My oped in today's NYT: "The near impossibility of getting fired as a police officer is only part of the crisis of violence & impunity. An overlooked but significant culprit is mandatory minimum sentencing." If you need a brief break from impeachment talk:nytimes.com/2019/09/25/opi…
"Victims of police abuse-illegal stops & frisks, car stops & searches, home raids, manufactured charges & excessive force-routinely forgo their constitutional right to challenge police abuse in exchange for plea deals. Why: The alternative is to risk a steep mandatory minimum."
"Prosecutors use the fear of mandatory minimums to their advantage by offering less harsh plea deals before pretrial hearings begin. The result: The virtual loss of the jury trial AND the loss of the only opportunity to confront police misconduct in criminal proceedings."
In NYC less than 5% of all felonies have hearings to contest police conduct. For misdemeanors less than .5% of cases. A guilty plea also insulates police from civil rights lawsuits asserting false arrest. The plea serves as an admission that the officers’ arrest was justified."
I told a story of a young man I represented who made the rare call to reject a plea. Asked me to share his story: "Jacob was heading home when undercover detectives stopped a car he borrowed. Ordered him & 3 friends out, handcuffed & searched the car w/o justification."
"The officers later claimed he failed to signal & that they smelled a strong odor of marijuana emanating from the vehicle when they approached, both common police lies used as pretexts to stop and search predominately black and Latinx people." See e.g.: nytimes.com/2019/09/12/nyr…
"During search, officers recovered a gun from inside spare tire compartment. Jacob adamantly denied knowledge of the gun-it was not his car, other people used the vehicle, & there were multiple passengers-but he was charged w/ possession, a “violent felony” under NY law."
"The stakes were significant for this 21 y/o w/ no criminal record. At a hearing, it would be his word against the officers’. If he lost and went to trial, he would face the mandatory minimum of 3.5 years prison. Day of hearing, prosecutor offered a last-minute deal: probation."
"If Jacob turned the plea offer down that day, the deal would forever be off the table. Prosecutors call this a “one-time offer,” a routine pressure tactic that undermines a meaningful opportunity to make a truly voluntary decision. Most people take the deal."
"Jacob got his hearing. Officers involved were compelled to testify. I cross-examined them. They were visibly uncomfortable, upset at times. The judge found the officers’ testimony “implausible." Soon after, the prosecution dismissed all charges." But it didn't change anything.
"I learned that the same prosecutor was relying on the same team of officers to prosecute another man. A week after that, I passed by the officer whose testimony under oath the judge had rejected as “implausible,” waiting for another judge to sign off on a search warrant of his."
"The message that the system sent to this officer and continues to send to others is clear: You can do anything and the system will not hold you accountable. In fact, the system will protect you." The Founders envisioned a completely different system. One of accountability.
"The Framers knew well from British rule that the power to stop, search, detain, accuse, judge & punish people suspected of committing crimes presented unique risks." So they made clear that the power must be challenged, w/o fear of reprisal or punishment, at every turn."
This quote from the landmark case Mapp v. Ohio is so powerful and on point: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” uscourts.gov/about-federal-…
So what is the answer? How do we provide individualized justice, hold police accountable, and breathe life into the powerful protections clearly provided for in the Constitution to stem governmental abuse? Well, I have a couple of thoughts:
"We must abolish mandatory minimum sentences. Aside from denying individualized justice and driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate police misconduct."
Ending mandatory minimums is not enough. "As Jacob’s case underscored, even in the rare cases where officers are forced to testify & a judge finds them unbelievable, theres no mechanism to ensure they are halted from being able to contribute to future prosecutions."
Prosecutors must start rejecting arrests from bad actors: "DAs like Larry Krasner in Philadelphia & Kim Gardner in St. Louis have developed “do not call” lists of officers whom they refuse to rely upon based on previous findings of incredibility/misconduct." More of this needed.
Another thing: "Prosecutors must end the practice of the “hearing penalty,” where a plea offer made is forever lost once the hearing starts. A plea offer, once made, should not depend on a person’s having the audacity to exercise their constitutional rights."
Want to give a shout out to Jacob. His demand for accountability, despite the risks & institutional pressures, should serve as a model for lawmakers, prosecutors & anyone else who claims to care about the epidemic of police abuse and violence." Stop saying yes. Start saying no.
