Justice

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Judge Who Went on Israel Junket Recuses Himself From Gaza Case

Published by Anonymous (not verified) on Fri, 07/06/2024 - 5:14am in

Tags 

Justice, Politics

Judge Ryan Nelson of the 9th U.S. Circuit Court of Appeals agreed on Thursday to recuse himself from a case challenging the Biden administration’s Gaza policy. As The Intercept reported, Nelson in March was part of a judicial delegation to Israel, which was sponsored by the World Jewish Congress.


Related

A Federal Judge Visited Israel on a Junket Designed to Sway Public Opinion. Now He’s Hearing a Gaza Case.

The plaintiffs — a mix of Palestinian human rights organizations, Palestinian nationals, and Palestinian Americans — claimed the trip’s ideological framing made it improper for Nelson to participate in the case. Oral argument is scheduled for June 10, and plaintiffs filed an emergency recusal motion on Tuesday.

“Appellants have moved to disqualify me from participation in this case based on my attendance at a judicial education conference in Israel in March,” Nelson wrote in a brief order. He disputed the merit of plaintiffs’ allegations of potential partiality.

“They cite no comments I have made about any issues related to this case. Thus, it is far from certain that an objective observer would reasonably question my impartiality,” he wrote. “That said, out of an abundance of caution, the best course in this specific case (which may not apply in other cases) is to recuse.”

“This case against top U.S. officials for aiding and abetting Israel’s genocide raises issues of utmost importance,” said Baher Azmy, legal director of the Center for Constitutional Rights, which represents the plaintiffs, “and the appearance of fairness is paramount given the stakes.”

Update: June 6, 2024, 3:44 p.m. ET
The story has been updated to include a comment from the Center for Constitutional Rights that was received after publication.

The post Judge Who Went on Israel Junket Recuses Himself From Gaza Case appeared first on The Intercept.

Columbia Law Review Is Back Online After Students Threatened Work Stoppage Over Palestine Censorship

Published by Anonymous (not verified) on Thu, 06/06/2024 - 2:09pm in

Tags 

Justice, World

After the Columbia Law Review’s board of directors responded to the publication of an article about Palestine by taking the prestigious journal completely offline, the students who run CLR voted on Wednesday to reject an offer in a letter from the directors to reinstate the website.

The Columbia Law School students who run CLR were considering a proposal to append a note to the Palestine article disclaiming what the directors, in an unsigned letter to students, described as “secrecy and deviation from the Review’s usual processes.” In the letter proposing the text, the board of directors said it wanted to see the journal put back online.

The student editors rejected the deal for a disclaimer by a 20-5 vote, according to a student and documentation reviewed by The Intercept.

“To the extent that they’re trying to censor Rabea, that simply won’t happen — that simply hasn’t happened and can’t.”

“I think that this whole year, and particularly this last semester, has been about students recognizing, stepping into their power,” said Sohum Pal, a CLR articles editor. “And I’m very glad that the law students at the law review are doing the same.”

When the article on Palestine, titled “Toward Nakba as a Legal Concept,” was published on Monday morning, Rabea Eghbariah became the first Palestinian legal scholar to publish in CLR. But within hours of publication, after months of revisions on the lengthy piece, the board of directors took the journal’s website completely offline, saying they had concerns about the process.

“Powerful legal scholarship cannot be silenced,” said Pal. “It’s already been circulating. It’s already gotten far more views or reads than the average law review article. And, yeah, to the extent that they’re trying to censor Rabea, that simply won’t happen — that simply hasn’t happened and can’t.”

The Intercept was not immediately able to reach members or representatives of the CLR board of directors, which oversees the independent, nonprofit student-led publication, for comment about the vote or the letter.

After voting, the students sent an email to board member Gillian Metzger, a Columbia law professor, saying that if the board continues to hinder the publication of Eghbariah’s piece, the staff of CLR will stop all work on the journal. The email, which was reviewed by The Intercept, said the students would continue to work on the Bluebook, a legal citation guide maintained and updated by four schools’ law reviews, including CLR. (Metzger did not immediately respond to a request for comment.)

On Thursday afternoon, the board of directors reinstated the website, including Eghbariah’s article. A link at the bottom of the CLR homepage went to a statement from the board about Eghbariah’s article.

Eghbariah told The Intercept he viewed the board of directors’ actions as an example of a “Palestine exception” to free speech and academic freedom.

“The CLR Board of Directors has yet to contact me or officially explain to me their decision to take down the website, let alone their proposal to add a disclaimer to the article,” Eghbariah said, in a statement received after publication. “The fact that the Board could not cite any substantive deficiencies with the piece but rather resorted to allegations about internal processes, which were rejected by CLR editors, tells me all I need to know. This is not only a Palestine exception in action but also a disingenuous attempt to manufacture controversy that undermines and deflects attention from the content of the article.”

The website takedown was the latest in a battle on Columbia’s campus — and on campuses across the country — over free speech and the Israeli–Palestinian conflict. Protests erupted on many of the campuses over Israel’s war on Gaza, which has killed more than 35,000 Palestinians, including at least 15,000 children. At Columbia and other universities, demonstrators were met with brutal police violence.

Disputes over the Gaza war more broadly have spilled into many aspects of university life, with pro-Palestine students often facing consequences ranging from censure, expulsion, and even censorship — including at well-respected academic journals. In November, the Harvard Law Review voted to kill an online article, also by Eghbariah, that had gone through the full editing process.

On Tuesday, the day after The Intercept published its story on the directors’ initial suppression of Eghbariah’s piece, student editors said they received a letter sent on behalf of the board of directors that offered what it said was “the best way to further the many important values at stake.” The proposal in the board letter required that the following statement be attached to Eghbariah’s piece:

“Toward Nakba as a Legal Concept was not subject to the usual processes of review and editing at the Law Review. It was solicited outside of the usual articles selection process and edited and substantiated by a limited number of student editors. Contrary to ordinary practice, it was not made available for all student editors to read. As a result, a number of student editors were unaware of the piece and did not have the usual opportunity to provide input on its content prior to its publication.”

Some of the student editors who worked on Eghbariah’s piece took exception to the directors’ demand. “The letter communicates the Board’s continued stance to usurp and interfere with the student-run editorial process,” Erika Lopez, one of the editors, told The Intercept on Wednesday. “The Board’s seemingly final decision to include a disclaimer is offensive and unprecedented.”

“The letter communicates the Board’s continued stance to usurp and interfere with the student-run editorial process.”

The letter also suggested additional measures, including taking the “article” label away from piece, since it wasn’t facilitated by the articles committee, and soliciting a response to it. Students had previously told The Intercept that CLR’s student administrative board made a unanimous procedural vote to create a committee for shepherding a piece on Palestine; a separate vote on whether or not to solicit a piece and create an opt-in committee to edit it also passed overwhelmingly. 

The Wednesday letter, delivered to students unsigned and not on letterhead, said the board of directors had been “informed that this piece had not been subject to the usual processes of review or selection for articles at the Law Review, and in particular that a number of student editors had been unaware of its existence until two days before.” 

“The secrecy that surrounded this article’s editing and substantiation review is unacceptable,” the directors’ letter said. “It is also unprecedented, in that every piece is either worked on by, or available on request to, all student editors during the editing process.”

The letter also raised questions about the “adequacy of the editing and substantiation processes” in light of the purported secrecy.

“We elected to use a different internal communications policy for the piece; we did not use a different editing process,” one of the editors, who requested anonymity to avoid reprisals, told The Intercept on Wednesday. “Any implication that the internal communications policy reflected a deficient editing process is both untrue and insulting to the piece, the author, and our editorial staff.”

On Monday, student editors told The Intercept that the draft was stored on a server available to the opt-in editors of the article because of fears over leaks. The editors who spoke with The Intercept said they had never heard of a previous request by the board to distribute an article draft to the full membership of CLR.

In a statement to The Intercept on Monday, CLR’s board of directors, a group of eminent alumni and Columbia professors, said that it had requested a delay in the publication of the article so its content could be shared with the full membership of the journal, some 100 students. The delay was granted. 

When word of the article began to leak beyond the CLR community, however, the students responsible for producing it published the full May volume of the journal online. In response, the directors shut down the entire law review’s website. The directors, in their statement to The Intercept on Monday, said, “In order to provide time for the Law Review to determine how to proceed, we have temporarily suspended its website.”

 Civil defense teams and citizens continue search and rescue operations after an airstrike hits the building belonging to the Maslah family during the 32nd day of Israeli attacks in Deir Al-Balah, Gaza on November 7, 2023. (Photo by Ashraf Amra/Anadolu via Getty Images)

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Israel’s War on Gaza

After their vote, some of the CLR students declared a victory.

“I just feel really grateful and proud of my colleagues for taking a meaningful and principled stance tonight,” said Pal, the articles editor. “I tend to be pretty cautious, but I think I also try to be really optimistic. And one thing that we’ve been saying to each other, during this last day, has been that, like, optimism requires a little grain of delusion, and I think that it really feels very meaningful right now, to be deluded enough to think that you can win and then to do it.”

Update: June 6, 2024, 2:02 p.m. ET
This story has been updated to include the board’s reinstatement of the website without a PDF link for Rabea Eghbariah’s article; the students’ claim, made in an email, that they intended to keep working on the legal Bluebook; as well as a comment from Eghbariah received after publication.

The post Columbia Law Review Is Back Online After Students Threatened Work Stoppage Over Palestine Censorship appeared first on The Intercept.

Joe Biden’s Cruel Border Shutdown Follows in Clinton and Obama’s Footsteps Too

Published by Anonymous (not verified) on Thu, 06/06/2024 - 8:00am in

Tags 

Justice, Politics

Migrants and asylum seekers walk to be processed by the Border Patrol between fences at the US-Mexico border seen from Tijuana, Baja California state, Mexico, on June 5, 2024. President Joe Biden said Tuesday he had ordered sweeping new migrant curbs to "gain control" of the US-Mexico border, making a dramatic bid to neutralize one of his political weak spots in his reelection battle against Donald Trump. (Photo by Guillermo Arias / AFP) (Photo by GUILLERMO ARIAS/AFP via Getty Images)

Migrants and asylum-seekers between fences at the U.S.-Mexico border, seen from Tijuana, Mexico, on June 5, 2024.
Photo: Guillermo Arias/AFP via Getty Images

“President Joe Biden is pulling from former President Donald Trump’s immigration playbook,” CNN reported on Tuesday. The occasion was Biden’s announcement this week of a draconian executive order to temporarily shut down asylum requests at the U.S.–Mexico border and introduce other drastic restrictions on the basic right to asylum.

CNN was not alone. Numerous commentators, particularly critics of Biden’s plan, noted that the decision to halt the asylum process reflects an extremity of border authoritarianism worthy of Trump. “This action takes the same approach as the Trump administration’s asylum ban,” the American Civil Liberties Union said on X, vowing to go to court.

There’s much truth to it. Biden’s border policies have been no less than Trumpian. This is especially true of his use of executive authority to harden border rule, as Trump had done with his 2017 Muslim ban and his own extremist asylum restrictions in 2018.

Yet Biden’s new asylum restrictions, the details of which were announced on Tuesday, are neither an aberration from his administration’s border policies, nor are they a shift away from decades-long Democratic Party standards, since at least the Clinton era.

This is not to underplay the extremity of Biden’s new plan. Under Biden’s executive order, the administration will halt asylum requests at the border once the average number of daily encounters has reached 2,500 between legal ports of entry, which has been consistently the case since Biden took office in 2021. Requests will be reopened two weeks after the daily average falls under 1,500 for seven consecutive days. The restrictions went into effect last night.

The order has some exemptions in place for unaccompanied minors, for those with acute medical emergencies, for “severe” trafficking victims, and for people who have already made appointments on the Customs and Border Protection app, a burdensome process that can take many months.

Those who can immediately show “reasonable probability” of imminent and extreme threat to life or safety, such as grave persecution, rape, kidnapping, torture, or murder are exempt — although the Department of Homeland Security noted that the plan demands a “new, substantially higher standard” that there is a “reasonable probability.” This standard is higher even than under Trump’s harsh 2018 asylum ban.

Migrants who are expelled under the order will receive a minimum five-year bar on reentry to the U.S. and potentially be criminally prosecuted.

Rep. Ilhan Omar, D-Minn., summed it up well: “This will be one of the most restrictive border policies in modern history.”

Bipartisan Border Fascism

While it is true that Biden is bending to Republican pressure over the so-called border crisis — quite literally relying on Trump-era legislation — border fascism has for decades been a bipartisan commitment.

The convergence between conservative and far-right border politics, with the far right consistently winning the day, can in part be blamed on spineless realpolitik: A February Gallup poll found that 28 percent of Americans believed immigration to be the most important problem facing the U.S.

Better for a presidential campaign, the logic goes, to lean into the pernicious, anti-migrant crisis narrative.

It matters little that public sentiment might be affected by years of right-wing fearmongering, to which the Democratic establishment has readily acquiesced, alongside punishing austerity budgets that leave citizens fearful of stretched resources. Democrats and Republicans are fighting to the bottom on immigration — a fight that vocal white nationalist Republicans will always win.

This is not, however, merely a case of self-identifying centrist Democrats following the evermore fascistic Republican line.

“I think it’s so important to understand how immigration enforcement has been a pillar of the Democratic party’s governance for three decades,” activist and scholar of border imperialism Harsha Walia told Intercepted podcast in February 2021, when it was already becoming clear that Biden’s tenure would hardly see the undoing of the border regime.

Walia noted that it was under Presidents Bill Clinton and Barack Obama — not only Trump — that “an entire immigration enforcement apparatus” was established to increase criminalization, detention, deportation, and militarization. It was, Walia said, “the very bipartisan agenda of detaining and deporting and terrorizing migrant communities.”

These structures, she added, were built up and normalized in the Clinton years.


Related

Confronting the Long Arc of U.S. Border Policy

In 1994, at the very same time that Clinton signed the North American Free Trade Agreement, the Army Corps of Engineers began to fence the U.S.–Mexico border. The neoliberal trade deal further immiserated Mexico’s poorest, producing displacement and migration; the U.S militarized the border in preparation. Clinton’s 1996 immigration laws significantly expanded the United States’ ability to detain and deport migrants with even minor criminal convictions.

And Obama relied on the pernicious, racist, classist narrative of only targeting “dangerous” criminal migrants. Rightly dubbed the “deporter-in-chief,” Obama deported some 3 million people.

Differences of Rhetoric, Not Substance

This is a Democratic legacy: hardened borders, the criminalization of migration, the willingness to condemn thousands of people to death through deterrence. This is the necropolitical management of migrants fleeing political and economic turmoil often as the result of decades of ruinous U.S. interventions in Central America.

While Trump set the bar of anti-immigrant politics at a subterranean low and promises an agenda of unvarnished fascism should he be reelected, the brutal and increasingly eliminationist exclusion of migrants is a bipartisan project.

Biden’s executive order is itself no shift from his only policy record. A war on immigrants is the norm under this administration, from the expedited expulsion of thousands of Haitians in 2021; to his blanket policy in early 2023 to immediately eject asylum-seekers from Cuba, Haiti, and Nicaragua who cross the border from Mexico without having previously applied for asylum in a third country; to U.S. Immigration and Customs Enforcement’s increased use of solitary confinement for thousands of detained migrants.

 A Guatemalan father and his daughter arrives with dozens of other women, men and their children at a bus station following release from Customs and Border Protection on June 23, 2018 in McAllen, Texas. Once families and individuals are released and given a court hearing date they are brought to the Catholic Charities Humanitarian Respite Center to rest, clean up, enjoy a meal and to get guidance to their next destination. Before President Donald Trump signed an executive order Wednesday that halts the practice of separating families who are seeking asylum, over 2,300 immigrant children had been separated from their parents in the zero-tolerance policy for border crossers (Photo by Spencer Platt/Getty Images)

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The War on Immigrants

The idea of Democrats as the pro-immigrant party nonetheless persists as a convenient myth on both sides of the aisle. Democrats condemn the intolerable cruelty of Republican nativism, and Republicans, meanwhile, decry Democrats as open-border radicals, regardless of the anti-immigrant continuities between the two party’s policies. Stephen Miller, the architect of Trump’s family separation policy, predictably slammed Biden’s authoritarian executive order as somehow “pro-invasion, pro-illegal migration executive order.”

The difference is more one of rhetoric than substance. “I’ll never refer to immigrants as poisoning the blood of a country,” Biden said on Tuesday. But policies that swiftly reject, eject, cage, and punish desperate migrants attempting to find safety and stability in one of the world’s wealthiest nations send the same nationalist message.

Democrats couch their border logics in the neoliberal language of management and order, rather than explicitly racist “America First” slogans. The maintenance of the border — a racist tool that serves capital and divides labor — has the same disastrous, deadly effects no matter what rhetoric justifies it.

As the American Civil Liberties Union noted of Biden’s executive order, it “will severely restrict people’s legal right to seek asylum, putting tens of thousands of lives at risk.”

The post Joe Biden’s Cruel Border Shutdown Follows in Clinton and Obama’s Footsteps Too appeared first on The Intercept.

New York Spends $225 Million on Its Own “Cop City” — to Make the Whole City Run on Cops

Published by Anonymous (not verified) on Wed, 05/06/2024 - 9:00pm in

Tags 

Justice, Politics

 New York City mayor Eric Adams speaks during the NYPD graduation at  Madison Square Garden Tuesday, July, 25, 2023.  (Photo by Barry Williams for NY Daily News via Getty Images)

Mayor Eric Adams speaks during the NYPD graduation in New York City on July 25, 2023.
NY Daily News via Getty Images

New York City Mayor Eric Adams announced last Friday that the city would spend at least $225 million on a new police training facility in the borough of Queens. The mayor’s decision to pour further public funding into policing comes as he slashed services to the city’s most vulnerable, including cutting library budgets by $58.3 million.

The priorities could not be clearer. Like many politicians across the country, the mayor wants to disinvest from public services and privatize them, while instead increasing mass policing and carceral enforcement as a response to social problems.

If the planned building itself is not quite a “cop city,” it reflects an agenda that sees the whole of New York as a cop city.

To see just how much Adams has become the paragon of governance through policing, one need only look at the intended purposes of the police training facility. The site will be used to train law enforcement officers for all the city’s agencies — including the departments of Sanitation, Homeless Services, the Administration for Children’s Services, and the Taxi and Limousine Commission — under one roof, alongside New York Police Department officers.

In response to the mayor’s announcement, a number of commentators on social media decried the plan as a “Cop City” for New York — the term used to describe a vast police training facility under construction in Atlanta, which will swallow up crucial forest land in that city.

Despite the fact that the Atlanta facility will be a compound of over 85 acres, the cost is estimated to be a ballooning $109 million — less than half the amount New York City is dedicating to its new training building.

The analogy is not perfect — the New York facility will be built on land already occupied by police, at the NYPD Police Academy Campus — but like the Atlanta project, Adams’s plan will be dedicated to multi-agency training under the misleading label of “public safety.”

If the planned building itself is not quite a “cop city,” it reflects an agenda that sees the whole of New York as a cop city. Consider, for instance, that Adams himself is a former cop.

Eighteen city agencies already have law enforcement officers among their ranks, although in numbers far smaller than the leviathan NYPD’s 36,000 cops. The New York City Department of Health and Hospitals has 1,250 so-called special officers, for example, and Sanitation employs 80 special patrol officers.

While most of these law enforcement officers don’t carry guns, the “peace officer” label should not apply to agents who carry batons, handcuffs, and in some cases weapons like Tasers. What they all have is permission to use physical force against civilians.

An investigation published in April by New York Focus found numerous repeat instances of abuse, including beatings, carried out by over two dozen “peace officers” with the Department of Homeless Services Police.

But Is NYPD Training Any Good?

The idea that all the city’s law enforcement officers will be trained in the manner of NYPD cops promises only more violent outcomes. NYPD misconduct settlements cost the city over $500 million in the last six years, and $115 million in 2023 alone.

The mayor’s own words on the virtues of consolidating law enforcement training bode ill for the new Queens facility.

“We will learn from the Department of Correction of how they’re able to identify gang behavior within their walls,” Adams said in Friday’s press conference. “We will learn from the Department of Probation as they see those probationary individuals who are continuously committing crimes or who are attempting to turn their lives around.”

The centralized training, then, is aimed at reinforcing practices of criminalization that treat certain groups and individuals — disproportionately poor people of color — as threats worthy of constant policing and surveillance.

When announcing the training center, Adams invoked a unified force of “bad guys of this city” without clarifying who or what he meant, but his fearmongering statements echoed similar claims — that organized, professionalized groups were responsible for sowing disorder — used to justify brutal police responses to the 2020 George Floyd uprisings and, more recently, raids on Palestine solidarity encampments at college campuses.

Adams’s agenda, meanwhile, exemplifies what abolitionist geographer Ruth Wilson Gilmore calls “organized abandonment.” Gilmore describes a divestment by the state from essential services from poor and working-class communities, leaving opportunities for privatization and extraction, while relying increasingly on extensive policing and carceral solutions to maintain a violently racist order. Attendant myths of marauding and devious criminal enterprises serve as rhetorical cover.

Prosecutors in Atlanta have deployed the same pernicious logic to Cop City protesters on extreme and overreaching charges, frequently under Georgia’s expansive Racketeer Influenced and Corrupt Organizations Act. As The Intercept reported, the RICO indictment cites typical social justice activities such as “mutual aid,” writing “zines,” “collectivism,” and raising funds for legal fees as proof of criminal conspiracy.

Police officers confront protesters in a gas cloud during a demonstration in opposition to a new police training center, Monday, Nov. 13, 2023, in Atlanta. (AP Photo/Mike Stewart)

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The People vs. Cop City

Construction on the New York City police training building will begin in 2026 and the facility is planned to open in 2030. Unlike Atlanta’s Cop City, the fight against the facility in New York can’t have the same territorial dimension. Atlanta’s Stop Cop City movement is still fighting to save the acres of forest on which the police compound is to be built, and that land has been a site of protest mobilizations and encampments for over two years.

The area planned for the New York building is already cop territory. Yet there is room for New Yorkers to stake out their objections, just as opposition to Cop City has expanded far beyond the Atlanta forest, with protesters taking aim at the headquarters of the project’s corporate backers and contractors nationwide.

The fight against a “cop city” in New York cannot focus solely on a Queens police training campus. The mayor’s plan, after all, is a grim reminder that, four years after the George Floyd uprisings, Cop City is everywhere.

The post New York Spends $225 Million on Its Own “Cop City” — to Make the Whole City Run on Cops appeared first on The Intercept.

Missouri’s Attorney General Is Waging War to Keep the Wrongly Convicted Locked Up

Published by Anonymous (not verified) on Wed, 05/06/2024 - 7:00pm in

Tags 

Justice

Wearing a crisp gray suit, Christopher Dunn walked into the Division 18 courtroom just blocks west from the famed Gateway Arch in downtown St. Louis, Missouri, on May 21. He took his seat at a long table crowded with binders of legal exhibits and surrounded by a half-dozen lawyers working to free him from prison.

It was the same courthouse where Dunn, now 52, was convicted in July 1991 and sentenced to life in prison for the murder of 15-year-old Recco Rogers. According to the state, under the cover of darkness Dunn opened fire on Rogers and two other boys while they were sitting on the front steps of a friend’s home.

There was no physical evidence linking Dunn to the murder; he has always maintained his innocence and says that on the night of the shooting he was at home with family watching TV and talking to a friend on the phone until after midnight. The state’s case against Dunn was built solely on the testimony of the two boys sitting with Rogers: 12-year-old Michael Davis and 14-year-old DeMorris Stepp. During truncated police interviews, each boy named Dunn as the shooter. At Dunn’s trial, the prosecutor boldly leaned into the lack of physical evidence: The boys’ testimony was “all the evidence in the case,” he told the jury.

As such, when Davis and Stepp later recanted their stories about Dunn being the assailant, there was nothing left to prop up the prosecution’s case. Although the situation was about as straightforward as they come, thanks to quirks of Missouri law, Dunn found himself in a legal quagmire. He had no way to effectively challenge his conviction. And so it was — until 2021, when a new law offered prosecutors an avenue to overturn convictions they believe were wrongly obtained by their office. In February, Gabriel Gore, St. Louis’ appointed circuit attorney, asked a court to exonerate Dunn. “Both witnesses … now state that it was too dark to see any shooter on May 18, 1990,” Gore wrote in a motion to vacate the conviction. “The recantations alone are enough to show clear and convincing evidence of actual innocence.”

Christopher Dunn listen to testimony during the second day of a hearing to decide whether to vacate his murder conviction on Wednesday, May 22, 2024, at the Carnahan Courthouse in St. Louis. Dunn, 52, has maintained his innocence for more than three decades in the 1990 murder of 15-year-old Ricco Rogers in the city’s Wells-Goodfellow neighborhood. Pool photo by Laurie Skrivan via St. Louis Post-Dispatch

Christopher Dunn listen to testimony during the second day of a hearing to decide whether to vacate his murder conviction on May 22, 2024, at the Carnahan Courthouse in St. Louis.
Photo: Laurie Skrivan/St. Louis Post-Dispatch via Pool

In court last month, Gore argued for the release of the man his office condemned to life in prison decades ago. On the other side of the courtroom, meanwhile, there was an adversary arguing that Dunn’s conviction was righteous and should be maintained: the office of Missouri Attorney General Andrew Bailey.

“A jury deliberated and found Dunn guilty,” said Assistant Attorney General Tristin Estep during the two-day hearing. “Now, this court is being asked to disturb that jury verdict and to set a convicted murderer free.”

Dunn’s is the third case since the change in state law where an elected prosecutor has sought to vacate a wrongful conviction. It is also the third time the attorney general’s office has popped up to question the prosecutor’s judgment. To date, the office has failed in its efforts. By interjecting itself in the Dunn case, Bailey’s team appears to be angling for a three-peat.

Such obstinance is on brand for the Missouri attorney general’s office, which for decades has fought to maintain even the most tainted of convictions. (The attorney general’s office did not respond to The Intercept’s request for comment.) The office has evinced a self-righteous political energy that has intensified during the Biden administration as it has increasingly carried water for MAGA-nation culture war priorities. That strategy has continued apace under Bailey, who was appointed to the office in 2023 and is running for a full term this year.

“Proven Liars”

It was nearing midnight on May 18, 1990, and Recco Rogers, Michael Davis, and DeMorris Stepp were hanging out on the front porch steps of their friend Marvin Tolliver’s house. (In some court records, Rogers’s name is spelled “Ricco.”) They were dancing and talking, Stepp told police, when shots rang out. The three boys jumped up, breaking east into the front yard as they fled. As Davis moved away from the sound of the gun, he saw Rogers fall forward into the grass. Davis mimicked his friend, dropping to the ground and playing dead while Stepp jumped a short chain-link fence and tore off down the street. When the shooting was over, Davis realized Rogers hadn’t been playing; he’d been shot once through the back of the head and was now bleeding out in the grass. Minutes later the police arrived.

Back at the police station hours later, during back-to-back 10-minute interviews that ended at 3:14 a.m., Stepp and then Davis gave confusing, and at times contradictory, accounts of what happened. It was dark and, they told police, neither was sure where the shots had come from. They then said that Dunn was the shooter. Neither of the boys really knew Dunn, who had only recently been released after doing a short stint for cocaine possession, yet each said they’d recognized him as he shot at them from the neighbor’s darkened yard. According to Stepp, Dunn was wearing a white T-shirt and a blue baseball cap; Davis said Dunn was wearing a white T-shirt and wire-framed sunglasses.

With that, police arrested Dunn and charged him with murder. During a one-and-a-half-day trial in July 1991, Stepp and Davis carried the day for the state, while Dunn’s defense attorney called no witnesses. Jurors deliberated just 42 minutes before finding Dunn guilty. He was sentenced to life without parole.

On appeal, Dunn complained about his lawyer’s failure to call any witnesses, including those who could have testified about his alibi. At the time of the murder, Dunn said, he was home watching the TV show “Hunter” with family and talking on the phone with his good friend Nicole Bailey (no relation to Andrew Bailey), who was in the hospital after giving birth to her daughter. Dunn’s appeals were denied.

Things began to change in 2005, when Stepp came forward and recanted his testimony. From prison, where he was doing life for murdering his girlfriend, he said that it was too dark to see who had been shooting at them that night. Ten years later, Davis too changed his tune. He hadn’t seen Dunn that evening, he said; in fact, he had no idea who shot at him and his friends. “It was like a sniper,” he said.

The new evidence helped land Dunn back in court in 2018, where his attorney argued the recantations proved Dunn was innocent. Judge William Hickle agreed. “This Court does not believe that any jury would now convict Christopher Dunn under these facts,” he opined in 2020. The only witnesses who implicated Dunn in the crime, he wrote, “are proven liars.”

Still, Hickle’s hands were tied. Under Missouri law, only defendants sentenced to death could raise free-standing claims of innocence — that is, an innocence claim untethered to a cognizable violation of a constitutional right, such as an illegal search or the state’s failure to turn over evidence. So, although Hickle had concluded Dunn should be freed, there was no way for the judge to make it happen.

A Legal Hurdle

Back in 2003, the Missouri Supreme Court took up the case of Joseph Amrine, who was on death row for a murder that he did not commit. The case was strikingly similar to Dunn’s: The only evidence that Amrine killed a fellow prisoner was the eyewitness testimony of three other incarcerated people, all of whom later recanted. The question before the court was whether Amrine’s actual innocence claim alone was enough to set him free. The attorney general’s office argued that it was not: Even if the court thought Amrine was innocent, it couldn’t do anything about it if Amrine’s trial had been free of constitutional error. As such, the attorney general concluded, Amrine should be executed.

The state Supreme Court did not agree: “The continued imprisonment and eventual execution of an innocent person is a manifest injustice,” the 4-3 majority opined. In the intervening years, however, the court has declined to endorse the idea that any wrongful conviction, regardless of the sentence, is similarly unjust and has failed to offer the same avenue of relief to people like Dunn, whose apparent misstep was avoiding the death penalty.


Related

Missouri Prosecutors Lack the Power to Right a Wrongful Conviction

This hole in the law has vexed innocent people incarcerated in Missouri, a problem later compounded by another ruling, wherein the court concluded that the state’s elected prosecutors lacked any meaningful way to challenge a conviction in their jurisdiction that they believed had been wrongly obtained. In 2021, state legislators passed a law to allow elected prosecutors to do just that.

With the new law in hand, St. Louis Circuit Attorney Kim Gardner filed a petition in 2023 seeking to overturn Dunn’s conviction. Although Gardner, the first Black person to hold that office, was popularly elected twice, she faced staunch opposition from supposed law-and-order types — including state Attorney General Andrew Bailey — who claimed she was failing to keep the city safe. Bailey demanded that Gardner resign, and when she didn’t, he filed a lawsuit seeking to oust her from office.

In her final official act before leaving her post, Gardner filed a motion to vacate Dunn’s conviction. “We have an ethical duty to work to correct this injustice,” Gardner said of Dunn’s case. “We are hopeful his wrongful conviction is set aside for the sake of Mr. Dunn, his family, and the people of the City of St. Louis.”

Gardner’s departure left Dunn’s defenders, including at the Midwest Innocence Project, waiting for the other shoe to drop. And it did when Gore, appointed by the governor to finish out Gardner’s term, assumed office and pulled Gardner’s petition. Gore wanted to review the case himself, he said. He appointed respected former appeals court judge Booker Shaw to conduct the review and advise him on whether to move forward with seeking to topple Dunn’s conviction. That process concluded in February, when Gore filed a new petition asking the court to free Dunn.

Special Assistant with St. Louis Circuit Attorney's office Booker Shaw, left, sits next to St. Louis Circuit Attorney Gabe Gore, as he listens to witness testimony during the first day of the hearing to decide whether to vacate Christopher Dunn?s murder conviction on Tuesday, May 21, 2024, at the Carnahan Courthouse. Dunn, 52, has maintained his innocence for more than three decades in the 1990 murder of 15-year-old Ricco Rogers in the city?s Wells-Goodfellow neighborhood. Pool photo by Laurie Skrivan via St. Louis Post-Dispatch

Special Assistant with St. Louis Circuit Attorney’s Office Booker Shaw, left, sits next to St. Louis Circuit Attorney Gabe Gore, as he listens to witness testimony during the first day of the hearing to decide whether to vacate Christopher Dunn’s murder conviction on May 21, 2024, at the Carnahan Courthouse.
Photo: Laurie Skrivan/St. Louis Post-Dispatch via Pool

The Case for Freedom

Just after 10 a.m. on May 21, Shaw stepped to the lectern in a St. Louis courtroom wearing a natty blue suit, crisp white cuffs, and pocket square. Pointing to Hickle’s 2020 opinion in which he concluded that he couldn’t do anything about Dunn’s innocence, Shaw argued to Judge Jason Sengheiser that now, things are different. “Now judge,” Shaw said, “Missouri law gives you the opportunity to grant relief.” Once Sengheiser heard the evidence himself, Shaw predicted, it would “inevitably” lead him to agree that Dunn should be exonerated.

First to the stand was Eugene Wilson, Dunn’s childhood friend who was also outside Marvin Tolliver’s house on the night of the murder. Wilson had been hanging out on the steps too but had left with Tolliver to go pick up Chinese food a couple blocks away. They were walking back toward the house when the shots rang out, Wilson said.

In a deep, soft voice Wilson explained that, earlier in the evening Dunn, who lived nearby, had stopped by for a visit, but was long gone by the time the shooting began. Wilson saw the muzzle flash and noticed that whoever was holding it was clad in dark clothing, but otherwise he said it was too dark to see anything. “The flash showed a dark shadow,” he said. After the shooting the other boys suggested it might’ve been Dunn, Wilson said, but he disagreed.

Wilson’s mother had died several years earlier, and Wilson was living with Rogers and his mom at the time of the shooting. After Rogers was killed, Wilson did his best to console his mother. Wilson was on the scene when the cops arrived, he testified — he is listed as a witness in the police report — and yet no one ever talked to him about what he saw. If they had, they would’ve heard that just three days before Rogers was murdered, Rogers, Wilson, and Tolliver had been involved in an altercation with Rogers’s mother’s abusive boyfriend. As Wilson tells it, the boyfriend had been “putting his hands” on Rogers’s mom and Rogers wanted to teach the man a lesson. “We jumped him really badly,” Wilson recalled. After the shooting, Wilson noted, the man simply disappeared.

Not long after the murder, Wilson moved out of the neighborhood. More than two decades passed before he was contacted by a defense investigator who asked what he knew about the night of the shooting. When Wilson learned that Dunn had been locked up the whole time, “I was shocked,” he testified. “The truth is he never should’ve been convicted.”

The attorneys also played for the judge a recording of Michael Davis, who moved with his mother to California shortly after the shooting. Davis couldn’t be located to testify in person in St. Louis, but in a 2015 conversation with a defense investigator, Davis said that it was Stepp who initially suggested the boys name Dunn as the shooter.

The boys fancied themselves affiliates of the Bloods gang, Davis said, and they believed that while Dunn was incarcerated, he had aligned himself with the rival Crips — Dunn was always wearing blue, after all — and so they didn’t like him. “Out of animosity we said it was him,” Davis said.

Davis said he’d tried to walk back his identification in July 1991, when he was brought back to Missouri to testify at Dunn’s trial. Davis told investigators he wasn’t sure it was Dunn who’d shot at them, he recalled. Instead of listening, he said they showed him graphic photos of his dead friend and then got Rogers’s mom on the phone who pleaded with Davis to testify against Dunn, which he did.

Looking back, Davis regretted what he’d done, he told the defense investigator nine years ago, speaking from prison. Davis, who struggles with substance abuse, for years has been in and out of trouble with the law. Since he’d been incarcerated, Davis realized what it meant to send someone to prison for murder, he said. “I took a man’s life away and I didn’t even see him do it.”

The circuit attorney also called to the stand Nicole Bailey, Dunn’s friend who had given birth to her daughter just before the shooting. Bailey and Dunn were tight and talked on the phone constantly — sometimes through the night, Bailey testified. So it wasn’t odd that while she was recovering from a Caesarean section in the hospital, she got on the phone with Dunn around 11 p.m. on May 18, 1990. The two talked about the episode of cop drama “Hunter” that had just started and about the birth of Bailey’s daughter. They finally got off the phone when a nurse came in to check Bailey’s vital signs, she said. According to hospital records, that was at 1 a.m. — more than an hour after the shooting. Bailey said she tried to tell someone what she knew, “but I guess nobody wanted to hear what I had to say.”

Tristin Estep, prosecutor with the Missouri Attorney General's Office, points to a map of North City as she cross-examines witness Eugene Wilson during the first day of the hearing to decide whether to vacate Christopher Dunn?s murder conviction on Tuesday, May 21, 2024, at the Carnahan Courthouse. Dunn, 52, has maintained his innocence for more than three decades in the 1990 murder of 15-year-old Ricco Rogers in the city?s Wells-Goodfellow neighborhood. Pool photo by Laurie Skrivan via St. Louis Post-Dispatch

Tristin Estep, a prosecutor with the Missouri Attorney General’s Office, points to a map as she cross-examines a witness during the first day of the hearing to decide whether to vacate Christopher Dunn’s murder conviction on May 21, 2024, at the Carnahan Courthouse.
Photo: Laurie Skrivan/St. Louis Post-Dispatch via Pool

Doubling Down

For the Missouri attorney general’s office, the hearing in St. Louis would mark the second time in recent years that its lawyers have showed up to argue against Dunn’s innocence. Assistant Attorney General Andrew Crane represented the office’s losing position at the hearing before Hickle. Later, Crane would also be on the team arguing in opposition to the exoneration of Kevin Strickland in 2021 and of Lamar Johnson, who was freed last year.

In the ongoing quest to keep Dunn locked up, Crane was joined by Estep — who was also on the team that opposed Johnson’s exoneration.

Estep argued to Sengheiser that the whole notion Dunn is innocent is a ruse, a fanciful story backed up by recantations and eyewitness evidence that Dunn somehow puppet-mastered with the help of people “either inside or outside prison.” The one thing that should be clear to the judge was that the “present-day version of events is a well-crafted story,” she said. “And who doesn’t love a good story?”

The state didn’t have much in the way of evidence to back up its claims. Estep questioned why Wilson didn’t approach the cops on his own and suggested he was standing somewhere other than when he claimed at the time of the shooting. Crane argued that Davis’s recording shouldn’t be allowed into evidence because Davis never confirmed that it was his voice on tape (even though Davis stated his name during the interview). Estep suggested that Bailey’s memory was tainted by all the meds she was on after delivering her child. To be fair, Bailey was on some drugs, but according to hospital records, the only ones she’d been administered anywhere remotely near in time to the call were a coagulant and a gas relief medicine. 

The AG’s lawyers called to the stand lead detective Gary Stittum, to confirm that he did a good job on the investigation. He testified that if Dunn had offered him evidence of innocence, he surely would’ve checked it out. “Nobody gave me anything to cause me to investigate anything,” he said. He also said he never would’ve shown Davis any photos of his dead friend or put his mother on the phone to try to coerce Davis into testifying about something that didn’t happen; the former prosecutor, now a retired judge, said the same. “No, no, no,” he said. “I’d never do that.”

(Notably, Stittum was also an investigator on the Johnson case, which was similarly based on the testimony of an eyewitness who later recanted and leveled an identical charge of coercion.)

And then there was Stepp, upon whose questionable credibility the attorney general’s office hung its case for keeping Dunn in prison.

Just over a decade after Stepp recanted his story, an investigator for the attorney general’s office visited him in prison and, according to an office memo, Stepp offered a new version of events. This time, he said he saw Dunn that night, but that Dunn was with another unknown individual and that was the person who shot at the boys. In 2018, when Stepp testified at the evidentiary hearing before Hickle, he said that his most recent story wasn’t accurate but confirmed that Dunn was not the person who shot at the boys in May 1990. The AG’s current take appears to be that Stepp has changed his story so many times that it only makes sense to trust his initial statements implicating Dunn.

Estep leaned into this idea, dismissing the notion there were any inconsistencies in Stepp and Davis’s initial stories about seeing Dunn. The two boys simply focused on different details of their assailant’s appearance: Stepp said Dunn was wearing a ball cap, Davis said it was a pair of sunglasses. “No two people experience everything the same,” she said.

To hear Estep tell it, there is no manner of inconsistency — let alone recantation — that could make the boys’ trial testimony unreliable. The boys’ identifications were “correct and accurate,” Estep said. The inconsistencies in their stories start with the recantations, she claimed. “This is where the lies begin.”

Throughout the hearing, Stepp remained in a holding cell behind the courtroom. The attorney general’s office never called him to testify.

Bombastic Arguments

When Kevin Strickland was exonerated in the fall of 2021 after spending 43 years behind bars, Sean O’Brien, a veteran lawyer and law professor at the University of Missouri–Kansas City, noted that the attorney general’s opposition had only increased the toll of Strickland’s wrongful conviction. Had the office not opposed Strickland’s release, he could have been out of prison in time to see his mother before she died. O’Brien has worked on numerous wrongful conviction cases over the years — including the Amrine case — and the attorney general’s office had reflexively opposed innocence claims “forever, for as long as I’ve been a lawyer,” he said. “I have never seen this office admit that a mistake was made.”

“I have never seen this office admit that a mistake was made.”

Yet the attorney general’s office doesn’t shy away from pointing out the alleged mistakes of others in its seemingly daily work of attacking the Biden administration and so-called blue-state policies.

Missouri’s Republican governor appointed Bailey as attorney general in 2023 to fill the seat of fellow culture warrior Eric Schmitt, who was elected to the U.S. Senate. Over the last year, Bailey has filed all manner of captious legal actions opposing “radical states” policies seeking to address the “alleged ‘climate crisis,’” demanding the construction of a border wall, and against “asinine” Title IX policy — as his office put it in an email subject line — that promotes a “radical transgender ideology.”

Bailey has taken up defense of Elon Musk, suing Media Matters for failing to turn over documents identifying the nonprofit’s Missouri donors who Bailey alleges were somehow defrauded by the company. Bailey says the media watchdog took donors’ money in order to “bully advertisers” on X, which Bailey unironically calls “the last social media platform dedicated to free speech in America.” He announced an investigation into the “radical” diversity, equity, and inclusion programs of St. Louis County’s Hazelwood School District, which, if they exist, he alleges somehow might’ve played a role in an off-campus student fight.

“I’m a combat veteran who has never backed down from a fight,” Bailey said last year when announcing his run, “and a prosecutor who has defended Missouri communities by putting violent criminals behind bars.”

In St. Louis, Bailey’s underlings adopted his bombastic posturing, arguing that Dunn was himself a violent criminal who deserved to be left behind bars to die.

Christopher Dunn walks into the courtroom placing his hand on his heart as he looks towards his wife during the second day of a hearing to decide whether to vacate his murder conviction on Wednesday, May 22, 2024, at the Carnahan Courthouse in St. Louis. Dunn, 52, has maintained his innocence for more than three decades in the 1990 murder of 15-year-old Ricco Rogers in the city’s Wells-Goodfellow neighborhood. Pool photo by Laurie Skrivan, St. Louis Post-Dispatch

Kira Dunn, who is married to Christopher Dunn, listens as St. Louis Circuit Attorney Gabe Gore argues to vacate her husband's murder conviction during closing arguments on the second day of a hearing on the case on Wednesday, May 22, 2024, at the Carnahan Courthouse in St. Louis. Dunn, 52, has maintained his innocence for more than three decades in the 1990 murder of 15-year-old Ricco Rogers in the city’s Wells-Goodfellow neighborhood. Pool photo by Laurie Skrivan via St. Louis Post-Dispatch

Left/Top: Christopher Dunn walks into the courtroom and places his hand on his heart as he looks toward his wife on May 22, 2024. Right/Bottom: Kira Dunn listens as St. Louis Circuit Attorney Gabe Gore argues to vacate her husband’s murder conviction on May 22, 2024, at the Carnahan Courthouse.
Photos: Laurie Skrivan/St. Louis Post-Dispatch via Pool

A Judge’s Call

On the second day of the hearing, Dunn walked into the courtroom dressed in his same gray suit and, looking out at the gallery, stopped, cocked his head to the side and put his hand over his heart, a smile spreading across his face as he locked eyes with Kira, his wife of 10 years. Kira responded in kind.

Kira had driven to the hearing from California with her 19-year-old son. They’d packed a bag for Dunn, hoping that he would be making the cross-country journey home with them. That would not happen; heading off the possibility that the judge would make a same-day ruling, Estep asked that the lawyers be allowed to file post-hearing briefs arguing their position, meaning Sengheiser wouldn’t have an opportunity to make his decision until at least June 10.

Kira struggled during the hearing as Estep spun tales about Dunn orchestrating a grand deception to fool people into believing he is innocent. He is, she insisted, but the lies still hurt. She said she hopes Sengheiser can see past the distractions.

Gore also encouraged Sengheiser to see the case for what it is. “It’s undisputed — and it’s always been undisputed — that the only evidence supporting Mr. Dunn’s conviction” was the children’s testimony, he said. “And they have since recanted that testimony.”

The post Missouri’s Attorney General Is Waging War to Keep the Wrongly Convicted Locked Up appeared first on The Intercept.

Columbia Law Review Refused to Take Down Article on Palestine, So Its Board of Directors Nuked the Whole Website

Published by Anonymous (not verified) on Tue, 04/06/2024 - 12:37pm in

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Justice, World

Last November, the Harvard Law Review made the unprecedented decision to kill a fully edited essay prior to publication. The author, human rights lawyer Rabea Eghbariah, was to be the first Palestinian legal scholar published in the prestigious journal. 

As The Intercept reported at the time, Eghbariah’s essay — an argument for establishing “Nakba,” the expulsion, dispossession, and oppression of Palestinians, as a formal legal concept that widens its scope — faced extraordinary editorial scrutiny and eventual censorship. 

When the Harvard publication spiked his article, editors from another Ivy League law school reached out to Eghbariah. Students from the Columbia Law Review solicited a new article from the scholar and, upon receiving it, decided to edit it and prepare it for publication.

Now, eight months into Israel’s onslaught against Gaza, Eghbariah’s work has once again been stifled — this time by the Columbia Law Review’s board of directors, a group of law school professors and prominent alumni that oversee the students running the review. 

Eghbariah’s paper for the Columbia Law Review, or CLR, was published on its website in the early hours of Monday morning. The journal’s board of directors responded by pulling the entire website offline. The homepage on Monday morning read “Website under maintenance.” 

According to Eghbariah, he worked with editors at the Columbia Law Review for over five months on the 100-plus-page text.

“The attempts to silence legal scholarship on the Nakba by subjecting it to an unusual and discriminatory process are not only reflective of a pervasive and alarming Palestine exception to academic freedom,” Eghbariah told The Intercept, “but are also a testament to a deplorable culture of Nakba denialism.”

Website Takedown

Seven editors who had worked on the article told The Intercept that, over the weekend, members of the board of directors pressured the law review’s leadership to delay and even rescind publication. Most of the CLR editors spoke to The Intercept on the condition of anonymity, fearing the backlash that others have faced for speaking out for Palestine.

Numerous editors stressed that the editorial input had been extensive, and that the text was more widely circulated among a greater number of people than is the case prior to the publication for most CLR articles.

After a back-and-forth with the board and fellow editors, the members of CLR responsible for the Eghbariah article said they feared that the draft had been leaked and decided to preempt outside pressure by publishing the issue online in the early morning hours of June 3. After the editors declined a board of directors request to take down the articles, the board pulled the plug on the entire website.

The CLR board of directors told The Intercept in a statement that there were concerns about “deviation from the Review’s usual processes” and said it had taken the website down to give all CLR members the chance to read the article and that the decision was not a final decision on publication. 

“I don’t suspect that they would have asserted this kind of control had the piece been about Tibet, Kashmir, Puerto Rico, or other contested political sites.”

“We spoke to certain members of the student leadership to ask that they delay publication for a few days so that, at a minimum, the manuscript could be shared with all student editors, to provide them with a chance to read it and respond,” the board said. “Nevertheless, we learned this morning that the manuscript had been made public. In order to provide time for the Law Review to determine how to proceed, we have temporarily suspended its website.”

The apparent intervention by the board of directors surprised some Columbia Law School faculty. 

“I don’t suspect that they would have asserted this kind of control had the piece been about Tibet, Kashmir, Puerto Rico, or other contested political sites,” Katherine Franke, a professor, told The Intercept.

“When Columbia Law Professor Herbert Weschler published his important article questioning the underlying justification for Brown v. Board of Education in 1959 it was regarded by many as blasphemous, but is now regarded as canonical. This is what legal scholarship should do at its best, challenge us to think hard about hard things, even when it is uncomfortable doing so.” 

“Completely Unprecedented”

The article significantly expands on Eghbariah’s argument for Nakba as its own legal concept in international law. The scholarship is aimed at creating a legal framework for the Nakba similar to genocide and apartheid, which were concretized as crimes in response to specific atrocities carried out by Nazi Germany and white minority-ruled South Africa, respectively. 

“The piece fills a conspicuous gap in legal literature with doctrinal, historical, and moral clarity,” said Margaret Hassel, Columbia Law Review’s previous editor in chief until last February. “I am tremendously proud of the work, care, and thought that Eghbariah and the Review’s editors have poured into the piece.”

“I was just sick to my stomach and disgusted that, once again, this was happening.”

The Columbia Law Review is a separate nonprofit from Columbia University, but the editors are Columbia Law students and its oversight includes law school faculty. The board of directors consists of established faculty members and eminent alumni of the law school. Among the most well-known of the board members are Columbia Law School Dean Gillian Lester; Columbia law professor Gillian Metzger, who also serves in the Justice Department’s Office of Legal Counsel; and Department of Justice senior counsel Lewis Yelin.

Board interventions in editorial content are, the editors said, extremely rare. (The board of directors did not immediately respond to a request for comment on how often it gets involved in editorial processes.)

All of the law review editors who spoke to The Intercept said that Eghbariah’s text went through an extensive editorial process, with extra caution taken due to concerns over potential backlash. 

“I was just sick to my stomach and disgusted that, once again, this was happening, seven months later after Harvard had just gone through that debacle,” said Erika Lopez, a CLR editor and its diversity, equity, and inclusion chair.

Members of CLR’s production team told The Intercept that the board of directors reached out in recent days, pressuring editors to delay the publication of Eghbariah’s piece. According to the students, Metzger and former Assistant to the U.S. Solicitor General Ginger Anders, another alumnus, called Sunday requesting that the piece first be reviewed by the 100-plus members of CLR. The board members told editors they had been made aware that the paper had not gone through appropriate procedures.

The students who spoke with The Intercept said that in their time at CLR, they had never received a request from the board to distribute the text of an article to the entire membership of the review — nor had they heard of the board being aware of an article’s text before publication.

A procedure was in place, said the CLR staffers, and it was followed. 

“What we were doing had precedent in processes used in the past,” said Jamie Jenkins, a CLR editor who helped shepherd the piece toward publication. “Distributing the piece to the entirety of law review was completely unprecedented.”

No Palestinians

Lopez initially proposed soliciting a piece on Palestine in the context of human rights law in October.

“I remember searching Columbia Law Review’s website in October, and there’s only one other mention of the word Palestine in the entire online existence,” said Lopez — in a footnote from 2015. As would have been the case with the Harvard Law Review, Eghbariah is the first Palestinian scholar to publish in the Columbia Law Review. 

“Every single piece that we publish goes through an incredibly, incredibly rigorous publication process.”

A large majority of the administrative board — the student editors in charge of the publication process — took part in a vote, and voted unanimously 23-0 to create a committee for pursuing a piece on Israel–Palestine. A smaller, voluntary committee of 11 editors proceeded to select and then shepherd Eghbariah’s piece. While editors are typically selected and assigned pieces at random, the process in this case allowed for volunteer-based involvement, given the fraught nature of the subject matter. Some 30 members of the review ended up working on the piece throughout its production, editors said.

“Every single piece that we publish goes through an incredibly, incredibly rigorous publication process. We just have high publication standards,” said Jenkins, who noted the piece was given even more scrutiny because of the fraught subject matter. “So there was some additional work put into it, but in general, it was the same steps of production.”

The editors involved were concerned about leaks, they said, which could have put the editorial process at risk. Drafts of the piece were, for example, only available on a drive shared between the opt-in committee directly working on it, rather than all editors.

Once notified that the issue would be posted online, Metzger and Anders urged the students to not just delay publication, but also to send Eghbariah’s essay — though not the other six slated articles — to the rest of the law review. Editorial leadership initially heeded their demand, choosing to delay publishing of the May issue until June 7, and sending the entire masthead a draft of Eghbariah’s essay. 

 Civil defense teams and citizens continue search and rescue operations after an airstrike hits the building belonging to the Maslah family during the 32nd day of Israeli attacks in Deir Al-Balah, Gaza on November 7, 2023. (Photo by Ashraf Amra/Anadolu via Getty Images)

Read our complete coverage

Israel’s War on Gaza

Shortly thereafter, editorial leaders followed up again with the board, notifying the directors there was reason to believe the piece had indeed been leaked beyond CLR members. Editors told The Intercept that members of the law review had reached out to inform them that they had been speaking with professors and mentors about the article. Several said they had been told to resign as editors. A former member of the board of directors also reached out to a member of the production team requesting that his name be removed from the masthead.

In response to word of these leaks, the editors working on the piece decided to proceed with publication on June 3, at roughly 2:30 a.m.

Following the piece’s publication, the directors reached out to the editors again, according to a CLR editor, requesting the entire May edition to be taken down. Editorial leadership refused. Shortly thereafter, the entire CLR website was down — and remains that way as this article went to publication.

Rashid Khalidi, the celebrated Palestinian American professor of history at Columbia, who is on Eghbariah’s dissertation committee for his doctorate from Harvard Law School, said that Eghbariah “provides an entirely original and very intelligent analysis of a bunch of aspects of the legal system in Israel, which I think should be welcomed by any open-minded person in the legal profession.”

Both Eghbariah and numerous editors at the review remain committed to the importance of the legal scholarship in question. The author, who has tried landmark Palestinian civil rights cases before the Israeli Supreme Court, noted that in its current case charging Israel with genocide at the International Court of Justice, South Africa’s legal team referred to the Palestinian “ongoing Nakba” as the context for the current genocide case. 

“What we need to do is to acknowledge the Nakba as its own independent framework that intersects and overlaps with genocide and apartheid,” Eghbariah told The Intercept, while adding that the Nakba also “stands as a distinct framework that can be understood as its own crime with a distinctive historical analytical foundation structure and purpose.” 

Correction: June 4, 2024
This story has been updated to reflect that the unanimous vote by members of the administrative board was to form a committee to pursue a piece on Israel–Palestine, not to publish a piece.

The post Columbia Law Review Refused to Take Down Article on Palestine, So Its Board of Directors Nuked the Whole Website appeared first on The Intercept.

To Understand the Trump Verdict, Look at the Case Against Shukhratjon Mirsaidov

Published by Anonymous (not verified) on Tue, 04/06/2024 - 2:32am in

Tags 

Justice, Politics

Former President Donald Trump attends UFC 302 at Prudential Center on June 01, 2024 in Newark, New Jersey.

Former President Donald Trump attends mixed martial arts event UFC 302 at Prudential Center on June 1, 2024, in Newark, N.J.
Photo: Luke Hales/Getty Images

The legal system cracked down on a New York fraudster last Thursday. Guilty of engaging in a complex scheme to move and hide money for his personal benefit, a former top executive must now face sentencing and the possibility of spending time in prison.

But last Thursday’s court hearing for Shukhratjon Mirsaidov, during which he pleaded guilty to money laundering, was overshadowed by a different white-collar criminal case in another New York courthouse on the same day. Just as Mirsaidov, a former business executive, was pleading guilty in federal court in Manhattan to a complex, fraudulent scheme to launder money, Donald Trump, a former president, was also convicted in a complex fraudulent scheme to falsify business records — in his case hiding a hush-money payment to a porn star that risked derailing his presidential campaign. 

The Trump and Mirsaidov cases aren’t exactly alike, and the stakes involved are obviously very different. But the similarities between them prove that the case brought against Trump was not out of line with the routine white-collar prosecutions that make up the daily work of the justice system. Vengeful attacks by Trump and his supporters claiming that ex-president is the victim of a political persecution don’t stand up to scrutiny when it becomes clear that the Trump case was not so different from the run-of-the-mill case that ensnared Mirsaidov on the same day.

Federal prosecutors accused Mirsaidov of laundering hundreds of thousands of dollars he obtained through health care fraud through a bank account at the company where he worked. Damian Williams, the U.S. attorney for the Southern District of New York, the office that prosecuted Mirsaidov, said the case was more significant because Mirsaidov took advantage of his senior position to gain access to company accounts to launder funds. “While all forms of money laundering are pernicious, such conduct is particularly severe when it involves executives at major businesses abusing their positions,” Williams said. “This case demonstrates that money launderers — no matter what their station — will be held accountable.” 

Williams could just as easily have been talking about Trump. The difference was that Mirsaidov was simply trying to enrich himself, while Trump was trying to win an election through a fraudulent cover-up. 

Trump was treated like other white-collar criminals in New York, but the guilty verdict in that case stands in stark contrast to the kid-glove treatment he has received in the three other pending cases in which he has been criminally charged. The New York case was the only one that couldn’t be delayed or quashed by Republican-appointed judges or right-wing legal and political systems, and so is the only one that has yet gone to trial. All three other cases remain in legal limbo because Trump is receiving privileged treatment, giving the lie to the notion that everyone is equal before the law in the United States. 

In each jurisdiction in which he has been charged besides New York’s state courts, the legal system has provided a champagne room for Trump — and a back alley for everyone else. 

Trump has been indicted in federal court for trying to overturn the 2020 election, engaging in what amounted to a coup d’état to illegally remain in power and stop Joe Biden from becoming president. He also faces separate federal charges in a scheme in which he illicitly kept classified documents after he left office and hid them from federal investigators when they came looking for them. In a third case, Trump faces state charges in Georgia for conspiring to overturn the 2020 election results in that state, which Biden won. 

The federal case involving his efforts to overturn the 2020 election is currently on hold because the Republican-dominated Supreme Court has taken up Trump’s ridiculous claim, dismissed by lower courts, that he is immune from prosecution because he was still president at the time he was trying to illegally overturn the election. 

In the classified documents case, a Trump-appointed federal judge has been doing his bidding by agreeing to endless delays. The judge seems to be hoping to delay the case until after the November election, hoping that Trump will win, quash the case, and then reward her with a position on a higher court or a top position in his administration.

The Georgia case has been delayed by a sideshow concerning the personal relationship between the district attorney who brought the case and an outside prosecutor she hired to handle the prosecution. Their sexual relationship became the subject of bitter hearings; a judge ruled that the district attorney could remain on the case despite the relationship, but that ruling is now on appeal, delaying the trial. 

 Tom Brenner/Bloomberg via Getty Images

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The Supreme Court is expected to issue a ruling on whether Trump is immune in the federal election interference case before the end of its current term in July. If the court rules that Trump is not immune, that case could go to trial before the election. 

But the fact that ethically challenged Clarence Thomas and Samuel Alito get to vote on whether to hold Trump accountable doesn’t bode well for the rule of law. 

So for now, the New York case, which the pundit class initially dismissed as the weakest of the four cases against Trump, is the only one to hold him accountable for what he is: a white-collar criminal, not so different from Shukhratjon Mirsaidov.

The post To Understand the Trump Verdict, Look at the Case Against Shukhratjon Mirsaidov appeared first on The Intercept.

Not Just Coastal Elites: Here’s How Three Rust Belt Colleges Protested Israel’s War in Gaza

Published by Anonymous (not verified) on Sun, 02/06/2024 - 7:00pm in

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Much of the national conversation around student protests against Israel’s war on Gaza has centered on elite campuses at coastal universities.

News outlets gave daily coverage to Columbia University after administrators called in the New York City Police Department to arrest the student protesters. There was comparatively little attention to another savage crackdown just uptown at the City College of New York, even though students at the working-class public university received harsher charges than those at the Ivy League school.

Across the country, in another coastal megacity, media fixated on an attack by supporters of Israel against a student protest at University of California, Los Angeles, a school considered a top-flight “public Ivy.”

Student demonstrators held protests for Gaza in 11 out of 13 states in the Appalachian region, as well as in every state in the Rust Belt.

A narrative took hold that fueled efforts by critics to discredit protests by claiming that their student leaders are privileged, out of touch, and in it for themselves.

For all the media attention focused on the coasts, though, mainstream media largely ignored the protests that swept campuses across the Rust Belt and into Appalachia, where students from working- and middle-class backgrounds have led protests at the University of Pittsburgh, Case Western Reserve University, and Ohio State University.

Student demonstrators held protests for Gaza in 11 out of 13 states in the Appalachian region, as well as in every state in the Rust Belt. Hundreds of the more than 2,900 student protesters arrested since the encampments started this spring hailed from inland schools.


Related

University Professors Are Losing Their Jobs Over “New McCarthyism” on Gaza

“You do wonder what you would’ve done during certain parts of history, especially when it’s something that doesn’t impact you directly,” said one student at Case Western in Cleveland, Ohio. “I think that this is my time to challenge myself to think about what I would do. And that’s what I’m doing now.”

The focus on elite, coastal universities has overshadowed the breadth of the brutal police crackdowns and impunity for attacks on pro-Palestinian demonstrators. Police deployed militarized tanks and riot gear against students at some of the more than 50 schools that saw raids. Demonstrators were were tasered, thrown down stairs, and left with broken limbs and teeth.

Protesters and professors at schools like Arizona State, University of Georgia, and the University of Texas at Austin were tackled, pepper sprayed, and shot with rubber bullets. Police fired a gun inside a building at Columbia, and cops stood back while the pro-Israel protesters launched fireworks into the encampment at UCLA.

Legal advocates have also documented disparities in the treatment of students at different campuses, as in the cases of City College and Columbia.

Violence against students in Rust Belt states has gone largely unrecognized.

Contractors hired to paint over a pro-Palestine mural at Case Western Reserve sprayed paint directly onto student protesters who tried to block them from covering the mural. University President Eric Kaler said that demonstrators had added antisemitic language to protest art on campus and that the contractors were directed to paint them over. (Kaler apologized for the incident and said the university would investigate.)

At Ohio State, police attacked a crowd of protesters during a Muslim prayer at the Gaza encampment and reportedly choked and pushed students, trying to rip off some of the students’ hijabs.

“Instead of defending my thesis this week, I spent it in the ER with a severe concussion,” said a protester at OSU. “We have been traumatized as a community by OSU PD, who called in state troopers on their students.”

 Civil defense teams and citizens continue search and rescue operations after an airstrike hits the building belonging to the Maslah family during the 32nd day of Israeli attacks in Deir Al-Balah, Gaza on November 7, 2023. (Photo by Ashraf Amra/Anadolu via Getty Images)

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Israel’s War on Gaza

Critics of campus protests, including university administrators, have justified the police crackdowns by claiming that demonstrators have protested in a manner that violates student codes of conduct and created an environment that makes campus unsafe for students who are Jewish or pro-Israel.

Those claims ignore the violence police and counterprotesters leveled against students — and the backgrounds of the students themselves. At coastal and inland universities alike, Jewish students have played a significant role at the Gaza encampments.

“The media is absolutely wrong about who’s here and what we’re doing. I think there’s more Jewish students on these campuses than people think,” said another student protester at Case Western. “It’s really dissonant for me as a Jewish person. It makes me feel unsafe that Israel is conflated with my Jewish identity. That’s what makes me feel unsafe.”

The post Not Just Coastal Elites: Here’s How Three Rust Belt Colleges Protested Israel’s War in Gaza appeared first on The Intercept.

Columbia Coincidentally Rewrites Disciplinary Rules Just in Time to Screw Over Student Protesters

Published by Anonymous (not verified) on Sat, 01/06/2024 - 3:15am in

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Just as summer vacation is getting underway, students at Columbia University in New York are left dealing with a raft of looming disciplinary charges from their participation in campus protests against Israel’s war in Gaza. But some students at the school said 11th-hour changes to disciplinary procedures are making it harder for students to defend themselves.

On Wednesday night, a group of Columbia Law students wrote a 32-page letter addressed to Columbia administrators that accused the university of imposing “egregious and draconian restrictions on the already non-existent due process protections.”

“Over the past year, we’ve seen Columbia really weaponize its disciplinary process against students speaking out for Palestinian human rights.”

The letter charges the school with letting a newly created office impose unprecedented rules that infringe upon student protections, including by preventing students from having legal or personal supporters during hearings, and imposing arbitrary time limits on when they can communicate with those supporters. 

“Over the past year, we’ve seen Columbia really weaponize its disciplinary process against students speaking out for Palestinian human rights,” Bassam Khawaja, a lecturer at Columbia Law School, told The Intercept. “And unlike police arrests, this process happens in virtual silence, but carries significant consequences for their academic standing and future careers. It’s hard to see this wildly disproportionate response as anything other than an attempt to chill speech on this issue.”

Some of the process changes, the law student letter said, came in a May 29 email received by students on Wednesday — one day before they were set to face disciplinary hearings for being suspected of posting flyers accusing the school’s board of complicity in genocide. The email was sent out by the school’s Center for Student Success and Intervention, an office formed in 2022.

While the latest apparent rule changes came just hours before hearings were set to take place, the hearings have now been indefinitely postponed, according to campus sources. (Columbia declined to comment.)

Almost as quickly as the protest movement emerged at Columbia, the school was accused of making ad hoc changes to longstanding policies in order to crack down on demonstrators. The tactic of shifting polities to crack down on protests — one used as far back as the attacks on the University of California, Berkeley Free Speech Movement in the 1960s — has since spread to other colleges across the country.

Limiting Advocacy

The May 29 CSSI message said that if students recruited a supporting person to accompany them to their hearings, accommodations could be made for them “outside of the hearing location or zoom breakout room,” with a five-minute break at the midpoint of hearings to consult with advocates. (CSSI did not respond to a request for comment.)

The law students raising the alarm about the message wrote, “No CSSI or University policy or precedent supports the prohibition of faculty advisors, deprivation of legal counsel, or arbitrary time limits on consultation with support persons.”

The letter also said the May 29 CSSI message required written statements to be submitted 24 hours before hearings, whereas CSSI’s own policies say statements can be submitted at or immediately after hearings. 

The law school students’ efforts come as faculty, too, feel shut out from the administration’s decision-making. 

“All of these universities are contracting out with these massive, big legal firms, both for the hearings and their codes. Everything is being funneled through Big Law,” said Shayoni Mitra, a professor at Barnard College, the women’s school at Columbia. “But on the student side of it, we’re really seeing law students and public defense offices — and that’s the only possible counterweight to this massive influx of Big Law into higher ed.”

Patchwork of Differing Policies

The new disciplinary policies appear to be in contradiction not only with broader university policy and due process principles, but also CSSI’s own precedents, the law school students alleged. 

The school is already dealing with a patchwork of regulations intertwined with its history. The school’s long standing Rules of University Conduct were first put in place after student protests rocked the campus in the 1960s. In 2022, however, CSSI was introduced as an apparent reimagination of student conduct processes, its mission laden with 21st-century buzzwords like “holistic well-being” and creating “empathetic and trauma-informed practices.”

Columbia’s Rules of University Conduct, for example, note that a student can be accompanied to any meeting or hearing related to an incident of misconduct by a supporter of their choice, allowing for attorneys.

CSSI’s own policies, however, are more restrictive, allowing only a student’s undergraduate advising dean or a designated administrator as an adviser at hearings. (CSSI’s May 29 letter contradicts this restrictive policy on hearing support for students.)

Barnard has policy discrepancies with both the Rules of University Conduct and CSSI — with its own rules having changed on key issues of student supporters since last fall.

 Civil defense teams and citizens continue search and rescue operations after an airstrike hits the building belonging to the Maslah family during the 32nd day of Israeli attacks in Deir Al-Balah, Gaza on November 7, 2023. (Photo by Ashraf Amra/Anadolu via Getty Images)

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Israel’s War on Gaza

When the crackdowns came against the Gaza protests, some students questioned CSSI’s jurisdiction, with the university Senate voting 40-0, with five abstentions, calling in May to halt disciplinary proceedings until the school’s general counsel clarified CSSI’s jurisdiction. No clarification from the university has been forthcoming.

“It is not lost on us that we are begging the University to follow its own rules and procedures that have existed since 1968,” the law school students wrote in their letter, “while Israel and the United States are currently bombing Rafah in blatant violation of international and US law.”

The post Columbia Coincidentally Rewrites Disciplinary Rules Just in Time to Screw Over Student Protesters appeared first on The Intercept.

The Little-Known Reason Counties Keep Building Bigger Jails: Architecture Firms

Published by Anonymous (not verified) on Fri, 31/05/2024 - 8:00pm in

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Ian Bazur-Persing was in a good place. Mental illness had dogged him for years, but by 2022, the 41-year-old was stable: settled into a sober living community in his hometown of Fort Wayne, Indiana, working for a lawn care company, and meditating regularly. He felt so good, in fact, that he went off his medication.  

Within weeks, he was in a state of psychosis. He and his parents sought assistance from local emergency rooms and the city’s crisis intervention team, but they couldn’t get any real help. On Christmas Eve, armed with an axe and a hunting knife, Bazur-Persing — who’d never before committed a serious crime — performed three robberies in quick succession, walking away with $610, a pair of earbuds, and a Bluetooth speaker.

He landed in the Allen County jail. No one gave him a psychological evaluation to determine his mental health status, and when Bazur-Persing’s parents, mindful of their son’s suicidal tendencies, urged medical personnel to reach out to his longtime provider about medications he might need, they refused.

“It was substandard care,” Ian’s mother, Lori Bazur-Persing, recalled. The crowded facility where her son remained for 75 days pretrial was the opposite of therapeutic. “There are no recreational facilities, no going outside. The lights are on all the time. He said it’s just terrible.”

Allen County is under a federal judge’s order to address overcrowding and poor conditions; three people have died at the jail since October. County commissioners and the sheriff would like to tear it down and build a bigger, more modern detention center with a separate mental health unit — at an estimated cost of $320 million. Some Allen County residents, however, say the current jail could simply be remodeled, with overcrowding and behavioral health issues addressed by policy changes and investments in community services instead.

The Bazur-Persings agree. “What we need is not a bigger jail, it’s a better version of the jail we have,” Tim Bazur-Persing, Ian’s father, said at a public hearing last fall.

To make the case for the new jail, county officials have repeatedly pointed to a 2022 study they commissioned, which uses three different methodologies and a bevy of graphics to illustrate that Allen County will experience a steadily rising need for jail beds over time. The current facility was designed for 732 incarcerated people and held an average of 700 in 2023; the study predicts that by 2041, the county will need space for roughly 1,500 beds.

The study wasn’t conducted by a prominent criminal justice organization or consulting company. It was done by Elevatus, a Fort Wayne-based architecture firm that has designed jails all over Indiana and in several other states. For counties that are considering expanding their current jail or building a new one, Elevatus produces feasibility studies that usually predict growing incarceration needs. In many cases, Elevatus also wins a contract to draw up the plans for the facility it recommended.

“What we need is not a bigger jail, it’s a better version of the jail we have.”

That’s what happened in Allen County. Four months after Elevatus released its study, the company was hired to design the new jail. If the county’s elected officials approve the project, the firm’s design fees — factored as a percentage of the project’s total cost, as is standard for architecture firms — could be around $10 million. (Elevatus did not respond to The Intercept’s questions, and Allen County’s commissioners declined to comment.)  

Elevatus is far from the only architecture firm creating feasibility studies and needs assessments that recommend substantially larger jails and then designing those buildings. Such blatant conflict of interest is occurring in counties all over the country, particularly in rural and conservative areas where local public safety agencies often operate with little scrutiny. These studies rely on thin data to justify spending millions of dollars in public funds. The most significant consequence, though, is that more people wind up incarcerated. As a common industry refrain goes, “If you build it, they will fill it.”

Projections Always Go Up

In public discourse about incarceration, the country’s 3,100 local jails tend to be eclipsed by prisons. That’s despite the fact that at any given moment in 2022, roughly a third of people incarcerated in the U.S. were detained in county or city jails. Seventy percent of them had not yet been convicted of any crime. Jails tend to hold people for shorter periods and see many return visitors; between July 2021 and June 2022, jail facilities around the nation recorded 7.3 million admissions.

While prison and big urban jail populations have declined in recent years, those numbers have swelled in more rural counties due to state and federal prisoners being sent to county facilities and an increased use of pretrial detention. Many jails are at capacity or overcrowded (defined as more than 80 percent full) and may be decades old and in serious disrepair.   

Commissioners and other elected officials considering expansion frequently turn to architecture firms that specialize in detention facilities to predict how many jail beds they’ll need down the line. In some states, the studies are mandated by law, and the companies are viewed as experts. Requests for study proposals rarely preclude the winning firms from later designing the facilities.

Most of the reports include legitimate design products like architectural drawings and space studies. Some also present pages of graphs and charts showing who has been in custody, when, why, and for how long. But the studies rarely analyze the bulk of that data to determine future incarceration trends; instead, most ground their projections solely on past population or incarceration numbers, seemingly undergirded by the maxim that crime will always get worse.

“The projections can be based on really problematic data,” said Beatrice Halbach-Singh, a senior research associate at the Vera Institute of Justice. For example, a feasibility study might take a jail’s population on a single day and extrapolate 30 years into the future. “It’s been shown time and time again that assessments and projections don’t match what actually happens.”

And even when an analysis shows crime or incarceration rates going down, she added, “a study will still recommend bigger facilities. They’ll say they need room to grow.”

A SMRT Architects report uses monthly jail population data from 2007 to 2017 to project an increased need for jail beds in Genesee County, N.Y., by 2042.
Screenshot: Genesee County Jail Project

That was the case in Genesee County, New York, where the existing 87-bed jail was routinely at or over capacity. In 2018, commissioners hired SMRT Architects and Engineers, out of Portland, Maine, to assess the county’s incarceration needs for the next 20 years. According to the firm’s report, crime had dipped in the past four years, and the county’s population was predicted to decline in the future. Nonetheless, the firm concluded that the jail would require 184 beds by 2042. County commissioners subsequently hired SMRT to design a new $70 million facility at just that size; construction is slated to be completed later this year.

The architecture firm RQAW recommended that Vanderburgh County, Indiana, massively increase its jail capacity.
Screenshot: Vanderburgh County Jail Study

In 2018, the Indiana-based architecture company RQAW wrote a feasibility study recommending that the state’s Vanderburgh County beef up its 540-bed jail with space for 900 to 1,200 additional people. Those numbers — and their $45 million price tag — may have been too much for the small county, which is now building a 158-bed expansion with a different architect.

Klein McCarthy Architects averaged the results of four methodologies to conclude that the Cass County jail needed to increase its bed capacity.
Screenshot: Cass County Jail Forecast and Design Report

And in 2022, Minneapolis-based Klein McCarthy Architects created a needs assessment for Cass County, North Dakota, that averaged the results of four methodologies to determine that the 348-bed facility would need to increase to 524 beds to meet the demands of the next 20 years. The report warned, however, “There is no commonly accepted methodology for making inmate population projections.” Klein McCarthy was unanimously selected by county commissioners to design the project, and the $30 million expansion is currently underway.

The report’s seemingly off-the-cuff observation was on target. Despite some architects’ stated rule of thumb that jails need three or four beds for every 1,000 people in the county, there is no formula that can predict future incarceration needs. And the Cass County Commission doesn’t seem to mind that. “Nothing is perfect. I don’t expect accuracy, just get us close,” said Chad Peterson, chair of the Cass County Board of Commissioners and a trained architect. He added that the county considered proposals from other firms, but that Klein McCarthy’s bid had the lowest cost. (Officials in Genesee and Vanderburgh counties did not respond to requests for comment.)

What does predict needs are laws and actions — and those can make the numbers go down as well as up.

“Who’s in jail is a product of the policies and practices of that criminal justice system,” said David Bennett, a consultant for the National Institute of Corrections, or NIC, a wing of the Federal Bureau of Prisons. “There’s no correlation between crime and incarceration rates. Until you examine data and operations, you’re not doing good planning. You’ll just have a bigger, more overcrowded jail.”

“Who’s in jail is a product of the policies and practices of that criminal justice system.”

Bennett has been focused on jail capacity planning since the 1970s and wrote the NIC’s Jail Capacity Planning Guide. The publication explains how to address overcrowding systemically by examining the disparate elements of a county’s criminal justice system that can affect incarceration numbers, including bail requirements, case processing times, diversion options, and sentencing mandates. Just about every local criminal justice system could keep more people out of jail who don’t need to be there, he said.

“With some exceptions, good planning isn’t done by architects,” Bennett said. “They don’t have the background and training. They don’t understand the criminal justice system and its intricacies.” Architects’ solutions to problems tend to be built structures. And if they benefit financially from designing larger jails, recommending that counties shrink them isn’t in their interest.

For county commissioners and sheriffs, there aren’t many alternatives to using architecture firms. The NIC offers free comprehensive jail and justice system assessments, but the service isn’t well known. And only a handful of other consultants around the country perform comprehensive evaluations.

Architects, though, are easy to come by.

Lucrative but Opaque

Firms that design detention facilities, police stations, and courthouses have dubbed themselves the “justice architecture” sector. The companies — some large and well-established, earning eight-figure annual revenues from the work — are all over the country, but the field isn’t particularly competitive. In Indiana, for example, which has been experiencing a major boom in jail construction since 2015, three companies — Elevatus, RQAW, and DLZ — have designed 90 percent of the state’s recent projects.  

While the word “architect” might conjure images of soaring ceilings and big windows, very few of the firms working on jails are creating innovative designs. The work is extremely specialized, but detention facilities tend to be very similar to one another; some companies have prototype jail plans they tweak for different customers.

Nonetheless, the field is profitable. Citizens tend to agree that their county needs a decent, secure jail, but few pay close attention to the public finance tools like bonds and taxes that pay for it. The costs are so giant that differences appear almost meaningless. With payments spread over 30 years, the distinction between a $50 million bond and a $60 million bond can seem trifling.    

It’s also a remarkably opaque sector. Few of the practitioners The Intercept contacted responded, and academics and advocates had little to offer. The American Institute of Architects, the field’s professional association, which runs the Academy of Architecture for Justice, a networking and continuing education committee, declined to comment for this story.    

Detention facilities tend to be very similar to one another; some companies have prototype jail plans they tweak for different customers.

The justice architecture field briefly surfaced in the news in late 2020 after a longtime campaign to limit architects’ involvement in human rights violations finally succeeded. AIA changed its code of ethics to bar members from designing spaces meant for execution or long-term solitary confinement. The organization’s New York chapter went further, calling on its members to refrain from designing any spaces of incarceration. At least one justice architecture firm backed away from the work in response.

The rule change doesn’t appear to be enforced. For example, new jail facilities include spaces for solitary confinement, which is considered torture when it exceeds 15 days. “We don’t have data on how many people are held for 15 days or more, though based on anecdotal information, we know it isn’t unusual,” said Jean Casella, director of Solitary Watch, a group that advocates against solitary confinement. Nonetheless, a majority of principals and lead architects in companies designing detention facilities are AIA members.

Like any other industry, the leaders of justice architecture firms cultivate relationships, sponsor affiliated conferences (“We are proud to continue to be a Badger State Sheriffs’ Association gold sponsor at the Q2 Training Conference” read one company’s Facebook post), and donate politically. In Allen County, both Elevatus and DLZ — the companies as well as their individual leaders — contributed handsomely to the sheriff’s and county commissioners’ campaigns in 2021 and 2022, campaign finance reports reveal.

Some firms now host citizen meetings and create websites touting potential jail development, particularly if the project requires public approval. In Greene County, Ohio, justice architecture giant HDR was paid not only to create a needs assessment, but also to monitor the social media activity of local opponents of a new jail. News of that surveillance later cost HDR the design job, but voters eventually approved the jail anyway.

“If You Build It, They Will Fill It”

Sometimes architects are the cheerleaders for a new, expanded jail and bring the county’s policymakers around. Often, however, elected officials — particularly sheriffs — want something bigger, and the design firms are simply justifying the desired bed increases.  

Maybe the sheriff wants to add mental health and programming facilities to better address the needs of people in custody, a trend that, conveniently for architecture firms, requires substantial new construction. Or perhaps the sheriff is hoping to earn revenue by renting out extra beds to nearby counties or to Immigration and Customs Enforcement, the U.S. Marshals Service, or the federal government. (That may or may not work. Those plans are vulnerable to policy changes and don’t always produce the projected profits.)  

Most of all, local officials likely want to add enough beds so that they don’t have to go through the process again anytime soon. Jail construction can be a Herculean task that takes years, as land acquisitions fall through, bond referendums fail, and county commissioners turn over. Officials reason they might as well add enough space to last another 20 or 30 years.

As the NIC’s Jail Planning guide states, “beds have a tendency to be filled,” in the same way that traffic actually increases when a highway is widened. Law enforcement officials and judges who were forced to seek alternatives for low-level offenders when a facility was full no longer have an incentive to keep people out or shorten their stays when the jail’s capacity expands. In Hancock County, Indiana, after a new jail more than doubled the number of beds available, a headline read, “Hancock County Jail fully open; inmate numbers on the rise.”

Experts like the NIC’s Bennett emphasize that the real way to reduce jail overcrowding is through policy, especially at the local level. Sheriffs have great discretion over how minor infractions are treated, who gets released on their own recognizance, and whether failure-to-appear warrants are called in. Changes like these were implemented during the pandemic, and jail populations dropped precipitously, with little downside.

Researchers agree that behavioral health problems, which are disproportionately experienced by incarcerated individuals, are best addressed in a community setting, not in jail. Treating people who struggle with mental illness or substance abuse elsewhere could radically reduce a jail population. And the expense could be far less than the many millions a new jail costs to design, build, and operate.

In some communities, grassroots coalitions opposing the construction of bigger jails are now scrutinizing architects’ feasibility studies. In California, for example, Decarcerate Sacramento succeeded in pausing an almost $1 billion jail expansion project while officials commissioned a third-party review of a justice architecture firm’s studies. In Berks County, Pennsylvania, another citizen-led group organized residents and forced a yearlong break in talks about a larger jail.

Back in Allen County, Indiana, Help Not Handcuffs is organizing against the jail. “Our stance has been, let’s figure out how to keep the jail where it is. Reduce the population and renovate the jail at a fraction of the cost of the proposed one, saving $200 million of taxpayers’ money,” said Emmanuel Ortiz, the coalition’s coordinator. “Nonviolent offenders, drug problems, people having mental health crises — that’s been a guidepost for our efforts, how to get people out of the jail.”

If reforms like those had been made two years ago, Ian Bazur-Persing may have gotten the mental health treatment he needed. Instead, he’s serving 15 years in an Indiana state prison.

The post The Little-Known Reason Counties Keep Building Bigger Jails: Architecture Firms appeared first on The Intercept.

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