CrimProf Blog

Liptak Considers the Future of the Exclusionary Rule

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

Read full article here. [Brooks Holland]

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]

Continue Reading "Report: Police officer deaths down in 2008"

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]

Continue Reading "Border Patrol grows and so do concerns"

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]

Craigslist Increasingly Used to Sell Drugs

Drug dealing on craigslist has become so rampant that the city's special narcotics prosecutor has asked the online trading post to curb the ads, the Daily News has learned.

Bridget Brennan's undercover investigators have bought drugs offered on craigslist personals from dealers ranging from a Citigroup banker to an Ivy Leaguer to a violent felon using a halfway house computer. In the past four years, her office has prosecuted dozens of dealers.

"Ski lift tickets are here for sale ... Tina Turner tickets ... best seats around!" Offers like these appear virtually every day on craigslist, and they are thinly veiled ads posted by people hawking cocaine (ski) or crystal meth (cristina or tina).

"Despite devoting considerable resources to prosecuting these cases, drug dealing is still thriving on craigslist," Brennan wrote craigslist CEO Jim Buckmaster. Brennan said she was inspired to act by a recent agreement between craigslist and attorneys general from 40 states to curb prostitution ads.

"It's like shooting fish in a barrel," Brennan said of how easy it is to find dealers on craigslist.

One undercover said he just types "ski" in the search field and up pops ad after ad with offers.

"We respond to the ad, but it must lead to a meeting where the drug is exchanged for money, like any regular drug deal," the investigator said.

Ten days ago, craigslist unveiled sweeping new measures, in partnership with law enforcement and the National Center for Missing and Exploited Children, to stop its ads from being used for prostitution, child exploitation and other illegal activities.

Craigslist will require "erotic services" providers to pay $10 for each listing and pay with a credit card, which the police will be able to subpoena.

Brennan says the idea could be applied to drug ads.

"I would like members of my staff who have an expertise in prosecuting Internet drug sales to meet with you and explore ways to curb drug dealing on your Web site," her letter says.

In an interview, Brennan said the best course is "to work with them to screen out sellers. They would have to focus on commonly used terms and develop screening mechanisms.

Read full article here. [Brooks Holland]

San Francisco to Vote on Decriminalization of Prostitution

In this live-and-let-live town, where medical marijuana clubs do business next to grocery stores and an annual fair celebrates sadomasochism, prostitutes could soon walk the streets without fear of arrest.

San Francisco would become the first major U.S. city to decriminalize prostitution if voters next month approve Proposition K — a measure that forbids local authorities from investigating, arresting or prosecuting anyone for selling sex.

The ballot question technically would not legalize prostitution since state law still prohibits it, but the measure would eliminate the power of local law enforcement officials to go after prostitutes.

Proponents say the measure will free up $11 million the police spend each year arresting prostitutes and allow them to form collectives.

"It will allow workers to organize for our rights and for our safety," said Patricia West, 22, who said she has been selling sex for about a year by placing ads on the Internet. She moved to San Francisco in May from Texas to work on Proposition K.

Even in tolerant San Francisco — where the sadomasochism fair draws thousands of tourists and a pornographic video company is housed in a former armory — the measure faces an uphill battle, with much of the political establishment opposing it.

Some form of prostitution is already legal in two states. Brothels are allowed in rural counties in Nevada. And Rhode Island permits the sale of sex behind closed doors between consenting adults, but it prohibits street prostitution and brothels.

In 2004, almost two-thirds of voters in nearby Berkeley rejected decriminalization. But proponents of Proposition K say their proposal has a better shot in San Francisco, which they believe is more sexually liberal than the city across the bay.

After all, the world's oldest profession has long been established here. During the Gold Rush, the neighborhood closest to the piers was a seedy pleasure center of sex, gambling and drinking known as the Barbary Coast.

These days, on certain corners, prostitutes sell their bodies day and night, ducking into doorways and alleys when police pass by. One recent afternoon in the Mission District, six prostitutes were plying their trade on a single block.

Police made 1,583 prostitution arrests in 2007 and expect to make a similar number this year. But the district attorney's office says most defendants are fined, placed in diversion programs or both. Fewer than 5 percent get prosecuted for solicitation, which is a misdemeanor punishable by up to six months in jail.

Proposition K has been endorsed by the local Democratic Party. But the mayor, district attorney, police department and much of the business community oppose the idea, contending it would increase street prostitution, allow pimps the run of neighborhoods and hamper the fight against sex trafficking, which would remain illegal because it involves forcing people into the sex trade.

The San Francisco Chronicle editorialized against the measure, saying it could make the city a magnet for prostitution.

Read full article here. [Brooks Holland]

Reporter kept the focus on police torture

At this point, most people in Chicago probably accept as true the torture allegations against retired Chicago police commander Jon Burge and mostly wonder what took so long to indict him.

It's easy to forget that was not always the case.

From the time the accusations were raised in 1983 by attorneys for cop killer Andrew Wilson until fairly recently, the collective attitude in this city was of disbelief, of not wanting to believe such a thing possible and perhaps worse -- not caring enough to demand the truth.

Many people were responsible for changing those attitudes, but I'm going to focus on just one.

As a reporter for the Chicago Reader, John Conroy wrote more than 100,000 words about the police torture scandal between the time he started looking into it in 1989 and when he was laid off last December because of budget cuts.

Although he would tell you he's only a "bit player," Conroy was probably as responsible as anyone for keeping the police torture issue in Chicago's consciousness during that time. He wrote about it and wrote about it, to the point that it probably wasn't good for his career, because nobody likes a Johnny-one-note.

His editor suggested he move on to the next subject, and he tried. After all, he told himself, he wasn't having much impact. But he kept coming back.

"It seemed be a matter of life and death," he explained. "There were guys on Death Row that were going to die."

I don't mean to hold Conroy out as a hero. He wouldn't like that, and I promised him I wouldn't. He was just a journalist doing a job. [Mark Godsey]

Continue Reading "Reporter kept the focus on police torture"

Reporter kept the focus on police torture

At this point, most people in Chicago probably accept as true the torture allegations against retired Chicago police commander Jon Burge and mostly wonder what took so long to indict him.

It's easy to forget that was not always the case.

From the time the accusations were raised in 1983 by attorneys for cop killer Andrew Wilson until fairly recently, the collective attitude in this city was of disbelief, of not wanting to believe such a thing possible and perhaps worse -- not caring enough to demand the truth.

Many people were responsible for changing those attitudes, but I'm going to focus on just one.

As a reporter for the Chicago Reader, John Conroy wrote more than 100,000 words about the police torture scandal between the time he started looking into it in 1989 and when he was laid off last December because of budget cuts.

Although he would tell you he's only a "bit player," Conroy was probably as responsible as anyone for keeping the police torture issue in Chicago's consciousness during that time. He wrote about it and wrote about it, to the point that it probably wasn't good for his career, because nobody likes a Johnny-one-note.

His editor suggested he move on to the next subject, and he tried. After all, he told himself, he wasn't having much impact. But he kept coming back.

"It seemed be a matter of life and death," he explained. "There were guys on Death Row that were going to die."

I don't mean to hold Conroy out as a hero. He wouldn't like that, and I promised him I wouldn't. He was just a journalist doing a job. [Mark Godsey]

Continue Reading "Reporter kept the focus on police torture"

Violent Crime Reported Down in 2007

Data released Monday by the FBI show violent crime dipped slightly nationwide in 2007. That ended two years of increases in murders, robberies and other kinds of the worst crime in U.S. cities.

An estimated 1.4 million violent crimes were reported across the country last year - about 10,000 fewer, or a 0.7 percent drop, than 2006.

The number of burglaries, car thefts, arsons and other property crimes also dropped by 140,000, or 1.4 percent. That marked the fifth year of property crime decreases, the FBI said.

Justice Department spokesman Peter Carr said the decline is the result of crackdowns on gangs, drug dealers and gun crimes, and he used the drop to call on Congress for $200 million in additional funding to continue such efforts.

Read full article here. [Brooks Holland]

Prison Inmates using Cellphones to Continue Crime

Chante Wright was set to testify against a career criminal when she was gunned down on the streets of Philadelphia in January. Investigators believe it was a hit ordered from prison, by an inmate using a cell phone.

Authorities across the country are trying to prevent similar crimes from occurring.

"We owe it to the victims to not allow inmates to continue to run their enterprises from behind our bars," says Maj. Pete Anderson, who commands a canine unit that sniffs out cell phones inside Maryland prisons.

Cell phones have become the hottest contraband in prisons these days, authorities say. For $400 a pop, the phones can be used to run criminal enterprises, plan escapes and arrange for other illegal items such as drugs to be brought in.

Inmates hide the phones inside boxes of food, cutout books, in shoes with hollowed out soles and in mattresses and pillows -- basically anywhere is free game to hide a cell phone, says Sgt. David Brosky, a Maryland corrections officer.

Authorities say sometimes the phones lead to violence among inmates desperately wanting to communicate with the outside world.

"Inmates can make calls and conduct criminal enterprises from a cell phone if we don't try to limit that," says Mike Stouffer, Maryland's Commissioner of Correction.

"The cell phones are utilized to go around, get unrestricted access to the community, and that's not a good thing. Things can occur -- bad things can occur that way."

Maryland correction officials in June began one of the first programs using dogs to find the cleverly hidden phones. The program breeds and trains dogs to find cell phones hidden in the state's prisons.

Read full article here. [Brooks Holland]