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If Border Patrol agents should refuse to tear gas children, shouldn’t prosecutors, police, and judges refuse some of their duties too?


What you’ll read today

  • Spotlight: If Border Patrol agents should refuse to tear gas children, shouldn’t prosecutors, police, and judges refuse some of their duties too?

  • The Appeal Podcast, Episode 23: The pseudoscience behind forensic science

  • California Governor Jerry Brown is fighting Trump with pardons. Will other governors follow suit?

  • Central Park Five prosecutor stripped of literary award

  • Mississippi to become national leader in felon disenfranchisement

  • Growing concerns that new Los Angeles sheriff is more regressive than progressive

  • New Jersey will no longer help ICE deport people––with some exceptions

In the Spotlight

If Border Patrol agents should refuse to tear gas children at the border, shouldn’t prosecutors, police, and judges refuse some of their duties too?

Over the weekend, a “peaceful march at the border of Mexico … devolved into chaotic scenes of American border protection agents firing tear gas into a crowd that included children,” according to the New York Times. The incident prompted outrage, especially after a photograph circulated of a woman and her young daughters being tear-gassed: Both girls were in diapers. Experts in human rights and international law have questioned whether this use of force was justifiable or legal. President Trump and Secretary of Homeland Security Kirstjen Nielsen defended the firing of tear gas. [Megan Specia and Rick Gladstone / New York Times]

Geoff Gilbert, professor of international human rights and humanitarian law at the University of Essex in Britain, said that countries may control who comes into their territory, but that doesn’t give U.S. authorities “the right to fire tear gas into another country.” He pointed to language in the United Nations Charter that bars the “threat or use of force against the territorial integrity” of other members except when presented with an immediate threat. Even if the migrants had crossed the border, firing tear gas under these circumstances could still violate international human rights standards, because it was, in the words of an Amnesty International adviser, a “completely disproportionate use of force.” Under Customs and Border Protection’s own guidelines, officers may use deadly force only when they have “a reasonable belief that the subject of such force poses an imminent danger of serious physical injury or death to the officer/agent or to another person.” [Megan Specia and Rick Gladstone / New York Times]

Many have said that the agents should have resigned before complying with any orders to fire tear gas at children.

Over the summer, Antar Davidson did just that. As a youth care worker at an Arizona immigrant children’s shelter, he was ordered to separate two brothers and a sister, who were comforting each other with hugs after being separated from their parents. “I was told that they should not be able to hug,” said Davidson, “and [I] basically realized that being [at the shelter] would mean—continuing to remain there, despite the good I was doing—would mean that I had basically come up to doing things I felt were morally wrong.” [Eric Levenson / CNN]

In her new book, “A Duty to Resist,” philosophy professor Candice Delmas discusses the question of whether civil servants should serve under President Trump. Some believe that resigning or refusing to sign up are the only options. “What undergirds this view is the belief that to obey or serve the state is to support it. This position––shared by many classical political thinkers, from Thoreau to Arendt––implies that it is unconscionable to serve seriously unjust governments.” Many who hold that view also believe that “bureaucratic participation in small-scale, not-quite disasters habituates civil servants to compromise on their principles” and makes worst-case scenarios more easily achieved. [Candice Delmas / A Duty to Resist]

On the other hand, if “the government is staffed only by wholehearted supporters of the president’s unethical agenda, the damage will be considerable.” Delmas argues that other options are available, which allow civil servants to promote the public good and do damage control from within, such as “conscientious refusal of particular orders or covert foot dragging.” In order to fulfill their duties of justice and fairness, and to uphold their professional code of ethics, Delmas told the Daily Appeal by email, “Border Patrol agents ought to refuse tear gassing the migrants, ought to persuade other agents to also refuse to carry out the order, and ought to denounce the orders to tear gas as unethical and wrong (within their professional organization’s channels and without, to the public).” [Candice Delmas / A Duty to Resist]

But if Border Patrol agents ought to refuse to fire tear gas, and if shelter workers should resign before telling children not to hug, shouldn’t prosecutors refuse to use their power to coerce defendants to plead guilty to crimes they did not commit? Or request that a judge set bail on a low-income teenager who has been convicted of nothing? Or pursue prison time, knowing that a drug treatment program or mental health care would be more effective and less cruel? Or offer a lowered sentence instead of a dismissal in the face of exculpatory evidence? Many head prosecutors obligate their line prosecutors to do such things, but resisting injustice is possible from inside prosecutorial offices, whether that takes the form of refusal, resignation, foot-dragging, leaking information, documenting injustices, or collective action. Indeed, it may even be required, ethically.

Should police officers resign before hauling people in on minor infractions, as some are commanded to do? Or should they leak body camera video showing their colleagues committing abuses?

And shouldn’t judges refuse to sentence people to life without parole––to die behind bars––for drug crimes? Judges routinely bemoan the unconscionable sentences that mandatory minimums and other sentencing rules force them to mete out, but rarely do we hear of resignations or acts of resistance. Judges rarely use some of the tools at their disposal, such as dismissing cases in the interest of justice, or holding prosecutors’ feet to the fire when it comes to misconduct.

In his seminal 1975 work “Justice Accused: Antislavery and the Judicial Process,” professor Robert M. Cover examines how antislavery judges in the antebellum period squared their beliefs with their duties as judges. Confronted by ideological advocacy and the sympathetic qualities of fugitives, he wrote, the judges generally upheld the laws. “[A]ntislavery judges consistently gravitated to the formulations most conducive to a denial of personal responsibility” which emphasized the importance of formal institutions, like law and procedure. These judges advanced various justifications, including the maintenance of “ordered society,” the separation of powers, keeping the union together, and upholding their judicial oath to support the Constitution. They often protested “that responsibility lay elsewhere,” and demonstrated “indications of distress, helplessness, and, indirectly, guilt.” [James W. Ely Jr. / Washington University Law Review]

Stories From The Appeal

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The Appeal Podcast, Episode 23: The Pseudoscience Behind Forensic Science. Jessica Brand, legal director at the Justice Collaborative and contributor to The Appeal, discusses faulty forensics. [Adam H. Johnson]

California Governor Jerry Brown Is Fighting Trump With Pardons. Will Other Governors Follow Suit? The departing governor has chosen to pardon immigrants whose past criminal offenses put them in danger of deportation. [Melissa Gira Grant]

Stories From Around the Country

Central Park Five prosecutor stripped of literary award: “Just two days after it came under fire for announcing an award for a novelist and former New York City prosecutor who oversaw the prosecution of the Central Park Five—teenage boys wrongly convicted of rape in 1989— the organization behind the award withdrew it,” according to the New York Times. Mystery Writers of America announced yesterday that it would not honor Linda Fairstein, a crime author and former prosecutor. “After profound reflection, the Board has decided that M.W.A. cannot move forward with an award that lacks the support of such a large percentage of our members,” the group said. Over the summer, the city released internal law enforcement documents from the Central Park Five investigation that bolstered the decision in 2002 to overturn all of the convictions based on DNA evidence. The young men had confessed to the crime under pressure. In July, Fairstein wrote an op-ed in the New York Law Journal defending the prosecution, claiming that “[t]he confessions were not coerced.” [Sean Piccoli and Michael Gold / New York Times]

Mississippi to become national leader in felon disenfranchisement: Now that Florida has voted to change its disenfranchisement rules, Mississippi will take the top spot in barring people from the polls. Ten percent of voting-age Mississippians, and 16 percent of Black adults, are stripped of the right to vote because the state permanently disenfranchises everyone convicted of one of 22 offenses. Corey Wiggins, the executive director of the Mississippi NAACP, and state Senator David Blount, the Democratic vice chairperson of the state Senate’s Elections Committee, both told The Appeal: Political Report that they were heartened by the adoption of Florida’s referendum and that they would continue advocating for automatic rights restoration for people who complete a felony sentence in Mississippi. Florida’s referendum “shows where we are as a nation in trying to push back against policies that limit voter participation,” Wiggins said. Besides amendments initiated by the legislature, Mississippi allows popular drives to add initiatives to the ballot, which is how it was done in Florida. [The Appeal: Political Report]

Growing concerns that new Los Angeles sheriff is more regressive than progressive: Alex Villanueva won his “longshot bid to become Los Angeles County sheriff” by “appealing both to a heavily Democratic constituency and the rank-and-file deputies he hoped to lead,” according to the Los Angeles Times. He held himself out as a reformer but “part of his platform hinged on questioning some recent reforms,” even those “imposed after a federal investigation found serious wrongdoing by top department officials and a culture of violence” against incarcerated people. Villanueva has criticized the requirement that officers report minor uses of force, and has suggested arming deputies with metal flashlights to defend themselves against incarcerated people. He says he will eliminate constitutional policing advisers, who provide oversight of deputy misconduct. He has also denounced the practice of disclosing a “Brady list”––a list of deputies with a history of misconduct allegations––to prosecutors, so that they can evaluate the credibility of charges. [Maya Lau / Los Angeles Times]

New Jersey will no longer help ICE deport people––with some exceptions: Attorney General Gurbir S. Grewal issued a directive to law enforcement agencies in New Jersey that limits the types of assistance their officers may provide to federal civil immigration authorities. The new rules aim to strengthen trust between New Jersey law enforcement and the state’s immigrant communities. The rules also draw a clear line between the responsibilities of law enforcement officers to enforce state criminal laws and the responsibilities of federal immigration authorities to enforce federal civil immigration law. Except in certain circumstances, which could turn out to be not insignificant, the directive bars all state, county, and local law enforcement officers from stopping or questioning anyone based on their suspected or known immigration status, and bars them from asking about immigration status. Law enforcement also cannot help ICE, except regarding people charged with violent or serious offenses; officers may alert ICE to upcoming release dates, thereby facilitating detention and deportation. [NJ Today]

Thanks for reading. Have a good weekend.

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