Current Events – Page 8

Inside Out

When the Mexican Mafia was founded, no one though it would become what it is today, least of all its founders. Today, the Mexican Mafia recieves 1/3 of the profits from drug-dealing Hispanic gangs south of Bakersfield. They are able to do this even though there are only 150-300 members total and virtually all of them are locked away in prison. Even though the state has done everything in its power to render these men harmless, they have risen to become the most powerful criminals in the state, and perhaps the country. Indeed, it is because of their incarceration that they are able to control gangs on the outside.

The Mexican Mafia is able to control street gangs because they control jails and prisons. Street gang members, in turn, anticipate going to prison or jail. It’s almost like a cost of doing business, a peculiarity of the job. When they get incarcerated, they are rendered helpless in an environment controlled by the Mexican Mafia. If the Mafia wants to kill you, there’s nothing anyone can do to stop it. In other words, street gang members are highly vulnerable to Mexican Mafia extortion. The Mexican Mafia requests 1/3 of street gang profits, or else. Streets gangs have made the decision to pay the Mexican Mafia rather than be killed in custody.

But there’s more to just paying. A gang member from Southern California that goes into custody become a Sureno: a footsoldier for the Mexican Mafia. It doesn’t matter if two men are from rival gangs on the street. When they go in, they are both Sureno allies. And if they receive an order from the Mafia, they must carry it out.

The same coercive forces that the Mexican Mafia uses to get drug profits could also be used in other ways. For example, the Mafia has previously forbidden street gangs from engaging in drive by shootings; the police attention hurts profits. And the Mafia has ordered street gang members to commit murders on its behalf.

So far, the Mexican Mafia has remained mostly a crime problem. They have not attempted to project their power out of the prison and into political life. But an interesting paper by Benjamin Lessing discusses international prison gangs that have done just that. And he provides a look at how the Mexican Mafia could go from a criminal organization to a sinister political power. The paper is called “Inside Out: The Challenge of Prison-Based Criminal Organizations.” Lessing draws attention to two international examples that can teach us where the Mexican Mafia may go.

The first is El Salvador. In 2010, imprisoned leaders of the MS-13 and M-18 gangs joined forces to induce – via threats of mass violence against city buses by street-level affiliates – a transportation strike that shut down the capital for three days. The incarcerated gang members wanted improved prison conditions and the veto of an anti-gang law.

In Sao Paulo, there was a 2001 “mega-rebellion” in which 21 prisons, all under the control fo the Primeiro Comando da Capital, rebelled simultaneously. Then, in May 2006, the PCC launched a synchronized wave of attacks. First, simultaneous riots broke out in some 90 prisons. Then, after many police had been deployed to prison sites, street-level collaborators launched hundreds of attacks on civilian, police, and urban-infrastructure targets. The capital was brought to a standstill for days, until authorities met with PCC leaders and made key concessions, at which point the attacks abruptly stopped.

The past is prophecy when it comes to international prison gangs and the Mexican Mafia. We have been lucky that the Mafia has not used its power over gang members on the street to coerce the government into making them concessions. For example, repealing California’s anti-gang STEP Act. Or shortening their prison sentences. Prison gangs like the Mexican Mafia must be attacked, not just because they are a crime problem, but because they can become a political problem, and an intractable one at that. The PCC and the Salvadorean prison gangs provide clear evidence that the Mafia could do much more harm than its doing. And it needs to be destroyed before it can.

Offer Sheets Prevent Racism

The vast majority of crimes committed in California are misdemeanors, as in other states. Misdemeanors are punished by a term in county jail, but probation is much much more likely. Felonies, by contrast, are punished by state prison, although probation is sometimes available as well.

Prosecutors in misdemeanor courtrooms may have over 100 cases on calendar in a single day. People who missed their previous court dates may simply show up on any given day, further increasing the number. And misdemeanants may also be arrested on warrants and brought to court. These in custody defendants may show up at any time during the court day, and their cases are often called without a prosecutor reviewing the file at all. The point is, there’s a lot of work in a misdemeanor courtroom.

Most cases are resolved by plea bargain. Off the top of my head, I believe the number is something like 95%. For a plea bargain to happen, the prosecutor must make an offer to resolve the case to a defense lawyer. The defense lawyer is almost always a public defender. In other words, the same prosecutor and public defender bargain over hundreds of cases a week.

In this situation, many prosecutors use offer guidelines. There are lots of good reasons. First, this helps prosecutors avoid having to reinvent the wheel every time they see the same crime with a similarly-situated defendant. For example, many people with no record get arrested for driving with a suspended drivers license. It makes sense to have a standard offer for people in this situation. This offer is written in the guidelines. Second, this ensures that the punishment received for a crime is uniform in a community, and doesn’t depend on the personality of the prosecutor and the defense lawyer. Punishment should fit the crime. It should not be more severe or more lenient depending on the courtroom actors. Third, offer guidelines encourage efficiency. A defense lawyer can meet with his client and tell them what to expect without even talking to the prosecutor, much less having a protracted negotiation.

There is one final benefit to offer guidelines. They are color-blind. Offer guidelines are a protection against implicit bias on the part of the prosecutor, defense lawyer, or judge. They don’t cure implicit bias, but they are a powerful tool for those who want to evenhandedly enforce the law.

Since most prosecutors’ offices use offer sheets, and since they are colorblind, it is hard to argue that prosecutorial discretion is being applied in a racially discriminatory way. After all, the vast majority of crimes are misdemeanors, and the punishment for those crimes is right there in the guidelines. Everybody gets the same punishment for a second-time DUI, for example, regardless of race, age, sex, or anything else. Low term, mid term, and high term guidelines for felonies are the same sort of safeguard. Do these protections make it impossible for bad people to discriminate? No. But they are strong evidence that there is no “systemic racism” lurking in the field of criminal justice.

Irony and the Death of Jeff Adachi

Jeff Adachi, the elected public defender of San Francisco, advocated ending the war on drugs. Now he’s dead from a drug overdose.

Adachi should be lauded for his career in public service. His death also raises important questions about drug crime. Adachi was in possession of cocaine and under its influence on the day of his death. Someone sold or furnished the drug to him. These are all against the law. Unfortunately, people have decided that drug laws are not worth enforcing in the same way that they used to. Police used to spend a lot of time and effort trying to detect and prevent these types of crimes. Adachi describes this time as “the bad old days.”

Things are different now. Drugs crimes have been reduced to misdemeanors, or in some cases infractions. As a result, police no longer prioritize these crimes, and allocate their resources elsewhere. Adachi himself points out:

[San Francisco]’s felony drug arrests are plummeting at unprecedented speed — 92 percent since the peak in 1988-89, and despite our population growing by 150,000.

Jeff Adachi was in favor of these changes. He said, “The war on drugs ruined countless lives.” He described it as biased, devastating and misery-inducing. He continued, “We applaud anything resembling a ceasefire in this calamitous war.”

The irony is that Adachi helped to end the exact kind of police work that could have saved his life. He described police work aimed at drug users as “the war on crumbs.” He said that in February, when he was probably a drug user himself. If law enforcement had managed to stop that cocaine from entering the United States, or California, or even just San Francisco, then Adachi would be alive today. Once the cocaine got into the city, if a policeman had managed to find it, Adachi would be alive today. To be even more specific, if a policemen had stopped Adachi, frisked him, and discovered his drugs on the night of his death, he would be alive today. It’s an uncomfortable reminder to opponents of stop and frisk that drug enforcement can save lives.

You might say that law enforcement failed to do its job. Law enforcement should have stopped the transportation of the cocaine, should have been out there stopping and frisking people, should have assigned officers to drug interdiction. But Adachi himself worked to prevent that. He described efforts that could have saved his life in the most derogatory way possible. And he went to court, and the court of public opinion, again and again to obstruct drug enforcement. In retrospect, he should not have done that.

His death, then, is a reminder of the consequences of drug crime. In Adachi’s case, the consequences were fatal. He died on a gurney in a corner of a hospital ER. And although he was only one man, his death is dramatic evidence that his ideas on drugs were wrong. His death was a private tragedy for his family. But he was a public figure. And the public can learn an important lesson from Jeff Adachi’s ironic (and unnecessary) death.

Miscellany

Local news outlet Mission Local blames Adachi’s death on failure to treat his heart problems. Incredibly, they call this “the painful lesson” to be learned from his death.

Adachi wanted his misdemeanor attorneys to conduct 10 trials a year.

Information about Adachi’s death came to light when a reporter obtained the police report. Many were angered and embarrassed by this. The publication of the details of Adachi’s death has become a saga of its own.

Seth Stevenson Doesn’t Understand Jury Duty

In 1998, a young Slate reporter serving jury duty followed the law. He listened to what the judge told him about accomplice liability, and even though he didn’t like it, he correctly applied it to the facts and returned a conviction. Now that reporter, Seth Stevenson, feels bad for the defendant he convicted and wrote a long piece about it.

Stevenson Doesn’t Understand How Juries Work

Throughout the story, Stevenson tries to tell himself that he is not responsible for the lengthy sentence the accomplice is serving. He says that he was boxed in by the judge’s instruction, pressured along by the other jurors, etc. In his heart, however, Stevenson feels that he is responsible, because he voted to convict. Stevenson is right to think that he is responsible, he just doesn’t understand why. Stevenson should not misunderstand anything because, as he points out, he is a veteran reporter who has covered many trials. But he never seems to have learned the role of the jury. Nor does he understand basic facts about the way our government works and how they apply to his situation. Let me explain.

The role of the prosecutor is to present evidence proving a defendant’s guilt beyond a reasonable doubt. The role of the jury is to decide what the facts are. In other words, the jury must decide if the prosecutor proved that the crime happened. The legislature decides what the law is. The role of the judge is to determine what law applies to the case. The judge explains the law to the jurors, who take an oath to follow the law. When a defendant is convicted, the judge must decide what sentence the law requires.

Stevenson is responsible for the sentence given to his defendant, but not in the way that he thinks. He thinks that he is responsible as a juror who voted to convict. As anyone with even a passing familiarity with the courts should know, this is not the case. Juries are specifically instructed not to consider punishment. That’s because, as noted above, their role is only to decide what happened. The judge then gets to decide the sentence. Defendants should not be acquitted because jurors don’t want them to face stiff consequences. Nor should they be convicted because jurors don’t like them, and want them to pay for being a bad person. Yet Stevenson continually falls into this trap. He says he was “searching for some way to grant him [the defendant] mercy.” Another juror said Stevenson “wanted to give [defendant] a break.” This is not a juror’s job, it’s the judge’s job. And ultimately, the legislature must decide what kind of breaks are available and to whom.

That’s where responsibility lies. Stevenson, and all other DC residents, voted on the laws that applied on the night of the crime. Stevenson’s representatives approved the sentence range that the defendant faced. Crucially, the legislature approved the accomplice liability laws that Stevenson disagrees with. The judge applied them. Stevenson, as well as the rest of us, are therefore responsible for the application of laws that we approve.

You Can’t Pick and Choose the Laws to Follow

Stevenson does not agree with the laws regarding accomplice liability. He’s not alone. Appellate courts also disagree with the doctrine of natural and probable consequences. That’s led to some big changes here in California. Nevertheless, it was the state of the law at the time of Stevenson’s trial. His disagreement with the law doesn’t mean he can ignore it. This may sound basic, but in a democracy we agree to follow laws that we disagree with. A senator can vote to legalize bazookas, but until the law changes, he cannot own one. Similarly, jurors may disagree with laws regarding accomplice liability, but they must apply those laws until they are changed.

This is something that Stevenson, and many others, don’t seem to agree with. I’ve met jurors who voice similar opinions. They think that they should only have to follow laws that they agree with, because their conscience is the ultimate law. This has the patina of reasonableness, but anyone who thinks seriously about it must reject this idea as unworkable. After all, the shooter in Stevenson case could just as easily say that he believes he should be allowed to kill over parking disputes (which he did), and he must be free to follow his conscience. We agree to constraints on our freedom to do things like this because we recognize the benefits that come with constraining the freedom of others to do things like this to us.

Sympathy for the Devil

It always shocks me that it’s the defendant that people feel sympathy for. The victim in this case, an off-duty police officer, had a wife and two children that he was caring for. The children were 3 and 4 months old at the time of the officer’s death. The defendant, who was 17, had a son that he was not caring for. Immediately before the murder, he was sitting on a stoop getting high with a gun. The contrast between these two men could not be more sharp. Yet part of me wonders whether Stevenson would feel as guilty for the victim after an acquittal as he does for the defendant after a conviction.

Stevenson needs a civics lesson, that much seems pretty clear, but that doesn’t mean he is bad person. It is natural to feel sympathy for others, crucial even. And he had to sit and see the defendant, face to face, in court for days. He had to discuss the defendants fate, think about his life, imagine the consequences for the defendant. These are things Stevenson did not have to do for the victim. The murder victim’s chair is empty. He doesn’t have to sit and look at the widow, the infant child, the four year old that were left behind. He doesn’t have to debate what is fair for them. So Stevenson, and too many others, let the victim remain in the grave, and direct all their sympathy to defendants. That’s what bothers me.

What Actually Happened

Judge for yourself whether the defendant did something wrong. The accomplice was hanging out, drinking, and smoking weed on a porch. It was 10 p.m. on a Saturday night. The accomplice was not with his infant child, even though he himself was only 17. The principal got into an argument with two men who had double-parked. The principal told the accomplice that he wanted to “‘smash’ the dudes.” The accomplice took his gun. A third man waited in the car as a getaway driver. The principal and accomplice stood at the top of a road and fired down at two men. We don’t know who shot, but Stevenson assumes the accomplice did not. After the shooting, all the men returned to the car together and drove off. No one reported the crime to the police. The accomplice and the driver eventually fled the state to avoid apprehension. Stevenson does not specifically say, but it appears that the accomplice ditched his gun. Another key fact that Stevenson will not say, but does allude to, is that the accomplice was heavily involved in prison violence after his incarceration. He was so dangerous that a succession of wardens at different institutions deemed the accomplice to dangerous to meet Stevenson face to face, and the accomplice was stabbed 10 times in custody, for reasons that Stevenson never shares.

The System Isn’t Racist

Stevenson also casually mentions that the system is racist. He describes the criminal justice system “as an enormous machine – one designed to convey young black men into prisons and keep them there.” His defendant was “another shit-out-of-luck black kid from Northeast who’d made some bad decisions.” Who designed the system? Some mysterious cabal of racists in a dark room with a flowchart and a plan to discriminate against black people? The mayor at the time of the crime, Marion Berry, was black, like every mayor of DC since the creation of the office. The police chief in 1998 was black. The US attorney (the prosecutor’s boss) was black. African Americans have been the city’s largest ethnic group since the 1950s. The defendants were both black and so were both victims. Stevenson casually charges these people with a massive conspiracy against their own self-interest. There is no such conspiracy. The system isn’t racist.

What Jurors Like Seth Stevenson Should Know

You have to follow the law. For two reasons. First, that’s the way democracy works: we follow the law even when we disagree with it. Second, you take an oath to follow the law at the beginning of jury duty. Failing to follow the law is also breaking your solemn promise.

Leave sentencing to the judge. That’s their most important duty, after ensuring that the trial process is legally correct. Leave the setting of punishments to the legislature. Stevenson’s main problem seems to be that his defendant got a harsh sentence. Instead of putting the blame on the jury, who just did their job, he should blame the legislature. They made the decision, not him, about how long to incarcerate a cop-killing accomplice.

Drug Crimes are Real Crimes

If crack were an enjoyable drug that you could get high on without any effects, then we might comfortably reconsider its prohibition.

But some persons, who comprise a large (if unknown) percentage of all those who experiment with heroin, develop a relentless and unmanageable craving for the drug such that their life becomes organized around searching for it, using it, enjoying it, and searching for more.

(James Q. Wilson, Thinking About Crime, at p. 185.)

Crack, for example, is so addictive that many people cannot live normal lives while getting high on crack. They only want to get high, they don’t want to do anything else, and their lives fall apart. The rest of us end up choosing between caring for them or letting them die. Which is an easy choice, but we should not be in that situation in the first place. Addiction and the addicted themselves are the first problem presented by addiction.

The second problem is crime by addicts and dealers. Los Angeles City Councilman and former LAPD chief Bernard Parks noted that when drug-related arrests fall, thefts and residential burglaries rise. He said,

“People who are using drugs are also committing other crimes. How do they stay heroin users? How do they support their habit? … People don’t want to understand that I can’t be a crack addict and have a profession. Nobody’s giving me drugs. I rob and burglarize and steal.”

In 2004, 17% of state prisoners and 18% of federal inmates said they committed their current offense to obtain money for drugs. In 2002 about a quarter of convicted property and drug offenders in local jails had committed their crimes to get money for drugs, compared to 5% of violent and public order offenders.

Drug dealing is even more of a problem. Again, crack is an instructive example. Crack was, and to a lesser extent still is, dealt on street corners. It is bought and sold in the open. Crack dealers violently complete over these corners and sales territory in general. Needless to say, this is extremely dangerous to the people that live in those neighborhoods. Crack is valuable and can be easily stolen, but the police aren’t available to protect a crack dealer when he has been robbed, so a gun is a virtual necessity. Guns on the street are inherently dangerous.

The opioid epidemic is a real problem. 42,249 people died from opioid overdoses in 2016. By contrast, 37,461 people were killed in traffic collisions. Given the gravity of the problem, we should be doing everything we can to prevent people from illegally possessing opioids. We should be punishing the dealers of illegal opioids with punishment that reflects the seriousness of the crime. If the punishment must fit the crime, we should not go easy on those who poison such a large number of our friends and neighbors.

Bad Statistics About Bad Things

Critics of policing and mass incarceration make a basic statistical mistake. Men represent less than half the population of the country but over 90% of those incarcerated. But no one says the system is sexist. That is because men commit more crime. Comparing population numbers to incarceration rates gives a false picture. Crime rates should be compared to incarceration rates.

Why are groups imprisoned at higher rates than their representation in the population? The first question must be whether these groups are doing things that get you imprisoned at higher rates than their representation in the population. Similarly situated groups can be compared. Groups that are not similarly situated cannot be compared. In America today, ethnic and racial groups are not similarly situated. There are many reasons for this, including the systemic racism of the recent past. The Jim Crow laws did not predestine anyone for a life of crime, but they didn’t help either. And there are many more reasons for ethnic and racial difference that are worth knowing. The rich and the poor are not similarly situated. I’ve read that the most predictive factor for criminality is age, then sex. Social scientists try to control for variables like relative crime rates. We should do the same, even though it is a difficult conversation to have.

Unfortunately, for many, the analysis goes something like this: look at the percentage of the population that belongs to the group, look at that group’s representation in prison, and draw a conclusion. Social scientists know better. The media should know better, and so should we.

Here’s how Crime and Consequences describes the problem:

One thing we do not need is the exaggeration of the prejudice problem created by all the bleating about “disparities” in statistics based on the Fallacy of the Irrelevant Denominator. Comparisons of the demographics of Statistic X with the general population are irrelevant if offending rates are not uniform across the demographic groups in question, which they rarely are. Do the police ticket more men than women for speeding? Of course they do, because a greater percentage of men speed. That statistic does not establish or even indicate discriminatory enforcement unless one establishes that speeding men are more likely to be ticketed than speeding women. The general population is an irrelevant denominator. The people who commit the offense in question make up the relevant denominator. And so it is for criminal justice statistics generally.