Justice Watch: Moving Back to Mandatory Minimums, Ferguson Effect, Murder Charges For Atlanta Police Office

California Moves Back to Mandatory Minimums in Response to Brock Turner

This week the California State Legislature stunningly passed AB 2888 by a 66-0 vote.  The legislation sponsored by, among others, local Assemblymember Bill Dodd attempts to close what is seen as a loophole allowing a probation sentence for Brock Turner in the Stanford rape case.

As Bill Dodd claims in his press release, “Sexually assaulting an unconscious or intoxicated victim is a terrible crime and our laws need to reflect that. Letting felons convicted of such crimes get off with probation discourages other survivors from coming forward and sends the message that raping incapacitated victims is no big deal.”

Assemblymember Dodd adds, “This bill is about more than sentencing, it’s about supporting victims and changing the culture on our college campuses to help prevent future crimes. I urge Governor Brown to join the legislature in standing with victims and building a culture that suppresses these reprehensible crimes.”

As Katie McDonough argues this week in Fusion, on the surface the law treats rape by force differently from rape committed against an unconscious person, where the former has a mandatory three-year minimum sentence and the latter does not.

But Ms. McDonough notes that “there are a few major problems with this approach.”  She cites studies that show “that mandatory minimums have ‘no apparent deterrent effect’ and ‘are ineffective as a crime control measure.’ And decades of mandatory minimums for drug crimes show that they hit black and Latino men much more harshly than their white peers, even though they use drugs at similar rates.”

In short, “mandatory minimums probably won’t stop the next Brock Turner—and there will be a next one—from committing sexual assault.”

Mashable this morning points out the difference between Brock Turner’s sentence and that of Brian Banks, wrongly convicted of rape.  Both were star athletes.  Mr. Banks was African American.

Katie McDonough, quoting from a 2013 report by The Sentencing Project, argues against the notion that mandatory minimums eliminate discretion – they simply shift it from judges to prosecutors who decide which charges to bring, and this shift actually benefits white defendants like Brock Turner.

The research from the Sentencing Project shows “prosecutors request substantial assistance departures at higher rates for ‘salvageable’ and ‘sympathetic’ defendants—those who are white, female, and have children. A 2001 analysis of more than 77,000 cases in the federal system from 1991 to 1994 revealed that black and Hispanic male defendants were significantly less likely to receive substantial assistance departures than white male defendants.”

In short, Ms. McDonough argues, “mandatory minimums don’t solve racial disparities in sentencing. They entrench the old disparities and create new ones.”

Is There Really a ‘Ferguson Effect’?

As an article in Governing ponders, “Some say police officers are increasingly reluctant to intervene in dangerous situations, fueling a crime wave in cities throughout the nation.”  The theory emerged out of Ferguson following the highly-publicized 2014 incident in the St. Louis suburb.

Governing reports that the “latest research on the issue, conducted by University of Missouri–St. Louis professor Richard Rosenfeld for the Justice Department, found a spike in homicides between 2014 and 2015. The number of murders in 56 large cities rose an average of nearly 17 percent in that one year — the steepest annual increase since at least the 1980s — and 12 cities recorded spikes exceeding 50 percent.”

Most striking, they report, was that the cities with the ten largest increases also had the largest African American populations.

But there are caveats to this theory.  Governing writes, “It’s not yet known just how widespread the increase in crime is; the one-year jump in the murder rate follows decades of decline; and recent national trends for other types of crime aren’t yet available. Overall crime rates in a different sample of 30 large cities reviewed by the Brennan Center for Justice were essentially unchanged last year.”

Moreover, “there is insufficient evidence to support the idea that ‘de-policing’ has led to a nationwide crime wave. In New York, for example, no relationship has been found between crime rates and a reduction in aggressive stop-and-frisk police tactics.”

There is “a second version of the Ferguson theory that is gaining traction. It contends that heightened racial tensions and a distrust in police are contributing to higher crime rates. L.A. Police Chief Charlie Beck cited the lack of public trust in police as the ‘real Ferguson effect’ in an op-ed in the Los Angeles Times earlier this year. Weaker links between law enforcement and the community make police less effective, he wrote.”

The “two versions of the Ferguson theory are not mutually exclusive,” but Professor Rosenfeld “thinks concerns around police legitimacy are more plausible.”

“If there is some kind of a Ferguson effect at work,” he says, “it has got to extend beyond de-policing.”

Governing writes, “Testing this emerging hypothesis, however, is difficult. Research by Yale University professor Tom Tyler suggests that procedural fairness influences the perception of police legitimacy, which in turn acts as a strong determinant of public compliance with laws and a willingness to cooperate with investigations. A July Gallup poll found 67 percent of blacks felt they were treated less fairly than whites by police, a rate that’s remained fairly constant over time. Similarly, a recent Pew Research Center poll reported 18 percent of blacks said they’d been stopped unfairly in the previous 12 months, compared to just 3 percent for whites surveyed. While law enforcement agencies have worked to strengthen local ties via community policing efforts, Aziz [Malik Aziz, heading the National Black Police Association] says, they’ve often failed to engage groups of African-Americans with negative perceptions of police.”

Atlanta Grand Jury Issues Murder Indictment in Fatal Police Shooting of Unarmed Man

Sound familiar?  This time it was late June in Atlanta where a young Atlanta police officer “responded to a call of a suspicious person at an apartment complex in the city. When he arrived, he said he saw a 2011 Silver Ford Fusion driving away. Burns shot his gun at the vehicle, striking the man inside — 22-year-old Deravis Caine Rogers — in the head. Rogers died. He was unarmed,” the Washington Post reported.

The officer, James Burns, initially “claimed the man drove at him and that he feared for his life.”  However, “the Associated Press reported that an internal investigation determined the officer used unnecessary and excessive force — an uncommon action in the state of Georgia, where nearly all officer-involved shootings are deemed justified. Burns was fired in early July by Atlanta’s police chief, according to the AP.”

This week, a grand jury took it another step and charged Mr. Burns with felony murder.

The Post continues, “It’s a rare move, according to an Atlanta Journal-Constitution investigation, which showed that from 2010 to 2015, not one fatal police shooting had gone to trial. Of the 171 fatal shootings tracked during that time period, the AJC investigation shows only one officer was indicted by a grand jury for manslaughter, a charge the judge threw out 24 hours later.”

—David M. Greenwald reporting