The mind is a curious instrument.  It is by the workings of our mind that we assign things value or certainty.  For instance, we all know that 2+2=4, right?  René Descartes the French philosopher, mathematician, and scientist who has been dubbed the father of modern Western philosophy might disagree with you.  In his work entitled Meditations on First Philosophy, Descartes explains that realm of pure ideas considers that self-evident idea such as two plus two equals four may, in fact, have no reality outside the mind. According to the First Meditation (1641), the standard of truth is self-evidence of clear and distinct ideas. However, Descartes questions the correspondence of these ideas to reality.  This is illustrated by Honoré de Balzac's novel Séraphîta (1834) which contains the following passage:

    Thus, you will never find in all nature two identical objects; in the natural order, therefore, two and two can never make four, for, to attain that result, we must combine units that are exactly alike, and you know that it is impossible to find two leaves alike on the same tree, or two identical individuals in the same species of tree.
    That axiom of your numeration, false in visible nature, is false likewise in the invisible universe of your abstractions, where the same variety is found in your ideas, which are the objects of the visible world extended by their interrelations; indeed, the differences are more striking there than elsewhere.

How a government can play with numbers to have them mean whatever they need at the moment is clearly illustrated in George Orwell, Nineteen Eighty-Four.  In the novel, the equation 2+2 =5 is used as an example of an obviously false dogma that one may be required to believe, similar to other obviously false slogans promoted by the government in the novel.  Orwell's protagonist, Winston Smith, uses the phrase to wonder if the State might declare "two plus two equals five" as a fact; he ponders whether, if everybody believes it, that makes it true. The Inner Party interrogator of thought-criminals, O'Brien, says of the mathematically false statement that control over physical reality is unimportant; so long as one controls one's own perceptions to what the Party wills, then any corporeal act is possible, in accordance with the principles of doublethink ("Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once").

The point of this mental exercise is to show that numbers are not the absolute truths we believe them to be.  All too often, numbers used in the real world are but window dressing to some moral or social conclusion we have already drawn.

Take for instance Florida Volusia County Sheriff Bob Vogel who denied that race played any role in his deputies' decisions on whom to stop, suggesting instead that whites are simply less likely than African‑Americans or Hispanics to be transporting drug money.  See, Steve Berry & Jeff Brazil, “Blacks, Hispanics Big Losers in Cash Seizures: A Review of Volusia Sheriff's Records Shows that Minorities are the Targets in 90 Percent of Cash Seizures Without Arrests, Orlando Sentinel, June 15, 1992, at A1.

Police Chief Flynn commits the Milwaukee Police Department to an unconscious bias when doing stop and frisks.  "People that live in disadvantaged communities plagued by crime expect the cops to do something about it. And what we do is intervene. We stop cars. We stop individuals. We stop suspects and we attempt to lower the amounts of violence," Flynn said  Racial data of Milwaukee police stops released; Department continues to collect data despite overturned law (WISN May 10, 2012).  In fact, Police Chief Flynn has gone on record to encourage his police officers[1] to stop innocent people to maintain law and order under his “targeted crime-fighting approach.”  Police Chief Flynn has said: “Yes, of course we are going to stop lots of innocent people.”

Much like Vogel, officers who are accused of disproportionately targeting African‑Americans or other minorities typically defend their conduct by citing statistics that show higher rates of crime and arrests among minorities. See, “Developments in the Law‑‑Race and the Criminal Process, Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct,” 101 HARV. L. REV. 1494, 1496 (1988) ("[P]olice defend the use of race as a basis for forming suspicion precisely because of racially disparate arrest patterns: because members of racial minorities commit more crimes, police argue, it is not invidious discrimination to treat minorities differently.").
The questionable tendency to seek justification in disproportionate arrest statistics has had the unfortunate effect of perpetuating a fallacy, generating more unbalanced arrest patterns that consequently provide a basis for continued selective enforcement.  101 HARV. L. REV. at 1508-09.  This creates a “separate but equal” criminal code- one for blacks and one for whites.  Thus a Presidential Council recently concluded:

Discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions. Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin (Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57

The problem of the self-fulfilling prophecy and profiling was addressed by the Attorney General of the State of New Jersey.  Attorney General Peter Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, (April 20, 1999)(Verniero Report).  After first explaining that racial profiling is a national problem, the report demonstrated the tautological nature of using proactive arrest numbers:

[S]ome law enforcement executives have argued that it is appropriate for police officers on patrol to rely upon racial characteristics provided that objective crime trend analysis validates the use of these characteristics as risk factors in predicting and responding to criminal activity…Many of the facts that are relied upon to support the relevance of race and ethnicity in crime trend analysis, however, only demonstrate the flawed logic of racial profiling, which largely reflects a priori stereotypes that minority citizens are more likely than whites to be engaged in certain forms of criminal activity.  This form of scientific analysis, in other words, is hardly objective… some of the numbers they rely upon are self-selected and thus inherently misleading.  Verniero Report at 65, 66.
The Verniero report proceeds to explain that the fact that a disproportionate percentage of drug arrests are minorities does not mean that any particular minority citizen is more likely than a non-minority citizen to be committing a drug offense. Verniero Report at 67-70.  The report than states:

To the extent that [] police and other law enforcement agencies arrest minority motorists more frequently based on stereotypes, these events, in turn, generate statistics that confirm higher crime rates among minorities, which in turn, reinforces the underpinnings of the very stereotypes that gave rise to the initial stops.  In short, police officers may be subjecting minority citizens to heightened scrutiny and more probing investigative tactics that lead to more arrests that are then used to justify those same tactics.  This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system…[U]sing profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or hunches. Verniero Report at 70-72.

Ah hah! You may say.  How do we know if these disproportionate numbers are legitimate because of African American crime rates or an illegitimate product of discrimination in the criminal justice system.  To make that distinction one must compare the numbers of Black Americans in prison with the number of Black Americans who commit crime.  If Black Americans are in prison in higher proportion to their crime rate, they are victims of discrimination in the criminal justice system.

The National Criminal Justice Commission made this comparison.  After two years of study and research by a diverse panel of experts, the Commission concluded:

Relative to population size, about five times as many African-Americans as whites get arrested for the serious index crimes of murder, rape, robbery, and aggravated assault.  About three times as many African-Americans as whites get arrested for less serious crimes, which make up the bulk of arrests and currently flood the criminal justice system.  If after arrest there were no racial bias in the criminal justice system, the racial makeup of the prison population should at least roughly reflect the racial disparity in arrest rates – if three times as many African-Americans get arrested for less serious crimes, then there should be roughly three times as many African-Americans per capita in prison for those crimes.  But the racial difference among African-Americans and whites in prison is overwhelmingly wider than arrest rates suggest it should be absent racial bias.  There are seven African-American to each white in prison…Most studies reveal what most police officers will casually admit: that race is used as a factor when the police decide to follow, detain, search, or arrest…To justify the use of race in forming this suspicion, these officers might point to racial disparities in arrest patterns: if minorities get arrested more often, they argue, then minorities must be committing more crime.  This is a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities, thereby creating the arrest statistics needed to justify the racial stereotype.  Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) 107-09.  Emphasis original.

Clearly, all arrest statistics do is reinforce sterotypes and agendas already in place by policy-makers.  They do nothing more than prove that 2+2 can equal 5.


[1] The old adage “So the station…so the street” describes how the values demonstrated inside the organization have a powerful influence on police behavior in the community.  The way police leaders exercise their power inside the organization signals to officers how they are expected to use their power on the street.  So if the Milwaukee Police Chief makes a statement that lots of innocent people are going to be stopped in Milwaukee, individual officers will stop lots of innocent people in Milwaukee.  Rahr, Sue and Stephen K. Rice, From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals. New Perspectives in Policing Bulletin. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 2015. NCJ 248654.  Both Ms. Rahr, former King County Sheriff, Seattle, Washington, and Police Chief Flynn were members of the Executive Session on Policing and Public Safety who sponsored this paper.

The source of the Big Lie technique is this passage, taken from Chapter 10 of James Murphy's translation of Mein Kampf:

    But it remained for the Jews, with their unqualified capacity for falsehood, and their fighting comrades, the Marxists, to impute responsibility for the downfall precisely to the man who alone had shown a superhuman will and energy in his effort to prevent the catastrophe which he had foreseen and to save the nation from that hour of complete overthrow and shame. By placing responsibility for the loss of the world war on the shoulders of Ludendorff they took away the weapon of moral right from the only adversary dangerous enough to be likely to succeed in bringing the betrayers of the Fatherland to Justice.   

All this was inspired by the principle—which is quite true within itself—that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods.   

It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation. For the grossly impudent lie always leaves traces behind it, even after it has been nailed down, a fact which is known to all expert liars in this world and to all who conspire together in the art of lying.    — Adolf Hitler, Mein Kampf, vol. I, ch. X[1], Project Gutenberg of Australia - Mein Kampf tr. James Murphy. Archived from the original on 24 July 2008.

Later, Joseph Goebbels put forth a slightly different theory which has come to be more commonly associated with the expression "big lie". Goebbels wrote the following paragraph in an article dated 12 January 1941, 16 years after Hitler's first use of the phrase. The article, titled Aus Churchills Lügenfabrik (English: "From Churchill's Lie Factory") was published in Die Zeit ohne Beispiel:The essential English leadership secret does not depend on particular intelligence. Rather, it depends on a remarkably stupid thick-headedness. The English follow the principle that when one lies, one should lie big, and stick to it. They keep up their lies, even at the risk of looking ridiculous.

In a remarkable insight of how Hitler used the big lie, the United States Office of Strategic Services prepared a report entitled, “A Psychological Analysis of Adolph Hitler His Life and Legend” which said:His primary rules were: never allow the public to cool off; never admit a fault or wrong; never concede that there may be some good in your enemy; never leave room for alternatives; never accept blame; concentrate on one enemy at a time and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it.  Hitler was able to implement the big lie because he had “ a matchless instinct for taking advantage of every breeze to raise a political whirlwind. No official scandal was so petty that he could not magnify it into high treason; he could ferret out the most deviously [unreadable] corruption in high places and plaster the town with the bad news."  Id.  Hitler had the ability to “repudiate his own conscience in arriving at political decisions has eliminated the force which usually checks and complicates the forward-going thoughts and resolutions of most socially responsible statesmen.”  Id.  Moreover Hitler had the ability to “persuade others to repudiate their individual consciences.”  Id.

Today, it is an unfortunate truth that the practice of the big lie is used today by President Trump and his supporters and seen in media.  See, Did Fake News On Facebook Help Elect Trump? Here's What We Know; Social media and fake news in the 2016 election.  Simply put, Trump lies continuously and with a second thought.  All false statements involving Donald Trump.  The number of these types of lies by Trump vastly exceeds the lies of previous presidents. Glen Kessler of the Washington Post compiled a list of more than 2000 misleading or false statements in Trump’s first 355 days in office.  Leonhardt, et al., of the New York Times, using a much more conservative definition of false statements, compiled 103 separate untruths during Trump’s first ten months in office. These lists often include flip-flops, self-contradictions, unwarranted credit taking, and exaggerations.That is half the question.  The other, perhaps more important question, is why do people believe the big lie?

Scholars have known for decades that people tend to search for and believe information that confirms what they already think is true. The new elements are social media and the global networks of friends who use it. People let their guard down on online platforms such as Facebook and Twitter, where friends, family members, and coworkers share photos, gossip, and a wide variety of other information. That’s one reason why people may fall for false news, as Distinguished Professor of Communication & Co-Director of the Media Effects Research Laboratory, Pennsylvania State University S. Shyam Sundar, explains in “Why we believe fake news,” The Conversation. Another reason: People are less skeptical of information they encounter on platforms they have personalized — through friend requests and “liked” pages, for instance — to reflect their interests and identity.  Sundar characterizes his research findings in this way: “We discovered that participants who had customized their news portal were less likely to scrutinize the fake news and more likely to believe it.”

A growing body of research also indicates that repeated exposure to false statements can lead people to believe those falsehoods. An experimental study, led by Vanderbilt University assistant professor of psychology Lisa Fazio, showed that people sometimes are more likely to believe repeated untrue facts than even their own knowledge about a topic. For example, even after study participants had answered correctly that the short pleated skirt worn by Scots is called a kilt, their chances of believing the false statement “A sari is the name of the short pleated skirt worn by Scots” increased after they read that sentence multiple times.  In another study, subjects rated how certain they were that 60 statements were true or false.  Some statements were repeated others were not.  Repeated statements were more likely found true than statements which were not repeated. 

Similarly, a study forthcoming in the Journal of Experimental Psychology: General “actual fake news headlines presented as they were seen on Facebook, we show that even a single exposure increases subsequent perceptions of accuracy, both within the same session and after a week. Moreover, this “illusory truth effect” for fake news headlines occurs despite a low level of overall believability, and even when the stories are labeled as contested by fact-checkers or are inconsistent with the reader’s political ideology. These results suggest that social media platforms help to incubate belief in blatantly false news stories, and that tagging such stories as disputed is not an effective solution to this problem. Interestingly, however, we also find that prior exposure does not impact entirely implausible statements (e.g., “The Earth is a perfect square”). These observations indicate that although extreme implausibility is a boundary condition of the illusory truth effect, only a small degree of potential plausibility is sufficient for repetition to increase perceived accuracy. As a consequence, the scope and impact of repetition on beliefs is greater than previously assumed.”

Perhaps what is scariest is what happens when people are confronted with the true information to contradict the lie.  In their well-cited 2010 study, “When Corrections Fail: The Persistence of Political Misperceptions,” they found that people sometimes hold more firmly to false beliefs when confronted with factual information. For example, when political conservatives were presented with correct information about the absence of weapons of mass destruction in Iraq, they were even more likely to believe Iraq had those weapons.  As the study concludes: corrections frequently fail to reduce misperceptions among the targeted ideological group. Corrections actually increase misperceptions among the group in question.
 

The film and play A Man For All Seasons depict the final years of Sir Thomas More, the 16th-century Lord Chancellor of England who refused to sign a letter asking Pope Clement VII to annul King Henry VIII of England's marriage to Catherine of Aragon and refused to take an Oath of Supremacy declaring Henry VIII Supreme Head of the Church of England.  There is a scene in the movie where Thomas More is told he should have arrested a man who broke no law but was “dangerous and bad.”  When More says he cannot arrest the man for those reasons, More was asked about the proposition that the devil should be given the benefit of Man’s law:

WILLIAM ROPER: So, now you give the Devil the benefit of law!
SIR THOMAS MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?
ROPER: I’d cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

I have never heard a better justification for rejecting the idea that to enforce the law, we should turn a blind eye to when police lie, cheat steal or do worse all in the name of law enforcement.  To those who accept this, the ends justify any means.

Unfortunately, police officers routinely exploit your ignorance when there is a police-citizen encounter.  It is not always as blatant as the above scenario.  Here are examples of deception used by police that is judicially approved:

1. NOT TELLING YOU THE DIFFERENCE BETWEEN A REQUEST AND AN ORDER.

A good example of this when a police officer asks you questions during a routine traffic stop for speeding (for example).After you hand over your driver’s license, registration and proof of insurance, the police officer will likely chat with you and asking questions before or after your driver’s license is being “run.”If you are operating a motor vehicle and a cop pulls you over for speeding, he can ORDER you to show your driver’s license, registration and proof of insurance.Her REQUEST for you to engage in further conversation is used by the officer to determine if you are intoxicated or anotherr crime has been committed.The point is, you do not have to talk to officer after or before being arrested.Simple refusal to talk cannot serve as a basis for detention or seizure.“[…Florida v. Bostick, 501 U.S. 429, 437 (1991).See also Florida v Royer, 460 US 491, 497-98 (1983) (“The person approached . . . need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.”)
 
A person in a free America on the street does not have to speak to the police since "the Fourth Amendment itself cannot require a suspect to answer questions” without Hiibel v. Sixth Judicial District Court of Nevada,542 U.S. 177reasonable suspicion that Hiibel had committed a crime)Kolender v. Lawson, 461 U.S. 352, 360-62 (1983) (holding that requiring a detained citizen to provide “credible and reliable” identification gives too much discretion to police officers without an identifiable standard, making it unconstitutionally vague); Brown v. Texas Davis v. Mississippi, 394 U.S. 721, 727 n.6 (1969) (“While the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.”)In Martiszus v. Washington County, 325 F. Supp. 2d 1160, 1168-70 (D. Or. 2004), the court held that refusing to provide identification, standing alone, is insufficient justification for a Terry stop. In United States v. Henderson, 463 F.3d 27, 46-47 (1st Cir. 2006), the court found that an officer could not demand a driver’s identifying information “for reasons of officer safety” when the officer did not perceive any danger, there was no reasonable suspicion that the defendant was engaged in any illegal activity, the stop was not in a dangerous location, and the traffic violations for which the defendant was pulled over for did not “raise the specter of illegal activity.”
 
Let me be clear: do not be a jerk or rude to the cop on the street.Only that the time to challenge what the police do is not on the street but in court.
 
Although it’s not directly at issue, it might be helpful to point out a similarly widespread but mistaken belief that officers must read arrestees their Miranda rights. There is no right to be read Miranda rights on arrest. Miranda merely impacts what statements are admissible in response to police questioning after arrest or its functional equivalent. If the police don’t want to question the person, or if they want to question the person but either don’t want to use the statements at trial or they think one of many exceptions to Miranda will apply, they are free not to read the suspect Miranda rights. See generally Chavez v. Martinez, 538 U.S. 760 (2003)
Another situation is when the police stop by to talk to you or someone in your house and ask to enter your house.The police and come to your door and make this REQUEST.However, without a warrant to enter the house, the police cannot ORDER you to allow them into your house.A search warrant is an order, signed by an impartial magistrate, permitting a law enforcement officer to search a particular location for a particular piece of evidence. The warrant clause of the Fourth Amendment sets forth the standard for the issuance of a warrant:
No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
The warrant requirement's rationale is that the search of an individual, his home, or his possessions by the government is an intrusion of such magnitude that before the search is permitted to occur, the reasons for it should be carefully scrutinized by an impartial magistrate.Thus, in the normal course of events, where no exigency exists,and no other exceptions to the warrant requirement apply, the law requires the police to present their information to an impartial magistrate in the form of a warrant application before conducting the search. In other words, a citizen’s home is her castle and cops should stay out!

     2.COURTS APPROVE OF COPS LYING TO YOU AS PART OF THEIR INVESTIGATION.
 
Imagine you have been arrested for sexually assaulting someone the day before.The police take you into a small brick room with no windows where your legs and arms remain chained.A detective comes in and is pretty nice to you offering cheetos and a soda.The detective says she is worried.She says the cops have done a search an examination of the scene and the crime lab found your DNA and fingerprints at the scene.She wants to help you so the prosecutor goes easy on you by just telling her how you were involved in the offense.
 
More than likely the cop is lying about those forensic science results.Wisconsin crime labs are terribly backed up so for the crime lab to have your DNA and fingerprint results the next day is all but impossible. Nevertheless, if you start talking based on this lie, courts will allow your statement to be used in court.The use of trickery and deception in the questioning of criminal suspects is an undisputable foundation of law enforcement practices.Police practice a variety of deceptive techniques, masterfully designed to psychologically coerce a suspect to confess. Fake tests is one form of acceptable lie according to courts.
 
For instance, in People v. Mays, 95 Cal. Rptr. 3d 219, 223 (Ct. App. 2009) theCalifornia Court of Appeal considered whether a fake polygraph examination, with fabricated results indicating that the subject failed, constituted coercion so that a juvenile suspect’s statement should not be used in court. The court ruled that thismethod of interrogationdid not coercea juvenilesuspect to make subsequent incriminating statements.
 
Police interrogation manuals provide another general overview of the types of tactics included in the definition of trickery. These interrogation manuals instruct law enforcement officers on how to effectively elicit confessions from suspects through the use of a variety of deceptive techniques. The leading interrogation manual is Criminal Interrogation and Confessions by Fred E. Inbau, John E. Reid, and Joseph P. Buckley, which details a deceptive nine-step interrogation plan. The nine steps are strategically designed to reduce the suspect's reluctance to confess while simultaneously increasing the suspect's desire to tell the truth. In general, this plan relies heavily on the exploitation of the inherent power differential between the accused and the police. Scholars have emphasized that Inbau, Reid, and Buckley's nine-step plan is inherently deceptive. The plan involves either frightening or tricking the suspect into a confession, using such tactics as offering false sympathy, blaming the victim, offering excuses, or minimizing the seriousness of the charges.
 
As federal court in 1998 put it, police tricky is a regrettable but frequent practice of law enforcement that is not unconstitutional.

        3.    FUNDING LAW ENFORCEMENT BY FORFEITURES
 
Attorney General Jeff Sessions announced the reversal of former Attorney General Eric Holder’s policy to curb law enforcement seizures of people’s property. The Department of Justice (DOJ) is not only expanding the use of civil forfeiture at the federal level, but at the local level through partnerships that allow profit sharing among federal and local police departments.Civil forfeiture allows police to seize — and then keep or sell — any property they allege is involved in a crime. Owners need not ever be arrested or convicted of a crime for their cash, cars, or even real estate to be taken away permanently by the government.
 
Forfeiture was originally presented as a way to cripple large-scale criminal enterprises by diverting their resources. But today, aided by deeply flawed federal and state laws, many police departments use forfeiture to benefit their bottom lines, making seizures motivated by profit rather than crime-fighting. For people whose property has been seized through civil asset forfeiture, legally regaining such property is notoriously difficult and expensive, with costs sometimes exceeding the value of the property.
As reported by the National Review, one Philadelphia couple had their entire house seized after their son was arrested for selling $40 worth of heroin out of it without their knowledge, while an aspiring musician recently lost $16,000 in cash when he was stopped on an Amtrak train on his way to Los Angeles, on mere suspicion that the money was connected to drug activity. In theory, forfeiture is supposed to proceed on the basis that law enforcement can demonstrate a nexus between such property and the commission of a crime on the part of the owner, and so legitimately deprive them of their ill-gotten gains. However, in these and many other instances, such connection is never actually proven in court. Instead, due to a legal oddity in which the property itself is said to have “committed” the crime, not the individual, law enforcement is able to take and keep it under far fewer legal hurdles than would exist if the owners were charged themselves.
 
The National Review explains that civil forfeiture is a major source of non-appropriated revenue for government at all levels, as a 2015 report from the Institute for Justice highlights. Annual deposits into the Justice Department’s Asset Forfeiture Fund reached $4.5 billion in 2014, with only 13 percent of such forfeitures coming after criminal convictions. Annual forfeiture revenue more than doubled across 14 states between 2002 and 2013.The money derived from the Drug Enforcement Administration’s profiling efforts are no less staggering. According to USA Today, federal drug units attached to 15 of the nation’s largest airports seized over $209 million from at least 5,200 people over the last decade. Such seizures don’t necessarily ever see the inside of a courtroom. As the report details, people are usually just given a receipt and sent off to ponder how light their wallet suddenly feels — all without so much as an arrest.

       4.     BLUE LINE OF DECEPTION
 
If you are old enough, you may remember the true life account of what happened to NYPD officer Frank Serpico who blew the whistle on police corruption, became an instant pariah and eventually was set up for the kill. But officers don’t have to envision themselves getting the extreme Serpico treatment for finger pointing abusive officers to know that their stock would plunge beneath the floor among other officers if they were tagged a stoolie by other officers.
 
There is a “code of silence” that exists in most police departments.“Emotions run high in closing arguments: McCann points to cover-up; defense points out holes” Milwaukee Journal Sentinel April 13, 2006; “Police officers at scene of brutal beating deny seeing any violence” COURT TV by Emanuella Grinberg, April 3, 2006 (“code of silence,” according to Milwaukee County District Attorney Michael McCann, relates to the bond among officers to cover each other's backs”); “McCann says testimony of 2 officers reflects 'code of silence' in Jude beating: The jury returns.”Milwaukee Journal Sentinel April 1, 2006.See also, Bryant v. Whalen, 759 F. Supp. 410, 424 n. 7 (N.D. Ill. 1991); Spell v. McDaniel, 824 F.2d 1380, 1393 (4th Cir. 1987) (officer testified that code of silence covered up incidents of excessive force).This culture of silence can create a problem when complaining about police misconduct.
 
So what happens when the wall of silence meets the need of a citizen to complain about the actions of a police officer?How do you get help?Depending on the department it might not be easy.While police departments are supposed to have easily accessible complaint forms, according to an investigation in 2005, police departments from Brookfield, Germantown, Greendale, New Berlin, Racine, Wauwatosa, and Whitefish Bay were very accommodating to citizens who wished to file complaints about the conduct of a police officer.
 
Other departments, like Kenosha and Waukesha make a citizen who wishes to file a complaint feel intimidated.In Milwaukee, it depended on what district police station you went to.
 
The problem is that few police departments pound this point home to rank and file officers or for that matter to their superiors. Put bluntly, telling them and continuing to tell recruits at the academy, officers in orientation and training sessions, and in their performance evaluations that the department has zero tolerance toward police misconduct. That if an officer witnesses it they are duty-bound to report it. If they don’t they are just as guilty of law breaking as the cop that breaks the law. The blue code of silence makes it possible for bad cops and bad administrators to get away and keep getting away with abusive act.
 
But there is more.Contracts between police and city authorities, leaked after hackers breached the website of the country’s biggest law enforcement union, Fraternal Order of Police (FOP), contain guarantees that disciplinary records and complaints made against officers are kept secret or even destroyed.The documents date back almost two decades and include agreements from unions such as the Policemen’s Benevolent Association and the International Brotherhood of Police Officers. Many contain numerous recurring clauses that slow down misconduct investigations, prevent public access to complaints and disciplinary records, and enable the destruction of complaints and disciplinary records after a negotiated period of time.


      5.    RACIAL DISPARITY IN THE CRIMINAL SYSTEM
Racial disparity runs through the criminal system from arrest to disposition of the case.  The Greater Milwaukee Human Rights Coalition in its Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination (Feb. 2008) stated:
 
Racial discrimination and disparities are apparent within the criminal justice system in Wisconsin. This report explores recent incidents of police brutality and misconduct against people of color in the Milwaukee area. In addition, African Americans are incarcerated at much higher rates in the state than non-Hispanic whites,1 likely due largely to racial profiling and racial disparities in prosecuting and sentencing. As a result, poor prison conditions disproportionately affect people of color. Moreover, the State of Wisconsin’s low indigency threshold to qualify for public defense also has a disparate impact on minorities.[i] Disfranchisement of individuals with felony convictions who have completed their prison terms also occurs at a disparate rate for people of color.  Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination, Executive Summary, p.1 http://www.ushrnetwork.org/files/ushrn/images/linkfiles/CERD/24_Milwaukee.pdf
 
Further, the Greater Milwaukee Human Rights Coalition found that “Wisconsin has the second highest African American incarceration rate in the US—4,416 per 100,000 African Americans in the state are incarcerated. Wisconsin also has the fifth highest black-to-white ratio of incarceration at 10.6 to 1.”  Id at 5.  The Greater Milwaukee Human Rights Coalition Report went on to detail that discrimination in the Wisconsin Criminal Justice System exists in three areas: minority arrest rates, discrimination in prosecution of cases and discrimination at sentencing.  Id.  Regarding discrimination based on felon disenfranchisement, the Coalition found the policy “policies have a disparate impact on African-American voters. One out of nine African-American voters is disfranchised in Wisconsin compared to one out of fifty voters overall.  African Americans comprise 39 percent of the disfranchised population, even though they make up only 5 percent of the voting population.  In June, a bill was introduced in the Wisconsin legislature which, if passed, would restore the right to vote to those who have completed their term of incarceration for an offense.”  Id. at 8.  See also, Mauer and King, Uneven Justice: State Rates of Incarceration by Race and Ethnicity, Sentencing Project (July 2007), p.3 http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceandethnicity.pdf (States with the highest black-to-white ratio are disproportionately located in the Northeast and Midwest, including the leading states of Iowa, Vermont, New Jersey, Connecticut, and Wisconsin.  Further, Wisconsin and Vermont which have high rates of black incarceration and average rates of white incarceration) and p. 10 (An examination of the ratio of black-to-white incarceration rates by state illustrates not only the heightened use of imprisonment for African Americans, but also regional differences in how incarceration policies produce disparities. While the national black-to-white ratio of incarceration is 5.6, among the states the ratio ranges from a high of nearly 14-to-1 in Iowa to a low of less than 2-to-1 in Hawaii.13 In seven states – Iowa, Vermont, New Jersey, Connecticut, Wisconsin, North Dakota, and South Dakota – the black-to-white ratio of incarceration is greater than 10-to-1.)
 
The Wisconsin Office of Justice Assistance, a division of the Wisconsin Department of Administration, confirms the perception that racial disparities are found throughout the Wisconsin criminal justice system from arrest to sentencing:

Various national and state reports have documented and quantified Wisconsin's growing disparity between white and minority citizens in the criminal justice system.  A report recently issued by the Human Rights Watch and the national Sentencing Project showed that African-Americans received prison sentences for drug crimes 42 times more frequently than whites.  And in Wisconsin's prisons, nearly half of inmates are African-American, yet Blacks represent just 6 percent of Wisconsin’s population.  Racial disparities permeate the entire criminal justice continuum, in the number of arrests, cases charged, sentences and probation and parole revocations.  In some offense categories, like drug arrests and minor offenses, the disparity is more pronounced, while in others, like sentences for serious offenses, the disparity is reduced.  Racial Disparities, http://oja.wi.gov/section.asp?linkid=1344&locid=97  Emphasis added.

The Sentencing Project found that the rate of arrests of white Milwaukeeans for drug offenses decreased 63% from 1980 to 2003. Yet the rate of arrests of black Milwaukeeans increased 206% during those same years. The authors found no corresponding increase of drug use among African Americans to explain the changes in arrest rates. Instead, they conclude that the policies of the War on Drugs have disproportionately targeted African Americans.  Ryan S. King, Disparity by Geography: The war on Drugs in America’s Cities, The Sentencing Project (May 2008) http://www.sentencingproject.org/doc/publications/dp_drugarrestreport.pdf  Likewise, Human Rights Watch found that African Americans in Wisconsin are 42.4 times more likely than whites to be incarcerated for drug offenses--the most disparate ratio in the nation.  Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, Vol. 12, No. 2 (May 2000), http://www.hrw.org/reports/2000/usa/index.htm#TopOfPage  Emphasis added.

It has been determined that people perceive African Americans are arrested in Wisconsin based not on what they may have done wrong but their race.  Ten years ago a state racial profiling task force issued a 105 page report that recommended police start collecting racial profiling data.  Governor’s Task Force on Racial Profiling, Report 2000, http://oja.state.wi.us/docview.asp?docid=15466&locid=97  The Task Force defined racial profiling is “[a]ny police-initiated action that relies upon the race, ethnicity, or national origin of an individual rather than the behavior of that individual, or information that leads the police to a particular individual who has been identified as being engaged in or having been engaged in criminal activity.” Report 2000, at p. 79.  The report, prepared by a 17-member task force, chaired by Milwaukee County Judge Maxine A. White, was created by former Gov. Tommy G. Thompson.  Report 2000, Executive Summary at 1. The Report set forth sufficient anecdotal evidence of racial profiling existing in Wisconsin to cause Gov. Scott McCallum to sign his first executive order, requiring all law enforcement agencies in the state to ban the controversial practice and to carry out the report's recommendations.  Mark Johnson, “Governor bans racial profiling” Milwaukee Journal Sentinel, March 7, 2001.  Effective January 1st, 2011, all Wisconsin law enforcement officers will be required to collect data at traffic stops that will be used to determine whether vehicles operated or occupied by racial minorities are disproportionately stopped.  Traffic Stop Data Collection, http://oja.wi.gov/section.asp?linkid=1643&locid=97

Officers who are accused of disproportionately targeting African‑Americans or other minorities typically defend their conduct by citing statistics that show higher rates of crime and arrests among minorities. See, “Developments in the Law‑‑Race and the Criminal Process, Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct,” 101 HARV. L. REV. 1494, 1496 (1988) ("[P]olice defend the use of race as a basis for forming suspicion precisely because of racially disparate arrest patterns: because members of racial minorities commit more crimes, police argue, it is not invidious discrimination to treat minorities differently."). 

Such argument are reminiscent of those advanced in Brown, supra., to justify segregated schools.  The questionable tendency to seek justification in disproportionate arrest statistics has had the unfortunate effect of perpetuating a fallacy, generating more unbalanced arrest patterns that consequently provide a basis for continued selective enforcement.  101 HARV. L. REV. at 1508-09.  This creates a “separate but equal” criminal code- one for blacks and one for whites.  Thus a Presidential Council recently concluded:

Discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions. Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin (Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57.

The problem of the self-fulfilling prophecy and profiling was recently addressed by the Attorney General of the State of New Jersey.  Attorney General Peter Verniero, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, (April 20, 1999)(Verniero Report).  After first explaining that racial profiling is a national problem, the report demonstrated the tautological nature of using proactive arrest numbers:

[S]ome law enforcement executives have argued that it is appropriate for police officers on patrol to rely upon racial characteristics provided that objective crime trend analysis validates the use of these characteristics as risk factors in predicting and responding to criminal activity…Many of the facts that are relied upon to support the relevance of race and ethnicity in crime trend analysis, however, only demonstrate the flawed logic of racial profiling, which largely reflects a priori stereotypes that minority citizens are more likely than whites to be engaged in certain forms of criminal activity.  This form of scientific analysis, in other words, is hardly objective… some of the numbers they rely upon are self-selected and thus inherently misleading.  Verniero Report at 65, 66.
The Verniero report proceeds to explain that the fact that a disproportionate percentage of drug arrests are minorities does not mean that any particular minority citizen is more likely than a non-minority citizen to be committing a drug offense. Verniero Report at 67-70.  The report than states:

To the extent that [] police and other law enforcement agencies arrest minority motorists more frequently based on stereotypes, these events, in turn, generate statistics that confirm higher crime rates among minorities, which in turn, reinforces the underpinnings of the very stereotypes that gave rise to the initial stops.  In short, police officers may be subjecting minority citizens to heightened scrutiny and more probing investigative tactics that lead to more arrests that are then used to justify those same tactics.  This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system…[U]sing profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or hunches. Verniero Report at 70-72.

Wisconsin’s Racial Disparity Commission draws a conclusion similar to the Verniero report: “[S]erious concerns were expressed that enforcement strategies that target particular neighborhoods or that target open-air drug trafficking are not productive.”  Commission on Reducing Racial Disparities in the Wisconsin Justice System, Final Report, Prologue, p. 2.  Likewise, the Wisconsin Sentencing Commission found that “[to the extent that police focus on high-crime neighborhoods, and to the extent that such neighborhoods also happen to be disproportionately minority, arrest over-estimates minority participation in criminal activity.”  Wisconsin Sentencing Commission, Race and Sentencing in Wisconsin: A Monograph Series p.13 (November 2004), http://wsc.wi.gov/docview.asp?docid=1274.

You may respond with a shrug of the shoulders while saying “So what?” about police using deception to enforce the law.  The so what about police approved deception was answered by a story told by President Obama.  During World War II, London was being bombed to smithereens, and had 200 or so detainees. Asked whether the detainees would be subjected to torture to get some answers, Churchill said, “We don’t torture,” when the entire British — all of the British people were being subjected to unimaginable risk and threat.  Churchill understood, that if you start taking short-cuts, over time, that corrodes what’s — what’s best in a people. It corrodes the character us as a people.  It may be harder, but part of what makes us, I think, still a beacon to the world is that we are willing to hold true to our ideals even when it’s hard, not just when it’s easy.
 

After you are arrested and assuming you were able to post bail to get your release, your continued release on the charge can be conditioned upon you following rules imposed by the court.
Appearing under the subchapter of Wisconsin law relating to interference with law enforcement, the offense of bail jumping is clearly defined under Wisconsin State Statute 946.49:
946.49  Bail jumping.
(1)  Whoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond is:
(a) If the offense with which the person is charged is a misdemeanor, guilty of a Class A misdemeanor.
(b) If the offense with which the person is charged is a felony, guilty of a Class H felony.
 
Importantly, a bail jumping charge can make something that is not a crime, such as missing a drug test or simply drinking alcohol (even if you are an addict or alcoholic), or a minor charge like disorderly conduct, transform into a felony carrying a penalty of up to six years in prison.
 
The cost to taxpayers for this prosecutorial sleight-of-hand is enormous.  The State Public Defender's Office  has indicated it could have saved about $770,000 in 2016 if the 8,147 felony bail jumping cases it handled were charged as misdemeanors, not as felonies.  Gov. Scott Walker did not include the idea in his 2017-19 budget proposal.
 
Now a new article has appeared displaying new prosecutorial chicanery when it comes to bail jumping charges.   In a Wisconsin Law Review article entitled, “THE USE OF WISCONSIN’S BAIL JUMPING STATUTE:  A LEGAL AND QUANTITATIVE ANALYSIS” Amy Johnson explains that:

Analysis of the data from the Wisconsin Consolidated Court Automation Programs reveals that bail jumping charges have increased significantly over time. The data also suggests that an underlying purpose for filing bail jumping charges may be to create leverage against defendants to induce them to plead to their original charge rather than to punish them for violating their bond conditions. While not conclusive as to causation, the correlation between bail jumping charge dismissals and pleas to other charges cannot be ignored. The data also reveals that the treatment of bail jumping varies greatly county to county suggesting that a defendant’s geographic location within the state can result in significantly different outcomes.
 
As State Rep. Evan Goyke (D-Milwaukee) has indicated, “If you’re really serious about reducing the prison population and reform and taking caseloads off DAs, and public defenders and the courts, you have to attack and reform various ways the system is creating its own problem.”

Brian Fallon, the executive director of Demand Justice, recently said that the discussion about precedent or stare decisis is “mindless” because “If Trump’s nominee can’t come up here and tap dance rhetorically about how they respect precedent that person would have to be an imbecile.”

That may be true.  But conservatives are intent on placing new judges on the bench who do not care about stare decisis, a concept drilled into would be lawyers at the start of law school.  Stare decisis is the method  by which cases with the same legal issues are decided the same, not decided on a result orientated basis.  State v. Jewitt, 500 A.2d 233 (1985) (“Our decisions must be principled, not result-oriented.”).  As Judge Fine said in his dissent in Lake Bluff Housing Partners v. City of South Milwaukee, 188 Wis.2d 230, 259, 525 N.W.2d 59 (Ct. App. 1994):

The law must be sufficiently predictable so that men and women can conduct their business with the assurance that the rules are not going to change in mid-stream. This requires that judges follow precedent. We must not, like the apocryphal “Eastern despot” mentioned by Sir Frederick Pollock and Frederic William Maitland in the introduction to their seminal treatise on the common law, “deal with every case according to the impression of the moment.” 1 F. POLLOCK & F.W. MAITLAND, THE HISTORY OF ENGLISH LAW xxvii (2d ed. 1899). It is the majority’s “impression” that Lake Bluff should win this case; and so it does.

Refusing to follow precedent smacks of “judicial activism.”  An activist judge (plural activist judges) (US, pejorative, chiefly in right-wing discourse) is a judge or justice who makes rulings based on personal political views or considerations rather than on the law, or who issues rulings intended to have political effects.

One of the conservative activist judges being considered by Trump for the Supreme Court is Amy Coney Barrett.  As explained by Amy Howe of SCOTUSblog, when Barrett co-wrote her first law review article, Catholic Judges in Capital Cases, she said that that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett observed that she did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.” 

Barrett is a member of a group called “People of Praise.” Group members, according to the New York Times “swear a lifelong oath of loyalty to one another, and are assigned and accountable to a personal adviser.” Moreover, the Times added, the group “teaches that husbands are the heads of their wives and should take authority for their family.” And legal experts questioned whether such oaths “could raise legitimate questions about a judicial nominee’s independence and impartiality.”

Ms. Howe further explains that “[i]n another article, Stare Decisis and Due Process, published in the University of Colorado Law Review, Barrett discussed the concept of stare decisis – a legal doctrine that generally requires courts to follow existing precedent, even if they might believe that it is wrong. Barrett wrote that courts and commentators “have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books”; in a footnote, she cited (among other things) Planned Parenthood v. Casey, the 1992 decision reaffirming Roe v. Wade. Barrett’s detractors characterized the statement as criticism of Roe v. Wade itself, while supporters such as conservative legal activist Ed Whelan countered that the statement did not reflect Barrett’s views on Roe itself, but instead was just an example of competing opinions on the reliance interests in Roe.”

In front of the Senate Judiciary Committee, Amy Coney Barrett said “I have not said that judges should not be bound by stare decisis.”  That is not true.  Barrett has said that only the Supreme Court is bound by stare decisis and “that the inferior courts have no sound basis for following the Supreme Court's practice.”  Statutory stare decisis in the court of appeals, Notre Dame Law School Legal Studies Research Paper No. 05-05.

I guess that whole Stare decisis thing is not needed if you are a conservative seeking to overrule decisions you do not like.

In Abbott v. Perez, a 5-to-4 conservative majority on the Supreme Court decided that “the district court disregarded the presumption of legislative good faith and improperly reversed the burden of proof when it required the state to show a lack of discriminatory intent in adopting new districting plans; one of the challenged state house districts is an impermissible racial gerrymander.”  Justice Samuel Alito (joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch) found that past discrimination by one set of lawmakers, is not evidence of new discrimination by a different lawmaking body. And so it’s up to the voters challenging maps that burden the rights of people of color to make the case that the new legislature intended to do just that. Alito calls this “the presumption of legislative good faith,” under which the government is given the benefit of the doubt and not required to “purge the bad intent of its predecessor.” “Past discrimination cannot, in the manner of original sin, condemn governmental action that is not itself unlawful,” Alito writes.  The justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.

This decision is a major blow for voting rights.  For “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.”  Wesberry v. Sanders  376 U.S. 1, 17–18 (1964).  As President Lyndon Johnson said in his message that accompanied his request that Congress enact a voting rights bill, “In the world, America stands for-and works for-the right of all men to govern themselves through free, uninhibited elections. An ink bottle broken against an American Embassy, a fire set in an American library, an insult committed against the American flag, anywhere in the world, does far less injury to our country and our cause than the discriminatory denial of any American citizen at home to vote on the basis of race or color.”  Philip A. Klinkner & Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 277 (1999)  To ensure that our citizens enjoy this precious right, the United States Constitution sets forth fundamental principles governing the franchise: equal suffrage based on race (15th Amend.) and poll tax prohibition (24th Amend.).
 
In a forceful closing paragraph Justice Sotomayor protested that the ruling “does great damage to” the right “to equal participation in our political processes.” “Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”

Gerrymandering is an example of politicians, whether congressional or judicial, rigging the system.  To gerrymander is to manipulate the boundaries of an election district so as to advantage one party. Gerrymandering is usually done to benefit the party in power.  Like slavery, gerrymandering is an American original sin. The word was coined as a way of criticizing Governor Gerry’s redrawing of the Massachusetts state senate election districts in 1812.  Gerrymandering is in some states to the benefit of the Democrats and in others to the Republicans.  Two principal tactics are used in gerrymandering: "cracking" (i.e. diluting the voting power of the opposing party's supporters across many districts) and "packing" (concentrating the opposing party's voting power in one district to reduce their voting power in other districts). The third tactic, shown in the top-left diagram in the diagrams to the right, is that of homogenization of all districts. Gerrymandering ends competitive elections!
Gerrymandering is effective because of the wasted vote effect. Wasted votes are votes that did not contribute to electing a candidate, either because they were in excess of the bare minimum needed for victory or because the candidate lost. By moving geographic boundaries, the incumbent party packs opposition voters into a few districts they will already win, wasting the extra votes. Other districts are more tightly constructed with the opposition party allowed a bare minority count, thereby wasting all the minority votes for the losing candidate. These districts constitute the majority of districts and are drawn to produce a result favoring the incumbent party.

In the era of mass incarceration, there has been discussion of prison gerrymandering.  Prison-based gerrymandering has occurred in places such as New York when prisoners were counted as residents of a particular district, increasing the district's population with non-voters when assigning political apportionment. This phenomenon violates the principle of one person, one vote (under the Equal Protection Clause of the Constitution, legislative voting districts must be the same in population size. The idea behind the rule is that one person’s voting power ought to be roughly equivalent to another person’s within the state.) announced in Baker v. Carr and culminating in 1964 with the case of Reynolds v. Sims because, although many prisoners come from (and return to) urban communities, they are counted as "residents" of the rural districts that contain large prisons, thereby artificially inflating the political representation in districts with prisons at the expense of voters in all other districts without prisons.  Others contend that prisoners should not be counted as residents of their original districts when they do not reside there and are not legally eligible to vote. That is why the decision by the Supreme Court in Husted v. A. Philip Randolph Institute is politics clothed in law.  In that case the Court said if you fail to cast a ballot, you can be removed from the voter rolls and denied your fundamental right to vote. This logic ignores Congress’s own statement when passing the voting rights act that people should not be removed “due to their failure to respond to a mailing.”   This allows convicted felons who cannot vote will be removed from voter rolls even after their sentence is over and they have supposedly paid back their debt to society.  To be clear, this system is aimed at the minority vote: a Reuters study found others in predominantly African American neighborhoods were purged at more than twice the rate of voters in predominantly white neighborhoods. 

How gerrymandering is ruining democracy:

1. Brings Out Partisan Extremes  The most detrimental effect gerrymandering has on our political system is that it leads inevitably to polarization. Manipulating and stretching congressional districts pushes incumbents to the extremes of the political spectrum. Republicans have become more conservative and Democrats more liberal. Why does this happen? If an incumbent’s only fear is a primary challenge, his or her focus will be to maintain ideological purity, rather than pursue legislative pragmatism.  When elected officials pay more attention to the primary, rather than the general election, they become more extreme and this naturally leads to gridlock. Consequently,  the least productive Congresses in history have come in the past decade. According to The Pew Research Center the 113th Congress (2013-2014) was almost the least productive Congress in history, second only to the 112th Congress (2011-2012).  America need reformers, not ideologues - statesmen, not panderers.
2. Votes Don’t Matter   Skewed district lines consolidates the power of the party in control and leaves voters with less accountable elected officials, with less pressure to solve the problems facing all voters.
   
3. Tears Apart Communities and gives power to too few voters: Gerrymandering is to cheat designated groups in the power of their vote. One form of gerrymandering is to split a group, say a predominantly black neighborhood, between two districts, thereby reducing their block vote into a small minority in each district.  Assume there is a disparity in geographical size of congressional districts. Also assume those large geographic districts are located in the most densely populated areas of the state. Usually such districts are urban and “packed” with Democratic voters. This is done to splinter the vote, ensuring the minor party (today the Democratic Party) a “safe seat” while making it nearly impossible for another Democrat to win in adjoining districts in which Democratic voters join with a large number of Republicans.  This is called “cracking.”  Adjoining districts become Republican strongholds which has led to an over representation of rural populations  – even though majority of voters live in urban areas!
   

For instance, State legislatures have used gerrymandering along racial lines both to decrease and increase minority representation in state governments and congressional delegations. In the state of Ohio, a conversation between Republican officials was recorded that demonstrated that redistricting was being done to aid their political candidates. Furthermore, the discussions assessed race of voters as a factor in redistricting, because African-Americans had backed Democratic candidates. Republicans apparently removed approximately 13,000 African American voters from the district of Jim Raussen, a Republican candidate for the House of Representatives, in an attempt to tip the scales in what was once a competitive district for Democratic candidates.

The problem is easy to solve by taking the drawing of district boundaries out of the hands of self-interested politicians. In about twenty states, the legislatures have delegated some authority over the drawing of district lines to redistricting commissions. Some of these, however, are set up so as to still give the majority party final control. Six states have delegated the authority over state district borders to nonpartisan or bipartisan commissions. The authority over both state and congressional district borders has been delegated to bipartisan or nonpartisan commissions in only seven (or eight) states – Arizona, California, Hawaii, Iowa, Idaho, Montana, New Jersey and Washington.  Essentially, America needs a federal law with three main components: a set of rules and principles for the drawing of district borders, nonpartisan redistricting commissions in each state, and a federal commission of oversight that would also serve as the institution of appeal.
 

There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.
Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world. Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each category behind bars, and whether any benefit really outweighs the social and fiscal costs.




The criminal justice system involves some complicated decisions and relationships, some — but not all — of which can be represented graphically. For example, it’s easy to show how jails rent space to state and federal agencies, and that 5,000 youth are actually in adult facilities. But the offense data oversimplifies how people interact with the criminal justice system. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.
And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again. It also includes offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.

People of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons.


 Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year.

Even narrow policy changes, like reforms to money bail, can meaningfully reduce our society’s use of incarceration. Meanwhile, some reforms that seem promising have minimal effect, because they simply transfer people from one slice of the correctional “pie” to another. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

Adding to the universe of people who are confined because of justice system involvement, 22,000 people are involuntarily detained or committed to state psychiatric hospitals and civil commitment centers. Many of these people are not even convicted, and some are held indefinitely. 9,000 are being evaluated pre-trial or treated for incompetency to stand trial; 6,000 have been found not guilty by reason of insanity or guilty but mentally ill; another 6,000 are people convicted of sexual crimes who are involuntarily committed after their prison sentences are complete. While these facilities aren’t typically run by departments of correction, they are in reality much like prisons.


How many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.
SOURCE: PRISON POLICY REPORTS https://www.prisonpolicy.org/reports/pie2018.html
SEE ALSO: 500 Percent Increase in African American Males Incarcerated Since 1980
https://www.eurweb.com/2015/08/500-percent-increase-in-african-american-males-incarcerated-since-1980/

If Trump is elected president, will constitutional law and American political institutions protect us from a would-be dictator? Europeans worry about the emergence of Caesarism in the United States, just as the founders did when they invented the presidency. Authoritarianism is making gains around the world; why not here? Of course, Trump may not want to be a dictator. He has repeatedly stated his desire to make “deals,” implying a willingness to cooperate with Congress. But there is no reason to believe anything he says; many of his actions and statements are those of someone with a dictatorial mentality if nothing else, and his popular support derives from his authoritarian image: he appeals to people who yearn for a strongman to protect them. So the question is worth asking. What is the answer?

Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).

But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.

This is not to say that Trump would do any of these things. Exposure of politically motivated investigations could damage him politically; and—a theme to which I will return—lower-level officials might refuse to carry out his plans. But there is a long tradition of this type of behavior, both within our country (Nixon) and without (Putin, to pick one of countless examples).

Trump has other avenues for harassing political opponents—and I confine myself to strategies that are within the realm of the possible as suggested by American political history. But first we need to distinguish two routes to power. In the first, Trump sweeps to victory with enormous popular support as well as the support of the Republican establishment, which finally decides to make peace with him. In the second, Trump barely manages to win the election, perhaps because Hillary Clinton at the last moment is indicted for violating secrecy laws. He comes to power with the support of an enthusiastic minority but opposed by both parties and the majority of the population.

For the first, the model is FDR. But FDR was repeatedly blocked by the courts, as Trump would surely be if he sought to exercise dictatorial power. With the Senate on his side, however, he could appoint Trumpian judges and justices; he could even beat the Supreme Court into submission by threatening to pack it as Roosevelt did. Still, I think none of this will come to pass. Even if Trump is elected, he will not have FDR’s majorities in Congress, or last as long as FDR, or command as much popular support. Working with congressional support, he could do some of the things he says he wants to do—end Obamacare and build a Mexican Wall (assuming that he really wants to do these things, which I doubt). But then by definition he is not acting as a dictator. The possibility that a President Trump uses a temporary political majority to strengthen executive power and demolish the remnants of the opposition, in the manner of Hugo Chavez, is a possibility but not one that is (yet) worth considering.

The more interesting case is the second. A President Trump opposed on all sides by Congress, the courts, the media, and all the rest of the establishment, but supported by an enthusiastic base, could accomplish the great things he imagines only if he exercised something like dictatorial power. At a minimum, he would need to:

— Get his people into the bureaucracy, either as recess appointments or as “advisers” who don’t need Senate approval. If he refuses to appoint moderates demanded by the Senate, his advisers may be able to persuade civil servants to implement Trumpian policies but maybe not.

— Use his personal funds to sue his political opponents, and persuade law enforcement to audit, monitor, and investigate them, as discussed above.

— Impound funds appropriated by Congress and use them for projects like expelling illegal immigrants. This is technically illegal, but presidents have for decades denied the constitutionality of the anti-impoundment statute, and Trump’s lawyers could repeat these arguments.

— Build political support by declining to enforce unpopular laws, for example, the land-use and environmental laws that are so unpopular in the west. He can cite Obama’s immigration enforcement actions as precedent if need be. He can exclude Muslims, at least temporarily, if he wants to.

— Focus on foreign affairs, where he has a freer hand. He can threaten to withdraw military and economic aid to Mexico unless it pays for the Wall. He will give the military maximum support. The military is the most trusted public institution; if he can bring it to his side, he will obtain credibility from the wavering middle.

The first point is the most important. The president acts through other people; Trump cannot accomplish anything unless he can place loyalists in positions of power. If the Senate is unified against him, recess appointments and advisers will accomplish little. If he must compromise on appointments, and independent people become attorney general, head of FBI, and the like, then Trump will not be a dictator.

On the other hand, a president’s patronage opportunities are limitless. If Christie has already fallen in line, many more can be expected to do the same. The president wields a veto and can interfere in countless ways with Congress’ legislative goals. Using his veto and appointment power, Trump may be able to make the deals he cares about—giving the Senate laws and patronage positions in return for approval of the positions that he cares about, the positions in the Justice Department, the military, and the judiciary. Moreover, even if a Trumpian movement remains a minority personality-cult, it could hold the balance of power in a enough states to produce natural allies for Trump in Congress.

The separation of powers is a flimsy constraint on Trumpian ambitions. The federal bureaucracy is probably a more significant one. It has proven itself time and again skilled at opposing presidential power through embarrassing leaks, working-to-rule, simple inaction, and, in extremis, threatening to resign. Still, this barrier may not give much reassurance.

What of political constraints? Trump will need some support in Congress, and if the public detests him, representatives will keep their distance. Public hostility will also strengthen the hand of courts and the bureaucracy. If he is to gain significant public support, he will need a grand success. Taking a page from Putin, he could combine a ruthless military victory against a weak but unpopular enemy (but what exactly?) and extraordinary luck—an economic recovery that just happens to occur when he takes office. But in America, even this is not likely to be enough.

Still, Trump has already done some clever things to immunize himself from future political damage. These tactics have received surprisingly little commentary.

First, he has refused to make promises. More precisely, while he has made a very few promises, he has contradicted himself so many times, no one really expects him to keep those very few promises, or has any idea what he might do as president. Normally, this vagueness would be fatal. For whatever reason, it has worked for Trump. The upshot is that as president, unlike other presidents, he will not be constrained, not even minimally, by promises he made on the campaign trail, and so he can do whatever is most expedient.

Second, he has refused to work through the Republican establishment. Working through the Republican establishment means making commitments to party leaders and supporters, which would constrain his behavior as president. But because he has not made such commitments, he faces no such constraints as president—again, unlike any other president in modern times.

Third, he has disregarded what might be called “political manners.” He has casually insulted Latinos, Mexicans, women, disabled people, and veterans. He has mocked and belittled his political opponents. One might say, as his defenders do say, that Trump doesn’t really mean what he says. But that misses the point. By unsettling the implicit rules of the game which govern our politics, he has further eliminated constraints on his presidency. Will he eliminate affirmative action in federal hiring? Or will he strengthen it? No one knows. Having thrown into doubt the unwritten rules that have constrained other presidents, he has more scope to act as he sees fit.

Many of the informal but powerful ways that politics constrains presidents with authoritarian tendencies will not constrain Trump. Whether that means he will be Caesar if elected remains to be seen. I think the likelihood is extremely remote. It is much more likely that his authoritarian tendencies will clash with a legalistic political culture and an individualistic political culture, yielding disruption and gridlock. But that is reason enough to be alarmed.

REPRINTED FROM : http://ericposner.com/category/constitutional-law/

Currently, the US attorney general can remove the special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.” Because Attorney General Jeff Sessions has recused himself from the investigation, in Mueller’s case, the power falls in the hands of Deputy Attorney General Rod Rosenstein. There is no way for a special counsel to challenge that decision, even if there’s a case for wrongful termination.

In the 1988 Supreme Court case Morrison v. Olson, 487 U.S. 654 (1988) it was held that the Independent Counsel Act was constitutional.  The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another. Instead, even though the President could not directly fire an Independent Counsel, the person holding that office was still an officer of the Executive branch and not under the control of either the U.S. Congress or the courts.  It was a 7-1 decision that upheld the Independent Counsel Act — a statute passed in the wake of Nixon’s firing of the Watergate special prosecutor that created an investigator role completely independent from the executive branch. Justice Antonin Scalia was the single dissent on the case, arguing that the independent counsel was a clear disruption of the separation of powers.

Despite the Court’s decision upholding the role of an independent counsel, Congress allowed the act to expire in 1999. In its place, there’s the special counsel, the role Mueller holds, which is largely the same on the merits but is not separate from the administration — the cause for a lot of debate among legal scholars.

Shortly before that, In Re Sealed Case, 665 F. Supp. 56 (D.D.C. 1987) ruled for the first time that the independent-counsel law underpinning an unprecedented number of investigations of Reagan administration figures in the Iran-Contra affair was constitutional.  U.S. District Court Judge Aubrey E. Robinson Jr. said the legislation was an appropriate and measured response by Congress "to the recurrent question of how to enforce the laws of the United States when they are violated by high government officials . . . .”For the United States," Robinson added, "the act represents a landmark effort to instill public confidence in the fair and ethical behavior of public officials."

It was also argued that the independent counsels are "superior officers" who, under the Constitution, must be appointed by the president and confirmed by the Senate.  Judge Robinson rejected the argument. The Constitution, he wrote, "expressly grants to Congress the authority to 'vest the appointment of such inferior officers as they think proper, in the president alone, in the courts of law, or in the heads of departments.' "
The Congress's limits on the Attorney General's authority to remove an independent counsel was also valid for another reason. In United States v. Perkins, 116 U.S. 483, 485, 6 S. Ct. 449, 450 (1886), the Court upheld the power of Congress to place limitations on the Secretary of the Navy's authority to dismiss naval cadets who were inferior officers appointed by the Secretary.

The Court wrote:
We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to officers so appointed.
 
Id. at 485, 6 S. Ct. at 450.  Here, because Congress validly vested the appointment of independent counsels in the court of law under Article II, it also validly limited the circumstances under which independent counsels may be removed.

Finally, Judge Robinson explained that “Supreme Court precedent as well as "common sense and the inherent necessities of the governmental coordination" suggest strongly that the authority of independent counsels does not violate the separation of powers principle. In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court recognized and accepted that "the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure." Id. at 694, 94 S. Ct. at 3100. The Court knew that this authority included "plenary authority to control the course of investigation and litigation related to" the Watergate matter. Id. at 694, n. 8, 94 S. Ct. at 3100, n. 8 (citing 38 Fed.Reg. 30739, as amended by 38 Fed. Reg. 32805).

Although the Watergate Special Prosecutor was appointed by a regulation promulgated by the Attorney General, the Court's acceptance of the constitutionality of an independent prosecutor is equally applicable here. In both cases, inferior officers were freed from daily supervision by the  Executive so that they could best perform their duties and thereby satisfy congressional intent. See also, Kendall v. United States, 37 U.S. (12 Pet.) 524, 9 L. Ed. 1181 (1837); Humphrey's Executor, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935); Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958). Here, as in the above-cited cases, the Independent Counsel's power comports with the Constitution.”

As explained in the New York Times, last month Harvey Weinstein—serial sexual predator finally charged for rape--posted $1 million bail, and was on his way home within 10 minutes. Weinstein is a notorious danger to the public and he hasn't spent a moment in jail because he's rich.

Some of the people who cannot make cash bail, like an 18 year old black male by the name of Kalief Browder, never leave jail.  Kalief Browder was held at Riker's Island for three years, much of it in solitary confinement, because his family could not afford to pay his bail after he was accused of stealing a backpack. The state of New York worked for three years to build a case against him and failed.  Kalief Browder, committed suicide after spending three years at Riker's Island without being convicted of a crime.

In our current bail system, people who aren't lucky enough to be rich can be locked away for years while they await trial, not because they are inherently dangerous or likely to flee, but because they are too poor to afford bail.

In fact, seventy percent of people in jail haven’t been convicted of a crime. They just can’t afford bail.  The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.  As explained by “Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute:  “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day.”  In a criminal justice system that regularly targets and overpolices poor black and brown people, cash bail is inherently racist and must be ended now.

To understand the unfairness of the cash bail system, read America Is Waking Up to the Injustice of Cash Bail by Bryce Covert.