s no coincidence that Queens has a foreign-born population of just under 50 percent.)

While lawyers greatly increase the chances of an immigrant being offered bond, actually paying that bond is a significant hurdle for immigrants. It is often set far above the reach of many immigrant families and can be as high as $20,000. Unlike other arrestees who can borrow a percentage of their bond from the corporate bail bond industry, immigrants often can’t because their bonds must be paid in full to secure release. (They get the money back only at the resolution of their cases, which can often take years.)

Unlike bond funds in the criminal justice system, which can refill their coffers after a client returns to court and bond is returned, immigrant bond funds often wait years until a case is resolved for that loan to be repaid. This raises the cost of running an immigrant bond fund tremendously, a problem compounded by the fact that bonds have begun to be set much higher under the Trump administration than previous amounts under Obama.

“When we pay a bond, we assume it’s paid and it’s not coming back. Some of the bonds have come back, but not all of them. We just put it out and assume, okay, we paid that and it sometimes takes like five or six years for the processes to play out regarding the bond, so we’re constantly just trying to replenish the fund,” said Jimmy Wells, an organizer with the Protection Network Action Fund (Pronet), an organization that provides financial support to immigrant rights groups in Tucson, Arizona, including in the form of bail bonds. Since its formation in 2012, the organization has paid out at least 11 bonds for immigrants in the area, according to Wells.  

“When we’re able to bond someone out, we can fight the battle on our terms,” Wells told The Appeal. “We can stretch the case out in order to give the person more time, we can get the community involved. I think it makes all the difference in terms of getting people reunited with their families.”

Donors have been responding to the call for help. Refugee and Immigrant Center for Education and Legal Services, or RAICES, a Texas-based advocacy group, raised more than $20 million in under a week for legal representation and bail for immigrants. But some advocates fear that once the attention being paid to family separation dies down, fundraising will slow down as well. Meanwhile, the costs of bailing out everyone arrested could rise substantially.

Jain hopes the bail funds will be able to meet the demand. “It’s really just over the past year and a half [that] bond funds for immigrants have been popping up around the country, and it’s only been the past couple of weeks that there’s been this actual national conversation about individuals giving their dollars specifically to get people out,” Jain said. “We need as much money as the government spends on deporting people—$10 billion dollars to do all of this, I’m sure could be put to good use.”

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