Not Offending May Not Be Enough

Steve M. makes a interesting and thought-provoking argument  when he blogs

Mike Huckabee's PAC just put out a pugnacious ad for his presidential campaign. It blames Bill and Hillary Clinton for the poor treatment of Huckabee by then-majority Arkansas Democrats when he was elected lieutenant governor in 1993 (the ad implies that the Clintons were personally responsible for the mistreatment, but Bill had been president for nearly a year by then). The Washington Post's Chris Cillizza isextremely impressed by this ad, though it's no nastier about the Clintons than every other Republican's ads will be, and it sacrifices some of what used to be one of Huckabee's natural advantages -- his nice-guy persona -- for standard-issue GOP slash-and-burn.

But that's not why I'm writing about the ad. I want to direct your attention to something Huckabee says about 36 seconds in:












In Cillizza's words:

Ask yourself who in the current 2016 Republican (or Democratic) field could say the following words without sounding like a total phony: "Any drunken redneck can walk into a bar and start a fight. A leader only starts a fight he's prepared to finish." The answer is, aside from Huckabee, no one.
The problem isn't that anyone else in the field who said that would sound like a phony -- the problem is that anyone else who said it would be offending rural Southern voters. Jeb can't say it. Marco and Scott and Rand can't say it.

So why can Huckabee say it? Because he's a genuine son of the rural South. He's eaten squirrel. It's his group. So he can use a word for members of the group that would be offensive coming from an outsider.

Which is precisely how the N-word works. Black people have a certain leeway regarding its use that we white people don't, and it's not because black people are special -- it's because in-group members always have a certain leeway regarding in-group slurs.

I've said this before here, but I grew up in an Italian-American neighborhood, and when I was a child I regularly heard Italian-American adults use words like "guinea" and "greaseball" in reference to fellow Italians when talking to other Italians. Within the group it was fine. Outside the group, not so much. Whether you like the logic or not, that's how it works.


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Sure, Huckabee can say things to a southern crowd that the other candidates can't because he is "a genuine son of the rural South."  Nonetheless, SM uncharacteristically misses a few points.

Leave aside for the moment that however offensive "redneck" (or even "drunken redneck") is, it is less offensive and incendiary than the "n" word.  SM evidently believes that Italian-American adults using words like "guinea" and "greasball" were inoffensive and thus acting appropriately when talking to other Italians.

But it wasn't fine. It was merely not offensive. The two colloquialisms still were (and are) derogatory terms. Moreover, use of the terms by Italian-Americans helped normalize them, implanting the message that they were acceptable- after all, even that group was using them.

Notice, additionally, how SM slips in the noun "adults."  Most blacks- as with most non-blacks- using the "n" word are not adults, but  juveniles.

Consider that not only are blacks using the word with other blacks often given a pass, but whites are sometimes, also. If you as a European-American, while clearly not in anger use the "n" word with a black friend, you may (depending on the circumstance) not be rebuked. Your friend, believing that you are not a bigot and don't mean it in a racist sense, may not be offended.

And that would be... what- okay?  It would be fine if our only consideration were whether an individual or a group is offended.  When increasingly these days we are armed with our exquisite sensitivity, our feelings become not only an inflated issue but the only issue.  We have lost sight of the term "derogatory" and the accompanying concept that some actions and statements simply are wrong.    Repeating an offensive word ad infinitum does not justify using it.

The members of the group may believe they are privileged and enjoy the untrammeled right, immune from criticism, to use the "n" word or, in Steve M.'s old neighborhood, the "g" word. Nonetheless, they can't escape the reality that outsiders are going to believe (or accept subconsciously) that the term- allegedly so offensive to the group- must then be acceptable. Whether you like the logic or not, that's how it works.

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His Legacy Awaits, Potentially

Representative Gerry Connolly of Virginia seems to be leading the charge of the pro-corporate New Democrat Coalition for fast-track authority for the Trans-Pacific Partnership and the less controversial Transatlantic Trade and Investment Partnership (TTIP or Trans-Atlantic Free Trade Agreement/TAFTA). He warns  "This is President Barack Obama’s trade deal, and we shouldn’t allow Democrats to forget that.”

Fortunately for Connolly/Obama and  unfortunately for the country, the Republican caucus, which supplied in the entire Congress zero(0) votes for the Affordable Care Act, generally has forgotten that the TPP is President Barack Obama's trade deal.  At least 172 of 245 House Repubs ar expected to vote for the deal.

No more than twenty Democrats in the House will be supporting the President's effort to obtain authority for an up-and-down vote, with no amendments allowed, in Congress for the TPP. It is clear, as it always has been, that Representative Alan Grayson will be among the majority in his Party. In the video below, among his arguments is the TPP and the TAFTA

would put our $30/hour workers directly in head-to-head competition with workers in Vietnam and Brunei, who are lucky to make 30 cents an hour. 

"Free trade" countries like that are free of health and safety rules and environmental protection, free of social security, pensions and health care, free of child labor laws, free of the right to organize, and even free of the rules against slave labor.






Charles Pierce describes the TPP as "the job-wrecking locomotive coming down the track to which the American middle class is tied."  Long-lasting and irreversible, the damage to the country nonetheless would be gradual, which might be the only factor preventing it from being President Obama's dominant legacy, exceeding that of even the Affordable Care Act. Sticking a shiv into the middle class- heckuva job, Barack.

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Put Up Or... Be A U.S. Senator

Charlies Peters, in a post which devastates critics of Senator Elizabeth Warren, writes

Within the Republican centers of power, "Criminal justice reform" does not exist as an actual issue. It exists as dumbshow in an attempt to convince minority voters that the Republican party is on their side. If the Republican party really were interested in actually reforming the criminal justice system in this country, it would have gotten behind then-Senator Jim Webb's attempt to do that during his one term in the Senate. Instead, it filibustered even the possibility of a commission to study the problem. When either the REDEEM Act or the Smarter Sentencing Act come to a vote, then I'll take the point.

Warren, Peters notes, would strongly support these reform measures, but that given the perspective on Wall Street of Booker (whom he says may be a "Wall Street sublet") and his GOP allies, it is slightly ridiculous to suggest the New Jersey senator is more of, or more effective as, a progressive than the Massachusetts senator.

"When either the REDEEM Act or the Smarter Sentencing Act come to a vote, then I'll take the point," Peters vows. However, it is not beyond the realm of possibility than one or the other will, given that neither is particularly confronts entrenched interests and it would be difficult for conservatives to gin up opposition to two fairly innocuous pieces of legislation.

I will take the point when either of two other possible reform measures comes to a vote. A press release from Utah Senator Mike Lee maintains "The Smarter Sentencing Act is a commonsense solution which will "give judges the flexibility and discretion they need to impose stiff sentences on the most serious drug lords and cartel bosses, while enabling nonviolent offenders to return more quickly to their families and communities."

Simpler, though, would be legalizing the possession of marijuana not clearly intended for distribution or, failing that, reclassifying the drug from the category of Schedule 1, where it sits with the likes of heroin and LSD,  which thus are "considered the most dangerous class of drugs with a high potential for abuse and potentially severe psychological and/or physical dependence."  While (or because) sensible, either move would provoke the ire of the right, which would be uncomfortable to Senator Lee (of Utah) or to GOP presidential aspirant Rand Paul or to Ted Cruz (declared GOP candidate), co-sponsors with Democratic Senators Durbin, Leahy, and Booker of the Smart Sentencing Act. Must not allow that to happen.

If real law enforcement or criminal justice reform is to take place, eggs must be cracked, not unlike in making an omelet.  Police culture is one place to start and might include considering, as the Philadelphia Inquirer's Craig McCoy reports,

In Philadelphia, police call it a "nickel ride."

In Chicago, police call it a "joyride."

In Baltimore, investigators are exploring whether Freddie Gray may have been fatally injured - his spine nearly severed - when he was subjected to what police there call a "rough ride."

Whatever the name, the practice of throwing prisoners into the back of police wagons, 

unbelted, and then subjecting them to high-speed stops and starts is an aptly named form of street justice that has been secretly administered for many years in many cities.

For rogue police, it is a way to injure suspects - literally without laying a hand on them - and with a guarantee that there are no witnesses.

"Nickel rides seem to be a fairly common practice throughout the country, especially in major cities," Philadelphia lawyer Thomas Gibbons said.

Gibbons represented a stonemason whose neck was broken after Philadelphia police put him in the back of a police wagon - unbelted. The city paid $490,000 last year to settle the man's lawsuit.

After The Inquirer published a story focusing on his experience and those of three others who alleged the same abuse, the Philadelphia Police Department last year launched a review of how it transports prisoners.

That report is due imminently. Yet, whatever the outcome in Philadelphia, it appears this sort of thing does go on in many jurisdictions.

But the federal government can take major strides to end it.  Washington subsidizes law enforcement in many cities and states with Homeland Security grants, Justice Department grants, and the military surplus program.   If the bipartisan gang reportedly gung-ho on reform wants to start somewhere, it can sponsor legislation prohibiting any money to be sent from the federal government to any city- or to any state which includes such a city- which cannot accurately certify that its law enforcement authorities avoids such tactics.

There would be an additional, more subtle, benefit to drawing attention to this tactic.  Realization would grow that blacks suffer disproportionately when police get out of hand. Yet, as illustrated by the photo below of a man who was awarded $490,000 because his neck was broken during transport by police, whites are not immune. Such clarity has been long been lacking.

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Skirting Responsibility

"What do you mean 'we,' kemosabe?"

In the days before hypersensitivity ruled the land, that was the punch line of this, and analogous, jokes. (I'm waiting for the day when our exquisite sensitivity is matched by careful consideration of the instances in which sensitivity is warranted, and not.)  In most analyses, neither the joke nor the term "kemosabe" is racist, but the line has gone by the wayside despite being applicable to many situations.

And so it was that President Obama responded to the riot(s) in Baltimore with a statement (prompted by a question) that was fair and balanced.  The violent protest, he noted, "is not a statement. It’s people -- a handful of people taking advantage of a situation for their own purposes, and they need to be treated as criminals." Still, he cautioned,  there are "thousands of demonstrators who did it the right way." Further,

if you have impoverished communities that have been stripped away of opportunity, where children are born into abject poverty; they’ve got parents -- often because of substance-abuse problems or incarceration or lack of education themselves -- can't do right by their kids; if it’s more likely that those kids end up in jail or dead, than they go to college.

The President omitted at least two causes.  Parents often can't do right by their kids because, with insufficient sex education and access to reproductive services (and other factors), there simply may be too many youngsters in the family for adequate child rearing.  Nor did the President mention a lack of jobs or of jobs which pay adequately. That may seem a petty complaint until one hears Obama say

Now, I’m under no illusion that out of this Congress we're going to get massive investments in urban communities, and so we’ll try to find areas where we can make a difference around school reform and around job training, and around some investments in infrastructure in these communities trying to attract new businesses in.

Positive change, as the President realizes, is unlikely, though a President who has given greater priority to deficit reduction than to ameliorating social ills has exacerbated the problem. Moreover, in citing school "reform" and "job" training, Obama threatens to make the situation far worse..

Through Obama's presidency, he has pushed charter schools, attractive to the private interests which make a killing off them, but less attractive to the public school system, itself in danger of being killed off by this destructive "reform."  And training for jobs which don't exist is not merely an inefficient lack of resources, but gives false hope to many individuals which, combined with other problems in the ghetto (yes, ghettos still exist; we simply are not allowed to acknowledge them anymore), is no prescription for peace and calm in the streets.

Instead, President Obama aggressively pushes the Trans-Pacific Partnership. But the TPP, the Economic Policy Institute finds, will reduce employment and wages as it "cause(s) substantial reshuffling of domestic production away from labor-intensive import-competing sectors" which "will clearly inflict damage on large groups (probably the majority) of American workers."















The Tonto of the "kemosabe" joke would have understood how the President went off the rails when he added

But if we really want to solve the problem, if our society really wanted to solve the problem, we could. It’s just it would require everybody saying this is important, this is significant -- and that we don't just pay attention to these communities when a CVS burns, and we don't just pay attention when a young man gets shot or has his spine snapped. 

One of the classic dodges is "society" or "our society" and in this case it is unclear to whom or what the President is referring. When he charges that "we (don't) really want to solve the problem," Obama is obligated to tell us who "we" is, to call out the culprit.   He is the President responsible for a massive bureaucracy and for setting the tone of American government. Of Congress, he merely says he is "under no illusion we're going to get massive investments in our communities."   Choosing not to specify "Republicans" or "conservatives" or "members of Congress from rural districts," Obama is pandering to the media and to those Americans who choose to write off the entire political establishment, to conclude "they're all the same."

Perhaps President Obama is saying every American bears that responsibility. That would be poppycock, but at least demonstrate some intestinal fortitude. Were he have done that, we could debate whether the responsibility does in fact lie with: your one friend who has lost his job and cannot find another because he has reached the ancient age of 40+; your cousin who cannot support her family on her minimum wage income at McDonalds; or your neighbors whose house is in foreclosure because of some NINJA loan a 'too big to fail' bank suckered them into.

Presumably, Barack Obama does believe each of us should be as accountable for the country's plight as his cabinet, the Speaker of the House, bank executives, or himself.  In one strange sense he would be right: your friend, relative, and neighbor have done about as much as he has to tackle the problems displayed in Baltimore.

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Ted Cruz Has Finally Gone Too Far

Who says Republicans don't have a conscience?

Gay hotelier  Ian Reisner, who with Matt Weiderpass hosted a dinner party in New York City, NY last week, for Ted Cruz, wants you to know he's sorry.  He has written on his Facebook page

I am shaken to my bones by the e-mails, texts, postings and phone calls of the past few days. I made a terrible mistake. I was ignorant, naive and much too quick in accepting a request to co-host a dinner with Cruz at my home without taking the time to completely understand al of his postiions on gay rigths. I've spent the past 2 hours reviewing videos of Cruz' statements on gay marriage and I am shocked and agrey. I sincerely apologize for hurting the gay community and so many of  our friends, family, allies, customers, and employees. I will try my best to make up for my poor judgement. 
Again, I am deeply sorry.

You bet he and Weiderpass (who later issued a weaker apology) are sorry, given that a boycott has arisen on Facebook.  Evidently, neither Reiser nor Weiderpass is familiar with the Internet, which would have informed them that the Texas Republican, ten other GOP Senators and one GOP Representative, in February re-introduced the State Marriage Defense Act. That would allow each state to determine for itself whether to prohibit same-sex marriage and require the federal government to defer to state law to determine whether a couple is married under federal law.

Leaving the matter up to the states- as if the Civil War had never occurred or had been won by the Confederacy- has become the fallback position for politicians opposing same-sex marriage. Additionally, as the Dallas News reported, while campaigning in Iowa on April Fools' Day Cruz

reiterated his vow to press for a constitutional amendment that would clarify the power of state legislatures to define marriage as the union of one man and one woman. If the high court does legalize gay marriage nationwide, he added, he would prod Congress to strip federal courts of jurisdiction over the issue, a rarely invoked legislative tool.

So Reisner is "shocked and angry" now that he has learned of Ted Cruz's views on marriage. However, he and Weiderpass apparently are not shocked and angry that Cruz, who has forgotten President Reagan sent arms to Iran in violation of the Boland Amendment, once claimed "This president of the United States is the first president we've ever had who thinks he can choose which laws to enforce and which laws to ignore."

Even now, neither guy is concerned that Cruz has charged "global warming alarmists are the equivalent of the flat-earthers," or opposes a woman's right to choose (unless her life is at stake), or has advocated a flat tax because the bottom 90% having only as much wealth as the top .1% (graph below from Emanuel Saez and Gabriel Zucman) is inadequate.

Standing up for the inalienable right to own assault weapons or threatening to shut down the government over the Affordable Care Act or was just fine with Republicans Reisner and Weiderpass. The Texas senator was inspiring until they found out that he doesn't believe individuals like themselves should have the right to marry each other- or, rather, that their support would cut into their bottom line.

Their candidate has been fairly hostile toward women in terrible crisis, the poor and middle class, the uninsured, victims of gun violence, and the planet itself.   Finally, they have noticed that he doesn't much care for people like themselves, either.  Time to act.

A couple of great guys.

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An Uneasy Alliance Likely To Become More Uneasy

Say it ain't so, Joe (video below from the original, by Murray Head; beneath that, by Roger Daltrey because... because Roger Daltrey).   Or, rather, say it ain't so, Anthony.













Think Progress' Ian Millhiser reminds us

On Tuesday, the Supreme Court will hear oral arguments in four cases consolidated under the name Obergefell v. Hodges. By the end of June, the Court is widely expected to hand down a decision declaring that anti-gay marriage discrimination violates the Constitution. Indeed, this outcome is so widely expected that one of the Court’s conservatives, Justice Clarence Thomas, complained in February that his colleagues are signaling that marriage equality is coming.

Probably- but that depends on Chief Justice Roberts' Supreme Court actually taking a stand. Kimberly Strassel suggested a different scenario on Sunday's Face The Nation when she speculated

So I think one of the interesting things here is how is the court going to rule. They're going to want very much for it to be a state's right. It's a question that I don't think by the way that that is still out of the realm of possibility. People are talking about Anthony Kennedy being the final deciding vote on this. And he has been very sympathetic to gay marriage in past decisions. But he's also a big fan of states' rights. And there are two questions that the court is looking at. One is, is there a constitutional right to this? But the second one is is there the 14th Amendment, does it require states to recognize gay marriages from out of states? And there is a scenario you could see in which they ruled no on the first question, and yes in the second.

Strassel is a Wall Street Journal columnist so solace may be taken in her usually being wrong. But it's not inconceivable that the Court will rule that there is no constitutional right to same-sex marriage but that if the voters (or its proxy, the legislature) of your state decide there will be no same-sex marriage, they still will have to recognize the marriage of two women or of two men who move to your state. They thus would be entitled to a right (or privilege, as the Court would have inferred) that life-long residents of your state would not be entitled to.

That would not only be grossly unfair but would make the current chaos of differing state laws look like a model of clarity and stability.   But it's possible because a decision along those lines would have Justice Kennedy's fingerprints all over it and, Millhiser notes

As any law student who has struggled through Kennedy’s gay rights opinions can tell you, they are not models of clarity. They ooze with flowery language and passages that seem at odds with other parts of the same opinion. And they lack coherence with decades of Supreme Court precedent. Kennedy’s opinions do not so much revise legal doctrine as they skip through the wilderness of constitutional law, blithely ignoring the paths laid by more thoughtful travelers.

But if Justice Thomas months is prescient, we will see what the modern Repub Party is all about.

In an enlightening discussion on a recent episode of All In, Chris Hayes states that the Republicans' "bacon will be saved" assuming such a ruling. Robert Costa, however, notes

There are two theories out there when I speak to top Republican strategists. One, is this Supreme Court decision going to be a grenade, ignite the Republican primary and set off a cultural war- competition to go further to the right- or is it battled, people are opposed to it and move on.

Seemingly, Bobby Jindal does not want to move on. At the Iowa Faith and Freedom Coalition Summit Saturday, the National Review reports, he exclaimed

Here’s my message for Hollywood and the media elite. The United States of America did not create religious liberty. Religious liberty created the United States of America... 

“We saw corporate America team up with the radical left to come after our religious liberty rights,” he said, referring to Indiana Governor Mike Pence’s fight against gay rights groups after he signed a religious freedom law last month. “They might as well save their breath, because corporate America is not gonna bully the governor of Louisiana!”

Governor Jindal may back off his controversial charge, for it is the elephant in the room, the 800 pound gorilla. The donor base of the GOP for decades merely has put up with the popular base, needing the latter's votes to put corporate-friendly politicians into office.  Whenever the people began questioning the guys with deep pockets, the latter could always "abortion!" and the cultural warriors would be satisfied for awhile.

Costa pointed out "the donor base feels great" about the likelihood of  a gay-favorable vote in the Court, a sentiment most conservative voters recognize but are reluctant to acknowledge publicly, sometimes even privately.  It isn't easy to come to grips with the realization that you've been duped all along- or at least your electoral allies don't have the same values you do.

Jindal's notion would be cataclysmic if it gets out. Consequently, it will be largely ignored. But even if it is, a Supreme Court ruling wiping out laws prohibiting same-sex marriage might (notwithstanding Hayes' prediction) set off a battle within the Republican Party. And if it doesn't, and the presidential candidates and congressional leaders "move on," we'll finally have definitive proof that Big Money controls the GOP lock, stock, and barrel





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Because "Quality Of Life" Is So Precise

Senator Cory Booker, with Kentucky Senator Rand Paul the leading congressional advocates of prison reform, writes

we have emerged as the global leader in a race that no nation would want to even be a contender in. While our country is home to only 5% of the world's total population, we are home to 25% of the world's prison population. And nearly three fourths of this population is comprised of nonviolent offenders.

Most of the prisoners, Booker maintains, are "nonviolent" and he observes

Americans of color are disproportionately burdened by the failures of our justice system. There are more black men in prison or under state or federal supervision today than there were enslaved in 1850. And while African Americans make up only 13.6% of the total U.S. population, they make up a whopping 40.2% of the U.S. prison population.

Booker used the term "nonviolent offenders," although whether that means they are incarcerated for nonviolent offenses or instead nonviolent individuals is unclear.In either case, the New Jersey senator, whose suggestions for improvement of the criminal justice system are arguable, need look no further than his own state for procedures to reform.

Two years ago, the police department of one of New Jersey's largest cities- and its most crime-ridden and poor- was disbanded and replaced by the Camden County Police Department Metro Division. Old contracts, with their pesky pension pension and salary requirements, were eliminated, with some of the City officers  rehired for the new, county-run, department afforded far greater resources than the old. (Although costs were cited as the main factor in the changeover, it did not escape the attention of everyone that the boss of Camden County, Democrat George Norcross, is the second most powerful figure in New Jersey politics, eclipsed only by Republican governor Chris Christie, with whom he has had a cozy relationship.)

There are far more officers and civilians assigned to the new Department than to the previous and crime has declined, even more than nationally (in which it is still high common compared to other countries, pie chart below.)  But as Senator Booker may be vaguely aware and Michael Boren of the Philadelphia Inquirer now has reported

since that shift in May 2013, the number of excessive-force complaints has nearly doubled, from 35 after the takeover that year to 65 in 2014 — the most in the state. Even the combined total of Newark and Jersey City — the state’s largest cities, which have hundreds more officers — was below Camden’s.

Interviews with those who filed the complaints and others reveal a pattern of stops, often for minor offenses, that rapidly escalate. Some individuals stopped have ended up in the hospital.

An analysis of four incidents for which The Inquirer interviewed those detained and reviewed hospital and police reports reveals a pattern in which stops usually made for minor infractions rapidly escalate. Three of the four individuals involved either filed complaints of excessive force or initiated related claims.

At least a dozen other individuals also have filed suits or tort claims against the county, alleging that its officers used excessive force or arrested them without just cause.

In such cases, the county Prosecutor's Office investigates to determine whether a crime seems to have been committed and if (when) it finds it likely has not, the PD itself determines whether departmental rules have been broken. However, in something of a parallel to the blue wall of silence, the procedure appears to have a flaw or two:

Camden County Police Chief Scott Thomson says excessive-force complaints account for a tiny fraction — fewer than 1 percent — of the thousands of arrests each year. The American Civil Liberties Union is struck by another statistic: zero. That’s how many excessive-force complaints authorities in Camden have upheld against officers in recent years.

The Justice Department is not investigating the department but the ACLU, which will be requesting data on police stops in Camden the past two years, will find

While the new force has won plaudits from residents for tamping down serious crime, some are irked by stops for petty offenses such as loitering and riding a bicycle without a bell. The number of tickets written for such offenses has risen to its highest level in years.

Authorities defend such aggressive policing, for the Inquirer notes "police say their 'quality of life' stops help net serious criminals."

That sounds like the highly questionable "broken windows" approach, in play when Michael Brown of Ferguson, Missouri was stopped by a police officer for walking in the middle of the street and was shot dead in the altercation which ensued.   Going largely unnoticed are less dramatic incidents, such as when the left foot of Shalla Ballance's son

was disfigured when a Camden police cruiser ran over it as he ran from the pursuing car in April 2014. Doctors at Cooper called the injury “foot degloving,” because so much skin was ripped off. Police said the car hit him after he slipped.

Saadiq Ballance, then 16, needed surgery. He was charged with resisting arrest and loitering to commit a drug offense, the latter of which his mother said was dropped.

Saadiq Ballance said that police came up as he played cards outside with friends at night and that he ran because he heard screeching tires from a car he could not see and feared someone was about to be shot.

Yet when his mother took the case to a lawyer, she said he told her: “You most likely won’t win.”

“For him to feel it was a losing battle,” Shaila Ballance said, “it just kind of discouraged me.”

It's easy to be discouraged by disfigurement when resisting arrest for an offense later dropped.  But it should draw attention to one of the greatest outrages of the criminal justice system, prodigious arrests for misdemeanor offenses.   Three years ago, law professor Alexandra Natapoff explained

Especially for large classes of urban policing offenses, such as loitering, trespassing, and disorderly conduct, convictions can easily occur without any evidence that the defendant actually committed a crime. To understand why, we need to go back to the beginning of the misdemeanor process: the initial arrest. Arrests require probable cause; there must be enough evidence to make it likely that the defendant actually “did it.” But police routinely arrest urban residents—particularly young black men—for other reasons, like clearing a street corner or establishing a police presence in a high-crime neighborhood.

For example, as former Baltimore cop and now-sociology professor Peter Moskos describes in his book Cop in the Hood, Baltimore police warn people to move on and arrest them for loitering when they don’t. The problem is that the crime of loitering is defined as “interfering, impeding, or hindering the free passage of pedestrian or vehicular traffic after receiving a warning.” A person who merely fails to move when ordered to move by a police officer is not actually guilty, but thousands of arrests occur in Baltimore on this basis every year. The same is reportedly true in New York.

Once police arrest someone, it is up to prosecutors to decide whether or not to charge the person with a crime. The system depends heavily on prosecutors to decline cases that lack evidence. But prosecutors often fail to screen misdemeanors precisely because they are seen as insignificant, and instead charge all petty arrestees on whatever basis the police arrested them. Studies in Iowa, New York, and North Carolina reveal that prosecutors declined only 3 or 4 percent of petty offenses. In jurisdictions like these, 96 percent of arrests convert automatically into criminal charges.

Once charged, misdemeanor suspects have little choice but to plead guilty. As the NACDL study revealed, many of these suspects will not get lawyers, and courts rush cases through in order to clear crowded dockets. Jailed defendants may plead just to go home. As a result, a person arrested for a so-called urban disorder offense is likely to get charged with it and to plead guilty to it, even if there was no real evidence in the first place.

This dynamic represents a breakdown in basic principles of justice. First, arrests are permitted to convert directly into criminal convictions without scrutiny of the facts by prosecutors or defense attorneys. Police are not supposed to decide who gets convicted. That’s what trials and plea bargaining are for. Moreover, where arrests themselves are generated not by evidence of crime but by other law enforcement tactics like order maintenance and street sweeps, the resulting convictions lack an evidentiary basis. That’s a fancy way of saying that defendants are innocent.

Police are not supposed to decide who gets convicted.  Much of the efficiency and effectiveness of the criminal justice system depends upon the discretion of police officers. Once arrested for a disorderly persons offense, the accused will, as Natapoff describes, virtually always be found guilty (whether or not he is guilty) which in the long term severely erodes police-community relations. If arrested for an indictable offense, the ham sandwich will be indicted, which usually results in a conviction, unless the defendant is sufficiently wealthy to afford a private attorney.

Corey Booker and Rand Paul, respectively a neo-liberal wunderkind and a right-wing libertarian, are chock full of ideas, of varying merit.  But until they deal with the grand jury system and police culture- which will require a great deal of courage- they are merely tinkering around the edges.

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