Category Archives: Criminal Justice Reform

Guilty Until Proven Innocent

Last night, 60 Minutes ran a fascinating piece about a man who spent 11 years in prison for a rape he didn’t commit, the woman who (incorrectly, it later turned out) identified him as her attacker, and the unreliability of eyewitness testimony.

Here’s Part I:


Watch CBS Videos Online

And, Part II:


Watch CBS Videos Online

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The Hubris of the National Tactical Officers Association

In my report following the live chat @ The Agitator with Berwyn Heights Mayor Cheye Calvo last week, I made mention of some very modest reforms he was pushing in Maryland. The bill would require all police departments with SWAT teams to provide monthly reports to the state’s Attorney General, local officials and the general public.

Who would have a problem with just a little public oversight over law enforcement? Apparently, the National Tactical Officers Association’s executive director John Gnagey does:

[John Gnagey] says reporting requirements for SWAT teams should emanate from the law enforcement community, not legislators.

“Our data shows that when SWAT teams are deployed, the violence goes down,” said John Gnagey, who was a SWAT team member for 26 years in the Champaign, Ill., police department.

One question for Mr. Gnagey: That slogan that you have on your squad car that says “to serve and protect,” who exactly are you trying to serve and protect? Based on the tone from the article, it appears that you are only interested in serving and protecting law enforcement. Silly me, I was under the impression that the purpose of law enforcement was to serve and protect the general public! If you have some data that shows SWAT deployments bring the level of violence down, why are you so afraid of putting this data to the test?

The hubris of Mr. Gnagey illustrates exactly why more oversight of law enforcement is necessary. The article also points out that nationally the number of SWAT deployments rose from 2,500 annually in the 1980’s to between 50,000 and 60,000 in 2005; the War on (Some) Drugs is largely responsible for this dramatic increase. Not everyone agrees that these SWAT deployments have reduced violence.

Mayor Cheye Calvo was also interviewed in the article:

“It’s pretty clear to me that police are using SWAT teams for duties that used to be performed by ordinary police officers,” says Calvo, whose Berwyn Heights house was raided July 29 when police mistakenly thought his wife was involved in drug trafficking. “No question, there are times when SWAT teams are appropriate. What strikes me about this is that police are using SWAT teams as an initial response rather than a last resort.”

What we need is more transparency and it’s never going to happen if we depend on those who have something to hide to change the reporting requirements.

A Song and Open Letter to a President Who is “No Stranger to the Bong”

Thank you, President Obama, for keeping your campaign pledge to end raids on medical marijuana dispensaries that are legal under state laws in California and elsewhere.

Thank you for reversing an inhumane policy established by the Clinton administration and continued by the Bush administration.

Given the experience you and other elected officials have had with illegal drugs and your willingness to challenge the status quo, now is the time to reconsider decades of prohibitionist drug policies that have succeeded only in massively increasing the toll of human misery, violence, and hypocrisy. As with alcohol prohibition, the drug war intensifies and exacerbates every negative outcome it is ostensibly designed to combat.

President Obama, do the right thing and end the war on drugs.

“Obama, You’re No Stranger to the Bong” was written, performed, and edited by Paul Feine; special thanks to Alex Manning.

I couldn’t agree more! As this song points out, Obama is hardly the first politician on the national stage to experiment with drugs. Despite these youthful indiscretions , most of these very people want to ratchet up the War on (Some) Drugs.

Despite my many disagreements with President Obama, I believe that his decision to call the DEA dogs off the medical marijuana dispensaries is a good first step in the right direction. Pardoning Charlie Lynch (back story here and here) seems like the next logical step.

The Root of the Mexican Drug Cartel Violence Spillover Into the U.S.

For those of you who believe that Libertarians focus too much on the War on (Some) Drugs, perhaps it’s time to pay attention to the escalating violence in Mexico which is spilling over into the U.S.

PHOENIX (Reuters) – Hit men dressed in fake police tactical gear burst into a home in Phoenix, rake it with gunfire and execute a man.

Armed kidnappers snatch victims from cars and even a local shopping mall across the Phoenix valley for ransom, turning the sun-baked city into the “kidnap capital” of the United States.

Violence of this kind is common in Mexico where drug cartel abductions and executions are a daily feature of a raging drug war that claimed 6,000 lives south of the border last year.

But U.S. authorities now fear that violent crime is beginning to bleed over the porous Mexico border and take hold here.

“The fight in Mexico is about domination of the smuggling corridors and those corridors don’t stop at the border,” Arizona Attorney General Terry Goddard said.

Execution style murders, violent home invasions, and a spiraling kidnap rate in Phoenix — where police reported an average of one abduction a day last year linked to Mexican crime — are not the only examples along the border.

This is so disturbing on so many levels. In a time when SWAT teams conduct midnight no-knock raids (sometimes on the wrong home) on unsuspecting occupants, its especially distressing to think that even if the occupants comprehend an announcement and see that the intruders are wearing police gear that the occupants must then determine if the intruders are in-fact who they say they are. Either way, all parties involved are placed in a dangerous situation.

What is a resident to do?

To surrender is to take the chance that the intruders are the police. If s/he is wrong, s/he risks kidnapping, robbery, raping, torture, and/or death.

To stand one’s ground and take the chance that the intruders are not the police escalates the situation which can result in death and/or loss of freedom (imprisonment).

This potential for confusion in itself suggests to me that all SWAT drug raids should be immediately halted at least until this spillover along the Mexican border is under control. The question is: how?

Conservatives suggest building a fence or wall along the border. While this approach might slow down the flow of drug and people trafficking, this in itself does not deal with the root problems and would not stop the spillover. If drugs can get past the walls of a maximum security prison, how is it possible to believe that a wall would prevent drugs from making their way into our country?

Some on the Left believe that greater gun control measures would make acquiring firearms more difficult for the drug cartels. Besides the obvious infringements against the Second Amendment, the bad guys always manage to get their weapons of choice. This approach also does not deal with the root of the problem.

This brings me to the root of the problem:

While some Americans may feel victimized by the spillover of violence, others are contributing to it. Americans provide 95 percent of the weapons used by the cartel, according to U.S. authorities. And Americans are the cartels’ best customers, sending an estimated $28.5 billion in drug-sale proceeds across the Mexico border each year.

As long as there is a demand for these drugs, there will be someone willing to supply these drugs. In the days of Prohibition, Al Capone supplied a particular demand; today this demand is supplied by Jack Daniels, Anheuser-Busch, and many thousands of others. When Anheuser-Busch has a dispute with competitors or customers, the dispute is settled in a court of law rather than the streets. There is every reason to believe that lifting drug prohibition would work the same way.

Live Chat With Mayor Cheye Calvo Tonight @ 8 p.m. EST (5 p.m. PST) @ The Agitator

Check in this Thursday night at 8pm ET with your questions for Cheye Calvo, the Berwyn Heights, Maryland mayor who was subject to a violent, botched drug raid last year.

Calvo’s pushing legislation that would bring transparency to how Maryland’s police departments use their SWAT teams.

I’m hoping to be home in time to participate in this chat because I am very interested in what Mayor Calvo has to say. For those who are unfamiliar with the story, the mayor spoke at a Cato Policy Forum on September 12, 2008. The full 90 minute podcast can be downloaded here; the podcast below is a much shorter (just under 9 minutes) interview with the mayor following the Cato event.

Post Chat Report:
The chat with Mayor Calvo ended just a few minutes ago. The mayor stayed about a half hour over the scheduled chat to answer more questions from participants. I managed to have a couple of questions answered and the other questions which were asked were also very good. The chat was very informative and worthwhile. Readers who would like to read the full chat can click here.

The mayor answered questions about his ordeal with the SWAT team raiding his home as well as some legislation he is pushing in the State of Maryland. The proposed legislation would require all police departments with SWAT teams to provide monthly reports to the Attorney General, local officials and the general public. These reports would provide the number of raids, general locations, purpose, authorization, and results of raids. The overall goal is to provide additional oversight.

For more information about this legislation and how you can help, go to MakeMarylandGreat.com.

Colorado General Assembly to Consider Repealing Death Penalty; Savings to be Used to Solve Cold Cases

For reasons I have expressed in earlier posts, I am opposed to the death penalty. I simply do not trust our criminal justice system enough to make a life or death decision on the innocence or guilt of an individual (based on recent news concerning Dr. West and others, it seems my distrust in the system is completely justified). I am very pleased to learn that the Colorado General Assembly is taking a hard look at this issue and considering repealing the death penalty and using the money saved to help investigate cold cases.

The Rocky Mountain News reports:

The idea of abolishing the death penalty in Colorado and using the money it takes to prosecute such cases to solve so-called cold cases stirred debate in a House committee late into the night Monday.

House Majority Leader Paul Weissmann, D-Louisville, revived his bill that just missed passing the House in 2007. The threat of death does not deter people from committing murders, he said, and the $370,000 spent to prosecute those cases could be better spent on investigating unsolved murders.
Since 1967, Colorado has executed one person and there are only two people on death row, Weissmann said. During that time, there have been 1,435 unsolved homicides.

Considering that the death penalty is so rarely enforced in Colorado, it seems to me that even those who support the death penalty should recognize the incredible costs associated with placing less than a handful of individuals on death row. The families of these 1,435 victims have just as much right to bring the killers of their loved ones to justice as those who wait for the day of execution for the ones who have taken their loved ones from them.

The article continues:

But several opponents of Weissmann’s bill said it’s based on a false argument.

Attorney General John Suthers noted that the Homicide Assistance Unit that works to solve and prosecute death penalty cases also has assisted 19 of the state’s 22 judicial districts with cold cases.

Colorado Bureau of Investigation Director Ron Sloan said that a Cold Case Task Force formed in 2007 is nearing the point where it will bring together federal, state and local analysts to review cases that are referred to it.

Plus, Suthers said, there are times when the possibility of receiving the death penalty is necessary to deter crimes. Those include instances in which someone who has been sentenced to or is facing life in prison might want to kill witnesses or commit an act of terrorism, he said.

I disagree that the bill makes a “false argument.” If the state saves $370,000 by no longer prosecuting death penalty cases, that’s $370,000 the cold case units have to work with that they currently do not. And if Colorado has only executed one person since 1967, how does having the death penalty on the books deter individuals from committing homicide?

I think we all instinctively know the answer: it doesn’t.

It’s Time To Lower The Drinking Age

Last night 60 Minutes ran an interesting piece about the suggestion from some that the drinking age be lowered back to 18:

(CBS) Last fall, a group of over 100 college presidents – including the heads of Dartmouth, Virginia Tech and Duke – signed a declaration stating that the 21-year-old drinking age is not working, and fireworks went off.

But the college presidents got what they wanted: a national debate about the drinking age.

When the age was raised to 21 in the mid-1980s, the goal was to reduce highway fatalities. But everyone knows that the 21 age limit hasn’t stopped minors from drinking.

And now some experts believe it’s actually contributing to an increase in extreme drinking

Here’s the video of the entire report, which is worth watching:


Watch CBS Videos Online

I don’t agree with the suggestion that John McCardell, the former President of Middelbury College, makes at the end of the report, that a return to an 18 year-old drinking age be accompanied by a combination of alcohol education in high school and “drinking licenses” that allow someone to purchase alcohol.

The education idea is on the right track, but the idea of the government issuing licenses to people to “allow” them to consume alcohol strikes me as a step down the road toward the return of neo-Prohibitionism.

This much is clear, raising the drinking age to 21 has not curbed drinking among people aged 18, 19, and 20, and it may have helped make the situation far worse than it would be otherwise.

Former Seattle Police Chief Norm Stamper: “Legalize All Drugs”

Former Seattle Police Chief Norm Stamper recently appeared on Fox News’ Red Eye with Greg Gutfeld. Stamper belongs to an organization of current and former police officers called Law Enforcement Against Prohibition (LEAP).

Dr Michael West Filmed Committing Attempted Murder

Over at Reason, Radley Balko has published a damning article and video of Dr Michael West attempting to murder a man named Jimmie Duncan.

In 1993,  [Dr Michael West and Dr Steven Hayne]  conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler’s face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man’s teeth on the dead girl’s skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering.

The dental mold came from the teeth of the man babysitting the girl at the time of her death.  The manufactured bite-mark evidence put the man, Jimmie Duncan on death row.  I am convinced that Mr Duncan, who was described by witnesses as being very remorseful and in hysterics with shame, was guilty of negligent manslaughter.  Nowhere in the United States are people executed for manslaughter through negligence.  In his attempt to make him look more depraved than he actually is, by attempting to send him to the death chamber without justification, Dr West was attempting to murder Jimmie Duncan, as surely as if he had booby-trapped Duncan’s car with a bomb connected to the ignition system.

This might seem like an isolated incident, except for the fact that Dr Hayne has conducted nearly every autopsy of crime victims performed in the state of Mississippi in the past 20 years.  In cases where Dr Hayne could not find evidence to help convict criminals, he frequently sent the bodies to Dr West, who had a special test for bite-marks that has never been reproduced by any other forensic specialist.  And, like any monopoly, the monopoly criminal apprehension organization operated by the Mississippi state government refuses to revisit all the cases affected by these men’s testimony.

Given the thousands of people that Hayne and West helped put behind bars, there is a near certainty that many innocent people have been sent to jail for crimes committed by others.  One could argue that that amounts merely to malpractice.  However, the last time I checked, when one person tampers with a crime scene for the purpose of framing an innocent man with a crime while obsucring the actual guilty party’s role, it is called being “An accessory to murder after the fact”

I strongly encourage our readers in Mississipi to question the news media and government officials regarding the destructive trail of injustice left by Dr’s West and Hayne.  Their victims cry out for justice.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

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 seem extreme compared to similar cases, lawyers said, and have led some to question whether the sheriff is being overzealous because he’s dealing with a celebrity.

”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.

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

The War on (Some) Drugs & The Prison Industrial Complex in Perspective

Good Magazine’s “Jailbirds”

The Marijuana Policy Project’s “The War on Drugs in 100 Seconds”

Hat Tip: Matt Kelly @ change.org “Criminal Justice”

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?

Quote of the Day: The Death Penalty Edition

From Mississippi Supreme Court Justice Oliver Diaz Jr. dissent in Doss v. Mississippi

[T]he most terrifying possibility in a system where the death penalty is dealt arbitrarily: innocent men can be, and have been, sentenced to die for crimes they did not commit. In 2008 alone, two men – both black – convicted of murders in Mississippi in the mid-1990s have been exonerated fully by a non-profit group that investigates such injustices.

One of these men, Kennedy Brewer, spent an astonishing six years on death row. Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.

Hat Tip: Reason Hit & Run

25 More Reasons for Criminal Justice Reform

20 months ago I wrote a post (click here) to recognize the successful efforts of The Innocence Project in exonerating 200 wrongly convicted (14 of which were on death row). In the time between that post and this one, the Innocence Project has helped 25 more wrongfully convicted regain their freedom! If this trend continues, we could see 275+ wrongfully convicted set free by the organization’s 20th anniversary in 2012. While this is all very good news for these individuals and their families, much more needs to be done to prevent others from being victimized by the state.

Many states offer nothing with regard to compensation for the wrongfully convicted. Of those which do, the IRS insists on collecting taxes from this compensation (a complete moral outrage). The Innocence Project is working to correct this injustice.

25 states do not have laws which require forensic evidence to be preserved post conviction. For those who wish to appeal and challenge their convictions, the chances of proving their innocence are much dimmer. One of the main reasons these states refuse to preserve biological evidence is the costs associated with storage.*

There are many other reforms which need to be made with regard to the use of informants (who have an incentive to tell the authorities what they want to hear to shorten their sentences), government fraud and misconduct, and unsound science (among other needed reforms).

I would also submit that it is time to revisit the issue of the death penalty. We now have 225** reasons to demand a national moratorium on the death penalty; 225 cases where the system failed, convicted the wrong person, and allowed the real perpetrators walk free. Even one innocent person killed by the state is too many.

In closing, the following is statistical data about the 225 exonerations In the Innocence Project’s winter 2008 Newsletter: The Innocence Project in Print.

Innocence by the Numbers: Eyewitness Misidentification

Percentage of wrongful convictions cases later overturned through DNA testing that involved eyewitness misidentifications 76%

Percentage of those misidentifications that were cross-racial 51%

Percentage of those cross-racial misidentification cases where a Caucasian witness’ misidentification led to the wrongful conviction of an African-American or Latino defendant 90%

Percentage where an African-American or Latino witness’ misidentification led to the wrongful conviction of a Caucasian defendant 1%

Percentage of all the misidentification cases where eyewitness testimony was the central evidence used against the defendant (without other contributing evidence like false confessions, invalid or improper forensic science, or snitch testimony) 20%

Percentage where more than one eyewitness misidentified the same innocent defendant 37%

Highest number of eyewitnesses misidentifying the same innocent defendant 10

States where eyewitness misidentifications have contributed to a wrongful conviction 32

States that have passed reforms to improve eyewitness identification procedures 7

States Legislatures considering eyewitness identification reforms for 2009 12 and the District of Columbia

» Read more

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