Category: reason

Some Ohio Judges Are Mandating Vaccinations as a Condition of Probation. That’s an Abuse of Power.


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A Cincinnati judge has ordered a man to get a COVID-19 vaccination as condition of probation. Other judges in Ohio are apparently doing the same thing, even though getting vaccinated has nothing to do with preventing criminal behavior.

WCPO reports that when Brandon Rutherford was before Hamilton County Pleas Court Judge Christopher Wagner to be sentenced for a drug conviction, Wagner asked if he had been vaccinated. When the 21-year-old said he hadn’t been planning on getting the shots, Wagner ordered him to do so within two months of his probation release (known as “community control” in Ohio).

Rutherford complained to WCPO that “for him to tell me that I have to get it in order for me to not violate my probation is crazy, because I’m just trying to do what I can to get off this as quickly as possible, like finding a job and everything else, but that little thing can set me back.”

If Rutherford refuses to get vaccinated, his probation could be extended—or he could even be forced into prison. That makes the threat bizarrely ironic, as our jails and prisons have been COVID-19 incubators and a dangerous place to send the unvaccinated.

Ohio’s probation regulations do give judges leeway to “impose any other conditions of release under a community control sanction that the court considers appropriate.” While the rules focus on forbidding probationers from abusing drugs while released, the construction of the law doesn’t confine the judge’s authority to drug use.

Wagner subsequently told The Cincinnati Enquirer that it’s the court’s responsibility to “rehabilitate” a defendant and “protect the community.” He noted that judges have the authority to order drug, alcohol, and mental health treatments as conditions for probation.

But those treatments are at least connected to addressing issues that could contribute to a person’s criminal behavior. Whether a person has been vaccinated against COVID-19 is not an indicator of whether that person will engage in subsequent crimes.

The Cincinnati Enquirer has found some other examples of judges in Ohio either mandating vaccinations or offering reduced probation terms as an incentive to get the shots. A Columbus judge has ordered at least 20 people to get vaccinated as part of probation sentences. He told the Ohio Capitol-Journal that he sees this as “a reasonable condition when we’re telling people to be employed and out in the community.”

It is not a “reasonable condition.” It’s an abuse of judicial authority. Yes, these people should, for their own good and for the good of people around them, get vaccinated against COVID-19. But probabtion isn’t a public health tool; it exists to give a person an opportunity to leave prison early or avoid incarceration entirely by demonstrating that they won’t commit further crimes.

The American probation system has a big problem with what’s known as “technical violations.” These are situations where a person violates the terms of his or her probation but does not actually violate the law. Millions of Americans are under some form of post-release supervision. Every year, about 350,000 of these people are sent back to jail or prison. Some of them, of course, commit new crimes while out on release. But many end up back for things like missing meetings or being late to court dates. In areas where marijuana use has been legalized, judges can nevertheless threaten to revoke people’s probation if they consume it.

Season 3 of the podcast Serial focused on judges’ “discretion” in setting probation rules in Cleveland’s courts. Episode after episode showed how judges use the threat of prison to control people’s lives in condescending and unforgiving ways that have little to do with actually preventing crime.

So it shouldn’t come too much as a surprise that Ohio judges see their vast discretionary powers as an excuse to force people to get vaccinated. But as much as we may want people to get their COVID-19 shots, it is an abuse of power to demand that they do so in order to be free from jail.

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Some Ohio Judges Are Mandating Vaccinations as a Condition of Probation. That’s an Abuse of Power.


judgevaxx_1161x653

A Cincinnati judge has ordered a man to get a COVID-19 vaccination as condition of probation. Other judges in Ohio are apparently doing the same thing, even though getting vaccinated has nothing to do with preventing criminal behavior.

WCPO reports that when Brandon Rutherford was before Hamilton County Pleas Court Judge Christopher Wagner to be sentenced for a drug conviction, Wagner asked if he had been vaccinated. When the 21-year-old said he hadn’t been planning on getting the shots, Wagner ordered him to do so within two months of his probation release (known as “community control” in Ohio).

Rutherford complained to WCPO that “for him to tell me that I have to get it in order for me to not violate my probation is crazy, because I’m just trying to do what I can to get off this as quickly as possible, like finding a job and everything else, but that little thing can set me back.”

If Rutherford refuses to get vaccinated, his probation could be extended—or he could even be forced into prison. That makes the threat bizarrely ironic, as our jails and prisons have been COVID-19 incubators and a dangerous place to send the unvaccinated.

Ohio’s probation regulations do give judges leeway to “impose any other conditions of release under a community control sanction that the court considers appropriate.” While the rules focus on forbidding probationers from abusing drugs while released, the construction of the law doesn’t confine the judge’s authority to drug use.

Wagner subsequently told The Cincinnati Enquirer that it’s the court’s responsibility to “rehabilitate” a defendant and “protect the community.” He noted that judges have the authority to order drug, alcohol, and mental health treatments as conditions for probation.

But those treatments are at least connected to addressing issues that could contribute to a person’s criminal behavior. Whether a person has been vaccinated against COVID-19 is not an indicator of whether that person will engage in subsequent crimes.

The Cincinnati Enquirer has found some other examples of judges in Ohio either mandating vaccinations or offering reduced probation terms as an incentive to get the shots. A Columbus judge has ordered at least 20 people to get vaccinated as part of probation sentences. He told the Ohio Capitol-Journal that he sees this as “a reasonable condition when we’re telling people to be employed and out in the community.”

It is not a “reasonable condition.” It’s an abuse of judicial authority. Yes, these people should, for their own good and for the good of people around them, get vaccinated against COVID-19. But probabtion isn’t a public health tool; it exists to give a person an opportunity to leave prison early or avoid incarceration entirely by demonstrating that they won’t commit further crimes.

The American probation system has a big problem with what’s known as “technical violations.” These are situations where a person violates the terms of his or her probation but does not actually violate the law. Millions of Americans are under some form of post-release supervision. Every year, about 350,000 of these people are sent back to jail or prison. Some of them, of course, commit new crimes while out on release. But many end up back for things like missing meetings or being late to court dates. In areas where marijuana use has been legalized, judges can nevertheless threaten to revoke people’s probation if they consume it.

Season 3 of the podcast Serial focused on judges’ “discretion” in setting probation rules in Cleveland’s courts. Episode after episode showed how judges use the threat of prison to control people’s lives in condescending and unforgiving ways that have little to do with actually preventing crime.

So it shouldn’t come too much as a surprise that Ohio judges see their vast discretionary powers as an excuse to force people to get vaccinated. But as much as we may want people to get their COVID-19 shots, it is an abuse of power to demand that they do so in order to be free from jail.

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Remembering John Rizzo

The CIA’s long-time acting general counsel, John Rizzo, died suddenly earlier this month. Lawfare published my tribute to the man, reproduced below.

John Rizzo and I shared a path that goes back more than 50 years. We had parallel careers in the intelligence community and then in private practice at Steptoe & Johnson, but we first met as undergrads at Brown. John used to joke that this accounted for our good working relationship. The 1960s gave us each a bottomless fund of kompromat.

In fact, the real secret was John’s deep reserve of institutional wisdom disguised as tart irony. In this regard, John’s book, “Company Man,” is as true to the man as any memoir ever written. It captures his refusal to take himself too seriously while taking with utmost seriousness his responsibility to apply the law to intelligence operations. For decades he was the last word on what CIA operatives could and could not do within the law. He knew that these judgments were as much about political prognostication as about applying abstract principles of law, and that critics of the American intelligence agencies would always second-guess his conclusions.

So he clearly foresaw the political winds that would prevent his formal promotion to CIA general counsel, though he had probably been the agency’s de facto top lawyer longer than anyone who actually held the title. He knew that using harsh interrogation techniques would sooner or later make the agency vulnerable to claims of lawlessness and torture. He may not have been convinced that the techniques in question would be crucial to preventing another attack or defeating Al-Qaeda, but he was clear that the final call should not be made by lawyers. He threw everything into the effort to give the nation’s leaders room to make the decision, including, it turned out, his own reputation.

I never heard John complain about the outcome of that chapter in his career. He was disappointed but not surprised by the attacks on the agency or on him. I think he was satisfied that he’d done his best to protect his institution from the kind of scandal that had engulfed it so often in the past. And events have largely proved him right.

He brought to that final chapter the same gentle humor that stirred realism into all his legal advice over the years. He even predicted—accurately—that his critics would use his obituary to get in a few last kicks.

John’s irony was a bit like President Truman’s 1948 “Give ’em hell, Harry” campaign. Truman insisted, “I never did give them hell. I just told the truth, and they thought it was hell.” So it was with John Rizzo. He just told the truth, and everyone treated it as humor.

I’m going to miss that. Just days before his death, John and I were exchanging messages about tricky intelligence law issues. His vision of how politics and law would shape the answer was as clear and humor-tinged as ever. But some hard truths cannot be softened by irony. The death of John’s wife, Sharon, in April of this year was one. If the official cause of his death was a heart attack, the more accurate cause was a broken heart. In the end, even knowing that he’d done his duty as he saw it was not enough to keep him going.

That’s true of us all, of course. The British political leader Enoch Powell once said that all political careers end in defeat. Certainly all public lives end in death. What matters is not the ending but the doing. Judged in that light, John’s is a life to be proud of.

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via IFTTT

Remembering John Rizzo

The CIA’s long-time acting general counsel, John Rizzo, died suddenly earlier this month. Lawfare published my tribute to the man, reproduced below.

John Rizzo and I shared a path that goes back more than 50 years. We had parallel careers in the intelligence community and then in private practice at Steptoe & Johnson, but we first met as undergrads at Brown. John used to joke that this accounted for our good working relationship. The 1960s gave us each a bottomless fund of kompromat.

In fact, the real secret was John’s deep reserve of institutional wisdom disguised as tart irony. In this regard, John’s book, “Company Man,” is as true to the man as any memoir ever written. It captures his refusal to take himself too seriously while taking with utmost seriousness his responsibility to apply the law to intelligence operations. For decades he was the last word on what CIA operatives could and could not do within the law. He knew that these judgments were as much about political prognostication as about applying abstract principles of law, and that critics of the American intelligence agencies would always second-guess his conclusions.

So he clearly foresaw the political winds that would prevent his formal promotion to CIA general counsel, though he had probably been the agency’s de facto top lawyer longer than anyone who actually held the title. He knew that using harsh interrogation techniques would sooner or later make the agency vulnerable to claims of lawlessness and torture. He may not have been convinced that the techniques in question would be crucial to preventing another attack or defeating Al-Qaeda, but he was clear that the final call should not be made by lawyers. He threw everything into the effort to give the nation’s leaders room to make the decision, including, it turned out, his own reputation.

I never heard John complain about the outcome of that chapter in his career. He was disappointed but not surprised by the attacks on the agency or on him. I think he was satisfied that he’d done his best to protect his institution from the kind of scandal that had engulfed it so often in the past. And events have largely proved him right.

He brought to that final chapter the same gentle humor that stirred realism into all his legal advice over the years. He even predicted—accurately—that his critics would use his obituary to get in a few last kicks.

John’s irony was a bit like President Truman’s 1948 “Give ’em hell, Harry” campaign. Truman insisted, “I never did give them hell. I just told the truth, and they thought it was hell.” So it was with John Rizzo. He just told the truth, and everyone treated it as humor.

I’m going to miss that. Just days before his death, John and I were exchanging messages about tricky intelligence law issues. His vision of how politics and law would shape the answer was as clear and humor-tinged as ever. But some hard truths cannot be softened by irony. The death of John’s wife, Sharon, in April of this year was one. If the official cause of his death was a heart attack, the more accurate cause was a broken heart. In the end, even knowing that he’d done his duty as he saw it was not enough to keep him going.

That’s true of us all, of course. The British political leader Enoch Powell once said that all political careers end in defeat. Certainly all public lives end in death. What matters is not the ending but the doing. Judged in that light, John’s is a life to be proud of.

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via IFTTT

RIP Steve Wasby

I was deeply saddened to learn that Professor Steve Wasby passed away earlier this month. Steve was a professor emeritus of political science at the University of Albany. I had never met Steve, but he was a regular reader of the Volokh Conspiracy. Steve subscribed to the Volokh daily email list so would get all of our posts in bulk. Steve would then reply to that email to tell me what I got right and what I got wrong. Steve especially enjoyed my posts about the en banc process. He had studied the Ninth Circuit’s internal proceedings in some depth. I will miss his frequent insights.

Here is a snippet from the obituary:

Wasby, Stephen L. EASTHAM, Mass. Stephen L. Wasby, a resident of Eastham, Mass., died on August 2, 2021. He was a professor emeritus of political science at the University of Albany—SUNY. He was born in Boston on March 16, 1937, the son of Milton Charles Wasby and Pauline Bunshaft Wasby, and grew up in Belmont. He graduated from Belmont High School and received his B.A. from Antioch College, Yellow Springs, Ohio, from which his father had graduated. A “late rebellion” led him to graduate from school with his M.A. (1961) and Ph.D. (1962) in political science from the University of Oregon, rather than a law degree. The law was nonetheless to be the focus of his long, active professional life, during which he held a Russell Sage post-doctoral residency in law and social science at the University of Wisconsin Law School in 1969-1970; taught and wrote about the legal process; and served as the director of the Law and Social Sciences Program at the National Science Foundation in 1978-1979. He began his teaching career at Southeast Missouri State college and Moorhead (Minn.) State College. After serving as an American Political Science Association Congressional fellow, working for Rep. John Moss (D-CA) and Ralph Yarborough (D-TX), he taught at Southern Illinois University at Carbondale from 1966 until 1978. In his 20 years at the University at Albany, from which he retired in 1999, he taught about the judicial process, served formally and informally as prelaw advisor, and instructed graduate students from several departments about writing dissertation proposals.

May his memory be a blessing.

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Afghanistan: A ‘Sudden Fall’ Two Decades in the Making


upiphotostwo816351

Afghan President Mohammad Ashraf Ghani fled the country yesterday as the Taliban entered Kabul and took control of the presidential palace. Images of the Taliban taking the city, scenes of chaos and crowding at the Kabul airport in an attempt to leave, and rumors of burqa shops booming have a lot of Americans pretending like it’s not in spite—or because—of 20 years of U.S. occupation that this “sudden fall” is happening and that somehow, if we just stay a little longer, we can turn the situation around.

The delusional forever-war crowd has been joined by people who just want to slam the Biden administration whenever possible, creating a cacophony of voices advocating for continued U.S. lunacy in Afghanistan.

While acknowledging that “this was a disaster that was produced by four administrations, two Republican (George W. Bush, Donald Trump) and two Democratic (Barack Obama, Joe Biden),” Washington Post columnist Max Boot somehow concludes that “this is on Biden, and it will leave an indelible stain on his presidency.”

But some rational thought has managed to prevail, thankfully.

Secretary of State Antony Blinken told CNN yesterday that “the idea that the status quo could have been maintained by keeping our forces there I think is simply wrong.”

“After 20 years of U.S. effort, the loss of 2,448 soldiers and a trillion spent, Afghanistan was left with a corrupt government and an ineffectual military,” tweeted Sen. Bernie Sanders (I–Vt.). “At this moment, we must do everything we can to evacuate our allies and open our doors to refugees.”

One empty, Respectable Centrist line of commentary has been to say that the U.S. leaving is the right decision but that President Joe Biden—who has pushed back by months the withdrawal deadline former President Donald Trump negotiated—was somehow too hasty. It’s unclear what some folks advocating this sort of mushy middle ground think could have been done to soften the blow of U.S. withdrawal.

Others suggest that the fault lies in waiting too long to evacuate.

“The rapid reconquest of the capital, Kabul, by the Taliban after two decades of a staggeringly expensive, bloody effort to establish a secular government with functioning security forces in Afghanistan is, above all, unutterably tragic,” writes The New York Times editorial board, in a sentiment almost no one can deny. And “the Biden administration was right to bring the war to a close. Yet there was no need for it to end in such chaos, with so little forethought for all those who sacrificed so much in the hopes of a better Afghanistan.”

USA Today contributor Daniel DePetris waves away criticisms that the pro-withdrawal crowd was somehow unaware that what’s now happening would happen or could’ve taken steps to prevent it.

“Those who believe a full and complete U.S. troop withdrawal is the best course of action understood quite well what could happen on the ground once the U.S. military left. Removing the best fighting force on the planet from a civil war will inevitably have some impact on the fighting,” he writes. But “from the standpoint of U.S. national security interests, which party was winning or losing Afghanistan’s civil war at any given time is subsumed by a far more important consideration: after 20 years of backstopping the Afghan government and paying for the Afghan security forces, extending the U.S. troop presence in the country was unlikely to make much of a difference in the war.”

This may be “hard to accept” for many, he adds. But it is the reality.

Perhaps worse than the mush-mouthed centrist critics is the pure political opportunism this has spawned in some corners, with partisans desperate to blame either Biden or Trump for what’s happening now in Afghanistan.

The Republican Party, which bragged about Trump’s negotiations with the Taliban, removed that portion from its website.

“The catastrophe is 100% on @JoeBiden. It would not have happened if Trump had been re-elected,” claimed right-wing radio host Hugh Hewitt.

Biden and Trump themselves have even blamed each other.

Biden “ran out of Afghanistan instead of following the plan our Administration left for him,” alleged Trump. “This is complete failure through weakness, incompetence, and total strategic incoherence.”

Biden said it was Trump leaving the Taliban “in the strongest position militarily since 2001” that was responsible for current events.

But the Biden administration seems to remain committed to withdrawal, and to evacuating at least some Afghan refugees, even as the government sends in more American troops to help with evacuation efforts.

“When I became President, I faced a choice — follow through on the deal, with a brief extension to get our forces and our allies’ forces out safely, or ramp up our presence and send more American troops to fight once again in another country’s civil conflict,” the president said on Saturday, promising not to pass on the war in Afghanistan to a fifth U.S. president.

“One more year, or five more years, of U.S. military presence would not have made a difference if the Afghan military cannot or will not hold its own country. And an endless American presence in the middle of another country’s civil conflict was not acceptable to me,” Biden said.

“Over the next 48 hours, we will have expanded our security presence to nearly 6,000 troops, with a mission focused solely on facilitating” the removal of U.S. personnel and Afghan allies from the area, the Department of State and Department of Defense said in a statement.

“We will accelerate the evacuation of thousands of Afghans eligible for U.S. Special Immigrant Visas, nearly 2,000 of whom have already arrived in the United States over the past two weeks,” it continued. “For all categories, Afghans who have cleared security screening will continue to be transferred directly to the United States.”

FREE MINDS

A history of U.S. sex work prohibition and its harms. University of Montana professor Anya Jabour has a detailed and interesting piece in The Washington Post outlining how “claims of protecting sex workers have long been used to punish them.”

“As citizens and lawmakers ponder competing approaches to the sex trade, focusing on the welfare of sex workers would allow for a rethinking of policies that have done damage for more than a century,” Jabour writes.

FREE MARKETS

Against the Open App Markets Act.

“Ironically, the legislation would damage the value consumers receive from Apple’s and Google’s platforms,” writes the American Enterprise Institute’s Mark Jamison. “The legislation would, among other things, require the companies to permit third parties to install their own app stores, allow users to bypass app stores, and permit third-party payment systems.”

QUICK HITS

• The Texas Supreme Court gave a preliminary green light to Gov. Greg Abbott’s ban on mask mandates in public schools. In an August 15 order, the Court issued a temporary stay order to two counties (Dallas and Bexar) that had planned on defying Abbott’s anti-mask order and requiring students to wear masks.

• Oklahoma is seeking a do-over in a case questioning whether much of the state’s land falls within a Native American reservation.

• U.S. senators are questioning the FBI on the way they used female staff photos as bait in sex trafficking investigations.

• The Department of Homeland Security warns about the terror threat posed by “grievances over public health safety measures and perceived government restrictions.”

• The Biden administration is announcing a large boost to federal food benefits, with average monthly benefits to be raised 27 percent in October.

• People will not let go of the idea of an outdoor motorcycle rally as a COVID-19 superspreader.

• Some 400 counties in America are now minority white.

• Everything you need to know about the California recall initiative.

• Starting last Friday, “Minneapolis Police Officers will no longer be conducting pretextual [traffic] stops for offenses like expired tabs, an item dangling from a mirror, or an expired license,” the city is pledging.

• Business Insider maps out the fastest and slowest growing cities over the past decade.

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via IFTTT

RIP Steve Wasby

I was deeply saddened to learn that Professor Steve Wasby passed away earlier this month. Steve was a professor emeritus of political science at the University of Albany. I had never met Steve, but he was a regular reader of the Volokh Conspiracy. Steve subscribed to the Volokh daily email list so would get all of our posts in bulk. Steve would then reply to that email to tell me what I got right and what I got wrong. Steve especially enjoyed my posts about the en banc process. He had studied the Ninth Circuit’s internal proceedings in some depth. I will miss his frequent insights.

Here is a snippet from the obituary:

Wasby, Stephen L. EASTHAM, Mass. Stephen L. Wasby, a resident of Eastham, Mass., died on August 2, 2021. He was a professor emeritus of political science at the University of Albany—SUNY. He was born in Boston on March 16, 1937, the son of Milton Charles Wasby and Pauline Bunshaft Wasby, and grew up in Belmont. He graduated from Belmont High School and received his B.A. from Antioch College, Yellow Springs, Ohio, from which his father had graduated. A “late rebellion” led him to graduate from school with his M.A. (1961) and Ph.D. (1962) in political science from the University of Oregon, rather than a law degree. The law was nonetheless to be the focus of his long, active professional life, during which he held a Russell Sage post-doctoral residency in law and social science at the University of Wisconsin Law School in 1969-1970; taught and wrote about the legal process; and served as the director of the Law and Social Sciences Program at the National Science Foundation in 1978-1979. He began his teaching career at Southeast Missouri State college and Moorhead (Minn.) State College. After serving as an American Political Science Association Congressional fellow, working for Rep. John Moss (D-CA) and Ralph Yarborough (D-TX), he taught at Southern Illinois University at Carbondale from 1966 until 1978. In his 20 years at the University at Albany, from which he retired in 1999, he taught about the judicial process, served formally and informally as prelaw advisor, and instructed graduate students from several departments about writing dissertation proposals.

May his memory be a blessing.

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via IFTTT

Afghanistan: A ‘Sudden Fall’ Two Decades in the Making


upiphotostwo816351

Afghan President Mohammad Ashraf Ghani fled the country yesterday as the Taliban entered Kabul and took control of the presidential palace. Images of the Taliban taking the city, scenes of chaos and crowding at the Kabul airport in an attempt to leave, and rumors of burqa shops booming have a lot of Americans pretending like it’s not in spite—or because—of 20 years of U.S. occupation that this “sudden fall” is happening and that somehow, if we just stay a little longer, we can turn the situation around.

The delusional forever-war crowd has been joined by people who just want to slam the Biden administration whenever possible, creating a cacophony of voices advocating for continued U.S. lunacy in Afghanistan.

While acknowledging that “this was a disaster that was produced by four administrations, two Republican (George W. Bush, Donald Trump) and two Democratic (Barack Obama, Joe Biden),” Washington Post columnist Max Boot somehow concludes that “this is on Biden, and it will leave an indelible stain on his presidency.”

But some rational thought has managed to prevail, thankfully.

Secretary of State Antony Blinken told CNN yesterday that “the idea that the status quo could have been maintained by keeping our forces there I think is simply wrong.”

“After 20 years of U.S. effort, the loss of 2,448 soldiers and a trillion spent, Afghanistan was left with a corrupt government and an ineffectual military,” tweeted Sen. Bernie Sanders (I–Vt.). “At this moment, we must do everything we can to evacuate our allies and open our doors to refugees.”

One empty, Respectable Centrist line of commentary has been to say that the U.S. leaving is the right decision but that President Joe Biden—who has pushed back by months the withdrawal deadline former President Donald Trump negotiated—was somehow too hasty. It’s unclear what some folks advocating this sort of mushy middle ground think could have been done to soften the blow of U.S. withdrawal.

Others suggest that the fault lies in waiting too long to evacuate.

“The rapid reconquest of the capital, Kabul, by the Taliban after two decades of a staggeringly expensive, bloody effort to establish a secular government with functioning security forces in Afghanistan is, above all, unutterably tragic,” writes The New York Times editorial board, in a sentiment almost no one can deny. And “the Biden administration was right to bring the war to a close. Yet there was no need for it to end in such chaos, with so little forethought for all those who sacrificed so much in the hopes of a better Afghanistan.”

USA Today contributor Daniel DePetris waves away criticisms that the pro-withdrawal crowd was somehow unaware that what’s now happening would happen or could’ve taken steps to prevent it.

“Those who believe a full and complete U.S. troop withdrawal is the best course of action understood quite well what could happen on the ground once the U.S. military left. Removing the best fighting force on the planet from a civil war will inevitably have some impact on the fighting,” he writes. But “from the standpoint of U.S. national security interests, which party was winning or losing Afghanistan’s civil war at any given time is subsumed by a far more important consideration: after 20 years of backstopping the Afghan government and paying for the Afghan security forces, extending the U.S. troop presence in the country was unlikely to make much of a difference in the war.”

This may be “hard to accept” for many, he adds. But it is the reality.

Perhaps worse than the mush-mouthed centrist critics is the pure political opportunism this has spawned in some corners, with partisans desperate to blame either Biden or Trump for what’s happening now in Afghanistan.

The Republican Party, which bragged about Trump’s negotiations with the Taliban, removed that portion from its website.

“The catastrophe is 100% on @JoeBiden. It would not have happened if Trump had been re-elected,” claimed right-wing radio host Hugh Hewitt.

Biden and Trump themselves have even blamed each other.

Biden “ran out of Afghanistan instead of following the plan our Administration left for him,” alleged Trump. “This is complete failure through weakness, incompetence, and total strategic incoherence.”

Biden said it was Trump leaving the Taliban “in the strongest position militarily since 2001” that was responsible for current events.

But the Biden administration seems to remain committed to withdrawal, and to evacuating at least some Afghan refugees, even as the government sends in more American troops to help with evacuation efforts.

“When I became President, I faced a choice — follow through on the deal, with a brief extension to get our forces and our allies’ forces out safely, or ramp up our presence and send more American troops to fight once again in another country’s civil conflict,” the president said on Saturday, promising not to pass on the war in Afghanistan to a fifth U.S. president.

“One more year, or five more years, of U.S. military presence would not have made a difference if the Afghan military cannot or will not hold its own country. And an endless American presence in the middle of another country’s civil conflict was not acceptable to me,” Biden said.

“Over the next 48 hours, we will have expanded our security presence to nearly 6,000 troops, with a mission focused solely on facilitating” the removal of U.S. personnel and Afghan allies from the area, the Department of State and Department of Defense said in a statement.

“We will accelerate the evacuation of thousands of Afghans eligible for U.S. Special Immigrant Visas, nearly 2,000 of whom have already arrived in the United States over the past two weeks,” it continued. “For all categories, Afghans who have cleared security screening will continue to be transferred directly to the United States.”

FREE MINDS

A history of U.S. sex work prohibition and its harms. University of Montana professor Anya Jabour has a detailed and interesting piece in The Washington Post outlining how “claims of protecting sex workers have long been used to punish them.”

“As citizens and lawmakers ponder competing approaches to the sex trade, focusing on the welfare of sex workers would allow for a rethinking of policies that have done damage for more than a century,” Jabour writes.

FREE MARKETS

Against the Open App Markets Act.

“Ironically, the legislation would damage the value consumers receive from Apple’s and Google’s platforms,” writes the American Enterprise Institute’s Mark Jamison. “The legislation would, among other things, require the companies to permit third parties to install their own app stores, allow users to bypass app stores, and permit third-party payment systems.”

QUICK HITS

• The Texas Supreme Court gave a preliminary green light to Gov. Greg Abbott’s ban on mask mandates in public schools. In an August 15 order, the Court issued a temporary stay order to two counties (Dallas and Bexar) that had planned on defying Abbott’s anti-mask order and requiring students to wear masks.

• Oklahoma is seeking a do-over in a case questioning whether much of the state’s land falls within a Native American reservation.

• U.S. senators are questioning the FBI on the way they used female staff photos as bait in sex trafficking investigations.

• The Department of Homeland Security warns about the terror threat posed by “grievances over public health safety measures and perceived government restrictions.”

• The Biden administration is announcing a large boost to federal food benefits, with average monthly benefits to be raised 27 percent in October.

• People will not let go of the idea of an outdoor motorcycle rally as a COVID-19 superspreader.

• Some 400 counties in America are now minority white.

• Everything you need to know about the California recall initiative.

• Starting last Friday, “Minneapolis Police Officers will no longer be conducting pretextual [traffic] stops for offenses like expired tabs, an item dangling from a mirror, or an expired license,” the city is pledging.

• Business Insider maps out the fastest and slowest growing cities over the past decade.

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States Are Finally Starting To Rein in Deceptive Police Interrogation Techniques That Lead to False Confessions


lawrence-montoya

Last month, Illinois became the first state in the U.S. to ban police from lying to minors during interrogations. Oregon followed suit shortly after, and similar legislation has been introduced over the past several legislative sessions in New York.

The new laws and bills are the result of years of mounting evidence and DNA exonerations showing that minors and even adults can be pressured by police into falsely confessing to crimes they didn’t commit.

Specifically, Illinois’ law makes confessions by minors obtained through knowing deception about evidence or leniency inadmissible in court. As states begin to finally reckon with the phenomenon of false confessions, there are plenty of cases that show the disastrous consequences of using deception and other ploys to squeeze confessions out of people.

Take the case of Lawrence Montoya. In 2000, Denver police officers took Montoya, then 14 years old, and his mother into a small interrogation room to question him about the death of Emily Johnson, a 29-year-old schoolteacher who had been found fatally injured in her backyard in the early morning hours of New Year’s Day.

Later that day, Montoya hopped in a car with his cousin and some other teens he didn’t know to go joyriding. It was Johnson’s stolen Lexus. Police later found the Lexus in a ditch, and eventually got an anonymous tip about the driver, who’d been running his mouth about stealing it. The driver gave up the names of all the other passengers, including Montoya’s.

In the interrogation room, Montoya admitted to the detectives that he’d taken a ride in the car, but over the course of the next two hours, he denied ever being at the house 65 times. Eventually the detectives got Montoya’s mother to leave, giving them the opportunity to lean on Montoya harder.

“I wasn’t at that lady’s house, bro,” he insisted at one point, by then crying.

“Lorenzo, your footprint is in that blood,” one detective responded. (Montoya now goes by Lawrence.)

“Who kicked her in the head first, Nick or J.R.?” the other detective cut in.

The officers told him there was a small mountain of evidence against him.

“I tell you Lorenzo, if you were there, you better give it up. We’ve got fingerprints, we’ve got blood prints, we’ve got saliva prints,” one said. “We’ve got everything.”

And: “You don’t have a fuckin’ clue what we can prove. Your ass is hanging out big time.”

Montoya sobbed as the detectives continued to yell and pile questions on him. They were the kind of trick questions meant to get you in trouble, such as, “Was she dead when you left her?”

The boy only had one real escape hatch: keep his mouth shut. But after being worn down by hours of threats, suggestions of leniency, and lies about damning physical evidence, even innocent adults will start to rationalize confessing to a crime they didn’t commit. Maybe the cops really will let you go home if you just give them what they want. Surely it will all get sorted out later, when the police realize they have the wrong person.

“Unfortunately what we know is that it rarely does get sorted out later,” says Rebecca Brown, director of policy at the Innocence Project, a nonprofit that works to overturn wrongful convictions. “In fact, even in the face of exculpatory DNA evidence, fact-finders often will trump that evidence with confession evidence. In other words, they will believe the confession over the biological evidence that points elsewhere.”

According to the Innocence Project, nearly 30 percent of exonerations involve false confessions, a number that would have been dismissed as absurd and unthinkable before the advent of DNA testing.

And so, after a long pause, Montoya said, “Was I outside the house? Yes.”

One of the detectives leaned in and softened his voice, no longer yelling or threatening. “Lorenzo, you’re this close to taking a big load off your shoulders,” he said. “An unbelievable load off your shoulders. So just tell us about it. It’s a simple thing.”

Using the facts that the police officers had already revealed or prodded him toward—making sure to correct himself when detectives indicated he got basic facts about the murder wrong—the 14-year-old spun a flimsy story for them. And with that simple thing, Montoya talked his way into a life sentence.

There was no evidence against him, besides his confession and a jailhouse snitch who testified Montoya had told him about his role in the murder when they were in the same cell. (It was later revealed they were never housed together.) None of the other suspects placed him at the house, and all the forensic evidence cited during his interrogation either never existed or was later linked to the other suspects. Nevertheless, a jury convicted him of first-degree felony murder. Montoya spent 13 years behind bars, much of it in solitary confinement because he was a minor in an adult prison, before prosecutors cut a deal to release him on time served in exchange for his pleading guilty to being an accessory after the fact.

In 2016, Montoya filed a still-ongoing federal lawsuit, arguing that the city of Denver and several Denver police officers violated a panoply of his civil rights. His lawyers, David Fisher and Jane Fisher-Byrialsen, also represented one of the defendants in the infamous Central Park Five case.

Montoya’s case is a textbook example of how coercive interrogation techniques, confirmation bias, and corner cutting can lead to a false confession and a wrongful conviction.

It’s also a textbook example of how police in America have mostly conducted interrogations since the late 1960s. The Supreme Court ruled it was lawful for the police to lie during interrogations in 1969, in Frazier v. Cupp, a case where a man challenged his murder conviction on the grounds that police had claimed that the man’s cousin had already confessed and implicated him, which was not true. The Court ruled that the officers’ lies were, “while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible.”

Threats, bluffs, and other ploys are all part of the police toolbox now in what’s known as the Reid technique, the dominant method for conducting police interrogations for more than half a century. The Reid technique is guilt-presumptive, meaning the primary purpose is to get suspects to implicate themselves or confess.

Illinois and Oregon’s new laws are part of a major shift in our understanding of how psychological manipulation can create false confessions. Brown says about 30 states now require interrogations to be recorded, and Wicklander-Zulawski & Associates, an interrogation consulting firm that also trains police, announced it would stop using the Reid technique in 2017. Washington passed a law earlier this year requiring attorney consultations for minors before police can interrogate them.

“I hope the Illinois law will serve as a model for other states,” Lawrence T. White, professor emeritus of psychology at Beloit College, wrote in an email to Reason. “In the United Kingdom, police cannot lie to suspects under any circumstances. It’s been that way since the PACE (Police and Criminal Evidence) Act was passed in 1984, 37 years ago.”

John E. Reid and Associates, the firm that created and trains investigators in how to use the Reid technique, argues that false confessions mostly arise out of police not following its methods, which prohibit false promises of leniency, excessively long interrogations, and denials of physical necessities like bathroom breaks. It also urges extra care when interviewing minors and those with developmental disabilities.

But these new laws are an acknowledgment that minors are particularly vulnerable to being manipulated by coercive interrogation techniques.

“Juveniles and young adults confess more readily than older adults because young people are less mature, less likely to have prior experience with law enforcement, less likely to understand their Miranda rights, more likely to waive their Miranda rights, more likely to comply with the demands of authority figures, and less able to resist police pressure,” White says. “They also are more likely to focus on immediate rewards and ignore the long-term consequences of their actions.”

Brown says that about 30 percent of DNA exonerees were under the age of 18 when they falsely confessed, and if you raise that age to 25, it’s 49 percent.

Both White and Brown say there’s no reason not to extend similar protections to adults, who can still be swayed by police lies about evidence and other manipulations.

“The false confession cases that have been discovered surely represent the tip of an iceberg because the 375 DNA exoneration cases do not include cases in which a false confession was disproved before trial,” White says. “They also do not include cases that result in guilty pleas (and cannot be appealed), cases in which DNA evidence was not available, cases (such as minor crimes) that do not receive post-conviction scrutiny, and juvenile proceedings that contain confidentiality provisions.”

In July, California resident Roger Wayne Parker filed a civil rights lawsuit against Riverside County and its former district attorney after he was held in jail for nearly four years based on a murder confession that two prosecutors believed was obviously false and coerced. In fact, one of the line prosecutors wrote a memo outlining why the lack of any matching DNA or fingerprint evidence, and the 15-hour interrogation of Parker, who has an IQ below 80, led her to believe that Parker was innocent.

“I was concerned that the ‘confession’ was given so Roger could get out of jail because they had told him self-defense was legal and denial only landed him in jail,” the prosecutor wrote.

Despite this, the D.A. forged ahead, removing both prosecutors from the case and holding Parker in jail for two and a half more years before finally dropping the case.

The other prosecutor is also suing, saying he was told by superiors to withhold DNA evidence pointing to Parker’s innocence, and then forced out of his job after he defied them.

“You would get just as many confessions and convictions if you did it the right way, instead of lying to people, and you would remove one of the things that contributes to so many false confessions,” says Parker’s attorney, Gerald Singleton.

More states could soon join Illinois and Oregon. Brown said the Innocence Project has received inquiries from lawmakers in Connecticut, Delaware, and Washington state, along with the ongoing efforts in New York. New York’s proposed legislation would extend beyond children to bar police from lying to adults during interrogations.

“We expect this to be a pretty hot issue in the upcoming sessions,” Brown says.

It will also likely be contentious in New York, where police unions hold considerable political sway. Paul DiGiacomo, head of the New York Police Department (NYPD) detectives union, defended deceptive practices in a March interview with the New York Daily News.

“What people often label as trickery is a solid tactic…that detectives use to add evidence already collected,” DiGiacomo said. “There’s nobody who wants to see the right person behind bars more than the dedicated detectives working the case.”

As for Montoya, the city of Denver has fought his lawsuit tooth and nail, claiming the officers involved are entitled to qualified immunity, a legal doctrine that shields public officials who violate someone’s constitutional rights, if that right wasn’t “clearly established” at the time of the violation. Federal courts have dismissed or limited much of Montoya’s suit.

In March, though, a federal judge ruled that some of Montoya’s claims could proceed. The judge noted that Montoya’s so-called confession was riddled with contradictory statements and errors about significant facts of the murder, all of which were fed to him by his interrogators, who then wrote a “dishonest” affidavit that excluded exculpatory evidence and twisted his words.

“The thing to me about this case and cases like it is he’s completely innocent,” says Fisher. “He didn’t do anything wrong. He spent his entire childhood in segregation in an adult prison, and rather than trying to make it right and change the way Denver interrogates children, they’re trying to use legal technicalities to get out of the lawsuit while my client suffers and other people get wrongfully convicted. That’s the thing that really bothers me. Unless there’s pressure put on Denver, they’re just going to keep doing what they’re doing. There’s not much incentive to do the right thing unless people know you’re doing the wrong thing.”

The Denver Police Department did not respond to a request for comment for this story.

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via IFTTT

States Are Finally Starting To Rein in Deceptive Police Interrogation Techniques That Lead to False Confessions


lawrence-montoya

Last month, Illinois became the first state in the U.S. to ban police from lying to minors during interrogations. Oregon followed suit shortly after, and similar legislation has been introduced over the past several legislative sessions in New York.

The new laws and bills are the result of years of mounting evidence and DNA exonerations showing that minors and even adults can be pressured by police into falsely confessing to crimes they didn’t commit.

Specifically, Illinois’ law makes confessions by minors obtained through knowing deception about evidence or leniency inadmissible in court. As states begin to finally reckon with the phenomenon of false confessions, there are plenty of cases that show the disastrous consequences of using deception and other ploys to squeeze confessions out of people.

Take the case of Lawrence Montoya. In 2000, Denver police officers took Montoya, then 14 years old, and his mother into a small interrogation room to question him about the death of Emily Johnson, a 29-year-old schoolteacher who had been found fatally injured in her backyard in the early morning hours of New Year’s Day.

Later that day, Montoya hopped in a car with his cousin and some other teens he didn’t know to go joyriding. It was Johnson’s stolen Lexus. Police later found the Lexus in a ditch, and eventually got an anonymous tip about the driver, who’d been running his mouth about stealing it. The driver gave up the names of all the other passengers, including Montoya’s.

In the interrogation room, Montoya admitted to the detectives that he’d taken a ride in the car, but over the course of the next two hours, he denied ever being at the house 65 times. Eventually the detectives got Montoya’s mother to leave, giving them the opportunity to lean on Montoya harder.

“I wasn’t at that lady’s house, bro,” he insisted at one point, by then crying.

“Lorenzo, your footprint is in that blood,” one detective responded. (Montoya now goes by Lawrence.)

“Who kicked her in the head first, Nick or J.R.?” the other detective cut in.

The officers told him there was a small mountain of evidence against him.

“I tell you Lorenzo, if you were there, you better give it up. We’ve got fingerprints, we’ve got blood prints, we’ve got saliva prints,” one said. “We’ve got everything.”

And: “You don’t have a fuckin’ clue what we can prove. Your ass is hanging out big time.”

Montoya sobbed as the detectives continued to yell and pile questions on him. They were the kind of trick questions meant to get you in trouble, such as, “Was she dead when you left her?”

The boy only had one real escape hatch: keep his mouth shut. But after being worn down by hours of threats, suggestions of leniency, and lies about damning physical evidence, even innocent adults will start to rationalize confessing to a crime they didn’t commit. Maybe the cops really will let you go home if you just give them what they want. Surely it will all get sorted out later, when the police realize they have the wrong person.

“Unfortunately what we know is that it rarely does get sorted out later,” says Rebecca Brown, director of policy at the Innocence Project, a nonprofit that works to overturn wrongful convictions. “In fact, even in the face of exculpatory DNA evidence, fact-finders often will trump that evidence with confession evidence. In other words, they will believe the confession over the biological evidence that points elsewhere.”

According to the Innocence Project, nearly 30 percent of exonerations involve false confessions, a number that would have been dismissed as absurd and unthinkable before the advent of DNA testing.

And so, after a long pause, Montoya said, “Was I outside the house? Yes.”

One of the detectives leaned in and softened his voice, no longer yelling or threatening. “Lorenzo, you’re this close to taking a big load off your shoulders,” he said. “An unbelievable load off your shoulders. So just tell us about it. It’s a simple thing.”

Using the facts that the police officers had already revealed or prodded him toward—making sure to correct himself when detectives indicated he got basic facts about the murder wrong—the 14-year-old spun a flimsy story for them. And with that simple thing, Montoya talked his way into a life sentence.

There was no evidence against him, besides his confession and a jailhouse snitch who testified Montoya had told him about his role in the murder when they were in the same cell. (It was later revealed they were never housed together.) None of the other suspects placed him at the house, and all the forensic evidence cited during his interrogation either never existed or was later linked to the other suspects. Nevertheless, a jury convicted him of first-degree felony murder. Montoya spent 13 years behind bars, much of it in solitary confinement because he was a minor in an adult prison, before prosecutors cut a deal to release him on time served in exchange for his pleading guilty to being an accessory after the fact.

In 2016, Montoya filed a still-ongoing federal lawsuit, arguing that the city of Denver and several Denver police officers violated a panoply of his civil rights. His lawyers, David Fisher and Jane Fisher-Byrialsen, also represented one of the defendants in the infamous Central Park Five case.

Montoya’s case is a textbook example of how coercive interrogation techniques, confirmation bias, and corner cutting can lead to a false confession and a wrongful conviction.

It’s also a textbook example of how police in America have mostly conducted interrogations since the late 1960s. The Supreme Court ruled it was lawful for the police to lie during interrogations in 1969, in Frazier v. Cupp, a case where a man challenged his murder conviction on the grounds that police had claimed that the man’s cousin had already confessed and implicated him, which was not true. The Court ruled that the officers’ lies were, “while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible.”

Threats, bluffs, and other ploys are all part of the police toolbox now in what’s known as the Reid technique, the dominant method for conducting police interrogations for more than half a century. The Reid technique is guilt-presumptive, meaning the primary purpose is to get suspects to implicate themselves or confess.

Illinois and Oregon’s new laws are part of a major shift in our understanding of how psychological manipulation can create false confessions. Brown says about 30 states now require interrogations to be recorded, and Wicklander-Zulawski & Associates, an interrogation consulting firm that also trains police, announced it would stop using the Reid technique in 2017. Washington passed a law earlier this year requiring attorney consultations for minors before police can interrogate them.

“I hope the Illinois law will serve as a model for other states,” Lawrence T. White, professor emeritus of psychology at Beloit College, wrote in an email to Reason. “In the United Kingdom, police cannot lie to suspects under any circumstances. It’s been that way since the PACE (Police and Criminal Evidence) Act was passed in 1984, 37 years ago.”

John E. Reid and Associates, the firm that created and trains investigators in how to use the Reid technique, argues that false confessions mostly arise out of police not following its methods, which prohibit false promises of leniency, excessively long interrogations, and denials of physical necessities like bathroom breaks. It also urges extra care when interviewing minors and those with developmental disabilities.

But these new laws are an acknowledgment that minors are particularly vulnerable to being manipulated by coercive interrogation techniques.

“Juveniles and young adults confess more readily than older adults because young people are less mature, less likely to have prior experience with law enforcement, less likely to understand their Miranda rights, more likely to waive their Miranda rights, more likely to comply with the demands of authority figures, and less able to resist police pressure,” White says. “They also are more likely to focus on immediate rewards and ignore the long-term consequences of their actions.”

Brown says that about 30 percent of DNA exonerees were under the age of 18 when they falsely confessed, and if you raise that age to 25, it’s 49 percent.

Both White and Brown say there’s no reason not to extend similar protections to adults, who can still be swayed by police lies about evidence and other manipulations.

“The false confession cases that have been discovered surely represent the tip of an iceberg because the 375 DNA exoneration cases do not include cases in which a false confession was disproved before trial,” White says. “They also do not include cases that result in guilty pleas (and cannot be appealed), cases in which DNA evidence was not available, cases (such as minor crimes) that do not receive post-conviction scrutiny, and juvenile proceedings that contain confidentiality provisions.”

In July, California resident Roger Wayne Parker filed a civil rights lawsuit against Riverside County and its former district attorney after he was held in jail for nearly four years based on a murder confession that two prosecutors believed was obviously false and coerced. In fact, one of the line prosecutors wrote a memo outlining why the lack of any matching DNA or fingerprint evidence, and the 15-hour interrogation of Parker, who has an IQ below 80, led her to believe that Parker was innocent.

“I was concerned that the ‘confession’ was given so Roger could get out of jail because they had told him self-defense was legal and denial only landed him in jail,” the prosecutor wrote.

Despite this, the D.A. forged ahead, removing both prosecutors from the case and holding Parker in jail for two and a half more years before finally dropping the case.

The other prosecutor is also suing, saying he was told by superiors to withhold DNA evidence pointing to Parker’s innocence, and then forced out of his job after he defied them.

“You would get just as many confessions and convictions if you did it the right way, instead of lying to people, and you would remove one of the things that contributes to so many false confessions,” says Parker’s attorney, Gerald Singleton.

More states could soon join Illinois and Oregon. Brown said the Innocence Project has received inquiries from lawmakers in Connecticut, Delaware, and Washington state, along with the ongoing efforts in New York. New York’s proposed legislation would extend beyond children to bar police from lying to adults during interrogations.

“We expect this to be a pretty hot issue in the upcoming sessions,” Brown says.

It will also likely be contentious in New York, where police unions hold considerable political sway. Paul DiGiacomo, head of the New York Police Department (NYPD) detectives union, defended deceptive practices in a March interview with the New York Daily News.

“What people often label as trickery is a solid tactic…that detectives use to add evidence already collected,” DiGiacomo said. “There’s nobody who wants to see the right person behind bars more than the dedicated detectives working the case.”

As for Montoya, the city of Denver has fought his lawsuit tooth and nail, claiming the officers involved are entitled to qualified immunity, a legal doctrine that shields public officials who violate someone’s constitutional rights, if that right wasn’t “clearly established” at the time of the violation. Federal courts have dismissed or limited much of Montoya’s suit.

In March, though, a federal judge ruled that some of Montoya’s claims could proceed. The judge noted that Montoya’s so-called confession was riddled with contradictory statements and errors about significant facts of the murder, all of which were fed to him by his interrogators, who then wrote a “dishonest” affidavit that excluded exculpatory evidence and twisted his words.

“The thing to me about this case and cases like it is he’s completely innocent,” says Fisher. “He didn’t do anything wrong. He spent his entire childhood in segregation in an adult prison, and rather than trying to make it right and change the way Denver interrogates children, they’re trying to use legal technicalities to get out of the lawsuit while my client suffers and other people get wrongfully convicted. That’s the thing that really bothers me. Unless there’s pressure put on Denver, they’re just going to keep doing what they’re doing. There’s not much incentive to do the right thing unless people know you’re doing the wrong thing.”

The Denver Police Department did not respond to a request for comment for this story.

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