CrimProf Blog

Judges rule three-strikes sentence unconstitutional

California's three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez's harsh sentence was grossly disproportionate to his "entirely passive, harmless and technical violation of the registration law," the appeals court said.

The California Penal Code requires a sex offender to register whereabouts annually within five working days of an ex-convict's birthday. Gonzalez had registered in Los Angeles County in May 2000 and confirmed his address a year later, meeting the yearly requirement but violating the deadline of his Feb. 24 birthday.

"This is not a case where my client failed to register. He failed to update his address information that was still good," said Gia Kim, the federal public defender who argued Gonzalez's case to the appeals court.

Registration infractions carry a maximum three-year sentence in California, and Gonzalez's oversight wouldn't even qualify as a crime in at least 11 states, wrote Circuit Judge Jay S. Bybee, one of the court's more conservative judges.

Bybee also pointed out that Gonzalez, who has already been in prison for more than seven years for this third felony conviction, was facing substantially more severe punishment than that imposed in California for far more serious crimes, such as second-degree murder.

It was unclear how much significance Tuesday's ruling would have for others sentenced to long terms for minor third offenses. [Mark Godsey]

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Emotions tested in a year of crime

The criminal landscape of 2008 reminded all of us how fragile — and strange — life can be.

It was a tragic year for police officers, with the Houston Police Department losing three to violent circumstances. As a result, Texas again led the nation for officer deaths in the line of duty.

2008 also was a tragic year for young children who apparently suffered at the hands of their parents — including a 3-month-old boy found stomped to death in a roadside ditch in Galveston and two Pasadena siblings whose burned bodies were found a week after they disappeared on Father's Day.

And it was a year that will be remembered for the bizarre and the downright ghoulish. Two decapitations grabbed the public's attention — that of a beloved deer housed in a wildlife sanctuary at a west Harris County park, the other of a corpse buried in a Humble cemetery in 1921 whose skull was allegedly used by Kingwood teens as a "bong" device to smoke marijuana.

Few police officers are shocked by anything that people might do. But some agree the emotional lows brought on by this year's crimes will be a tough pill to swallow.

"There's no doubt that 2008, in that regard, were some very emotionally bitter times," said Mark Clark, executive director of the Houston Police Officers' Union. "Everybody gets emotionally scarred by this kind of stuff."

Statistically speaking, crime has not changed all that much. Homicides declined in Houston in 2008, dropping by 15 percent from the year before, based on preliminary numbers provided by the Houston Police Department.

As of Tuesday, HPD had investigated 294 homicides, down from 348 homicides reported during the same period in 2007. The statistics are unofficial since they have not yet been reported to the FBI for inclusion in the annual Uniform Crime Report.

In the unincorporated areas of Harris County, homicides increased slightly this year, with the Sheriff's Office investigating the deaths of 71 people killed in 2008 — up from 63 in 2007.

And violent crimes as a whole — homicides, rapes, robberies and aggravated assaults — appeared to hold steady in the unincorporated areas of the county, with the numbers hardly budging from 2007 to 2008, said sheriff's Lt. John Legg.

But statistics don't mean much when officers face unexpected tragedies, such as the violent loss of one of their own. [Mark Godsey]

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Girding for new marijuana law, state offers enforcement tips

Police officers should issue tickets, similar to a building code citation, to anyone possessing an ounce or less of marijuana, under an advisory released by the state yesterday recommending ways to manage the law decriminalizing possession of the drug.

The law is effective Jan 2.

Violators may appeal the citation - a civil infraction - in court within 21 days or pay the $100 fine set by the statute. Municipalities would be responsible for collecting the fines, according to the recommendations.

With much confusion over how police should handle marijuana possession, ranging from enforcement measures to whether officers themselves can be punished for using the drug, the state's Executive Office of Public Safety and Security released the seven pages of guidelines hoping to set a clear standard before the law takes effect Friday.

The guidelines, which are not binding, were issued even as aspects of the law continue to trigger new questions - such as whether people who smoke marijuana in public face only the civil fine as punishment.

"It gives some people guidance so that they can move forward, so that we can eliminate any confusion as to how this statute is meant to be applied, and alleviate any concerns," said Kevin M. Burke, secretary of Public Safety and Security.

The recommendations also unveiled new interpretations of the initiative petition, similar to acts passed in 13 states, that was approved overwhelmingly by voters in November. Not only is possessing an ounce or less of marijuana a civil offense, but the same amount of any substance - including hashish, or hash oil - with the active ingredient THC would also be decriminalized.

In addition, the state is asking communities to consider passing local ordinances criminalizing the use of marijuana in public, which, as of Friday, would not warrant any punishment beyond the civil citation. [Mark Godsey]

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N.Y. High Court Bars Surrogate-Elect Over Campaign Contributions

The Court of Appeals on Monday barred Nora S. Anderson from becoming Manhattan surrogate on Jan. 1 pending the outcome of Manhattan District Attorney Robert M. Morgenthau's prosecution of her for allegedly failing to accurately report contributions to her campaign this summer.

A 6-0 court suspended Anderson with pay effective Thursday, when the 10-year term she won earlier this year is to begin. The court gave no reasoning for its decision.

Chief Judge Judith S. Kaye took no part in the deliberations.

Chief Administrative Judge Ann Pfau will designate an interim judge to fill the opening by early January, said David Bookstaver, a spokesman for the Office of Court Administration.

Anderson is facing a 10-count indictment that she falsely reported $250,000 that flowed into her campaign in the days preceding her hard-fought primary victory in September over two Democratic rivals. Morgenthau contends the money came in donations and loans from attorney Seth Rubenstein, for whom Anderson has worked for nearly a decade, but was not reported accurately by Anderson in filings with the Board of Elections.

Both Anderson and Rubenstein have been free on their own recognizance since their arraignments. Each faces a prison term of 1 1/3 to four years on each of the top six counts of the indictment, all Class E. felonies.

In a letter to the Court of Appeals, Anderson's attorney, Richard Godosky, had argued that the court was not obligated to suspend Anderson as she contested the charges against her. He also urged that if suspension was the court's decision, that it be with pay.

Manhattan's other surrogate, Kristin Booth Glen, confirmed to the New York Law Journal earlier this month that she swore Anderson in as surrogate about a month after the election. Godosky argued before the Court of Appeals that because she has already been sworn in, Anderson cannot legally practice law after Jan. 1, even if she is prohibited from taking the bench as her prosecution unfolds.

Godosky also told the court that Anderson contributes $800 a month toward the care of her elderly mother, who has Alzheimer's disease, and her terminally ill brother, who lost his job when the firm he worked for was destroyed when the World Trade Center towers were felled on Sept. 11, 2001. Surrogates are paid $136,700 a year.

Godosky, of Godosky & Gentile, said Monday the court's determination to suspend Anderson with pay is a "decision that they've made consistently" in cases where judges face felony charges unrelated to the performance of their official duties. He declined further comment. [Mark Godsey]

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Judge-Elect, Indicted, Is Suspended by Court

The New York State Court of Appeals on Monday ordered the suspension of Judge-elect Nora S. Anderson while she faces criminal charges accusing her of committing financial fraud during her campaign to become a Surrogate’s Court judge in Manhattan.

The suspension will take effect on Thursday, the same day that Ms. Anderson was scheduled to take her seat on the bench, according to Gary Spencer, a spokesman for the Court of Appeals, the state’s highest court. A temporary replacement will be assigned by Ann Pfau, the state’s chief administrative judge.

The appeals court judges voted 6 to 0 to suspend Ms. Anderson, Mr. Spencer said. Chief Judge Judith S. Kaye did not participate because she is going to retire from the court on Wednesday and will not be on the bench when the suspension takes effect.

In most instances, judges facing criminal charges are suspended with pay if the charges have nothing to do with their official duties on the bench, Mr. Spencer said.

A call to Ms. Anderson’s lawyer, Gustave H. Newman, was not returned.

In September, Ms. Anderson rode a well-financed campaign to victory in the Democratic primary in the Surrogate’s Court race. She beat Justice Milton Tingling and John J. Reddy Jr., a lawyer with the Manhattan public administrator’s office. Ms. Anderson was uncontested in the November general election.

This month she was indicted in State Supreme Court in Manhattan on charges that she had concealed the source of $250,000 worth of contributions to her campaign. Prosecutors with the Manhattan district attorney’s office also charged Seth Rubenstein — the head of the Brooklyn law firm where Ms. Anderson works, who also served as her campaign adviser — who they say funneled the money illegally to Ms. Anderson’s campaign account. [Mark Godsey]

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Report: Police officer deaths down in 2008

Deaths of law enforcement officers in the line of duty fell sharply in 2008, with the number killed by gunfire reaching its lowest level in more than five decades, according to a report published Monday.

The statistics show 2008 has been "one of the safest years for U.S. law enforcement in decades," wrote two groups: the National Law Enforcement Officers Memorial Fund and Concerns of Police Survivors.

Based on preliminary data, the groups found that 140 law enforcement officers were killed in 2008 -- 86 of them accidentally and 54 intentionally.

Just the year before, the group found 181 deaths -- 108 of them accidental and 73 intentional.

"Fewer officers were killed by gunfire in 2008 than in any year since 1956," the report says. "Preliminary data indicate 41 officers died in firearms-related incidents this year, compared with 68 in 2007, a reduction of 40 percent."

In a statement accompanying the report, Craig W. Floyd, chairman of the National Law Enforcement Officers Memorial Fund, said, "2007 was a wake-up call for law enforcement in our country, and law enforcement executives, officers, associations and trainers clearly heeded the call, with a renewed emphasis on officer safety training, equipment and procedures."

He listed reasons for the drop in officer deaths, including better training and equipment; increased use of less-lethal weapons; more officers wearing bullet-resistant vests; and an increased awareness among officers that "every assignment is potentially life-threatening."

Floyd also cited a downturn in violent crime in general and what he called a tougher criminal justice system.

"The reduction in firearms-related deaths is especially stunning, given the tremendous firepower possessed by so many criminals today," Floyd added in the statement.

The report's figures are different from those held by the FBI. For example, the FBI lists 140 law enforcement officers killed in 2007 -- 83 accidentally and 57 intentionally. [Mark Godsey]

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Study: Houston leads in homicides by black youths

As violent crime nationally slows in growth or declines, the United States is facing a dramatic — but hardly noticed — increase in murders by and of young African-American men, a Northeastern University study released today reports.

Between 2002 and 2007, the number of black male juveniles murdered nationally increased by 31 percent and the number of black perpetrators by 43 percent. The increases were even greater, the report said, when guns were used as weapons.

Focusing on the period between 2000-01 and 2006-07, the study found Houston at the top of a list of 28 U.S. cities, with a 139 percent increase in the number of young African-Americans suspected in killings.

In 2006-07, 129 young black men were murdered in the city, up from 42 in 2000-01.

Those increases came as homicides by and of young white men slowed or declined. In Houston, the number of white offenders dropped by 10 percent. Nationally, FBI statistics showed murder decreased 1.3 percent in 2007 from the previous year.

"I don't want to suggest that this is an epidemic, a crisis situation," said study co-author James Fox, professor of criminal justice and law, policy and society at the university in Boston. "But it's absolutely a growing concern, not a one-year blip."

Fox and his associate, criminologist Marc Swatt, argued in the report that the increases occurred as the federal government cut support for community policing and intervention programs put in place to combat a rise in gang violence in the 1990s.

Though current violence falls short of levels in the '90s, the report's authors called for renewal of government support for intervention. "Let this small upturn serve as a thunderous wake-up call that crime prevention needs to be a priority again," they wrote.

"Kids can't wait, and crime doesn't wait," Fox said. "There is a significant need here — a large group of kids with inadequate, inferior education and a ready access to guns. A teenager with a gun in his hand is a dangerous individual."

Houston community activist Quanell X called the study a "blanket indictment of the city and government officials in the city and a greater indictment of ministers and political leaders of the African-American community."

He called for a citywide black leadership summit to find ways to end the violence.

"Until African-American leaders, both spiritual and political, male and female, can get into that room and check their egos at the door and say, 'To hell with party politics,' and walk out of that room with a plan all of us can have a part in," the killings will continue, he said.

Shape Community Center's Deloyd Parker questioned the way the study was conducted. "When they say 'offender,' does that mean someone who's charged with a crime or been convicted?" he said. "Sometimes even being convicted doesn't mean you're actually guilty." [Mark Godsey]

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Gov. Rod Blagojevich pardons 22 people

Marcus Lyons was so bitter after leaving prison in 1991 that he tried to nail himself to a wooden cross outside the DuPage County Courthouse.

On Friday, two decades after he was convicted of a rape he did not commit, Lyons was one of 22 people pardoned by Gov. Rod Blagojevich.

Lyons, 51, said he felt fortunate to have received clemency, knowing that a growing backlog has left hundreds of others waiting for decisions from the governor.

But Lyons, now living in Indiana, said he is still upset with police officers from Woodridge, where the crime took place in 1987. He said Friday's pardon can't return the one thing he wants most.

"You can never get your reputation back," he said.

Most of the other 21 people pardoned on Friday appeared to have already served short sentences for such crimes as burglary, forgery or robbery, with a few more serious cases of battery.

The "pardon based on innocence" allows Lyons to apply for about $85,000 in compensation for the 3 years he served, said his attorney, Jane Raley of the Center on Wrongful Convictions at Northwestern University School of Law.

But perhaps more important, she said, "it begins to address the enormous suffering he's endured."

On Nov. 30, 1987, a 29-year-old woman who lived in a Woodridge apartment complex told police she had been raped. She erroneously identified Lyons as her attacker. [Mark Godsey]

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State senators study case of innocent man who died in prison

Legislators may change state law to recognize the innocence of a Fort Worth man convicted in Lubbock more than 20 years ago.

State Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, may clarify how the state compensates and exonerates wrongfully convicted inmates who die in prison.

The work, along with recognition by Texas courts, could bring closure after 22 years to the family of Timothy Brian Cole and formally recognize what could be the country's first posthumous exoneration.

"I think we need to recognize that for the family," Duncan said. "When the government deprives somebody of liberty, that's a pretty significant right."

Texas has cleared nearly three dozen inmates through DNA testing over the last 14 years. Officials could not name a case in this state or another where testing has uncovered the innocence of the dead.

Legislation Duncan authored seven years ago gave inmates with a legitimate innocence claim easier access to DNA testing. A separate bill by Ellis laid out rules for compensating the innocent Texas had imprisoned.

"I think this basically improves the reliability of our prosecutions and, hopefully, provides some assurance to the public that the criminal justice system has checks and balances," Duncan said in a late November interview. "Hopefully, maintains the integrity of the justice system."

Duncan's bill took effect in April 2001. He knew proponents believed DNA would clear many inmates. But he never expected the state would find 35, he said.

"I just remember thinking that day, You do some things in the legislative world, but we made a difference in those guys' lives," Duncan said.

The new rules renewed Jerry Wayne Johnson's interest in a long-settled rape case.

The former Lubbock resident hoped to clear himself in the rape of a 15-year-old girl abducted at knife point from her high school. A Lubbock jury gave Johnson a life sentence for the crime in 1987 after two eyewitnesses put him at the scene.

But from his state jail cell outside of Snyder he began to work on another case as well. He looked for an inmate he said he heard sobbing in a Lubbock County cell hours after a Lubbock jury convicted the man of rape. Johnson knew that Tim Cole was innocent.

Johnson had tried to draw attention to the case years before, after he knew the statute of limitations for the crime had expired. More than 20 years after a black man abducted and raped a Texas Tech student from a church parking lot, Cole's mother read a letter from Johnson promising that a DNA test would prove that he, not Cole, had committed the crime.

Cole died in prison of an asthma attack in 1999. The former Texas Tech student maintained his innocence to the end, and in 2008, DNA testing requested by the Lubbock County District Attorney's office proved he had told the truth.

But the legislation Ellis and Duncan moved through the 2001 session assumed the inmate would be alive to press his claim. It never occurred to Ellis that evidence could come forward after an innocent man had died.

"His case is another example of the need for Texas to take responsibility and, at the very least, compensate the families of the wrongfully convicted in these posthumous exoneration cases," Ellis said. "If I had thought of a circumstance like this, I would have handled it in the bill to begin with."

Instead, the lone amendment attached to the bill legislators passed specifically excluded payments to the spouses or estates of wrongfully convicted Texans once they have died.

Counties and law enforcement agencies must only keep DNA evidence or other materials tied to a case so long as the inmate lives, under Duncan's legislation. The law does not compel the testing that Lubbock's district attorney's office preformed - even the existence of the evidence after so many years was a fluke.

Duncan and Ellis said ahead of the session they would work on whatever means it took to make the laws reflect issues brought about by Cole's case. [Mark Godsey]

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Pa. public-records law changing

Pennsylvania state, county and local governments will be operating under a new set of rules in 2009 when a new Right-To-Know Law goes into effect.

“The big difference is the burden of proving a record is not public is on the agency, rather than on the members of the public,” said Chambersburg Borough Secretary Tanya Mickey, who has been named the borough’s open records officer.

That will be another difference, with governments designating to whom those records should go, Mickey said. The borough’s updated policy and a form to request information soon will be available on Chambersburg’s Web site (www.borough.chambersburg.pa.us), she said.

“The district has been working several months to fully comply with the law,” which was passed in February, said Sylvia Rockwood, director of information services for the Chambersburg Area School District. “All district administrators have attended a two-hour training conducted by the Pennsylvania School Boards Association.

“We’ve set clear procedures and notified all employees of the importance of the law.”

The law provides that, once a request has been made, a government agency has five days to respond to the request and, if the information is not exempted under the law, up to 30 days to provide the requested information. An agency can request an extension of time to gather records, but if a request is denied, it has to be in writing with legal citations and there is an appeals procedure for the requester, according to the law.

That does not mean that any information requested by a member of the public will have to be obtained through a formal request, said Franklin County Deputy Chief Clerk Jean Byers, the county’s open records officer.

“We sent out an e-mail to our division leaders asking them to have all the departments and agencies under them to compile a list of what we’d call normal requests ... that they’d continue to hand out without a request form,” Byers said. [Mark Godsey]

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Money for future Dallas DNA testing lost in Madoff scandal

Panic ensued at the Innocence Project of Texas when a powerful Wall Street investor was arrested this month and accused of swindling investors out of $50 billion.

One of the organizations that had invested with Bernard Madoff was the JEHT Foundation, which funds post-conviction DNA tests for Dallas County inmates who claim they are innocent. Without the funding, the Innocence Project would be faced with trying to raise capital in a bad economy and those seeking tests could face indefinite delays, if the testing could be done at all.

Panic ensued at the Innocence Project of Texas when a powerful Wall Street investor was arrested this month and accused of swindling investors out of $50 billion.

One of the organizations that had invested with Bernard Madoff was the JEHT Foundation, which funds post-conviction DNA tests for Dallas County inmates who claim they are innocent. Without the funding, the Innocence Project would be faced with trying to raise capital in a bad economy and those seeking tests could face indefinite delays, if the testing could be done at all. [Mark Godsey]

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Feds consider searches of terrorism blogs

Homeland Security Department may soon start scouring the Internet to find blogs and message boards that terrorists use to plan attacks in the USA.

The effort comes as researchers are seeing terrorists increasingly use the Internet to plan bombings, recruit members and spread propaganda. "Blogging and message boards have played a substantial role in allowing communication among those who would do the United States harm," the department said in a recent notice.

Homeland Security officials are looking for companies to search the Internet for postings "in near to real-time which precede" an attack, particularly a bombing. Bombings are "of great concern" because terrorists can easily get materials and make an improvised-explosive device (IED), the department said.

"There is a lot of IED information generated by terrorists everywhere — websites, forums, people telling you where to buy fertilizer and how to plant IEDs," said Hsinchun Chen, director of the University of Arizona's Artificial Intelligence Lab. Chen's "Dark Web" research project has found 500,000,000 terrorist pages and postings, including tens of thousands that discuss IEDs.

Chen and others aren't sure how helpful blogs and message boards will be in uncovering planned attacks.

"I just can't envision a scenario where somebody posts to a message board, 'I'm getting ready to launch an IED at this location,' and the government will find that," said terrorism analyst Matt Devost. A lot of postings about attacks are "fantasy, almost role-playing," Devost said.

Internet searches are used routinely by government agencies, such as the Defense Department, in gathering intelligence, said Chip Ellis of the Memorial Institute for the Prevention of Terrorism.

The searches use methods similar to a Google query and can be helpful in uncovering the latest IED technology, Ellis said.

Steven Aftergood, an intelligence expert at the Federation of American Scientists, praised Homeland Security for "trying to develop innovative approaches" and said its effort would not jeopardize privacy because the department would be scanning public websites. [Mark Godsey]

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How To Prosecute a Shoe-Thrower

Muntadar al-Zaida, the Iraqi journalist who threw his shoes at George W. Bush, will stand trial Dec. 31, the BBC reported Monday. He's being charged with "aggression against a foreign head of state," which carries a prison term of between five and 15 years. If a reporter here in the United States flung his footwear at, say, Iraqi President Jalal Talabani, would he do time?

This editorial page has been uncompromising in its criticism of the Bush administration's flouting of international and domestic law. The administration was wrong to evade courts in seeking warrantless surveillance of Americans, wrong to establish the Guantanamo Bay detention center, heinous in its acceptance of torture. But we are wary of either the criminal prosecution of administration officials or some South-Africa-style process.

The former model is reminiscent of the Watergate scandal, in which several officials -- including President Nixon -- broke identifiable criminal statutes by obstructing the investigation of a burglary motivated by partisan politics. From there, of course, Watergate expanded into a web of criminal violations, from break-ins to the use of the IRS to punish political enemies of the Nixon White House. It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.

Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.

That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them. [Mark Godsey]

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Border Patrol grows and so do concerns

Shortly after riding a U.S. Border Patrol dune buggy in Arizona's high desert 2½ years ago, President George W. Bush initiated a beefed-up border-security policy that some say has infringed on civil liberties -- and led to crackdowns around Port Angeles and Bellingham.

"We want our borders shut to illegal immigrants, as well as criminals and drug dealers and terrorists," declared Bush, who ordered the Border Patrol to hire 6,000 more agents by the end of this year.

In Blaine, at the U.S.-Canada border, the Border Patrol has nearly quadrupled in size -- from about 50 agents eight years ago to about 190 today. It's using its wealth of manpower to throw up roadblocks on highways and search buses dozens of miles from the nearest border.

They're searching for terrorists, drug dealers and illegal immigrants, a mission the Border Patrol says it has the right to do within 100 miles of the border. In Western Washington, that means roadblocks could be set up at least as far south as Seattle.

Agents make daily checks on the Olympic Peninsula of an intercity bus line at its Discovery Bay stop, said Mike Bermudez, a supervisory agent and spokesman.

"The agents ask everyone on the bus what their citizenship is," he said. "No one on the bus but the driver can escape that question."

The owner of the bus line has no problem with the patrol boarding his buses.

"They're very good at what they do," said Olympic Bus Lines President Jack Heckman, who hasn't heard any complaints. "They come on the bus, announce who they are. It does not delay us at all."

The patrol had been questioning bus passengers sporadically for years, Heckman said, but now "it's at least a weekly occurrence."

It's unclear how effective the tactic is at stopping terrorists. The patrol refuses to release any information about such arrests or investigations, citing national security considerations.

Eight undocumented people have been arrested as a result of bus boardings on the Olympic Peninsula since fall 2007, Bermudez said. In Bellingham, 13 people have been arrested in bus and train boardings during the same period.

Roadblocks, which the patrol calls "tactical traffic checkpoints," have garnered more arrests. [Mark Godsey]

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Jewish group leader complains about Rubashkin treatment

A leader of one of the country’s most prominent Jewish groups complained to the U.S. attorney general Wednesday about the treatment of a former Iowa meatpacking executive.

The complaint centers on the government’s decision to deny bail to Sholom Rubashkin, the longtime leader of the Agriprocessors plant in Postville, Ia.

Abraham Foxman, national director of the Anti-Defamation League, wrote a letter about the case Wednesday to Attorney General Michael Mukasey. Foxman complained about prosecutors’ successful argument that Rubashkin should be denied bail, partly because as a Jew, he is eligible for Israeli citizenship.

Prosecutors have noted that Israel has a “Law of Return,” which allows Jews from around the world to settle there.

Rubashkin is facing federal charges of bank fraud and conspiring to hire undocumented workers at the plant. Foxman stressed that his organization has no position on the facts of that case. But he asked Mukasey to “set clear policy” for federal prosecutors, saying that they should not use the Law of Return as a reason to deny bail to Jews.

“The Law of Return is not ‘de facto’ citizenship for Jews in Israel, and it should not be used to hold Jewish defendants who do not exhibit some credible threat of flight to Israel,” Foxman wrote. “It is unconstitutional to argue in this – and in future cases – that Jewish defendants are to be held to a different standard of detention than non-Jewish defendants.”

Foxman said people of Irish or Indian ancestry also could seek citizenship in their families’ homelands. He said that fact should not be held against them, either.

Justice Department spokespeople were not available for comment Wednesday afternoon. Federal prosecutors have denied that their argument is unconstitutional.

They say they have legitimate reasons to fear Rubashkin could flee to Israel if released from jail. They note that two other former Agriprocessors managers, one of whom is Jewish, are believed to have done so.

Federal Magistrate Jon Scoles agreed with prosecutors and has ordered Rubashkin jailed until his trial, which is set for September. [Mark Godsey]

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Is the Bush administration criminally liable for its lawlessness?

Whatever its other legacies, the Bush administration will be remembered for its contemptible disregard for the law in the post-9/11 war on terrorism. From the wiretapping of Americans without a court order to the waterboarding of suspected terrorists to the refusal to abide by the requirements of the Geneva Convention, many of the administration's policies can fairly be described as lawless.

But were they also criminal? Should officials, including Vice President Dick Cheney and former Defense Secretary Donald H. Rumsfeld, be put on trial, either in a court of law or in a forum like South Africa's Truth and Reconciliation Commission? As the Bush administration nears its end, calls for such a reckoning are coming from civil libertarians and some supporters of President-elect Barack Obama. Some even argue that President Bush should be indicted.

This editorial page has been uncompromising in its criticism of the Bush administration's flouting of international and domestic law. The administration was wrong to evade courts in seeking warrantless surveillance of Americans, wrong to establish the Guantanamo Bay detention center, heinous in its acceptance of torture. But we are wary of either the criminal prosecution of administration officials or some South-Africa-style process.

The former model is reminiscent of the Watergate scandal, in which several officials -- including President Nixon -- broke identifiable criminal statutes by obstructing the investigation of a burglary motivated by partisan politics. From there, of course, Watergate expanded into a web of criminal violations, from break-ins to the use of the IRS to punish political enemies of the Nixon White House. It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.

Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.

That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them. [Mark Godsey]

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New NYPD system alerts officers on the mentally ill

A day after the NYPD used a stun gun on an emotionally disturbed man, Iman Morales, volunteers meticulously cleaned blood from the sidewalk. Morales died when he fell from the second floor ledge in Brooklyn. (Newsday Photo / Ari Mintz / September 25, 2008)

The New York Police Department has a new alert system that lets officers know if they are responding to locations where police have previously been sent to deal with the mentally ill, an initiative sparked by the fatal 2007 shooting of a man who confronted officers with a broken wine bottle.

Under terms of the month-old initiative, a 911 dispatcher handling a "triggering incident" -- anything from a "shots fired" call to an assault in progress -- checks the address to see if it has been the scene of three previous incidents involving an emotionally disturbed person in the preceding 365 days, according to an internal NYPD order.

If so, the dispatcher tells responding officers about the previous incidents and sends to the scene an ambulance and the Emergency Service Unit, whose officers are best-trained to deal with the mentally ill.

A police patrol supervisor, who is usually armed with a portable Taser, is also sent to the scene. [Mark Godsey]

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As Economy Dips, Arrests for Shoplifting Soar

Recently laid off from a job building trailers in Elkhart, Ind., Mr. Johnson came up a dollar short at Martin’s Supermarket last month when he went to buy a $4.99 bottle of sleep medication. So, “for some stupid reason,” he tried to shoplift it and was immediately arrested.

“I was desperate, I guess,” said Mr. Johnson, 25, who said he had never been arrested before. As the economy has weakened, shoplifting has increased, and retail security experts say the problem has grown worse this holiday season. Shoplifters are taking everything from compact discs and baby formula to gift cards and designer clothing.

Police departments across the country say that shoplifting arrests are 10 percent to 20 percent higher this year than last. The problem is probably even greater than arrest records indicate since shoplifters are often banned from stores rather than arrested.

Much of the increase has come from first-time offenders like Mr. Johnson making rash decisions in a pinch, the authorities say. But the ease with which stolen goods can be sold on the Internet has meant a bigger role for organized crime rings, which also engage in receipt fraud, fake price tagging and gift card schemes, the police and security experts say.

And as temptation has grown for potential thieves, so too has stores’ vulnerability.

“More people are desperate economically, retailers are operating with leaner staffs and police forces are cutting back or being told to deprioritize shoplifting calls,” said Paul Jones, the vice president of asset protection for the Retail Industry Leaders Association.

The problem, he said, could be particularly acute this December, “the month of the year when shoplifting always goes way up.”

Two of the largest retail associations say that more than 80 percent of their members are reporting sharp increases in shoplifting, according to surveys conducted in the last two months.

Compounding the problem, stores are more reluctant to stop suspicious customers because they fear scaring away much-needed business. And retailers are increasingly trying to save money by hiring seasonal workers who, security experts say, are themselves more likely to commit fraud or theft and are less practiced at catching shoplifters than full-time employees are.

More than $35 million in merchandise is stolen each day nationwide, and about one in 11 people in America have shoplifted, according to the nonprofit National Association for Shoplifting Prevention.

“We used to see more repeat offenders doing it because of drug addiction,” said Samyah Jubran, an assistant district attorney in Knoxville who for 13 years has handled the bulk of the shoplifting cases there. “But many of these new offenders may be doing it because of the economic situation. Maybe they’re hurting at home, and they’re taking a risk they may not take otherwise.” [Mark Godsey]

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Is the Bush administration criminally liable for its lawlessness?

Whatever its other legacies, the Bush administration will be remembered for its contemptible disregard for the law in the post-9/11 war on terrorism. From the wiretapping of Americans without a court order to the waterboarding of suspected terrorists to the refusal to abide by the requirements of the Geneva Convention, many of the administration's policies can fairly be described as lawless.

But were they also criminal? Should officials, including Vice President Dick Cheney and former Defense Secretary Donald H. Rumsfeld, be put on trial, either in a court of law or in a forum like South Africa's Truth and Reconciliation Commission? As the Bush administration nears its end, calls for such a reckoning are coming from civil libertarians and some supporters of President-elect Barack Obama. Some even argue that President Bush should be indicted.

This editorial page has been uncompromising in its criticism of the Bush administration's flouting of international and domestic law. The administration was wrong to evade courts in seeking warrantless surveillance of Americans, wrong to establish the Guantanamo Bay detention center, heinous in its acceptance of torture. But we are wary of either the criminal prosecution of administration officials or some South-Africa-style process.

The former model is reminiscent of the Watergate scandal, in which several officials -- including President Nixon -- broke identifiable criminal statutes by obstructing the investigation of a burglary motivated by partisan politics. From there, of course, Watergate expanded into a web of criminal violations, from break-ins to the use of the IRS to punish political enemies of the Nixon White House. It's conceivable that individuals in the Bush administration violated criminal law. But if they did so as part of a post- 9/11 response to terrorism, it would be all but impossible to prosecute them successfully.

Besides, the scandal of the Bush administration wasn't a matter of individual, politically motivated violations of law. Rather, it was a systemic failure to take seriously the spirit as well as the letter of this country's commitment to the humane treatment of prisoners or the privacy rights of Americans secured by the Foreign Intelligence Surveillance Act, or FISA.

That's a failure in which Congress must share culpability with the administration. It was the administration that, with the help of compliant legal counsel, rationalized the use of "enhanced" interrogation techniques such as waterboarding, sleep deprivation, humiliation and the use of dogs to intimidate prisoners of war and suspected terrorists. But, as the vice president argued recently, Congress at first either acquiesced in, or offered muted objections to, the administration's policies. That the failures were collective rather than individual makes them no less appalling, but it does suggest that a criminal prosecution will not remedy them. [Mark Godsey]

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NYPD's "Operation Impact" Credited with Success in Tough Precincts

Along Linden Boulevard in East New York, the officers of Operation Impact patrol the Pink Houses with all the rigor of a military patrol, a clannish band of partners whose uniforms shout authority even when they do not speak.

They tread the maze of eight-story buildings, inspect the interior staircases, aim their flashlights into the nighttime darkness of rooftops and — on a recent frigid night — coat their lips with layers of ChapStick.

The police officers in this outpost in the eastern end of Brooklyn are part of a mini crime-suppression operation, one reliant on money, manpower and labor. They are the tip of the New York Police Department’s crime-fighting spear.

“We feel really proud of the job we’re doing here,” Officer Kevin Martinez, 24, said as he walked his beat in the Louis H. Pink Houses, a public housing project of 1,500 apartments in 22 buildings.

“When they see us here, they feel safe,” he said.

A similar story can be told in 19 other precincts using Operation Impact, the broad anticrime program devised by Police Commissioner Raymond W. Kelly, in which rookie officers join with supervisors to flood the city’s toughest neighborhoods. By focusing on such high-crime plateaus, the Police Department is poised to end another year with even less overall crime.

Yet a stormy economy is not receding.

Mayor Michael R. Bloomberg is tightening budgets and warning of tough financial times. Joblessness is up. Homicides have increased slightly; after dropping to 496 last year — the lowest number in more than four decades — the city hit that number last week. By 5 p.m. on Tuesday, the city had 502 homicides, the police said.

At the same time, the Police Department, with 94 percent of its $4 billion operating budget devoted to personnel costs, is facing budget reductions of $45.4 million for the remainder of this fiscal year, which ends in June, and $167 million in the 2010 fiscal year. On top of that, City Hall wants the department to find ways to save $285.7 million more.

After the next cut is made, the Police Department’s uniformed force will have shrunk by 4,400 officers, from a peak strength of 40,800 in 2001. The incoming Police Academy class in January will have 250 recruits; the department had previously anticipated hiring 1,100. An additional 1,100 officers set to graduate on Dec. 30 will join the 1,300 officers already in Operation Impact posts — effectively doubling their strength.

But if promotions and retirements create dangerous shortfalls in some precincts, some Impact officers may have to be moved to other spots, Mr. Kelly said. “We’ve had contracting and expanding numbers of cops in Impact, so the concept will remain,” the commissioner said in an interview last week. “But the numbers may vary.”

When asked if New York could ever return to crime levels seen in the late 1980s, he said: “Never. We’d never let that happen.”

Read full article here. [Brooks Holland]