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From Gang Allegations to Deportation: How Boston is Putting its Immigrant Youth in Harm’s Way

From Gang Allegations to Deportation: How Boston is Putting its Immigrant Youth in Harm’s Way

The Trump administration uses Sanctuary Cities as punching bags in its war against immigrants. But even in the cities taking federal heat for protecting immigrant communities, a little-understood, post-9/11 institution called the “fusion center” is playing a starring — if behind the scenes — role in the Trump-Sessions deportation regime. Despite promises from liberal mayors, local police departments are quietly using fusion centers — and the local gang databases housed in them — to aid ICE in seizing and deporting some of the most marginalized young immigrants in the country.

In Boston, the problem has reached crisis proportions, striking fear into immigrant communities, especially those hailing from Central America.

Local law enforcement is “the tip of the spear” in the Trump deportation machine

On September 21, 2017, Attorney General Sessions came to Boston to speak to federal prosecutors, where — facing protests outside — he delivered a cynical, ominous speech warning his Boston area employees about the threat posed by MS-13, a Salvadoran gang. (Massachusetts is home to over 40,000 people who were born in El Salvador.)

Sessions told the group that he had a message from Donald Trump to MS-13: “We are coming for you. We will hunt you down; we will find you, and we will bring you to justice.” He congratulated Boston-area prosecutors for their 2016 federal indictment of nearly 60 people alleged to be affiliated with MS-13 and asked for more of the same. But the feds can’t do it alone, he said, noting that “street level intelligence and investigation” is key to “successfully investigating and prosecuting this group of thugs.” He called “state and local law enforcement…the tip of the spear” in the fight against MS-13, and described unaccompanied minors as possible “wolves in sheep [sic] clothing.”

While he framed MS-13 as a savagely violent group, Sessions said he’d issued directives to field prosecutors to “renew their focus” not on violent crimes but on immigration offenses, especially where the immigrants “have a gang nexus.”

Months earlier, in the chaotic first few weeks of the Trump administration, Boston’s Mayor Marty Walsh gave a rousing press conference at City Hall, promising to defend the city’s immigrant community against the likes of Sessions and Trump. “Boston was here for me and my family,” the son of Irish immigrants said. “And for as long as I am mayor, I will never turn my back on those who are seeking a better life. We will continue to foster trusting relationships between law enforcement and the immigrant community. And we will not waste vital police resources on misguided federal actions.” Walsh even offered to let immigrants sleep in his office, so no one in the city need live in fear of Immigration Customs Enforcement (ICE).

But Walsh’s own police department was at that moment putting immigrant youth at risk of deportation by sharing information with those very federal immigration officials, who were newly emboldened to seize undocumented young people alleged to be gang involved. Indeed, even the Boston Public Schools Police were, and continue to be, involved in what some advocates are now calling a “school to deportation pipeline.”

In order to understand how that pipeline works, Walsh and other city policymakers should take a closer look at both the Boston Police Department’s local spy center and its gang database — which, whether out of ignorance or cowardice, they have largely ignored to date. Then officials should follow the lead of other big cities, and make necessary changes to protect our youth.

Post-9/11 terror hysteria, the war on drugs, and a new immigration crisis

The Boston Regional Intelligence Center (BRIC) is a post-9/11 “fusion center,” originally formed to facilitate the sharing of counterterrorism intelligence among state, local, and federal law enforcement. The federal Department of Homeland Security, the parent agency of ICE, provided initial funding for the spy center when it opened in 2005, and has since given it hundreds of millionsof dollars in grants to support its operations. The BRIC is one of nearly 100 similar centers nationwide that facilitate the sharing of counterterrorism intelligence across different levels of government, with the goal of breaking down stovepipes and providing law enforcement with an infrastructure for “connecting the dots.”

The BRIC is located at BPD headquarters and run by the Boston Police Department. The center collects, analyzes, and shares street level surveillance information in the form of BPD incident reports; reports from Boston School Police; and other types of information, including surveillance feeds from DHS-funded cameras throughout the city, and data from ShotSpotter devices, which listen for gunshots in real time. The center also collects and analyzes field, interrogation, observation (FIO) reports, which are based on police officer surveillance of individuals and groups on the streets, at schools, and in other public places. Often these FIO reports are generated from vehicle stops or stop and frisks, but other times the people monitored have no idea the police are watching them and taking notes about what they’re doing, who they’re with, or what they’re wearing. The Boston Police Department’s gang database also lives at the fusion center, making it easy for ICE agents to access its information.

The BPD’s gang database, like those in other large cities nationwide, operates on a point system. Based on the center’s surveillance, the BPD assigns points; ten points triggers reasonable suspicion of criminal activity, according to BPD policy, enabling officers to classify someone as a gang member and put them in the database. Like other gang database systems, no actual or even alleged criminal activity is required for inclusion in the database. Oftentimes, there is none alleged. For example, if a Boston Police officer assigned to work in a public school says that someone is seen communicating with a person already in the gang database, that’s four points. If law enforcement sees a person wearing a particular color hat or shirt, that’s another four points. If the cop sees a person in a “group related photograph” on Facebook or Instagram, that’s another two points, adding up to ten total. That’s it.

Despite the very low bar for admission into the database, when the Boston Police Department decides someone is a gang member, the designation can have life shattering consequences — especially when the information makes its way into the hands of immigration officials.

The image below is taken from a Homeland Security Investigations (HSI) case file, which was submitted to a Boston federal court in deportation proceedings against a young Central American Bostonian in 2017. According to his attorney, the young person, whose name we are withholding due to his ongoing immigration court proceedings, has no criminal record; ICE seized him solely because of an allegation of gang involvement in the Boston Police Department’s BRIC gang database.

As you can see, there is no allegation of criminal activity in the “verification report details” that the Department of Homeland Security presented to the immigration judge. It merely includes a number of references to field, interrogation, observation (FIO) reports claiming the young person was seen associating with other young people who are in the gang database. It is purely guilt by association that put this young man in immigration detention. And a large portion of the points come from uncorroborated statements by a school police officer, while the others come from the Boston Police Department and the Massachusetts State Police.

According to local immigration attorneys, Sessions’ commitment to using local law enforcement’s street level surveillance, and the Boston Police Department’s cooperation with those efforts, has led to a spike in arrests of young, mostly Central American people in East Boston solely on the basis of their inclusion in the BPD’s gang database. This bears repeating. Immigration attorneys who work with youth in Eastern Massachusetts confirm that in the past year, they’ve seen an increase in ICE arrests of young Bostonians who have never been arrested or even accused of a crime, solely because they are listed in the BPD’s gang database, and often initially due to statements made by school police officers.

These seemingly targeted arrests of Central American youth raise the question of whether the gang database disproportionately features Latinos. In Chicago, a study from February 2017 showed that of the nearly 65,000 people listed in the Chicago Police Department’s gang file, 75% were Black and 21% were Latinos. In July of 2017, a Mexican national living in Chicago, who had been falsely included in the CPD’s gang database, filed a federal lawsuit against the Chicago Police Department. The man, who has lived in the United States since he was five years old, was arrested and faced deportation proceedings because of the CPD’s allegation of gang involvement. As his lawyers at the MacArthur Justice Center argued, “The Chicago Police Department has a policy and practice of falsely labeling young men — almost all of whom are Latino or Black — gang members.” Advocates say that the racial makeup of the Boston database is likely similarly out of whack with the city’s overall demographics.

Local policymakers must act to bring Boston Police policy in line with Sanctuary protections

Policymakers in other cities have taken action to protect their most marginalized residents from discriminatory policing and federal overreach, and Boston should follow their lead. In response to the Trump election, the Mayor of San Francisco cut off cooperation with the FBI’s Joint Terrorism Task Force, upon which agents from DHS’ ICE agency sit. In Portland, Oregon, city leaders responded to a reporter’s inquiries about that city’s gang database, and specifically its racial makeup, by shutting down the database for good. Baltimore, meanwhile, shuttered its controversial plainclothes policing unit in 2017.

Boston’s leaders should take a close look at our own police department’s gang databasing system, and at the BPD’s policies governing information sharing with federal agencies. Among the questions local leaders should ask the police: What kind of department approval, if any, must ICE agents get before accessing the gang database? How many times have ICE agents accessed the database in recent years? What is the racial makeup of the database? Is there any evidence the gang database has led to a decrease in violence? How many people included in the database have never been arrested on suspicion of committing a violent crime? How can someone learn if they are in the database? And what, if anything, can they do to get their name removed if they think they’ve been wrongfully accused? Finally, how is information from Boston School Police officers making its way into ICE’s hands, and enabling the deportations of BPS students?

If Boston’s leaders truly want to protect the city’s most marginalized residents from Trump’s deportation force, they need to get these questions answered as soon as possible, and then act accordingly. Doing so will serve the dual purpose of helping the city engage in a long-deferred conversation about the role of gang databases in BPD policing, with an eye towards protecting young immigrants from the long arm of Trump’s ICE — as well as addressing racial disparities that impact not just immigrants but also African Americans. We know young people are more likely to be system involved if they are listed in a gang database, a problem that has long predominately impacted Black youth. Our Black and Brown youth deserve to be treated better.

Boston’s mayor and local media have of late been publicly soul-searching about the role racism plays in our city. We cannot meaningfully address anti-Black and Brown racism, or truly protect immigrants, if we don’t confront the role the Boston Police Department’s gang database plays in the lives of young people of color in our city.

Inertia and the Death Penalty

Baumgartner FR, Box-Steffensmeier JM, Campbell BW (2018) Event dependence in U.S. executions.

Inertia and the Death Penalty

Most of us go to the doctor regularly, or at least use the Internet to identify health information of questionable medical value. Either way, we have heard some variation on the phrase “one of the very best predictors of [medical event X] is a prior instance of [X].” One of the very best predictors of whether you’ll have a stroke later is whether you’ve had a stroke before. As it turns out, that same statistical relationship describes another, ahem, morbidity risk: executions. In a newly published article, a group led by University of North Carolina political scientist Frank Baumgartner shows that there is extraordinary event dependence in American execution practice. Stated a little more accessibly, the Baumgartner data shows that one of the best predictors of whether a county will execute someone in the future is how many the county killed in the past.

This finding matters, a lot; someone should be capitally punished because their crime and moral blameworthiness merits death, not because a particular county happens to have acquired professional expertise in killing people. In this very forum I wrote a short piece, based on my longer law review article, describing the concentration of American execution activity in a few “outlier” counties — counties that maintain exorbitant levels of capital punishment activity. I presented a theory of “local muscle memory,” positing that the small cohort of outlier counties kill because they’ve gotten used to killing, and the rest largely abstain because they haven’t had the practice. And I argued that the already-concentrated map of American capital punishment activity was still concentrating even more, reflecting a crude bureaucratic path dependence. Institutional stakeholders in a particular locality must invest considerable time and capital to develop the skill — the muscle memory — to produce death sentences and then convert them into executions. As a result, bureaucratic habituation was causing counties to separate into two groups: a small group of outlier counties that maintained elevated capital punishment activity, and a much larger group of abstainers. In documenting the increasing concentration of American execution practice, I relied on some of Professor Baumgartner’s data, and some of his prior work. Nonetheless, because I am not a statistician and because empirical testing of the hypothesis was somewhat beyond the scope of the project, my muscle-memory thesis did not include regressions and other advanced statistical analysis that would determine the fit between the theory and available data. Professor Baumgartner and his collaborators have largely filled that gap.

They worked from a sample of 1,422 executions spanning 1977 to 2014, from 474 counties in 34 states. I’ll leave out most of the major modeling details, but suffice it to say that the analysis was capable of controlling for four phenomena that had typically been assumed to drive execution activity: (1) county-level homicide activity; (2) racial demography; (3) poverty rates; and (4) county-level population. The fourth control is deceptively important insofar as large population centers experience more homicides and have more professionalized prosecution offices, and hence tend to produce more death sentences. (Of course, the study removed states that didn’t use the death penalty from the analysis.)

The result of the Baumgartner analysis is pretty astonishing, both because of its bottom line and, to a lesser extent, because of what it discloses about the influence of several controlled-for variables. The headline finding is that when it comes to executions, event dependence is extraordinary; over an eighteen-month interval, a county with previous executions will be five times as likely to execute a new prisoner as a county with no previous executions. Quite surprisingly, county-level homicide activity and poverty rates have no effect on how many people a county executes. There is a smaller positive correlation between executions and the county’s population of people of color, a variable sometimes called “racial threat.” That is, majority-white communities are more likely to resort to aggressive social control — including ramping up police presence and aggressive prosecutions — in situations where there is a greater fraction of minority membership. Although I am focused on event dependence, and although racial threat is just a control variable, the horror of the concept bears repeating: even controlling for criminality and poverty, predominately white communities that include larger non-white membership tend to use the death penalty more extravagantly.

The authors readily admit that a better test for event dependence might involve capital sentences, rather than executions — most defendants who are sentenced to death are never actually executed, and so the execution data (as opposed to capital sentencing data) is uniquely sensitive to certain types of shocks, including the availability of lethal injection drugs. The execution model is nonetheless powerful evidence of event dependence — and there is also recent county-level sentencing data, assembled by University of Virginia Professor Brandon Garrett, which he has in turn used in at least one articleand one book. (I used an early version of the data set in my muscle-memory article.) Using county-level death sentencing data covering 1990 to 2016, Professor Garrett, along with several co-authors, studied the degree of event dependence. Although the methodology used by Professor Garrett and his coauthors diverges somewhat from the methodology used by Professor Baumgartner and his, the findings converge. As with executions, one of the greatest predictors of whether a county will sentence people to death in the future is whether it sentenced people to death in the past. Moreover, the explanation offered by Professor Garrett et al. lines up with that offered by Professor Baumgartner — as well as with mine. Whether the term is “inertia” or “muscle memory” or “path dependence” or “self-reinforcement,” local, bureaucratic habituation is causing the vast majority of American counties to sentence to death and kill no one, and causing an extremely small number to sentence and kill repeatedly.

To understand the theory writ small, consider the role of the prosecutor. To train its prosecutors to navigate the various institutional hurdles that an execution presents, district attorneys must train their lawyers to investigate aggravating evidence, select a death-qualified jury, try a sentencing case, conduct post-conviction proceedings, obtain an execution date, and defend the judgment in crisis-phase litigation — all unique facets of a death penalty case. The human capital involved in successfully performing all of these tasks is enormous; to realize a reasonable return on that considerable investment, an office must produce a lot of capital punishment. In some ways, it’s a simple economic story of spreading high fixed costs across a more output. But once an office is trained to, well, kill, its existing human resources are bureaucratically conditioned to transmit that lethality to the next generation of attorneys, with the subsequent generation passing the torch to one that comes after it, and so forth. But the bureaucratic habituation that causes certain urban, well-endowed counties to remain active capital punishers actually causes most others to abstain. Once the institutional knowledge necessary to secure executions begins to disappear, it is unlikely to be revived in the absence of unusual political will, substantial financial resources, and caseload of death-eligible cases worthy of renewed institutional investment.

A capital punishment practice operating through muscle memory is quite concerning, because it signals profound arbitrariness. States are meting out death sentences not by systematically isolating the worst of the worst, but by isolating those in certain area codes. When people like Clarence Thomas extol the virtues of geographically differentiated punishment, they generally contemplate things like different states having different punishment schemes, or different localities expressing the collective blaming preference of an affected community. Kent Scheiddeigger, an energetic proponent of vigorous death penalty practice, responded to a famous study showing geographic disparities by snarking: “The study calls the variation by county ‘geographic disparity.’ I call it local government.” What studies like Professor Baumgartner’s show, however, is that maps of capital punishment activity are not capturing the output of good governance or particularly severe punishment preferences; they are capturing a largely arbitrary distribution of death penalty activity, suffused with path dependence.

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New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children

New DOJ Report Demonstrates Stunning Disingenuity on Cases Involving Sexual Exploitation of Children

A recent bombshell report from the Department of Justice claims that the number of people prosecuted in federal court for commercial sexual exploitation of children roughly doubled between 2004 and 2013.

The title of the report from the DOJ’s Bureau of Justice Statistics, Federal Prosecution of Commercial Sexual Exploitation of Children Cases, 2004–2013, conjures the specter of children being forced into sexual slavery. The titling and framing of the report leaves a casual reader with the impression that more and more children are falling victim to commercial sex offenses — such as sex trafficking — and that DOJ has placed a high priority on prosecuting these offenses.

The actual data contained within the report itself, however, merits no such dramatic conclusion. The DOJ defines the phrase the “commercial sexual exploitation of children” (CSEC) as involving “crimes of a sexual nature committed against juvenile victims for financial or other economic reasons,” the obvious implication being that these “CSEC” defendants are directly involved in the trafficking of children for sexual purposes. However, according to the BJS’ own data, the vast majority of the defendants charged with CSEC offenses were accused, not of producing of child pornography or of child sex trafficking, but of consuming child pornography, including images of cartoon obscenity:

Prosecutions related to the possession, receipt, or distribution of child pornography increased by 91% … Of the 21,887 defendants in cases led in U.S. district court with a CSEC charge from 2004 to 2013, 80% of defendants were charged with possession, receipt, or distribution of child pornography.

Lumping the terms “possession, receipt, or distribution” of child pornography together is another bit of sophistry. While the term distribution obviously lends itself to economic arguments, in the overwhelming majority of cases it means something much less sinister: 73% of federal child porn distribution cases involve little more than a defendant using a peer-to-peer network to download child pornography, with “distribution” being baked in to how peer-to-peer networks operate. They are offenses which are generally committed as a result of technological illiteracy, as opposed to mercenary motive. The remaining roughly 27% of distribution cases typically involve defendants swapping illicit images directly with one another, though without any money changing hands. For example in 2010, exactly zero of the distribution cases pressed at the federal level involved commercial distribution.

Prosecution of non-production, non-economic child pornography cases nearly doubled in federal court over the time period in question in the DOJ report, yet also comprise the vast majority of offenses that the DOJ is characterizing as offenses committed against minors for “financial or other economic reasons.” Carissa Hessick is law professor at the University of North Carolina and expert on federal sentencing and child pornography law. She told In Justice Today that while possession of child pornography is a serious crime,

“DOJ’s decision to lump these crimes together is so poorly explained, one worries that it was done, perhaps in part, to create the appearance that the Department of Justice has been more active in prosecuting cases involving the physical molestation of children, such as production of child pornography and sex trafficking…The numbers in this report would look far different if they excluded child pornography possession cases.”

The growth in these types of child pornography prosecutions is not necessarily indicative of an increase in rates of offending. Rather, it is more likely the result of law enforcement’s ability to secure confessions and convictions with relatively little effort. In the vast majority of these cases, investigators monitor peer-to-peer networks for hash values of images that are known to be child pornography, serve administrative subpoenas on service providers for records associated with those IP addresses, and knock on front doors with search warrants. Defenses are usually slim to none. Guilty pleas are exceedingly common: The BJS data reveals that 92.5% of defendants prosecuted in federal court for possession, receipt, or distribution of child pornography pled guilty.

Including such defendants under the banner of “CSEC” is sloppy at best and disingenuous at worst. While the DOJ’s commitment to battling commercial sexual exploitation of children is admirable, their framing and presentation of the data as implication of an epidemic is at odds with the numbers themselves.

Underscoring the need for clarity and objectivity is the fact that defendants prosecuted for non-production child pornography offenses are amongst the most harshly punished defendants in all of the federal system. The report indicates that they are the least likely of all federal defendants to be given non-custodial sentences, even over and above violent and weapon offenses, and that:

Prison sentences imposed on defendants convicted of CSEC offenses were among the longest in the federal justice system. The mean prison sentence imposed on convicted CSEC defendants increased by 99% from 2004 to 2013, from 70 to 139 months.

Sentences to the north of a decade are routine for CSEC defendants by virtue of the United States Sentencing Guidelines. These provide a recommended “range” in months of imprisonment based on both the severity of an offense and a person’s criminal history. Offenses, depending on specific characteristics of how they are committed, can receive enhancements that result in lengthier terms of imprisonment.

There are a number of significant sentencing enhancements for child pornography cases which are routinely applied. These may have held some rough logic in an era before Google, but they make little sense now. Use of a computer? Enhancement. More than ten images? Enhancement. Distribution, even unintentional distribution, as discussed above? Enhancement. More than 10 images (note that a video file, regardless of length, is counted as 75 images)? Enhancement. Sentence enhancements are piled on such that, even for those individuals with no criminal record and no evidence they sexually assaulted a child, the recommended sentences can easily dwarf the statutorymaximum sentences.

Excerpt from the 2016 United States Sentencing Guidelines Sentencing Table

No other class of offense in the federal system (or, indeed, in many states) is characterized by such extreme sentences. As courts have noted, there is virtually no empirical or reasoned bases for any of these enhancements beyond naked revulsion and desire for retribution. Some scholars have suggested that such severe punishments represent punishment by proxy. In other words, they are intended to obscure and compensate for the failure of law enforcement to investigate and prosecute actual cases of child sexual trafficking and commercial exploitation. In seeking to justify such draconian punishments even for “end users,” prosecutors and others (including courts) have advanced a market theory — that even possession of such images drives a market for child pornography. The United States Sentencing Commission, in a 2012 report to Congress, noted that such arguments are without empirical support. Notably, similar arguments were made in support of harsh treatment of drug addicts in the 1970’s and 80’s as a way of winning the war on drugs.

Whatever the underlying rationale, the draconian nature of these sentences has attracted attention and push back in recent years, including from an extremely unlikely group: federal judges, some of whom are recognizing the inherent unfairness of enhancements for these types of offenses, and beginning to impose sentences far more lenient than those recommended by the guidelines.

Equating garden variety child pornography defendants with child sex traffickers is an abdication of reason and rationality. Unfortunately, the DOJ has not signaled any intention of reversing course. Rather, if the trends in the report are any indication, it appears to be accelerating the use of what might justifiably be described as a prosecutorial machine that crushes defendants in child pornography possession cases, while failing to even charge far more culpable defendants.

Guy Padraic Hamilton-Smith is an author and civil rights activist focusing on sex offense law and policy, criminal justice, and civil rights. His own experiences with the registry inspired him to go to law school, though was denied the ability to take the bar exam in Kentucky. Most recently, he successfully sued Kentucky in federal court for civil rights violations. His writing has been published in various outlets such as the Berkeley La Raza Law Journal and the American Bar Association’s State of Criminal Justice. He resides in Lexington, Kentucky with his fiancé and two cats. Connect with him @G_Padraic on Twitter.

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