2. Sen. Kyl: Repeal 14th Amendment

Should we start punishing kids for their parents’ behavior? Sen. Jon Kyl
(R-AZ) wants to repeal the 14th Amendment, which says that anyone born
here is an American citizen. Kyl wants the U.S.-born kids of illegal
immigrants to be denied citizenship, the senator said on ‘Face the
Nation.’ He supports a proposal from Sen. Lindsey Graham (R-SC) – known
on the far right as “Senator Grahamnesty” for his earlier
pro-immigration stance derided as amnesty – to amend the Constitution to
delete this right established in 1868 to prevent Southern states from
denying citizenship to slaves. “The 14th Amendment [has been]
interpreted to provide that if you are born in the United States, you
are a citizen no matter what,” Kyl said. “So the question is, if both
parents are here illegally, should there be a reward for their illegal
behavior?”

Bradford & Jackson on Cooperating with the Police

Ben Bradford and Jonathan Jackson (pictured) (Scottish Centre for Crime and Justice Research and London School of Economics & Political Science – Methodology Institute) have posted Cooperating with the Police: Social Control and the Reproduction of Police Legitimacy on SSRN. Here is the abstract:
Calling upon and assisting police officers are acts of public cooperation that link informal and formal mechanisms of social control. An in-depth study of seven London neighborhoods investigates the relationships between (a) cooperation with the police, (b) public trust in police fairness and effectiveness, and (c) public perceptions of everyday social regulation processes. Cooperation with the police is associated first with high levels of public trust in procedural fairness, second with confidence that local residents will intervene on behalf of the collective good, and third with heightened concerns about disorder and the loss of authority and discipline in society. We conclude with the idea that cooperation is shaped by trust in the police and is reinforced and challenged by a complex set of relational concerns. Moreover, by recognizing and supporting the function of the police to fight crime and administer justice, acts of cooperation both constitute and confer police legitimacy.
July 31, 2010 | Permalink

JURIST] The US House of Representatives [official website] approved a bill Wednesday that would reduce the sentencing disparity between crack and powder cocaine offenses. The Fair Sentencing Act of 2010 [S 1789 materials] would amend existing law to reduce the current sentencing ratio from 100:1 to 18:1. Under the existing law passed in 1986, an individual possessing five grams of crack cocaine would receive a mandatory five-year prison sentence, while an individual possessing powder cocaine would need to have 100 times that amount to receive the same sentence. Human Rights Watch [advocacy website] praised [press release] the bill’s passage, stating that the current law also created a racial disparity, with African Americans comprising 79.8 percent of all offenders sentenced for crack cocaine violations. Attorney General Eric Holder [official website] also supported [statement] the bill’s passage, stating that it will “go a long way toward ensuring that our sentencing laws are tough, consistent, and fair.” House Judiciary Committee member Lamar Smith (R-TX) [official websites] was the only member to speak out against the bill [NPR report], arguing that reducing penalties could lead to increased violence in communities [press release]:
Crack cocaine is associated with a greater degree of violence than most other drugs. And more than any other drug, the majority of crack defendants have prior criminal convictions. … I cannot support legislation that might enable the violent and devastating crack cocaine epidemic of the past to become a clear and present danger.
According to a cost estimate [text, PDF] published by the Congressional Budget Office [official website] in March, the Fair Sentencing Act would save the federal prison system $42 million between 2011 and 2015. The bill will now be sent to President Barack Obama [official website] for his consideration and signature. Obama called for a reduction in the sentencing disparity during his presidential campaign in 2008.
The bill was introduced in the Senate by Dick Durbin (D-IL) [official websites] and was passed in March, less than a week after the Senate Judiciary Committee unanimously approved the bill [JURIST reports]. Last year, the House Judiciary Committee voted 16-9 to approve a bill [JURIST report] that would have completely eliminated the sentencing disparity between the offenses. In April 2008, a study released by the US Sentencing Commission (USSC) [official website] reported [study, PDF; JURIST report] that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced under an amendment to the Federal Sentencing Guidelines [materials]. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties [press release].

Civilians take on police work in SFPD program
John Coté, Chronicle Staff Writer
Sunday, July 25, 2010
(07-25) 18:25 PDT SAN FRANCISCO — If you find your home or car broken into in San Francisco, sometimes police respond in minutes. Other times it takes hours.

Fingerprints and DNA evidence are often not collected, Police Chief George Gascón said. To do so, a separate crime scene technician has to be called out, which could stretch into the next day.

“When the police get there, you’ve been waiting for three, four, five hours,” Gascón said. “By this time, you’re really fit to be tied.”

That’s all supposed to change under a pioneering and controversial test program included in the city’s new budget that will use civilian investigators to respond to nonviolent crimes like burglaries or car break-ins, freeing up police officers to focus on crimes in progress or dangerous offenders.

It’s designed to improve response times across the board while giving victims better “customer service” and detectives more evidence that can be used to catch criminals – for less than the cost of hiring more officers.

e-engineering policing’

Gascón bills it as more efficient policing, although he’s facing stiff opposition from the city’s police union, which is wary of this latest effort to “civilianize” the department.

“This is really about re-engineering policing,” said Gascón, who started developing the idea about five years ago after learning about civilian police uses in Great Britain. “It’s a program that I believe will increasingly become the model around the country.”

Under a $955,000 pilot project to begin in January, 15 civilian investigators trained to interview victims and witnesses, write reports, take crime scene photos and collect fingerprint and DNA evidence would respond to less-serious cases where the crime occurred some time ago and no perpetrator is believed to be nearby. The civilian investigators would work in one or two of the 10 district stations.

Rather than making victims wait indefinitely, civilian investigators could schedule an appointment over the phone for a set time. Civilian staff wouldn’t be called away for a crime in progress and would also be trained to offer crime prevention tips, Gascón said.

“Their job will be to basically start handling all of those calls that do not require someone with a gun,” he said.

Some national experts say it’s an innovative plan, but critics of similar programs in Britain have raised concerns that civilians could miss important clues and aren’t as accountable as police officers.

nion boss skeptical

The head of San Francisco’s police union maintains that civilians shouldn’t be collecting evidence that could prove pivotal to a case. That would present “a huge chain-of-custody problem” at trial and a ripe target for cross-examination on whether the evidence was properly collected and securely stored, said Gary Delagnes, president of the San Francisco Police Officers Association. “I am in no way in support of civilians going out and doing that,” Delagnes said. “Let’s say they go to a 3-day-old burglary, dust for fingerprints, take a report and all of a sudden they find out the guy who committed that burglary was a serial murderer. You’re going to have a civilian who has to testify in court in a murder trial, and it’s going to be a mess.”

Gascón noted that civilian crime scene technicians already testify in major criminal cases and that the new investigators would receive identical training.

“In most major cities around the country, civilians go to court every day and testify about evidence,” Gascón said. “There’s nothing magic about having a police officer testify in court. They do it well because they’re trained for it.”

Solid training, thorough background checks and proper oversight are needed for the program to work, said Police Commissioner Jim Hammer, a former San Francisco prosecutor.

“The devil is in the details,” Hammer said.

oing ‘more with less’

Gascón’s plan comes as cities like Oakland are laying off dozens of officers and stopping active investigations of the types of crimes San Francisco’s new civilian investigators would handle.

“You can actually do more with less,” said San Francisco Mayor Gavin Newsom. “This is a way of achieving a goal in a very, I think, strategic way.”

The program, modeled on one Gascón introduced while chief in the Phoenix suburb of Mesa, Ariz., before being hired in San Francisco last year, comes as the chief expects 78 officers to retire this year, positions the city doesn’t have the money to fill. Civilian investigators can be hired with salaries ranging from $47,000 to $57,000 a year, compared with base salaries ranging from $88,000 to $110,000 a year for police officers, according to city figures.

Civilians are also cheaper to equip. In Mesa, the civilian investigators drive unmarked cars and carry handheld radios and pepper spray, rather than carrying guns, wearing bulletproof vests or driving outfitted patrol cars.

Gascón, though, said his plan is not focused on cutting costs.

“This is much broader than simply a response to bad economic times today,” Gascón said. “This is about looking at what policing is going to look like in the next 30, 40, 50 years.”

Departments nationwide have used civilians for years as crime scene technicians or to handle minor accident investigations, or to assist detectives with phone work. But none in the country appear to have combined all the elements of Gascón’s program – particularly having civilians double at taking initial reports and processing a scene for evidence.

great idea’

“I think it’s a great idea,” said Craig Fraser, director of management services for the Police Executive Research Forum, a Washington think tank hired to recommend how to modernize San Francisco’s police force before Gascón arrived.

“The whole idea is you preserve the most expensive resources for when you actually need an immediate response,” Fraser said.

In Mesa, some officers initially saw the program as a threat to their jobs but soon called for it to be expanded because the civilians took the minor cases with automatic paperwork, said Sgt. Stephanie Derivan, who oversees the civilian investigators there.

“The officers were excited because the civilian investigators were going to be taking the ‘paper calls,’ as we refer to them,” Derivan said. “We like to hunt down bad guys, chase them and put them in jail.”

The program started in one district in Mesa in June 2009 and is now operating across the city of about 460,000 residents.

During the first year, the district with civilian investigators saw its response time on emergency calls drop 9 percent, compared with a 5 percent reduction citywide, according to Mesa police data.

Civilian investigators contacted 78 percent of the victims they dealt with in less than an hour, Derivan said.

Since the program’s inception, evidence from civilian investigators has generated 138 matches with the national fingerprint database, resulting in 41 arrests, including one man suspected of 16 commercial burglaries, Derivan said.

The program has also generated six hits on the national DNA database, resulting in three arrests, Derivan said.

“We have identified several serial criminals,” she said.

uestions remain

Despite successes in Mesa, Delagnes argues San Francisco has more complex and serious crime.

“In a place like Mesa it might work,” Delagnes said. “Here you have big-city defense attorneys, big-city public defenders.”

He called for retired police officers to fill the new positions.

Previous efforts to increase civilian staff at the Police Department have also met with resistance.

A 1994 Charter amendment requires the city to have 1,971 full-duty officers – a threshold that has rarely been met. Voters approved a ballot measure in 2004 pushed by then-Supervisor Tom Ammiano that allowed more than 150 police jobs to be filled by civilians under the argument it was inefficient to have sworn officers doing clerical work. An opponent at the time, Barbara Meskunas of the Coalition for San Francisco Neighborhoods, warned: “If this thing passes, within five years we will have a public safety emergency on our hands.”

Ammiano said that has yet to happen.

“There was institutional resistance to the change,” Ammiano said. “It took some convincing, but now people are seeing it as beneficial, not as a threat.”

E-mail John Coté at jcote@sfchronicle.com.

The Most Conservative Court in Decades
With the United States Supreme Court under Chief Justice John Roberts ending its fifth term, The New York Times has broken down the ideological shifts of the court over the past 60 or so years. Their conclusion? The Roberts court is the most conservative in decades. While it may not be as right-leaning as it was under Roberts’ predecessor, William Rehnquist, the decisions rendered by the Roberts court—such as amending campaign finance laws—have been markedly conservative. A defining moment for the Roberts court that pushed it to the right was the confirmation of Justice Samuel Alito. The Times projects that if the first five years of the court are any indication of the future, it will likely expand the scope of the Second Amendment, further allow unions and corporations to influence elections, and curb abortion rights.
Read it at The New York Times

Rough justice: America locks up too many people, some for acts that should not even be criminal”

The title of this post is the headline of this new commentary in The Economist. Here is how it gets started:

In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.

America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.

The linked briefing is also a must-read, and it is headlined “Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little.”

When Do a Criminal Defendant’s Compulsory Process/Due Process/Confrontation Rights Trump Evidentiary Privileges?
Eugene Volokh • July 16, 2010 6:50 pm

This is a difficult and recurring question, and arises with regard to a wide range of privileges — lawyer-client, psychotherapist-patient, clergy-penitent, and more. It is particularly difficult when the conflict is with the constitutionally secured privilege against self-incrimination: A defendant argues that to properly defend himself he needs to have someone’s testimony (often a coconspirator’s), but that potential witness refuses to testify for fear of self-incrimination. And similar issues also arise with regard to so-called “rape shield” laws, which preclude the introduction of some kinds of evidence of the victim’s past sexual conduct.

For the most recent example of this, involving the relatively new “victim-advocate” privilege (which is intended as a variant of the psychotherapist-patient privilege for crime victims who go to specialized “victim advocate’ services rather than to traditional psychotherapists), see In re Subpoena to Crisis Connection, Inc. (Ind. Ct. App. July 15). The Indiana court canvasses the precedents from other states (which point in different directions), and holds that the Indiana victim-advocate privilege may have to yield to the defendant’s rights:
In the Indiana case, the trial court has already found that the defendant has met the particularity and materiality criteria, and Crisis Connection has not disputed those findings. The interest in privacy asserted by Crisis Connection, while important, is not strong enough to bar an in camera review of its records. Requiring defendants to meet the three-step test before obtaining an in camera review creates the proper balance between a criminal defendant‘s constitutional rights and an alleged victim‘s need for privacy. This approach is consistent with our decisions addressing other privileges and with the better-reasoned opinions of other jurisdictions. Therefore, we affirm the trial court‘s order.