Archive for the ‘Law Enforcement’ Category

A Prosecutor Defends Eyewitness Identification

Wednesday, November 11th, 2015

It’s fairly well-established that eyewitness identification sucks, as a rule. There have been tons of scientific studies going back decades — and more are conducted all the time — on the reliability of eyewitness testimony. The studies generally conclude that we’re really bad at noticing things, remembering them accurately, and identifying faces we aren’t already familiar with. Oh, and we really really suck at it when the face is of someone of another race. Meanwhile, the field of neuroscience is reporting breakthroughs literally every month in our understanding of how the brain creates memories, stores memories, distorts memories, processes sensory perceptions, processes faces, recognizes faces, et cetera et cetera et cetera. On top of all that, there have been studies demonstrating how traditional law enforcement methods can make all of this even worse, and what other methods would work better. And on top of all that is the incontrovertible data that eyewitness testimony has played a significant role in wrongful convictions that have been proven to be wrongful.

If you want to go read the scientific literature, please do. There’s a lot. If you want a quick-and-dirty version, I’ve been covering it in my comic for — holy hell, a year now? For those preferring a more, say, jurisprudential approach, Judge Alex Kozinski wrote an excellent summary of the situation in Criminal Law 2.0, his preface to this summer’s Georgetown Law Journal Annual Review of Criminal Procedure. Click on the link to read his views.

But in American jurisprudence, these are still minority views. The courts are slow to adopt change, and have been incredibly slow to adapt the law of eyewitness identifications to the scientific facts. It’s starting to happen. And I fully expect us to reach critical mass within a generation if not sooner. But the majority of courts aren’t there yet.

And law enforcement isn’t entirely on board, either. You’d think they’d want to be on board, though — after all, who wants to lock up an innocent person and leave the real bad guy free to do it again? But inertia, the investment of ego, and confirmation bias are much more powerful than you may suspect. Especially in law enforcement. You’ve seen the mind-numbingly bad arguments cops and prosecutors have come up with to insist someone’s guilty even after the DNA proves he isn’t — or even to fight tooth and nail against the DNA analysis that would prove it. There’s too much invested in having been right.

And there’s a lot of ego, inertia, and confirmation bias invested in the sense that eyewitness identifications — they way they’ve traditionally been done — are just fine and dandy.

Which brings us to the recent publication of “The Unreliable Case Against the Reliability of Eyewitness Identifications: A Response to Judge Alex Kozinski,” by Connecticut appellate prosecutor Laurie Feldman.

Feldman’s piece is an attempt to say Kozinski — and all the others who have problems with eyewitness identifications and testimony — have it all wrong. Things aren’t as bad as everyone says, and we shouldn’t jump to make unnecessary reforms. Don’t fix what ain’t broke.

Click on the link to read the whole thing yourself. I, for one, don’t find it terribly well reasoned, but your mileage may vary. From what I understand, her points are these:

(1) There’s no scientific proof that jurors put too much store in eyewitness testimony.

(2) There’s no good science saying eyewitnesses aren’t reliable.

(3) Scholarship here is agenda-driven, which distorts the results. Peer review only makes this worse.

(4) Just because someone was exonerated, that doesn’t mean he was innocent. So how does that mean the eyewitness who fingered him was wrong?

(5) So what if 72% of DNA-based exonerations were cases involving false I.D.? How many cases, where DNA proved guilt, involved an eyewitness’s correct I.D.? What if it’s the same number?

(6) We’ve only exonerated a teeny tiny subfraction of a fraction of people convicted on eyewitness testimony. That sounds like they’re reliable, not unreliable.

(7) Courts are allowing experts to testify about all this, and they shouldn’t. This exposes the jury to political agendas, and makes the scientists advocates instead of objective scientists. Courts are moving too fast to adopt reforms like this.

(8) It’s unwise to jump on the latest social-science fad to fix what ain’t broke. There’s not a single study saying that double-blind experiments are better than ones where the examiner knows who the suspect is. And simultaneous lineups simply get better results than sequential ones.

All I can say is:

(1) If her footnotes are to be relied upon, she clearly has a lot of reading to do. I can suggest a bibliography if she wants one. This recent National Academy of Sciences report is a good start. Heck, she’s welcome to take every damn book off my bookshelf right now because I need the space for all my resources for the comic’s upcoming forays into Constitutional Law.

(2) Ditto.

(3) Perhaps she should stop reading scholarly writings and “social science” sources, and focus on the objective scientific studies out there. I encourage her to maintain a healthy skepticism of sociology and meta-analysis and studies with small sample size or weird methods — but the good news is there’s a whole lot of good stuff out there with good clean numbers and healthy p-values.

(4) DNA exonerations pretty clearly show he ain’t the guy. The eyewitness who absolutely positively no doubt about it said that’s they guy? Wrong.

(5) Not the issue. The issue isn’t how many guilty people are properly convicted. The issue is, when an innocent person does get wrongfully convicted, what’s causing that, and how can we prevent it from happening again? When 72% of your wrongful convictions that you know to be wrongful because the DNA says so were based on a false identification? That’s a very strong correlation. Combined with the fact (sorry, it’s true) that juries do put a whole heck of a lot of weight on that false I.D., and it’s safe to say we’ve got causation as well. (Whereas 100% of wrongful convictions may have taken place in a courtroom with a judge, a very high correlation indeed, but there’s zero evidence that the presence of a judge played any effect on the jury’s verdict, so we can disregard that one.)

(6) Intellectually dishonest. You’re saying “you guys haven’t disproven all these other cases yet, so let’s presume those IDs were good.” Ignoring the fact that only a small teeny tiny microscopic percentage of cases where the defendant insists upon his innocence are ever taken up by folks like the Innocence Project. You’re also comparing the number of hits in the sample size to the overall population being studied. The fact is, an obscenely high number of hits in this statistically significant sample probably translates to an obscenely high number of hits overall.

(7) Fine. You’re not allowed to use DNA experts, either… Seriously? Draw up a timeline of courts adopting real meaningful reforms here and show me how it’s moving too fast.

(8) Apparently the latest fad = decades of research, and basic Science 101 recommendations for how to conduct an experiment that have been understood for ages. None of this is rocket science. None of this is remotely eyebrow raising to anyone with a genuine science background. If you really don’t think double-blind studies are proven to be effective, that they eliminate intentional and unintentional suggestion by the examiner, then you really really shouldn’t have skipped that day in 8th-grade Science class. As for simultaneous vs. sequential, you are ALMOST RIGHT!! Because sequential arrays DO result in fewer correct identifications, along with fewer false ones. Sequential arrays only solve the problem of relative-judgment witnesses who compare the faces in the lineup to each other. They’re best used with children, lower-IQ people, and all the people whose brains really work this way only they don’t know it and neither do you. All of whom, it so happens, are the ones making the MAJORITY of false identifications. Losing a few correct IDs (because during sequential procedures we all tend to raise our threshold for certainty, worrying that a better match might be coming up) is a small price to pay for ensuring so many innocents don’t have their lives and liberty and futures taken away by mistake. Isn’t it? And simultaneous lineups are only as effective once you’ve adopted the suggested reforms, including some you didn’t discuss.

This all sounds like another one of those prosecutors thwarting justice in the name of inertia.

My final recommendation to her would to be to allow herself to be receptive to the idea that innocent people do sometimes get convicted, that bad identifications do sometimes cause this, and that there are solutions that can prevent such injustices, can ensure that the cops don’t put the wrong guy in jail, can ensure that the real perp doesn’t remain free to do it again, don’t cost hardly anything, and are easy to institute. And if that’s the case, then why the heck are you so opposed to it? Do you want those preventable injustices to occur?

Because that’s kinda how you came off.

Q&A Roundup Part 5

Friday, September 18th, 2015

I made a thing for Radley Balko at the Washington Post on Qualified Immunity. Some people had questions about it over on my comic, which was about something completely different. One of the WaPo pages mentioned the elimination of the KKK under President Grant.

Wait I thought that the KKK and Knights of the White Camilla weren’t so much defeated as succeeded in implementing policies after the compromise that brought Rutherford B Hayes into the White House?

There’s no doubt that Reconstruction failed, and racist policies were certainly implemented as a result — but the KKK itself did cease to exist as an organization. Another KKK would eventually be formed in 1915 or thereabouts, but that original one was gone.

The failure of Reconstruction is a fascinating area of our nation’s history that can be difficult to piece together, because almost everything written about it until maybe the 1960s was revisionist as hell. And even a lot of modern sources can be equally revisionist, just on the opposite swing of the pendulum. I think of the fiasco as a long string of failures and miscalculations, worsened by the economic depression of the 1870s, of which Hayes was only the last. (And speaking of revisionism, until the 1950s or 60s Hayes was lauded as the man who reunified the country, one of the greatest presidents!)

That is very interesting. However, what does any of this stuff about reconstruction have to do with law? Or the neuroscience of memory?

What, we haven’t had digressions here before? Just run with it.

As to the Qualified Immunity thing – is that the same doctrine that allows prosecutors to avoid any punishment when they do things like withholding evidence during discovery?

Nope. Different doctrine.

Prosecutors have something else called “absolute immunity.” They can’t be sued for stuff they did in their role as prosecutor, even if it was really really egregious and caused great injustice. They lose their absolute immunity only when they start doing the actual police work, at which point qualified immunity would instead apply. Apart from that, they have absolute immunity.

It can be a real problem: Prosecutors have insane power, and complete discretion as to how to use their power. But there’s no accountability for misuse or abuse of that power. Sure, there’s professional discipline for prosecutorial misconduct, but it’s rarely enforced. And it’s not the same as allowing the victim to sue the malefactor.

[A few states do allow suits for some prosecutorial misconduct. The damages are (I think) always paid from tax money in those cases, though, so even then the prosecutor herself isn’t at risk.]

We’ll cover all this in more detail when we get to Advanced Criminal Procedure. But that subject — what happens once you’ve been charged with a crime — is more about what the lawyers and judges can and cannot do. So I’m not going to get to that until I’ve at least done Constitutional Law and Torts, which are much more relevant (and interesting) to everyone else. So in the meantime, feel free to bring that stuff up here in the comments!


[If you want to read what I actually said about Qualified Immunity, click on the link at the top.]

Paranoia from the PBA President

Tuesday, September 15th, 2015

Over lunch today, the head of one of the NYPD’s powerful police unions* emailed a shrill “open letter” to the press, blaming the “armchair rhetoric” of columnists and pundits for the worsening relations between the police and the communities they serve.  Here’s the email:

To all arm-chair judges:

If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm’s way for the public good.

It is mystifying to all police officers to see pundits and editorial writers whose only expertise is writing fast-breaking, personal opinion, and who have never faced the dangers that police officers routinely do, come to instant conclusions that an officer’s actions were wrong based upon nothing but a silent video. That is irresponsible, unjust and un-American. Worse than that, your uninformed rhetoric is inflammatory and only serves to worsen police/community relations.

In the unfortunate case of former tennis pro, James Blake, — who was clearly but mistakenly identified by a complainant — there certainly can be mitigating circumstances which caused the officer to handle the situation in the manner he did. Do they exist? Frankly, no one will know for sure until there is a full and complete investigation. That is why no one should ever jump to an uninformed conclusion based upon a few seconds of video. Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.

The men and women of the NYPD are once again disheartened to read another the knee-jerk reaction from ivory tower pundits who enjoy the safety provided by our police department without understanding the very real risks that we take to provide that safety. Due process is the American way of obtaining justice, not summary professional execution called for by editorial writers.


Patrick J. Lynch

Here’s where that’s coming from:

  1. Last week, retired tennis player James Blake was at the entrance to the (very nice) Grand Hyatt hotel in midtown Manhattan, waiting for a car to take him to an appearance at the U.S. Open. Out of the blue, an armed man in a white t-shirt, jeans, and sneakers attacked him, shoved him against the wall, then twist-slammed his body face-down onto the pavement.
  2. The armed attacker was a police officer, James Frascatore, who mistakenly thought Blake was a suspect in a credit card fraud. Frascatore did not identify himself as a police officer until after Blake was in handcuffs.
  3. Video of the attack surfaced (seen here). Frascatore was widely criticized for excessive and unnecessary force, word spread that he’s had a long record of overdoing it.
  4. To stem the public-relations disaster, Frascatore was placed on desk duty while an investigation could proceed.
  5. The public-relations disaster only got worse, with Blake calling for Frascatore to be fired, and many thought leaders joining in that wish.
  6. Lynch is now responding to all that, saying that it’s too soon to judge Frascatore, we shouldn’t jump to conclusions until we know the whole story, he deserves the benefit of the doubt because police officers have a dangerous job, the people calling for him to be fired enjoy the benefits of policing without the wisdom that comes from understanding what police officers risk, and that Frascatore deserves due process before being tarred as an offender.

A lot of people are going to knee-jerk dismiss Lynch’s email as a load of horseshit at best, and at worst a dangerous defense of a dangerous man that exemplifies the corruption of police unions and the thin blue line’s blind eye to evil within its ranks.

A lot of people are going to knee-jerk cheer Lynch’s email as a necessary breath of fresh air, a much-needed skewering of those who god knows why insist on attacking the freaking good guys, who give aid to the enemy by fanning the flames of anti-cop sentiment, those namby-pamby assholes who put good cops’ lives in danger to further their petty political points.

I’ll try not to be too knee-jerk here, but Lynch is wrong. He’s hypocritical, foolish, and wrong.


Look, nobody doubts that the police have a risky job. It’s nowhere near as risky as they sometimes think, with fewer cops being shot these days — despite there being far, far more cops and criminals on the streets — than there were more than half a century ago. (Sorry, that link was from 2013. They’re even safer now.) But the fact remains that police officers do sometimes, occasionally, rarely, get killed on the job. Even by people suspected of nonviolent crimes like credit card fraud.

You think I’m going to say that’s irrelevant. But it’s not. I’ll get to that in a moment.

But holy cow, the hypocrisy. Once again the refrain that “we can’t judge this officer until all the facts are in.” “Don’t rush to judgment.” “Don’t jump to conclusions based only on the evidence you’ve seen.” “Don’t ruin his reputation and career before he’s had the due process of a full and fair investigation.”

Oh, please.

When police officers start living by those maxims, maybe then they can expect to benefit from them. Rushing to judgment, jumping to conclusions based on limited evidence, is what cops do. It’s what they’re trained to do. It’s their blasted job description. And they immediately do their best to destroy the lives of those they’ve arrested, before any evidence is in, before any due process has even begun, by hauling their victims through perp-walks and holding press conferences specifically designed to condemn people who haven’t even been arraigned yet, much less been convicted.

Whenever a police representative makes any of these claims, you have my permission to vomit on their shoes in disgust.

That’s the hypocrisy, and it’s obvious. What’s the foolishness?

Lynch is foolish to attack the punditry in this way. The opinion writers and journalists of America have been the best friend of the police since forever. Including the lefty anti-establishment types who flocked to journalism after Watergate. Yes, them too. They’re the ones who made the police into heroes. It sure wasn’t the people on the street who actually interacted with cops and batons and TPF goons, and it certainly wasn’t the people safe in their offices and houses and dorm rooms whose only encounter with the police was a speeding ticket. It’s been the storytellers — the journalists, the screenwriters, the comic-book artists — who’ve reliably instilled the ideal of the noble police officer.

The exceptions used to be exceedingly rare, and only in reaction to exceedingly awful conduct.

What would a wise police establishment do? A wise establishment would co-opt these writers eagerly, and make sure that these rare exceptions were known to be exceptions, were disavowed as unpolicemanlike, and that real police officers neither behave that way nor tolerate those who do.

What the unions have consistently done, however, is to double down each time it happens. With every case of police brutality, the police back the wrongdoer. And each time they do that, the police themselves, turn the outcry, bit by bit, against the police themselves. By identifying with the wrongdoers, the police have gradually become the wrongdoer in many eyes. Some say the anti-police demonstrations in Ferguson last year marked a tipping point, and that anti-cop sentiment is becoming systemic. But they said that after Amadou Diallo, after Abner Louima, after Rodney King, a generation ago, and it never really snowballed. But if we are at a tipping point or near one, how much wiser to stop it by co-opting the opinion makers? Not antagonizing them and proving to them that everything they suspected and feared is in fact true.


Video is not the policeman’s friend, necessarily. It’s easy enough to edit out the bits that show the threat a police officer was reacting to, to make his reaction look senseless and out of the blue. There are plenty of videos making the rounds that do just that. It’s unfair when that’s all we see, and yes when we jump to conclusions based on such videos we jump to the wrong conclusions. But the solution to that is not the same old doubling down, locking arms, and spouting the same mindless defense of wrongdoing and hypocrisy. That only breeds more skepticism and cynicism. The correct thing to do is provide the rest of the facts, so the public knows not only what’s what, but also that someone tried to manipulate them. People don’t like that. You can do this without undermining an officer’s legal defense. He doesn’t have to say a word on camera. That’s what you union mouthpieces are for, right?

Video is also not always the policeman’s friend when viewed by an untrained eye. You officers on the job right now, how many videos have you seen of a justified shooting, where it all happened too fast or at the wrong angle for the camera to pick up on the gun? Happens all the time. Joe Public sees a video of a cop shooting an unarmed man for no reason. But if you defend the bad shootings along with the proper ones, how is he to know?


As Radley Balko recently wrote, “Once again: There is no ‘war on cops.’ And those who claim otherwise are playing a dangerous game.


So what about the danger, then?

Police training and experience can be pretty dysfunctional. In fact, it’s amazingly similar to the socialization and experience that trains street thugs to behave the way they do.

You take a kid being raised in the inner city by a young, uneducated, single mom. Surround him with those who would hurt him or take advantage of him. He learns not to trust the people around him to have his best interests at heart. When someone tries to make him do something, the best response may well be to deny that person any authority over him, to fight back. The world is a dangerous place, in which he must assert himself forcefully if he is to survive. The other guy doesn’t count. All that counts is getting home okay, and if he can make a little money all the better. [For more on that, read this (or listen to the authors’ Freakonomics podcast or this unrelated Ted talk), or pick up any recent textbook on delinquency.]

In the Academy, police are trained that they are surrounded by those who would hurt them or take advantage of them. On the street, they deal almost exclusively with the violent, the broken, the unpredictable. They very rarely get asked directions by kids out of a Norman Rockwell painting. They learn to assert their authority immediately and forcefully. Otherwise a perp might fight back, and they might get hurt. The perp doesn’t count. All that counts is getting home okay, and if the officer can make a little overtime along the way, all the better.

Dysfunctional? You bet.

But that explains why Frascatore did what he did.

You or I or James Blake can look at the arrest of someone like, say, James Blake, and see a shocking unnecessary use of force. We wonder aloud “why didn’t he just show his badge, explain that Blake was suspected of a crime, and make the arrest peacefully, and only elevate the force used if — and to the extent that — the other guy first made it necessary?” (What, you don’t say sentences like that aloud?)

The dysfunction of a police officer’s training and experience explains why you or I might think that, but it would never even occur to an officer.

His automatic, learned behavior is to attack the suspect with overwhelming force and subdue him above all else. This may be perfectly rational when dealing with a violent or crazed thug. But when dealing with a perplexed honest citizen, the citizen’s confusion gets misinterpreted as resistance, and the officer’s reaction just gets worse.

This dysfunction is what Lynch is trying to defend when he accuses the punditry of ill-informed armchair quarterbacking. If they only knew the realities, they’d understand why this was no big deal, why this was understandable and indeed proper arrest behavior. (Hypocrisy, again. Somehow the police themselves have been granted a dispensation not to have to understand the behavior of those they are arresting.)

The solution, of course, is to think. To take a second and decide whether this person needs to be jumped with shouts of authority and a gun in his ear, or whether a discreet arm on the shoulder and a word in the ear might suffice. To take a second to figure out whether this well-dressed man at a swanky hotel is resisting your authoritah (do people still quote Cartman?) or whether he is in fact frightened and confused by an apparent armed assault.

It seems to work with violent anti-authoritarian inmates (see the above-linked study). Who knows, it might work with cops, too.

But what won’t work is more of the same knee-jerk hypocrisy and paranoia from the PBA.


*The Patrolmen’s Benevolent Association, which represents uniformed patrol officers. There’s a different union for uniformed sergeants, another one for detectives, and yet another one for lieutenants.

Undoing overcriminalization

Tuesday, March 31st, 2015

So I saw this opinion piece in USA Today by Glenn Harlan Reynolds, titled “You Are Probably Breaking the Law Right Now: When lawmakers don’t even know how many laws exist, how can citizens be expected to follow them?” It joins a growing tide of public awareness about overcriminalization in the U.S. — especially at the federal level — and that’s a good thing. (It also joins a growing number of pieces that use bird feathers as their lead example of serious stupid crimes ever since my little comic on the topic went mildly viral back in 2012 — and that’s also a good thing.)

What struck me was that this was in USA Today, of all places — arguably the nation’s most accessible newspaper, with the broadest audience. It’s not the paper of snooty elites or masters of the universe — it’s Everyman’s paper. That means the word is starting to get out for real. Once the general population starts hearing about overcriminalization, and more importantly realizing that it can affect them personally — it’s only a matter of time before they start calling their congressmen to do something about it.

The time seems more ripe than ever. The past few years have seen a rapidly growing public awareness of police abuses. Something happened to the police while we weren’t paying attention, and now we’re all starting to see a nation filled with highly militarized police forces, police who see the rest of us as their adversaries rather than their masters, police eager to swipe our assets and make collars for dollars… and a realization that this excessive power is being used against “good guys” just as much as those bad guys nobody cares about. Add some basic familiarity with overcriminalization in this country, and you’re going to get a lot of people worried about militarized SWAT teams taking them down for crimes they didn’t even know they’d committed. (In other words, what’s already been happening for years.)

Awareness is necessary before anything can change, of course. So more articles like this (and podcasts and blog posts and hashtags and…) would be a good thing. Spread the word. And then maybe we’ll be able to make some headway. Maybe over a generation or two we might see some moderation of our criminal laws. Or who knows, maybe even take our foot off the accelerator of police powers a smidge? (It’s happened before, after all.) Maybe these could start to be realistic goals to shoot for!

Those were the initial musings I had when I first saw Reynolds’ piece today. But here endeth the serious part of this post, because my thoughts that immediately followed were just, well… silly.

I started to daydream. I imagined such a public outcry against too much police power, too many crimes on the books, and other abuses of the criminal justice system, that critical mass was reached. The tide turned. Progressive politicians who previously clamored to outlaw everything they didn’t like, now fought to shout loudest against the use of criminal law to punish human beings for mere civil and regulatory ends. Reactionary politicians who had once competed to look “tough on crime” by ratcheting up police powers and punishments, now vied with one another to deflate the excessive might of the State and protect individuals from unlimited government.

Far-fetched, I know. But it got worse.

A president was elected on a platform of total reform. Congress was tasked with completely overhauling the federal criminal code — throwing it all out and starting from scratch, eliminating everything that was duplicative, poorly thought out, vague, and stupid. Eliminating every regulatory crime created by the unelected bureaucrats, and requiring that only elected representatives could criminalize anything. Requiring a mens rea element for every offense. Standardizing the terminology and drafting of criminal statutes. Withholding federal funding from states and municipalities that failed to adopt policing reform grounded on the principle that police are civilians, and all the other civilians are on their same team, and most importantly requiring that there be zero financial incentive whatsoever — either to the officer or to the police department — to engage in any detention or seizure. And so forth and so on.

And the people rejoiced. Things got better.

Silly, right? Well, at least a guy can daydream. Now back to work.

[H/T Walter Olson]

Training and Experience

Thursday, December 4th, 2014

This has been another one of those years with a heightened awareness of police violence against unarmed black men. Awareness is a good thing. Understanding, however, is better. You can’t solve a problem until you know what the problem is.

The problem isn’t really racism, though. The problem is fear. These shootings don’t happen because the victim was black. These shootings happen because the officer was afraid.

The overwhelming majority of police officers, of course, will go their entire careers without ever pointing their weapon at another human being, much less shooting at one. Of the few officers who do pull the trigger, the majority are justified — they’re using deadly force to protect themselves and the public from deadly peril. That’s the norm. But some police shootings shouldn’t have happened — the victim wasn’t armed, and wasn’t posing a serious threat to anyone.

When those shootings happen, it’s because the officer was afraid. He saw danger where it didn’t exist. Maybe he panicked when the victim reached for his wallet. Maybe he was scared in a dark staircase and was suddenly startled by someone appearing out of nowhere. Maybe he wasn’t scared witless, but simply rationally assessed an indignant shouting person as being a vicious attacker. Either way, he pulled that trigger out of fear.

That fear is real. It doesn’t justify anything, however. Fear is the problem that needs to be solved. So where does it come from, and what can be done about it?


Police often use the phrase “training and experience” in court, to explain their judgment calls. “I suspected that the defendant was getting ready to rob that store, based on my training and experience.” “I determined that the substance he was selling was probably cocaine, based on my training and experience.” It’s a catchall phrase, but not a meaningless one. Training and experience, after all, are how any of us know anything. We know that 2+2=4 because we were trained in elementary school to do addition. We know that the sun rises every morning and sets every evening because we’ve experienced that every day of our lives.

Experience is stronger than training. I can lecture you until I’m blue in the face that the sky is red, but that’s not going to change what you already know from your experience, that the sky is blue.

This fear that police officers have comes from experience. It is ingrained in an officer’s brain from his lifetime of experience. His perception is that this kind of person, looking like that, behaving like that, in this kind of a situation, is probably a threat. Right or wrong, justified or not, that is what he’s learned. It’s what he instinctively knows. You can give sensitivity lectures until you’re blue in the face, but the only thing that’s going to change that perception is real-life experiences demonstrating that he doesn’t need to be afraid.

That’s important, because this fear is not something that can be intellectually or rationally changed. It’s purely unconscious. It’s coming from the unthinking part of the brain, before the thinking part ever gets involved. The emotional parts and ingrained memories of past experiences are saying “this is a threat,” and are pumping fight-or-flight signals all over the nervous system without any conscious control.

On top of that, the brain is unconsciously creating a perception based, not on what’s really going on, but on what it expects is probably going on, based solely on what that brain has experienced in the past. We don’t have much room for attention at any one time — our brains can only keep track of a handful of things at once, and the area of our visual focus is (astonishingly) no bigger than your thumbnail held out at arm’s length. Our brains create the illusion of a continuous experience, and of seeing all the things we think we see. And that’s what it is: an illusion. To do this, our brains fill in all the blanks with what’s probably there, based on the experiences we’ve stored. This happens without our awareness, without our control, and it happens constantly. We perceive what our experience expects to see.

And in the case of unjustified shootings, the police officer very often saw a threat where none existed because in his personal experience, that was a threatening situation.

It’s worsened when an officer’s experience is extremely limited. And it very often is. But it’s all he’s got to go on. Someone raised in a quiet suburb, who whose only experience with certain people has been of a violent or threatening nature, is going to know, based on his training and experience, that people like that are dangerous.

This fear can be racial — police officers are generally more likely to use violence against blacks and hispanics than against whites or asians. Even police officers who themselves are black or hispanic. But that doesn’t necessarily make it racist. And in fact race is less important than socioeconomic status — police are more likely to shoot at low-income, low-prestige individuals regardless of race. But that, too, doesn’t necessarily make it classist. It’s not blind racism or classism, but rather a prejudice based on limited life experiences. An officer may have a real prejudice that black people (say) are more likely to be dangerous than white people, and that poor people are more likely to be dangerous than middle-class or rich people.

We can spout statistics until we’re blue in the face again, that these prejudices do not in any way reflect reality, but that’s like telling him the sky is red. They reflect the officer’s reality, the only one he knows.

On top of that is the “us vs. them” mentality that many police officers can’t help but develop over time. Nobody’s on their side — the politicians whose rules the police are enforcing are the first to throw them under the bus if there’s ever any outcry. The citizens whose lives they’re protecting, for whom they’re risking their lives, call them names and march in outrage. The communities they police scream bloody murder when they don’t like what an officer did, but don’t utter a peep about the people in their communities who are killing children and driving businesses away. Nobody organizes marches against the criminals, against the real bad guys. The only people on their side are fellow cops. Not even prosecutors are really on their side. It doesn’t take long for an officer’s training and experience to prove to him that the citizens he serves are actually his opposition. And when any of us look at people as outsiders, we’re even less likely to notice individual differences. An officer who no longer sees himself as “one of us,” but rather sees any of us as “one of them,” is far more likely to rely on internal prejudice when assessing an individual. This is what we all do, by the way — it’s yet another unconscious function of our brains over which he have little or no control. Members of an “other” group just get lumped together into a stereotype, without much attention to individual differences.


Stereotype is the right word here, but not in the way it’s normally used. It means “the things our brains expect to see.” Most of the time, stereotypes are great — they’re a real survival skill without which we couldn’t function in a complex environment. “That car was coming right at me last time I saw it. It’s in my blind spot now, but it’s probably still coming this way. I’d better get out of its way.” In a panic situation, when there’s no time to think and assess, they’re a real time saver, as the T-shirt says. Your brain falls back on what it already knows, to determine what is probably happening, and what is probably the best thing to do about it. Most of the time, it’s right. Which is why you’re probably still alive to read this.

But sometimes instinctive reactions are tragically wrong. An inexperienced motorcyclist, for example, who suddenly needs to veer left, will do the obvious thing and steer the handlebars to the left. Which is unfortunately the opposite of what he needs to do, and so he goes down and slides into that oncoming truck. A more experienced biker, however, will have trained herself to overcome that instinct and do the counterintuitive thing — she pushes the left handlebar away from her, and veers to the left as she wanted.

Similarly, a police officer whose experience with certain people is limited can easily misinterpret a harmless situation as a dangerous one. Like the motorcyclist, the only cure is more experience.

Training helps a little bit, but it only goes so far. You can lecture to the inexperienced motorcyclist until your face assumes a certain hue, but he’s not going to believe it until he tries it. And it will take a lot of practice to make the counterintuitive decision the ingrained instinct. Similarly, you can give all the cultural sensitivity training you want, but for it to have any real effect the officer is going to have to see for himself that most people who look like that, talk like that, dress like that, live in that neighborhood, etc… most of them are okay. And he must gain enough experience to be able tell those few who are threats from the majority who aren’t.

That doesn’t come from a lecture. That comes from spending time in the community and getting to know the people. That comes with walking the beat with a more experienced cop who knows the people, who can share his knowledge and insights. That comes from giving police officers experience, not just of the criminal element, but of the community as a whole.

That’s hard to do. And it’s getting harder in recent years. Police are less and less likely to come from the communities they police, and cultural dissonance and misunderstanding are ever more likely. Community outrage against police is getting louder, and the “us vs. them” mentality is only getting stronger. Policing policies are less about understanding the community and making judgment calls, and more about arresting every infraction. Police are using more and more overwhelming force to ensure compliance with their commands and improve their chances of getting home safely. Cultural awareness has never been greater, and yet police officers have less opportunity to experience it firsthand than ever.

Giving officers the necessary training and experience is harder than ever. But it’s the only real solution.

Is Ray Kelly a Complete Idiot?

Monday, August 19th, 2013

As we all know, Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. This should have come as no surprise.

Our Fourth Amendment law forbids a police officer from stopping you without first having reasonable suspicion to believe that you are up to no good. Police officers were stopping people without any reason to believe they might be up to anything. That this was unconstitutional should surprise nobody.

Once you’ve been stopped, Fourth Amendment law forbids a police officer from frisking you without first having reasonable suspicion to believe that you are armed and dangerous. Police officers were frisking people without any reason to believe they might be armed. That this was unconstitutional should surprise nobody.

It is also unconstitutional for the government to single people out for this kind of treatment based on their race. Police officers were stopping and frisking Black and Hispanic people almost exclusively. On purpose. That this was unconstitutional should surprise nobody.

These were not the random errors of wayward officers, but institutionalized behavior directed and commanded by the police department. It was a program. That the NYPD has been given an injunction to knock it off should surprise nobody.

And yet Police Commissioner Ray Kelly has done nothing but act shocked and offended ever since.

Kelly made the rounds of TV news shows yesterday, angrily asserting Judge Scheindlin doesn’t know what she’s talking about, and claiming that this ruling is going to make violent crime go up. He argued firmly that the stop-and-frisk program is just good policing. It works. It’s effective. And now the NYPD can’t do it any more. It works. It’s effective. And so they should be allowed to keep doing it.

He firmly believes that, just because something is effective, the police should be allowed to do it.

This is the same guy who’s gunning for Secretary of Homeland Security. You thought you were living in a cyberpunk dystopia now? Just you wait until someone like him is in charge.


Forget whether he’s even correct that this is an effective policing strategy. (I already told you why it isn’t.) Let’s just, for the sake of argument, presume that stop-and-frisk actually worked to keep crime down.

That doesn’t mean the government should be allowed to do it. Effective does not mean constitutional.

The government is a mighty thing, with overwhelming power and force at its disposal. But one of the most beautiful things about America is that our government is constrained. It cannot use its might against you unless the Constitution says it can. There are plenty of things it might like to do, but it isn’t allowed to. (People being people, government folks will try to bend the rules or skirt them or even ignore them. Hoping nobody will notice, hoping nobody will say anything, hoping they’ll get away with it. Very often even believing they’re doing nothing wrong, and believing that in fact they’re doing the right thing. Still, the fact remains that they’re no allowed to do it.)

Of course there is a tradeoff. There’s always a tradeoff. If we gave the government unlimited power to snoop into our homes and search our persons, they would certainly catch a lot more criminals. If we took away the exclusionary rule and rules of evidence, they’d convict more of them, too. Ignore innocents wrongly convicted — let’s presume that the police would be inhumanly perfect about all this. It is a certainty that, without that pesky Bill of Rights, more wrongdoers would get punished, and more severely.

But we have decided that a lot of things are more important than catching and punishing criminals. Privacy is more important. Free will is more important. Fair hearings are more important. We as a society are willing to accept a certain level of crime — even violent and horrific crime — as a consequence of protecting these rights.

And so the government is forbidden from violating those rights, no matter how effective such a violation might be.

Kelly does not get this.

This is not rocket science. This is not obscure ivory-tower theory. This is a basic core principle every rookie police officer should know. Is Ray Kelly a complete idiot, here?


Kelly defends targeting Blacks and Hispanics because statistically, they commit a disproportionate amount of the crime in this city. And statistically, they do. But that doesn’t justify stopping individuals just because they happen to have been born into those groups.

Just as “effective” does not mean “constitutional,” the statistics of a general population don’t give you reason to stop that particular individual over there. His being Black does not give you reasonable suspicion. You need reasonable suspicion to believe that this guy is up to something. Ours is a system of individual justice. You need a reason to suspect this particular person, not a belief about people like him in general.

Again, this is stuff you learn your first week at the Police Academy. It’s pretty basic.

If the statistics showed that people of Italian descent committed a disproportionate amount of bribery, or that Jewish people committed a disproportionate number of frauds, would that give the police reason to target Italian or Jewish people just because of their heritage? Of course not. It would be as absurd as it would be abhorrent.

And yet that’s essentially what Kelly’s saying about the racial discrimination.

Does he not see how blatantly wrong this is?

Is he a complete idiot?


You sort of have to hope he is.

Because if he’s not an idiot, then he knows exactly what he’s saying. He knows exactly why he’s wrong. Not just intellectually wrong, but morally wrong and contrary to everything this country stands for. And he’s still saying it. Hoping to convince you he’s right. Hoping you’ll let him continue to have those powers.

Pray he’s only an idiot.

On the DEA’s Special Operations Division

Monday, August 5th, 2013

It should be clear by now that I’m no apologist for governmental overreach or law enforcement abuses. But after the news broke this morning about the DEA’s Special Operations Division, and everyone has been freaking out about yet another erosion of the Fourth Amendment, I feel like I ought to tone it down just a little bit. I have a little inside info here, because back in my days as a narcotics prosecutor, I dealt with them. (Don’t worry, I’m not going to divulge anything I shouldn’t.)

A lot of international drug trafficking takes place outside our borders, so the idea was to take advantage of intelligence data to make the drug war more effective. You just can’t use the intelligence  data in court. So SOD was formed as a way to make the information known, without compromising criminal investigations.

As reported, what the SOD does is get evidence from sources that can never see the light of day in court — usually from intelligence services here and abroad. Wiretaps conducted without regard to Title III because they’re not intended for criminal prosecution, top secret sources, and the like. If something comes up about some big drug trafficking — not at all uncommon to hear about in the intelligence world — then the SOD hears about it. Then they clue in law enforcement. It’s up to law enforcement to figure out how to gather the evidence legally. SOD’s involvement and its tips are rarely shared with prosecutors, and almost never with the defense or the courts.

So there’s a lot of understandable brouhaha that Obama’s eroding our privacy, the Fourth Amendment has been eroded even further, it’s unfair to the defense, this country’s going to hell in a handbasket, etc. People are concerned that law enforcement is “laundering” its evidence so it can use stuff that should have been inadmissible, and lying to everyone to cover it up.

First of all, this didn’t start on Obama’s watch. It got started under Clinton, back in ’94. And its existence has been fairly common knowledge in criminal law circles ever since. It’s even been reported on before.

Second of all, the whole “evidence laundering” thing isn’t quite accurate.

When I was dealing with them, back in the late ’90s and early ’00s, we in my office only half-jokingly called them “the dark side.” It was well understood that you couldn’t build a case off of their information. We’d never know where their information came from, for one thing. Without a source to put on the stand, the information couldn’t even be a brick in the wall of any case we wanted to construct.

And to be fair, the SOD folks themselves were very clear in their instructions: Their information was not to be used as evidence. It was only to help us figure out what we were looking at in an investigation, and let us know about other things we might want to be looking for. It was all along the lines of “how you gather your evidence is up to you, but you ought to know that this Carlos guy you’re looking at is part of a much larger organization, and his role is… and their shipment chain appears to have nodes here, here, and here… and your subject Gilberto over here is looking for a new local dealer.”

So what would you do? You’d realize Carlos wasn’t the top of the food chain, and start looking at your evidence in a different way, maybe change the focus of your investigation. And you’d pay more attention to traffic going to certain places. And you’d try to get an undercover introduced to Gilberto as his new dealer. You weren’t being spoon-fed evidence, but being clued in on where to look for it and what it might mean.

The Reuters article everyone’s citing quotes former DEA agent Finn Selander as saying “It’s just like laundering money — you work it backwards to make it clean,” in reference to a practice called “parallel construction.” He makes it sound like law enforcement obtained its trial evidence illegally, and then went back and tried to think up a way to make it look admissible. That would indeed be cause for much concern. And you’re kidding yourself if you don’t think that’s something police do on a daily basis.

But that’s not what “parallel construction” means. It means “dammit, I have this evidence that I cannot use. Is there another way to go get this evidence that is lawful? Why yes there is! Let me go do that now.”

So let’s say you know that a blue van with Florida plates XXX-XXXX will be going up I-95 this weekend, loaded with heroin in a variety of clever traps. But you can’t just pull it over because you can’t introduce that information in court for whatever reason. Instead, you follow it in a series of unmarked cars, until it makes a moving violation. Which is very likely to happen, no matter how careful the driver is (it’s practically impossible to travel very far without committing some moving violation or other). You now have a lawful basis to pull the van over. And a dog sniff doesn’t even count as a Fourth Amendment search, so out comes the convenient K-9. And tada! Instant lawful search and seizure, and the original reason why you were following him is not only unnecessary but irrelevant.

It doesn’t matter if the original reason you wanted to pull the van over came from the dark side or from an anonymous tip or from a hunch. It’s a legal stop, and the original reason doesn’t matter. This is a very common scenario in day-to-day law enforcement, and isn’t specific to the SOD.

Or think of this equally very common scenario: Someone inside an organization has given you probable cause to go up on a wire and to arrest a lot of people. But you don’t want that person’s identity to ever come out, or even raise any suspicion that there was ever an inside informant. So you get that guy to introduce an undercover. Who maybe introduces yet another undercover. And you only use information that the undercovers themselves develop to build your probable cause and build your case. The original informant’s identity need never be disclosed.

Those examples are parallel construction. It’s not about going back and laundering your evidence. It’s about going forward to gather it lawfully this time.

I’m not saying the dark side isn’t cause for concern. Law enforcement and intelligence are supposed to be two entirely different things. We have given the government amazing intelligence-gathering powers on the understanding that it won’t be used against our own citizens, and won’t be used for law enforcement. A very good argument can be made that the SOD program subverts that super-important limitation on government power.

But it’s harder to argue that it violates the Fourth Amendment or gets evidence in court that should have been inadmissible.

If you’re gonna complain about it, at least complain for the right reason.

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

Tuesday, July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?


It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.


First things first: It is (more…)

Drawing the Line

Friday, March 29th, 2013

Everyone knows that drunk drivers cause deadly car accidents. This is because alcohol impairs one’s ability to drive safely. So it is against the law to drive under the influence of alcohol.

Everyone knows that texting while driving causes deadly car accidents. This is because texting distracts your attention from driving safely. So it is against the law to text while driving.

Everyone knows that speeding causes deadly car accidents. This is because going faster than conditions and one’s ability permit make you unsafe. So it is against the law to speed.

And now West Virginia is looking to outlaw driving while wearing Google Glass. Because presumably having the internet in your heads-up display would distract your attention from driving safely.

Of course, these laws are all trying to prevent people from driving unsafely. So why not, instead of a whole jumble of laws dealing with specific causes of unsafe driving (and having to be written to deal with new, unforeseen causes), why not have a single law punishing… you know… unsafe driving?

Because these particular causes of unsafe driving are worse than any other? If you say so. But even then, they could just be grounds for enhanced penalties for violating the basic law. No need for separate laws.

The actual reason is that “unsafe driving” is a very subjective concept. It’s really an “I know it when I see it” kind of thing, not readily reduced to formulas. Different people have different abilities, physiologies, training, etc., so one person could drive safely with distractions/speeds/alcohol intake that would make another person a deadly menace. If all you’ve got is a cop who can testify that “this person was driving unsafely because of X Y Z,” when it’s not necessarily so that X Y or Z equal “dangerous, then you’re not going to get a lot of convictions.

And so we draw a line. Forget individual variations — as a matter of law, if you do X, Y or Z while driving, you are automatically a menace, and that’s that. The police officer doesn’t have to make a judgment call about whether you were actually unsafe. All he has to do is determine whether you did X Y or Z.  It’s so much easier to prove that you had crossed the line, than to prove that you were actually being unsafe.

Of course, this is overbroad and unjust. Because where we draw the line is arbitrary. Someone driving 70 is no more dangerous than someone going the limit of 65, but that’s where we drew the line.

Where we draw the line depends. For speeding, it’s sort of a lowest-common-denominator kind of thing: We pick a speed that, for this road, most drivers should be able to manage safely. And by “most drivers” we mean “poor drivers.” Because as a society we’ve decided that we’d rather make it easier to get a license, and we’re willing to accept a certain number of traffic fatalities per year in exchange for letting more people drive. So sure, there are plenty of people who could manage it safely at a higher speed, but they’re going to have to obey the same line drawn for everyone else.

For alcohol, it’s more a lobbying kind of thing: Victims and families of victims of drunk driving are understandably upset that people are committing reckless homicides and being treated like it was just oopsie an accident. So they lobby lawmakers to make driving with any alcohol in your bloodstream a crime. And over the years, the amount of alcohol required gets smaller and smaller, because who wants to lobby for the alternative? Who wants to be the guy pushing to make the law go easier on those killers? And so the arbitrary line keeps ratcheting down because nothing is there to prevent it.

For things like texting, it’s more of a zero-tolerance thing: We can’t ever know which text or other distraction is the one you could do safely or the one that would cause a pileup on I-70. So we just outlaw all of them. (If we were intellectually honest, we’d simply outlaw driving while distracted, which is the actual problem. But that would fill the jails with moms who were yelling at kids, people driving while furious after an argument, girls putting on makeup on the way to work, truckers eating tacos, and the like. And we don’t want to do that, do we?)

It’s not just traffic laws — the law is filled with examples of “bright line” rules. All are arbitrary. Some try to strike a balance, some are purely political, and some are unthinking zero-tolerance rules. But the lines have been drawn. And that’s the important thing.

The important thing is that the line is drawn somewhere. Because it’s not about justice. And it’s not about safety.

It’s about not having to make subjective decisions.

And now you know.

Better Criminal Lawyering through Smart Risk-Taking

Wednesday, March 28th, 2012

Judgment is the criminal lawyer’s stock-in-trade. The ability to assess the risks of a situation, and choose the better course of action, is the value that lawyers bring to the criminal justice system. It doesn’t matter if they’re defense attorneys negotiating a deal or fighting it out at trial, or if they’re prosecutors deciding whether and what to charge — their value is their judgment. The better the judgment, the better the lawyer.

It’s therefore critical that criminal lawyers have some understanding of how and why people take risks. In advising a client inclined to take a bad risk, the lawyer can’t really change that perception without knowing what’s causing it. And such an understanding also helps one spot one’s own inclinations to error before it’s too late.

This is not common sense. (In fact, common sense is usually the enemy here.) It’s insight. The ability to see how people act, and realize — aha! — why.

Fortunately for the rest of us, there are amazingly smart people out there who do that all day. When you find one with real insights about why people take the risks they do, you’re probably gonna want to listen.

That’s why we’re taking a moment to point you to Danny Kahneman (that’s his picture up there).

Who is Danny Kahneman, you ask. You’re not alone. If you’re not an economist, you can be forgiven for not knowing he won the Nobel Prize for basically inventing the field of Behavioral Economics. If you’re not a psychologist, you can be forgiven for not knowing he’s considered “one of the most influential psychologists in history, and certainly the most important psychologist alive today.” If you’re not a foreign-policy wonk, you can be forgiven for not knowing of his significant ideas on the evaluation of risks in wartime. He’s one of the most insightful and relevant people nobody’s ever heard of.

As it happens, a lot of his insights are directly relevant to the practice of criminal law. Trying to decide the likely outcome of that trial? You’re probably (more…)

Making Drug Enforcement Work

Friday, March 2nd, 2012


Tomorrow’s issue of the Economist has a brief piece on some new drug policing in Virginia: “Cleaning Up the Hood: Focusing on drug markets rather than users means less crime.” The article is on DMI, or Drug-Market Intervention, a law-enforcement strategy that has been spreading around the country since it was first introduced in North Carolina about eight years ago.

DMI is a combination of community involvement and police commitment that focuses on street dealers. The community is encouraged to report dealers. Police then notify the dealers that they know who they are, but promise not to arrest them if they take part in an intervention. The dealers are confronted with community leaders who show them what their dealing is doing to the community — and who promise to help them change their ways if they’re willing. The dealers are given a second chance. Meanwhile, the police increase their presence in the area, and those caught dealing now get locked up. Quick police response and community involvement increases people’s willingness to report dealers, and a cycle begins.

Law enforcement has long known that you don’t eliminate a drug problem by going after demand — addicts and users are too numerous, and no matter how many you lock up they just keep coming. Meanwhile, street dealers continue to operate, destroying the safety and livability of the community. The addicts they attract, the nastiness they inflict, the violence they commit, and the fear they instill all combine in ruinous ways, engendering more crime and blight.

Buyers are easy to arrest, though, and if a police force is going to be judged by its arrest numbers rather than actual results (as politicians are wont to do), then there is a strong temptation to arrest the users. Not only does this do nothing to stop the dealing problem, the users are typically charged with modest possession offenses that put them right back out to buy again.

Drug courts and similar diversion programs do actually work wonders with helping users break their drug habits and overcome the life-skill deficits that often led to them. But those programs are typically reserved for those charged with crimes to begin with, many times only those charged with felony possession, and of those only the defendants who are likely to succeed in the program to begin with. They’re great, but they don’t solve the underlying problem.

These DMI initiatives recognize that, like so much else in society, it is (more…)

Is Open File Discovery a Cure for Brady Violations?

Tuesday, February 28th, 2012

Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.

This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.

Yeah, but …

Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.

Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.

In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.

Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)

The proper concern is whether (more…)

When Incarceration Shot Up and Crime Plummeted

Tuesday, January 24th, 2012

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.


Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was (more…)

Statistics and the Serial Killer

Monday, January 16th, 2012

Andrei Chikatilo was serial killer who murdered at least 56 young women and children starting in 1978 until his capture in 1990. The details are as bad as one might expect, and apparently the murders and mutilations were how he achieved sexual release. His killings seemed unpredictable to investigators at the time, and even in retrospect there appears to be no clear pattern.

Now, however, UCLA mathematicians Mikhail Simkin and Vwani Roychowdhury have published a paper where they see not only a pattern, but one that is meaningful to those who might want to stop other serial killers. In their paper, “Stochastic Modeling of a Serial Killer,” published a couple of days ago, Simkin and Roychowdhury discovered that the killings fit a pattern known as a “power law distribution.” One of many kinds of statistical distribution (the bell curve being another), power law distributions are often found for out-of-the-ordinary events like earthquakes, great wealth, website popularity and the like.

First, they looked at a timeline of his killings. They saw apparently random periods of inactivity. Each time Chikatilo started killing again, however, the next murder would come soon after. And the one after that even sooner. And so on and so on until the next period of no killing.

The study doesn’t take account of the reasons for two of the longer pauses — Chikatilo’s first arrest and detention on suspicion of being the killer, and the period where the media started reporting on the investigation — but the reasons aren’t important. What’s important is being able to make some kind of sense out of the seemingly random events.

What they noticed was that, when these ever-increasing murders were plotted on a logarithmic scale, they came out in almost a straight line — indicating the possibility that a power law might be at work here. What’s more than that, they noticed that the curve’s exponent of 1.4 was pretty darn close to the 1.5 found for the power curve of epileptic seizures. What if (they wondered) the killings fit a neurological pattern? What if, like epileptic seizures, psychotic events like these killings came about when an unusually large number of neurons in the brain started firing together?

So they plugged in some givens of what is known about how neurons work, modeled on how epilepsy works. They made the model a little more realistic — seizures come unbidden when the conditions are met, but killers probably need some time to plan once their brain is ready for the next attack. Then they ran a simulation.

The simulated probabilities for the length of time between murders tracked the real-life data almost perfectly.

In other words, if you know when the last murder took place, you can calculate the probability that another killing will happen today. And the more time has passed since the last one, the less likely another will happen.


Fascinating stuff, but so what? The so what is that (more…)

“Collars for Dollars” Plus “Occupy Wall Street” Equals What?

Friday, November 18th, 2011

The Facebook post above was posted to Reddit earlier today.  We don’t know if this is an accurate copy or not, the internet being what it is, but it’s close enough to what we’ve heard actual officers say that it is useful to illustrate a couple of points.

First, the whole “Collars for Dollars” mentality we’ve mentioned before. In short, the NYPD is a unionized labor force, whose workers get paid a base salary plus overtime. The base salary is barely sufficient to meet the expense of living in NYC (so many cops choose to live pretty far away from the city, cutting any ties to the communities they police, with attendant consequences). The way for an officer to make some real money is by working overtime.  That lovely, lovely overtime is what pays for their mortgages, their kids’ schools and the occasional night on the town. The way to make overtime is either (1) by making arrests or (2) working a “detail.”

Arrests generate overtime because, at the end of one’s shift, one gets to stay at the precinct for many more hours filling out the reams of attendant paperwork, securing evidence, and helping a prosecutor draft the various complaints. If any of the collars were for felonies, ideally they have been timed so that the resulting grand jury presentation will be held on the cop’s regular day off — RDO for short — which gives the cop 8 hours of overtime even if he only showed up at the DA’s office for half an hour.

Details are out-of-the-ordinary assignments where an event requires extra police to provide security, police not otherwise assigned to a normal duty — police working overtime or on their RDO. Details can range from providing a police escort for a visiting dignitary, to lining the streets for a parade, to dealing with an unruly mob. Details are a great source of overtime.

You see this in the Facebook discussion, which appears to include more than just one NYPD officer. The original poster is on his RDO, and he’s hoping the OWS protesters start acting up so he can get called in to do a double tour and get 15 hours of overtime pay (for getting the chance to hit some protesters). Another jokes that he hopes they don’t start rioting until his shift starts that night, presumably so he can maximize his overtime.

There’s nothing wrong with police officers joking about stuff that, to the rest of us, might sound obscenely offensive. It is often a tough job, often horrific, and black humor is how people of all walks of life deal with such things. The post about pretending to be a protester, shoving people from the inside, shouting invective, and leaving a BB- or paintball- gun behind? That one’s probably a joke (although — and probably because — such things have been known to happen).

But there are other wishes expressed here which, though certainly cathartic, are probably more sincere. The desire to “rock,” or get physically violent with a protester, comes out strong here. Why? Because the protesters are the enemy.

That’s our second point: To the police, it’s “Us against Them,” and (more…)