Checking in on the bipartisan movement for criminal justice reform. This is your periodic reminder that Criminal Justice Reform is going to be the big bipartisan issue that brings our divided nation together. Having announced his intention to reignite the failed "war" on drugs, and having declared that mandatory minimums are again the pyjamas de chat, Attorney General Jefferson Beauregard Sessions III scoured the back shelves of the DOJ for another failed idea into which he could pump new life. Come on down, civil forfeiture! From Vox: Speaking to the National District Attorneys Association conference in Minneapolis on
Monday, Sessions said he's issuing a new directive that will, among other things, aim to increase civil asset forfeiture. "[W]e hope to issue this week a new directive on asset forfeiture — especially for drug traffickers," Sessions said. "With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners." But Sessions wants more. The announcement comes in sharp contrast to the moves of several states — led by Republicans and Democrats — and President Barack Obama's administration, which attempted to limit the use of civil forfeiture following reports of its frequent abuse by police departments. Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments. And while people can get their property back through court challenges, these cases can often be very expensive and take months or years.
Monday, Sessions said he's issuing a new directive that will, among other things, aim to increase civil asset forfeiture. "[W]e hope to issue this week a new directive on asset forfeiture — especially for drug traffickers," Sessions said. "With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners." But Sessions wants more. The announcement comes in sharp contrast to the moves of several states — led by Republicans and Democrats — and President Barack Obama's administration, which attempted to limit the use of civil forfeiture following reports of its frequent abuse by police departments. Critics have long argued that civil forfeiture allows law enforcement to essentially police for profit, since many of the proceeds from seizures can go back to police departments. And while people can get their property back through court challenges, these cases can often be very expensive and take months or years.
Civil forfeiture is a goddamn license to steal, and it will be as long as we depend on human beings to be our police officers. The country was coming to realize this, just as it was coming to realize that the drug "war" has been a horrible waste of time and money and lives, and just as it was coming to realize that mandatory minimum sentences were an open invitation to the racist perversion of the justice system. Sessions is quite deliberately walking all of these things back, and crushing the rosy dream of a bipartisan consensus to make our laws generally more logical and more humane.
Meanwhile, the problems that the fanciful new bipartisan consensus was supposed to solve continue to multiply. Here's a new report from the good people at The Marshall Project about how prison rape is a problem that the federal courts seem unable—or unwilling—to solve. A female prisoner named Ezmeralda Rivera was repeatedly assaulted by a guard in a Texas lockup. It was later revealed that the guard had something of a history as a sex offender. Ultimately, the officer was convicted in a state criminal court. Rivera filed a federal civil-rights suit against him and against the jail. And right about here is where the law becomes an ass.
In short, Rivera's lawyers told a federal trial judge in March 2015 when they filed suit for money damages, Hale County jail officials knew they had a problem and did virtually nothing to alleviate the risk to inmates like Rivera. The defendants promptly moved to dismiss the case, arguing that the doctrine of "qualified immunity" shielded them from any civil liability. They had done enough, they told the judge, to warrant legal protection. The judge agreed and, on July 6th, so did a unanimous panel of the 5th U.S. Circuit Court of Appeals… when a public official asserts the defense of "qualified immunity," the law puts the burden of proof on the plaintiff. Judges often set up evidentiary standards that are nearly insurmountable for plaintiffs to meet, as the Rivera case helps demonstrate. She sued the guard who sexually assaulted her, his supervisors and the county. The decision rendered by the 5th Circuit focused solely on those supervisors.
The principle of "qualified immunity" makes a certain amount of sense. Given the political climate of the times, I don't want anybody to be able to sue a government into non-existence, because there are far too many American plutocrats who'd like to try. But, as the report indicates, the higher courts have made matters worse by suggesting that lower courts treat qualified immunity retroactively—that is, to rule on it based solely on what officials did (or didn't) do. This locks the judicial system into a state of stasis in which it becomes difficult to examine the doctrine pro-actively to see how its implementation could be improved. This is precisely the kind of issue that an actual bipartisan commitment to improving criminal justice would handle. But we have an Alabama hardbar running the Justice Department now, and nobody really cares about inmates anyway, him least of all.