A public comment period last year saw 175,000 comments submitted on the proposed menthol cigarette ban, with another 71,000 for a similar restriction on cigars. Based on my review, a majority appear to be against the ban. But there’s no indication the FDA will listen. The agency says it’s “committed to completing the rulemaking process as quickly as possible,” but has yet to publish an analysis of scientific data, expert opinions or comments.

If the ban is enacted, make no mistake: Black and Latinx communities will bear the brunt of associated law enforcement.

We should be deeply troubled. Because street-level policing has never been under the control or influence of the FDA.

The FDA, of course, denies this. In repeated announcements of its plan since 2021, it has emphasized that people who smoke menthols—comprising less than 40 percent of the US cigarette market but preferred by 85 percent of Black Americans and 48 percent of Hispanic Americans who smoke—will not be targeted. In proposed rules released last year, the agency stated that “FDA cannot and will not enforce against individual consumers for possession or use of menthol cigarettes. FDA’s enforcement will only address manufacturers, distributors, wholesalers, importers, and retailers.”  

If this is the extent of the assurance we have, we should be deeply troubled. Because street-level policing has never been under the control or influence of the FDA.

When Eric Garner was killed in 2015 by New York City police officers, who put him in a prohibited chokehold for selling untaxed cigarettes on the street, it was a case of local police enforcing a state law. If a menthol ban leads to a large illicit market—and everything we know about drug prohibition says it will—then it’s not the FDA, directly, that we need to worry about. 

All 50 states and many municipalities already treat illegal tobacco sales and distribution as a crime, with 44 classifying it as a felony and 37 carrying mandatory minimum sentences. These laws are designed to protect licensed business interests and governments’ tax revenues. An FDA decision to ban menthols would have a downstream effect on these jurisdictions, creating new avenues for enforcement.  

Do we really think that a market of millions of people who smoke menthols will just disappear, when it is easy to mentholate tobacco?  

We’re talking about a national menthol market worth tens of billions of dollars annually. And evidence suggests that many people who smoke menthols are resistant to non-mentholated substitutes if the option to continue smoking menthols exists. 

We should note, meanwhile, that the FDA has yet to authorize a single menthol vaping product, despite the recommendation of its own scientists—thereby suppressing a non-punitive way of encouraging many people who smoke menthols to switch to a far safer option.

Do we really think that a market of millions of people who smoke menthols will just disappear, when it is easy to mentholate tobacco? Of course not. Demand will persist and huge profits will be on the table.

This is illustrated by the fact that a giant illicit market for cigarettes, which are heavily taxed when sold legally, already exists in the US, and is predicted to grow. Wide-ranging estimates suggest that illicit sales comprise up to 21 percent of the country’s cigarette market. This market is particularly evident along national borders.

It is inevitable, too, that law enforcement in many places would interpret “supplying” menthols in the broadest terms.

Any insistence that enforcement of a menthol ban would only target people who operate illicit menthol markets carries little weight. As our existing illicit drug markets illustrate, the people operating the menthols market at the lower levels most susceptible to enforcement will predominantly be from the communities that market serves—overwhelmingly, in this case, Black and Latinx communities that are already disproportionately policed.

It is inevitable, too, that law enforcement in many places would interpret “supplying” menthols in the broadest terms. Take our experience with drug-induced homicide laws: A huge proportion of these prosecutions have been brought against people who were just using and sharing drugs with the person who died, often friends or family members. “Fewer than half of cases we analyzed involved a traditional buyer/seller relationship,” said Leo Beletsky, a researcher with Health in Justice and Northeastern University.

What are the implications for people who casually offer an illicit menthol cigarette to friends, or give a pack to a family member? After Massachusetts implemented a menthol ban in 2020, its Illegal Tobacco Task Force recommended creating new criminal statutes allowing for prison sentences—including for the mere possession of unstamped cigarettes.

In proposing its ban, the FDA rightly points to severe health disparities faced by Black communities. But a ban will fail to solve this when people are sure to continue smoking menthols or switch to other cigarettes, as we saw in Massachusetts. And it will inflict further harms. 

It is in tobacco harm reduction—not the legality of menthol cigarettes—where the FDA should adopt radical policy change.

The FDA’s promises of limits to enforcement amount to misinformation, when it will have zero ability to oversee the nation’s 18,000 local law enforcement agencies. Its apparent benevolence will be little comfort to people subjected to arrest and prosecution.

Tobacco harm reduction is a strongly evidenced way to reduce health disparities suffered by the predominantly marginalized populations who smoke cigarettes. The FDA, with its remit to regulate all nicotine products, has a powerful role to play here. 

Yet instead of ensuring that a wide range of devices and flavors are available, instead of unequivocally promoting far safer alternatives to smoking as other countries have done, the agency has spread misinformation and seemingly sought to strangle availability.

It is in this area—not the legality of menthol cigarettes—where the FDA should adopt radical policy change.

The scenario seems inevitable: people in communities of color selling illicit menthol cigarettes. Enter the police. History has shown us how this ends.

In pursuing the prohibition of a class of omnipresent, entrenched consumer products, the FDA is going against a national tide to decriminalize and legalize other substances. It is repeating past mistakes that have had devastating consequences, above all for Black and Latinx Americans. 

It is for this reason that organizations like the ACLU, the Drug Policy Alliance, Students for Sensible Drug Policy, the National Black Justice Coalition and my own Law Enforcement Action Partnership, among many others—together with Eric Garner’s mother, Gwendolyn Carr—have questioned or opposed the idea of banning menthols.

The scenario seems inevitable: people in communities of color selling illicit menthol cigarettes, and local businesses and officials objecting. Enter the police. History has shown us how this ends.

Photograph by Wil540 via Wikimedia Commons/Creative Commons 4.0

The Drug Policy Alliance previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug-War Journalism Diversity Fellowship. The Law Enforcement Action Partnership was previously the fiscal sponsor of The Influence Foundation.

The post FDA’s Approaching Menthol Cigarette Ban Would Expand the Drug War appeared first on Filter.

We should wait until his cause of death is confirmed, rather than speculate. Sadly, some people weren’t about to let a chance go begging.

Michael K Williams was a trailblazer w a gigantic heart

But the problem here was —

Pain, Trauma, Voids, all numbed by

*Drugs*

A “safe” place to shoot heroin wouldn’t have saved him, nor would “pure” heroin

He needed the things drugs DON’T give!

WE need to give THOSE out! https://t.co/e1NgmRT8N8

— Kevin Sabet (@KevinSabet) September 7, 2021

This opportunistic tweet from Kevin Sabet—the former White House Office of National Drug Control Policy advisor, founder of Smart Approaches to Marijuana (SAM) and prominent supporter of prohibition—uses a tragic death to spread disinformation. It needs to be refuted.

For a start, there have been zero overdose deaths recorded in around 120 safe consumption sites (SCS) operating across the world, where naloxone and trained staff are always on hand. Further, according to this policy brief by AMFAR (the Foundation for AIDS Research) among much other evidence, SCS resulted in positive health outcomes, do not increase crime, have many beneficial impacts on the lives of people who use drugs—including reductions in disease and risky behaviors, and increased uptake of treatment options—and are demonstrably cost-effective. Research shows unequivocally that SCS save lives.

Sabet’s comment that “‘pure’ heroin” wouldn’t have saved Williams’ life attempts to undermine the efficacy of safe supply. Experts in Switzerland, where a safe supply of heroin has been part of the country’s response to drug-related harms since the 1990s, would disagree. So would those who have seen a safe supply of heroin used for years as an effective intervention in the Netherlands, Germany, Spain, the United Kingdom, and Portugal—and those in Canada, where various forms of safe supply have more recently been used as a key harm reduction intervention.

Sabet admitted that during his time in the Obama administration, he understood the potential impact of restricting opioid prescribing.

Low-barrier access to quality-controlled, pharmaceutical-grade drugs removes the severe dangers posed by an adulterated street supply, where fentanyl and its analogues are widely present even in drugs not sold as opioids. We don’t know whether it would have saved Michael K. Williams’ life; we don’t know the circumstances of his death. At a population level, however, its lifesaving impact is not in doubt.

But Sabet had just recently made his position on safe supply clear.

You want “safe supply”?

The Sacklers are for you then.

— Kevin Sabet (@KevinSabet) September 3, 2021

No one is defending the Sacklers’ marketing practices and dishonesty. But it is a fact that overdose deaths, overwhelmingly involving unregulated opioids, surged after the national crackdown on opioid prescribing.

Notably, as reported in this 2015 Huffington Post piece, Sabet admitted that during his time in the Obama administration, policymakers, including himself, understood the potential impact of restricting prescribing. But they were willing to risk sending people to the illicit market. “We always were concerned about heroin…” Sabet said, “But we weren’t about to let these pill mills flourish in the name of worrying about something that hadn’t happened yet.”

It has happened now.

Opposition to safe supply, like opposition to harm reduction itself, is based largely on a moralistic dislike for a non-judgmental approach that supports the agency of people who use drugs. 

Oh, and yes, I think harm reduction as an endpoint to drug Policy is harmful. We need to offer people recovery. Of course we should also meet ppl where they’re at, but we can’t stop there. That’s all. Have a great night and be kind.

— Kevin Sabet (@KevinSabet) November 5, 2020

According to provisional data from the Centers for Disease Control and Prevention (CDC), over 93,000 people in the United States lost their lives to overdose (mostly drug combinations) in 2020—a record toll in an epidemic that shows no sign of abating. It is almost impossible to comprehend such a scale of loss. Thinking of celebrities, like Prince, Tom Petty or Phillip Seymour Hoffman, can put human faces to the impact. But ever-increasing numbers of us have lost our own loved ones.

Researchers, reformers, politicians and law enforcement professionals in the United States and across the globe have recognized we can no longer rely on our long-established system of criminalization and urging people to abstain from drug use. The required paradigm shift toward compassionate and evidence-based practices is long overdue and extremely urgent. Yet people like Sabet, whose involvement in three White House administrations still lends him credibility in some eyes, continue to push harmfully in the opposite direction.

It cannot be allowed to stand. Reform organizations and advocates, including me, have taken Sabet to task over the years. I have written about the rank hypocrisy of his organization when it comes to cannabis policy and harm reduction, and have critiqued his belief that the racist criminalization of our most vulnerable populations is merely “mean-spirited.”

In the past I believed that Sabet operated from a place of well intentioned ignorance, and that we shared the basic view that our drug policies should improve health and save lives. In private, I have often said that Sabet’s privilege has spared him personal knowledge of how drug users’ lives are impacted by criminalization and policing.

But like many legislators who propose draconian drug laws, Sabet is a callous opportunist. He uses drug deaths as victim porn to induce moral outrage to maintain the status quo. He is prone to gross distortions—as when he testified to the Kentucky legislature regarding medical marijuana that “we see adulterated products in a lot of these black market materials, like fentanyl and others.” (There are no documented instances of overdose from fentanyl-laced cannabis, for good reason.)

And then there was the time he deliberately and falsely implied to his followers that Oregon’s Measure 110 legalized heroin:

We at @DrugPolicyOrg made a quick little explainer about drug decriminalization. Unfortunately it is not legalization nor regulation. (All three of these terms mean different things)

You can watch the video here: https://t.co/onJVqI6nTm https://t.co/racAlYxJnq

— Sheila Vakharia PhD MSW (@MyHarmReduction) November 5, 2020

Despite over a trillion dollars spent on enforcement and interdiction since the inception of the Controlled Substances Act 50 years ago, all of North America is now in the midst of a fourth wave of overdose deaths and the constant reality of a dangerous, poisoned illicit drug supply.

If we are to achieve our goals of saving lives, of ending mass incarceration, and uprooting systemic inequities behind racial, economic and other disparities, we must implement 21st century drug strategies. We already know what many of these are, even if adjustments will be needed as we learn and progress.

Sabet’s drug-free America mantra has been discredited for so long that its repetition can only be seen as cynical.

Sabet and his organization are a barrier. His work increases stigma, provides policymakers with an excuse to drag their feet, and contributes, frankly, to the conditions that have produced drug-related suffering and death on an unprecedented scale.

I’m not certain what he meant when he wrote that Williams “needed the things drugs DON’T give!” Housing, mental health support and health care are among the things that many people who use drugs need. But Sabet’s drug-free America mantra has been discredited for so long that its repetition can only be seen as cynical.

The problems we face are complex and intersecting. I know that decriminalization, syringe programs, safe consumption sites, safe supply and other interventions won’t save every life. But I know they have saved many—and will save many more. I know that they each form a part of what we need.

And if Michael K. Williams’ death were to turn out to be from overdose, we’d know that he, like hundreds of thousands of others, deserved so much better.

Photograph of Michael K. Williams at a Harvard University panel discussion on The Wire by Tim Pierce via Wikimedia Commons/Creative Commons 3.0

The post Weaponizing Michael K. Williams’ Death Against Harm Reduction Is Indefensible appeared first on Filter.

His arrests in the last several years of his life reflect how stigma and a system of punishment lead to detrimental public health outcomes. Billy had been a person in recovery for over 20 years until he lost his job—and, therefore, his health insurance. Losing access to his psychotropic medicines resulted in his returning to self-medicating with methamphetamine and heroin. This perpetuated a vicious cycle of contact with the police and the court system, rather than with the health care system. This ultimately contributed to his death.

My brother was a sensitive soul, a risk-taker and, by our society’s standard, a criminal. He struggled with spells of court-ordered abstinence. His convictions meant that he could not obtain work. Without my home to live in, he would have been on the streets. But towards the end of his life, after many ups and downs, he left my house, because I no longer knew how to help him and he was too ashamed. He sold drugs for a time to sustain himself.

Benjamin Mays once said, “Every man and woman is born into the world to do something unique and something distinctive and if he or she does not do it, it will never be done.”

Billy’s death was an inflection point, changing the trajectory of my life.

Before my brother died, he shared with me that he was born to teach my son about life. Billy took his struggles and showed my son how to live through pain and hardship with dignity, taught him the integral value of faith and hope in our daily existence. Watching my brother with my son taught me the same lessons.

I took the call before dawn on March 18, 2007. Billy had died of a polydrug overdose. His life, quite simply, made me determined to do whatever I could, whatever it took, to improve the conditions of life for people who use drugs.

Many of us in this movement are driven by the unacceptable experiences of our impacted loved ones. Billy’s death was an inflection point, changing the trajectory of my life. It led me from where I was then—a recently retired career police officer—to my current role as the executive director of the Law Enforcement Action Partnership (LEAP), a nonprofit group of serving and retired police, prosecutors, judges and other criminal justice professionals who oppose the failed war on people who use drugs.

My journey has encompassed volunteering at a pop-up syringe program in California, and training people who use drugs and their families on take-home naloxone with the Solace Foundation. I’ve worked on international issues and those closer to home, including systemic racism and harmful policing practices, as well as the progress that we’ve made in the last 10 years. I believe that our drug policies should be grounded in science, compassion and human rights.

I try to apply those values to the reform efforts I see and participate in, and also to difficult questions that surround them. This Filter report on controversies around Vancouver’s decriminalization model prompted me to reflect once more on my brother’s death, and how it should lead me to interpret these issues.

The criticisms of Vancouver’s plan included that people who use drugs were not adequately consulted in its development, whereas police were. Specific concerns included that the model set personal-use thresholds too low to fully protect people who use drugs from criminalization and other harms.

Centering the experiences and voices of people who use drugs in our policymaking is a principle I consider essential, for reasons that are self-evident.

I also understand, very clearly, the harms that policing a public health issue has created. I was part of the system that inflicted them. I experienced how the same system contributed to my brother’s death. I have known and worked with countless others who have been harmed by drug-war policing.

As my work at LEAP illustrates, I simultaneously believe that advocacy from law enforcement can and must play a role in undoing those harms. It often has the ability to reach those parts of electorates and legislatures where other drug policy reform messengers can struggle. Pro-reform law enforcement voices have been critical in winning the consensus necessary to get many reforms adopted that have positively impacted people’s lives—from spreading cannabis legalization to sentencing reform to laws aimed at mitigating the harms of drug-law enforcement at the state level.

This practical facility to achieve real-world wins mirrors my resolve, inspired by Billy, to do whatever it takes.

Both the successful passage of reforms and better advocacy, here and abroad, have forced a recognition within branches of law enforcement that we can’t arrest our way out of a public health crisis. In a recent California Assembly Public Safety hearing on the decriminalization of psychedelics, the lobbyist for the California Narcotics Officers Association (CNOA) stated that the “CNOA is not about incarcerating people for possession of drugs.” This statement—while belated, requiring scrutiny and coming in the wake of far too many harms—would have been impossible 10 years ago. It points to chances for a better future, and reflects the power of simultaneous advocacy in many sectors.

This practical facility to achieve real-world wins that can, right now, make life better for people who use drugs mirrors my resolve, inspired by Billy, to do whatever it takes. Many prominent leaders of the drug policy reform and harm reduction movements share that resolve, working closely with LEAP on the strategies that produce legislative and ballot-measure victories.

To return to the Vancouver example, would it be better if the personal-use thresholds were higher? Yes—and if the model were improved in other ways. It is important that advocates aim high, hold policymakers to account and push for the best possible legislation in every case. Ultimately, if we truly want to treat substance use disorder within a public health framework, we must work together to push national health care officials to establish threshold limits and provide clarity for everyone.

At the same time, would higher thresholds, other adjustments and nationalization make the model perfect? Absolutely not. Because decriminalization, while necessary, does too little to address the toxic unregulated drug supply. Only a safe supply of drugs will adequately protect people who use them from the adulteration and uncertain dosages that drive the large majority of overdose deaths.

Many advocates and experts in Canada, including law enforcement, have been calling for safe supply and implementing it. MySafe Society, which runs an innovative opioid “vending machines” project, recently announced its expansion to three new cities. “The only option is providing a safe supply that isn’t tainted with unknown poisonous substances,” said its founder, Dr. Mark Tyndall.

I completely agree. Yet such programs, like decriminalization, are necessary but not sufficient. We need safe supply not only for opioids, but for other drugs like stimulants. We need it to be widely available for fentanyl. And, rather than restricting it to medicalized models for enlisted patients and people with substance use disorders, we need safe supply to be available to everyone who chooses to use drugs, in a system that no longer criminalizes and punishes.

There can be tensions between the most practical ways of achieving progress and how we might prefer to go about it—and in the necessity of fighting for measures that still leave us far short.

Every single drug policy reform that has ever been enacted can validly be criticized for not going far enough. Marijuana legalization ignores other drugs. Proliferating harm reduction resources doesn’t remedy structural inequalities. Decriminalization models fail to fix the supply. The list goes on.

Yet restrictive medical marijuana legalization did pave the way for adult-use legalization in many places. And earlier legalization models have evolved into ones that begin to address social equity and restitution for drug-war harms. Decriminalization from Portugal to Oregon has opened the door to further conversations and progress by providing real-world examples of the benefits. Vancouver’s decriminalization efforts have inspired other mayors across British Columbia and even in the United States—where Congresswoman Cori Bush recently called for a safe supply of drugs as well. Safe supply models can be expanded, drug-by-drug and to widening swaths of the population.

As advocates, we sometimes have difficult balancing acts to maintain. There can be tensions between the most practical ways of achieving progress and how we might prefer to go about it. There can be great frustration in policymakers’ reluctance to adopt measures shown by the evidence to be urgent and vital—and in the necessity, frequently, of fighting hard for measures that we know will still leave us far short of where we ultimately want to be.

I’ll keep going because I know that even a small step forward is worth it, and that bigger steps often follow. Because I owe it to Billy. Because every drug user’s life is important.

Photograph of a mural in Bristol, England, featuring the author, courtesy of Transform Drug Policy Foundation and Anyone’s Child

LEAP is the former fiscal sponsor of The Influence Foundation, which operates Filter.

The post Like Many Drug Policy Reformers, I’m Driven by Personal Tragedy appeared first on Filter.

As a speaker for the Law Enforcement Action Partnership and its current chair, let me first underline our opposition to police violence and our support for the resulting wave of nonviolent protests across the country.

These reactions to the killings of George Floyd, Breonna Taylor, Ahmaud Arbury and others create opportunities to transform policing. What’s largely missing are the strategic plans that could achieve not only that transformation but one of the entire criminal justice system—by engaging and convincing a majority of the population. Such strategies must anticipate the inevitable blowback from our opponents and those members of the public who support “tough-on-crime” policies—policies that continue to be supported by the average American’s lack of understanding of the causes of crime.

Professor Patrick Sharkey made this point in a Washington Post piece about how defunding the police can work. He shared my concern that without adequately scaling and presenting model defunding programs, any ensuing rise in violence will see “…Americans of all races become more punitive, supporting harsher policing and criminal justice policies. That’s how we got to this point.”

Crime data, often used selectively, can easily be deployed to fuel political rhetoric and maintain the status quo.

Because that’s how the carceral lobby has always successfully driven home its message. They won’t lack opportunity. Just last week, the Washington Post published another article, describing how “crime rose unevenly when stay-at-home order lifted.” Crime data, often used selectively, can easily be deployed to fuel political rhetoric and maintain the status quo.

There are many recent examples of how pro-carceral groups use the fear of crime to push back against reform. Take California, and the backlash against Proposition 47—an initiative, approved by voters in 2014, that was designed to reduce incarceration while reallocating fiscal resources away from police and back into communities to make them safer. Despite the research reflecting that the “backlash is unfounded,” organizations like Keep California Safe have “waged a public campaign against successful criminal reform.” The result was the placement of a ballot initiative this election that would roll back gains made since the passage of Proposition 47.

It’s not just California. You only need to look at the bail reform rollbacks or the fight to shield police disciplinary records in New York to understand the power and influence of the Police Benevolent Association and police unions across the nation.

The Public Opinion Problem

Connected with an understanding of the formidable forces ranged against us, we also need to appreciate the reality of where public opinion currently stands—and the many nuanced factors that inform these views.

Polling conducted since the death of George Floyd on how Americans feel about defunding the police, including Gallup and the latest Monmouth poll on race relations, reflects these complexities. The political data site FiveThirtyEight averaged four national polls conducted in mid-June, at the height of the protests, finding 31 percent in favor of defunding the police and 58 percent opposed.

In addition to asking the question on defunding, the Gallup poll also found:

“When asked whether they want the police to spend more time, the same amount of time or less time than they currently do in their area, most Black Americans—61%—want the police presence to remain the same. This is similar to the 67% of all US adults preferring the status quo, including 71% of White Americans.

Meanwhile, nearly equal proportions of Black Americans say they would like the police to spend more time in their area (20%) as say they’d like them to spend less time there (19%).”

For sure, there are many valid counterpoints to such findings. Public opinion can change—support for defunding, while well short of a majority, is much higher than in the past—and public opposition should not stop our advocating for what’s right. The historical trajectory of public support for marijuana legalization, which rose from 25 percent in the late 1990s to 66 percent today, is a perfect example of how advocacy can change minds.

It may jar with our worldview, but denying that current reality doesn’t help us.

We should work optimistically and think big, but I offer two cautions. First, that public support for reforms can go down as well as up—just as approval for marijuana legalization, having peaked at 28 percent in 1977 (according to Pew), fell off as the War on Drugs kicked in, then took two decades to recover to that level. And second, that we do need to do the hard work of persuading people.

It may jar with our worldview that even communities marginalized by systemic racism and policing practices just want good policing, not police abolition or defunding, but denying that current reality doesn’t help us. Successful advocacy may take many years. If that proves to be the case with the national-scale establishment of non-law enforcement responses to crime, it is imperative that we achieve other things in the meantime.

We can both develop and advocate for sweeping policy changes, while simultaneously recognizing that even incremental reforms have made and can make crucial differences in people’s lives.

Starting With What We Can Win

My own work in harm reduction and drug policy reflects this dynamic tension between how we plan for the ideal future while also addressing immediate needs of our communities by working within the politics of now. Reform is not linear, transforming an entrenched system rooted in punishment will not happen overnight, and we ignore public opinion at our peril.

How can we convince people who may fear the radical transformations we envisage? One important way is by demonstrating to them how unthreatening steps in this direction can be—by designing and implementing policies that scale up non-law enforcement first responder resources while scaling down police budgets and reach. Proven successes of such measures, including enhanced community safety, can become winning arguments as we seek to advance further.

Change of this nature will require deconstructing the current system piece by piece, and starting in the areas where we already have consensus is logical.

We have to take the public with us every step of the way—by seeking inclusive community input on central questions like “What are the Police for?” and by developing consensus on the meaning of public safety and who should be responsible for it. I would suggest framing this by adopting the term “community-led health and safety”—a concept that views crime reduction through a multi-disciplinary lens, centering the interdependence of social, cultural and socioeconomic factors on health and opportunity, as well as crime.

The dismantling and rebuilding of policing and its alternatives around community values and under community leadership—in ways that invest in people, not a system of “punishment and abandonment”—is a clear but complex goal, and one whose outcomes will look different in different contexts. Change of this nature will require deconstructing the current system piece by piece, and starting in the areas where we already have consensus is logical.

One area in which Americans have widely agreed for years is the failure of our drug policy. A 2012 Angus Reid poll found that only “10% of respondents believe that the War on Drugs … has been a success, while 66% deem it  a failure. Majorities of Democrats (63%), Republicans (63%) and Independents (69%) alike agree with the notion that the War on Drugs has not been fruitful.” A 2014 Pew Poll showed that 67 percent favored treatment not jail for heroin and cocaine use. And a 2019 CATO poll reflected that 55 percent favor decriminalizing all drugs.

Defunding the drug war is clearly an action that will help us to dismantle policing practices that subvert our constitutional rights, entrench structural racism, corrupt police themselves and destroy the prospects of establishing community-led health and safety structures.

The LEAD Example

Despite advances like marijuana legalization, sentencing reform, Good Samaritan laws or Oregon’s current ballot measure to decriminalize drug possession, many politicians have been slow to respond to the public will to pull apart the drug war. Organizations like my own, the Drug Policy Alliance*, the National Harm Reduction Coalition and many others have worked to win these victories and speed these changes. But one program that has for years been making a real difference in the lives of people who use drugs, actually preventing them from being criminalized, is Law Enforcement Assisted Diversion (LEAD).

LEAD essentially works by diverting eligible people who come into contact with police to social services, rather than jail and criminal charges. I have often written about LEAD, admiring the way it has worked, since 2011, within the reality of our current structures to help thousands of criminalized people right now, rather than postponing intervention until we can get laws changed.

I have always recognized it as a forward step, rather than an end goal, and one that should keep evolving.

LEAD is embedded within the very system that we want to change—albeit that is exactly where great harms can be prevented—and initially focused on people who use drugs, rather than casting a wider net to include many other marginalized and criminalized groups. For these reasons, I have always recognized it as a forward step, rather than an end goal, and one that should keep evolving.

The architects of LEAD have always recognized this too.

“The LEAD framework is all about reducing harm and shifting the paradigm through which our society has responded to marginalized people and vulnerable populations for decades,” Chief Brendan Cox, director of policing strategies for the LEAD National Support Bureau and a LEAP speaker, told me. “While police were the portal through which enormous numbers were detained and punished, change had to interrupt that flow of people to prisons and courtrooms. Not engaging the police would have abandoned those people.”

The evolution that was always anticipated is happening. “It has never made sense to condition access to high-quality care on police contact, and LEAD has always been structured to reduce police involvement,” Cox said. “LEAD has evolved, through partnership with communities across the country, from pre-booking police diversion, to police-centered pre-arrest social contact referrals, to the newly established Let Everyone Advance with Dignity, which allows community members to make direct referrals without any police involvement or approval. Public safety transformation can not happen overnight, yet through this continued shift, LEAD continues to further de-center the criminal legal system’s role in providing life changing services to those most in need.”

As we continue to reallocate law enforcement resources back to communities and to reduce the gatekeeping role of the police, I would suggest that LEAD—above all in its emerging community referrals-based guise—should eventually replace problematic drug courts, non-coercively offering services to a wide range of people in need.

But above all, were it not for LEAD, countless more lives would have been ruined by convictions, incarceration and criminal records.

So this is where I differ from some, though not all, of the views expressed by Filter’s Helen Redmond in her recent piece about LEAD. She described LEAD advocates’ belief in the “potential for reconciliation and healing in police-community relations” as naive. Yet to pin all our hopes on the rapid implementation of radical structural reform that doesn’t currently enjoy majority public support, passing up chances to reduce the harms of the system in the interim, could be described similarly.

Kevin Sabet, the prominent opponent of marijuana legalization, likes to claim that legalizers promised legalization would end racial disparities in arrests. Only, we never said that. Racial disparities in marijuana arrests have sadly continued in many jurisdictions post-legalization—ending racism, like transforming the criminal justice system, is a long haul, despite its urgency.

But what legalization has done is greatly reduce overall numbers of arrests, removing the harms of criminalization for many people, including, in absolute numbers, people of color. We haven’t reached our destination, but we have advanced.

Similar charges are sometimes leveled at LEAD, including by sources quoted in the Filter piece. It is right to note with concern that LEAD’s exclusion criteria regarding past convictions disproportionately affect people of color because of the systemic racism baked into the criminal justice system and wider society. That must be addressed. But did LEAD ever claim it would end racism in the system? It did not.

Keith Brown, a former LEAD project director, told Filter, “All LEAD can do is mitigate or otherwise reduce the harms of racial disparities.” It was a criticism of the program, but equally reflects some of what it can achieve: nowhere near everything we want, but still a meaningful difference to many people’s lives.

Neither does the existence of LEAD in any way hold back other forms of progress. I would argue the reverse. The program’s role in changing the drug policy conversation—including within the culture of law enforcement, with all the impact that may have on skeptical members of the public—should not be underestimated. Examples include calls and support by law enforcement for the decriminalization of simple possession of drugs here and abroad, the need for a safe drug supply,  safe consumption sites, drug checking services, the discussion of the  failure of drug courts and incarceration, as well as the introduction of social contact referrals, moving people away from the justice system and toward community health and social services.

Helping people now, in whatever ways we can, is just as valid as thinking longer-term.

Many people in the harm reduction community express important concerns about every kind of incremental or imperfect reform. I do, too. It is vital that we air these criticisms, that programs are scrutinized with a view to improvement, and that we never lose sight of our ultimate goals.

But to frame radical and incremental reforms—in the context of public opinion and our hard-earned experience of what it takes to win—as enemies, rather than different points on the spectrum of positive change, is counterproductive and wrong.

Helping people now, in whatever ways we can, is just as valid as thinking longer-term. By viewing these approaches as complementary and mutually compatible, our movement becomes stronger and does more real-world good.

*The Drug Policy Alliance previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship. LEAP was previously the fiscal sponsor of The Influence Foundation.

Image by neo tam from Pixabay

The post Our Movement Is Strongest When We Aim High—And Work in Current Reality appeared first on Filter.

Dysfunctional politics and entrenched interests ensure that the many systemic criminal justices issues we face—including structural and overt racism and the dehumanizing War on Drugs—have no quick fix. Yet if we’re choosing prime targets, one among many must be civil asset forfeiture. The total elimination of this funding mechanism—one that undermines justice, corrupts and militarizes law enforcement, and exacerbates racial and economic inequalities—is essential.

Birthed during the 1980s as a crime-fighting tool supposedly designed to strip financial assets from drug-trafficking organizations, federal civil asset forfeiture (unlike criminal forfeiture) permits law enforcement agencies to seize property from individuals without having to charge them or convict them of a crime. Think about that for a moment. 

Law enforcement agencies are incentivized to pursue seizures, creating a blatant and corrupting conflict of interests.

From 1984, the federal “Equitable Sharing Program” enabled state and local law enforcement agencies to subvert state forfeiture laws that previously required either criminal convictions or a higher burden of proof in order for assets linked to criminal activity to be seized. People impacted thereby have far fewer rights than they would in a criminal court. There is no presumption of innocence, for example, nor any right to counsel.

And like the drug war as a whole, civil asset forfeiture disproportionately targets poor and marginalized people—not the drug kingpin money touted by law enforcement.

A Drug Policy Alliance* report on California forfeiture practices, for example, found that the average seizure in 2013 was a mere $8,542. And an investigation by the Greenville News and Anderson Independent Mail, examining every South Carolina court case involving civil asset forfeiture from 2014 to 2016, found that 65 percent of those subject to the practice were Black men—who comprised only 13 percent of the state’s population.

Among many other examples, a review of the practice in Cook County, Illinois between 2012 and 2017 reflected both of these trends: The median value of cash and property seized was just $1,049, and seizures were “clumped in [Chicago’s] South and West side, overwhelmingly African-American neighborhoods.”

In addition to the inherent, egregious injustices involved, law enforcement agencies are incentivized to pursue seizures, creating a blatant and corrupting conflict of interests. The Equitable Sharing Program allows up to 80 percent of the value of seized assets to be returned to the law enforcement agency that seized them. Prosecutors’ offices can also take a cut in some jurisdictions. So law enforcement agencies can financially reward themselves for unconstitutional policing.

It’s part of a pattern. The federal government has for years manipulated state and local law enforcement policing strategies through a system of fiscal incentives, including categorical and block grants which can only be used for defined purposes that meet federal policy goals. 

The National Scale of This Injustice

The national scale of civil asset forfeiture has been vast. A Washington Post analysis found that police agencies made $2.5 billion in this way between 2008 and 2014. 

And how did they spend it? $177 million contributed to the militarization of policing through purchases of weaponry, while electronic surveillance accounted for another $127 million. These figures are likely undercounts, given the popularity of the category “other,” to which local officials allocated over $1 billion in seized funds.

In 2015, the Washington Post ran an article with the headline, “Law enforcement took more stuff from people then burglars did last year,” analyzing the data to confirm that this practice resembles highway robbery more than any strategy to enhance public safety.

That year, the Institute for Justice (IJ) published its report Policing for Profit: The Abuse of Civil Asset Forfeiture. Between 1997 and 2013, it found, 87 percent of Department of Justice seizures were from civil forfeiture and just 13 percent were criminal in nature. That means only 13 percent of people whose property was seized were ever charged with a crime.

IJ’s 2019 update to that report, headed by Seattle University economist Brian D. Kelly, reflected that increases in “equitable sharing” did not equate either to increasing crime clearance rates, nor “…to a subsequent reduction in drug use.”

“As unemployment goes up in a community … local police are more likely to target those communities for forfeiture.”

But the most striking finding was described by Radley Balko in another article for the Washington Post:

“Kelly did find one significant correlation when it comes to civil asset forfeiture. He found that ‘a 1 percentage point increase in unemployment was associated with an 8.5 percentage point increase in the value of forfeited assets and a 9.5 percentage point increase in the number of assets seized.’ In other words, as unemployment goes up in a community—as more people find hard times and are down on their luck—local police are more likely to target those communities for forfeiture.”

IJ’s latest report, published in July and appropriately titled Jetway Robbery, reflects that the Department of Homeland Security seized $2 billion dollars from travelers in the last two decades—70 percent of the time, just from ordinary travelers failing to fill out documents. IJ notes that only “one in 10 cases involving a reporting violation leads to an arrest, and a second offense…” only occurs 0.3 percent of the time.

IJ and many others conclude that the federal Equitable Sharing Program enables agencies to circumvent more stringent state laws by working with multi-jurisdictional task forces, including federal agencies such as the Drug Enforcement Administration.

Even a 2017 report by the Department of Justice Office of the Inspector General (OIG) found that the DEA’s use of forfeiture interdiction measures from 2007 to 2016 resulted in the seizure of over $3.2 billion, yet 81 percent of all seizures were forfeited administratively without criminal  charges. The OIG noted: “…law enforcement creates the appearance, and risks the reality, that it is more interested in seizing and forfeiting cash than advancing an investigation or prosecution.” 

Scandals and Corruption

Predictably, given the temptations this program dangles in front of law enforcement officers, there have been many examples of federal, state and local agencies monetizing criminal investigations. 

One notorious scandal involved the seizure in December 2011 of an office building worth $1.5 million by the City of Anaheim, California and the DEA—over a $37 medical marijuana transaction. 

The owner of the building leased the property to open a clinic that they believed to be operating within state law. The property owners were never charged with any state or federal crime. While the federal government and the city were eventually forced to give the property back, the case highlighted the total lack of adequate procedural safeguards. 

Meanwhile in Florida, a two-city, 12-strong narcotics task force, posing as money launderers, laundered $71.5 million for drug-trafficking cartels—more than twice the amount it reported taking off the streets. This operation resulted in no local arrests. But it did create a slush fund unencumbered by any legislative oversight. 

Members of the narcotics task force purchased first-class plane tickets, thousand-dollar dinners, five-star hotel stays and submachine guns.

According to a 2015 Miami Herald investigation, when the Glades County Sheriff’s Department joined the task force, other members of the organization were elated by “a chance to bring in more revenue.” 

Items purchased by members of the narcotics task force with this “revenue” included first-class plane tickets, thousand-dollar dinners, five-star hotel stays and submachine guns. In addition, monies were also used to supplement local law enforcement budgets to pay for salaries, in violation of federal guidelines.

These are just two examples of the many abuses of a program that possesses an inherent ability to corrupt law enforcement and prosecutors by giving them a budgetary stake in forfeited property, while victimizing members of the public. 

Even John Yoder, the original architect of the federal Equitable Sharing Program, has stated that policing for profit “has turned into an evil itself, with the corruption it engendered among government and law enforcement coming to clearly outweigh any benefits.”

I can only agree with the Institute for Justice when it posits: 

“The best solution would be to simply abolish civil forfeiture. Short of that, lawmakers should eliminate financial incentives to take property, bolster property rights and due process protections, and demand transparency for forfeiture activity and spending. No one should lose property without being convicted of a crime, and law enforcement agencies should not profit from taking people’s property.”

Reform Developments and Prospects

In the last several years there has been a growing bipartisan consensus, as well as media focus, recognizing the damage caused by the federal Equitable Sharing Program. State-level reforms—such as those achieved in California, New Mexico and Michigan, among 35 states—have introduced greater accountability and eliminated some conflicts of interest, by stipulating, for example, that any assets seized should go into central state or education funds. And a February 2019 Supreme Court Ruling established the right of people whose property is seized to complain that seizures were “excessive.”

None of these reforms have ended civil asset forfeiture, however. And federal legislative efforts to do so have stalled in the past, despite a strong bipartisan congressional coalition, backed by organizations as diverse as the ACLU and the Heritage Foundation.

The “criminal justice” lobby that opposes such reforms has repeatedly demonstrated its power to persuade politicians to stick with the status quo—despite the fact that 84 percent of the public oppose civil asset forfeiture, according to a 2016 Cato Institute/YouGov survey.

The self-entrenched lobbying practices of law enforcement interests will continue to create barriers to meaningful criminal justice reform. And this lobbying contributes to perceptions of a law enforcement system that is accountable neither to legislative oversight nor to the people it is sworn to serve.

But federal efforts continue. In June, the Fifth Amendment Integrity Restoration (FAIR) Act was reintroduced by Senator Rand Paul (S4074), seeking to remove perverse incentives by eliminating the “nonjudicial” civil  forfeiture that requires no filing of criminal charges. Though introduced as a standalone bill, Sen. Paul is willing to “offer it as an amendment” to any police reform bills introduced in the Senate.

“Policing for profit” needs to disappear overnight.

As the board chair of the Law Enforcement Action Partnership (LEAP**), a group of criminal justice professionals opposed to the War on Drugs, and a 20-year veteran of California law enforcement, I am all too aware of the inevitable outcomes of our failed drug strategy.  Our  organization has long recognized the link between the over-funding of the criminal justice system and underfunding of critical community resources—such as drug treatment and harm reduction on demand, behavioral health services and violence disruption programs, all of which are more more efficient and effective in reducing crime than criminalization.

LEAP’s National Policing Recommendations call for the reallocation of fiscal resources that have been used to pursue the drug war and to over-police communities of color. These recommendations recognize that American policing carries a legacy of systemic racism, that police officers guilty of serious misconduct are rarely held accountable, and that the police have been tasked with addressing socio-economic problems that we are ill-equipped to solve.

Righting all of these wrongs will take enormous work in the face of formidable opposition—work to which we are committed.

But “policing for profit” needs to disappear overnight. And developments in our legislatures and courts suggest that this is one achievable immediate goal.

Photo via Pikrepo/Public Domain

* The Drug Policy Alliance has previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.

** LEAP is the former fiscal sponsor of The Influence Foundation.

The post End Civil Asset Forfeiture to Defund the Drug War appeared first on Filter.

Watching the video that was leaked and widely shared across social media platforms on May 5—almost two-and-a half months after Arbery was killed without an arrest—and reading the accounts sickened me.

According to the Georgia Bureau of Investigation and Arbery’s family attorney, the 25-year-old man was out for a run during broad daylight. He stopped at an open construction site, walked inside and looked, exited with nothing in his hands and continued to jog.

The video shows that he neither took anything, nor defaced or vandalized the property. He was not instructed to leave. It’s clear that his actions did not violate the Georgia Penal Code—not that his doing so would in any way have justified what happened.

After Arbery had left the construction site and continued with his run, former police officer and district attorney investigator Gregory McMichael and his son, Travis, retrieved guns, called the police and then chased their victim down. They reportedly told police that they did this because they “thought the man matched someone caught on a security camera committing a break-in in the neighborhood.”

Arbery was pursued, confronted and gunned down—Travis McMichael fired the shots, hitting Arbery three times, including twice in the chest—while trying to defend himself from his assailants. Even Molly Davis, writing for the ultra-conservative Federalist, called Arbery’s killing a “21st-century lynching.”

This case appears at every turn to be reflective of the structural racism in the system.

As horrific as Arbery’s death is, the initial law enforcement response to it demonstrated how systemic racism runs far deeper than the actions of two individuals. The handling of this case begs for a far-reaching investigation. It is filled with ethical conflicts, and appears at every turn to be institutionally biased and reflective of the structural racism in the system.

Glynn County Commissioner Murphy stated, according to a stunning report in the Atlanta Journal Constitution (AJC), that he was told by the Glynn County Police: “…officers at the scene concluded that they had probable cause to make arrests and contacted [local District Attorney Jackie Johnson’s] office to inform the prosecutor of their decision” on the day of the incident.

Johnson’s office, according to Murphy, told the cops not to make the arrests. And a second county commissioner also told the AJC that Johnson “shut them down to protect her friend McMichael.”

Gregory McMichael worked at the Glynn County Police Department, which investigated the shooting, from 1982-89. He then worked as an investigator for the Glynn County District Attorney’s Office for 24 years, retiring last year.

On May 8, however, DA Johnson blamed the Glynn County Police Department for the breakdown in the criminal investigation, denying the two county commissioners’ claims that her office told investigators not to make an arrest, reported All On Georgia. According to that report, Johson’s assertion was also “in contradiction to at least three Glynn County Police Department employees privy to the conversation.”

We have too often ignored prosecutorial misconduct, which is enabled and exacerbated by the near-limitless power that prosecutors wield in our system. Prosecutors are supposed to represent society and seek the truth. The mockery of these obligations that DA Johnson’s alleged actions represent undermines the very legitimacy of the criminal justice system. But it wasn’t only her.

On February 23, shortly after the shooting, Johnson had recused herself, citing a conflict of interest. The investigation was then assigned by the Georgia Attorney General to District Attorney George Barnhill of neighboring Ware County, who also recused himself from the case. This was at the request of Arbery’s mother, who noted that Barnhill’s son works for the Brunswick County District Attorney Office, for which Gregory McMichael had previously worked—and where, it turned out, McMichael was once involved in an as-yet-unspecified prosecution of Arbery.

Barnhill’s recusal letter violated, in my opinion, the ethical standards to which all prosecutors are subject.

But in Barnhill’s April 2 recusal letter, sent to the Glynn County Police, he stated that he did not see any grounds for arresting the McMichaels. He described their actions in a manner that contradicted both the video, which was available to him to view, and the subsequent investigation by the Georgia Bureau of Investigation (GBI).

“It appears Travis McMichael, Greg McMichael and Bryan William were following, in ‘hot pursuit,’ a burglary suspect, with solid first hand probable cause, in their neighborhood, and asking/telling him to stop,” Barnhill wrote. “It appears their intent was to stop and hold this criminal suspect until law enforcement arrived. Under Georgia law this is perfectly legal.”

Barnhill’s interpretation of the event would lead you to believe that the suspects observed a residential burglary in progress. That was not the case. According to the Glynn County Police, there had been no reported residential burglaries in this neighborhood from January 1 through February 23, when Arbery was killed, contradicting the suspects’ statements. Arbery was stereotyped and racially profiled—an all-too-common occurrence, as research has noted.

Barnhill’s recusal letter violated, in my opinion, the ethical standards to which all prosecutors are subject. On May 9, the National District Attorney’s Association (NDAA) issued a press release on Barnhill’s actions:

“In this case, District Attorney Barnhill determined he had a conflict in pursuing the investigation into Mr. Arbery’s death. At that point, his involvement should have ceased. Instead, District Attorney Barnhill wrote a letter, which has now become public, in which he offered a gratuitous and detailed opinion regarding the hurdles to any prosecution of the individuals involved in the shooting of Mr. Arbery.”

I can only hope that the NDAA will also issue a similar statement on the actions of DA Johnson, and that both DAs face a disciplinary Bar investigation for their inaction and obstruction. 

But the shocking failures of the system don’t end there. Why, after Barnwhill’s recusal, was there a month-long gap in assigning a new district attorney to oversee the investigation? 

The damning video that would disgust the whole country was available to Georgia law enforcement throughout this period. But it wasn’t until May 5, when the video was released—and a nationwide outcry from civil justice organizations, state and federal legislators, celebrities and many others built to a point where it could not be ignored—that any action was taken.

In a twist of irony, the attorney who released the video said he did so because he thought it would exonerate his friends the McMichaels. Instead, Liberty County DA Tom Durden responded by requesting assistance from the GBI, and 36 hours later Gregory and Travis McMichael were booked and held on felony murder and aggravated assault charges.

“Probable cause was clear to our agents pretty quickly,” GBI Director Vic Reynolds said. “I’m very comfortable in telling you there’s more than sufficient probable cause in charging felony murder.”

The GBI’s investigation continues, and might also bring charges against the neighbor who filmed the killing. The US Justice Department is currently “assessing all of the evidence” to determine whether to bring federal hate charges.

Structural Racism and Its Deniers

I have previously written about how the relationship between politics and law enforcement has become a vicious circle, perpetuating the demonization of people of color while fostering police identity politics. The resulting culture sustains the twin myths of white innocence and of black criminality, and has contributed to many deaths beyond that of Ahmaud Arbery.

I discussed the implications of this case with Professor Jody Armour, Roy P. Crocker Professor of Law at the University of Southern California, and a fellow board member of the Law Enforcement Action Partnership.*

“When two prosecutors saw nothing illegal on the video … they officially demonstrated the lack of concern for black citizens that gave rise to the movement for black lives.”

“The core concern of the #BlackLivesMatter movement from its very inception has been the indifference or outright hostility of state actors—especially police and prosecutors—to the value of black lives,” he commented. “Unlike private individuals, when state actors attack and disrespect citizens, they implicate all Americans because they act in our name and on our behalf.”

“Accordingly, when two prosecutors saw nothing illegal on a video in which an unarmed Ahmaud Arbery was hunted and shotgunned to death, they officially demonstrated the lack of care and concern for black citizens that gave rise to the movement for black lives,” he continued, “and that continues to undermine trust and confidence in law enforcement by socially marginalized communities across this nation.”

The racist double standard is illustrated if we juxtapose the Arbery case with the recent arrest of former Lakers basketball player Shannon Brown. It took 74 days for the McMichaels to be arrested. Shannon Brown was arrested immediately—after firing a rifle, hitting no one, when two strangers walked onto his property in Georgia earlier this month.

Georgia:

Where a warning shot for a home invader gets you swiftly arrested, but stalking and murdering a jogger keeps you free for months. https://t.co/arn21Ndby9

— Phillip Atiba Goff (@DrPhilGoff) May 8, 2020

In the last few days, the white-washing of the Arbery case has begun. Phillip Bump of the Washington Post analyzed a recent confounding statement made by a Fox & Friends host during an interview with Donald Trump.

“In the past, when there’s been a black-white shooting, a lot of times things get—spiral out of  control,” Brian Kilmeade asked Trump. “What can you do to make sure justice is done and this doesn’t end up in a racial situation?”

Their total denial of the existence and impact of structural racism is far from unique.

Post columnist George Conway’s tweet perfectly sums up the doublethink in that question and in many Americans’ minds: 

Fox & Friends host concerned that murder of unarmed black jogger with shotgun in southeast Georgia by white former cop and son in pickup truck who were then let go by former cop’s ex-colleagues despite having victim’s blood on hands might be turned into one of them racial things https://t.co/alKmJfsPq4

— George Conway, Noble Committee Chair (@gtconway3d) May 9, 2020

Those Americans include pro-Trump pundits like Tomi Lahren, who once compared #BlackLivesMatter to the KKK, and Candace Owens, who believes that racism was eliminated in America, infers that Arbery wasn’t  a jogger because he was wearing khaki shorts, and holds that the media is pushing “a race-baiting LIE.” Their total denial of the existence and impact of structural racism in our society and criminal justice system is far from unique.

Any incident that ends in a death is tragic and I hope both families get the justice they deserve but to keep up with this “he was just out jogging” narrative is just as disingenuous as the bogus “hands up, don’t shoot” lie the media pushed for years. Enough. #AhmaudArbery

— Tomi Lahren (@TomiLahren) May 10, 2020

In my law enforcement career there were countless calls when I saw the full force of Americans’ xenophobia and racism. I saw how privileged white communities othered people of color, for participating in everyday activities that white Americans enjoy without fear of having the police called on them—or of being subjected to an illegal citizen’s arrest resulting in death.

Ahmaud Arbery was killed without cause for exercising his constitutional right to walk or jog freely in our society. No amount of  demonizing him by pundits will ever change that fact. 

A Far-Reaching Investigation and Future Measures

On May 10, the Georgia Attorney General requested that the Federal Department of Justice initiate an investigation into the handling of the Arbery case.

Although this is a critical first step, it is important that we do not view this case primarily as one of “bad apples” spoiling a functional system. In addition to examining individuals’ conduct, the investigation must analyze what allowed this to happen at a systemic level.

In 2014 The National Institution of Justice (NIJ) published a monograph titled “Mending Justice: Sentinel Events Reviews.”

As a nation we have the ability to identify criminal justice wrongdoing … But our political leaders lack the will.

NIJ recognized that unlike industries such as transportation, medicine or other “high-risk enterprises,” the criminal justice system had no forward-facing oversight (such as the National Transportation and Safety Board) to investigate errors of justice in order to prevent them occurring in the future.

The NIJ defined the “criminal justice sentinel events” that should trigger such investigations as follows:

What would constitute a sentinel event in criminal justice? Wrongful convictions, certainly, but also “near miss” acquittals and dismissals of cases that at earlier points seemed solid; cold cases that stayed cold too long; “wrongful releases” of dangerous of factually guilty criminals or of vulnerable mentally handicapped arrestees, and failures to prevent domestic violence within at-risk families.

Sentinel events can include episodes that are “within policy” but disastrous in terms of community relations … whether or not everyone agrees that the event should be classified as an “error.” Even the lengthy and expensive incarceration of a harmless geriatric prisoner, where the excessive cost consitutes the harm, could be examined as a sentinel event.

In fact, anything that stakeholders can agree should not happen again could be considered a sentinel event.

This monograph, in my opinion, has not received the attention from criminal justice reformers that it should. Errors, malicious acts and resulting injustices in the criminal justice system impact every member of society, though in very unequal ways. The list of harms caused is endless. But in this case, Ahmaud Arbery’s family might never have seen his killers made accountable, were it not for the inadvertent release of the video showing his death.

As a nation we have the ability to identify criminal justice wrongdoing. Clear measures could include the creation of federal, state or local sentinel event teams specifically to identify, investigate and analyze systemic injustices, in order to prevent their reoccurrence.

But our political leaders lack the will to do this. And if the death of Ahmaud Arbery doesn’t shame them into action, what would it take?

*LEAP is the fiscal sponsor of The Influence Foundation, which operates Filter.

Top photo of a protest in Melbourne, Australia by John Englart via Flickr/Creative Commons 2.0.

The post Ahmaud Arbery Case: Deep Investigation Must Take On Structural Racism  appeared first on Filter.

But the relationship between policing and politics is a vicious circle. Law enforcement professionals have failed to recognize how their support of drug criminalization for purely ideological reasons encourages politicians to cling to an approach to a public health issue with no foundation in science. 

Worse, law enforcement has ignored the impact of the drug war’s in-built racism on communities of color. The resulting poisoning of police-community relations polarizes views in line with our national politics—with calls for police abolition on the one hand and police identity politics, attacking any attempts at reform, on the other.

Many recent events offer little cause for hope. There was nothing surprising about Attorney General Barr’s December 3 statement to a law enforcement audience that “if communities do not show more respect to law enforcement officers, they may lose police protection.”  

His words were grounded in the historical demonization of communities of color by politicians, police and the media to shift public opinion to the right. Barr follows Nixon and many other state actors who have constructed emotional arguments to create a politically useful fear of crime and lawlessness in our society.

This represented a concerted police union effort to undermine the significant criminal justice reforms made by a new wave of elected district attorneys.

Days later, police union rhetoric reared its head when President Trump met with Philadelphia Fraternal Order of Police (FOP) President John McNesby—a man who once called Black Lives Matter activists “a pack of wild animals.”

This meeting, which involved the presidents of multiple FOP chapters, represented a concerted FOP effort to undermine the significant criminal justice reforms made by a new wave of elected district attorneys in the last several years, and the latest salvo by police unions against “progressive” DAs and reform activists.

“DAs … are single-handedly ruining cities, major cities. Philadelphia obviously is number one,” said McNesby, singling out reform-minded DA Larry Krasner.

Deadly Costs, Hopeful Signs

But if communities are being “ruined,” what’s really responsible?

One new study emphasizes how racism, linked with prohibition and lack of economic opportunity, has contributed to violence in the Puerto Rican community in Kensington, Philadelphia. Racism has been entrenched in drug enforcement since prohibition began, as a recent Statesman Journal report on disparities in crack and heroin policing and sentencing aptly illustrated. And my colleague Neil Woods has written for Filter (with J.S. Rafaeli) about how prohibition produces violence. 

The view of drug use as a moral failing has long pervaded and steered the criminal justice system, ensuring harsh punishments for individuals and communities. The emphasis on using the criminal justice system to “treat” a public health issue additionally diverts critical funding needed for evidence-based substance use disorder interventions. 

The intended deterrence of drug use through swift, severe and certain punishment has resulted in damage to public health, and the continuation of policing strategies that reinforce structural racism. It has undermined American civil liberties, together with the very legitimacy of law enforcement and the criminal justice system and their relationships with the communities they are meant to serve. 

Our drug policy contributes to racism, violence, human rights abuses, addiction, disease and death.

In return, these policies do virtually nothing to prevent drugs from entering the US (many, in any case, originate here), nor to mitigate problematic drug use and related harms. Rather, they produce harms.

As organizations like the Law Enforcement Action Partnership (for which I am the board chair) have long stated, our drug policy contributes to racism, violence, human rights abuses, addiction, disease and death.

The US public increasingly knows this. Even years ago, polls by Pew and Rasmussen showed declining public support for our drug policies and widespread belief that the drug war is a failure. Yet majority opinion holds depressingly little sway over criminal justice professionals’ prevailing belief that drug use is a morally flawed choice. 

At the same time, for all the obstacles and reactionary elements that remain, there has been a tremendous shift among many criminal justice professionals in the last decade in recognizing that criminalization has not solved America’s drug-related problems. 

Just 10 years ago, this would have been unthinkable.

Many examples of reform are incomplete and imperfect, yet still represent progress. Evidence includes that crop of reform DAs, a small down-tick in nationwide incarceration, diversion programs, a nationwide law enforcement call for MAT in jails, many incremental legislative reforms, and the growth of LEAP and other reform groups.

Law enforcement professionals here and abroad—not enough, but a growing minority—can now be found calling for safe consumption sites, for syringe exchange programs, for naloxone distribution to both the public and the police, for access to methadone and suboxone, for pre-booking diversion programs like LEAD, for drug treatment on demand, for Good Samaritan laws, for drug checking services, for a safe drug supply and for the decriminalization of all drugs.  

Just 10 years ago, this would have been unthinkable. And while most colleagues in the drug policy reform movement share my frustration that the pace of change isn’t faster—and many see the pursuit of more radical societal reforms as a better avenue than reforming criminal justice from within—these changes have made crucial differences to people’s lives. They will make many more if momentum continues. 

Racism and a New Willingness to Speak Out

Where we continue to fail, however, is in acknowledging the central role of race, class and other socioeconomic and identity factors in the development and implementation of disastrous, targeted policies. 

Government institutions are far too slow in addressing the systemic maintenance and exacerbation of inequalities. The criminal justice field urgently needs to assess how race influences both individual and systemic decision-making, and act on those findings. Law enforcement must adopt strategies to end race-disparate outcomes⁠—and be subject to close, independent scrutiny of the results.

The failure to progress in these areas is informed by the attitudes of many politicians. One extreme, but far from unique, example came in 2016, when Paul LePage, then the governor of Maine, sickeningly harkened back to the fear of miscegenation. In a town hall meeting, he stated that “drug traffickers from Connecticut and New York come to Maine and impregnate girls who are young and white before leaving the state.” And you could list many dog-whistle or outright racist statements from officials and politicians associated with the current administration.

Racism has always been present in American politics, and particularly around criminal justice subjects. What is newer, however, is the willingness of some law enforcement leaders to push back publicly. Innovative police leaders quickly countered Attorney General Barr’s recent statement. Chris Magnus, the police chief of Tucson, Arizona, was one of them:

If police fail their communities by misusing their power & authority, community members have every right to demand reform. We work for the public & must earn their trust. Nothing could be more consistent with democracy than that! Good cops understand this.https://t.co/HUZiP4BUjd

— Chris Magnus (@ChiefCMagnus) December 4, 2019

Similarly, when Trump told law enforcement in 2017 “don’t be too nice” with suspects, a barrage of criticism was leveled at him by police leaders across the country.

This could ultimately break the destructive feedback loop of political and law enforcement rhetoric. But far too many law enforcement professionals continue to minimize structural racism and racial coding.

A critical motivation behind this emerging attitude is the recognition that statements like these perpetuate hostile relationships between communities and the police, and that “today’s crime policies, which too often rely only on jail and prison, are simply ineffective in preserving public safety,” as Law Enforcement Leaders, a group that advocates against mass incarceration, has noted. 

Yet despite this evolution⁠—one that could ultimately break the destructive feedback loop of political and law enforcement rhetoric⁠—far too many law enforcement professionals continue to minimize the structural racism and racial coding in the enforcement of our drug laws. In doing so, they continue to support a war not on drugs, but on friends, family members and the most vulnerable people in America.

A study just released by the Council on Criminal Justice showed that racial disparities have narrowed over the past 16 years. Glaring inequalities continue—and any disparity is too big. 

But it is notable that changes to drug policy and enforcement (when we know that levels of drug use have not significantly shifted) have been critical to this relative progress. “The divide in state imprisonment rates dropped for all major crimes but was most pronounced for drug offenses—a key driving factor for the racial shift,” noted the Associated Press. 

Knowing this should inspire all of us who work to reform drug policy and the criminal justice system to redouble our efforts.

Photo of Attorney General Barr with President Trump via Wikimedia Commons

The post Political Rhetoric and Policing: Can We Break the Vicious Circle? appeared first on Filter.

As the Times Union noted, New York law requires social welfare organizations that engage in lobbying to disclose their funding sources. A “substantial likelihood” of harm to publicly revealed donors is the only permitted exemption. New York’s Joint Commission on Public Ethics is due to hear SAM’s disclosure exemption request on September 10. [Update, September 10: The commission denied SAM’s request, although SAM has the right to appeal and is “exploring its options,” according to Marijuana Moment.]

According to state disclosure records, SAM spent $84,795 on lobbying against the sensible regulation of cannabis in New York in the first half of 2019.

SAM’s request for donor anonymity claims “that it doesn’t receive funding from “faceless deep-pocketed corporate interests” in the “alcohol, tobacco, opioid, or the prison industries…”

Yet the organization’s attempt to avoid transparency is ironic, when SAM has just announced its intention to release a report on industry donations to the marijuana legalization movement.

And my research indicates that SAM has received funding from “faceless, deep-pocketed” government sources with vested interests in propping up the system of prohibition that is failing at every level.

For years, Kevin Sabet has publicly denied that SAM has received funding from law enforcement or government sources. SAM’s website states that its funding is from family foundations, grassroots supporters and conference speaking fees—but not the “nefarious private prison industry or pharmaceutical industry” as has been widely alleged. Yet SAM fails to mention its ties to taxpayer dollars.

In 2016, while working on California’s legalization initiative, I discovered that SAM has received large amounts of money from Californians for Drug Free Youth. CADFY is a San Diego-based nonprofit that has acted as a financial pass-through entity managing the federal grant for the San Diego Imperial High Intensity Drug Trafficking Area program.

HIDTA, or High Intensity Drug Trafficking Area programs, are law enforcement programs financed by the US Office of National Drug Control Policy (ONDCP). CADFY has funnelled tens of millions of taxpayer dollars from ONDCP for San Diego’s HIDTA task force.

CADFY and SAM are closely connected in other ways besides funding. They share speakers and conference appearances, and have collaborated for years through the federally funded National Marijuana Initiative. My article describing this relationship was published in 2016.

Just a few months ago, I engaged with Sabet on Twitter regarding SAM’s past funding. When I brought up CADFY, he responded that CADFY funding was only received before SAM was incorporated.

Sam was incorporated in 2015, and SAM Action in 2016. And CADFY’s 990 tax returns show that SAM received $141,494 in 2015, and $533,711 in 2016 from the HIDTA-funded, taxpayer-funded organization.

Earlier tax returns also reflect revenues raised for SAM of $33,508 in 2013, and $234,398 in 2014. So Sabet told the truth about the pre-incorporation government  funding for SAM, but lied about the post-incorporation funding.

Why tell this lie when it can be refuted by easily accessible public records? I can only infer that it’s a clumsy attempt to hide the fact that SAM was taking government money—which is really taxpayer money—because this is inconvenient in light of SAM’s longstanding complaint of corporate lobbying, now formalized as its #FollowTheMoney campaign against the legalization movement.

The move to keep SAM’s New York donors secret is highly disingenuous. It’s about  hiding its connections to those with money or power.

To be clear, it’s perfectly legal for CADFY to have donated to SAM. But it is also the law that those donations be restricted to a charitable purpose only. There are significant restrictions on the use of federal grants to influence federal, state or  local officials or legislation—and we should always expect transparency and accountability with the expenditure of taxpayer dollars.

Examining SAM’s and SAM Action’s recent 990s, it’s hard to determine where that money went and how it was used. If SAM is following the law, the expenses cited by CADFY of over a half-million dollars could only go into SAM—not SAM Action, the organization’s lobbying arm.

SAM and Sabet regularly attack other organizations for lobbying, for failing to disclose their funders, and for potential conflicts of interest. Their own lack of transparency therefore amounts to rank hypocrisy.

Taxpayer dollars also support SAM in ways other than direct funding from CADFY. CADFY also funds the National Marijuana Initiative (NMI) conferences. 

The NMI is a taxpayer-funded ONDCP program, one of three national HIDTA Initiatives. As such, it of course stands with SAM and CADFY in opposition to legalization, touting the widely discredited HIDTA reports issued in the current adult-use states.

The NMI has a speakers bureau that offers, at no cost to organizations across the United States, “experts” to dispel misconceptions about marijuana. One of its speakers, for example, is Ben Cort who is on the SAM leadership team and was listed as a member of SAM Action board in 2016.

Jo McGuire is another member of the NMI speakers bureau. She touts herself as the creator of the Colorado SAM Chapter and is identified as its co-chair in a press release.

The NMI resources page additionally shares links for both SAM and CADFY, without acknowledging that CADFY contributes money to NMI conferences and has funded SAM in the past.

Although the NMI budget footprint is relatively small, it props up the federal government strategy of opposing any attempt to legalize the use of a substance currently listed in Schedule 1 by widely distributing disinformation through private and governmental sources.

Kevin Sabet has clearly parlayed his former role working for the ONDCP in the Clinton, George W. Bush and Obama administrations into a career. He has used his political connections in a Machiavellian manner, integrating his leadership team and speakers into government-funded programs so that their work doesn’t impact his organizations’ bottom lines. SAM thereby clings to its pretence of not representing big government, while supporting and being bankrolled by our taxpayer dollars.

Sabet’s deliberate lies reflect the cynical zero-sum game that he and SAM choose to play.

I could be wrong, but I can’t name another drug policy nonprofit that benefits from both direct and indirect taxpayer dollars in this fashion. Lobbying laws exist for a reason. They are designed to protect transparency and keep the legislative process accountable. But as well as defending the letter of those laws, it’s also important to spotlight legal but unethical ways in which taxpayer-funded resources are used.

SAM and Sabet always point to what they term “Big Marijuana’’—and how the new industry uses lobbyists and cash to promote legislation that would be in its own interests. Yet such funding involves accountable, transparent donations with private money. That transparency is what enables SAM to make its criticisms.

In contrast, Sabet continues to fail to disclose SAM’s own funding and the incestuous financial connections behind efforts to maintain the status quo.

The move to keep SAM’s New York donors secret is therefore highly disingenuous. It’s not about stopping harassment. It’s about protecting SAM’s own interests and hiding its connections to those with money or power.

I used to believe that legalization advocates could find common ground with SAM on issues of public health and commercialization. But Sabet’s deliberate lies over something as simple as donations from CADFY reflect the cynical zero-sum game that he and SAM choose to play in our legislatures, in our schools and in the public health discussion. 

Photo by Money via Flickr/Creative Commons

The post The Rank Hypocrisy of Marijuana Prohibition Advocates’ Taxpayer Funding  appeared first on Filter.

The NPA’s activities have since continued—most recently with the February 25 stunt of urging President Trump to push back against Baltimore Police Consent Decree, which was introduced in 2017 to improve police conduct and protect civil rights.

While the NPA’s Rollins complaint doesn’t hold legal water, one area of our concern was some media outlets’ acceptance of this organization as genuinely representing US law enforcement.

Filter’s investigation uncovered a nonprofit less than two years old, with no status as a union or professional organization representing law enforcement, that publishes disturbing rhetoric and surveys that amount to xenophobic propaganda. Its activities, positions and allies suggested it was part of the police identity movement.

Online searches and scrutiny of tax filings suggested that the NPA had three board members: President Ed Hutchinson, Secretary Brad Shaw and Treasurer Arnold Musungu.

Only one of them—Hutchinson—appeared to have any traceable connection with law enforcement. A search showed up an Ed Hutchinson—the wrong Ed Hutchinson, it turned out—who was previously a civilian staffer at the National Sheriffs Association.

The NPA did not at the time respond to Filter’s requests for information about the backgrounds of its board members or staffers, or indicate that we had misidentified Ed Hutchinson.

In late February, however, an investigation by journalist Justin Fenton of the Baltimore Sun—with which Filter shared its previous research—turned up even more intriguing information about the possible true identity of Ed Hutchinson and his fellow NPA directors.

The Baltimore Sun found the NPA Indiana corporate filing below, which lists a fourth board member, Vice President Fred Berns, who is not named on any other known NPA document.

Berns, a former boxing promoter, was contacted by the Baltimore Sun. He stated “that he was not aware he was listed as the vice president and said he had not heard of the organization.”

Berns also said that he knew Ed Hutchinson, but hadn’t spoken with him in years. “He’s always got something going like that,” Berns told the Baltimore Sun. “He’s a pretty bright kid.”

According to the article: “Berns, who worked as a Chicago police officer from 1961 until 1966, said he believes Hutchinson was a reserve officer in Indianapolis, ‘probably 20 years ago.’”

The investigation by Justin Fenton showed that the Ed Hutchinson who turned up in Filter’s search was the wrong man. Fenton told me that he contacted Lyft, the company that Ed Hutchinson worked for, and was told that he had no connection with the NPA. Filter has published an update to its previous article.

Instead, it now seems highly probable that the NPA’s Ed Hutchinson works as an investigator in the licensing division of the Indiana Attorney General’s office. The NPA did not respond to Fenton’s messages to confirm or deny this.

Since the publication of the original Filter article, I continued to try to verify the identities of NPA’s board members—and that of Chief Financial Officer Derek Peterson—to discover what ties, if any, they have to law enforcement.

With Fenton’s information, I was able to find an archived article from July 2015 on the State of Indiana’s website that lists an investigator, Ed Hutchinson, and Deputy Attorney General Derek Peterson, who were both thanked by then-Attorney General Greg Zoeller (2009-2017) for their work on a case.

Further online searches showed that a Derek R. Peterson is currently in private practice as an attorney in Indiana. His work history states that he was deputy attorney general for the State of Indiana from 2014-2016.

Given that Fred Berns denied that he was on the NPA’s board, and said that he was added without his knowledge, I wanted to give Peterson and the other named board members the opportunity to say that they had been misidentified, or had their names used without their consent.

I left multiple messages via Linkedin and on a phone listed for Peterson’s private practice, asking him to confirm whether or not he was the CFO of the National Police Association, quoted by the Boston Herald as calling Rollins’ policies a “risk and danger to law-abiding citizens.”

I have received no response from Peterson, and the NPA itself continues not to respond to questions that I have asked via messages to their Facebook page, an email to their website, a voicemail message to the listed phone number on the website, and requests on Twitter. The NPA did, however, block me from viewing its Twitter account on February 28.

It is ironic that the NPA refuses to answer questions about actions of its own that could be perceived as misconduct and ethics rules violations.

On March 1, I submitted a Public Records Act request to the Indiana Attorney General’s Office for emails between Derek R. Peterson and Ed Hutchinson to determine if public resources were or are being used on behalf of the NPA. At publication time, I have not received a response.

On March 17, the Indy Star published an expose on the NPA. The headline is stunning: “This Indianapolis charity says it helps police. Police chiefs say it’s a scam.” The Indy Star confirms that Derek R. Peterson is a former Deputy Attorney General of Indiana, and is also the Treasurer listed in the original Filter article, at the same time validating my belief that the NPA is a scam. According to the article:

“At least four police departments in four states have found the letters to be confusing and misleading enough to issue “scam alerts.”

The article reported one officer’s reaction to an NPA fundraising letter that could easily have been interpreted as coming from an official law enforcement source:

“I’m thinking, ‘What the hell is this, using our name and our police department to raise funds?’” Trenton Police Lt. Mike Hawkins told IndyStar. “Get out of here.”

According to the NPA’s website, it conducts investigations to uncover violations of ethics or bar association rules through the use of public records requests, in order to prove misconduct against officials it believes are anti-police. It is ironic, then, that the NPA refuses to answer questions about actions of its own that could be perceived as misconduct and ethics rules violations.

Further Areas of Potential NPA Misconduct

To take one example: The NPA was incorporated in Delaware in 2017, and then registered as a foreign corporation in Indiana. Indiana law requires that information supplied for articles of incorporation for nonprofits, articles of amendment and registration as a foreign corporation is sworn under threat of perjury prosecution.

The NPA’s president, Ed Hutchinson, signed an official State of Indiana form that allows a corporation formed outside the state to transact business there as a foreign corporation. This form lists, as vice president of the NPA, Fred Berns—who has said on record that this was untrue. Under Indiana law, adding a board member without their knowledge could likely count as perjury, a Class 6 Felony.

Potential misuse of the bar complaint process is another problematic area for the NPA; the filing of a formal bar complaint against District Attorney Rollins is not to be taken lightly.

Like an internal affairs complaint against a police officer, a state bar complaint cannot be ignored and must be investigated. In my career I have worked on unjustified IA complaints that took time and resources away from the investigation of actual misconduct.

The NPA’s bar complaint, as Law Professors Carrisa and Andrew Hessick noted in this Slate article, was “meritless.”

As such, if Derek Peterson, as an attorney, was involved in drafting the complaint, it could be viewed as a violation of American Bar Association Ethics. These prohibit an advocate from asserting a frivolous complaint. Rule  3.1 states: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” The State of Indiana’s rules are explicitly based on the ABA rules.

I asked Rory Fleming—an attorney who provides political and policy consulting services for district attorney candidates nationwide, and who also writes for Filter—for his opinion on the ethics surrounding the Massachusetts bar complaint against DA Rollins, and the implications if an attorney helped to craft it.

“Lawyers have a duty to report, in good faith, violations of state bar rules from their fellow lawyers,” he said. “If Indiana lawyer and NPA Chief Financial Officer Derek Peterson helped pen Hutchison’s frivolous, politically motivated complaint, Peterson himself likely violated Indiana Bar Rule 3.1.”

The NPA’s decision to ignore all requests for information and with the latest article validates my initial assessment that it exists not to promote public safety, but as a political organization to push back against criminal justice reforms. The NPA at the best case scenario is manipulating the law not to work for the public interest but to benefit their own special interests.

If the NPA were a legitimate nonprofit organization, it would have no issue identifying its directors and returning inquiries from media organizations. Based on its lack of response, one can only infer that it has something to hide.

It remains incumbent on the media to understand that the “National Police Association” is not national, has no demonstrated connection with the police, and operates in ways that cast doubt on its legitimacy as an organization.

Using legal avenues or political events to serve its purposes, the NPA continues to drive the police identity movement and fuel an us-against-them mentality, further inflaming the divisions between the police and the communities they serve.

Top image via Twitter

The post Latest National Police Association Revelations Support Our Suspicions appeared first on Filter.

“National police group knocks incoming DA,” stated the headline of a December 28 Boston Herald report. It described how the NPA accused Rollins of a “reckless disregard” for Massachusetts laws because of her “platform of generally declining to prosecute shoplifting, drug dealing, trespassing, resisting arrest and making threats.” These policies, the NPA claims, will create a “clear and immediate danger.” The NPA’s chief financial officer and president were quoted expressing their desire to exert pressure on Rollins to “change her mind” to prevent “risk and danger to law-abiding citizens.”

“The National Police Association Is Throwing a Fit Over Prosecutorial Discretion,” commented Slate on January 4, citing as “just one example of the complaint’s ridiculousness” Rollins’ alleged violation—simply by stating her policies while standing as a DA candidate—of a rule against prosecutors making comments that might prejudice a particular case.

DA Rollins tweeted a response to the complaint:

My statement regarding the National Police Association’s complaint: pic.twitter.com/ZBR6e57Dtm

— DA Rachael Rollins (@Rollins4DA) December 28, 2018

There is much to unpack in what appears to be a bogus complaint created to garner press and monetary donations. Its filing is not just odd, as noted by University of North Carolina Law Professor Carissa Hessick, but disingenuous, because it has no hope of success.

But beyond the complaint itself, media acceptance of the NPA as an actual law enforcement organization made up of police professionals deserves scrutiny.

I had never heard of the NPA in my 21 years working in law enforcement—nor in my last eight years as a speaker, board member and now chair of a law enforcement non-profit.* The NPA is not a traditional police labor union association like the Fraternal Order of Police, nor a professional organization, such as the International Association of Chiefs of Police. Yet its name implies that it represents police professionals across the United States.

Looking Behind the Name

I therefore wondered who was behind the NPA. I wasn’t the only police professional to feel suspicious, as shown by this tweet from a former Boston police lieutenant and author:

I’ve been in the criminal justice profession since the 1970s and have never heard of the “National Police Association.” They purport to exist in Indiana of all places, (no home to progressive CJ practices). The DA-elect in Boston is an African American woman. Sham organization. https://t.co/4sLEL1lwIL

— Tom Nolan ???? (@ThomasNolan) December 28, 2018

I looked into the NPA’s corporate filings through the IRS website and also checked out the NPA’s website and online presence. It turns out that the NPA is a small non-profit that is less than two years old. It was incorporated first in the State of Delaware in early 2017, and then registered as a foreign corporation in Indiana. Its address in Indianapolis is simply a US Postal Service PO box.

According to the NPA’s 2017 federal tax filing, there are only three board members: President Ed Hutchinson, Secretary Brad Shaw and Treasurer Arnold Musungu.

A search of social media platforms shows that an Ed Hutchinson was previously a civilian staffer of the National Sheriffs Association. He is seemingly the only board member who has any apparent connection with policing that shows up online.

[UPDATE: Subsequent investigation indicated that the Ed Hutchinson formerly of the National Sheriffs Association has no connection with the National Police Association. On March 19, Filter published a further article about the National Police Association with updated information about the identity of the NPA’s Ed Hutchinson.]

I could find no evidence that Shaw or Musungu are current, former or retired law enforcement professionals or civilian staffers. The NPA did not respond to Filter’s request for information about the backgrounds of its board members or staffers.

While this doesn’t prove the lack of any law enforcement connection, it does seem strange. You would expect any kind of police or public safety organization to highlight the involvement of current or former officers on its website, and the vast majority do so.

In 2017, its first year of operations, the NPA incurred a net financial loss of over $114,000. No doubt the NPA receives donations or is self-funding this loss in some way, hoping to expand its base and win future financial support—likely through its involvement in high-profile complaints, like the one against Rollins.

In its short history the NPA has filed other complaints against political figures. The organization signed to or filed amicus briefs supporting Darren Wilson vs. the City of Ferguson and the Department of Justice complaint targeting California’s sanctuary state law. It also tried to lead a Change.org campaign against Nike and Colin Kaepernick.

The NPA’s Disturbing Ideology

The NPA’s website and social media accounts suggest that it is positioning itself as the latest iteration of the police identity movement. Its rhetoric mirrors some of the most radical police union leaders, with inflammatory language increasing divisions between law enforcement and communities of color.

Here is one sample among many:

NPA Launches National Effort to Show Appreciation to Local Law Enforcement

It’s been a tough couple years for local law enforcement. Groups like Antifa and Black Lives Matter have inspired people to assassinate cops on the street. Soft on Crime groups are targeting record numbers of individual law enforcement officers in law suits for police brutality. And cops are facing increasing disrespect on the streets as criminals have become emboldened by the wave of anti-cop rhetoric in the news media and by many politicians.

On its donate page, the NPA boasts of its work to “preserve the American way of life” and “fight back against cop-haters.”

In fact, as I’ve previously written, supporting law enforcement and supporting reform movements such as Black Lives Matter are not mutually exclusive. Promoting divisive rhetoric is detrimental to the public safety mission that requires any genuine law enforcement organization to be accountable to its constituents.

Other policies that the NPA promotes include aggressive stop-and-frisk tactics and “broken windows” policing—strategies that have resulted in unconstitutional practices that undermine civil liberties.

The NPA’s immigration proposal—”Authorizing local law enforcement officers to perform federal immigration law enforcement functions”—is based on fear-mongering and a clear recipe for abuse and division. This policy has been repudiated by a significant number of law enforcement leaders, whose experience has led them to conclude that it would make their communities unsafe.

The NPA’s list of collaborators is also illuminating. It includes the Criminal Justice Legal Foundation of Sacramento, California, which provided representation and incidental expenses for the NPA’s amicus curiae in support of Darren Wilson against Ferguson. The amicus curiae brief in support of the DOJ against California was filed by the Immigration Reform Law Institute, which reporters have noted is the legal arm of the Federation for American Immigration Reform. FAIR is a public-interest law advocacy organization with an ugly history: Its founder, Dr. John Tanton, has been described as a nativist and a white nationalist by the Southern Poverty Law Center. According to the Washington Post, Tanton “built on eugenicist thinking with aims to limit the birthrate of people deemed undesirable. His innovation was to focus on stabilizing the American population by severely limiting immigration.”

Other signatories on the briefs included the National Sheriffs Association, Advocates for Victims of Illegal Alien Crime and Stop Sanctuary State—an organization funded by another non-profit, named Californians for Population Stabilization. CAPS links population control and environmental concerns, and sees limiting immigration as a way to preserve American resources for future generations. It has also previously been linked to the white nationalist movement.

Surveys as Propaganda

NPA has also produced two “public opinion surveys,” one on illegal immigration and another on crime.

In September 2018 the Eugene Weekly reported on the survey about illegal immigration and sanctuary states. It was sent out to 40 states, including Oregon, and according to the report depicted “illegal immigrants” as “career criminals.”

Comparable distortions are evident in the NPA survey about crime, which was publicized in a press release claiming “strong support for proactive policing that reduce the number of people committing crimes.” The NPA did not respond to Filter’s questions about the methodology of the survey, which claimed, for example, 90 percent public support for law enforcement action to “prevent crime by stopping suspicious people for questioning.”

The survey questions are leading, and skewed to produce support for the NPA’s views. To take one example, this question intentionally mischaracterizes the varied reasons for the decline in crime:

Before receiving the letter accompanying this Survey were you aware that police and law enforcement have been responsible for reducing crime in the US by over 50% in the past 20 years?

And the question below, on the use of police force, completely ignores work from many researchers, including recently by New Jersey Advanced Media, that has found glaring racial disparities in the use of force. If you are black in New Jersey you are three times more likely to face police force than if you are white.

Today many law enforcement officers are reluctant to wrestle a criminal suspect to the ground, use a nightstick, or use any type of force when apprehending a criminal because they fear getting sued or brought up on charges of “police brutality.”

Do you support the right of a law enforcement officer to use force to stop a crime in progress, to apprehend a criminal, or to defend themselves from criminal attack?

As a police professional, I believe that there are instances where force is justified. But a survey that deliberately misleads the public—about police force and attitudes, and the racial disparities in the application of force—creates even more division in our society.

But perhaps that’s the point of the survey and the NPA. I concur with the Eugene Weekly’s assessment that the NPA fundraising letter and survey are a push to sway voters. But the manipulative, fear-mongering language used—”During your lifetime you have a 52% chance of being violently attacked by a criminal at least once … Were you aware your chances of being violently attacked by a criminal were this high?”—seems to me even more like political posturing designed simply to generate publicity and donations. Ed Hutchinson admitted to the Eugene Weekly that the immigration survey was designed as a fundraiser, and no doubt it was the same with the crime survey.

A Threat to Be Taken Seriously

The NPA Facebook page claims that donating will “make law enforcement fairer, safer and more effective.” But there is no evidence the policy proposals supported by the NPA will result in this—quite the opposite.

Criminal justice professionals and reformers may scoff at the amateurism and extreme rhetoric. But the NPA’s recent portrayal, by legitimate news sources, as a legitimate organization shows that it has found a niche preying on people’s fears of crime and those different to themselves. From that base, it’s easy to imagine it growing.

The NPA clearly exists not to promote public safety, but as a political organization to push back against criminal justice reforms. As Fordham Law Professor John Pfaff noted in response to the NPA’s Rollins complaint, “this is a political move, not a legal one. The NPA is laying the groundwork for reaction.”

Reformers like Rollins are, as journalist Radley Balko wrote, “a threat to the punitive, retributive criminal justice model that has dominated the United States since the 1980s.”

The movement of which the NPA is part will not give up without a fight. Redefining and reforming the criminal justice system demands that we promote safer communities through investment in programming outside of law enforcement. But we can’t do this without addressing Americans’ fear of crime, which—independent from the reality of crime risks—is continually fanned by tough-on-crime ideologues.

To push back against this, reformers and media should not take organizations’ self-descriptions at face value. Far from being any kind of “national police association,” the NPA is just another arm of the self-benefiting criminal justice lobby that perpetuates fear through deliberate mischaracterizations of crime.

*LEAP is the fiscal sponsor of The Influence Foundation, which operates Filter.

Photo by Elijah O’Donnell on Unsplash

The post The Shady “National Police Association” Behind the Headlines appeared first on Filter.