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An Interview With Sam Dalton, Now In His Seventh Decade Of Criminal Defense Law

Radley Balko   |   December 30, 2013    2:55 PM ET

The year 2013 marked the 50th anniversary of two landmark Supreme Court cases in criminal defense law. In Brady v. Maryland, the Court ruled that prosecutors are required by law to turn favorable evidence over to defense attorneys. And in Gideon v. Wainwright, the Court ruled that for felony cases, the government is obligated to provide indigent defendants with adequate legal representation.

Earlier this year, I interviewed longtime criminal defense attorney Sam Dalton for a long investigative piece on prosecutorial misconduct. Dalton is something of a legend in Louisiana courtrooms. He has just entered his seventh decade of practicing law. In that time, he has defended more than 300 death penalty cases. Of those, he spared 16 defendants from execution -- this in a state that's rather fond of executing people. He has also been a voice for civil rights, he chartered a model public defender system, and he's currently leading a charge to impose some accountability on Louisiana's more egregiously misbehaving prosecutors. My favorite thing about him: Outside his office door there's a "welcome" mat that reads: Come back with a warrant.

My interview with Dalton extended well beyond the quotes I used for my article. I found him to be a fascinating figure, and certainly someone with some unique and well-earned insight into the way the criminal justice system works. So the full interview follows.

This is also my last contribution here at Huffington Post. Starting January 8, I'll begin a daily blog at the Washington Post that will focus on civil liberties and the criminal justice system. My interview with Dalton seems like an ideal way to wind down both my time here at HuffPost, as well as a good way to end a year marked by milestone anniversaries of Supreme Court rulings protecting the rights of the accused.

You're one of a few people still practicing law who was also practicing before the Brady decision came down in 1963. How did Brady change the administration of criminal law in America?

Brady made things a little better, at least at first. The younger prosecutors tried to take it seriously, and would try to comply, but there was still a community standard to evade disclosure. So they'd actually hide it from their bosses when they'd turn over favorable evidence to us.

So complying with the new Supreme Court requirement to turn favorable evidence over to defendants would get them in trouble?

Yes. You aren't going to change an entrenched culture overnight. The decision gave us a tool to fight withheld evidence after a conviction, but it didn't change the culture of evasion. Change has come slowly. Very slowly. And in some places, like Orleans Parish, the ruling was just ignored. The Brady problem really became atrocious under [former and longtime Orleans Parish District Attorney Harry] Connick. Nondisclosure was routine, and it's ridiculous to say he didn't know about it. He was too competent not to know what was happening.

Why has it been so difficult to get prosecutors to comply with Brady?

It's a mix of the system and the personalities. First of all, it takes a certain sort of personality to want to become a prosecutor. It takes someone with ambition, usually political ambition. And it takes a person with greed, not necessarily for money, but for power. Second, you have to look at what the system rewards. The best way to get attention for yourself as a prosecutor is to put a lot of people in jail. There's no votes to be won for deciding not to prosecute someone in the interests of justice. No prosecutor runs for higher office by touting the charges he didn't bring, or the fairness he showed to those accused of terrible crimes. You put those two problems together, and you get a culture that encourages deliberate indifference, especially once they're publicly invested in a particular suspect.

These sound like intractable problems. Looking back on your career, have you grown more pessimistic over the years?

We have a fine, beautiful legal system. But it has been prostituted by bad prosecutors, bad policemen, and indifferent judges. We need to look at what kind of character we want the people who hold those jobs to possess, and we need to understand the character of the people who most want those jobs. When you look at those two things, I think you'll often find that they're contradictory.

If I were running a DA's office, I would go out and recruit my prosecutors myself. I wouldn't wait for applicants to come to me. In theory, just wanting to be a prosecutor should disqualify you from becoming one. I'm speaking on broad strokes, here. I'm not talking about hard and fast rules. But that should be the general mindset we take when staffing a DA's office.

Where do you come down in the debate between electing judges and appointing them?


I'm against electing judges. I'm also against appointing them.

If you thought the courts were overburdened now . . .


Yes. I guess I would limit judges to a single 10-year term. Or something like that. Whether they served that term by winning an election or by getting appointed isn't as important. I think the main problem with electing judges is that you have to raise funds, which can force you into some compromising relationships.

Few people have the money to fund their own campaigns. But in my experience, those who do tend to become good, fair judges. That's probably because they could be doing other things. The position isn't a stepping stone for them. And there's no indebtedness to others.

But appointing judges comes with its own set of problems.

Anything else you would change about how we pick and oversee judges?

I think every judge should handle both civil and criminal cases. When you split up cases like that, you immediately start to see fighting over budgets. But more importantly, there's something important and necessary about having judges handle a wide variety of cases. It gives them some worldliness, some context and perspective. Criminal courts judges can often become hardened to the misfortunes of people. They can lose their sense of empathy.

You have to remember that nearly all judges are former prosecutors. There's an undercurrent of alliance between judges and prosecutors, so there's a certain collegiality there. They run in the same social circles. They attend the same Christmas parties.

Why don't more criminal defense attorneys become judges? Is it that they can't, or don't want to?

I think most people would say that the position just isn't available to them -- that it's a long shot for a defense attorney to win a DA election or to get nominated to become a federal prosecutor. That's probably true. But I also think that most of us just don't want it. Judges and prosecutors share a lot of DNA. Criminal defense attorneys are whole other animal.

I should add that we do have some very good judges in Louisiana, and also some good prosecutors. But the bad outnumber the good.

So what does it take to be a good criminal defense attorney?

Commitment. I haven't on time for supper in 50 years. My wife should have divorced me years ago.

It seems like the job would also require a high threshold for disappointment. Aren't most criminal defense attorneys pretty cynical?

Oh, no. I think just the opposite. I always go back to the joke about the 11 year-old-twins. One of the twins was an eternal optimist. He only saw the good in everything, which made his parents fear that he'd be easily manipulated. His brother was an eternal pessimist. Only saw the bad in people, which his parents feared would make him sad and lonely. So they took the boys to a psychiatrist, who proposed an experiment. Per the psychiatrist's advice, the following Christmas the parents bought the pessimistic boy every toy he could possibly want. The optimistic boy woke up Christmas morning to several piles of horse manure. A week later, they took the boys back to the psychiatrist. He asked the pessimistic boy if had a good Christmas.

"It was terrible," he said. "I got all of these brand new toys, but I can't play with any of them because I'm afraid I'll break them."

The psychiatrist then posted the same question to the optimistic boy. "It was great!" he exclaimed. "I got a pony! I just haven't found him yet!"

Criminal defense attorneys deal with a lot of horseshit. I think the thing that keeps us going -- or at least the thing that has kept me going -- is knowing that with all that shit, sooner or later you're going to find a pony.

So what are the ponies? Discovering wrongful convictions? Freeing an innocent person from death row?

Those are all important, yes. But those are rare. There are smaller, more attainable ponies. Getting evidence suppressed because you convinced a judge that a cop broke the rules. Getting a conviction overturned after you've shown that a prosecutor withheld evidence. Even in cases where the charges are relatively minor, there's great satisfaction in knowing that you forced the state to play by the rules, that you successfully held a powerful person to account.

Most of the people most criminal defense attorneys represent are guilty. And most of their cases will end with convictions. Does that ever weigh on you -- knowing that you'll fail far more than you'll succeed?

I think it's a mistake for a defense attorney to define success by how many acquittals he wins. I define it by whether I've forced the state to do its job, and to do it fairly and in compliance with the Constitution.

But let me say something about convictions. Convictions are important. And it's important for attorneys to represent even clearly guilty people. There's the obvious reason -- that everyone deserves a fair trial.

But here's a less obvious reason: Ask yourself, what contribution do convictions make to criminal case law? The answer is that they're responsible for almost all of it. When you're acquitted, you don't appeal. Only convictions are appealed. And it's on appeal that you argue that your client's rights were violated. Appeals are where the appellate courts enforce the Constitution. At least where they're supposed to. It's only because someone was convicted that we have the rules in place today that protect the accused. There's a kind of beautiful symmetry to that. It's because of convictions that we have the rules that protect the innocent.

What do you think is most lacking in the criminal justice system today?

A true appreciation of what's at stake. To take someone's freedom -- that's the ultimate deprivation a government can inflict on a citizen, short of taking his life. Everyone in the criminal justice system -- judges, prosecutors, police, criminal defense lawyers -- can get lost in the day-to-day, and lose sight of what's really going on in these courtrooms.

I'll give you an example. We've known for decades that eyewitness testimony is unreliable. Horribly so. There's a mountain of research that says so. But until DNA testing starting exonerating people convicted based on testimony from witnesses -- sometimes four, five, six of them -- the courts treated eyewitness evidence as the best possible evidence. That should be terrifying to all of us. But the courts have been shamefully slow in changing how they handle eyewitnesses. They give it far too much weight in cases still today. There's even less interest in reopening past cases.

But that's only one side of the problem. The criminal justice system today also fails to do what it's designed to do, which is to protect us from dangerous people.

You're referring to the fact that every time an innocent person is convicted, the guilty person goes free, possibly to commit other crimes?

Yes, that's true. But the problem is more profound than that. The best example is that we don't know how to impose punishment. We focus too much on retribution, and too little on protecting society from harm.

Let me give you an example. Two men commit an armed robbery on the same night. The first man is a father of four. His family is about to be evicted. Or if you want to make him less sympathetic, let's say he's a drug addict who needs money to buy his next fix. He's nervous, he's sweaty. He's desperate, and he's panicky. He approaches his victim and roughly accosts him. He puts his gun to the victim's head. He's screaming profanities. He screams out for his victim's wallet, then screams louder and threatens the victim for moving too slowly. He takes his money and runs off. His victim is terribly frightened.

In the second scenario, our mugger is calm, cool, and methodical. He approaches his victim from the front, puts a light hand on the victim's back, and slowly and unemotionally explains that he has a gun in his coat pocket. He tells his victim that if he hands over his wallet, no one will get hurt, and they can both be on their way. The victim hands it over. The mugger walks off. The victim is angry at just having been robbed, but he isn't terrified. And he was never in real fear for his life.

Which of the two armed robbers is likely to get the longer sentence? Almost certainly the first one. Which of the two is the bigger threat to society? Unquestionably the second one. In fact, the second one is not only a likely career criminal, he's more likely to actually kill someone. The first one is scared because he knows he's doing something wrong. He feels some empathy for his victim. He's committing a crime of necessity. That isn't to say it excuses him. But his aggression comes from fear. The second mugger is incapable of empathy, or has learned to turn it off. He's cold-blooded.

So you see we impose punishment based on fear and a desire for retribution, not based on rational evaluations of what crimes and criminals are most dangerous.

What would you say to a well-intentioned person interested in becoming a judge or a prosecutor?

Retain your humility, and understand the corrupting effects of power. Power is insidious. It will creep up on even the most decent people. Always be aware of that, and be vigilant against it.

How specifically does a person do that? I've talked to former prosecutors and police officers who admit that there were times they were blinded by power or tunnel-vision, but didn't realize it at the time.

I have what I call a theory of inverse power. It may sound silly, but I think we need daily reminders to keep us grounded. I think that instead of collecting the little day-to-day accoutrements of power as you ascend in office, you should lose them. The most powerful man in the building should have the worst parking space. The district attorney should have the longest walk to the office. Twice a day, at least, he'd be reminded of his humanity.

There's also the distribution of chairs -- powerful people have the soft, cushy chairs. The chairs get harder and less comfortable as you go down the ladder. Whenever a new regime takes office, there's always a rearranging of the chairs. If you want to be a conscientious leader, give yourself the hardest chair.

These are little things, I know. But don't underestimate them. Powerful people insulate themselves from humility -- not just in terms of official accountability, but in their immediate surroundings. But they're the ones most in need of it. Reminding yourself that you're human and capable of mistakes is important in any line of work. But it's especially important when you hold lives in your hands.

Outside of parking spaces and chair arrangements, what about public policy? If you could pass a few laws tomorrow to curb abuses of power and make the system more fair, what would they be?

This isn't a satisfying answer, but I'm not sure there's much to be done. We keep getting back to the fundamental problem, which is that the ideal person for a powerful position is someone whose character makes them very reluctant to wield power. And those people are obviously uninterested in seeking powerful positions. I don't know how you change that.

So there will always be incidents, because there will always be that tension. But we can strive to make the incidents less routine. Certainly some accountability would help. I don't know that state bars will ever be able to sufficiently hold prosecutors accountable for misconduct to the point where professional sanction could be an effective deterrent. But right now, it rarely happens at all. Surely we can do better than nothing.

That's pretty cynical. So where's the pony in all of this?

I do think that things are slowly getting better. DNA testing has proved that the system is fallible. No one can deny that now. So we don't argue about whether the system is broken anymore, we argue about how broken it is, and about how to fix it. DNA testing was a dose of that humility I was talking about, only it was system-wide.

As I said, I also think that for human beings, we have a fine and beautiful justice system. It isn't good enough, but it's such a far improvement from anything that came before it. And things have really improved from when I started practicing. There's still corruption and misconduct, too much of it. But it isn't brazen. It isn't a badge of honor. They have to hide it. That means they know that it's wrong -- or at least that most people perceive it as wrong.

It's getting better. It really is. But it's moving too slow.

Dire Civil Liberties Predictions for 2014

Radley Balko   |   December 19, 2013   10:50 AM ET

As we come to the end of a year that saw revelations about massive government spying programs, horrifying stories of police abuse, and brazen violations of the Fourth Amendment, I thought I might offer my own grim predictions about where civil liberties are headed in the coming year. Sure, some of these may seem outlandish. But to borrow from H.L. Mencken, nobody ever went broke underestimating the grade and lubriciousness of the slippery slope.

So I predict the following for 2014:

1. Not content with their current powers to employ drug dogs and dubious accusations to engage in asset forfeiture shakedowns of motorists, some states will pass laws making it illegal to have a space in your car where drugs could possibly be hidden, regardless of whether or not you've actually hidden any drugs in those spaces.

2. Also on the forfeiture front: Taking the private prison idea one step further, prosecutors will begin hiring private security firms to pull over motorists in order to seize property for the local government. And they'll get to keep a cut of what they take.

3. Now that they've turned America's cities into surveillance societies, city officials will incredibly claim, incredibly, that using similar cameras to prevent abuse by law enforcement officers would be a violation of police officers' civil rights.

4. Big Brother will begin watching you in toilet stalls -- in order to prevent you from having illegal public sex in them.

5. Governments at all levels will start using license plate scanners to keep lists of who attends protests, political rallies, advocacy group meetings and -- yes -- even worship services.

6. It may soon become a crime merely to be in the general area where police believe other people are committing crimes.

7. It will become a crime for the police to mistakenly shoot at you while you are unarmed -- and not a crime by the police, but a crime by you.

8. College campus SWAT teams will begin protecting themselves against land mines. Not because there are any landmines on college campuses. Just because. Also, college campuses will have their own SWAT teams.

9. Speaking of SWAT teams, the police will begin using them to enforce zoning laws and property codes. In fact, in some places, the police will begin using SWAT teams to serve all felony search warrants, regardless of the crime.

10. The government will spy on you through that little camera hole in your laptop.

11. Zero tolerance policies in schools will reach new heights in absurdity, as children are suspended for using imaginary weapons.

12. Judges will start issuing warrants based on predictions of future crimes.

13. Local governments will ban people from growing food on their own property, for their own consumption.

14. Police will finally give up any pretense about "protect and serve," and just explicitly declare that they are now soldiers, and American neighborhoods are "battlefields."

15. Some states will begin paying allegedly independent crime lab analysts based on how many convictions they help prosecutors to win.

16. College kids suspected of underage drinking will be treated as if they were violent felons who had just escaped from prison.

17. Law enforcement officers will prey on the mentally disabled, tricking or coercing them into becoming pawns for gun or drug stings, then arresting them for it.

18. NSA records will be utilized by law enforcement agencies for purposes that have nothing to do with national security -- like drug investigations. The government will then destroy any records showing how those investigations actually began.

19. So long as they can plausibly claim that they're looking for a suspected cop killer, the police will basically be given carte blanche to open fire on innocent people.

20. Taking videos of your young kids playing in the bath will be cause for prosecutors to bring child pornography charges against you, effectively ruining your life and ending your career.

So as you've probably guessed by now -- especially if you clicked on the links -- the gag here is that none of these are actually predictions. They all happened in 2013. (A couple in 2012.)

I will make one real prediction for 2014: It's probably going to get worse.

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2013 Likely To Be The Safest Year For Cops In Decades

Radley Balko   |   December 16, 2013    2:46 PM ET

With only a couple weeks to go, 2013 is shaping up to be the safest year for police officers since the 1950s.

According to the National Law Enforcement Officers Memorial Fund, 97 police officers have died on the job so far this year. That's down 15 percent from this time last year. And last year, 120 cops died, the lowest raw number since 1959. If you look at the rate of fatalities -- cops who died as a percentage of cops on duty -- we're looking at the safest era for cops in over a century.

Even these figures include non-homicide deaths like heart attacks or car accidents. Actual violence against police officers is dropping even more dramatically. This year, for example, firearms-related officer fatalities are down 38 percent from last year, and last year was already among the lowest in decades.

The overall police fatality rate has been falling pretty consistently for quite a while. But even good news can be framed to look bad. In 2010 and 2011, for example, there was slight uptick in the raw number of officer fatalities. It's increasingly looking like this was little more than statistical blip -- again, it came after 15 years of decline. But that slight increase in 2011 still led to a wave of panicky stories in which reporters and police groups speculated about what ominous trends could be responsible for this "surge" in violence. Among the suggestions: citizens recording cops with their cell phones, brazen criminals, anti-government rhetoric from Tea Party types, increased gun ownership, budget cuts, and the proliferation of "cop watch" sites on the Internet. Well, now it's nearly 2014. The cell phone videos continue. The Tea Party is still around. Gun ownership is about the same. Budgets are still tight. And cop watch sites are spreading. Curiously (or perhaps not), there were no stories last year -- and there have been none that I can find so far this year -- exonerating those trends now that police fatalities are dropping again.

I suspect we'll see some coverage of the drop, but if it's like past coverage, police groups will credit new powers, weapons, and policing tactics for the good news. It's a clever way to frame the discussion. If police fatalities go up, we need to give police more power to protect themselves. If police fatalities go down, it's because the new powers we've given police are working. The result is a one-way public policy ratchet.

Assaults on police officers have been dropping, too. This suggests that bigger guns, more aggressive tactics, and even improved body armor may not necessarily be responsible for the drop in fatalities. It isn't just that people are less successful at killing cops, it's that they're less likely to try. The public may be more willing to criticize police, and cell phone videos and cop watch sites may be exposing and bringing new attention to bad cops, but it's all being done peacefully. There's no evidence that this heightened public scrutiny is leading to violence.

The real cause for the drop is probably related to whatever trends are responsible for the drop in overall crime over about the same period. Criminologists are still putting out theories for that, but have yet to come to a consensus.

None of this is to diminish the genuine bravery many cops display while doing their jobs, or to say that the job doesn't come with some risks. But our neighborhoods aren't war zones -- far from it. Yet cops are constantly reminded of how dangerous their jobs are. They regularly hear warnings like, "Treat every interaction as if it could be your last." This can created a tendency for police officers to see the people they serve not as citizens with rights, but as potential threats.

This may be why officer-involved shootings are actually increasing in many jurisdictions, even as attacks on cops and overall crime is in decline. (It's hard to say if officer-involved shootings are up nationwide. While several government agencies and private groups keep track of cops killed and assaulted on the job, there's no comprehensive national data on how often police shoot at citizens.)

This is all very good news. We should be celebrating it, and letting cops everywhere know that their chosen career is as safe today as it has been in a century.

Slowly, A Consensus Emerges To Oppose The Security State

Radley Balko   |   December 13, 2013    9:18 AM ET

From a new Reason/Rupe poll (pdf):

Do you think local police departments using drones, military weapons and armored vehicles are necessary for law enforcement purposes, or are they going too far?

• Necessary ............................................ 37%
• Going too far........................................ 58%
• DK/Refused ............................................ 5%

This seems consistent with other polling data showing that the public is finally turning on issues like marijuana legalization and mass incarceration. (Public support for the death penalty remains pretty high, but I have some theories on why that might be.)

In my book, I talk about how police militarization has flourished in part because while partisans on the left and right have been quick to denounce heavy-handed tactics when used against people with whom they sympathize or to enforce laws that they oppose, they've been somewhere between silent and gleeful when such tactics are used against their political opponents. But that too is changing. The reaction to the book has been encouraging, from across the political spectrum.

More broadly, I think there's an increasing pan-ideological realization that the creeping surveillance/security/military state is starting to tread on the values and principles that are critical to a free society. And more encouraging yet, a willingness to speak up when government violates the rights of one's political opponents.

There were a couple more examples this week. First up is Kevin Williamson, writing at National Review Online:

Our relationship with the national-security and public-safety bureaucracies has changed. It used to be that you called the fireman to get your cat out of a tree; now the policeman shoots your dog. We have police rolling through the streets of such combat zones as Lubbock, Texas, in armored vehicles, wearing camouflage uniforms to help them blend into the honeysuckle bushes and crepe myrtle . . .

Things are bad on the police front, but they’re even worse on the national-security front. There has always been a tacit understanding that organizations such as the CIA are inescapably in the moral-compromises business, and that they would occasionally do things that were unsanctioned. In a perverse sense, the whole point of the CIA is to sanction the unsanctioned — we create a limited license while keeping those necessary acts of coloring outside the lines contained in an intelligence community that could be counted upon for its discretion, professionalism, and competence. We created a monster, probably a necessary monster, and put it on a leash. That leash was not a body of laws so much as a tradition of good judgment: When the lines of demarcation are murky, we must perforce place our trust in the judgment of men rather than in codes and statutes. The assumption was that they were good men who were good at what they did . . .

Today the police, military, and intelligence worlds are closely interconnected. And they are, collectively, a menace. The Soviet Union was a much more credible geopolitical threat than Islam-in-arms will ever be, but during the Cold War, we met allegations that Americans were working with Communist insurgents — and some of them were — with hearings, investigations, and trials. We did not assassinate them. But between the so-called wars on drugs and terror, we have let that monster off the leash, or at least given it a leash so long as to be practically useless.

Next comes Chase Madar, in a piece that was widely syndicated across the progressive web this week.

If all you've got is a hammer, then everything starts to look like a nail. And if police and prosecutors are your only tool, sooner or later everything and everyone will be treated as criminal. This is increasingly the American way of life, a path that involves "solving" social problems (and even some non-problems) by throwing cops at them, with generally disastrous results. Wall-to-wall criminal law encroaches ever more on everyday life as police power is applied in ways that would have been unthinkable just a generation ago.

By now, the militarization of the police has advanced to the point where "the War on Crime" and "the War on Drugs" are no longer metaphors but bland understatements. There is the proliferation of heavily armed SWAT teams, even in small towns; the use of shock-and-awe tactics to bust small-time bookies; the no-knock raids to recover trace amounts of drugs that often result in the killing of family dogs, if not family members; and in communities where drug treatment programs once were key, the waging of a drug version of counterinsurgency war . . .

But American over-policing involves far more than the widely reported up-armoring of your local precinct. It's also the way police power has entered the DNA of social policy, turning just about every sphere of American life into a police matter.

Madar's piece is quite long, and an excerpt doesn't really do it justice. I'd encourage you to read the whole thing.

The nice thing about both of these pieces is that they find space to criticize the garrison/incarceration state on issues usually championed by the other side. Williamson, for example, criticizes the harassment of law-abiding Muslims. It's also interesting to see publications like National Review, the Daily Caller, and the Free Beacon increasingly running pieces about police misconduct. Madar gets into the problem of overcriminalization, a term conservatives and libertarians use to describe broadly-written white collar laws, confusing administrative law, and the broad prosecutorial powers that make it difficult to run a business. I'm sure both would find things to disagree with in the other's article. But generally there's agreement here, and Williamson and Madar aren't outliers in their respective movements.

In theory, Democrats are supposed to defend civil liberties, and Republicans are supposed to defend businesses from onerous regulations that make it more difficult to operate (but increasingly can actually result in criminal charges). In reality, government operates more like a one-way ratchet. Once in office, politicians tend to be reluctant to limit their own power. So Republicans tend to compromise on reining in bureaucracy and regulation, while expanding the security and military state, and Democrats tend to compromise on all of that and civil liberties, while expanding the bureaucracy.

I don't know that much of this can really be stopped. Politicians are pretty risk-averse on these issues. It will take more than just giving them political cover to roll any of this back. It will need to become a political liability for them not to. But if intellectually honest opinion leaders on the left and right continue to speak up, that might at least slow it all down.

HuffPost writer and investigative reporter Radley Balko is also the author of the book, Rise of the Warrior Cop: The Militarization of America's Police Forces.

Chief Judge For 9th Circuit Cites 'Epidemic' Of Prosecutor Misconduct

Radley Balko   |   December 11, 2013   11:36 AM ET

The dissent by Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. v. Olsen starts off with a bang:

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

Brady, of course, is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a ruling from a three-judge 9th Circuit panel in January detailed extensive questionable conduct on the part of the prosecutor, Assistant U.S. Attorney Earl Hicks (*see clarification below), who works for the Office of the U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion this week doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)

Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialists, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.

But at the time of the trial, one forensic analyst who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."

AUSA Hicks knew about the investigation of Melnikoff and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize it as an "administrative" review that was limited to one case from 10 years ago.

While the 9th Circuit panel found that the investigation was evidence unfavorable to the prosecution that wasn't turned over to Olsen's attorneys, the court also determined that the evidence wasn't "material" to Olsen's conviction. That is, even if it had been turned over to Olsen's attorneys, Olsen would likely have been convicted anyway. (The opinion did not address whether the evidence had been suppressed.) Here's where Kozinski, dissenting from the 9th Circuit's decision Tuesday not to rehear the case before the full court, rips into his colleagues:

"The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

Kozinski also has some choice words for Hicks, though again, it's unfortunate that he doesn't call the prosecutor out by name.

"Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care."

Nor, unfortunately, do bar associations or disciplinary boards. In a phone interview today, Olsen's attorney Peter Offenbecher says he's profoundly disappointed with the decision. "My client did not get a fair trial. And it's because of a systemic problem of misconduct that the courts fail to correct. It's a sad day for the criminal justice, and it's a sad day for the Constitution."

The U.S. Department of Justice is stingy when it comes to releasing information about disciplining federal prosecutors for misconduct, but it seems unlikely Hicks will face any real sanction. Recent media investigations have found that such discipline is rare. Even in cases involving high-profile, egregious misconduct, like the prosecution of the late U.S. Sen. Ted Stevens, prosecutors can usually duck any serious sanction. In the Stevens case, the DOJ imposed light suspensions on the offending prosecutors, and even those were later overturned by an administrative law judge. (You could make a strong argument that federal prosecutors have more protections against professional sanction than criminal defendants do against violations of their constitutional rights by federal prosecutors.)

Offenbecher says it's unlikely that he'll file a complaint against Hicks. That isn't uncommon, either. Defense attorneys have to work with prosecutors on behalf of other clients, including negotiating favorable plea bargains. Putting yourself in the cross-hairs of a U.S. attorney's office can make it very difficult to be an effective advocate. That's a lot of risk to take on, especially if it's unlikely that anything will actually come of the complaint.

Offenbecher didn't cite those reasons, though. He said that at the moment, he's just more interested in achieving justice for his client than seeing a federal prosecutor get punished.

That's certainly understandable. But it highlights a system that provides strong incentives for prosecutors to shortcut constitutional rights (convictions are good for a prosecutor's career) and provides no incentives whatsoever for the courts, defense attorneys, bar associations or anyone else to do anything about it.

(The Office of Michael Ormsby, U.S. Attorney for the Eastern District of Washington, did not return my call requesting comment.)

UPDATES AND CLARIFICATIONS: A spokesman for U.S. Attorney Michael Ormsby contacted me after this post went live. He emphasized that the panel opinion in the case did not find that AUSA Hicks committed a Brady violation. When I asked if that means that U.S. Attorney Ormsby believes that Hicks was not obligated to turn over the exculpatory evidence, the spokesman referred me back to the opinion, and emphasized that the opinion found no Brady violation. When I asked if this means that the office believes Hicks did nothing wrong, the spokesman again referred me to the opinion, and again emphasized that it found no Brady violation.

It's also not completely clear that Hicks knew of the extent of the investigation. Kozinski's opinion "imputes" that knowledge to him, which is to say it's information he should have known and turned over. But it's possible that he simply didn't bother to find out, which then allowed the court to proceed based on a mistaken understanding of the investigation. If that's the case, then Hicks was guilty of incompetence, or perhaps willful ignorance, but not of knowingly suppressing evidence favorable to Olsen. Therefore, the previous assertion in the post that the panel found Hicks to have committed extensive misconduct wasn't accurate. While Kozinski and the minority of judges who joined in his dissent thought there was misconduct, once the panel had determined that the favorable evidence wasn't material, they didn't come to a conclusion on the question of whether Hicks knowingly suppressed that evidence or whether he was obligated to seek it out.

CORRECTIONS: Olsen's attorney is Peter Offenbecher. This post originally identified him as Paul Offenbecher. Also, an earlier version of the story did not clearly distinguish between the 9th Circuit's December decision to deny a full-court rehearing in U.S. v. Olsen, from which Chief Judge Kozinski dissented, and the January panel decision that had detailed questionable prosecutorial conduct.

DOJ Agency Warns Of Police Militarization

Radley Balko   |   December 9, 2013    9:27 AM ET

In the monthly e-newsletter for the Justice Department's Community Oriented Police Services (COPS) program, Senior Policy Analyst Karl Bickel sounds the alarm about the militarization of America's domestic police forces. Here's his conclusion:

Police chiefs and sheriffs may want to ask themselves—if after hiring officers in the spirit of adventure, who have been exposed to action oriented police dramas since their youth, and sending them to an academy patterned after a military boot camp, then dressing them in black battle dress uniforms and turning them loose in a subculture steeped in an “us versus them” outlook toward those they serve and protect, while prosecuting the war on crime, war on drugs, and now a war on terrorism—is there any realistic hope of institutionalizing community policing as an operational philosophy?

Given that a number of federal agencies are responsible for incentivizing and providing the hardware for police militarization, it's interesting -- and encouraging - to see a federal agency publish a piece like this. I suppose if there were a federal agency that would publish it, it would be COPS, which promotes a style of policing that's in direct contradiction to the trend Bickel, and I, and others, find troubling.

Community policing should be the antithesis of militarization. It puts cops directly into the community, where they walk beats, attend neighborhood meetings, and know the names of the high school principals and business owners in the areas they serve. The idea is to give the cops a stake in these communities, so they're seen by the communities -- and see themselves -- as citizens protecting and serving other citizens, not enforcers fighting wars on crime, or drugs, or terrorism.

But it's also worth noting that while its aims are certainly noble, the federal COPS program itself has contributed to the problem. It's another example of good intentions not necessarily producing unintended consequences. If you'll permit the indulgence of quoting from my own book:

In 1994 Clinton started a new grant program under the Justice Department called Community Oriented Policing Services, or COPS. For its inaugural year, Clinton and leaders in Congress (most notably Sen. Joe Biden) funded it with $148.4 million. The next year funding jumped to $1.42 billion, and it stayed in the neighborhood of $1.5 billion through 1999. COPS grants were mostly intended to go to police departments to hire new police officers, ostensibly for the purpose of implementing more community-oriented policing strategies.

The problem was that there was no universal definition of community policing. Most law enforcement officials and academics agree that community policing is a more proactive approach to policing than call-and-response, but within that general agreement is a huge range of approaches.

The style of community policing embraced by officials like [reform oriented police chiefs Nick] Pastore and [Norm] Stamper aims to make police a helpful presence in the community, not an occupying presence. But theirs is not the only way to be proactive about law enforcement. Street sweeps, occupation-like control of neighborhoods, SWAT raids, and aggressive anti-gang policies are also proactive . . .

One of the first to notice what was going on was Portland journalist Paul Richmond. “The unfortunate truth about community policing as it is currently being implemented is that it is anything but community based,” Richmond wrote in a 1997 article for the alternative newspaper PDXS. Instead, he wrote, in Portland the grants had resulted in “increased militarization of the police force.” . . .

[Criminologist Peter] Kraska found that when most law enforcement officials heard “community policing,” they thought of the militarized zero- tolerance model. To them the idea of a police agency simultaneously militarizing and implementing community policing policies was perfectly reasonable.

In fact, two out of three departments Kraska surveyed said their SWAT team was actually part of their community policing strategy. Surprising as that may seem at first glance, it went hand in hand with the increasing use of these tactical teams for routine patrols.

In 2001 a Madison Capital Times investigation found that sixty- five of Wisconsin’s eighty-three local SWAT teams had come into being since 1980—twenty-eight of them since 1996, and sixteen in just the previous year. In other words, more than half of the state’s SWAT teams had popped up since the inaugural year of the COPS program. The newer tactical units had sprung up in absurdly small jurisdictions like Forest County (population 9,950), Mukwonago (7,519), and Rice Lake (8,320). Many of the agents who populated these new SWAT teams, the paper found, had been hired with COPS grants. A local criminologist was incredulous: “Community policing initiatives and stockpiling weapons and grenade launchers are totally incompatible.”

Perhaps that was true in theory, but not in how community policing was being practiced.

All of that said, the COPS program is a favorite of Vice President Biden. (He claims credit for helping to create it.) And re-funding the program was one of Obama's campaign promises in 2008. If the agency has or can get the ear of the White House, perhaps folks like Bickel can convince the Obama administration to end the Pentagon's giveaway of military gear to police departments across the country, cut the DHS grants that go toward purchasing even more military-like gear, or stop the federal grants and asset forfeiture policies that encourage the use of SWAT teams to serve warrants for nonviolent drug crimes.

HuffPost writer and investigative reporter Radley Balko is also the author of the book, Rise of the Warrior Cop: The Militarization of America's Police Forces.

Lawsuit: Cops Storm House, Beat Occupants, Kill Parakeet

Radley Balko   |   December 8, 2013   10:30 PM ET

Your police outrage of the day comes courtesy of the NY Daily News:

City cops barged into the home of a Staten Island mom without a warrant, beat up her family and callously killed her pet parakeet, according to court papers . . .

Lugo’s son Edwin Avellanet was taking a bag of garbage outside when cops stopped and questioned him about an orange construction cone placed in front of their Corson Ave. home to save a parking spot, according to lawyer Jason Leventhal.
The cops demanded to see identification and Avellanet, 26, refused, stating that he had done nothing wrong. A cop grabbed Avellanet by the arm, but he was able to break free and retreat into the house, according to the suit . . .

Additional cops arrived and swarmed throughout the house looking for Avellanet.

“They threw me like a piece of garbage on the floor,” Lugo said.

Another son, George Lugo, and family friend Luis Ortega were struck in the head repeatedly with a baton and suffered severe facial injuries, according to the complaint filed Nov. 29 in Brooklyn Federal Court.

Lugo’s daughter, Alba Cuevas, has asthma and was having difficulty breathing due to the pepper spray cops used. She ducked into a bedroom to catch her breath and was arrested. Criminal charges against Ortega, Lugo and Cuevas were later dismissed and sealed, according to the suit. Avellanet, the subject of the cops’ initial stop-and-question, was not charged.

This is only the plaintiff's side of a lawsuit, so keep that in mind. Still, the photos accompanying the article certainly suggest the family was roughed up. And the fact that the criminal charges were dropped would seem to indicate that whatever the police thought was going on inside, there either wasn't any evidence of criminal wrongdoing, or it wasn't a particularly serious offense.

These were also NYPD cops. Last year, officers from the same department last year shot and killed unarmed Ramarley Graham, also after hastily storming his house, also without a warrant.

Happy Repeal Day! Here Are Some Things You May Not Have Known About Alcohol Prohibition.

Radley Balko   |   December 5, 2013   10:23 AM ET

Today is the 80th anniversary of Repeal Day, when America finally lifted its disastrous, 13-year experiment with alcohol prohibition. Here are a few facts about booze and Prohibition you may not have known:

-- Though Prohibition led to a spike in homicides, widespread corruption, alcohol poisonings, and undermined respect for the rule of law, its repeal wasn't motivated by any of those things. Rather, lawmakers came around because during the Depression, cash-strapped states needed money, and legalizing and taxing alcohol was a promising source of revenue. There are lessons here, and the drug war reform movement has learned them well.

-- The narrative of Eliott Ness as the crusading fed who brought down Al Capone is a myth -- a myth fabricated by Ness himself.

-- In some places, Prohibition wasn't enforced at all -- Pittsburgh for example. In Kansas City, Missouri, the Pendergast political machine kept the taverns open and the booze flowing in spite of the federal ban. When the infamous temperance activist Carrie Nation brought her bottle-smashing hatchet over from neighboring Kansas, she was arrested, and barred her from ever stepping foot in the city again.

-- Federal Prohibition didn't ban the possession or consumption of alcohol, only its manufacture, import, and sale. (Though some state and local laws went farther.) That may be why the government wasn't as successful at demonizing drinkers as it has been in vilifying and dehumanizing drug users. You could still drink without getting arrested. It's also why we didn't see the sorts of violent raids on private homes that we've seen with the drug war.

-- Alcohol was still available for use as medication. This of course led to a variety of dubious alcohol treatments for various ailments, similar to what we've seen today with medical marijuana (although there are certainly legitimate medicinal uses for both). But because it was illegal to make or import alcohol, the legal prescriptions were typically filled with domestic booze that had already been distilled, most notably bourbon. This drained the country's bourbon reserves. When Prohibition was then lifted in 1933, there was little aged bourbon left in America. Meanwhile, Scotch whiskey continued to be distilled and aged throughout Prohibition. The stills were barely dripping again before World War II hit, during which many were converted to make fuel and penicillin. It took bourbon decades to catch back up.

-- Despite the spike in homicides, the corruption, the alcohol poisonings, and the erosion of respect for the rule of law, some modern-day drug warriors from moral conservatives on the right to public health progressives on the left still insist that Prohibition "worked" -- that it did indeed significantly cut down on alcohol consumption in America. (I'd argue that making overall consumption your only measure of success -- while ignoring all of the costs -- doesn't speak well of your priorities.)

-- As with the campaigns against cocaine, heroin, and marijuana, the march to Prohibition included appeals to bigotry and racism. And as we've seen recently with the federal government's efforts to link drug use to today's terrorist bogeyman, in the early 20th century, Prohibition was tied to America's World War I villains, the Germans. American breweries were commonly owned by German immigrants and their ancestors. So the Anti-Saloon league appealed to nationalism with slogans like, "Sobriety is the bomb that will blow kaiserism to kingdom come." As Eric Burns writes in his book Spirits of America, Anti-Saloon League spokesman Wayne Wheeler once wrote a letter to U.S. Attorney General A. Mitchell Palmer to inform him that "there are a number of breweries in this country which are owned in part by alien enemies. It is reported to me that the Anheuser-Busch Company and some of the Milwaukee companies are largely controlled by alien Germans . . . Have you made an investigation?"

Burns writes that many German-Americans even changed their last names out of fear of harassment and persecution. One of them was Frederick Mueller. You've probably consumed some of the beer produced by the company he founded -- it's now called Miller.

Temperance advocates included eugenicists and future Nazis among their ranks. The Ku Klux Klan was a prominent temperance advocate, and often collaborated with groups like the Women's Christian Temperance Union and the Anti-Saloon League. In the early days of the movement, advocates played to white fears about allowing freed slaves to consume alcohol. Temperance activists also pushed stereotypes and fears about American cities teeming with boozy Catholic immigrants from Europe.

-- Another area where Prohibition wasn't enforced? The halls of Congress.

-- The legacy of Prohibition of course remains with us, mostly in the form of the amusing, often absurd blue laws still in effect across the country. At the federal level, it took Congress until 1978 to finally legalize home brewing and wine making. It's still illegal to distill your own liquor, even if only for your own use. More bizarre still, if you want to open up a commercial distillery today, you still must attest to the federal government that (a) you have the knowledge and skill to distill alcohol properly, and (b) you've never distilled alcohol before.

I for one plan toast tonight . . . to my freedom to toast.

The L.A. Sheriff's Dept. Is Hiring Cops With Shady Pasts

Radley Balko   |   December 3, 2013   10:49 AM ET

A whopper of an investigation from the L.A. Times over the weekend found that the Los Angeles County Sheriff's Department -- the largest sheriff's department in America -- is hiring cops with histories of disciplinary and abuse of force problems. Of the 280 new hires in 2010 at the department, the paper found that:

-- 188 Were rejected for jobs at law enforcement agencies before being hired by the Sheriff's Department.

-- 97 showed evidence of dishonesty.

-- 92 were disciplined previously by other police agencies for significant misconduct on duty.

-- 29 were fired or pressured to resign from a previous law enforcement job.

-- 15 were flagged by background investigators for trying to manipulate the results of a polygraph exam.

It's one thing to fail a polygraph. The tests are far from perfect. It's quite another to get caught trying to cheat on a polygraph test -- and then get hired, anyway. And we aren't talking about, say, a construction job, here. We're talking about taxpayer-supported officials who carry guns, who wear badges, who are authorized to use force, and upon whose word people arrested, convicted, and imprisoned.

But that appears to be exactly what happened. From the report:

One taped recording of a background interview suggests the department made special accommodations for the county officers.

In the recording, a sheriff's investigator tells an applicant who was caught cheating on his polygraph exam that normally that would have meant "goodbye, you're done, there's no second chances." The investigator then told the applicant that he and other suspected cheaters might not be disqualified "as a favor because, you know, it's law enforcement." The applicant was eventually hired.

Consider Dep. David McDonald. According to the paper, at a previous job, "[a] fellow deputy asked not to work with McDonald because he said McDonald harassed inmates by calling them names. Asked by a supervisor how he thought inmates should be supervised, McDonald said 'Well, like Clint Eastwood, tell them what to do and they either do it or else.'" McDonald was hired as a "jailer." Apparently, this surprised even him. He told the L.A. Times, "How can you put me back in the jails when I already had a problem there?" He then lamented that, "Whenever you're gonna jack up an inmate, you have to call a supervisor first." Damned bureaucracy! McDonald has since been disciplined for abusing an inmate.

When the department got word of the L.A. Times investigation, it immediately launched a criminal investigation . . . to find out who leaked the personnel files. (That's the real scandal, here!) The department's practice of hiring cops with records of abuse will merely get a "review." The police union then tried to sue the L.A. Times to prevent the paper from publishing the series.

Sadly, this sort of investigation has become something of a chestnut. (Which isn't to denigrate the piece itself -- it's important journalism.) Similar exposés across the country have shown how difficult it can be to fire bad cops, and how even when fired, bad cops are easily rehired in other jurisdictions. A few recent examples include investigations in Washington, D.C.; Hartford, Connecticut; Houston, Texas; Philadelphia, Pennsylvania; Portland, Oregon; and all over Florida.

The bad cops can mostly thank police unions for their jobs. Unions may be dying in the private sector, but law enforcement unions still wield an inordinate amount of power. When cash-strapped state and local governments have no wiggle room on fiscal issues like salary or benefits, they can bargain instead with transparency and accountability. This is why so many cities and states now have some version of a "police officer bill of rights" -- a set of protections given to cops accused of wrongdoing that aren't afforded to regular people, and that make it much more difficult to fire bad cops, or for journalists or attorneys for victims of police abuse to establish patterns of abuse.

California is also one of just a handful of states that doesn't permit revoking the certification of bad cops to prevent them from working elsewhere. Even in states that have this ability, it's underused. But it's obviously worse in states where decertification isn't even an option.

If history is any guide, the policy change we're most likely to see as a result of the L.A. Times investigation is tighter restrictions on police personnel files. They're already supposed to be confidential in California (and elsewhere), a policy that essentially entrusts police departments to investigate their own, free from press or public scrutiny.

The perverse irony is that this story shows exactly why letting police police themselves is such a bad idea.

The Police-Industrial-Entertainment Complex

Radley Balko   |   December 2, 2013   10:54 AM ET

In my book on police militarization, I have a section on the role pop culture has played in blurring the line between cops and soldiers, particularly with the onset of reality(ish) shows like A&E's Dallas SWAT or Spike TV's DEA. Over at the blog Gun Culture 2.0, sociologist David Yamane looks at a bizarre new reality competition on the Outdoor Channel called Elite Tactical Unit: S.W.A.T., which features SWAT teams from across the country competing in a number of SWAT-like competitions for a $100,000 prize. As Yamane describes it, "ETU is basically 'Survivor' set in the world of police special forces."

Of particular interest is the show's sponsorship by the Swiss gun manufacturer SIG Sauer. Yahame points to this commercial which apparently often airs during the show, and makes no effort whatsoever to distinguish cops from soldiers, or the police from the military.

We're looking at the formation of what you might call a "police-industrial complex," in which we now have companies like SIG, Lenco, and others who either have recently sprung up entirely to build military-grade gear for police agencies, or who are diverting resources away from securing Pentagon contracts toward marketing their services to police. This has all been driven by federal, state, and local policies that have eroded the distinction between the military and law enforcement, but these companies have then of course have a strong incentive to continue to chip away at that distinction themselves, as you see in the videos like the one above, or the one Lenco has used to market its Bearcat line of armored personnel vehicles.

We have policies that provide incentives for police to become more militarized. Those policies have given rise to a cottage industry of corporations whose bottom line now relies on further and perpetual police militarization. And over the last decade or so, the cable dial has been stuffed full of programming that serves to make us more comfortable with police units that treat neighborhoods like battlefields. It should be of no surprise then, when we learn of SWAT raids not just for low-level drug crimes, but also for zoning violations or underage drinking, or that there are now police departments in America that serve every felony search warrant with a SWAT team, regardless of the crime.

HuffPost writer and investigative reporter Radley Balko is also the author of the new book, Rise of the Warrior Cop: The Militarization of America's Police Forces.

The Other Feds-Snooping-On-Foreigners Scandal

  |   November 27, 2013    9:46 AM ET

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First Anal Probes, Now This. The Drug War Takes Another Horrifying, NSFW Turn In New Mexico.

Radley Balko   |   November 26, 2013    8:06 AM ET

From the state that gave us stories of forced anal probes, enemas, and colonoscopies a few weeks ago, we now get this:

A New Mexico woman claims she suffered for weeks after a Bernalillo County corrections officer strip-searched her and sprayed mace in her vagina.

“It’s tantamount to torture,” Peter Simonson, the Executive Director of ACLU of New Mexico said in an interview with 4 On Your Side.

The ACLU, on behalf of Marlene Tapia, filed a federal lawsuit this week two years after the alleged ordeal occurred -- two years after Tapia first contacted the organization.

Simonson said civil rights cases are complicated to build, but that his staff filed the case within the two-year statute of limitations.

According to court records, police arrested Tapia for a probation violation tied to a previous drug case. While at the Metropolitan Detention Center, Tapia said two officers strip searched her and asked her to bend over at the waist. That’s when they noticed a plastic baggie protruding from Tapia’s vagina.

Instead of taking Tapia to a doctor to have the baggie removed, she said one of the officers – Blanca Zapater – sprayed a chemical agent directly on her genitals twice.

Simonson said the chemical agent was mace.

It's worth noting that these incidents are rarely one-offs. A police culture that could allow this to happen once has likely allowed it to happen on other occasions.

And so this is where we are with the drug war. Government officials are shoving fingers, tubes, and cameras up rectums, sticking hands into vaginas, and spraying mace on genitals, all to protect us from ourselves -- to stop us from getting high. Feel safer?

White Woman Experiences 'Walking While Black'

  |   November 25, 2013    8:27 AM ET

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