Watch my appearance on Law & Crime Daily on the Law and Crime Network.
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Since the nationwide homicide rate jumped 25 percent in 2020, taking it back to where it was in the late 1990s, many cities this year are on track to be even worse than last year, prompting questions into the idea of focused deterrence and how it resulted in years of lowered crime rates in Philadelphia, reports ProPublica. Modeled on criminologist David Kennedy’s work in Boston, Cincinnati and other cities, focused deterrence involves authorities focusing outreach on the small groups of young men deemed most troublesome or at risk, reported The Crime Report. The idea, and others associated with it, was embraced by then-Mayor Michael Nutter and Commissioner Charles Ramsey.
As police became more restrained in their stops, the city’s homicide tally fell to levels not seen in decades. Caterina Roman, a professor of criminal justice at Temple University in Philadelphia, remains convinced that the gains in Philadelphia were partly the result of the evidence-based approaches being taken. For Roman, it all comes down to leaders and their policies. “These strategies were just phased out with new leadership there,” she said.
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State lawmakers across the country made sweeping changes to policing this year on a wide array of issues, following last summer’s worldwide protests after the murder of George Floyd. Racial justice activists say far more change is needed, but 2021 has proven to be a groundbreaking year for police accountability, reported Stateline.
Many states passed laws to limit police use of force and mandate more detailed data collection of police activity, making those issues the most common areas of action this year, said Brandon Garrett, director of the Duke Law Wilson Center for Science and Justice. The center, which has been tracking state proposals, found that other laws covered topics such as training, body cameras, disciplinary records, decertification procedures, investigations, qualified immunity and biometric data.
“I’ve never seen a surge of legislative activity like this,” Garrett said. “What made this past year exciting was not just the number of bills, but legislators touching on subjects that have never been touched before.”
Duke Law’s project found that seven states and the District of Columbia took a “comprehensive” approach to the issue, passing wide-ranging packages. All—Colorado, Connecticut, Illinois, New York, Maryland, Massachusetts and Washington state—have Democratic-led legislatures.
Many other states have acted as well. Since May of 2020, when Floyd’s death became a national cause, more than 3,000 law enforcement-related bills have been introduced by state lawmakers, according to the National Conference of State Legislatures. Nineteen states have limited or eliminated neck restraints. Fifteen states addressed statewide standards for the use of force, and 15 created a duty to intervene for officers who witness a fellow officer using excessive force.
Eleven states empowered state officials to investigate misconduct after incidents, and five gave their attorneys general the authority to investigate patterns and practices at police agencies. Five states have provided guidance for state agencies on decertifying officers, along with five that now require publication of disciplinary records after an officer’s decertification.
At least six states have mandated statewide adoption of body cameras. And four states have passed legislation limiting government immunity as a defense for civil rights claims, known as “qualified immunity.”
Statehouses also saw a surge in police-related bills after the protests in Ferguson, Missouri, in 2014, “but not like this,” said Amber Widgery, program principal with NCSL’s Criminal Justice Program.
“There’s been a tremendous uptick in volume overall, but the bigger story is the number of bills that have gotten traction,” Widgery said. “Police accountability has been a big priority in a lot of different states.”
The most sweeping changes came in states with Democratic majorities, but even some red states such as Florida, Indiana and Utah enacted bipartisan measures. In some places, though, GOP majorities stifled attempts at broader accountability laws. Some even passed laws to further empower police, banning local governments from cutting their budgets and cracking down on protesters.
In some states, police groups worked with lawmakers on measures they said would improve their profession, such as legislation to weed out bad cops. In others, law enforcement leaders say they’ve been playing defense, and legislators are no longer interested in what they have to say.
“There’s room to make some changes without destroying the criminal justice system, but nobody's asking us,” said Peter Kehoe, executive director of the New York State Sheriffs’ Association. “We have many progressive legislators who just don’t like police.”
‘The Tide Is Shifting’
Even before the surge of bills this year, Virginia lawmakers last fall held a special session focused on police policy changes. State Sen. Mamie Locke, a Democrat, sponsored the package to restrict no-knock warrants and chokeholds, and to create a process for decertifying officers for misconduct.
Locke said Democrats’ newfound majorities in the Virginia statehouse helped enable the changes, noting that some lawmakers and activists had called for similar measures for years.
“It was time,” she said. “The tide is shifting in terms of the need for reform.”
In Florida, a bipartisan coalition of lawmakers passed a law that forces officers to disclose if they left their previous agency while under investigation. The measure also requires departments to retain employment records for five years after an officer leaves, and it updates police training and tactics with provisions on chokeholds, use of force, de-escalation and a duty to intervene.
“It was important to strike while the iron was hot,” said state Rep. Fentrice Driskell, a Democrat who sponsored the bill. “The entire world was paying attention to this, and that was a very important factor in us being able to get this done.”
Oregon lawmakers passed 22 bills aimed at changing policing. The measures will strengthen misconduct reporting mandates, limit the release of booking photos, prevent officers from obscuring identification numbers and limit the ability of police to charge someone for interfering with an officer. Much of the legislation came from the House Judiciary Committee’s Equitable Policing Subcommittee, led by Democratic state Rep. Janelle Bynum.
Bynum said the Oregon legislature’s fast-growing Black, Indigenous and People of Color (BIPOC) Caucus brought perspective and momentum to the issue.
“We’d never had numbers like that before,” she said. “We also got record injections of cash from the federal government, which also made funding some of these priorities possible. If we were scaling back and having to cut our budget, that puts people in a completely different mindset.”
In other states, though, Republicans stymied proposed policing changes. A package in Texas known as the George Floyd Act never received a full vote in the House or Senate, much to the dismay of Democrats and activists.
“This was a terrible session for police reform,” Lauren Johnson, a policy strategist with the American Civil Liberties Union of Texas, told the Houston Press.
And some Minnesota activists have decried a compromise measure passed by lawmakers there, calling it a “slap in the face,” the Minneapolis Star-Tribune reported.
The Police Role
In some states, law enforcement leaders worked alongside legislators. Indiana state Rep. Greg Steuerwald, a Republican, credited police groups for the success of his measure, which the legislature unanimously approved earlier this year. The new law limits chokeholds, mandates de-escalation training and penalizes officers who turn off their body cameras.
Most importantly, Steuerwald said, the law makes it easier to decertify officers for misconduct and requires that agencies review the employment files of officers who apply at their departments.
“I heard many stories from law enforcement that they brought disciplinary action against an officer, then found out that he had applied elsewhere,” Steuerwald said. “Law enforcement thought the General Assembly should address that to enhance their ability to provide proper public safety.”
Elsewhere, though, police say the desire to make big changes cut them out of the conversation.
“It almost seems like folks see something on TV in another state and they feel there needs to be a law,” said Brian Marvel, president of the Peace Officers Research Association of California. “There's been so much legislation, we have no idea what the ultimate ramifications are going to be.”
Marvel said his group supports efforts to create a decertification process for rogue officers, but that the bill California lawmakers are currently considering would create an advisory board with an anti-police bias. The association also opposed a bill to eliminate neck restraints, which Marvel called “a very effective tool.”
In New York, police leaders are warily watching several proposals that came forward this session but did not pass.
“They don’t really seek our opinion on anything,” said Kehoe, the sheriffs’ leader. “We don't have much of an affirmative agenda right now, because there's nobody listening to us. We're trying to stem the tide.”
Kehoe said proposals to expunge criminal records and ease punishments for parole violations would lead to an increase in crime and make police officers feel devalued. The group also opposes a qualified immunity bill.
The Work Ahead
Lawmakers, activists and researchers say that many police-related policies will likely be revisited in future sessions. For now, many states are attracted to employment-related measures, said Widgery, the state legislative expert.
“One of the biggest areas where states have direct influence is certification, decertification and training of officers,” she said. “There hadn't been a lot of change in that area of the law for a while, and we're seeing a lot of new requirements and state-level oversight.”
Locke, of Virginia, said lawmakers still need to address reforms on sentencing minimums and expungement for past offenders. In Oregon, Bynum wants to expand training and accountability provisions and improve transparency for misconduct and use of force records. Remmu, the Washington activist, wants to see community oversight commissions and changes to qualified immunity.
“We have a foothold now,” she said. “It was important for the people to see the return on their blood and sweat equity, because that hasn’t been happening. It would be a shame if it’s a one-and-done, but I don’t see that as the reality.”
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Homicides and shootings are up and the number of cops is down in cities from Atlanta to Seattle. Crime, as a result, is dominating the discourse in mayoral races — driving candidates to talk about beefing up police patrols and bolstering depleted departments’ ranks, reported Politico.
“When I talk to people, they’re scared,” said Atlanta City Council President Felicia Moore, who’s running against Reed for mayor. “We have seen and experienced on a daily basis crime that we just haven’t seen before. People know that something has to happen — and they know the first responders to a crime situation are police officers.”
It’s a far cry from the calls to “defund the police” that took center stage in these cities just last summer. But the sobering reality of rising gun violence and flagrant theft is changing the conversation, pushing candidates to get tougher on crime in Democratic-leaning cities.
Eric Adams seemingly mastered this new, delicate balance in New York City, where the long-ascendant progressive call to cut police funding and end the “carceral state” landed with a dull thud this spring amid a surge of shootings and hate crimes.
Poll after poll showed crime as the top concern on the minds of Democratic voters, and that was the message Adams — who retired as a captain in the NYPD before entering politics — hammered home almost exclusively from the start of his campaign. Adams balanced that by promising reforms to abusive policing, surging late in the game to clinch the Democratic nomination over another pro-police candidate and progressive rivals who favored shifting funds away from the cops.
Yet Adams’ victory is less a model to be replicated than an example of a shift that’s been taking place on the ground for months as candidates already being pushed to tackle police reform are simultaneously being forced to confront crime head-on.
There’s been a wholesale shift on policing in Seattle, where just last summer cries to defund the police were so forceful that the majority of the City Council supported a plan to slash the police department’s budget by 50 percent. One year later, with homicides and gun violence on the rise and a “staffing crisis” spurred by a record number of officer departures, almost none of the major candidates running to replace outgoing Mayor Jenny Durkan is outright backing defunding.
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Pope Francis said recently during the Pre-Summit of the UN Food Systems Summit that the existence of hunger in a world that produces enough food for everyone is “a crime that violates basic human rights,” reported Jurist.
Earlier in July, UN Secretary-General António Guterres said that the COVID-19 pandemic “pushed” an additional 124 million people into extreme poverty, so that about one in three people around the world did not have access to adequate food in 2020. As many as 811 million people faced hunger in 2020. According to Guterres, global poverty is expected to be at about seven percent by 2030.
The Pre-Summit of the UN Food Systems Summit, which is taking place this year from July 26 through 28, focuses on evidence-based and scientific approaches to food systems transformation. Pope Francis addressed the meeting Monday, stating that the pre-summit participants had the responsibility of “realizing the dream” of a world where those in greatest need of basic necessities such as food, water, and medicine were able to get them first.
Pope Francis said:
We develop new technologies with which we can increase the planet’s capacity to bear fruit, and yet we continue to exploit nature to the point of sterilizing it, thus expanding not only external deserts but also internal spiritual deserts. We produce enough food for everyone, but many are left without their daily bread. This “constitutes a true scandal,” a crime that violates basic human rights. Therefore, it is everyone’s duty to root out this injustice through concrete actions and good practices, and through bold local and international policies.
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Jamelle Bouie writes in The Washington Post:
It is old hat to note that Americans have deified their “founding fathers” as saints — secular or otherwise. What is a little less obvious is how that deification has frozen them in time.
We hail the Thomas Jefferson of 1776, not the one of 1806; the James Madison of 1787 rather than the one of 1827. We remember George Washington the triumphant military leader of 1783 more than George Washington the reluctant president of 1793.
The extent to which the founders are frozen in time is most apparent in how they’re used for present-day political purposes. Truth of the matter aside, when speakers say, “This is what the founders intended,” they tend to mean, “This is what the founders intended at the Philadelphia Convention.”
The problem is that the men we call the founders did not stop thinking or writing or acting in politics with ratification of the Constitution. Nor did they stop after serving in office. Even when retired from public life, they continued to comment on current affairs, to express their highest hopes and aspirations as well as their deepest fears and apprehensions.
Those fears and apprehensions are the subject of a recent book by Dennis C. Rasmussen, a political scientist at Syracuse University. In “Fears of a Setting Sun: The Disillusionment of America’s Founders,” Rasmussen walks readers through the later-in-life correspondence of Jefferson, Washington, Alexander Hamilton and John Adams, each of whom feared for the fate of the American republic following their service in the government they created. And for good reason.
“There were few precedents or fixed poles to guide the nation’s lawmakers,” Rasmussen writes, “and the very fate of republican liberty seemed to them to hinge on their every decision.” A “sense of crisis pervaded the era” and the founders’ correspondence was “littered with predictions of imminent collapse.”
Washington, Rasmussen notes, was consumed with fear of “faction” — political parties and their consequences for the future of the republic. “Until within the last year or two,” he told Jefferson in a July 1796 letter, “I had no conception that Parties Would, or even could go, the length I have been Witness to.”
Over the previous year, Washington had been embroiled in a swirling political storm over the Jay Treaty. Negotiated by John Jay, then the chief justice of the United States, the treaty attempted to resolve a number of issues still outstanding after the end of the Revolutionary War. Attacked as a brazen giveaway to Britain, the treaty inspired furious reaction from Washington’s Republican opposition, which emerged in his second term under the leadership of Jefferson and Madison. “The backlash against the treaty,” Rasmussen writes, “was like nothing” Washington “had experienced before.”
The Republican press turned its sights squarely on the once-untouchable president, using every term of abuse it could muster and leveling every charge it could concoct, no matter how implausible. Washington was senile; he was a blasphemer; he was a womanizer; he had embezzled public funds; he was a tool of the British crown or desired a crown of his own; Hamilton not only controlled him behind the scenes but was somehow also his illegitimate son; Washington had been a secret British agent during the Revolutionary War, and his efforts to betray the patriotic cause were foiled by Benedict Arnold beating him to the punch.
Washington’s famous farewell address — in which he warned against faction — was as much about the circumstances of his own administration as it was a warning to future Americans. In his final year, however, Washington seemed to surrender to the reality of parties and factionalism. Asked to consider a third term for president, he told the governor of Connecticut, Jonathan Trumbull, that he was “thoroughly convinced I should not draw a single vote from the Anti-federal side” and that character was irrelevant to the outcomes of elections. “Let that party set up a broomstick, and call it a true son of Liberty, a Democrat, or give it any other epithet that will suit their purpose, and it will command their votes in toto!”
John Adams, who devoted his life to the republic and the revolutionary cause, feared the consequences of peace and prosperity for the moral fiber of the American people. Writing to his son, John Quincy, in October 1814, he remarked that
human Nature cannot bear Prosperity. It invariably intoxicates Individuals and Nations. Adversity is the great Reformer. Affliction is the purifying furnace. Prosperity has thrown our dear America into an easy trance for 30 years. The dear delights of Riches and Luxury have drowned all her intellectual and physical Energies.
But this was in the midst of the second war with Britain, and the nation’s willingness to fight had made Adams cautiously optimistic that “the Germ of Virtue” was not destroyed and that “The Root of the matter is Still in us, and alive.”
For the remainder of his years, Rasmussen notes, Adams would oscillate between a kind of optimism and a disillusionment with the American experiment: “I fear there will be greater difficulties to preserve our Union, than You and I, our Fathers Brothers Friends Disciples and Sons have had to form it,” Adams wrote to Jefferson in 1816. During the administration of James Monroe, Adams wrote on an even darker note to John Quincy that, “If there is any Thing Serious in this World, the Selfishness of our Countrymen is not only Serious but melancholy, foreboding ravages of Ambition and Avarice which never were exceeded on this Selfish Globe.”
The “distemper in our Nation is so general,” he concluded, “and so certainly incurable.”
Whereas Washington was worried about the politics of the nation, and Adams the character of its people, Hamilton was worried about its institutions. He feared the national government would be too weak — too weak to stand as an equal on the international stage and too weak to rebuff greedy and self-interested state governments. With the decline of John Adams and the Federalists — who favored a powerful executive and strong federal authority — and the ascension of Thomas Jefferson and the Republican Party, Hamilton became convinced that the republic’s days were numbered.
Because of the underlying weaknesses of the political order, even the greatest successes of the Federalists had proven fleeting: “What will signify a vibration of power, if it cannot be used with confidence or energy, & must be again quickly restored to hands which will prostrate much faster than we shall be able to rear under so frail a system?”
To Rufus King, Hamilton wrote that “the prospects of our Country are not brilliant. The mass is far from sound.”
Jefferson was practically defined by his optimism about and enthusiasm for the American experiment. But he too saw dark tidings as he came to the end of his life, spurred on by the nation’s mounting conflict over slavery. “The source of Jefferson’s frustration and despondency,” Rasmussen writes, “was not the continued failure of the South to finally put slavery on the road to extinction, but rather the North’s opposition to its expansion.”
That opposition flared during the Missouri statehood crisis of 1820. The white majority in Missouri had approved of slavery in its constitution when it applied for statehood. If Congress admitted Missouri into the union with slavery intact, it would break the sectional balance in favor of the South. Northern lawmakers tried to stop this outcome with an amendment to the statehood bill that would have forced a system of gradual emancipation on existing slaveholders in the state.
Jefferson, who backed the South’s position, saw the conflict in apocalyptic terms. Here’s Rasmussen again:
If Congress could impose a gradual emancipation scheme on Missouri as a condition of statehood, [Jefferson] reasoned, then it “may, and probably will next declare that the condition of all men within the U.S. shall be that of freedom, in which case all the whites South of the Patomak and Ohio must evacuate their states; and most fortunate those who can do it first.”
After Congress passed its compromise on the issue — admitting Missouri as a slave state, admitting Maine as a free state and prohibiting slavery in the remaining territories of the Louisiana Purchase north of the of the 36°30′ parallel — Jefferson expressed his belief that the divide, represented by that line, would prove intractable:
“A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper,” he wrote in an April 1820 letter to John Holmes, a Republican from Maine.
Jefferson went on:
I am now to die in the belief that the useless sacrifice of themselves, by the generation of ’76. to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be that I live not to weep over it.
If there was a counterpoint to all of this pessimism, Rasmussen points out, it came from James Madison, who outlived his peers to see the union survive political crisis, partisan rancor and social transformation. “I have never despaired,” he said in his final public speech, nine months into the presidency of Andrew Jackson, “notwithstanding all the threatening appearances we have passed through. I have now more than a hope, a consoling confidence that we shall at last find that our labors have not been in vain.”
Madison was no Pollyanna. What he had was a strong sense of the possible and a willingness to live with imperfections. “No Government of human device, & human administration can be perfect; that which is the least imperfect is therefore the best government,” he wrote in 1834. Or, as Rasmussen puts it, “Long experience had persuaded Madison beyond a doubt that the American form of government was preferable to the alternatives.”
Millions of Americans are, at this moment, fearful for the future of their democracy. Millions more are deeply dissatisfied with the nation’s institutions and skeptical of its ability to tackle the challenges ahead of us. It is clarifying to confront both facts knowing that the founders themselves were as pessimistic about their future as we are about ours. It is nice to have perspective.
The American republic survived against their expectations, but that does not mean their pessimism was unwarranted. Jefferson’s fear of disunion, in particular, was prophetic.
What, then, is there to take from the founders, knowing what we know now about their fear and disillusionment? Perhaps we can take some of that despair and channel it toward critique rather than defeat. And perhaps, from Madison, we can take the faith that American democracy still holds the resources to revitalize itself — and us along with it.
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The spike plaguing many American cities this year has lawmakers reeling and police scrambling, though homicide rates are not rising as high as the double-digit jumps seen in 2020, reported The Associated Press. Still, according to the Brady Campaign to Prevent Gun Violence, 316 people are shot every day in the U.S. and 106 of them die. It’s even prompted President Joe Biden to order federal strike forces in to help catch gun traffickers who are supplying weapons used in the shootings.
Read about five victims and their families.
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CNN Chief Legal Analyst Jeffrey Toobin writes:
In the waning days of Donald Trump's presidency, Amy Coney Barrett won confirmation to the Supreme Court and Clarence Thomas received an equally consequential promotion -- to Chief Justice of the United States.
Not officially, of course. John G. Roberts, Jr., retains the title and the middle seat on the Supreme Court bench. But the Chief Justice has just one essential power that differentiates his role from that of the other Justices. The Chief has the right to assign the court's opinions when he is in the majority. When the Chief Justice is in the minority, though, the assignment power goes to the senior Associate Justice who is in the majority.
Thomas, who was confirmed in 1991, is now the longest tenured Justice on the court. More notably, he is now the leading figure among the five solid conservatives on the court -- Thomas himself, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Barrett.
In crucial, contested cases, Chief Justice Roberts has increasingly been voting with the three remaining liberals -- Stephen Breyer, Sonia Sotomayor and Elena Kagan. If Roberts continues this pattern, that means Thomas will be the senior Justice in several significant 5 to 4 cases and thus enjoy the right to assign majority opinions, including, of course, to himself.
Thomas has long occupied a peculiar niche on the court. He has been a part of the conservative majority in a mostly conservative era, but he has written few important majority opinions himself. Roberts gave himself blockbusters like Shelby County v. Holder, the 2013 case that eviscerated the Voting Rights Act, and when liberals cobbled together winning coalitions, they usually gave the big assignments to Anthony Kennedy, as in the 2015 case Obergefell v. Hodges, which guaranteed the right to same-sex marriage.
There's little doubt why Roberts and, before him, Chief Justice William H. Rehnquist declined to give Thomas important assignments. Even among conservatives during Thomas's earlier years on the court, his views were seen as extreme and eccentric. Like the late Antonin Scalia, Thomas is an originalist, which means he believes the Constitution should be interpreted as its words were understood to mean when it was ratified, in the 18th century. But Thomas and Scalia differed in their approach to stare decisis -- the law of precedent. Scalia joined with virtually all Justices who have served on the court in believing that the Justices should usually respect the court's precedents, even if he himself would not have joined the majority in the original case.
The idea behind this approach is that it's important for the law to project stability and allow citizens to order their lives according to predictable rules. Thomas disagrees. He thinks precedents that conflict with his understanding of the Constitution should be overturned -- immediately and en masse. As Thomas put it in a concurring opinion in 2019, "When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it." In an appearance at a New York synagogue, I once heard Scalia give a memorable quip when he was asked about the difference between his approach and Thomas's. "I'm an originalist," Scalia said, "but I'm not a nut."
Even more that his fellow conservatives, Thomas believes in prohibiting virtually all forms of gun regulation under the Second Amendment ; restricting press freedoms; allowing unlimited campaign contributions and spending under the First Amendment; banning all forms of affirmative action based on race and allowing virtually all forms of executions, no matter how painful.
In addition, of course, Thomas has long favored overturning Roe v. Wade, which he regards as "grievously wrong," and allowing states to ban abortion. It appears that Roberts and Rehnquist knew that, in major cases, Thomas' singular views and approach to precedent could not command a majority of even his conservative colleagues, so they assigned him relatively unimportant majority opinions -- the dogs, in Supreme Court argot. But Thomas will not give himself the dogs. He will have the right to keep the big opinions to himself and the opportunity to hold on to the votes of the four other conservatives.
Thomas has already exercised his assigning power in a consequential case. On November 25 last year, the court ruled, 5 to 4, that New York Gov. Andrew Cuomo violated the First Amendment's guarantee of free exercise of religion when he banned religious gatherings of more than 10 people in some areas, as a means of containing the Covid-19 pandemic. With Roberts in the minority, Thomas assigned the opinion, directing that it be published "per curiam," or by the court, which the Justices usually reserve for routine or non-controversial matters.
The message of the assignment was that this was an easy case, one in keeping with the conservatives' push on the Supreme Court to allow religious people to exempt themselves from rules that apply to others, like the obligation of employers to pay for health insurance, including birth control, for their employees. Over the course of the Supreme Court's term that began last October, according to Adam Feldman of the Empirical Scotus blog, Thomas was the senior Justice in the majority at least five times.
Next term promises to showcase Thomas's leadership in even more consequential areas. In the fall, the court will hear a challenge to Mississippi's new abortion law, which would ban almost all abortions after the 15th week of a woman's pregnancy. Ever since Roe, in 1973, the court has held that states cannot ban abortions before a fetus is viable -- well after 15 weeks -- but legislators in Mississippi passed the law in hopes that the Supreme Court would use it as a vehicle to overturn Roe.
In 2020, Roberts sided with the four liberals then on the court (including Ruth Bader Ginsburg) to overturn a restrictive abortion law from Louisiana. In his separate opinion, Roberts said the principle of stare decisis dictated his vote in the case. Thomas, joined by Justices Alito, Gorsuch, and Kavanagh, dissented.
Next term, of course, the four dissenters in the Louisiana case will be joined on the court by Barrett, whose anti-abortion views may have been the key factor that led Trump to nominate her. In other words, there will likely be a majority of Justices opposed to abortion rights, even if Roberts dissents. In that case, Thomas will have the right to assign the opinion. And his views on Roe could not be clearer. "Our abortion precedents are grievously wrong and should be overruled," Thomas wrote in his 2020 dissent. "The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical." Thanks to the arrival of Barrett, on abortion and a host of other cases, Thomas may soon have the power to make such a view the law of the land.
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George Thomas the Wohlford Professor of American Political Institutions at Claremont McKenna College wrote for the Bulwark:
The American founding was imperfect. America’s founders weren’t just aware of the point, they insisted on it: “I never expect to see a perfect work from imperfect man.” This bit of wisdom was central to the founding. In contrast, today, Republicans, continuing their departure from any serious understanding of American ideas and history, have taken to insisting that teaching about a flawed founding threatens the very foundations of the republic.
That would be news to the founders, who were often the Constitution’s most perceptive critics. In his closing speech at the Constitutional Convention, the only speech from the Convention to be published at the time, Benjamin Franklin confessed that he “did not entirely approve of this Constitution at the present.” Yet he acknowledged his own fallibility, noting that in time he might come to change his mind, and, given the circumstances, it wasn’t clear the Convention could “do better” than it had. This is no small thing, but inherent in the political philosophy of leading founders. To insist on a perfect founding is to misapprehend the thought of the founders themselves. The founders rejected the notion of a perfect political order. They built from low but solid ground by insisting on imperfection as an inescapable feature of political institutions crafted by human beings. And they built from experience, learning from the past, but knowing full well that the future was likely to require adjustments and improvements to our political institutions.
Championing the Constitution to the citizenry in The Federalist Papers, James Madison insisted we must make a choice for “the GREATER, not the PERFECT good.” In the closing paper, Alexander Hamilton reiterated the point, noting the Constitution was “the best which our political situation, habits, and opinions will admit.” It is not simply, in Madison’s famous words, that men are not angels. Nor is it, again in Madison’s words, that we cannot always trust that enlightened statesmen will be at the helm. Both points are true. The deeper point echoes Franklin’s insight that perfection is an impossibility in crafting political institutions, which inevitably require compromises that bow to reality. And there will always be gaps between political practices and political aspirations, as well as contingencies that the Constitution’s framers simply did not anticipate.
Adjustments to the Constitution were needed almost immediately. The Twelfth Amendment stipulated separate electoral votes for the president and vice-president after the problematic election of 1800 where Aaron Burr, Thomas Jefferson’s running mate, got the same number of electoral votes as Jefferson throwing the presidential election into the House of Representatives. As the founding generation learned how elections actually operated under the new Constitution, innovations like political parties came to be defended as a necessary constitutional development even if the Constitution had tried to rise above them. Such adjustments were expected to be—and have been—a fairly routine feature of American politics.
Yet far and away the most evident constitutional shortcoming was the reality of American slavery. An emerging republic that insisted that all men were created equal, creating a self-governing polity based on that principle, also allowed for the enslaving of fellow human beings. To call slavery an imperfection or flaw is a colossal understatement.
The struggle over slavery has been at the root of American constitutionalism from the beginning. Slavery presented a constitutional disharmony between the idea of equality and the reality of slavery. As the Princeton historian Sean Wilentz frames it in No Property in Man, “the paradox—of a Constitution that strengthened and protected slavery yet refused to validate it—created what have been perceived as the Constitution’s confounding ambiguities over slavery.” If American ideas pointed to equality and anti-slavery—at the Constitutional Convention Madison called American slavery “the most oppressive dominion ever exercised by man over man”—American political institutions empowered slavery and thereby perpetuated a brutal and violent inequality.
Many of the leading founders were in principle opposed to slavery—and particularly slavery rooted in race—but this was often an abstract position, with little actual political effort to undo slavery. They seem to have given even less thought to what equality and citizenship would entail for Black Americans (Franklin being a possible exception here). The difficult work of anti-slavery constitutionalism had to be taken up by others, and often against our deeply imperfect political institutions that empowered the proslavery position, giving its voice more weight in constitutional terms than it would have had absent the three-fifths compromise and the Electoral College.
The new birth of freedom that Abraham Lincoln extolled in the Gettysburg Address required the Thirteenth, Fourteenth, and Fifteenth Amendments, which amounted to a second founding. It was this second founding that made the first founding worthy of being saved. Much like the founders before them, those who ushered in a second founding learned from experience, working to improve an imperfect Constitution. At Gettysburg, Lincoln cast the nation as “conceived in liberty” and “dedicated to the proposition that all men were created equal.” Lincoln’s effort was to complete the “unfinished work” of the founding generation. If Lincoln cast this “unfinished work” as an effort to restore America to its foundations, to a nation dedicated to the proposition that all men are created equal, this was an effort to return to something real, but that never actually existed—only the promise of it did.
Making this promise real has been the work of generations.
Our pluralistic constitutional democracy is an outgrowth of the constitutional republic launched by the founders. Madisonian constitutionalism, in particular, paved the way for a vibrant and pluralistic constitutional democracy that was not defined by religious, racial, or ethnic identity. But that project was imperfect and incomplete at the founding. It has been carried forward by Americans who sought to make a deeply imperfect union more perfect. This work continues in our day, and we are better prepared for this work as we make our way in the present if we have a genuine sense of our (imperfect) past.
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Gasoline stations in New Mexico can be liable for selling fuel to drivers they know or have reason to know are intoxicated, the New Mexico Supreme Court ruled, according to the ABA Journal.
The state supreme court ruled that the tort of negligent entrustment of chattel extended to gasoline sales.
“Providing gasoline to an intoxicated driver is like providing car keys to an intoxicated driver,” the court said in the July 19 opinion.
Previously, no New Mexico decision applied the doctrine of negligent entrustment outside the context of vehicles entrusted to someone who is incompetent to drive.
The New Mexico Supreme Court is the second top state court to extend liability to gasoline stations for injuries to third parties caused by drunken drivers, according to the opinion. Tennessee’s top court was the first.
The New Mexico Supreme Court ruled in response to a certified question by the 10th U.S. Circuit Court of Appeals at Denver. The suit was filed in New Mexico state court by the estate of Marcellino Morris Jr. and removed to federal court. The defendant is Giant Four Corners Inc.
According to the lawsuit allegations, Andy Denny was intoxicated when he ran out of gas and walked to the gas station in the early morning hours of Dec. 30, 2011. At first, the clerk refused to sell anything to Denny because he appeared intoxicated but then agreed to sell him a gallon of gas. After he and a companion took the gas to Denny’s car, they drove back to the gas station and bought another nine gallons of gas.
Denny dropped off his passenger and got on the highway, where he crossed the center line and crashed with Morris’ oncoming vehicle. Morris died in the collision.
Justice C. Shannon Bacon wrote the majority opinion.
“We conclude that under New Mexico law and the doctrine of negligent entrustment of chattel, a commercial gasoline vendor owes to a third party using the roadway a duty of care to refrain from selling gasoline to a driver the vendor knows or has reason to know is intoxicated,” Bacon said.
Retired Justice Barbara Vigil, sitting by designation, dissented. She described the majority’s decision as a “sea change in the law [that] could have far-reaching consequences for retail businesses.” She argued that regulating businesses is a legislative function that should not be imposed by judicially created common law duties.
“The majority creates a sweeping new duty based on atypical facts—gasoline purchased from an attendant—then fails to address how this rule is to be applied in the typical scenario when gasoline is purchased at the pump,” Vigil wrote. “It is unclear whether erratic behavior observed through a window gives rise to a duty to investigate, for example, and the majority provides no guidance as to how that investigation should occur.”
Vigil also said the majority reasoning could extend liability to any vendor that enables drunken driving, including auto parts stores, tire shops and mechanics.
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Victims of childhood sexual abuse suffered a setback when the Pennsylvania Supreme Court reversed a lower court’s decision that could have allowed dozens of lawsuits over decades-old sexual abuse claims to move forward against the Catholic Church, including the Allentown Diocese, reported the Allentown Morning-Call.
In a 5-2 decision, the court ruled that the state’s 12-year statute of limitations for people abused as children to file civil lawsuits bars a western Pennsylvania woman from suing the Diocese of Altoona-Johnstown over abuse by a priest she claims she suffered between 1974 and 1981. Renee Rice claimed in her suit that church officials’ silence amounted to fraudulent concealment.
An appeals court decision that Rice should be allowed to persuade a jury the cover-up prevented her from pursuing her claims revived her case after a county judge dismissed it and buoyed hope for justice for others with similar experiences.
In an opinion overturning that decision, Justice Christine Donohue wrote that whether “the courthouse doors should be opened for suits based on underlying conduct that occurred long ago is an exercise in line drawing that includes difficult policy determinations.” The courts are “ill-equipped to make that call.”
Donohue added that the Legislature is better able to examine such issues and determine an appropriate balance of competing concerns and that the state constitution bars courts from doing so.
“Even in view of the reprehensible circumstances depicted in this case, and others like it, we must follow the rule of law and enforce the value judgments expressed by the General Assembly,” Donohue said in her opinion for the majority.
Richard Serbin, the Altoona attorney who represents Rice, said the decision is a disappointing defeat for hundreds who hoped to pursue abuse claims under the legal precedent in Rice’s case. It also increases pressure on lawmakers to act on legislation that would create a limited period for abuse victims whose claims are too old to seek compensation.
“Until our legislature creates a path for justice, survivors of child sex abuse in Pennsylvania will have none,” Serbin said.
Eric Anderson, a Pittsburgh lawyer who represented the Altoona-Johnstown Diocese, said the Supreme Court’s decision was correct.
“They applied the law to the facts of the case and they came out with the appropriate decision,” Anderson said. “The Superior Court stretched the law in certain ways and the Supreme Court said no.”
Victims of childhood abuse in Pennsylvania currently have until age 30, or 12 years after they legally become adults, to sue.
Serbin estimated that more than 250 lawsuits by people whose abuse claims were too old had been filed against Catholic dioceses in Pennsylvania since the Superior Court decision in Rice’s case. In Lehigh County alone, at least 25 lawsuits were filed against the Allentown Diocese. Spokesperson Paul Wirth said the diocese is reviewing the Supreme Court’s opinion.
Since 2019, the Allentown Diocese has paid more than $16 million to 97 people who claimed they suffered abuse by clergy. It received 106 applications for its Independent Reconciliation and Compensation Program, which required claimants to waive their rights to litigate against the diocese. Six people rejected offers and three claims were deemed ineligible.
Allentown was one of five Catholic dioceses in Pennsylvania that established compensation funds after a 2018 state grand jury report revealed sexual abuse accusations against 301 priests, who had abused hundreds of children over several decades. The report named 37 priests from the Allentown Diocese, and the diocese added 15 names to the list.
Rice alleged the Altoona-Johnstown Diocese and two bishops tried to cover up her abuse to protect their reputations and that of the Rev. Charles F. Bodziak, the parish priest who Rice accused.
As a child, Rice was brought in to clean Bodziak’s living space, and was a church organist. Rice alleges Bodziak abused her at St. Leo’s Church in Altoona, including attacks in the choir loft, a car and a cemetery. Bodziak denies the allegations.
After a county judge dismissed her lawsuit as untimely in 2017, Rice appealed and the Superior Court found there were enough facts for a jury to decide whether the actions of church officials prevented her from seeking compensation for her abuse.
Rice argued that a separate 2016 grand jury report on sexual abuse in the Altoona-Johnstown Diocese alerted her to allegations church officials tried to cover up Bodiziak’s actions that amounted to fraudulent concealment. She claimed that the statute of limitations should be extended to when she learned of the church’s efforts to conceal the priest’s actions.
The Supreme Court reversed the Superior Court, finding that in order for fraudulent concealment to extend the statute of limitations, Rice was required to make an effort to investigate but did not.
“What the Supreme Court said is you have that duty even if there is a claim of fraudulent concealment,” Anderson said.
Victims’ hopes to overcome the time limits on civil litigation now rest in the Pennsylvania Senate, where Majority Leader Kim Ward, R-Westmoreland, has signaled no interest in moving legislation similar to a bill that passed the House in April. The proposal would allow now-adult victims of child sexual abuse to sue the perpetrators or institutions that did not prevent it when it happened years or decades ago.
A constitutional amendment to provide a two-year litigation window was badly fumbled by Democratic Gov. Tom Wolf’s administration this year, putting it years behind schedule.
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For most purposes — signing contracts, entering the military, marrying without parental permission and living independently — an American is legally an adult at age 18. But a panel of federal appellate judges erred last week in deciding that this also should extend to the purchase of handguns.
Buying a gun isn’t like signing up for a gym membership. A handgun’s main purpose is to kill or injure, and a study in Los Angeles County found that 18- to 20-year-olds are far more likely to commit violent acts with a firearm than older people. We know much more about the maturing brain than we used to; it is still undergoing major change in the first years of “adulthood.” A rash decision with a handgun carries far more serious consequences than eloping to Vegas.
According to the U.S. Justice Department, “the age at which people most frequently commit homicide was 18.” And the youngest adults — ages 18 through 20 — ranked first among all age groups for the number of homicides committed with guns, at 24%.
It can be a tricky matter, this business of deciding when a person is an adult. Anyone charged with a crime who is 18 is charged as an adult. Yet, decades ago, the legal drinking age was 18; now it’s 21. At the end of 2019, federal legislation pushed the legal age to purchase tobacco products to 21 as well.
As an editorial board, we opposed that move on tobacco. It seemed to us that people old enough to hold down a job and buy a house were certainly old enough to make bad decisions about their own health.
In general, the age of majority — 18 — should be the dividing line used in allowing young adults to make momentous decisions about their lives. But it’s not inconsistent to say that no single bright line is needed to determine a responsible age for all activities. Given the purpose for which handguns and ammunition were made, and how quickly and rashly a person can make a decision that can end or forever damage a human life, it makes a lot more sense to impose a minimum age of 21 for a firearm purchase than for a cigar.
The case will be returned to U.S. District Court, and might well be appealed to the full 4th Circuit Court of Appeals, where the panel’s split decision should be reversed.
True, the right to puff on cigarettes or drink alcohol is not written into the U.S. Constitution. But neither is a guarantee that the right to bear arms goes with being a particular age. There already are multiple restrictions on gun possession, including for the mentally ill. An age restriction is one more sensible way to cut back dramatically on gun violence in this country.
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America’s criminal legal system is rooted in the nation’s history of legalized slavery and racial oppression, according to The Brennan Center for Justice. Our current system of punishment is still founded on a basic conception of outsider-hood that continues to create and perpetuate racial, ethnic, and class inequality. Criminal legal reform efforts must engage directly with this sordid lineage to unmoor the inequitable impacts and outcomes of our current system of “justice.”
As Cornell William Brooks, former president and CEO of the National Association for the Advancement of Colored People, wrote: “Communities of color are over policed, over-prosecuted, over-incarcerated and yet underemployed.” The racial disparities throughout our criminal legal system are considerable. For example, one in three Black men are incarcerated in their lifetimes compared to one in 17 white men. When it comes to policing, these disparities are even greater, as evident in the number of Black men and women who are killed without justification by law enforcement officers. A mapping of police violence illustrates that Black Americans are three times more likely to be killed by police officers than white Americans, while nearly twice as likely to be killed as a Latinx person. Black Americans are also about 30% more likely to be unarmed in fatal interactions with police than white Americans.
Can the federal government do anything to transform the American criminal legal landscape and reduce racial disparities? This is a genuine question. So many of these challenges exist at the local and state level. For instance, local jails and state prisons account for 91% of the nation’s incarcerated population. To put it just a bit differently: There are about 2.2 million people behind bars in this country, but only about 175,000 of them are in federal prison. Additionally, there are more than 10 million admissions in and out of the nation’s colossal network of local jails each year; more than 4.5 million people on probation or parole; and more than 70 million people have conviction histories that subject them to lifelong consequences to their lives and livelihoods. And when it comes to policing, there are 18,000 local police departments dotting the United States.
Yet still, the federal government is uniquely situated to incentivize systemic reforms for state and local-level criminal legal systems.
Consider the many forms that federal involvement in local criminal justice affairs can take. Federal agencies can and do enforce federal law against localities. For example, the Justice Department’s Civil Rights Division and U.S. Attorneys’ offices have the statutory authority to bring civil rights actions against corrections agencies and local police departments in addition to criminal prosecutions against individual officers to enforce federal rights law when police violate those rights. And through the federal government’s grantmaking powers, it can shape state and local criminal justice policy.
Federal funding schemes have long encouraged states to focus their resources on law enforcement interventions to deal with social problems, often resulting in our government locking up ever more people for ever longer periods of time. This has resulted, in part, in today’s bloated carceral state. In fact, since the 1960s, the federal government has played a central role in shaping the nation’s criminal justice landscape through outlays of grant money to states. For decades, federal grants encouraged states to increase arrests, prosecutions, and imprisonment. Federal funds have supported the expansion of local jails, including paying jails to house federal incarcerated individuals as well as ICE detainees.
One example of how federal dollars incentivized the growth of the carceral state that only exacerbated racial disparities is through the Violent Crime Control and Law Enforcement Act of 1994 (The 1994 Crime Bill), which authorized incentive grants to build or expand correctional facilities. Grants totaling $12.5 billion were authorized for incarceration, with nearly 50% earmarked for states that adopted tough “truth-in-sentencing” laws that required people to serve substantial portions of their custodial sentences. Other examples over the last half century include the Omnibus Crime Control and Safe Street Act of 1968, which provided $400 million for law enforcement purposes; and the Anti-Drug Abuse Act of 1986, which increased federal funding for law enforcement to fight the drug war. Then in 2005, when reauthorizing the Violence Against Women Act (VAWA), Congress created the Edward Byrne Memorial Justice Assistance Grant program (JAG). All 50 states, territories, and more than 1,000 local governments rely on JAG dollars, whose funding level for the entire program averages between $300 to $500 million yearly. Those dollars support almost any criminal justice activity covered by the federal statute, yet about 60% of state-level JAG dollars support law enforcement and corrections functions. In his 2013 book, “Rise of the Warrior Cop: The Militarization of America’s Police Forces,” journalist Radley Balko encapsulated this crime fighting incentive well: “As local police departments were infused with federal cash, members of Congress got press release fodder for bringing federal money back to the police departments in their districts.”
The federal government should no longer subsidize mass incarceration and should instead incentivize states to reverse the era of excess punitiveness and shrink the carceral state. One powerful way to do so would be for the president to champion and Congress to pass the Reverse Mass Incarceration Act (RMIA) to unwind these incentives by ensuring that federal grants are sent only to states that reduce incarceration. Designed to undo the damage inflicted by federal policies incentivizing states to lock up more people and to lock them up for longer periods of time, the RMIA would establish a grant program rewarding states for lowering their prison populations.
For states to obtain funding under the RMIA, they would have to submit plans describing how they would reduce incarceration; the RMIA would set an across-the-board reduction target for all states to meet. The grant would encourage states to take numerous steps to undo mass incarceration, like changing sentencing laws, establishing new programs diverting people away from the system, or improving wraparound services for individuals reentering their communities after incarceration. Leaders on both sides of the political spectrum all agree: The United States must end mass incarceration, which highlights and exacerbates racial inequality in America’s criminal punishment system. And we believe the RMIA can serve as a vehicle for reigning in state prison populations, while vastly reducing racial disparities in the system.
As calls for racial justice continue ringing in the air, the federal government should use its powers to realize the humanity, equality, and dignity of all. Black and Brown people deserve more. And anything less threatens to make our justice system anything but.
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Maine became the fourth state in the nation to abolish civil asset forfeiture, a practice where law enforcement can seize property if they suspect it is connected to criminal activity, even if the owner is not convicted of a crime, reported Reason.
After a bill passed by the state legislature, LD 1521, took effect without the governor's signature yesterday, Maine officially repealed its civil forfeiture laws, joining Nebraska, New Mexico, and North Carolina.
Law enforcement groups say civil asset forfeiture is a crucial tool to disrupt drug trafficking and organized crime by targeting their ill-gotten proceeds. However, groups like the Institute for Justice, a libertarian-leaning public interest law firm, say civil forfeiture provides too few due process protections for property owners, who often bear the burden of proving their innocence, and creates too many perverse profit incentives for police.
"Civil forfeiture is one of the most serious assaults on due process and private property rights in America today," Institute for Justice Senior Legislative Counsel Lee McGrath said in a press release. McGrath says Maine's new law "ends an immense injustice and will ensure that only convicted criminals—and not innocent Mainers—lose their property to forfeiture."
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John MacDonald of the University of Pennsylvania and Aaron Chalfin wrote recently in the New York Times:
The United States saw about 25 percent more homicides in 2020 than in 2019, based on preliminary data released by the FBI — the largest single-year increase in the homicide rate since reliable tracking began in 1960. The current rate — 6.2 homicides per 100,000 residents, if the same 25 percent increase is applied to last year’s rate — is the highest recorded in the United States in more than 20 years. In America’s largest cities and, in particular, the most economically disadvantaged neighborhoods within those cities, the rise in violence has been the most pronounced.
The reasons for the large increase in violence are a matter of speculation and are likely to remain poorly understood for years to come. During the coronavirus pandemic, a number of factors changed simultaneously in American cities, making it difficult to isolate the precise combination of ingredients behind the surge in violence. But we do have enough data to judge the strengths and weaknesses of some competing theories.
The U.S. homicide rate was rising, albeit slowly and without much media attention, before the pandemic. From 2014 to 2019, the rate increased by 13 percent, reversing a long decline of 54 percent that had begun in 1991. The rapid growth in homicides during the pandemic appears to have sped up that increase.
The question is, why?
One set of explanations has to do with the economic hardship, social disruptions and uncertainty that the pandemic has caused, especially for communities already strained by poverty and structural disadvantage. But there is little evidence that violence increases markedly during economic downturns: Murders declined during deep recessions in 1980-1982 and 2008-2010. While the economy has been a significant stressor for millions of Americans who have found themselves out of work, lethal violence is largely driven by the actions of a small number of men who are only tenuously tied to formal labor markets — and not immediately affected by job cutbacks.
Social disruptions that change patterns of human activity and social control provide a more promising explanation. When community institutions are weakened, people feel they’re on their own and may respond to uncertainty by assuming the worst, carrying weapons and reacting to aggression with even greater aggression. This theory is buoyed by recent analyses of police searches, which show that starting in March 2020, authorities found more firearms during street and traffic stops. The data suggests what many police officers have been saying based on their personal experiences: More people are carrying guns than before.
But the problem with these explanations is that unlike the coronavirus, the jump in lethal violence has been a uniquely American phenomenon. As Zaid Jilani notes, homicides did not rise in Western Europe in 2020, nor did they increase in our two closest neighbors, Canada and Mexico. Even in El Salvador, one of the most violent and lawless countries in the world, there is no indication that homicides have spiked. American exceptionalism does not mean the challenges of the pandemic have little to do with the rise in violence — but it does indicate that this is, at best, an incomplete explanation.
Lethal violence didn’t rise immediately after the coronavirus reached our shores and governors imposed lockdowns. Overall crime appeared to drop in many cities as businesses closed, people stayed home and routine social activities were disrupted. But unlike street crimes such as robbery and retail theft, homicides didn’t decline, suggesting that activities among the young men most prone to committing homicide weren’t affected as much by lockdowns.
In June 2020, not long after the killing of George Floyd and the ensuing protests, shootings and homicide rates began to climb nationwide. The close connection between the rise in violence and the groundswell of public outrage at law enforcement last summer makes it natural to wonder whether the increase in violence can be explained by a decline in funding for police departments, a reduction in police morale or a fraying of police-community relations rather than the pandemic.
One popular narrative has it that cuts to police funding have contributed to the growth in homicide rates. There is a great deal of scientific evidence that when cities hire more police officers, violence tends to decline, and that when high-crime blocks are subject to greater police presence, crime falls in those areas. But while there is some evidence that the pandemic challenged departments and there were fewer officers on the streets in some places, most cities maintained their required levels of patrol in 2020.
Was public safety decimated by the “defund the police” movement? Despite the intense media coverage of the idea, only a handful of cities actually cut police budgets substantially. Some of these cities — such as Minneapolis, Portland, Ore., and Seattle — experienced an explosion in shootings, but the rise in homicide has been broad-based and also affected cities that didn’t change police funding levels, including Detroit, Phoenix and Omaha. A reasonable argument can be made that the movement to defund the police created greater discontent among officers, but reductions in police funding don’t seem to explain the violence.
Some have hypothesized that the rise in homicide rates is specifically a result of the June 2020 protests — that the demonstrations emboldened offenders and fractured already tenuous ties between officers and the communities they serve. This seems like a simple way to explain why the United States has seen violence increase so much more than other nations have. But theories about the role of the protests must contend with several challenges. Violence typically climbs during the summer, and in 2020, that happened to correspond not only with the protests but also with an end to the most intensive lockdowns in many cities — making it hard to pin blame on any one cause without more examination. And the rise in gun seizures by law enforcement — which proponents of the theory say is a marker of gun-carrying by emboldened criminals — appears to have begun in March 2020, long before anyone had heard of George Floyd or Derek Chauvin. In other words, the groundwork for the surge in gun violence was laid well before the protests.
A more nuanced hypothesis is that violence increased because police “pulled back” and took fewer proactive measures, a trend that coincides with the beginning of the pandemic and predates the protests. While some of this pullback and the resulting reduction in arrests can be explained by lockdowns, which kept fewer people from venturing outdoors, there is anecdotal evidence that police, both officially and unofficially, wanted to minimize unnecessary contact with the public during a global health crisis.
But do reductions in proactive policing lead to more crime and violence? High-quality evidence on the public-safety value of low-level “quality of life” arrests is surprisingly thin. When police have engaged in intentional work slowdowns in the past, increases in crime have not always followed. At the same time, recent research suggests that federal and state investigations of local police agencies after incidents that attract widespread attention are followed by de-policing and a rise in homicide rates.
While the “protests caused the violence” narrative appears far too simple, it is difficult to reject the hypothesis that less-inspired policing — whether prompted by public health concerns, reduced output from dedicated anti-crime units or lower morale after the summer protests — may have played a role. As the Princeton sociologist Patrick Sharkey has noted, even if the protests did not directly cause the rise in violence, the sudden absence of police from spaces that had been policed intensively may have created an opening for violence to accelerate after the increase in gun carrying during the spring of 2020.
Whether the criminal justice system’s response to the pandemic affected crime is also unclear. Beginning in March 2020, prosecutors, judges and corrections officials in most cities moved to send fewer defendants to jail while cases were pending and to reduce jail populations as much as possible. This wasn’t part of a progressive political agenda — it was a reaction to the fear that covid-19 would spread like wildfire in jails, endangering not only inmates but also corrections officers and ultimately the wider community.
In many places, the pandemic has also caused criminal courts to slow down considerably. Cases have taken longer to adjudicate, which means longer spells when individuals awaiting charges, including for gun crimes, remain at large. Police officials have pointed to cases in which some of these people ended up involved in shootings, either as perpetrators or as victims. The intense concentration of gun crimes within a low number of social networks and the tendency for violence to become retaliatory mean that even a small change in the efficiency of the criminal justice system could have a large impact on shootings and homicides.
One of the more obvious differences between the United States and most other developed nations is the wide availability of guns. Is gun proliferation to blame for the violence of 2020? While it’s too soon to fully sort this out, we can at least devise a framework for thinking about the role guns play.
There is evidence that gun purchases rose considerably during the pandemic. The FBI’s National Instant Criminal Background Check System processed more than 39 million firearm background checks in 2020, a 40 percent increase from the year before. While the vast majority of these newly purchased guns have not been used in crimes, even if a small number end up in communities suffering from endemic violence, the effects could be sizable. Indeed there is compelling evidence that gun proliferation can drive more violence in economically distressed pockets of large cities than in suburban and rural areas.
But gun proliferation isn’t necessarily responsible for last year’s violence. Gun sales rose for years as homicide rates fell. From 2000 to 2014, the FBI processed more than 100 million firearms background checks, while the national homicide rate dropped by 18 percent. The large 2020 increase in background checks represents only a 10 percent rise in the stock of firearms in the United States. And guns used in crime tend to be surprisingly old — at least 10 years old, on average. It is relatively uncommon for newly purchased guns to be used in homicides.
Ultimately, the evidence doesn’t paint a simple picture of why homicide rates surged in 2020. The rise in violence during the pandemic appears to be a problem that is uniquely American, so broad explanations that emphasize economic strife, social stresses and disruptions to public services are, at best, incomplete. The evidence suggests that gun-carrying increased sharply shortly after pandemic-induced lockdowns began, either because police withdrew from public spaces or because people expected an arms race in communities suffering from endemic violence. The summer protests reignited a long-brewing legitimacy crisis for law enforcement and may have made it more difficult for police to reassert control over spiraling violence and retaliation.
Beneath it all, the ready availability of guns looms. Put simply, social disruptions and de-policing probably have higher stakes in American cities — where a small but persistent number of criminal offenders carry guns — than they do in countries where firearms are not as easy to get.
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The 5th Execution of 2021
John William Hummel, 45, received a lethal injection for the 2009 killings at the state penitentiary in Huntsville in Texas on June 30, 2021, reported Newsweek.
Hummel said a brief prayer while strapped to the gurney in the death chamber.
"Yes, when they lay me down to sleep, for I am to die for justice, the Lord my soul to take. I'll be with Jesus when I wake," he said, according to a prison transcript provided to Newsweek.
His last statement included remorse for the killings. "I truly regret killing my family," he said. "I am thankful for all the thoughts and prayers for my family over the last few days. I love each and every one of you."
He took a half-dozen breaths as the lethal dose of pentobarbital took effect, then began snorting quietly, the Associated Press reported. All movement stopped about a minute later, but his eyes didn't fully close. Hummel was pronounced dead at 6:49 p.m. CDT, 15 minutes after receiving the lethal injection.
The authorities said Hummel stabbed his wife, Joy Hummel, 35 times on the night of December 17, 2009, then beat to death his 5-year-old daughter Jodi Hummel and wheelchair-bound father-in-law Clyde Bedford with a baseball bat.
He then set their home, in the Fort Worth suburb of Kennedale, on fire and fled to California. Prosecutors said Hummel, a hospital security guard at the time, killed his family because he wanted to be with a woman he met in a convenience store.
After the killings, he fled to California, but was arrested. He later confessed to the killings, the authorities said.
Hummel was convicted of capital murder in the deaths of his wife and father-in-law in 2011. He was not tried for his daughter's killing.
Bedford's brother Cecil Bedford watched Hummel die on Wednesday.
"It was too easy. It was like going to sleep," he told the AP afterwards.
He added that a more severe punishment would have been appropriate for Hummel, like being put to death with "a rope, a guillotine, a firing squad."
"There's all kinds of good stuff to kill people," Cecil Bedford said. "They should get what they deserve. An eye for an eye. I'm sorry. I'm old school."
Executions Delayed by Pandemic
Hummel's execution had been scheduled for March 18 last year, but was postponed because of the coronavirus pandemic.
He's the second inmate put to death since Texas resumed executions in May after almost a year.
Quintin Jones was put to death on May 19 for the 1999 killing of his great-aunt, Berthena Bryant, but experts and death penalty opponents condemned the authorities for going ahead without any media witnesses present.
Last week, the Texas Department of Criminal Justice announced that an investigation into Jones' execution had found "a culmination of factors" had caused the "preventable and inexcusable" error, including new personnel and procedures. The department said several steps had been taken to ensure that such a mistake doesn't occur again.
The American Civil Liberties Union had called for Hummel to receive a 30-day stay of execution, arguing that putting him to death on Wednesday would be "irresponsible and cruel."
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The Crime Report's Eva Herscowitz writes:
Cable newscasters, criminologists, and city officials have repeatedly warned Americans of rising crime nationwide. But the “crime is up” narrative doesn’t tell the full story, experts say.
Statistics tell a more complicated narrative than headlines, argues Christopher R. Herrmann, a former NYPD senior crime analyst and now professor at John Jay College of Criminal Justice.
“The broad narrative that ‘crime is up’ is simply incorrect,” Herrmann told Insider.
“Some crimes, mostly shootings and homicides, are up in many cities, but again, this is a very small percentage of violent crime and even smaller part of total crime.”
Herrmann said in New York City and Chicago, shootings and homicides have made up 2.5 percent and 10.7 percent of total crimes this year, respectively.
But he acknowledged that nearly every city saw an uptick in homicides and shootings in the first quarter of 2021, a time when various cities typically see rises, drops and steady rates of crime.
Richard Rosenfeld, a criminologist and University of Missouri–St. Louis professor, said he believes the uptick is connected to George Floyd’s police killing and widespread distrust of the police.
Rosenfeld suggested that police frustrated with rising animosity might be pulling back, or that communities distrustful of police are taking vigilante justice into their own hands.
Some criminologists believe the national uprising over police killings of Black people made residents of high-crime areas less likely to assist police investigations, worsening a longstanding problem and emboldening violent criminals, reports Reuters.
Rosenfeld offered a nuanced explanation of crime statistics: while homicides and shootings have been rising, property crimes and burglaries are down or steady in many cities. While homicides increased on average 30 percent or more during the summer of 2020, Rosenfeld predicts they will eventually decline to pre-2020 rates.
“What we’ve been seeing is just across the board increases, both last summer and through the first quarter of this year,” he told Insider. “And we’re going to continue to see — roughly speaking — across the board increases [in homicides] through the first half of this year, but with a larger number of cities not showing big increases or indeed actually showing declines over last year.”
Crime is also connected to economic crises, and the pandemic’s economic consequences — unemployment, housing insecurity, food shortages — may have contributed to rising crime. In Rochester, N.Y., where murder rates have reached a record high, residents also say the surge reflects rising problems with drug trafficking, criminal gangs and illegal firearms during the pandemic.
The rise though, remains significantly lower than crime’s historical peak in the 1980s and early 1990s, reports Reuters. Herrmann and Rosenfeld agree that crime will likely decline as the year continues. Rosenfeld said it’s unlikely homicide and shooting rates continue at last summer’s scale, unless an event like Floyd’s murder spurs another protest movement.
With much of 2021 still to go, Herrmann said it’s too early to determine or predict trends.
“We’ll have a horrible summer of shootings and homicides, and there’s another month and a half of that, And then we’ll start to see things settle down,” he said. “We’ll really have to wait until first quarter of 2022 to see what the trend is going to be.”
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