Archive for the ‘Law’ Category
Radley Balko has a report on how police officers are protected from accountability for misconduct:
Over at Cato, Walter Olson has a summary of an ongoing issue that has had some resonance in the police killing of Baltimore resident Freddie Gray — the “law enforcement officer bill of rights” (LEOBR) that many states have passed, giving cops extra protections when they’re investigated for abuse of force.
Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved.
Prison and jail guards are often covered by these laws as well, and scandals of corrections administration (the state-run Baltimore jail had a huge one in which the Maryland LEOBR was implicated) are often hard to investigate because of the law’s barriers. Union contracts often add further layers of insulation from discipline. In its coverage of abuse allegations at New York’s notorious Attica prison, for example, the New York Times reported, “Under their union contract, corrections officers are obligated to answer questions only from their employers and have the right to refuse to talk to outside police agencies. State Police investigators attempted to interview 15 guards; 11 declined to cooperate.”
Aware of Baltimore’s long (and still-unfolding) history of police misconduct, Mayor Rawlings-Blake and the state ACLU and other groups have called for a partial rollback of Maryland’s LEOBR. Yet its defenders are well organized, and reform bills never made it out of committee in the now-concluded state legislative session.
Meanwhile, Pennsylvania’s House unanimously voted last year to enact a “Correctional Officers’ Bill of Rights”–as if this all were completely uncontroversial. It shouldn’t be.
Olson also links to a 2012 piece in Reason by Mike Riggs that digs a little further.
The rights created by these bills differ from state to state, but here’s how a typical police misconduct investigation works in states that have a law enforcement bill of rights in place:
A complaint is filed against an officer by a member of the public or a fellow officer. Police department leadership reviews the complaint and decides whether to investigate. If the department decides to pursue the complaint, it must inform the officer and his union. That’s where the special treatment begins, but it doesn’t end there.
Unlike a member of the public, the officer gets a “cooling off” period before he has to respond to any questions. Unlike a member of the public, the officer under investigation is privy to the names of his complainants and their testimony against him before he is ever interrogated. Unlike a member of the public, the officer under investigation is to be interrogated “at a reasonable hour,” with a union member present. Unlike a member of the public, the officer can only be questioned by one person during his interrogation. Unlike a member of the public, the officer can be interrogated only “for reasonable periods,” which “shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.” Unlike a member of the public, the officer under investigation cannot be “threatened with disciplinary action” at any point during his interrogation. If he is threatened with punishment, whatever he says following the threat cannot be used against him.
What happens after the interrogation again varies from state to state. But under nearly every law enforcement bill of rights, the following additional privileges are granted to officers: Their departments cannot publicly acknowledge that the officer is under investigation; if the officer is cleared of wrongdoing or the charges are dropped, the department may not publicly acknowledge that the investigation ever took place, or reveal the nature of the complaint. The officer cannot be questioned or investigated by “non-government agents,” which means no civilian review boards. If the officer is suspended as a result of the investigation, he must continue to receive full pay and benefits until his case is resolved. In most states, the charging department must subsidize the accused officer’s legal defense.
A violation of any of the above rights can result in dismissal—not of the officer, but of the charges against him.
I’d add one thing. Many times, these bills have strict procedures for how officers are to be investigated. Not following the procedures isn’t a huge deal for the officers who violate them, but it does get the cop being investigated off the hook. The “bill of rights” can essentially become a how-to guide for cops to get their colleagues out of trouble. I wrote about a good example of this a few years ago after a case in Louisiana.
In 2007, Shreveport police officer Wiley Willis arrested 38-year-old Angela Garbarino on suspicion of drunken driving. While in custody, as captured on the video below, Garbarino begins arguing with Willis about what she said is her right to make a phone call. About a minute later, Willis walks over and turns off the video camera. When the camera comes back on, Garbarino is lying on the floor in a pool of her own blood. She was later photographed with severe facial injuries she says were the result of Willis beating her. Willis’ attorney stated that she tripped and fell while the camera was off. After the video went viral, Willis was fired, but has never been criminally charged.
Last month, the Shreveport Municipal Fire and Police Civil Service Board voted to reinstate Willis on the police force. He’ll get full back pay and benefits for the year-and-a-half he was fired. The reason? During the internal investigation of Willis, a polygraph machine operator failed to record the results of his Q&A with Willis. This apparently is a violation of Louisiana’s“Police Officer’s Bill of Rights,” a set of guidelines every department must follow when investigating officer misconduct.
Garbarino won a $400,000 settlement from the city of Shreveport last year.
So because of that minor error in procedure, the bad cop gets his job back with full backpay. The residents and taxpayers of Shreveport get hit twice — they get to foot the bill for Garbarino’s compensation, and they get an abusive cop back on the city’s streets.
It’s true that, technically, these extra rights don’t pertain to criminal investigations. . .
Ryan Gabrielson reports in ProPublica:
With the introduction of DNA analysis three decades ago, criminal investigations and prosecutions gained a powerful tool to link suspects to crimes through biological evidence. This field has also exposed scores of wrongful convictions, and raised serious questions about the forensic science used in building cases.
This week, The Washington Post reported the first results from a sweeping study of the FBI forensic hair comparison unit, finding that 26 of 28 examiners in the unit gave flawed testimony in more than 200 cases during the 1980s and 1990s. Examiners overstated the accuracy of their analysis in ways that aided prosecutors. The National Association of Criminal Defense Lawyers and the Innocence Project are conducting the study with the cooperation of the U.S. Justice Department.
The development is only the latest to shake public faith in what police and prosecutors have often cited as scientific proof. In 2009, the National Academy of Sciences published an exhaustive review of the forensic sciences, concluding that only nuclear DNA analysis has a foundation in research. “Although research has been done in some disciplines,” the report states, “there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods.”
Fields based on matching patterns in fingerprints and hair have unknown error rates. Other methods are believed to be even more dubious, most notably the analysis of bite-mark injuries on victims’ bodies. Still, while the forensic sciences are under scrutiny, unproven practices, both old and new, continue to be used in courtrooms.
We’ve gathered some of the best reporting on questionable forensic science and evidence. Have we missed any? Please let us know in the comments below.
Convicted defendants left uninformed of forensic flaws found by Justice Dept
The Washington Post, April 2012
The Post story that spurred study of the FBI hair matching unit, which details how justice department officials failed to respond to widespread concerns about its fiber analysis. The FBI withheld the information from convicts whose cases included testimony from the troubled lab. “As a result, hundreds of defendants nationwide remain in prison or on parole for crimes that might merit exoneration, a retrial or a retesting of evidence using DNA because FBI hair and fiber experts may have misidentified them as suspects,” Spencer S. Hsu wrote.
Trial By Fire
The New Yorker, September 2009
The story of Cameron Todd Willingham, convicted of setting the fire that destroyed his Texas home and killed his one-year-old twin daughters. Willingham’s conviction rested on investigators’ belief that burn patterns proved the young father had poured a liquid accelerant to propel the blaze. Researchers would prove that theory baseless. The discovery did not benefit Willingham, who had been executed in 2004.
The Bite-Marks Men
Slate, February 2008
Two men in Mississippi were wrongly convicted for the rapes and murders of young girls based on bite-mark analysis by Dr. Michael West, a longtime expert witness in the state’s criminal courts. The entire method of analyzing bite marks is in question.
Texas Monthly, May 2010
Deputy Keith Pikett with the Fort Bend County Sheriff’s Office, outside Houston, connected people to crime scenes through “scent” lineups for his police dogs across Texas. Pikett would expose his dogs to a smell from the scene, and then have them sniff scent samples from the suspect and a series of uninvolved people. Pikett would testify dogs’ “body language” alerted him of alleged matches, helping to indict more than 1,000 suspects using the dubious technique.
Playing With Fire
The Intercept, February 2015
Another case in which fire investigators followed burn patterns to an incorrect conclusion, and a conviction. In 1992, Lorie Lee Lance died of smoke inhalation, crouched on the floor of a utility room as her home in Tennessee burned. Police suspected Lance’s boyfriend, Claude Garrett, had locked her in the room and set the blaze. However, the investigation had found the door was unlocked.
The Hardest Cases: When Children Die, Justice Can Be Elusive
ProPublica, June 2011 . . .
Continue reading. There are more at the link.
Jordan Smith reports in The Intercept:
Last week, the Washington Post revealed that, in 268 trials dating back to 1972, 26 out of 28 examiners within the FBI Laboratory’s microscopic hair comparison unit “overstated forensic matches in a way that favored prosecutors in more than 95 percent” of the cases. These included cases where 14 people have since been either executed or died in prison.
The hair analysis review — the largest-ever post-conviction review of questionable forensic evidence by the FBI— has been ongoing since 2012. The review is a joint effort by the FBI, Innocence Project and the National Association of Criminal Defense Lawyers. The preliminary results announced last week represent just a small percentage of the nearly 3,000 criminal cases in which the FBI hair examiners may have provided analysis. Of the 329 DNA exonerations to date, 74 involved flawed hair evidence analysis.
While these revelations are certainly disturbing – and the implications alarming – the reality is that they represent the tip of the iceberg when it comes to flawed forensics.
In a landmark 2009 report, the National Academy of Sciences concluded that, aside from DNA, there was little, if any, meaningful scientific underpinning to many of the forensic disciplines. “With the exception of nuclear DNA analysis…no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source,” reads the report.
There is one thing that all troubling forensic techniques have in common: They’re all based on the idea that patterns, or impressions, are unique and can be matched to the thing, or person, who made them. But the validity of this premise has not been subjected to rigorous scientific inquiry. “The forensic science community has had little opportunity to pursue or become proficient in the research that is needed to support what it does,” the NAS report said.
Nonetheless, courts routinely allow forensic practitioners to testify in front of jurors, anointing them “experts” in these pattern-matching fields – together dubbed forensic “sciences” despite the lack of evidence to support that – based only on their individual, practical experience. These witnesses, who are largely presented as learned and unbiased arbiters of truth, can hold great sway with jurors whose expectations are often that real life mimics the television crime lab or police procedural.
But that is not the case, as the first results from the FBI hair evidence review clearly show. And given the conclusions of the NAS report, future results are not likely to improve. What’s more, if other pattern-matching disciplines were subjected to the same scrutiny as hair analysis, there is no reason to think the results would be any better. For some disciplines the results could even be worse. Consider the examples below:
1. Bite-mark analysis is based on two falsehoods and wrongfully convicted at least 24 people
“Hair comparison analysis is practically DNA compared to bite mark analysis,” says Chris Fabricant, director of strategic litigation for the Innocence Project. Bite mark analysis – generally the practice of identifying alleged bite marks on human skin and then matching the pattern left behind to a person’s dentition – relies on two basic assumptions: One, that human dentition, like DNA, is unique; and, two, that human skin is a good medium for transferring, and preserving, a bite mark impression. But as it turns out, neither is true, according to research conducted by Mary Bush, a professor of dentistry at the State University of New York at Buffalo, who, with her team has conducted the only actual scientific inquiries into the practice in decades.
Indeed, some of the harshest criticism contained in the NAS report focuses on bite-mark evidence, and concludes that there is no scientific underpinning to the discipline. In a recent four-part series on bite-mark analysis, the Washington Post’s Radley Balko described how forensic odontologists – dentists who profess expertise in bite mark analysis (and who are qualified as such by the American Board of Forensic Odontology) not only reject the NAS’s conslusion, but actively attack anyone who dares to criticize the field. Two examples: In 2013, ABFO leadership orchestrated an aggressive – and ultimately unsuccessful – plan to expel their own colleague, Dr. Michael Bowers, from membership within the American Academy of Forensic Sciences, which would have hamstrung Bowers from testifying against the practice in court. His crime: being a vocal critic of bite mark “science.” In 2014, speaking at an ABFO dinner, Manhattan prosecutor Melissa Mourges, a strident supporter of bite mark evidence, not only derided Mary Bush’s work, but also peppered her remarks with petty insults about Bush’s physical appearance.
Of course, as it is with hair analysis — and, really, any of the questionable forensic disciplines critiqued by the NAS — the utter lack of a scientific foundation has done nothing to keep bite mark evidence out of the courtroom. To date, DNA has exonerated 24 individuals sent to prison on bite mark evidence.
2. Dexter lied to you about blood spatters. They sow chaos and confusion.
In the popular Showtime series Dexter, serial killer of serial killers Dexter Morgan has a day job with the Miami police, where he works as a blood-spatter analyst. The episodes show him expertly analyzing sprays of blood on walls or drops on floors, quickly – and reliably – arriving at a concrete theory of the crime that, more often than not, leads the PD’s homicide detectives to swift resolution.
If only it were that easy.
While there is some actual science involved in bloodstain-pattern analysis — knowledge of the physics of fluids is helpful, as is an understanding of the pathology of wounds — the sheer number of variables involved in the creation of any given bloodstain makes reaching any definitive conclusion about the circumstances of its origin difficult at best. “The uncertainties associated with bloodstain pattern analysis are enormous,” the NAS report concluded.
Yet for defendants, as with other forensic disciplines, the conclusions of a bloodstain “expert,” can mean the difference between living free or behind bars. The NAS report warns that while science supports “some aspects” of bloodstain pattern analysis —whether blood “spattered quickly or slowly” for example — some experts “extrapolate far beyond what can be concluded.” This risk was powerfully demonstrated in the bizarre case of Warren Horinek, a former Ft. Worth, Texas police officer who, based solely on the conclusions of a blood pattern expert, was convicted and sentenced to 30 years in prison for the 1995 murder of his wife — a death that the police, medical examiner, and prosecutor all concluded was actually suicide.
Horinek remains in prison.
3. Worn shoes and tires can land you on death row, but there’s no evidence they’re unique . . .
Ryan Devereaux reports in The Intercept:
In the fall of 2013 Rafiq ur Rehman, a school teacher from the remote tribal region of North Waziristan, in Pakistan, stood with his 12-year-old son, Zubair, and 9-year-old daughter Nabila, in Washington, D.C., preparing to challenge the U.S. government’s most secretive means of killing.
The Rehmans say a missile fired from a U.S. drone killed killed 68-year-old Momina Bibi – Rehman’s mother and grandmother to the two young children – in an October 2012 airstrike. Both Zubair and Nabila were present when the attack happened, and suffered injuries. The missile had struck their grandmother straight on, obliterating her completely. There were no others killed in the attack and no substantiated reports of terrorists at the scene.
According to the family’s account, Bibi was killed tending okra while her grandkids played nearby.
The family came to the U.S. to meet to demand answers. They were treated as honored guests among the human rights community in New York City, But when the family met with lawmakers on October 20, 2013 a total of five members of Congress showed up.
For Pakistani attorney Shahzad Akbar, who represents 150 victims of the strikes, including the Rehman family, President Barack Obama’s recent apology for the killing of two Americans merely underscores the double standard that exists for civilian death.
“Today if Nabila or Zubair, or many of the civilian victims, if they are watching on TV the president being so remorseful over the killing of a westerner, what message is that taking?” Akbar said in an interview withThe Intercept Thursday.
The answer, he argued, “that you do not matter, you are children of a lesser God, and I’m only going to mourn if a westerner is killed.”
The absence of transparency despite tremendous efforts that the Rehman family experienced has been a defining feature of the Obama administration’s drone program. Typically, no amount of evidence gathered by journalists, human rights investigators or researchers indicating the death of a civilian from a drone strike will elicit an on the record response from the U.S. government – let alone an admission of responsibility – or prompt an independent investigation.
That was not the case on Thursday morning when President Barack Obama delivered a press conference describing a strike gone wrong. In the unprecedented address, Obama detailed how a failure in intelligence gathering had left two civilians dead. Numerous anonymous U.S. officials said the attack occurred in Pakistan and that the CIA was responsible, though Obama and his press secretary Josh Earnest refused to explicitly confirm either. Unlike past cases, the unintended victims killed in the attacks were westerners, one an Italian, the other a U.S. citizen.
The American, 74-year-old Warren Weinstein, had spent 40 years working around the world. For the last decade he had lived in Pakistan, where heserved as country director for a consulting firm working with the U.S. Agency for International Development (USAID). The second victim, Giovanni Lo Porto, was an Italian national. The 39-year-old had come to Pakistan four years ago, when severe floods ravaged the country. Both of the men ultimately found themselves hostages of al Qaeda – Weinstein was taken in 2011, Lo Porto in 2012. They had been held in a compound in Pakistan’s Shawal Valley, The New York Times reported Thursday night.
“We believed that this was an Al Qaeda compound, that no civilians were present and that capturing these terrorists was not possible,” Obama said of the January 15 strike. “And we do believe that the operation did take out dangerous members of Al Qaeda. What we did not know, tragically, is that Al Qaeda was hiding the presence of Warren and Giovanni in this same compound.”
The compound had been placed under “hundreds of hours of surveillance,” Obama said. U.S. intelligence officials chose to take the shot only after achieving “near certainty” that the building was a legitimate terrorist target and civilian lives would not be risked, Earnest added. When the dust settled, American spies watched as more bodies were pulled from the rubble than expected. It would take weeks, however, for the intelligence community to confirm that the dead included Weinstein and Lo Porto. Ahmed Farouq, an American and alleged al Qaeda leader also died in the attack. A separate a U.S. airstrike in the region on January 19 was also described in detail on Thursday. U.S. intelligence officials said they believed that attack killed Adam Gadahn, a U.S. citizen and al Qaeda propagandist. Again, the Americans said they did not know he was inside when they fired.
Neither of the two strikes targeted specific individuals, U.S. officials said. The attacks were signature strikes, a much-criticized tactic in which the CIA kills people without knowing their identities, instead relying on behavioral observations. In both of the January strikes, the U.S. only learned whom it had killed after the fact.
Earnest told reporters that neither Farouq nor Gadahn were considered high-value targets, meaning they were not eligible for the type of assassination of U.S. citizens the Obama administration has deemed legal in recent years, which requires additional layers of approval. “The president did not specifically sign off on these two operations,” Earnest said.
Earnest said an inspector general was conducting an independent review of the operation.
President Obama said the operation that killed the two Westerners would be declassified and disclosed publicly, “Because the Weinstein and Lo Porto families deserve to know the truth.”
“One of the things that sets America apart from many other nations, one of the things that makes us exceptional is our willingness to confront squarely our imperfections and to learn from our mistakes,” Obama explained. “Already, I have directed a full review of what happened. We will identify the lessons that can be learned from this tragedy, and any changes that should be made.”
When asked by The Intercept if the president’s words meant there would be a policy change in how the U.S. deals with claims of civilian casualties resulting from counterterrorism operations, an administration official declined to comment.
Whether anyone from the CIA has been or will be held accountable for the strikes remains unclear. . .
I’ve commented several times of the FBI tactic of recruiting disaffected use, convincing them (via paid informants) to embrace terrorism, providing them with plans and materiel, then swooping in the break up the (FBI-created) plot, producing many headlines and much self-congratulation. Jenifer Fenton takes a look at this practice in a longish article in Al Jezeera America:
The recent arrests on terrorism-related charges of six young Somali-Americans from Minneapolis and others throughout the United States have prompted renewed questions over the issue of entrapment, and over the degree of real security achieved by disrupting plots that law-enforcement had helped shape.
The six, ages 19 to 21, were charged with conspiracy to aid and support a terrorist organization, and are accused of trying to travel to Syria to join the Islamic State in Iraq and the Levant (ISIL, also called ISIS).
“These were focused men who were intent on joining a terrorist organization,” Minnesota U.S. Attorney Andy Luger said at a news conference.
But the case relies partly on a confidential human source (CHS), who had been a part of the group seeking to join ISIL before he began cooperating with the FBI.
The relationships that law enforcement had with some of the alleged has led to controversy in many cases tackled by the FBI and police departments across the U.S. Defenders argue that it plays a vital role in catching those seeking to carry out acts of violence or join radical groups. Critics, including many civil rights groups, say law-enforcement operatives or civilians working with them often egg on suspects to commit crimes they would not necessarily have otherwise. In its most egregious instances, it can result in the entrapment of otherwise harmless — or mentally ill — individuals.
With the rise of ISIL, there has been a renewed effort to counter potential threats on U.S. soil, including cases in which informants have played key — and some say controversial — roles.
“We have investigations of people in various stages of radicalizing in all 50 states,” FBI Director James Comey said in February. The message of ISIL in particular “resonates with troubled souls, people seeking meaning in some horribly misguided way,” he added. “Those people exist in every state.”
In one recent case, John T. Booker Jr. (also known as Mohammed Abdullah Hassan), 20, was charged in April with attempting to use what law enforcement officers termed a weapon of mass destruction — a device he believed was a vehicle bomb — at Fort Riley military base in Kansas. He was also accused of knowingly trying to provide material support and resources to ISIL.
On March 15, 2014, Booker is said to have posted Facebook messages about “going to wage jihad” and “getting ready to be killed in jihad.” On the same day, the FBI was notified about his comments via a citizen’s complaint, and and agents interviewed Booker a few days later.
But according to the Justice Department’s complaint, it appears Booker did not know what materials he needed to make the bomb. A CHS had “provided Booker with a list of supplies that they needed to purchase in order to build the bomb.” Nor did Booker have a map of the Fort Riley area. Instead he was provided with one after asking informants.
The informants also supplied him with what he believed was a bomb. “On or about April 10, 2015 … CHS 2 met Booker and CHS 1 in the van in which CHS 2 had purportedly constructed the VBIED [vehicle-borne improvised explosive device],” the report reads. Booker, who in 2014 voluntarily checked himself into a mental health institution, had to been shown how to arm the device. If convicted, he could face life in prison.
While law enforcement agencies have hailed operations such as those that resulted in Booker’s arrest, others say they create a false sense of security by prosecuting crimes that they have shaped, in ways that also prejudice sentencing, said Steve Downs, an attorney and the executive director of National Coalition to Protect Civil Freedoms. “It’s very cost effective because there is no way out of it, because they have all the elements locked up,” he added.
Claiming entrapment — inducing a person to commit a crime he or she would have been unlikely to commit without such intervention — has not offered a viable legal defense strategy in terrorism-related cases because it requires proving that the accused was not predisposed to commit the crime.
Entrapment has been used in cases involving drug manufacture, corruption and financial crimes.
In those instances, said attorney Kathy Manley, “you had the crimes going on, and you had to get someone into the organization.” But some of the terrorism cases involving informants working against alleged Muslim offenders are different, she said, “because here you don’t have the crimes going on.” . . .
Most colleges (outside of fictional whodunits) will not consider handling a murder as an internal matter, but for some reason colleges often deem themselves qualified to deal with the felony of rape. They have not, however, done a good job: their feeling is unmatched by the facts.
In the New Yorker Margaret Talbot reviews a book by Jon Krakauer that examines a spate of sexual assaults at the university in Missoula, Montana:
Should sexual assaults that occur on college campuses be handled by the school or by the criminal-justice system? Rape is often treated as a matter for the internal tribunals that weigh issues like plagiarism and cheating, even though the investigation and adjudication of other serious crimes—a dorm-room murder, say—would never be handled by a small group of faculty and students with no particular forensic or legal training. One reason is that the Department of Education has pressured colleges and universities to deal swiftly with rape allegations in order to comply with civil-rights law and to make campuses safe for women students. But the other is that people who have been raped are often reluctant to go to the police. These women (and sometimes men) know that their sojourn through the criminal-justice system is likely to be a further ordeal, and they may have little confidence that it will lead to any punishment for the perpetrator. The statistics support that skepticism: only a tiny fraction of reported rapes are successfully prosecuted.
The stories told in Jon Krakauer’s new book, “Missoula: Rape and the Justice System in a College Town,” remind us of what a brave and risky thing it still is for a woman to report a rape. Krakauer, who has written for this Web site, explores a spate of sexual assaults that occurred on and around the campus of the University of Montana between 2008 and 2012. For several of the women involved, the risk of reporting their rapes felt even more acute because the men they were naming were football players in a town that, like a lot of college towns, is football crazy. The team was the Grizzlies; Missoula is also known as Grizzlyville. Two of the cases eventually went to court. One involved a Grizzly linebacker named Beau Donaldson, who pleaded guilty to having raped a young woman who’d been a childhood friend; she was deeply asleep when he climbed on top of her. The other involved Jordan Johnson, a Grizzly quarterback accused of rape by a woman Krakauer calls by the pseudonym Cecilia Washburn. Johnson maintained the sex was consensual.
By nature, criminal trials are public, probing, and adversarial. They attract judgment from the troll chorus on the Internet, from prospective jurors, from cops, from people around town, many of whom may hold antiquated ideas about what constitutes rape—imagining perhaps that most are committed by marauding strangers when in fact most rapists and their victims are acquainted. The woman who had accused Jordan Johnson had the misfortune of coming up against two particularly belligerent defense attorneys. One of them, Kirsten Pabst, was a former prosecutor. She does not come off well in the book—she crops up earlier as the Missoula prosecutor who declined to bring criminal charges in an egregious case where the University of Montana had determined an accused rapist to be guilty. In Johnson’s trial, Pabst portrayed her client’s accuser as . . .
Chandra Bozelko writes in the NY Times:
IT’S been called “America’s most ‘open’ secret”: According to the Bureau of Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number is almost certainly subject to underreporting, through shame or a victim’s fear of retaliation. Overall, only 35 percent of rapes and sexual assaults were reported to the police in 2010, and the rate of reporting in prisons is undoubtedly lower still.
To tackle the problem, Congress passed the Prison Rape Elimination Act, signed into law by President George W. Bush in 2003. The way to eliminate sexual assault, lawmakers determined, was to make Department of Justice funding for correctional facilities conditional on states’ adoption of zero-tolerance policies toward sexual abuse of inmates.
Inmates would be screened to identify possible predators and victims. Prison procedures would ensure investigation of complaints by outside law enforcement. Correctional officers would be instructed about behavior that constitutes sexual abuse. And abusers, whether inmates or guards, would be punished effectively.
But only two states — New Hampshire and New Jersey — have fully complied with the act. Forty-seven states and territories have promised that they will do so. Using Justice Department data, the American Civil Liberties Union estimated that from 2003 to 2012, when the law’s standards were finalized, nearly two million inmates were sexually assaulted.
Six Republican governors have neglected or refused to comply, complaining of cost and other factors. Rick Perry, then the governor of Texas, wrote to the Justice Department last year stating that 40 percent of the correctional officers in male facilities in Texas were women, so that “cross-gender viewing” (like witnessing inmates in the shower, which contravenes the legal guidelines) could not be avoided. The mandated measures, he said, would levy “an unacceptable cost” on Texas, which hasone of the highest rates of prison sexual assault.
For its noncompliance, Texas is likely to lose just 5 percent of federal funding for its state prisons, or about $800,000. It will still receive $15.2 million in federal grants even as inmates continue to be sexually assaulted. If Congress passes an amendment that Senator John Cornyn, Republican of Texas, proposed last year, the financial penalty for noncompliance will be removed altogether.
Ultimately, prisons protect rape culture to protect themselves. According to the Bureau of Justice Statistics, about half of prison sexual assault complaints in 2011 were filed against staff. (These reports weren’t all claims of forcible rape; it is considered statutory sexual assault for a guard to have sexual contact with an inmate.)
I was an inmate for six years in Connecticut after being convicted of identity fraud, among other charges. From what I saw, the same small group of guards preyed on inmates again and again, yet never faced discipline. They were protected by prison guard unions, one of the strongest forces in American labor.
Sexualized violence is often used as a tool to subdue inmates whom guards see as upstarts. In May 2008, while in a restricted housing unit, or “the SHU” as it is commonly known, I was sexually assaulted by a guard. The first person I reported the incident to, another guard, ignored it. I finally reached a nurse who reported it to a senior officer.
When the state police arrived, I decided not to talk to them because the harassment I’d received in the intervening hours made me fearful. For the same reason, I refused medical treatment when I was taken to a local emergency room.
Subsequent interviews with officials at the prison amounted to hazing and harassment. They accused me of having been a drug user, which was untrue, and of lying about going to college, though it was true I had. The “investigation,” which I found more traumatic than the assault, dragged on for more than two months until they determined that my allegation couldn’t be substantiated. The law’s guidelines were followed, but in letter not in spirit.
I was also a witness in a case in which an inmate claimed to have been sexually assaulted by a guard and then told me she’d made it up. I reported her — and this time, I was perfectly credible to an investigator, who praised me for having a conscience and a clear head.
The . . .