Perpetrator of egregious racial disparities in law enforcement touted for Obama's cabinet

There is a prima facie case that the New York City Police Department has systematically denied rights protected by the U.S. Constitution to tens of thousands of individuals that it has arrested over the past decade for misdemeanor possession of marijuana. I asked the U.S. Department of Justice to investigate the prima facie case of criminal and civil violations of these rights by the NYPD and its leadership two years ago.

This program is NOT the stop and frisk policy of the NYPD to look for illegal firearms by stopping suspects in high crime neighborhoods; this a completely different program of violating constitutional rights.

With the resignation of Janet Napolitano, the Secretary of the U.S. Department of Homeland Security, the Commissioner of the NYPD, Raymond Kelly, is being touted as a potential nominee to be her successor. His nomination by President Obama would be an outrage.

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Race and Criminal Justice: the case du jour

Over the years, I have often been asked to comment on the conduct and outcome of popular criminal trials such as the O.J. Simpson and Trayvon Martin trials. I am a former criminal defense lawyer. One thing I know is that if you have not been in the courtroom for the entire trial, it is b.s. to express an opinion about the trial -- the correctness of the verdict or the conduct of the judge or the attorneys. A second hand report does not tell you how a witness actually comes across, or the impact of a particular ruling or argument.

If I wanted to retain my professional integrity I had to resist the attraction of the studio and the pleasure of puffing up my ego -- a T.V. camera and make-up did not qualify me to be an expert commentator on a trial I was not inside of.

It is also b.s. to extrapolate from any verdict a conclusion about American society or the American justice system.  I think Andrew Cohen from the Brennan Center on Justice does a very good job noting the limits of what a criminal trial is about in the context of the Trayvon Martin -- George Zimmerman trial.

It is data, not single high-profile criminal trials that tell us about how the justice system works, and how it is anything but colorblind.  Obviously relevant to the Martin - Zimmerman case, a very interesting study of the racial disparity in how courts in the nation find that fatal shootings are justified or not is discussed by John Roman at the Urban Institute here. He writes,

Black Americans are far less likely to be adjudicated as justified in using deadly force in a firearm-related death. The difference between rates of justifiable rulings in cases with a white shooter and a black victim and cases with a black shooter and a white victim are astonishing.
In fact, they dwarf every other racial disparity in an already racially unbalanced criminal justice system. The differences are so great that any notion that justice in America is color-blind is at risk.

Regarding the Trayvon Martin - George Zimmerman case, I think I can comment about the widespread commentary on this tragic case:

I am struck by how large a number of commentators on the Internet are convinced that their hypothesis about how the shooting took place is the truth. People are inclined to interpret bits of evidence to draw broad and certain conclusions. See this thread on The Crime Report, for example.

There is a great deal of white racism being expressed in the drawing of conclusions about the reasonableness of George Zimmerman's shooting of Trayvon Martin, the reasonableness of his suspicions, the suspicious character of Martin's presence in the neighborhood, Martin's background etc. The verdict of acquittal is being interpreted as a validation of such opinions.

A lot of white commentary is blind to the horror of Zimmerman's shooting of the 17-year old Trayvon Martin, and how how horrid is widespread acceptance by whites that a young black male walking down the street at night intrinsically merits suspicion. The proposition, "If there have been crimes and the suspects in those crimes were black, then any young black male is a suspect," is, to many whites, a reasonable one; even if to whites the alternate proposition, if it involved crimes with white suspects, and a young white male, would be absurd.

To me, many lines of the commentary such as this help explain why the criminal justice system routinely and regularly reveals racial discrimination through disparate treatment and disparate outcomes that work to the detriment of people of color and to the benefit of whites pervasively -- many whites simply do not see their prejudices.

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New York's Mayor Bloomberg: "we disproportionately stop whites too much and minorities too little"

New York's mayor, Mike Bloomberg, is so fiercely defending the NYPD racially discrimnatory "stop and frisk" policy, his judgment has become impaired.
Today he said, "incidentally, I think we disproportionately stop whites too much and minorities too little." Look at this data and consider whether this makes any sense.

Two years ago I asked for a criminal and investigation of the New York City government, including Mayor Bloomberg and the NYPD leadership, by the Civil Rights Division of the U.S. Justice Department. My request follows:

June 23, 2011

The Honorable Thomas E. Perez

Assistant Attorney General

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Ave., N.W.

Washington, D.C. 20530

VIA CERTIFIED MAIL

Re: Request to investigate, enjoin and prosecute violations of

42 U.S.C. 14141 and 18 U.S.C. 242

by the New York Police Department and the City of New York

Dear Mr. Perez:

            Enclosed isa ten page memo prepared by Harry G. Levine, Ph.D., Professor of Sociology, Queens College of the City University of New York, submitted to the New York State Senate on June 15, 2011, regarding marihuana possession arrests by the New York Police Department (NYPD) in the City of New York from 1977 to 2010.

            In 1977, the State of New York enacted the Marihuana Reform Act of 1977. The legislature found “that arrests, criminal prosecutions, and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use. Every year, this process needlessly scars thousands of lives. . .” The legislature enacted New York State Penal Law section 221.05, which provides that such possession is a violation, carrying a maximum fine of $100 for a first offense. However, if marihuana is possessed “open to public view,” the offense is a class B misdemeanor (NY Penal Law section 221.10).

            Dr. Levine focused on the past fifteen years of arrests and found that the NYPD made 536,320 marihuana possession misdemeanor arrests between 1996 and 2010. In 2010, there were 50,383 such arrests. These many arrests (instead of the issuance of a ticket for the violation of NYS Penal Law section 221.05) are the result of the practice of police officers requesting or demanding that suspects empty their pockets. If they possess marihuana and comply with the officers’ request, the marihuana is then “open to public view” triggering the class B misdemeanor and an arrest.

            The extraordinarily large numbers of marihuana “open to public view” arrests constitute one out of seven of all arrests in New York City. These tens of thousands of arrests cannot be a mere coincidence resulting from the independent exercise of discretion by thousands of individual officers.  This department-wide program of issuing such orders, developed with the knowledge that the orders will be complied with and that compliance will trigger arrests of the thousands of targeted individuals, deprives these persons of their liberty through trickery, constitutes a violation of the subjects’ Fifth Amendment protection against self-incrimination, and the subjects’ right to due process in the administration of justice.

Dr. Levine’s very extensive analysis of the data regarding these arrests reveals that “for many years, New York City has arrested African Americans at seven times the rate of whites, and Latinos at nearly four times the rate of whites. . . For the last 15 years, 87 % of the people arrested for marijuana possession have been blacks and Latinos, who use marijuana at lower rates than young whites.” (emphasis in the original at p. 2).  The charts and tables accompanying the memo report arrest rates in New York police precincts that correspond to the racial and ethnic makeup of the precinct that demonstrate an unmistakable policy of racial discrimination in the enforcement of this law. The extraordinary disparity in the rates of arrests across the city is inexplicable except as the result of a deliberate policy that targets African American and Latinos for stops and searches.

Because they are plainly targeted because of their race and ethnicity, the African American and Latino arrestees have had their privileges or immunities of citizenship abridged and have been denied equal protection of the laws in violation of the Fourteenth Amendment, and in violation of federal law.

The official police data analyzed by Dr. Levine makes out a prima facie case that the NYPD, its command staff, and the City of New York and its leadership charged with supervising the NYPD,

“engage in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States,”

in violation of 42 U.S.C. 14141.

            In addition, the official data and circumstances described in Dr. Levine’s memo set forth a long-term, massive, organization-wide felonious course of conduct that is plainly designed to deprive African American and Latino residents of the City of New York of their Constitutional and legal rights under color of law, in violation of 18 U.S.C. 242.

            Dr. Levine’s careful analysis finds that these arrests target young people. Twenty-three percent of those arrested in 2010 were teenagers! These arrests target persons who have never been convicted of a crime. These arrests “scar thousands of lives” of young people by unwarrantedly creating criminal records with well-known collateral legal consequences, including denial of education, housing, and for non-citizens, deportation. That this policy of arrests is directly contrary to the purpose and intent of the New York State law regarding marihuana possession further illuminates the despicable character of this unlawful conduct by the NYPD and the City of New York.

I call upon you to direct the Federal Bureau of Investigation and the Criminal Section of the Civil Rights Division to:

-- open an investigation into the NYPD marihuana arrest program;

-- commence an action to enjoin the unwarranted racially discriminatory arrest and criminal prosecution of tens of thousands of African American and Latino persons annually for conduct that under New York law is a mere violation subject to a maximum fine of $100.00;

-- obtain an appropriate monetary judgment to punish and deter this egregious conduct; and

-- prosecute and appropriately punish those government officials responsible for developing, managing, supervising and approving this plainly unlawful program to violate constitutional rights.

Thank you very much for your prompt attention to this complaint.

                                                                        Sincerely yours,

                                                                        Eric E. Sterling, J.D.

                                                                        President

                                                                        Criminal Justice Policy Foundation

cc:  Attorney General Eric H. Holder, Jr.

Enclosure

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Philadelphia police stop and frisk Blacks disproportionately

A report, filed in U.S. District Court for the Eastern District of Pennsylvania, analyzes Philadelphia Police Department data for two months in the fall of 2012 that finds that more than 40 percent of the police stops and frisks lack a lawful basis of "reasonable suspicion."

The report, prepared by the law firm of Kairys Rudovsky Messing & Feinberg, LLP and the ACLU of Pennsylvania, found a dramatic racial disparity with African Americans being stopped and frisked at rates that far exceeded their presence in the city's population. Whites were stopped and frisked at rates far below their presence in the city population.

Here is the ACLU of PA press release that summarizes the report. The suit against the Philadelphia police is called Bailey v. City of Philadelphia, C.A. No.10-5952.

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NYPD changes marijuana arrest policy!

On September 19, the NYPD issued an order forbidding officers from the practice of arresting people for the misdemeanor of public display of marijuana by ordering people to empty their pockets. New York State decriminalized marijuana possession in 1977, limiting the maximum penalty to a $100 fine. But over the past 15 years, the NYPD has tricked or coerced close to a half million people into publicly displaying marijuana, and in order to arrest them, fingerprint them, photograph them, and give them lifetime criminal records. 87 percent of those arrested have been black or Hispanic, a completely disproportionate figure.

In issuing the new order, NYPD Commissioner William Kelley noted that “questions have been raised about the processing of certain marijuana arrests.” Indeed! On June, 23 2011, the Criminal Justice Policy Foundation filed a formal demand with the U.S. Department of Justice asking for a civil and criminal investigation of the NYPD leadership and top New York City officials suggesting that the marijuana arrest program is an unlawful pattern or practice of conduct designed to violate the constitutional rights of the persons being arrested, in felony violation of federal law. Here is the letter to the Assistant Attorney General for Civil Rights, a statement from Professor Harry Levine of Queens College, City University of New York, one of the courageous figures who spotted this problem, containing part of his detailed analysis of the arrest data, and the images of the certified mail receipts for the delivery of the letter to both the Assistant Attorney General and U.S. Attorney General Eric Holder.

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Thoughts on a "victory"

This morning at 11 a.m., President Obama signed S. 1789, the Fairness in Sentencing Act, in the Oval Office, reported by The Caucus blog at The New York Times. The House passed the bill on July 28 on a voice vote. I have been working for a bill on this subject since 1993.

This bill raises the quantities of crack cocaine that trigger the mandatory minimum sentences for trafficking enacted in 1986 (from 5 grams to 28 grams and from 50 grams to 280 grams) creating a ratio of cocaine to crack of 18 to 1 instead of 100 to 1. The Act also repeals a mandatory minimum sentence for simple possession of 5 grams of crack or more -- enacted in 1988, provides various directives to the U.S. Sentencing Commission regarding drug sentencing, calls for a review of the effectiveness of drug courts, and raises the fines that can be imposed for the crime of drug trafficking.

In 1986, I was counsel to the House Judiciary Committee, and played a key role in the creation of that law. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 500 grams of powder cocaine (a little more than a pound) or 5 grams of crack cocaine (a very small amount -- the weight of 5 packs of artificial sweetener or one nickel must be sentenced to at least 5 years (up to 40 years) in Federal prison. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 5000 grams (5 kilograms or about 12 pounds) of powder cocaine or 50 grams of crack cocaine (the weight of a typical candy bar) must be sentenced to at least 10 years (up to life imprisonment) in Federal prison. These sentences are triggered by different quantities for other drugs -- all relatively small quantities. In 1986, the federal prisons held 36,000 prisoners. This week there are over 211,000 federal prisoners, more than half of them there on drug charges, and a large fraction serving unjustly long sentences. Over 70 percent of the prisoners are serving sentences longer than 5 years.

The quantities that trigger mandatory sentences are mistakenly small. Contrary to the intent of Congress, they do not indicate that a trafficker is a major drug trafficker. A major cocaine trafficker organizes transactions in hundreds and thousands of kilos. One thousand kilos is one metric ton, which equals one million grams. The U.S. consumes about 300 metric tons of cocaine annually.

Unfortunately, year after year about 80 percent of the federal crack cocaine defendants are African-American. About 8 or 9 percent of the defendants are white. The racial disproportionality is utterly unwarranted.

Perhaps just as scandalous is that most federal drug defendants are neighborhood-level dealers, not the national level or international level dealers who should be the primary target of federal drug enforcement efforts. If most federal drug convicts were trafficking in hundreds or thousands of kilos, and operating at a very high level, no one would concerned about their race or ethnicity.

I have been working to repeal or reform the mandatory minimums I helped write since I left the Judiciary Committee in January 1989. I helped found Families Against Mandatory Minimums in 1991. In 1993, I wrote a draft of legislation to eliminate separate crack cocaine quantities so that at least crack and powder would be equal at the 500 and 5000 gram levels that was introduced by U.S. Rep. Charles Rangel (D-NY), the former Chairman of the House Select Committee on Narcotics Abuse and Control. He called the bill the "Crack Cocaine Equitable Sentencing Act." With that title, I thought it would never pass, and it never did.

Beginning in 2005, the Open Society Policy Center assembled a coalition that I joined along with Drug Policy Alliance, the ACLU, the Sentencing Project, Families Against Mandatory Minimum Sentences, the Methodist General Board of Church and Society, the National Association of Criminal Defense Lawyers, the NAACP, the Leadership Conference on Civil Rights, and many other groups including SSDP and LEAP, to push Congress to end the crack - powder disparity. For the coalition I drafted a bill I called the "Cocaine Kingpin Punishment Act" which eliminated the crack provisions and raised the fines that could be imposed against convicted traffickers.

In 2007, Sen. Joe Biden introduced a bill, S. 1711, with "cocaine kingpin" in the title and included some of the provisions of my draft. Senators Barack Obama and Hilary Clinton cosponsored his bill. There was a day of hearings on the bill, but no action. Rep. Sheila Jackson Lee introduced a companion bill in the House.

In 2009, Senator Richard Durbin (D-IL) introduced a revision of the Biden bill, now called the Fairness in Sentencing Act. He worked with Senators Jeff Sessions (R-AL) and Orrin Hatch (R-UT), who had expressed concern about the racial disparity in cocaine prosecutions, and what Sen. Hatch referred to as the "girl friend problem" of sentencing co-conspirators like principals. With Sessions and Hatch, Durbin was able to reach the compromise on 28 and 280 grams (18 to 1) and get it out of the Senate Judiciary Committee and out of the Senate on a voice vote.

I was very pessimistic that the House Democratic Leadership would bring the bill to the floor and risk a recorded vote. But House Majority Whip James Clyburn (D-SC) worked to get it to the floor. I believed that House Republicans would resist the bill as "soft on drugs," as Rep. Lamar Smith (R-TX), the ranking Republican on the Judiciary Committee, argued on the floor.

But I was wrong. The bill was brought to the floor, and Representatives James Sensenbrenner (R-WI) and Dan Lungren (R-CA) supported the bill. There was no record vote.

Since I did not think the bill would pass, and it did, my thoughts are that this is the best our political system can produce right now.

Republican support creates a political opening for President Obama to begin to issue orders commuting some sentences that are especially unjust -- if the Pardon Attorneys office is reorganized and expanded.

Ideally the Justice Department will begin more careful oversight of U.S. Attorney offices to assure that they focus on high level cases.

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