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Posted 5/13/12

DOJ V. SHERIFF JOE

On a mission to quash illegal immigration,
a mercurial Arizona sheriff tangles with the Feds

     For Police Issues by Julius (Jay) Wachtel.  “Today, the Department of Justice did something it has done only once before in the 18-year history of our civil police reform work; we filed a contested lawsuit to stop discriminatory and unconstitutional law enforcement practices.”  That’s how Assistant Attorney General Thomas Perez prefaced the announcement that placed Phoenix Sheriff Joe Arpaio’s preoccupation with illegal immigrants under the Federal microscope.

     In a detailed 32-page civil complaint filed Wednesday, the Feds charged Maricopa County, its Sheriff’s Office and Sheriff Joe Arpaio with violating the 1964 Civil Rights Act by engaging in law enforcement and correctional practices that discriminate against Latino residents and against Latino inmates, and for retaliating against their critics.

     Graphic depictions of abuse begin on the second page:

MCSO jail employees frequently refer to Latinos as “wetbacks,” “Mexican bitches,” and “stupid Mexicans.”  MCSO supervisors involved in immigration enforcement have expressed anti-Latino bias...distributing an email that included a photograph of a Chihuahua dog dressed in swimming gear with the caption “A Rare Photo of a Mexican Navy Seal.”

     According to the complaint, deputies targeted Latinos, using pretexts to stop vehicles and search their occupants:

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...officers stopped and detained a Latino driver and Latino passengers for a human smuggling investigation because they “appeared to be laying or leaning on top of each other” and “appeared, disheveled, dirty, or stained clothing [sic].”  However, MCSO pictures taken at the scene show neatly dressed passengers sitting comfortably in the rear of the vehicle.

...officers stopped a car carrying four Latino men, although the car was not violating any traffic laws.  The MCSO officers ordered the men out of the car, zip-tied them, and made them sit on the curb for an hour before releasing all of them.  The only reason given for the stop was that the men’s car “was a little low,” which is not a criminal or traffic violation.

     Females weren’t immune.  One Latina motorist, a U.S. citizen and five months pregnant, was allegedly roughed up then left to swelter in a non-air conditioned police car for a half hour.  Her crime?  No proof of insurance, a charge that was dismissed when she brought her insurance card to court.  Another Latina, also a U.S. citizen, got into a tussle with deputies who followed her home for a “nonfunctioning license plate light.”  That ticket was also dismissed.

     Deputies raided homes and businesses looking for illegals.  But how is it that local cops wound up doing so?  In 2007 the Feds contracted with selected police agencies across the U.S., including the MCSO, to enforce immigration laws on the street and in detention facilities.  But two years later when its contract came up for renewal Maricopa County was stripped of its powers to do anything beyond check the immigration status of inmates (it was the only agency so snubbed.)

     Despite the setback Sheriff Joe kept sweeping up illegal aliens, using authority he claimed under Federal and state laws.  In April 2010 his legal standing got a boost when Arizona passed its own immigration laws, which among other things authorized police to detain persons whom they reasonably suspected were illegally in the U.S.  However, a Federal district judge soon enjoined this and other key provisions of the law.  Her decision was promptly affirmed by the Ninth Circuit.

    Arizona appealed and the Supreme Court granted certiorari.  Oral arguments were heard April 25.  Analyzing the situation for the SCOTUS blog, Lyle Denniston reported that the Supremes are likely to grant police considerable leeway in dealing with possible illegal aliens, including temporarily detaining them for investigation.  But creating parallel state offenses that punish illegal status, as Arizona has done, will probably not be allowed.

     In December 2011 Arpaio’s difficulties with DOJ led to the revocation of his jailers’ authority to check immigration databases.  That’s now become the purview of ICE agents assigned to the jails.

     No matter how the Supreme Court rules, the limits imposed on the MCSO will likely hold until the lawsuit is resolved.  Sheriff Joe must still respond to claims that “inadequate policies, ineffective training, virtually non-existent accountability measures, poor supervision, scant data collection mechanisms, distorted enforcement prioritization, an ineffective complaint and disciplinary system, and dramatic departures from standard law enforcement practices” created a culture of bias and indifference towards Latinos.

     But Maricopa County’s chief law enforcement officer isn’t one to give up easily.  Only one day before DOJ dropped the hammer Sheriff Joe released a 17-page pamphlet.  It features a list of improvements in management, training, supervision and discipline that would ostensibly prevent abuses, enhance accountability and improve community relations.  Here are a few:

• Establish and maintain specific bias-free law enforcement and detention services/policies
   
• Standardize a method of reporting policy deficiencies including opportunities for public input
   
• Provide mandatory stand-alone training for all employees relating to bias-free law enforcement and detention services
   
• Develop and implement policies specific to bias-free law enforcement and detention services
   
• Enhance and mandate training focused on bias-free practices
   
• ...enhance communication overall and build language competencies for effective communication with those of limited English proficiency...
   
• Provide and maintain training on decision-making, conflict resolution, and use of force options consistent with best industry standards
   
• Standardize procedures for receiving, investigating, tracking, and reporting complaints of excessive use of force
   
• Seek citizen feedback and evaluation through surveys or other similar methods to assess Sheriff’s Office performance
   
• Implement an early intervention/recognition system to minimize the potential for escalation of employee behavior into incidents involving serious misconduct and promote employee development
   
• Implement training on the rights and actions of members of our community who witness, observe, record and/or comment on law enforcement actions, including stops, detentions, searches, arrests, or uses of force that are in accordance with the United States and Arizona Constitutions and the laws
   
• Review and revise, as needed, policies and procedures for receiving and investigating complaints to ensure fair and appropriate responses
   
• Maintain clear prohibitions against and severe consequences for retaliation
   
• Provide easy access for public complaint, comment and commendation about Sheriff’s Office personnel
   
• Develop a system to track comments and complaints, analyze and report results, issues or trends

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     DOJ’s Thomas Perez quickly rejected Sheriff Joe’s proffer.  “This too-little, too-late document, cobbled together at beyond the eleventh hour, is no substitute for meaningful reform.”  One suspects that Perez wasn’t referring to the brochure’s content, which is a fairly comprehensive summary of best practices in police management.  What must really miff DOJ is that Sheriff Joe refuses to accede to the usual remedy – a consent decree and a court-supervised outside monitor.  Instead he continues to insist that he’s the sheriff and that any and all outside inquisitors must report directly to him.  And what does he offer as a peace token?  A pamphlet!

     One thing’s for sure.  If deputy behavior was indeed scandalous – and it seems clear that Sheriff Joe’s obsession with immigration enforcement led him and his staff seriously astray – it will take a lot more than rewriting the rule book and increasing the sergeant-deputy ratio to fix things.  True reform requires an unwavering commitment from the top.  But Sheriff Joe’s dismissive attitude and combative style send out all the wrong signals.  It will be difficult – likely, impossible – to implement true change with him in place, and that’s all the more so should the Supreme Court rule in Arizona’s favor. 

     DOJ obviously realizes that having Sheriff Joe as the go-to guy for his agency’s transformation is like letting the fox guard the chicken coop.  That’s why they finally, and most reluctantly, sued.

     We’re eager for round two.

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Extreme Measures II     Extreme Measures

ARRESTING THE VICTIM

A 17-year old girl is arrested for not showing up at the trial of her alleged rapist

     For Police Issues by Julius (Jay) Wachtel.  According to section 1219(b) of the California Code of Civil Procedure, “no court may imprison or otherwise confine or place in custody the victim of a sexual assault [for] refusing to testify concerning that sexual assault or domestic violence crime.”  So how is it that a 17-year old rape victim was locked up for three weeks after failing to appear at her alleged assailant’s preliminary hearing and trial?  Why is she now wearing a GPS ankle bracelet?

     Because a “material witness” warrant isn’t about testifying.  It’s about showing up.  After having to dismiss and refiling the case against Frank Rackley, 37, something that the courts are unlikely to allow twice, that’s what prosecutors are determined that the teen do.

     If guilty, Rackley is truly a dangerous man.  His alleged victim, a state ward who lives at a foster home, was only sixteen when he allegedly approached her at a transit station, asked if she had a boyfriend, then forced her into a truck, drove to a dark area and raped her.  He then pushed her from his truck.  She immediately reported the crime, and her description and a DNA match led to his arrest.

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     Rackley wasn’t hard to find.  A parolee with six prior felony convictions (three for robbery and one each for stolen property, stalking and felony evasion), he is literally covered with tattoos, including one of a huge swastika.  His record also includes arrests for two 1996 rapes.  Neither went to court, one for unknown reasons and the other because the victim wouldn’t testify.  He is now being prosecuted for two year-old sexual assaults.  One is of the teen, and the other, which took place a month earlier, of a 30-year old prostitute who identified him from a photograph and described his tattoos.  Naturally, as an adult and sex worker her testimony isn’t expected to be as compelling as the youth’s.

     According to the 17-year old’s lawyer, her client has changed her mind and is now willing to appear and testify.  But her travails with the system have become a cause célèbre.

     Some claim that prosecutors overstepped their authority.  Lisa Franco, the lawyer who negotiated the juvenile’s release, claims that Marsy’s Law, a 2009 act that enshrined victim rights in the California constitution, prohibits punishing victims for failing to cooperate.  “She’s afraid of confronting her rapist, and she doesn’t want to testify.  By imprisoning her it’s just punitive, punishing her for not wanting to testify, which is contrary to what Marsy’s Law stands for.  She’s being bullied because she doesn’t want to do what the D.A. wants her to do.”

     So far the courts have disagreed.  Still, even if detaining victims is legal, it’s arguably bad public policy.  Another lawyer who has represented the teen, Amina Merritt, claims that the youth’s motivation is simple.  “She is at risk and that is the reason she did not testify previously.  She’s afraid, she’s afraid for her life.”  Along the same lines, Sandra Henriquez, executive director of the California Coalition Against Sexual Assault, warns that the youth’s arrest may dissuade future victims from cooperating with the authorities.  “We’re potentially sending a message that our concern over public safety supersedes our concern over a particular victim.  We could also be jeopardizing public safety if fewer victims come forward.”

     According to the National Center for Victims of Crime (NCVC), about six in ten sexual assaults are never reported.  Among the reasons are fears of “intrusive” and “re-victimizing” court procedures, as well as “shame, embarrassment, self-blame, fear of media exposure, fear of further injury or retaliation, and fear of a legal system that often puts the victim's behavior and history on trial.”  Yet the NCVC cites evidence that reporting these crimes can benefit victims psychologically:

“...many sexual assault survivors report that choosing to follow through with prosecution contributes to a feeling of accomplishment and empowerment because they are attempting to protect themselves and others in the community from being victimized.  Many victims also report the attempt to put their assailant(s) in jail allows for a feeling of closure, enabling them to put the assault behind them.

The Rape, Abuse & Incest National Network (RAINN) agrees:

Many victims say that reporting is the last thing they want to do right after being attacked.  That’s perfectly understandable – reporting can seem invasive, time consuming and difficult.  Still, there are many good reasons to report, and some victims say that reporting helped their recovery and helped them regain a feeling of control.

       In fact, this case began with the victim reporting the crime.  Once the machinery of justice was in motion, though, the youth changed her mind.  But the authorities didn’t, eventually arresting her as a material witness.  One of the many who question that approach is criminal justice ethicist Dr. Joycelyn Pollack:

Rape is a crime where the victims have lost all power over themselves and their choices – that’s why rape crisis clinics and counselors never push the victim to even go to the police because the whole point is to help her regain some control over her own life.  This is the worst case scenario of the victim being controlled by others.  What it needs is not sheer power/coercion but, rather, some degree of finesse and empathy on the part of the prosecutors.  If she runs, there’s a reason.  Fix that and the case may get taken care of as well.

     Yet the teen promised to appear but reneged twice, and this in a case where the nature of the alleged crime and the characteristics of the defendant could hardly be more extreme.  Assistant D.A. Albert Locher neatly summed up the dilemma:

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It’s the last thing we ever want to do.  You never want to have a victim or a witness in custody.  But you have to balance protecting the community.  When you look at (Rackley's) background – multiple victims already – it's important that we try to prevent another victim from being harmed.”

     A victim’s failure to cooperate usually dooms sexual assault prosecutions, as it leaves defense lawyers free to argue that whatever happened was consensual.  One saving grace in this case is that California’s age of consent is eighteen.  Given the DNA match jurors could convict the defendant of sexual assault (although probably not kidnapping) even without the teen’s testimony.  But all bets are off if she doesn’t even appear.

     Courtrooms are a humbling experience.  Your blogger knows that if one can get a recalcitrant witness to show up – and that’s not always so simple – they’ll usually testify.  That’s probably what prosecutors are counting on.  Should the accused be guilty and go unpunished, imagine the next girl who might be raped, and how she would feel during and after the act, that is, if she survives.

     We’ll see how this plays out over the next few weeks.  Stay tuned!

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THE NUMBERS GAME

A leaked NYPD internal report confirms that crime stat’s were fudged

     For Police Issues by Julius (Jay) Wachtel.  It’s been thirteen months since NYPD Commissioner Ray Kelly created a panel to investigate charges that the department systematically underreported serious crime.  While it’s yet to issue findings, it turns out that there has actually been a report all along.  As revealed days ago in the Village Voice, NYPD investigators submitted a damning 95-page report six months before Kelly’s panel was formed.  It concluded that the commander of the 81st. precinct, Deputy Inspector Steven Mauriello, had ordered officers to keep victims from filing crime reports or, if that wasn’t possible, to downgrade incidents below the Part I threshold so that they would not be included in yearly crime statistics.

When viewed in their totality, a disturbing pattern is prevalent and gives credence to the allegation that crimes are being improperly reported in order to avoid index-crime classifications.  This trend is indicative of a concerted effort to deliberately underreport crime in the 81st Precinct.

     Flashback to 2008.  NYPD officer Adrian Schoolcraft, an eight-year veteran assigned to Brooklyn’s tough 81st. precinct, was getting unsatisfactory performance evaluations, he says for resisting the pressure-cooker atmosphere created by Inspector Mauriello.  Preoccupied with looking good at CompStat meetings, the precinct commander was exhorting cops to make as many stop-and-frisks and write as many tickets as possible while minimizing the number of reports taken for serious crimes.

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     Schoolcraft complained about things to a police therapist.  That soon landed him on a desk, stripped of his badge and gun.  Then things got worse.  A dispute with his superior on Halloween night, October 31, 2009, landed him in a psychiatric ward, where he was held for six days.  NYPD then placed him on leave without pay, a status that remains in effect through the present day.

     Schoolcraft sued (click here for his website.)  In February 2010 he told it all to the New York Daily News.  Its reporters confirmed instances where 81st. precinct cops made it difficult if not impossible to file crime reports.  Then in May the Village Voice ran the first of an explosive series entitled “The NYPD Tapes.”  It turns out that for the sixteen months preceding that fateful Halloween day, Schoolcraft had been wearing a hidden recorder.

     His tapes depict a department consumed with the imperative to satisfy the Gods of CompStat.  One roll-call features a sergeant instructing officers to write “three seat belts, one cell phone and 11 others.”  Another stars the Inspector, in his radiantly profane self:

I see eight fucking summonses for a 20-day period or a month.  If you mess up, how the hell do you want me to do the right thing by you? You come in, five parkers, three A’s [minor infraction], no C’s [serious infraction], and the only 250 [stop-and-frisk] you do is when I force you to do overtime?  I mean it’s a two-way street out here.

     Officers kept property crimes under the Part I threshold by demanding receipts for stolen goods and by minimizing the amount of a loss.  A cop who thought he was speaking in confidence said that the same trick had been used to downgrade robberies.  “If it’s a robbery, they’ll make it a petty larceny...a civilian punched in the face, menaced with a gun, and his wallet was removed, and they wrote ‘lost property’.”  A Lieutenant eventually came up with an even neater solution, ordering that robbery reports not be taken unless victims immediately accompanied officers to the station to speak with detectives.

     Once the cat was out of the bag NYPD internal affairs descended on Schoolcraft.  He secretly taped that interview, too.  Here’s what an investigator said when leaving:

The mayor’s looking for it [lower crime stat’s], the police commissioner’s looking for it . . . every commanding officer wants to show it.  So there’s motivation not to classify the reports for the seven major crimes. Sometimes, people get agendas and try to do what they can to avoid taking the seven major crimes.

     Other officers came out with similar tales.  It turns out that Schoolcraft wasn’t the only running around with a hidden tape recorder.  Adil Polanco, a cop in the Bronx, recorded supervisors and union rep’s pressuring officers to make “chickenshit” arrests and avoid taking reports.

     NYPD could no longer pass it off as the ramblings of a disgruntled cop.  In October 2010, apparently as result of the internal investigation just disclosed by the Voice,  NYPD formally accused Mauriello and four subordinates at the 81st. with suppressing crime reports.  Mauriello was transferred out of the precinct.  He remains on full duty, and the accusations are still unresolved.

     Recent events suggest that little has been settled:

• 02/26/12  A cop’s lawsuit claims that the 42nd. precinct uses a quota system that requires cops to issue fifteen tickets, conduct two stop-and-frisks and make one arrest each month, on pain of various forms of discipline.
   
• 01/23/12  In response to concerns that crime reductions may be a “mirage” caused by underreporting, NYPD issued a memo requiring that officers take reports even when victims can’t identify suspects or provide receipts for allegedly stolen goods.  (NYPD insists that the memo simply reminds cops of correct procedures.)
   
• 01/18/12  CRC Press publishes “The Crime Numbers Game: Management by Manipulation,” by criminologists John Eterno (a retired NYPD Captain) and Eli Silverman, “exposing the truth about crime statistics manipulation in the NYPD and the repercussions suffered by crime victims and those who blew the whistle on this corrupt practice.”
   
• 01/08/12  NYPD credits heavy-handed transit enforcement, including ticketing and arresting passengers for nuisance violations such as hogging seats, for a sharp drop of crime in the subways.  But an officer contends that pressures from superiors to make at least one “collar” a month is a factor.
   
• 12/31/11  Crime victims complain that NYPD officers are refusing to take reports.  Some cops say it helps keep stat’s low, with one commander calling it “the newest evolution in this numbers game.”

     Whether NYPD has really learned anything from this mess is hard to say.  After a consistent downtrend – they reportedly fell 16 percent between 2008-09 – robbery reports ticked up 5 percent in 2010.  But it’s not just NYPD.  News reports suggest that playing fast and loose with crime statistics (click here for Baltimore  and here for Cleveland) and pressing officers to fulfill ticket and arrest quotas (click here for Los Angeles) are common.

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     Fudging statistics and treating cops like assembly-line workers has profound implications for the practice of policing.  Tools such as CompStat have turned measures into goals, pushing aside issues such quality and making cops into liars.  There’s an urgent need to reexamine the craft of policing and figure out what really “counts.”  It may have little to do with numbers.

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Turning Cops Into Liars     A Recipe for Disaster     Cops Aren’t Free Agents     Why do Cops Lie?

Is Crime Up or Down?     Cooking the Books     Liars Figure     A Very Dubious Achievement

 Too Much of a Good Thing

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Location, Location, Location     Quantity and Quality     The Crime Numbers Game (book)

NY City audit of Compstat (April 2013)

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