A Suffocating Decision…

“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.” Justice Sonya Sotomayor, United States Supreme Court, Dissenting in Utah v. Strieff

Today in Utah v. Strieff, the United States Supreme Court proclaimed that an illegal stop can be legitimized by the discovery of a traffic warrant. Such a decision ignores the countless people killed by random police encounters and has profound implications on civil liberties. At a time when the often played song of “needless deaths linked to needless police encounters” is heard in every ear in America, the Supreme Court just turned up the volume.

In Utah v. Strieff, Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieffhad an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. The State of Utah never contested that the detention was unconstitutional.

The Supreme Court’s decision in Utah v. Strieff forgives unlawful detentions if police can produce a valid warrant or reason for the arrest that resulted from the illegal detention. That means police officers can stop citizens for no valid reason, search the citizens and if they find something illegal in the possession of those citizens and the citizens have a warrant (or other valid reason for the officer to make an arrest); offices can use that information against the citizens. Although such knowledge of an arrest warrant would not have been known to the police but for their engaging in the unconstitutional activity, the Supreme Court is willing to look past this police misconduct with the presence of a warrant. Such a decision undermines the exclusionary rule which has long safe guarded civil liberties and discouraged police misconduct.

The exclusionary rule is a constitutional principle in our country which holds that evidence collected or analyzed in violation of a person’s constitutional rights is normally inadmissible for a criminal prosecution in a court of law. The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures. It is also designed to provide a remedy and strong disincentive, which is short of criminal prosecution, to prosecutors and police who illegally gather evidence in violation of the United States Constitution. Weakening the exclusionary rule dilutes one of the few barriers to police illegally detaining people to conduct unwarranted investigations. In recent years, unwarranted police investigations have had deadly consequences.

police E Davis post

Eric Garner was detained and killed by police officers in New York who arguably had no valid reason for his arrest. John Crawford was shot by police officers in a Walmart Store in Ohio after picking up a BB gun from a store shelf. Ezell Ford was shot in the back during an investigative stop in Los Angeles. Darrin Manning’s unprovoked “stop and frisk” encounter with Philadelphia police officers left him hospitalized with a ruptured testicle. Dante Parker died in Victorville, CA after being tased by police officers when they detained him because he was riding a bicycle and officers had reports of a suspect fleeing a robbery on a bicycle. An elderly man in Ohio was left in need of facial reconstructive surgery after police entered his home without a warrant to sort out a dispute about a trailer. Paul Castaway, a Native American man, was killed by police in Denver while holding a knife to his own neck. Neykeyia Parker was violently dragged out of her car and aggressively arrested in front of her young child for “trespassing” at her own apartment complex in Houston. And there are many more stories of police encounters which resulted in injury and/or death.

Since December 24, 2015, nearly 1000 people have been killed by the police in the United States. And although police advocates claim the frequent use of force is necessary to protect officers from a highly dangerous job, the statistics don’t seem to back this up. A report the Bureau of Labor Statistics released in 2014 show that being a police officer is not even among the country’s 10 most dangerous professions. Indeed, those statistics show that loggers, roofers, pilots and farmers are all more likely to be killed on the job than police. In 2015, only 123 officers were killed in the line of duty nationwide.

Yet, the Supreme Court ignores the danger to citizens by encouraging unwarranted police/citizen encounters. The unconstitutional conduct of the police in Utah v. Strieff was purposeful and deliberate. Officers set out to violate Strieff’s constitutional rights. And as Justice Kagan noted in dissent,

The majority’s misapplication of Brown’s three-part inquiry creates unfortunate incentives for the police—indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Utah v. Strieff, 579 U.S. ____ (2016).

Thanks to the short sightedness of the majority of the justice on the Supreme Court, we will continue to hear the same old songs of police brutality.

For an index and links to the briefs and other important documents in the Utah v Strieff case, please see this link.


Judge Not, Lest Ye Create Stupid Law


There is nothing dumber than outlawing prostitution.

Whether one simply notes that this approach has never worked in all of recorded history, or takes the stance as a libertarian that it is none of the government’s business what consenting adults do in their private lives, or that doing so unfairly punishes the provider and not the user, or that it actually increases human trafficking across the globe as a practical matter, there is simply nothing that is a greater waste of time or human effort. I would note that it is also contrary to the teachings of the New Testament, wherein that scrappy little freedom fighter of forgiveness we all call Jesus took in and cared for a woman named Mary Magdalene who, according to some scholars, followed the world’s oldest profession as a pagan temple priestess prior to meeting Jesus.

So, when we look at how Texas treats this particular crime, it is clearly time to bring our somewhat quirky state into line with practical, compassionate conservative thought. First, as good conservators of our Texas tax dollars, what does making prostitution a crime gain us as a society? Well, as it turns out, not much.

Texas treats this particular crime as one that is enhanced by prior convictions and as a crime of moral turpitude. This has a double-edged effect. As a crime of moral turpitude it means that almost no employer or state licensing agency will permit any person, often women, from getting a job or skill [nurse, for example] that could lead to a job. So, by convicting this person of such a crime, one pretty much guarantees that they will never rise above a minimum wage job. This leads to thousands of unemployable, non-productive citizens who cannot climb up the ladder of decent work or pay taxes or buy a home. Since they often have children to support [that is sadly how many of them got into this line of work to start with, if they were not kidnapped from Mexico or Moldavia or Vietnam] this creates another burden for the system. Worse, we enhance the punishment range with each subsequent offense, and on the third such charge a person can be made a felon. A felon. We make people, mostly women, felons for providing a moment of comfort with the most basic human act to other people, mostly men, who bear little scrutiny for such acts, though recently some District Attorneys, in an “enlightened change of policy,” have been arresting the users of such services and releasing their photos to publicly shame them.

Felons also have a difficult time pursuing work, as our readers may have noticed. There is little one can do to alleviate a past criminal record in this state for these issues, since a bill to permit victims of human trafficking to get pardons died in the legislature this past season. Based upon our new governor’s lack of compassion as shown in the past pardon season, they had little hope anyway. However, to continue to pay tax dollars to jail, feed and care for women who most likely would choose another line of work if possible seems, well, either a foolish waste of tax dollars, or a stupid waste of jail space for actual offenders who rob and shoot people.

crazy horseDo not even get me started on how our police “enforce” our morality laws on prostitutes. These poor dedicated officers must, on taxpayer dime, go and drink at houses of ill repute [massage parlors and strip joints] posing “undercover” as potential clients and force themselves to endure such horrors as lap dances, oiled massages with or without a happy ending, and must do so over…and over. One shudders at the sacrifices they make, sometimes for year after year on the same vice squad. Yes, our boys in blue do indeed suffer in our name, all with taxpayer money. Lord knows I would not want them chasing an armed robber; what good could come from that?

So, we spend taxpayer money to punish one gender for trying to live, even though many are doing this against their will. We criminalize and fine and jail them. We make it impossible for them to leave the life and get different jobs because we give them, not just criminal convictions, but felony and morally dark convictions that stay with them forever. We actually encourage human trafficking when we do this because it is the potential illegal profit that motivates those cold bastards who smuggle these women and often children into our ports. We do this to achieve the public goal of…what, exactly? Eradication? Hmm, that has not worked. Moral order? Any system that punishes the weak and the helpless for an act that men have paid for since the time of the pharaohs serves no moral order, and in fact is against the very teachings of every faith from that of the Prophet to the words of Christianity to the kindness of Buddhism. Nor does it make the act safer when we drive it into the shadows. Making pompous politicians proudly puff and say they are helping bring back family values whilst lying through their teeth? Ahhh, now there is something that we as Texans could hang our collective policy hats on.

I have a friend who wears a bracelet reminding her to be a good Christian, and it asks, in acronym format, “What would Jesus do?” Frankly, I am afraid he would treat most of us like the moneychangers in the temple, kick our ass, and tell us to get back to the drawing board when it comes to the laws on prostitution in this state. It would be the only sensible thing to do.