Category: reason

The total incarcerated population of the U.S. fell dramatically last year amid the COVID-19 pandemic, dipping below 2 million for the first time since 2002, according to a new report by the Vera Institute of Justice.

The report found that the total number of people incarcerated in U.S. prisons and jails fell from 2.1 million in 2019 to 1.8 million in mid-2020, an unprecedented 13 percent decline. The total incarcerated population of the U.S. peaked in 2009 at a staggering 2.3 million.

Since 2009, the total incarcerated population has fallen as states passed a wave of bipartisan criminal justice reforms in response to exploding prison budgets, crumbling infrastructure, and an increasingly loud outcry over the human costs of mass incarceration.

The Vera Institute’s numbers track with other surveys of the U.S. criminal justice system. The Department of Justice’s Bureau of Justice Statistics (BJS) reported last year that the U.S incarceration rate fell in 2019 to its lowest level since 1994.

The COVID-19 pandemic only accelerated this trend. As the virus spread through the U.S. last spring, jurisdictions took unprecedented steps to reduce the populations of their crowded, unsanitary prisons and jails, such as halting the intake of new inmates and releasing people who had been held in jail for minor offenses.

The Vera Institute’s report found that local jails drove the initial decline in incarceration, “although prisons also made modest reductions.” Prison populations continued to decline in summer and fall, but jails began to refill, the study found. 

The study also found that, while jails in rural counties saw the biggest initial drops, they still incarcerate people at double the rate of urban and suburban areas. “Even with dramatic declines, rural areas still have the highest incarceration rates by far,” the report says. “Three out of five people incarcerated in local jails are in smaller cities and rural communities.”

The authors say that their findings show that, while decarceration happened, it’s by no means permanent nor does it come close to closing the gap between the U.S. and the rest of the world when it comes to putting people behind bars.

“Despite the historic drop in the number of people incarcerated, the decrease was neither substantial nor sustained enough to be considered an adequate response to the COVID-19 pandemic, and incarceration in the United States remains a global aberration,” the report says.

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I recently posted a short draft essay, just 10 pages long, called “Line-drawing and Legal Education.”  Here’s the abstract:

Law professors love to ask: “Where do you draw the line?” This essay offers a guide to what is in play when professors ask their favorite question. It identifies the assumptions about legal education and the legal system that lead professors to see line-drawing as important. It explores why students may see line-drawing as superficial and small-minded. And it concludes with practical tips for students on how to respond when professors ask them where they would draw the line.

Comments very welcome!  E-mail any comments to me at orin [at] berkeley.edu.

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Felipe Gallegos, the Houston narcotics officer who was indicted this week for murdering Dennis Tuttle during a disastrous 2019 drug raid based on a fraudulent search warrant affidavit, says he lawfully shot Tuttle in defense of his colleagues. At a press conference yesterday, Gallegos’ lawyer, Rusty Hardin, described what happened after plainclothes cops broke into Tuttle’s house on January 28, 2019, and immediately used a shotgun to kill his dog. Hardin said Gallegos shot Tuttle, who according to police responded to the violent invasion of his home by grabbing a revolver and firing at the intruders, only after four officers had been wounded.

Hardin made it sound as if the cops were overwhelmed by a barrage of gunfire. But the evidence indicates that nearly all the rounds were fired by the cops, who responded to Tuttle’s defense of his home with overwhelming force, shooting blindly and wildly through the front of the house and into walls, cabinets, and the ceiling.

According to Hardin, Tuttle fired just four rounds, all of which hit his targets, striking two officers in the face, one in the neck, and one in the shoulder. That is some pretty impressive shooting, especially for a 59-year-old disabled Navy veteran who, according to a lawyer representing his wife’s family, had just been awakened from a nap.

“I don’t think he could have shot all of them,” Tuttle’s uncle told KPRC, Houston’s NBC station, in 2019. “You’re going to tell me he is capable of doing what they say he did?” KPRC noted that “Tuttle weighed only 112 pounds,” and “he had his right hand bandaged and his leg in a brace.” Yet Houston Police Chief Art Acevedo insists “there is no evidence of friendly fire in this case.”

Hardin said Gallegos was standing near the front porch, toward “the back of the stack” attacking the house. “He hears one officer yell ‘I’m hit!'” Hardin said, apparently referring to the first cop through the door. According to Acevedo, that officer was struck in the shoulder after he fired shotgun “rounds” at the dog. At that point, Hardin said, Gallegos “hears some gunshots. He then hears some more gunshots, and then officers are starting to back out.”

While the officers are backing out, Hardin said, Officer Cedell Lovings is “shot through the neck, and he falls, and he can’t move. Other officers back out. There’s more shooting.” As the officers try to pull Lovings out, Officer Gerald Goines “is shot in the face to such a degree that…part of his face hangs loose. This is what Officer Gallegos is seeing. There is still an officer inside that has been shot. And then [Gallegos] sees Mr. Tuttle stick his arms out and shoot outside. Another officer is shot in the face. And then ultimately, Officer Gallegos engages in fire with Mr. Tuttle, and Mr. Tuttle is killed.”

When police examined Tuttle’s revolver, Hardin said, they found that he had fired “four shots,” with “two live rounds remaining.” Tuttle therefore could not possibly have fired all of the rounds that Hardin says Gallegos heard.

After the first cop through the door was shot, Acevedo said at a press conference the day after the raid, he “fell on the sofa in the living room,” at which point Tuttle’s 58-year-old wife, Rhogena Nicholas, “reached over the officer and started making a move for his shotgun.” At that point, he said, “other officers in the stack that made entry discharged their firearms, striking that female suspect.”

A forensic examination commissioned by Nicholas’ family contradicted Acevedo’s account, finding that she “was fatally struck by a bullet from a weapon fired outside the Harding Street Home by a person shooting from a position where the shooter could not have seen Ms. Nicholas at the time she was fatally shot.” After the cops killed Nicholas, Acevedo said, “an exchange of gunfire…continued.” That is when Lovings and Goines were shot. “After we had two officers down and another one shot,” Acevedo said, “the remaining officers in the stack started laying down cover fire.”

According to March 19, 2019, autopsy report from the Harris County Institute for Forensic Sciences, Tuttle was hit at least eight times. He suffered gunshot wounds in his head and neck, chest, left shoulder, left buttock (which was struck twice), left thigh, left forearm, left hand, right wrist, and right forearm (two graze wounds). The report says the chest injury “may represent a re-entrance wound of a fragmented bullet associated with one of the gunshot wounds of the upper extremities.” An autopsy report on Nicholas, written the same day, says she was shot in the torso and right thigh.

The Houston Police Department has not publicly said how many rounds the police fired that day. An independent inspection overseen by Michael S. Maloney, a former supervisory special agent with the Naval Criminal Investigative Service, found that several rounds, including the bullet that killed Nicholas, were fired through the exterior wall of the house near the front door. KPRC showed multiple bullet holes in the ceiling and in the kitchen’s walls, cabinets, and stovetop.

For two years, Nicholas’ mother and brother have been trying to find out exactly what happened during the raid, which was not recorded by body cameras. The city has resisted them at every turn. The information sought by Nicholas’ family includes “the bullet count remaining in the weapons used by the HPD and the bullet count in any additional magazines, speed loaders or other devices carried at the time of the incident.” They family also wants “medical and ballistics documentation of the wounds sustained by the HPD personnel,” along with “ballistics materials that may have been recovered during medical intervention and from protective vests worn during the Harding Street Incident.”

Hardin conceded that “it appears [Tuttle and Nicholas] were innocent of drug activity,” since the case against them was fabricated by Goines, who as a result faces multiple state and federal charges, including two counts of felony murder. But once Tuttle “started shooting,” Hardin said, “he was not innocent.”

Hardin argues that Tuttle should have known that the men who invaded his home, killing his dog and his wife, were police officers. While they were not wearing uniforms, he said, “they were dressed in a way” that “anybody would look at them and know they were a police officer.” Hardin also claims witnesses heard the cops shout “Police! Search warrant!” as they entered the house—an announcement that Tuttle easily could have missed in the shock and chaos of the raid. Although it was the cops who broke into the house with no legal justification and it was the cops who fired first, Gallegos’ defense hinges on portraying Tuttle as the aggressor in this situation.

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In July of 2016, Angela Calloway arrived at the Augusta Correctional Center in Craigsville, Virginia, to visit with an inmate, Travis Talbert. She left soon after, having been told to remove her clothes and tampon so prison guards could inspect her vaginal and anal cavities for contraband.

Their search yielded no drugs, and Calloway has not returned to the prison since. 

A federal court ruled last week that the guards involved in that invasive search did not violate the Fourth Amendment, simultaneously upholding a lower court ruling that awarded qualified immunity to the government employees. Calloway will thus not be permitted to sue over the incident.

“[T]he standard under the Fourth Amendment for conducting a strip search of a prison visitor—an exceedingly personal invasion of privacy—is whether prison officials have a reasonable suspicion” to believe such a search is necessary, writes Judge Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit. In Calloway’s case, that included the following: an unidentified inmate said two days prior that Talbert was “moving” contraband; a guard saw Calloway briefly touch her pants; that same guard had twice previously identified contraband smugglers.

After briefly meeting with Talbert in the visitation room, Calloway was removed by the guards and given the news. One officer “indicated that if Calloway did not consent to a strip search, she would not be permitted to come back to the prison,” notes Niemeyer. According to Calloway, she was “bawling crying and didn’t understand what was going on.”

Upon entering the bathroom, Calloway was told to remove her clothes and “lift her arms and breasts, open her mouth, and lean over and shake her hair,” which one guard also ran her hands through to check for drugs. The officers had her “squat and cough” to examine her anal and vaginal cavities; Calloway was menstruating, requiring her to remove her tampon, which the guards also inspected.

In order to successfully overcome a qualified immunity defense, plaintiffs must clear two hurdles: They must prove that their constitutional rights were indeed violated and that such a violation has been “clearly established” in previous case law. In other words, a court may rule that the defendant unequivocally infringed on someone’s civil rights while subsequently taking away a victim’s right to sue—if the alleged misbehavior has not yet been outlined in a prior decision. Two officers in Fresno, California, for example, were afforded qualified immunity after stealing $225,000, because the U.S. Court of Appeals for the Ninth Circuit could not pinpoint a court precedent saying that it is unconstitutional for cops to steal.

But the Fourth Circuit did not clear Calloway on even the first prong, something that Judge James A. Wynn took issue with in a lengthy dissent.

“[V]iewing the evidence in a light most favorable to Ms. Calloway shows that the officers’ lacked justification for initiating the search,” he writes. 

Such a personally humiliating exercise requires more “individualized, particularized information,” he argues. Wynn cites Leverette v. Bell (2001): “‘Courts examining the constitutionality of physically intrusive searches have distinguished between strip searches, visual body cavity searches, and manual body cavity searches,'” he quotes. “Unquestionably, the search of Ms. Calloway’s body—which included a visual inspection of her anal cavity and an order to remove her tampon from her vagina in front of two officers and place her used tampon in an officer’s hand for inspection—was an intrusive search, more like a visual body cavity search than a standard strip search.” The same precedent holds that a prison visitor “does not forfeit all privacy rights” when he or she enters.

That addresses the first qualified immunity prong. What about the second?

“The majority wisely does not address the qualified immunity analysis beyond concluding the search was supported by reasonable suspicion,” Wynn writes. “But even if the majority were to reach qualified immunity, I believe the right of prison visitors to be free from strip searches absent reasonable suspicion was clearly established at the time of this search.” He again cites Leverette, which requires that a visual body cavity search be accompanied by such suspicion.

Calloway brought her claim under the Civil Rights Act of 1871, the landmark law that allows citizens to sue for civil rights violations. The law provides (or is supposed to provide) the American public with appropriate recourse when state actors deny them their rights. 

But the jurisprudence around the legislation, also known as Section 1983, often results in the direct opposite. That’s particularly relevant with the addition qualified immunity—an imaginative doctrine that the Supreme Court concocted out of thin air. Deference goes to the state, not to the victim.

“The question is whether—viewing the evidence in the light most favorable to Ms. Calloway—a reasonable jury could conclude the search was not supported by the individualized, particularized information required by the Fourth Amendment,” Wynn writes. Unfortunately for Calloway, she will not have the privilege to find out.

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President Joe Biden may have said on the campaign trail that Puerto Rico should become a state, but that doesn’t mean he supports laws that make it a viable, economically competitive state if doing so means angering maritime unions.

In an executive order signed Monday and in subsequent comments, Biden made it abundantly clear that he supports the Jones Act, a 1920 federal law that requires that cargo ships traveling between American ports be made in America and owned and crewed by American citizens:

The executive action I am taking also reiterates my strong support for the Jones Act and American vessels, you know, and our ports, especially those important for America’s clean energy future and the development of offshore renewable energy.

The Jones Act is an absolutely terrible law, designed purely for protectionist measures, that shields maritime companies and unions in the United States from competition. The consequence of the Jones Act is that a foreign commerce ship that goes to states like Hawaii or Alaska or to territories like Puerto Rico can stop in only one consecutive American port. It cannot travel to other American ports unless it goes to a foreign port and then returns. A vessel from Japan that’s heading to Los Angeles cannot also stop in Hawaii along the way and engage in commerce, despite the logical economic efficiencies in doing so.

Supporters of the Jones Act insist that these protections are necessary to sustain American jobs and to maintain a viable shipping industry. But those arguments are not supported by the data. In reality, as researchers with the Cato Institute have found, American shipyards have been in a long decline as a result, and most of the ships we build are almost entirely for use in our own waters. It’s cheaper to build large vessels overseas than in America, but since they cannot operate in America due to the Jones Act’s requirement, U.S. shipping companies can’t buy them.

The end result for the shipping industry has been completely backward. America produces fewer ships, by weight, than much smaller countries like Italy and Germany. It also hamstrings American competitiveness in international shipping because it costs more to operate U.S. vessels than their foreign counterparts.

The end result of this restrictive law is that only two percent of U.S. freight is transported by sea, despite our long coasts, our many ports, and island states and territories. It’s in part why we have to depend so much on trucks and trains for transporting goods, even along coastal regions. Cato notes that internal shipping is about half the volume it was in 1960, while rail and truck commerce both saw dramatic increases.

Nowhere are the burdens of the Jones Act more apparent than in places like Hawaii and Puerto Rico. These restrictions distort market forces and significantly drive up the costs to transport goods to these places. The New York Fed calculated that it can cost twice as much to ship something from the American mainland to Puerto Rico as it does to nearby island nations like Jamaica. Puerto Rico actually imports jet fuel from other countries rather than the Gulf Coast because it’s just too expensive to get Jones Act-compliant vessels.

There’s no need to exaggerate the impact of the Jones Act on domestic transport costs because whenever a disaster comes around, like Hurricane Maria in Puerto Rico in 2017, the government will temporarily waive the Jones Act’s requirements so that the costs of recovery aren’t quite as back-breaking.

But even as the Jones Act actually punishes Americans, reducing our economic competitiveness in the world market and driving up the costs we pay for goods, the few people who gain from it have the government’s ear, and, of course, are significant political donors. The citizens of Puerto Rico and Hawaii cannot compete with what the Cato Institute describes:

Among the obstacles to Jones Act reform is the complex web of special interests that benefit from preservation of the status quo. Among Jones Act supporters are U.S. shipbuilders, merchant mariners, various maritime unions, and those who actually believe the law is essential to national security. Meanwhile, there are no fewer than 6 federal agencies and 16 congressional committees with Jones Act enforcement and oversight authorities.

Former South Bend Mayor Pete Buttigieg, Biden’s pick for Secretary of Transportation, has also affirmed that he supports the Jones Act, despite the law’s role in pushing more and more commercial transportation onto highways, making a mockery of the alleged aims of the administration to focus on fighting climate change in its transportation policies.

As long as the Jones Act remains intact, all of this Democratic posturing toward making Puerto Rico a state and giving it more representation is all about entrenching the power of the Democratic Party by adding some seats to Congress that are likely to go to Democrats. By keeping the Jones Act intact, Biden, Buttigieg, and company show very little interest in actually improving the economic livelihoods of people in Puerto Rico.

Look at this tweet from Buttigieg in December:

Black and brown neighborhoods have been disproportionately divided by highway projects or left isolated by the lack of adequate transit and transportation resources.

In the Biden-Harris administration, we will make righting these wrongs an imperative.

— Pete Buttigieg (@PeteButtigieg) December 20, 2020

How does that statement possibly square with support of the Jones Act, which hits the minority populations of Puerto Rico and Hawaii particularly hard and increases our dependency on highways for commercial transportation? It does not.

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