Category Archives: Crime and Punishment

A Thought Experiment: Fraternity Initiation Gone Horribly Wrong


I would like to conduct a little thought experiment.

It seems that quite a few people have very strong opinions about the Freddie Gray case in Baltimore. Some of you see this as a race issue, others as a police issue (cops either almost always have halos or devil horns), and a few see this as the human tragedy it truly is. Some believe that there simply isn’t enough proof to bring charges against the six police officers. They are being railroaded and overcharged some say (I would like to point out that overcharging non-cops and railroading non-cops in the justice system is an everyday occurrence). I would like to remove these variables and see if we come up with a different conclusion if we change the actors.

Let’s say that instead of six cops putting Freddie Gray in a paddy wagon its six fraternity brothers (of any race you wish, but let’s say they are all of the same race…use your imagination) from the (fill in the blank) chapter doing an initiation. At this point in the story, our analogue for Freddie Gray is a pledge who wants to join this fraternity. Let’s call him Jim.

Are you with me so far?

Now that we know who the actors are let’s continue…

Several of the fraternity brothers find Jim and start the initiation process. They put Jim in hand cuffs and call the rest of the fraternity brothers who eventually pull up in a van. As they begin to put Jim in the van, he begins to panic.

“I can’t breathe, I need my inhaler!” Jim says.

The fraternity brothers ignore Jim’s concerns and proceed to put him in the back of the van.
Jim sits on a bench with both his hands and feet cuffed but not restrained in a seat belt. The van peels out down the road. Jim is bouncing around the van. Whatever else happened inside the van remains unclear. Did the fraternity brothers get a little too rough with him? What caused Jim’s neck injury? Was his injuries sustained just from bouncing around with his hands and feet bound?

We don’t know for sure.

The driver stops the van and checks in on Jim. Clearly, Jim appears to be hurt but the driver offers no medical attention, shrugs, and returns to the driver’s seat.

After driving a few more blocks, the van stops to pick up a second fraternity pledge. Jim, no longer really “into” being a pledge says at least twice that he needs to be taken to a hospital or at the very least, dropped off. Jim is having difficulty breathing. The driver again ignores Jim’s pleas and obvious medical needs.

What happens next remains controversial. Some news outlets say the other pledge witness Jim trying to injure himself! A day or two later, the person claiming to be the other pledge says that he was being misquoted and said that Jim did not try to injure himself. Even more news stories claimed that the original story was true and the second story was false.Dr. David Samadi writing an article for The New York Daily News writes that an injury of that type being self-inflicted is “highly unlikely.”

After driving around a bit more the van stops again. Jim is on the floor and unresponsive but the frat brothers again decide not to take him to a hospital or offer any kind of assistance. Still bound at his hands and feet and still not secured in a seat belt, the van makes its way to the frat house.
When the van finally stops at the frat house, the driver notices that Jim isn’t breathing. The frat brothers finally come to terms with just how dire the situation is and dial 911.

Jim is transported to the hospital via ambulance. About a week later, Jim dies of injuries to his spine.

In the autopsy report, the cause of death is ruled a homicide.

In the weeks that followed Jim’s death, there were all sorts of rumors about his character. He had been arrested several times – mostly drug offenses. Stories on social media also claimed that Jim had sustained the spine injuries in a car accident prior to the fraternity initiation and had a surgery to repair the damage (this story turned out to be false but many people still believe it to be true). Furthermore, the toxicology report revealed that Jim had heroin and marijuana in his system.

Now that these variables are a little different, is there anyone out there who is going to tell me that in such a scenario these six frat brothers would not receive at least some of the following charges?

-Manslaughter by vehicle (gross negligence on the part of the driver – 10 years)

-Manslaughter by vehicle (criminal negligence on the part of the driver – 3 years)

-False imprisonment (the remaining five frat brothers – 1 count each)

-Manslaughter (1 count for each frat brother)

Based on these findings by the DA, would you say these frat brothers are being over charged? Should they be charged at all? Jim was alive and well before the frat brothers picked him up. Now he is dead. Something happened while he was under the control of the frat brothers.

And what about Jim’s arrest record? (Note: arrests are not the same as convictions) What about the toxicology report showing heroin and marijuana in his system? Assuming this is true, does this somehow absolve the frat brothers of any wrong doing, at least partially? If so how?

Final question: is your conclusion to the above scenario similar to the real life Freddie Gray case? If not, why not?

As to other ancillary comments about the protests, riots, or other cases…post those elsewhere as they are not relevant to this discussion.

Quote of the Day: Baltimore 2015 Edition

what ifI’ve been thinking quite a bit about the situation in Baltimore and the very state of our culture. This Facebook status update I came across yesterday is very worthy of repeating here.

I really wish people would stop posting Freddie Gray’s criminal record, as if that makes him deserving of having his spine broken while in police custody, killing him. You can’t claim to be a supporter of constitutional rights, yet care nothing of Freddie Gray’s rights. This brother was no less deserving of his life than any white collar criminal. I don’t support rioting & looting, but I also won’t support those who think his life was worth less than the next person, or that he got what he deserved. He was the victim in this case, and his record is irrelevant… – Talitha McEachin

Agreed. Unless Freddie Gray presented a presented a threat to the lives of the police officers while he was in custody*, the police had no right to use the force they used that ultimately ended his life. Whether he was arrested one time or a thousand has nothing to do with how Gray was treated.

*Of course at this point, we don’t really know what happened while Gray was in custody. This is yet another argument for the notion that each and every moment the police are interacting with a suspect that these interactions should be recorded and made available (eventually) to the public. There’s simply no excuse for this not to be the policy of every police department in 2015.

Quote of the Day: Jason Pye on the Smarter Sentencing Act


Jason Pye, former contributor to The Liberty Papers and current Director of Justice Reform at FreedomWorks posted an article yesterday for Rare Liberty about some promising political developments in the area of criminal justice reform. Perhaps one of the most promising of these developments at the federal level is a bill being considered is S.502 – The Smarter Sentencing Act.

Jason explains why he believes this reform is a step in the right direction:

With federal prison spending booming, an unlikely bipartisan alliance has emerged to bring many of these successful state-level reforms to the federal justice system. Sens. Mike Lee (R-Utah), Ted Cruz (R-Texas), and Rand Paul (R-Ky.) have joined with Dick Durbin (D-Ill.), Cory Booker (D-N.J.), and Sheldon Whitehouse (D-R.I.) to reform federal mandatory minimums – a one-size-fits-all, congressionally mandated approach to sentencing.


The Smarter Sentencing Act would expand the federal “safety valve” – an exception to federal mandatory minimum sentences for low-level nonviolent offenders with little or no criminal history – and cuts in half mandatory minimum sentences for nonviolent offenders. This more rational approach to sentencing will reduce costs on already overburdened taxpayers. The nonpartisan Congressional Budget Office estimated a net $3 billion cost-savings over a decade. The Justice Department believes the bill will save an eye-popping $24 billion over 20 years.

The benefits of the Smarter Sentencing Act may not end with the fiscal savings. It could also reverse the damage done by federal mandatory minimum sentences in certain communities, which, as Lee recently explained, “have paid a high cost for the stiff sentences that mandatory minimums require.”

Chicago Police Using Domestic “Black Site,” The Guardian Reports

Homan Square in Chicago. Image retrieved from New York Daily News website.

Chicago’s police department is running an “off-the-books interrogation compound” that attorneys liken it to the domestic equivalent of a CIA black site, according to a chilling report from the Guardian’s Spencer Ackerman.

Suspects, like the trio of potheads who wanted to attack Obama’s re-election campaign headquarters with a slingshot and marbles in protest of the NATO summit, are taken to “Homan Square.” But no one is ever booked inside it walls. No public, searchable record of their time there is generated. Neither their families nor their attorneys are informed of their whereabouts. Lawyers attempting to gain access are turned away, even if their clients are in custody inside.

At Homan Square they don’t process paperwork about your arrest. You’re just gone. No one knows.

At some point they have to do the paperwork and prosecute you. After they get your confession, you wind up back in the paperwork.

Suspects allege being beaten, kept in chain link cages, and shackled for extended periods while held inside Homan for as long 24 hours, without access to a lawyer, before being transferred precincts for booking or simply released.

“They just disappear,” said Anthony Hill, a criminal defense attorney, “until they show up at a district for charging or are just released back out on the street.”

Brian Jacob Church, one of the NATO Three, was picked up for suspected terrorist plotting in connection with protests against the NATO summit. He was taken to Homan Square, handcuffed to a bench for 17 hours, and interrogated without being read his Miranda rights. Anticipating he might be arrested in connection with the protests, Church had scrawled an attorney’s phone number on his arm, and explicitly demanded an opportunity to call that lawyer. That request was denied.

“I had essentially figured, ‘All right, well, they disappeared us and so we’re probably never going to see the light of day again,’” Church said.

Since the raid that resulted in Church’s arrest was well publicized, a team of attorneys was simultaneously searching for him to offer their services. Through 12 hours of active searching, he and his co-defendants could not be located. No booking record existed. Attorneys ultimately complained to Mayor Rahm Emanuel. Only then did they learn about Homan Square, and only hours later were Church and his co-defendants taken for booking at a police precinct.

Richard Brzeczek, Chicago’s police superintendent from 1980 to 1983, who also said he had no first-hand knowledge of abuses at Homan Square, said it was “never justified” to deny access to attorneys.

“Homan Square should be on the same list as every other facility where you can call central booking and say: ‘Can you tell me if this person is in custody and where,’” Brzeczek said.

“If you’re going to be doing this, then you have to include Homan Square on the list of facilities that prisoners are taken into and a record made. It can’t be an exempt facility.”

The NATO Three were ultimately found guilty of lesser charges (possessing an incendiary device and “mob action”), but acquitted of terrorism related offenses.

[D]efense attorneys, bolstered by undercover police recordings that prosecutors played in court, argued that the three were “goofs” who talked big and were goaded on by two undercover police officers.

[T]hey were frequently drunk, high and unable to complete simple tasks, once missing out on a protest because Church had to wait for his pot dealer.

One of the undercover officers told an apologetic Church that he needed to make a to-do list in the morning before smoking pot.

Church also said he wanted to attack four police stations but didn’t want to Google the locations of two of them. Chase advocated attacking Obama’s re-election campaign headquarters with a slingshot and marbles.

Church declined when Nadia Chikko, one of the undercover officers, asked Church if he wanted to try out one of the Molotovs they’d built with four empty beer bottles, some gasoline and a cut-up bandana from Mehmet Uygun, the other undercover officer.

“I’m too (expletive) cold to be going anywhere. I want to wrap up in my blanket and sleep,” he said.

A lawyer named Eliza Solowiej told The Guardian that she had represented a man who had already been entered into Chicago’s central booking station, and she had personally observed him in a police station without any injuries. Thereafter, someone changed his name in the system and had him moved to Homan Square without any record of the transfer. After his time in Homan Square, he was then taken to a hospital to be treated for head injuries he had incurred sometime in the interim.

Another lawyer reported taking a call from a worried mother. She believed her 15-year-old son had been arrested, but she was having trouble finding where he was being held. After “12, maybe 13” hours, the 15-year-old was released without charges.

A 44-year-old detainee named John Hubbard died in an interview room at Homan, allegedly of heroin overdose. But The Intercept’s Juan Thompson says there are no official records or even a coroner’s report confirming that cause of death. Nor are there records that explain why he was detained in the first place.

Chicago police at first did not respond to The Guardian’s questions about the facility. Once the story was initially published, the department issued a statement insisting there was nothing untoward taking place at Homan, that records are generated for arrests, and that if “lawyers have a client detained at Homan Squire, just like any other facility, they are allowed to speak to and visit them.”

As noted by The Guardian, the statement does not address how long into an arrest or detention those records are generated, or whether they are made available to the public, such as family members looking for relatives who have been picked up and attorneys searching for their clients. The department did not respond to The Guardian’s request for clarification on that issue.

[A] retired Washington DC homicide detective, James Trainum, could not think of another circumstance nationwide where police held people incommunicado for extended periods.

“I’ve never known any kind of organized, secret place where they go and just hold somebody before booking for hours and hours and hours. That scares the hell out of me that that even exists or might exist,” said Trainum, who now studies national policing issues, to include interrogations, for the Innocence Project and the Constitution Project.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Georgia Legislature to Consider Modest Reforms for ‘No-Knock’ Raids


On May 28th, 2014 around 3:00 a.m. in Habersham County, Georgia a SWAT team raided a house the police believed to be occupied by Wanis Thonetheva, an alleged drug dealer. In the chaos of the raid instead were four children and up to four adults. The youngest of the children, 19 month-old “Bou Bou” Phonesavanh was burned and permanently disfigured from a flash-bang grenade which set the play pen he was sleeping in ablaze.

No drugs or contraband of any kind was found in the home. Also absent from the residence was the man they were looking for.

Bou Bou was taken to Grady Memorial Hospital in Atlanta where he was put into a medically induced coma. Doctors were not sure if the toddler would ever wake up but fortunately, he did.

This is not by any means, the end of the Phonesavanh family’s problems with Bou Bou’s medical expenses around $1.6 million and surgeries into adulthood. These expenses, by the way, that will not be paid by the county or the departments responsible for severely injuring this child.

In the aftermath of this botched SWAT raid, several Georgia legislators are looking to reform the use of “no-knock” raids. Sen. Vincent Fort (D-Atlanta) introduced a bill he’s calling “Bou Bou’s Law” which would require a slightly higher standard for no-knock raids than required by SCOTUS. Bou Bou’s Law would require “the affidavit or testimony supporting such warrant establishes by probable cause that if an officer were to knock and announce identity and purpose before entry, such act of knocking and announcing would likely pose a significant and imminent danger to human life or imminent danger of evidence being destroyed.”

In the House, Rep. Kevin Tanner (R-Dawsonville) introduced a similar bill which would go even further by requiring that no-knock raids be conducted between the hours of 6 a.m. and 10 p.m. unless the judge issuing the warrant “expressly authorizes” another time. Tanner’s bill also requires that each department keep records of each raid which would be compiled with all the other records around the state into an annual report which would be sent to the Governor, Lieutenant Governor, and the Speaker of the House.

While these are laudable reforms which I would hope would pass any state legislature, these reforms do not go nearly far enough. Several of the articles I read in preparing this post had titles like “No Knock Warrants Could be a Thing of the Past.” In reading over these bills, I’m not quite that optimistic. As Jacob Sullum pointed out at Reason, its not at all clear that Bou Bou’s Law would have prevented the raid from happening. The police at the time thought their suspect was probably armed; it probably wouldn’t take much to convince a judge to issue the no-knock warrant.

As I took another look at Rep. Tanner’s bill, I saw no language that would restrict the hours of the standard knock and announce raids. His bill seems incredibly vague to my lay reading “all necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute such search warrant if, after verbal notice or an attempt in good faith to give verbal notice by the officer directed to execute the same of his or her authority and purpose”.

Its human nature to stretch and bend language in such a way that is favorable to one’s objectives. I can imagine the police “interpreting” this law to mean they could gently knock on the door at 3 a.m., speaking in a barely audible voice “Police, search warrant open up,” counting 1 Mississippi, 2 Mississippi, 3 Mississippi, CRASH!

There is some concern by those who think that even these modest reforms put the police in unnecessary danger – police lives matter. I’m of the opinion that ALL lives matter and propose some (admittedly) radical ideas as to how and when SWAT tactics and/or police searches should be used to protect the life and liberty of all concerned:

– If the reason for a surprise raid on a residence is that the evidence could be quickly flushed down a toilet or easily destroyed by other means, then this isn’t enough reason for such a raid in the first place. A couple of ounces of any drug flushed down a toilet is not sufficient reason to put the lives of those in the residence or the police at risk.

– SWAT should not be used at all unless its an active shooter situation, a hostage situation, or credible reason to believe there will be active, armed resistance to the search. Unless there is a very real clear and present danger, leave your military grade toys at the station.

– Each and every police officer involved in the search wears a camera (preferably on the head to have a true POV). All video from the search would be made available to the suspect’s defense attorney.

– The police departments involved are responsible for any and all “collateral damage” to life and property. In the event an innocent life is taken, the individual officer(s) responsible should be treated as anyone else who takes a life. Investigation/prosecution would be conducted by an independent investigators and prosecutors.

– Absolutely no raids or searches of any kind between 9 p.m. and 9 a.m. (though stakeouts and other activity which does not require interaction with the suspect(s) during these hours is permissible).

I’m sure that some if not all of these ideas are too radical for many lawmakers. If we really believe that “all lives matter”, however; these proposals should be thoughtfully considered.

If you would like to make a small donation to help pay Bou Bou’s medical expenses, go to this GoFundMe page which has raised nearly $43k so far.

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