Can the President “Destroy” Criminal-justice Reformers?

The following article by Sarah Stillman was published in The New Yorker on February 11, 2017.

On Tuesday, President Trump hosted a group of county sheriffs at the White House, where he spurred a now-infamous exchange with a lawman from Texas. The back-and-forth went like this: Trump asked the sheriffs if they had any ideas on “how we can bring about law enforcement in a very good, civil, lovely way,” in order to “stop crime.” Sheriff Harold Eavenson, of Rockwall County, Texas, fired first. “Asset forfeiture!” he called out. “We’ve got a state senator in Texas that was talking about introducing legislation to require conviction before we could receive that forfeiture money.”

“Can you believe that?” Trump interjected.

“And I told him,” the sheriff continued, “that the cartel would build a monument to him in Mexico if he could get that legislation passed.” Trump was eager for details. “Who’s the state senator?” he asked. “Do you want to give his name?”

The sheriff shrugged. He wore the conflicted smile of a child who’d just tattled on a sibling, only to realize, upon dad’s approach with a belt, the stakes of what he’d unleashed. Trump pushed on, saying, of the senator, “We’ll destroy his career.” Obsequious laughter flowed.

If some dismissed the President’s threat as a joke—however cruel or misguided—the issue it referenced can’t be dismissed so easily. In what appeared to be an act of improvisation on a major public policy, the President endorsed the sheriff’s comments on the alleged evils of civil-asset-forfeiture reform. And this matters, because Eavenson’s characterization of the practice obscured a significant truth. Civil forfeiture—the practice of authorities seizing goods they believe are the fruits of crime—is far less frequently used against bona-fide cartel kingpins than it is against individuals who’ve not been proved guilty of crimes. Often, it’s used against people who haven’t even been accused of any wrongdoing. And, though Trump’s “we’ll destroy his career” comment quickly drew widespread criticism, the remark was only the coda of an equally unnerving conversation with the sheriffs that went largely unremarked upon.

A transcript of the full event reveals how little Trump seems to grasp civil forfeiture’s meaning. “So, in other words, they have a huge stash of drugs,” the President told the group, shortly before the exchange with Eavenson. “So, in the old days, you take it. Now we’re criticized if we take it.” The President appeared unaware of the distinction between contraband itself and the proceeds that may flow from it; no policymaker, to my knowledge, has ever contested cops’ right to seize drugs or other direct contraband, and forfeiture isn’t required—or even called upon—to do so. (Sean Spicer, the White House press secretary, did not respond to my request for clarification on the President’s official forfeiture stance, nor for comment on Trump’s broader remarks.) What makes civil forfeiture so legally unique is that a case can be brought directly against otherwise legal goods if they are deemed “fruit of the poisonous tree”—the proceeds of crime. In many states, the burden of proof for civil forfeiture is strikingly low, and the cost to contest a case is often high. At the White House, one Kentucky sheriff voiced frustration with Congress, where a push to amend the lack of due process in forfeiture laws has found some bipartisan support. The sheriff complained to the President that forfeiture’s opponents “make up stories.”

In 2013, I embarked on an in-depth investigation of civil asset forfeiture for this magazine. I travelled the country, documenting more than a hundred cases in which people’s property was seized on mere “suspicion” of wrongdoing, or through other arguably unconstitutional or unfair means. In Philadelphia, I met an elderly couple whose home of four decades was placed in forfeiture proceedings after the couple’s son was charged with selling sixty dollars’ worth of marijuana to a confidential informant on the porch. (That the house belonged to the parents apparently didn’t matter to the local district attorney’s office, which planned to seize it, auction it off, and keep the proceeds.) In Washington, D.C., I spent time with a janitor who’d lost her car after her son, who had borrowed it, got pulled over for a minor traffic infraction and then was charged for unlawful possession of a handgun. (To seek the right to have her Honda returned, the mother learned, she would have to pay a “penal sum” of a thousand and twenty dollars, or else the vehicle would be swiftly auctioned off, or reappropriated for use by police. A car, unlike a person, does not have a right to a lawyer.) And, most chillingly, I travelled to Sheriff Eavenson’s own state of Texas, where, in the small town of Tenaha, dozens of drivers—almost all of them black and Latino—had been pulled over by local authorities and stripped of their cash, jewelry, DVD players, cell phones, and other valuables. The deputy city marshal claimed that the goods were suspect, even absent evidence of contraband. In some cases, he cited the presence of junk-food wrappers and energy drinks in drivers’ vehicles as a sign of drug trafficking, and noted that drivers’ kids might be “decoys.”

One victim of the Tenaha scheme, a waitress named Jennifer Boatright, was pulled over while passing through the town with her boyfriend and two kids; they were en route, with cash, to buy a used car. Authorities told Boatright that a large sum of cash was surely criminal, and that if she didn’t sign it over to the local district attorney, they’d confiscate her kids and charge her with money laundering. “Where are we?” Boatright recalled thinking, when I interviewed her in 2013. “Is this some kind of foreign country, where they’re selling people’s kids off?”

But the legal landscape has shifted since then. Most notably, a small but growing group of Republican and Democratic lawmakers, at both the state and federal levels, have come together to insist on forfeiture reforms that aid due process. At this week’s roundtable, Trump expressed dismay that civil forfeiture had grown “political,” and claimed that the only individuals who could possibly want reforms were “bad people.” It was unclear if he recognized how much of America he’d just condemned: according to a study by the Cato Institute, eighty-four per cent of U.S. residents oppose the use of civil forfeiture. Coverage of the once obscure practice has become commonplace. In 2014, the Washington Post did its own investigation, which, among other things, documented how hundreds of police departments and task forces now rely on seized assets for twenty per cent or more of their annual budgets.

The issue, remarkably, has become a steppingstone for bipartisan criminal-justice-reform collaborations in nearly every corner of the country. According to the Institute for Justice, some twenty states have enacted forfeiture reforms since 2014, including Florida, California, and New Mexico. In Texas, two state Senators—a Republican named Konni Burton, and a Democrat named Juan (Chuy) Hinojosa—have championed far-reaching forfeiture reforms that were the apparent target of Sheriff Eavenson’s comments to Trump. (One suggested change would require a criminal conviction before a person’s property can be seized.)

But here’s the most urgent question that Trump’s meeting with the sheriffs raised: How much power does the President actually have to “destroy” criminal-justice reformers? Does the White House have the capacity to thwart not just forfeiture fixes but also, more broadly, the emergent bipartisan push for a system-wide overhaul? Unlikely partnerships to address asset-forfeiture abuses have, in recent years, lent strength to a much larger cross-party push: to roll back mandatory minimum sentences; to address the injustices of the money-bail system; to curb soaring rates of criminal-justice debt; and to address other drivers of mass incarceration, many of which trace back to profiteering. What will become of these movements, under Trump?

On the campaign trail, Trump offered a criminal-justice platform ripped from the nineteen-eighties. Since entering the White House, Trump’s flurry of actions—the refugee ban, the botched Yemen raid, a Supreme Court nominee—have limited press scrutiny of his criminal-justice agenda. But, this week, the country finally got a glimpse of what lies ahead. On Wednesday, a day after Trump had the sheriffs to the White House, Jeff Sessions, a major proponent of civil forfeiture and other controversial drug-war tactics, was confirmed by the Senate as Attorney General. And, on Thursday, Trump signed three new executive orders on crime, confirming that an old-school law-and-order approach will prevail in his White House. The domestic battle over the future of criminal-justice reform has officially commenced.

Here, then, is a comfort: Presidents have never controlled all the critical levers of American justice, or injustice. The current push to end mass incarceration and to uphold due process emerged largely from cities, counties, towns, and municipalities. Its progress has been aided, at times, by state lawmakers, and, at last, by Congress and the courts. Families who’ve borne the brunt of the system have proved crucial to raising the issue’s visibility and making the case for action.

In 2014, California passed a ballot measure known as Proposition 47, which reclassified a range of felonies as misdemeanors and invoked the voices of crime victims to prioritize drug treatment over incarceration. In Ferguson, Missouri, community advocates and civil-rights litigators challenged profiteering laws around criminal-justice fees and fines. And in Oklahoma, in November, voters who resoundingly backed Trump also approved Republican-backed ballot initiatives to reduce the state’s prison population. These calls for change unfolding around the country are the strongest rebuke to a threat-making President. What frustrates many about the country’s justice system—its patchwork nature, which resists sweeping, cohesive fixes to its many flaws—may now prove an unexpected grace. Already, reformers in both parties have echoed Texas State Senator Konni Burton, an apparent target of Trump’s threat this week, who issued a statement in response to the news: “I will not be discouraged,” she wrote, “or deterred.”

RIP, Billy Wayne Cope

by Steve Drizin, Director of the Center on Wrongful Convictions and Youth, Northwestern University, Chicago, Illinois - February 10, 2016.

People sometimes ask me -- which is the worst miscarriage of justice you have been a part of? Without hesitation -- and I've seen more injustice as a lawyer in my lifetime than anyone should have to see -- I say: "Nothing compares to what the State of South Carolina -- York County prosecutors, a trial court judge, a jury, and a bevy of appellate court judges and state Supreme Court judges -- did to my client Billy Wayne Cope." 

Billy Wayne Cope died today at the age of 53. His legal team -- which has more than tripled in size since James Morton, Michael Smith and Phil Baity represented him at trial, released the following statement:

"In the years we represented Billy, he was unfailingly polite, optimistic, and full of faith, and he maintained these qualities in the long years that followed his conviction. Our inability to save him from this fate is one of the deepest disappointments of our lives and careers.

Billy’s death marks a sad end to a horrible miscarriage of justice. Billy confessed to a dreadful crime he did not commit. When DNA later proved the actual killer was a career burglar and serial rapist named James Sanders, who had just been released from prison in North Carolina, law enforcement should have faced up to the truth and admitted they obtained a false confession from the grieving and psychologically vulnerable father of a murdered child. Instead, the prosecution concocted a fantastic new theory that Billy must have cooperated with Sanders -- a man he never met -- in raping and murdering his own daughter in his own home. The State, then, succeeded in convicting both, the real killer and Billy, of a crime only one person actually committed. Billy Cope lost everything -- the last 15 years of his life, his family, and now any chance that this legal atrocity will ever be set right. This is a dark day for justice in South Carolina."

I've been fortunate in my line of work to experience the great joy of walking innocent clients out of prison and back into the arms of their loved ones. In fact, less than 24 hours before learning of Billy's death, I was on Cloud 9 after learning that the Cook County State's Attorney's Office had agreed to drop charges against my client (and three other Chicago teens who falsely confessed to a double murder in 1995). If you do this work long enough, you learn a sobering lesson. The wins are wonderful. You never forget them. But it's the losses, especially the cases of Unrequited Innocence, that will haunt you until your dying days. RIP BWC.

Innocence Project director calls for higher ethical standard in court system

The following article written by Taylor W. Anderson was published in the Salt Lake Tribune on February 9, 2017.

Nearly 350 innocent people spent an average of 14 years in prison before the Innocence Project helped set them free. Barry Scheck has some ideas on how to keep more people from needing his group's help.

Moving toward DNA evidence instead of other forensic evidence that can be flawed can help keep innocent people out of prison, said Scheck, director of the group that works to identify and free wrongfully convicted prisoners.

But if everyone involved in the criminal justice system was held to high ethical standards through rules and laws, the system would be more sound, Scheck said in his Tanner Lecture on Human Values at the University of Utah's S.J. Quinney College of Law.

"Good people," he said, "do bad things." 

That can include any player in the criminal justice system, Scheck said as he spoke to an audience that included law students and defense attorneys, as well as Salt Lake County District Attorney Sim Gill and U.S. District Court Judge Robert Shelby.

He also pointed to the center of Moot Courtroom, where Brandon Moon, a Utah man who was convicted of three counts of rape in Texas, sat.

Moon served 17 years of a 75-year prison sentence — much of it fighting his conviction — before he was exonerated by DNA evidence with the help of the Innocence Project.

"I think that the biggest problem that we have is ethics," Moon told The Salt Lake Tribune after the speech. When we're willing to bend the rules a little bit to get a conviction, instead of looking for the truth, always looking for the truth."

Eyewitness misidentification and unvalidated or improper forensic science contributed to Moon's wrongful conviction, which he said routinely occurs across the country.

The Innocence Project, Scheck said, is also working to increase the use of videotaped interrogations, prevent the use of informants who have an incentive to provide testimony against a suspect, and ensure that suspects receive adequate attorney representation.

He told of a case in Texas, where Michael Morton spent 24 years in prison for his wife's slaying before he was exonerated in 2011 by DNA that identified the true killer. 

Defense attorneys had asked the judge in the case to look through the investigative report for potential evidence that could have prevented Morton's conviction. The judge looked and found none. 

After Morton was exonerated, the Innocence Project received the report through a public records request and found that evidence that could have helped Morton during his trial wasn't included in the file given to the judge. A court later found probable cause that the former prosecutor concealed evidence during the trial.

The Innocence Project, Scheck said, has worked to enforce rules for attorneys, on both sides of a case, that require prosecutors to hand over evidence that could be helpful to a suspect standing trial.

"It could happen to anybody," Scheck said of a wrongful conviction. "That's really the truth."