Monthly Archive: December 2021

Bad Policies & Progressive DAs Driving Increased Crime

After roughly two years of record-setting homicide rates in many large U.S. cities, progressive politicians and prosecutors are still denying that this is a crises.  As Hans Bader notes in Liberty Unyielding, days after progressive Philadelphia District Attorney Larry Krasner told reporters there was not crisis in his city “Democratic Congressman May Gay Scanlon was carjacked in broad daylight in Philadelphia’s FDR Park….Philadelphia’s murder record was broken in the same week that Indianapolis, Columbus, and Louisville exceeded their records for murders.”

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John Roberts, a Popular Leader

Chief Justice John Roberts is the most popular of 11 national leaders the Gallup poll asked about, with a 60% approval rating.  (By contrast, at the bottom of the heap were five politicians, each with a rating below 45%.  In order:  VP Kamala Harris, Chuck Schumer, Joe Biden, Nancy Pelosi and Mitch McConnell).

Why is that germane to a criminal law blog?  Because Roberts, despite occasional loud complaints by conservatives and praise by liberals, has been a pretty reliable vote in favor of law enforcement and the death penalty in particular.

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Police use of force standards: Policymaking targets

Despite police use of force being a low-occurring event, well-publicized incidents can evoke widespread concern among community members and policymakers alike. Despite this, the police are still a primary agent of coercive force, and typically when police are called there is a strong possibility that coercive force may be necessary. From a legal perspective, the most important consideration in police use of force is the U.S. Supreme Court case Graham v. Connor, which provided a professional and legal understanding of reasonableness viewed as an objective evaluation of the totality of prevailing circumstances at that time. The formulation of the reasonableness standard has been controversial on several fronts, though, mostly because there is ambiguity of what a “reasonable officer” is and what is deemed reasonable likely differs between police officers and the general community.

In addition to Graham v. Connor, a primary mechanism employed to deter excessive police force is through department policy.  Law enforcement agencies (LEAs) desiring national accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA) must have well-developed policies that clearly govern use of deadly force, less-lethal force, the rendering of medical aid subsequent to force, the training and proficiency with authorized weapons, and the reporting and review of of uses of force. Police departments typically have established use-of-force continua to guide officer decisions regarding what type of force should be used for a given level of subject resistance. Continua include varying levels of resistance and force arranged along an ordinal scale in terms of the severity of harm it presents to the other person. Typically, continua specify the highest level of force allowed for a given level of subject resistance. Despite the widespread use of these continua by LEAs though, little research has been conducted to evaluate the accuracy of force continua with underlying ordinal rankings.

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Finally, Some Common Sense From Liberals About the Homeless

An article in the Washington Examiner:  Homeless and clueless in Oakland and elsewhere in America  criticizing the approach to the problem by liberal politicians in Democrat-controlled cities and states would be unsurprising if the author were Heather MacDonald or Larry Elder.  It is surprising when ultra-liberal former Oakland Mayor Elihu Harris pairs up with Mary L.G. Theroux of the conservative Independent Institute to write “The bright side of the bay, as Oakland is known, has followed the same failed game plan as most other cities.  And that’s why the homeless crisis persists.  Unfortunately the Biden administration plans to continue subsidizing the losing strategy.”   For most of his long political life Harris has been advancing the liberal, bureaucratic, big government policies that have helped create today’s homeless crisis.  He is now confronting the endlessly repeated claims of Democrats in California and nationally that the root cause of homelessness is a shortage of affordable housing.  “The change began in 2013 when the Obama administration shifted the focus of federal homelessness funding from programs that provide services to the homeless to their speedy placement into housing.  The approach had the opposite effect from what was intended.”

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Sunshine for the Shadow Docket

The U.S. Supreme Court has been criticized for its “shadow docket” — summary orders that grant or vacate stays or preliminary injunctions without oral argument and often without an opinion of the Court. Although these orders are preliminary matters, they often control events for an extended time. Sometimes they determine the outcome as a practical matter, such as denying a stay of execution in a capital case.

In a change from the usual practice, the Court will hold oral argument on Friday, January 7, in two sets of applications requesting stays in matters involving Covid mandates. Continue reading . . .

Use-of-force data collection may cease due to lack of LE participation

Over the last  few years, strain between police and the community has intensified greatly as incidents have come to light showing hostility between the police and the communities. However, when it comes to really understanding how often these types of events occur, there is no official number of the number of people killed by police annually.  Still, unreliable government numbers fail to portray the true scope of officer-involved shootings and fatalities. The National Use-of-Force Data Collection is the first national-level dataset to offer big-picture insights on police use of force, but participation has been quite low. In fact, law enforcement participation in the national data collection has been so low that it could cause the database to shut down.

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Gascón: No Punishment For Juvenile Criminals

Doubling down on policies guaranteed to increase crime, Los Angeles District Attorney George Gascón announced yesterday that he is expanding a program which protects juvenile offenders from prosecution.  Scott Schwebke of the LA Daily News reports that the the expanded REDY program will allow juveniles facing charges for robbery, burglary, arson, sexual battery and assault to be diverted to a “restorative justice” program and avoid prosecution.  The Executive Director of Centinela Youth Services, which will manage the program, told reporters that studies have shown that juveniles participating in her program are 50-70% less likely to be rearrested.  She presented no link to any study so we’ll just have to take her word for it.

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How environmental stress increases violent crime: Study

Understanding the social contexts of violent crime remains controversial among researchers and policymakers alike. A recent article published in Crime and Delinquency (2021) discusses common social contexts in four cities (Houston, TX, Baltimore, MD, Jackson, MS, Wilmington, DE). The researchers applied two approaches: the first compared each city’s health outcomes with national county-level data, and the second examined correlates for crime within the four cities.

Results found several social factors that correlated with crime, including single-parent homes, insufficient food resources, poor sleep quality, residential segregation, and more. Interestingly though, all four cities had lower suicide rates than the national average. At the community-level, researchers found that factors such as unemployment, median household income, and population density all correlated with crime as well. While communities with higher violent crime rates did tend to have higher proportions of Black residents, race per se did not appear correlated with violent crime. Rather, class-related issues seemed to override any individual impact of race on crime.

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Notice, Comment, and Exhaustion

In recent years, CJLF has been involved in a number of civil cases, some of which involve administrative law.* In administrative law, there is generally a requirement to exhaust administrative remedies before turning to the courts. There are also requirements in various laws for hearings and public comment before adopting certain measures.

Is a party who does not comment on a proposal forever banned from filing a lawsuit challenging its legality? We have been hit with that argument a couple of times. For one particular kind of hearing/comment law, the California Supreme Court has said no. The case of Hill RHF Housing Partners, L.P. v. City of Los Angeles, S263734 involves business improvement districts. “The opportunity to comment on a proposed BID does not involve the sort of ‘clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties’ [citation]  that has allowed us to infer an exhaustion requirement in other contexts.” I think that is correct. Continue reading . . .

Desistance from crime: Implications for research, policy, and practice

As research on crime over the life course evolves, a concept being used more and more is the idea of “desistance” from crime. Desistance refers to the cessation of criminal behavior and eventual ending of a criminal career. Typically, the process of desistance coincides with aging, maturity, and other factors that influence normative development. However, it doesn’t mean the same thing to everyone, largely because it has been defined in different ways over time.

From 1970-1999, desistance used to be considered simply the opposite of recidivism. It was defined as binary event, i.e. the complete termination of criminal behavior. Newer definitions (from 2000-present) define desistance as a process that evolves in different stages throughout the life course rather than a discrete event. Instead of focusing on risk factors as a way to predict recidivism, desistance focuses more on factors that motivate someone to leave that path. A November 2021 publication by the National Institute of Justice (NIJ) details some of the research on desistance and outlines implications and recommendations for policy and practice.

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