Saturday, December 2, 2017

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Sessions’ Jaded Justice

From Caged But Undaunted Stanley Cohen with a piece on Jeff Sessions originally published in CounterPunch Magazine print version vol 24 #5 Nov. 201.

Although Jefferson Beauregard Sessions III long ago traded in his white bed sheet for one that’s red, white and blue, his eyes still sparkle at the sight of a good old fashioned torch lit parade marching across Main Street… especially down South.

Indeed, rumor has it, the most powerful cop in the US raced more than once to take “selfies” as he posed against the large TV screen in his office with his smiling cultural offspring, perched just behind him, making monkey sounds during their recent virtual family get-together in Charlottesville.

Once rejected for a federal judgeship on the grounds of a well documented record as a racist, who better to take over the mantle of leadership at DOJ, for Donald Trump, than a proud supremacist who’s seen his life’s work as maintaining racial, ethnic and religious purity in the United States.

Of all the seats of discretionary and arbitrary power in a president’s circle of friends, the one with the most unbridled and destructive reach is the head of the Department of Justice.

Be assured, Beauregard has used every day of his own personal Fantasy Island at DOJ to give meaning to “arbitrary” and “capricious” in his effort to wage an all out attack on any semblance of civil rights and justice in this country.

To date, in many ways, he’s proven to be one of a kind as he strives to re-set the clock to days that stretch back well before the death of Jim Crow.

For those of us experienced in the hallways of federal criminal justice, it’s a short walk from courtroom door to the expanse of government discretion in selecting the nature and extent of charges which prosecutors can seek against an accused.

Under the Trump owned DOJ, it’s been all downhill as prosecutors have once again been unleashed to target non-violent drug offenses… including marihuana possession and distribution charges.

Make no mistake about it, there’s nothing at all new about DOJ’s reignited “war” on drugs. Years ago, the Clinton Administration began it as so much a simple, but popular, electoral tease. Not to be bested by an earlier “progressive”, Obama sent more people of color to federal prison for getting high, or helping others to do so, than any other president.

When it came to drugs, it took years of reeducation for Obama to finally evolve from “tough” on crime to real on life. As a result, during his second term, sweeping new policies at DOJ prohibited federal prosecutors from pursuing charges that would trigger mandatory minimum prison sentences for certain categories of drug offenders even when convictions for far more serious charges could otherwise be had.

Unlike decades of mindless charging doctrine, those now caught even with large amounts of drugs were to be charged with less serious offenses that didn’t unleash mandatory minimum sentences if, among other things, the crime was not one of violence and the accused did not have a long criminal history.

Not long into his tenure, Sessions directed federal prosecutors to undo these changes and to, once again, seek the most severe penalties possible; including mandatory minimum sentences for non-violent drug offenses as he aims to repack prisons with persons of color.

In addition, the Attorney General recently sought Congressional leave to target and prosecute medical marihuana providers otherwise protected under various state laws.

Not to worry. There will be plenty available cellblocks to absorb expected increases in our federal prison population, in the years to come, as Sessions has sought to re-institute use of private prisons which were in the process of being phased out as little more than inhumane corporate profit making ventures.

Rife with systemic corruption and wide spread abuse that often targeted vulnerable prisoners for physical and sexual assault, on occasion, inmates were found dead in these private facilities… typically under “mysterious” circumstances.

In other ways, DOJ is aiming to increase prison population through announcing it will crackdown on leaks coming from within the Trump administration… and said it would consider going after reporters who receive and publish leaked material.

The Attorney General also announced DOJ is reviewing guidelines related to subpoenas of journalists which raises the distinct specter of civil and criminal contempt citations and prison for those who take serious not just their First Amendment protection but professional obligations pursuant to the journalist-source privilege.

In the past, such dares would often go untested as numerous police departments found themselves bound by consent decrees, sought by DOJ and approved by federal courts, to reign in what had been widespread long-term police abuses throughout the Country.

Among others, police departments in Baltimore, Miami, Newark, Cleveland, Ferguson, Seattle and Chicago found themselves subject to federal court oversight for a wide variety of unconstitutional police tactics ranging from excessive, often deadly, force against mostly youth of color, hitting suspects in their head with weapons, unnecessary use of stun guns on handcuffed people, race based pedestrian and automobile stops, false arrests based on race, heritage and “disrespectful” speech to improper internal investigation of allegations of police misconduct.

Under Sessions, DOJ will move to undo consent agreements, reached with rogue police departments, to remove external limits on police abuse and corruption in an effort to ensure they do not “adversely impact” the Trump administration’s priorities of combating violent crime and “promoting police safety and morale.” The Attorney General will also refuse to enter into any additional consent decrees in the future.

Indeed in what was to prove to be a dire precursor of events to come not long after a meeting with the National Fraternal Order of Police, on March 31 Sessions issued a memo notifying Justice Department officials, including those in the Civil Rights Division, that “It is not the responsibility of the federal government to manage non-federal law enforcement agencies.”

Just recently, the Sessions memo of intent became official DOJ practice as it refused to involve itself in the explosive matter of Freddie Gray whose inexplicable killing, several years ago, at the hands of police ultimately led to federal oversight of the Baltimore Police Department.

Indeed, no event sums up better, or worse, the decision by this administration to walk, even run, away from its obligation to ensure local police forces comply with their constitutional obligations than the police murder of Freddie Gray.

Gray, a twenty five year old African American resident of Baltimore, elected to run past police officers when encountering them on a street. Having been “chased” by them on bicycles, according to a court document, Gray came to a stop, voluntarily, without the need of police to use any force. Although a knife was recovered from him during a search… without probable cause… as it turned out, the knife was entirely legal.

Nevertheless, Gray was arrested for possession of a “switchblade.” Offering no resistance, he was pinned to the ground and placed in a “tactical hold” with his hands cuffed behind his back. Before the arrival of a transport van, Gray’s request to use an inhaler was ignored. Likewise, police refused to obtain medical attention for Gray, an asthmatic, who was obviously going through significant distress… repeatedly asking for medical assistance as he screamed-out for help.

Dragged from the street, Gray was loaded, head first and on his stomach, into the police van. In violation of Baltimore police department regulations, he was not restrained by a seat belt. Later, he was placed in leg irons after becoming “irate.” Apparently, at some point while in transit, Gray suffered a neck injury. Upon arrival at a police station, he couldn’t talk and wasn’t breathing. Subsequently, he was pronounced dead.

Following an autopsy which concluded Gray’s death was caused by a “high-energy” injury to his neck and spine that likely occurred as he was thrown about the moving van without a seatbelt, the medical examiner ruled Gray’s death a homicide.

Gray’s murder, which became a symbol of the black community’s mistrust of police, and triggered days of protests and riots in Baltimore, led to an Obama-era Justice Department review of the police force which found a widespread pattern of abuse and misconduct by the Baltimore Police Department.

Like so many other instances which ultimately led to consent decrees and federal oversight of other police departments, DOJ concluded, in Baltimore, police routinely stopped, searched and arrested residents without reasonable suspicion or probable cause, disproportionately targeted black residents, and frequently resorted to unnecessary physical force during these interactions, and others, with persons exercising their free speech and filming rights involving police.

Ultimately, six police officers were charged with depraved homicide, and other charges, in the killing of Gray. After trials in which three of the officers were found not guilty, state prosecutors dismissed all charges against the remaining police.

In keeping with the clear message and intent of the Sessions memo, the Department of Justice recently announced it will not pursue federal civil rights charges of any sort against the officers.

While some might wonder how costly or dangerous the prospect of unshackled policing might become under Sessions, local police forces will not want for either a lack of money or weapons to meet their task. The Attorney General recently rolled back a series of extant curbs on civil-asset forfeitures, thereby, strengthening the federal government’s power to seize cash and property from citizens without first bringing criminal charges against them.

As one observer noted, “civil-asset forfeiture is tantamount to policing for profit, generating millions of dollars annually that [federal and local police] agencies get to keep” and use as they wish.

Apparently, Sessions unilateral reinstatement of civil forfeitures goes on even though, very recently, the House unanimously voted on 3 amendments to a spending bill which would, once again, curtail the program… effectively eliminating the Sessions expansion. Pending action by the Senate, DOJ thefts will continue.

No doubt, all that extra cash will come in handy to subsidize the dramatic increases in arrests of immigrants, by ICE, following Trump’s inauguration.

Thus, on the basis of new immigration priorities, in the early days of this administration, agents arrested 38% more undocumented immigrants than they seized during the same period last year, increasing the number from approximately 30,000 to 41,300. At roughly the same time, there was a 150% increase in the number of undocumented aliens detained by ICE for “non criminal arrests” growing from 4,200 in 2016 to 10,800 in 2017.

On the other hand, to give credit where credit is due, in terms of deportations during essentially the same period of time, the administration did reduce their number by all of 1.2 percent removing “only” 54,741 aliens from the United States.

Because increased policing can necessarily mean increased “risk” for local police forces, in particular, the president has removed restrictions previously imposed upon militarization of local police across the country.

Under new policies, the Trump administration is lifting limits on transfer, from the federal government to local police, of surplus military equipment including grenade launchers, bayonets, large-caliber weapons and armored personnel carriers… some the size and power of tanks.

In other ways, Sessions has moved quickly to ensure that notions of justice and civil rights lose traction in Trump’s full-time race to play to his supremacist base.

Thus, Sessions will end a Justice Department partnership with independent scientists to improve forensic standards that, in the past, had contributed to thousands of wrongfully obtained convictions across the country.

He will also end an expanded review of countless other cases in which FBI techniques and testimony had come under belated challenge while numerous other prisoners await an honest day in court.

In but six months of tenure, Sessions has managed to undo, or walk away from, the legacy of a wide range of civil rights priorities within the DOJ. In addition to police reform and on-going school desegregation, among other efforts no longer a priority, DOJ has begun to roll back decades of progress on civil rights and voting rights, equal protection for the disabled and more recent successes around issues of LGBTQ rights.

Indeed, not long after taking office, the administration withdrew in-place protections for transgender students in public schools that let them use bathrooms and facilities corresponding with their gender identity. Recently DOJ argued to the Supreme Court that a Christian baker could refuse a cake for a gay couple… ignoring long settled protections under the Interstate Commerce Clause; the very vehicle used to break the back of much of Jim Crows “private” discrimination practices years ago.

At the same time, the Trump administration prepares to redirect resources of the DOJ’s civil rights division toward investigating and suing universities with affirmative action admission policies.

DOJ has also moved to obstruct enforcement of federal voting rights laws and recently sided with Ohio’s voter purge program. Under this program, Ohio can continue to remove “infrequent voters” who fail to cast a ballot over a six-year period yet otherwise remain citizens of the same state at the same address.

Just this past week, DOJ refused to defend DACA as an unconstitutional reach of the Executive Order power of the president… at the very time it supports the Muslim ban Trump moved to implement through an identical EO practice.

Not sufficiently pleased with a presidential pardon for Ex-Sheriff Joe Arpaio, convicted for contempt in willful and multiple failures to obey a federal court order demanding he cease unconstitutional practices of racial profiling, harassment, and detention, in a palpably clear political act, earlier this week, Sessions moved to support Arpaio’s motion to vacate his underlying conviction… obtained by Session’s own office.

These are but a few of many issues within criminal justice and civil rights spheres where this administration has sent a loud, clear, and unprecedented message that justice is tough, prisons are good, and civil rights are for those who can afford to pay to play.

Elsewhere, this administration has moved, with reckless abandon, to undo generations of priorities and protections which range from those that extend to our environment, our public schools, women and family rights, Native American rights, subsidized food and housing programs, and regulations intended to end unfettered corporate and banking greed.

While not nearly as exhaustive as the catalogue of abuse and abandon in the halls of the DOJ, they still provide a powerful glimpse of an administration that has chosen to walk, indeed, flee from, or target, the most vulnerable among us.

Nowhere, however, has the attack on constitutional and civil rights and safeguards been more glaring, or immediate, than it has been under the Department of Justice headed, now, by one once found by the US Senate to be too racist to serve in the federal judiciary, but apparently, now, just xenophobic enough to become the top cop in this country.


Stanley L Cohen is a lawyer and human rights activist who has done extensive work in the Middle East and Africa.

Follow Stanley Cohen on Twitter @StanleyCohenLaw

2 comments :

Dutchjim said...

I am at a loss.
I no longer have faith in the America I once knew.
All of the criminals in the Trump administration including Donald Trump himself are allowed to commit treason, violate U.S. law using child soldiers abroad, and violate the Logan Act without being held accountable.

Niall said...

"Recently DOJ argued to the Supreme Court that a Christian baker could refuse a cake for a gay couple…" It would seem there are Ashers bakeries even in the States!