In Scathing Dissent, Justice Sotomayor Says Supreme Court Ju

The progress from Western colonial global expansion, and the construction of American wealth and industry on the backs of enslaved Blacks and Native peoples, followed by the abrupt "emancipation" of the slaves and their exodus from the South to the Northern cities, has led us to our current divided society. Divided by economic inequities and unequal access to social resources, the nation lives in a media dream of social harmony, or did until YouTube set its bed on fire. Now, it is common knowledge that our current system of brutal racist policing and punitive over-incarceration serves the dual purpose of maintaining racial prejudice and the inequities it justifies. Brief yourself on this late-breaking development in American history here.

Re: In Scathing Dissent, Justice Sotomayor Says Supreme Cour

Postby admin » Sat Jun 25, 2016 1:58 am

Ferguson Averages 3 Warrants Per Household, New Report Shows
by Emily Thomas
08/22/2014

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Michael Brown’s death is currently one of the main sources of tension between police and civilians in Ferguson, Missouri. But a new report may give the city’s residents even more cause to be angry; it suggests Ferguson’s municipal courts are targeting lower-income African-American residents to turn a profit.

The report from ArchCity Defenders — a legal group that “works to break the cycle of ‘revolving door justice’ in the St. Louis metropolitan area” — reveals that in 2013, “the Ferguson Municipal Court disposed 24,532 warrants and 12,018 cases, or about 3 warrants and 1.5 cases per household.”

In Ferguson, the “majority (67%) of [the city’s 21,203] residents are African-American” and “22% of residents live below the poverty level,” the report mentions before going on to say:

Despite Ferguson’s relative poverty, fines and court fees comprise the second largest source of revenue for the city, a total of $2,635,400 [...] According to a court employee, the docket for an average court session may include as many as 1,500 cases. Assuming an 80% conviction rate, the average fine in a case resulting in a guilty verdict would be $275.

In addition to such heavy legal prosecution, Ferguson and other municipal courts engage in a number of operational procedures that make it even more difficult for defendants to navigate the courts. For example, a Ferguson court employee reported that the bench routinely starts hearing cases 30 minutes before the appointed time and then locks the doors to the building as early as five minutes after the official hour, a practice that could easily lead a defendant arriving even slightly late to receive an additional charge for failure to appear.


The group set out to examine how the court system in St. Louis County treated its clients after some complained of harassment, mistreatment and jail time for failure to pay fines. While ArchCity Defenders acknowledged that a majority of the 60 municipal courts analyzed treated clients well, it found Ferguson was among the “chronic offenders.”

Ferguson is the site of racial tension and civilian clashes with police, following the killing of unarmed teen Michael Brown on Aug. 9 by police officer Darren Wilson. Data from ArchCity Defenders suggest Ferguson officials and police may have more explaining to do relating to the city municipal courts’ hefty caseload and the racial implications tied to it.

According to the report, in Ferguson, 86 percent of traffic stops involved a black motorist; by comparison white motorists comprised 12.7 percent of vehicle stops. What’s more “after being stopped in Ferguson, blacks are almost twice as likely as whites to be searched (12.1% vs. 6.9%) and twice as likely to be arrested,” the report states.

“I can’t tell you what’s going on in the mind of a police officer but, in the mind of my clients, they’re being pulled over because they’re black,” Thomas Harvey, executive director and co-founder of ArchCity Defenders, told Vox. “They’re being pulled over so the city can generate revenue.”

An unnamed defendant in ArchCity Defender’s report echoed that sentiment: “In Dellwood, Ferguson, basically in North County, if you’re black they’re going to stop you.”

Alex Tabarrok, a professor of economics at George Mason University, says ArchCity’s findings are the result of the city police’s tendency to make “bullshit arrests.”

In a blog for Marginal Revolution he writes, in part: “You don’t get $321 in fines and fees and 3 warrants per household from an about-average crime rate. You get numbers like this from bullshit arrests for jaywalking and constant ‘low level harassment involving traffic stops, court appearances, high fines, and the threat of jail for failure to pay.’”

Mother Jones’ Kevin Drum asks a question about the system that has yet to be answered: “Why?”

“Why are police departments allowed to fund themselves with ticket revenue in the first place? Or red light camera revenue,” writes Drum. “Or civil asset forfeiture revenue. Or any other kind of revenue that provides them with an incentive to be as hardass as possible.”
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Re: In Scathing Dissent, Justice Sotomayor Says Supreme Cour

Postby admin » Sat Jun 25, 2016 2:00 am

1 In 3 Black Males Will Go To Prison In Their Lifetime, Report Warns
by Saki Knafo
10/04/2013

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One in every three black males born today can expect to go to prison at some point in their life, compared with one in every six Latino males, and one in every 17 white males, if current incarceration trends continue.

These are among the many pieces of evidence cited by the Sentencing Project, a Washington, D.C.-based group that advocates for prison reform, in a report on the staggering racial disparities that permeate the American criminal justice system.

The report was submitted to the U.N. Human Rights Committee this week in advance of the U.N.’s review of American compliance with the International Covenant on Civil and Political Rights later this month. It argues that racial disparity pervades “every stage of the United States criminal justice system, from arrest to trial to sentencing.”

“Racial minorities are more likely than white Americans to be arrested,” the report explains. “Once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.”

The report’s findings lead its authors to conclude that the U.S. is violating the International Covenant on Civil and Political Rights, which states that all citizens must be treated equally under the law. The U.S. ratified the treaty in 1992.

Central to the report’s argument is the simple fact that African-American and, to a lesser extent, Hispanic men, are more likely to spend time behind bars than their white counterparts, according to recent data from the U.S. government.

The reasons for this discrepancy are widely debated, but the report discourages readers from blaming either the higher-than-average crime rate among blacks and Latinos in the U.S. or the presence of deliberate racism in the criminal justice system.

While those factors may contribute to the problem, the reasons go much deeper, the report contends.

The problem begins with police activity. According to Justice Department data cited in the report, police arrested black youth for drug crimes at more than twice the rate of white youth between 1980 and 2010, nationwide. Yet a 2012 study from the National Institute on Drug Abuse found that white high-school students were slightly more likely to have abused illegal drugs within the past month than black students of the same age.

Blacks are also far more likely than whites to be stopped by the police while driving. The Sentencing Project report largely attributes the racial disparities in both traffic and drug arrests to “implicit racial bias” on the part of the police.

“Since the nature of law enforcement frequently requires police officers to make snap judgments about the danger posed by suspects and the criminal nature of their activity, subconscious racial associations influence the way officers perform their jobs,” the report contends.

The disparities don’t end with arrests. Because blacks and Latinos are generally poorer than whites, they are more likely to rely on court-appointed public defenders, who tend to work for agencies that are underfunded and understaffed. In 2012, according to the U.S. Government Accountability Office, more than 70 percent of public defender offices reported that they were struggling to come up with the funding needed to provide adequate defense services to poor people. By last March, the problem was so bad that Attorney General Eric Holder declared the public defense system to be in a “state of crisis.”

Racial disparities within the justice system have been exacerbated by the war on drugs, the report argues. The drug war led the country’s population of incarcerated drug offenders to soar from 42,000 in 1980 to nearly half a million in 2007. From 1999 to 2005, African Americans constituted about 13 percent of drug users, but they made up about 46 percent of those convicted for drug offenses, the report points out.

Marc Mauer, director of the Sentencing Project and an author of the report, said he’s optimistic that the country’s criminal justice policies are starting to change. “There’s much that needs to be done, but we haven’t seen this much progress around these issues in quite some time,” he said.

He mentioned the Justice Department’s recent decision to scale back the war on drugs and a series of bipartisan state laws aimed at reducing harsh prison sentences for low-level drug offenders.

The report offers 10 specific steps that the U.S. could take to cut down on such disparities, including fully funding the country’s public defenders, prohibiting law-enforcement officials from engaging in racial profiling and establishing a commission to develop recommendations for “systemic reform” of the country’s police bureaus and courts.

Whether the U.N. review could contribute to these changes isn’t clear. Even if the U.N. finds the U.S. to be in violation of the treaty, the range of repercussions is essentially limited to scolding.

Still, Mauer said, “It’s a question of making a moral statement.”
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Re: In Scathing Dissent, Justice Sotomayor Says Supreme Cour

Postby admin » Sat Jun 25, 2016 2:08 am

The First Day of the New Supreme Court: Without Antonin Scalia on the bench, the court’s liberals spoke up and won out.
by Mark Joseph Stern
February 23, 2016

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What happens when a police officer breaks the law? The cynical answer is, usually nothing. But since at least 1963, the legal answer has been very specific: Any evidence an officer collects by breaking the law must be excluded from the courtroom. This “fruit of the poisonous tree” doctrine is a component of the beloved, despised exclusionary rule, which typically bars evidence gathered in violation of the Fourth Amendment. Although conservative Supreme Court justices have chipped away at the exclusionary rule for decades, it remains a cornerstone of search-and-seizure jurisprudence. Law enforcement officers don’t get to enforce the law by breaking it.

Pondering how far the fruit has to be from the tree to cease being poisonous can be an amusing philosophical exercise. But, as Justice Sonia Sotomayor demonstrated during oral arguments in Utah v. Strieff on Monday, in impoverished minority communities like Ferguson, Missouri, the continued vitality of the exclusionary rule is no mere academic matter.

On first blush, you might expect Strieff to be an easy case. Detective Douglas Fackrell violated the Fourth Amendment when he stopped Edward Strieff; Fackrell, Strieff, and Utah all agree on that point. The detective had heard an anonymous tip that a house in South Salt Lake might be involved in “narcotics activity,” and over the course of sporadic surveillance, he noticed visitors entering and exiting quickly. When he saw Strieff leave the house on Dec. 21, 2006, he detained him and demanded identification. Fackrell ran a warrants check and discovered that Strieff had an outstanding warrant for a minor traffic violation. So he arrested and searched him, discovering methamphetamine in Strieff’s pockets.

One problem: The Fourth Amendment prohibits unreasonable searches and seizures. Fackrell’s search of Strieff’s pockets was probably legal. (To ensure their own safety, officers can generally search arrestees.) But Fackrell’s initial detainment of Strieff—in constitutional lingo, a “seizure of a person”—was not. At a minimum, officers must have individualized reasonable suspicion to stop and question somebody, even briefly. All parties agree that Fackrell did not have reasonable suspicion to detain Strieff after merely seeing him leave a house that might contain drugs. The seizure led to the search; the search led to the drug discovery. Under the exclusionary rule, then Strieff gets to suppress the evidence and walk free. Right?

Not quite, because the Supreme Court has created an “attenuation” exception to the rule. Under attenuation doctrine, evidence discovered through police misconduct is still admissible if the link between the police illegality and the evidence itself has been sufficiently weakened, usually by time or interceding events. But the court has failed to explain how much time must pass, or which events must occur, before illegally obtained evidence becomes legal once again. In 1975, the justices focused on the “temporal proximity” between the police illegality and the discovery of the evidence (how much proximity?); the presence of “intervening circumstances” (which ones?); and the “flagrancy” of the official misconduct (a curveball with no relation to the other two factors). More recently, the court has switched tacks and decided that attenuation kicks in—and evidence becomes admissible—if suppressing the evidence would fail to serve any deterrent purpose.

Some courts have interpreted these factors quite generously—including the Utah Supreme Court, which sided with Strieff and suppressed the evidence against him. When the U.S. Supreme Court agreed to review that decision, court-watchers assumed that the conservative bloc would continue its campaign against the exclusionary rule by broadening the attenuation doctrine. It could do so here by ruling that the discovery of evidence was sufficiently attenuated from the illegal seizure because of the intervening discovery of an arrest warrant. But that was back when Justice Antonin Scalia, noted exclusionary rule skeptic, was still on the bench. (Scalia once asked, “Why don’t we just abolish the exclusionary rule?” It wasn’t clear that he was kidding.) Following his death last Saturday, the justices appear to be deadlocked, 4-to-4, on Strieff’s case and maybe the exclusionary rule itself.

Arguments begin with a bang, as Tyler Green, representing Utah, attempts to persuade the court that there was a clear attenuating circumstance here: Fackrell discovered an arrest warrant for Strieff, thereby breaking the chain of causation between his illegal conduct and his discovery of the evidence. Green wants the court to adopt a general rule that once an officer has discovered an outstanding arrest warrant, the “taint” of his initial illegality dissipates. Sotomayor jumps in.

“If we announce your rule,” she asks Green, “what stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through—and if a warrant comes up, searching them?”

Green answers weakly that “an officer can never count on finding a warrant, so there is no incentive to make that stop.” Sotomayor hits right back.

“If you have a town like Ferguson,” the justice says, referring to the Missouri city with a documented history of predatory policing, “where 80 percent of the residents have five minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen: Give me your ID. Let me see your name. And let me hope, because I have an 80 percent chance that you’re going to have a warrant.”

Everyone in the courtroom, including Green, looks a little stunned that Sotomayor went there. (Green, at least, should’ve seen it coming: Strieff’s brief heavily cites the Department of Justice’s investigation of the Ferguson Police Department.) Justice Elena Kagan leans forward with a mischievous grin to hammer home Sotomayor’s point.

“If you’re policing a community where there is some significant percentage of people who have arrest warrants out on them,” she tells Green, “it really does increase your incentive to make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gained in that search.”

Kagan and Sotomayor make a compelling argument: If officers can justify an illegal seizure whenever the individual they detain turns out to have an arrest warrant, then there’s little stopping them from detaining whomever they want. Deterring police from engaging in this kind of unlawful activity is a fundamental justification for the exclusionary rule itself. So shouldn’t the court rule that an outstanding arrest warrant can’t justify an illegal seizure?

Predictably, Justice Samuel Alito hops in to defend Utah, pointing out that most communities aren’t like Ferguson, and most people don’t have outstanding arrest warrants. Kagan pushes back, noting that the police are more likely to stop individuals in high-crime neighborhoods. When Joan Watt approaches the bench to defend Strieff, it seems as though she is inserting herself into a late-night dorm-room debate between Kagan, Sotomayor, and Alito. Watt reiterates the point that Utah’s proposed rule would encourage officers to detain anybody, even without an iota of suspicion.

“There is a downside,” Alito insists. “If the officer makes an illegal stop, the officer exposes himself or herself to all sorts of consequences!” You can sense Sotomayor struggling not to roll her eyes. Police rarely face consequences when they shoot innocent civilians. Does Alito really think they’ll get in big trouble for detaining somebody unlawfully for a few minutes?

Chief Justice John Roberts wades in with a nettled grimace to point out that most Americans don’t have arrest warrants, so the police don’t have an incentive to go on what Watt calls a “fishing expedition.” (Roberts seems increasingly irritated throughout the morning. Perhaps it finally dawned on him that his 5-4 majority against the exclusionary rule has gone up in smoke.) Watt, projecting an aura of stoic patience, calmly explains that officers “can still target communities that may have a greater incidence of warrants.” (She means minority communities.) Roberts has no good response.

By this point, the battle lines are clear. The court’s liberals think that Utah’s rule would give officers a new reason to stop anybody and run a warrant check: If a warrant turns up, the illegality of the initial stop will be dissolved, and the officer can search his arrestee. Thus, to deter this behavior, the court should refuse to extend the attenuation doctrine. The conservatives, on the other hand, doubt that officers target communities where people have lots of arrest warrants, and doubt that applying the exclusionary rule here would deter police misconduct.

This dispute leads to the most searing and uncomfortable moment of the morning. Alito attempts to ridicule Watt’s deterrence arguments by asking, “Do you think the judges in traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people?”

Watt starts to answer, but Sotomayor cuts in with a brutal joust.

“I’m very surprised,” she says acidly, “that Justice Alito doesn’t know that most of these warrants are automatic. If you don’t pay your fine within a certain amount of days, they’re issued virtually automatically.”

It is one of those knockout moments so ruthless that you aren’t sure whether to cringe or cheer. Sotomayor is essentially calling out Alito’s privilege—why would he know about corrupt, scammy, racist policing?—and Alito doesn’t even attempt to respond. Instead, he wears an embarrassed smirk throughout the remainder of arguments, appearing appropriately shamed.

By the time the justices file off the bench around noon, it seems probable the court will indeed divide 4-to-4, liberals against conservatives, on Strieff. That will leave the Utah Supreme Court’s pro-exclusion ruling in place, but fail to establish any nationwide rule. It would also represent one small conservative revolution thwarted.

When Scalia died, court-watchers noted that his absence would forestall impending victories against unions, affirmative action, and voting rights. Less commented upon was the fact that the justice’s death also granted a reprieve to the Warren Court’s biggest contributions to defendants’ rights. The era of conservatives merrily hacking away at Fourth Amendment safeguards appears to be over. And Sotomayor’s aggressiveness on Monday suggests that, in the long run, she believes her side has the winning hand.
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