Category Archives: Criminal Justice Reform

A Few Thoughts About the Ryan Fredrick Case

The long and short of the case is that three days after his home was broken into, Fredrick fatally shot an intruder who turned out to be a police officer. Fredrick promptly surrendered to the police once he realized the intruders were in-fact a SWAT team serving a warrant (a very small amount of marijuana was found in Fredrick’s home). The jury considered several charges including capital murder but ultimately decided Fredrick’s actions amounted to voluntary manslaughter and recommended a 10 year sentence.

Rather than rehashing the Ryan Fredrick case here, I would encourage readers to read the coverage by Hamptonroads.com , Tidewater Liberty and Radley Balko .

The police department did not believe the sentence to be harsh enough:

For the Shivers family and the Police Department, the verdict did not provide closure.

“Closure?” said Jack Crimmins, president of the Chesapeake Coalition of Police. “There’s no closure.”

“Their verdict today has jeopardized the lives of police officers,” Crimmins said. “I think the jury failed. They failed the community. You’ve got a man involved in an illegal enterprise, the police come to his house, and he takes the matter into his own hands.”

Funny that Crimmins chose the term “illegal enterprise.” This description is more appropriate for the way this police department chose to circumvent the Fourth Amendment by allowing a known criminal to break into Fredrick’s home to obtain probable cause to search the home in the first place! Most of the case made against Fredrick was from testimony of jailhouse snitches and informants of very questionable character.

And this notion about a homeowner who “takes the matter into his own hands” when someone breaks into his home is especially infuriating. Mr. Crimmins, it’s called the castle doctrine , perhaps you’ve heard of this concept? It’s not exactly new.

When a civilian makes a mistake and kills a police officer, it’s almost always assumed that s/he must “pay the price” but what happens when the shoe is on the other foot? When a police officer makes a mistake and kills a civilian, the badge worshipers and law enforcement boot lickers come up with a statement like this:

A jury verdict that cleared a police officer in the drug-raid shooting death of an unarmed woman will allow other officers to do their job without hesitation, police union officials said.

Officers throughout the state closely watched the trial, fearing that a guilty judgment would have changed how they react in the line of fire.

[…]

During the trial, a Columbus SWAT officer and a retired FBI agent both testified that Chavalia had no choice but to shoot because he thought his life was in danger. They also said Chavalia should have fired sooner.

So when a civilian believes his or her life is in danger, he or she must be certain of who s/he is targeting but when a police officer believes s/he is in danger, s/he can “shoot now and ask questions later”? What’s particularly galling about this is that in statements in both cases, the lives of law enforcement are of paramount concern as the lives of civilians is of little or no concern.

This is but another illustration of how the government has the one power the rest of us don’t: the monopoly of the use of force to accomplish its goals. The War on (Some) Drugs is a means to an (impossible) end (eradication of banned drugs). If non-violent individuals are killed in the process, its considered collateral damage. The War on (Some) Drugs must be won at all costs!

With respect to Ryan Fredrick, his fate is in the hands of a judge (the judge will decide whether or not to impose the jury’s recommended sentence), but what now? How can we prevent these tragedies from happening? Tide Water Libertarian Party has offered some excellent suggestions:

In the months since the tragic death of Det. Jarrod Shivers in the course of serving a search warrant at the home of Ryan Frederick, many questions have arisen regarding procedures of the Chesapeake Police Department. These questions have gone unanswered by the department. The Tidewater Libertarian Party asserts that because all powers granted government to use force on the behalf of the people reside ultimately with the people, it is unacceptable for the agents of government force, the police, to deny the people explanations for their actions when there are legitimate questions as to whether that force has been used with due caution and within the powers granted by the people through our Constitution and law.

• The tragic and avoidable death of a law enforcement officer.

• The use of Confidential Informants is an unfortunate necessity in criminal investigations, and particularly so in drug cases, but we question whether it is good public policy to request or issue search warrants based on the unsupported and unsworn allegations of Confidential Informants without some corroboration through independent investigation.

• Forcible entries in serving search warrants are acceptable police practice only when there is evidence subject to rapid destruction, hostages are in peril, or known, armed, and dangerous criminals are judged to be most safely taken by surprise. The recent trial of Chesapeake resident Ryan Frederick has revealed such forced entries to be the standard practice in serving all drug search warrants in Chesapeake. The Chesapeake Police Department has provided no acceptable explanation for choosing an exceptionally dangerous method of serving a warrant on a citizen with no criminal record over numerous safer and more Constitutionally acceptable methods.

• We are further concerned by the lack of transparency and consistency on the part of the Chesapeake Police leadership regarding what policy changes might be made to avoid future tragedy. Because we believe the police have taken the position that they need not explain their actions to the public, we hold this that is unacceptable in a free society.

This is the City of Chesapeake, in the Commonwealth of Virginia, in the United States of America. The police are answerable to the people, not only to themselves. Our military and our police are subject to civilian control and review. Citizens are owed the truth. The proper first level of that oversight is through our local elected representatives on city council.

We understand that it may be necessary to withhold some tactical policy from the public at large for the protection of police officers, but what information can and cannot be made public is properly the choice of civilian authority, with expert guidance, and not that of those being overseen.

The Tidewater Libertarian Party therefore requests the City of Chesapeake establish a citizen review board consisting of trustworthy citizens chosen by council, but with no connection to the Police Department or city government, to investigate this matter. This citizen review board should have full access to all evidence, record, reviews, and testimony, and report to the City Council, and ultimately, with council approval of sensitive content, to the public, in order to restore the lost trust of the citizens in our police department and to ensure that our police officers and citizens are no longer placed in unnecessary danger.

I would also like to offer at least one other suggestion: cameras. Each SWAT team member should have a camera attached to his/her helmet. This would provide invaluable insight to a sequence of events and would help ensure that the police follow procedures properly. Police vehicles have cameras installed on dashboards, there is no good reason why cameras should not be used for knock and no knock raids.

Unfortunately, I fully expect to learn of many more of these tragedies before any such reforms are made.

Leave Michael Phelps Alone

It looks like prosecutors in South Carolina are looking to charge Michael Phelps in connection with the bong-smoking photograph:

phelps_516_0102_25518aCOLUMBIA, S.C. (AP) — Even if a South Carolina sheriff is successful in building a marijuana case against swimming superstar Michael Phelps, it might be hard to make the charges stick, defense attorneys say.

The case took a turn Thursday when lawyers for two people said their clients were among eight arrested last week and questioned at length about the November party near the University of South Carolina where Phelps was photographed smoking from a marijuana pipe. At the time, the men were renters at the house.

The effort to prosecute Phelps on what would be at most a minor drug charge seems extreme compared to similar cases, lawyers said, and has led some to question whether the sheriff is being overzealous because he’s dealing with a celebrity. There are quite a lot of people smoking marijuana, especially when it comes from canadianmoms, and they don’t face this kind of prosecution so it seems he’s only receiving this treatment because of his celebrity status. It could also be a result of his link to the sporting industry. Aside from recreational usage, many athletes also use it for recovery purposes and this is why drug tests are not always used in sporting events. The use of Marijuana in Sports Statistics show just how connected people believe sports and marijuana to be which is what makes this prosecutor’s efforts to charge him seem especially harsh.

”The efforts that are being made here are unlike anything I’ve ever seen before,” said Jack Swerling, a defense attorney in South Carolina. ”I know Leon Lott, I know him to be an honorable guy. I’ve known him for 30 something years. But the efforts here are extraordinary on simple possession cases.”

Given that, it probably shouldn’t come as a surprise that the prosecutor in question here has made a career out of being flamboyantly aggressive in pursing the War on (some) Drugs:

Lott has made fighting drug crimes a central plank of his career. He rose from patrol officer to captain of the narcotics division in the early 1990s and was well-known in the county for wearing stylish suits like the drug agents on ”Miami Vice” and driving a Porsche seized from a drug dealer. He was elected sheriff in 1996.

The attention that Lott is giving to this case seems disproportionate considering the relatively light sentence that Phelps would receive if he were charged and convicted of possession of marijuana:

A person who violates this subsection with respect to twenty- eight grams or one ounce or less of marijuana or ten grams or less of hashish is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than thirty days or fined not less than one hundred dollars nor more than two hundred dollars.

In other words, this is a relatively low-level misdemeanor. But this is a misdemeanor that could have an effect on Michael Phelps and his swimming career, and the employment of other people who smoke marijuana on a daily basis. But how do we know that Phelps didn’t decide to buy cannabis to help him cope with the pressures of being a professional athlete? To help reduce his stress and anxiety? If this is the case, and it was for medicinal purposes and, being the high-profile athlete that people recognize him to be, it might have been in his best interests to consult with a medical practitioner first so that people wouldn’t get the wrong idea. That’s why users should decide to check out this page so that they have a better idea of how long marijuana stays in their body, just in case they get caught by law enforcement, or if you are subject to a random drug test at work. If people are caught, they may only face a low-level misdemeanor.

So, why the attention from law enforcement ?

The answer, I think, is obvious. Arresting and convicting Phelps, even on this relatively minor charge, would be a big “get” for a prosecutor, particularly a politically ambitious prosecutor who has built his career on being some modern-day version of Don Johnson with a law degree. If Michael Phelps were just some guy from Baltimore who smoked marijuana while visiting the Palmetto State, this wouldn’t be happening.

That’s what’s wrong with the War on Drugs and proprietorial discretion.

Change Libertarians Can Believe In?

There’s no secret that most of the Obama Administration agenda is at odds with the Lockean rights of life, liberty, and property at almost every turn. Obama’s views on freedom are more along the lines of FDR’s so-called “Four Freedoms”. As disturbing as this agenda is, I thought it would be important to identify policies which actually do promote liberty based on the more traditional Lockean model.

These agenda items are the only ones I can at this point say I am comfortable with. There are probably more items I could support but without knowing the details of many of Obama’s policies, I’m hesitant to do so (mostly due to his reliance on doublespeak, i.e. redefining welfare as tax cuts). The two most promising policies I have found so far are in the areas of civil rights and ethics.

Civil Rights:

Eliminate Sentencing Disparities Between Crack and Powder-Based Cocaine

Expand the use of drug courts for first-time non-violent drug offenders

Equal Rights for LGBT couples

Repeal the Defense of Marriage Act

Repeal “Don’t Ask-Don’t Tell”

Ethics:

A More Open and Transparent Federal Government (complete with searchable internet databases)

“Sunlight Before Signing” – Five days for the general public to review “non-emergency”* legislation before bills are signed into law.

The Transparency and Integrity in Earmarks Act – A law which would name names of legislators and the earmarks they request, require written justification for the earmark, and require 72 hours for the full senate to review and approve the earmark.

Make all White House Regulatory Communications Public and Release Presidential Records

Protect Whistleblowers

Eliminate Inefficient Government Programs and Slash Earmarks**

Libertarians, myself included, may be disappointed that these libertarian friendly policies do not go nearly far enough. Having said that, I do believe we should encourage these changes even if they are mere baby steps in the right direction.
» Read more

Ramos and Compean Should NOT be Pardoned

As the Bush era comes to a close, the list of last minute pardon requests are growing. Perhaps the loudest demand for pardon comes (mostly) from Conservatives who are angry that President Bush has not acted to pardon two Border Patrol Agents Ignacio Ramos and Jose Alonso Compean. Those who demand the pardon claim that the agents were railroaded by an “overzealous” U.S. Attorney for “just doing their jobs” when the agents fired 15 shots, one of which hit a fleeing “drug smuggling illegal immigrant” Aldrete-Davila in the buttocks. If you Google “Ramos and Compean” you will find an endless number of articles which make some variation of this argument.

If this were a case of two Border Patrol Agents “just doing their jobs” acting in self defense, then I too would be demanding a pardon for these men. Inconvenient facts which are left out of almost all of these articles point to exactly why Ramos and Compean should NOT be pardoned. A January 29, 2007 article written by Andrew McCarthy for The National Review (not what I would consider a left-leaning or open borders type publication) offers a compelling counterpoint challenging the heroic and mythical image being bandied about of the two Border Patrol Agents:

The preponderance of the evidence established that Aldrete-Davila was unarmed. Besides Compean and Ramos, there were several other agents on the scene. None of them believed Aldrete-Davila posed a threat to their safety; none, other than the two defendants drew their weapons; and Compean and Ramos neither took cover nor alerted their fellow agents to do so.

More to the point, Compean admitted to investigators early on that the smuggler had raised his hands, palms open, in an attempt to surrender. This jibed not only with Aldrete-Davila’s account but with that of another Border Patrol agent. Compean opted not to take surrender, not to place the smuggler under arrest so he could be prosecuted.

On that score, for those over-heatedly analogizing the border to a battlefield, it is worth noting that even under the law of war, quarter must be given when it is sought. Compean, to the contrary, tried to strike Aldrete-Davila with the butt of his shotgun. But it turns out the agent was as hapless as he was malevolent. In the assault, he succeeded only in losing his own balance. The smuggler, naturally, took off again, whereupon Compean unleashed an incompetent fuselage — missing Aldrete-Davila with all fourteen shots.

It was only after the surrender attempt that Ramos opened fire as the unarmed smuggler neared the border. Defending his decision to bring the case, U.S. attorney Sutton later explained: “Border Patrol training allows for the use of deadly force when an agent reasonably fears imminent bodily injury or death. An agent is not permitted to shoot an unarmed suspect who is running away.” The fact that Aldrete-Davila was a drug-dealer — something the agents may have suspected but had not yet confirmed at the time they were shooting at him — did not justify the responsive use of potentially deadly force under standard law-enforcement rules of engagement.

Even Ramos and Compean’s supporters acknowledge that the agents shot at a fleeing suspect rather than a suspect trying to cause injury or death. Do they really want to make every law enforcement officer in the country judge, jury, and executioner and grant the right to use lethal force against a fleeing supect*? After all, forcing law enforcement to obey the law makes their jobs “more difficult”!

McCarthy continues to perhaps the most damning part of Ramos and Compean’s actions – the cover-up:

Once Aldrete-Davila was down from Ramos’s shot to the backside, they decided, for a second time, not to grab him so he could face justice for his crimes. As they well knew, an arrest at that point — after 15 shots at a fleeing, unarmed man who had tried to surrender — would have shone a spotlight on their performance. So instead, they exacerbated the already shameful display.

Instead of arresting the wounded smuggler, they put their guns away and left him behind. But not before trying to conceal the improper discharge of their firearms. Compean picked up and hid his shell-casings rather than leaving the scene intact for investigators. Both agents filed false reports, failing to record the firing of their weapons though they were well aware of regulations requiring that they do so. Because the “heroes” put covering their tracks ahead of doing their duty, Aldrete-Davila was eventually able to limp off to a waiting car and escape into Mexico.

Whaaaat? But I thought this “drug smuggling illegal immigrant” was a threat to national security? If the agents’ actions were justified, why would they not arrest the suspect and why would they feel the need to cover-up their actions? Were they afraid that the “overzealous” Sutton had an axe to grind against the Border Patrol?

Toward the beginning of his article, McCarthy points out that Sutton had an impressive record of prosecuting coyotes and drug smugglers and supporting the efforts of the Border Patrol. There have even been other cases on Sutton’s watch where agents used lethal force which resulted in fatalities. Because these agents responded appropriately in these cases – using deadly force when there were legitimate threats to the lives of others on the part of the suspects, Sutton’s office did not pursue charges.

On January 17, 2007, Sutton published a press release on official U.S. Department of Justice Letterhead in an attempt to separate “Myth vs. Reality” regarding this case. Within this document contains perhaps the best argument for why the president should not pardon these men:

These agents were found guilty by a unanimous jury in a United States District Court after a trial that lasted more than two and a half weeks.

The two agents were represented by experienced and aggressive trial attorneys, both of whom vigorously challenged the Government’s evidence through cross examination.

Both agents told their stories from the witness stand and had full opportunities to explain their version of events and to offer their own evidence. The jury heard everything including the defendants’ claims of self defense. The problem for Agents Compean and Ramos is that the jury did not believe their stories because they were not true.

Being government agents, Ramos and Compean probably received a better legal defense than the average criminal defendant. They had their day in court and they lost. Their legal team appealed the convictions and they lost again. This is hardly the miscarriage of justice that the pro pardon people would have us believe; this is an example of the system actually working the way it’s supposed to!

Ramos and Compean’s supporters do have at least a couple of somewhat legitimate gripes though. One being the length of the sentences (11 and 12 years) and the other being use of testimony on the part of a criminal who has something to gain (in this case, Aldrete-Davila himself). But these complaints should not be directed at Sutton or the trial judge.

The blame for the length of the sentence belongs properly to the mandatory minimum sentencing law passed by congress which requires a ten year sentence for unlawful discharge of a firearm while committing a crime (this ten year sentence is in addition to whatever other crimes the defendant is convicted of). While I believe that the sentences are appropriate in this case, I am opposed to mandatory minimum sentencing laws on principle. Judges should have the discretion to decide the appropriate punishment not a one-size-fits-all penalty regardless of any unique circumstances in a unique event.

And allowing Aldrete-Dalvia to testify against Ramos and Compean with full immunity? This is standard operating procedure. Prosecutors use informants who have a motive to testify against defendants every day in this country. Why should we be surprised that Sutton would use Aldrete-Dalvia as his star witness? If this approach is appropriate for the average defendant then it is certainly appropriate when those sworn to serve and protect abuse the public’s trust.

But don’t expect Conservatives to start demanding a repeal of mandatory minimum sentencing laws nor expect them to consider criminal justice reform. To them this case is not about two rogue law enforcement agents but about immigration and drug policy. The facts do not matter because the guys with the badges are always the good guys and their judgment is better than due process of law.

Certainly there are many miscarriages of justice which could be rectified with a presidential pardon (*cough* *cough* Cory Maye *cough* *cough*) but the case of Ramos and Compean is not such a case…no matter where one stands on immigration and drug policy. Hopefully neither President Bush nor President-Elect Barack Obama will give in to the mindless demands of this misguided and vocal mob.

***CORRECTION***

Quincy pointed out that the president cannot pardon individuals who have been convicted of crimes in violation of state or local laws but only federal laws. Cory Maye was found guilty under Mississippi law, not federal law. My understanding has always been that the president could pardon anyone for committing any crime in the U.S.

A careful reading of Article II, Section 2 of the Constitution, however; seems to say otherwise:

[The president] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

I also decided to do some additional research on the topic of presidential pardons to determine if the phrase “against the United States” applied to state and local law. HowStuffWorks? has a very informative article which explains how presidential pardons work. In chapter 5 “What a Pardon Does Not Do” I found my answer:

One limitation is that a pardon cannot be issued for a crime that has not yet been committed. Pardons also don’t affect civil cases, or state or local cases. Pardons are meant to dismiss sentences stemming from affronts to the United States through the breaking of laws.

Unfortunately, this means that Quincy is right: the president couldn’t pardon Cory Maye even if he wanted to.

* Think about it: if you surrendered to law enforcement and one of the officers try to hit you with the butt of a shotgun, do you think you might try to run away?

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