Over the weekend the Portland Press Herald reported on and released a video of Capt. Shawn Welch at the Maine Correction Center pepper-spraying a restrained inmate in the face and leaving him in distress for more than twenty minutes while he repeatedly pleaded that he could not breath. The inmate was reportedly recovering from a self-inflicted wound and on several medications for bipolar disorder and depression at the time when officers in protective gear placed him in a restraining chair for medical personnel to examine his wounds.

After he was physically restrained in the chair, he struggled as guards pinned his head under an arm, at which point Welch used a pepper spray canister intended for multiple subjects at a 18 to 20 feet range to spray the inmate in the face at close range. Welch was initially fired by the institution’s supervisor, but reinstated with a 30-day suspension by Maine Corrections Commissioner Joseph Ponte.

Spurred by the leaked video, the Chairman of the Maine Legislature’s Criminal Justice and Public Safety Committee is now seeking a review of the incident in the context of use of force by the Maine Department of Corrections  – but the Maine Department of Corrections appears more concerned about finding the source of the leak. Citing the privacy of the inmate, they launched an investigation to find out who released the video to reporters, with Associate Commissioner Jody Breton saying the facility “certainly will be tightening up security — where (information) is stored, who has access.”

Judy Garvey of the Maine Prisoner Advocacy Coalition told the Portland Press Herald she believes the department has their priorities wrong:

“The use of the department’s resources should be going into training of their staff and officers and management so this kind of incident doesn’t happen again[...] Trying to find out how the information got into the hands of a reporter shows a reluctance to have transparency. It reeks of government heavy-handedness in oversight.

Certainly, the inmate’s right to privacy should be respected. There’s always a fine line between (that and) what the public needs to know to keep abuse and tragedy from happening [...] We feel the department itself is probably not the best arbiter of that kind of decision.”

This disturbing incident serves to highlight both the issue of prisoner abuse in U.S. correctional facilities as well as the failure of our prison system and our society to provide adequate care and support for the mentally ill: The Bureau of Justice Statistics (BJS) estimated there were 705,600 mentally ill adults incarcerated in State prisons, 78,800 in Federal prisons and 479,900 in local jails in 2006, with the number swelling after the closure of many state run mental hospitals in 1980s left many mentally ill people with no other place to go.

Video of some of the most disturbing parts of the incident has been posted here, but be forewarned that the video is graphic.

Elected officials in Chicago are calling for a moratorium on felony charges for prostitution to reduce overcrowding at Cook County jail. The jail now houses 10,008 detainees and is likely to exceed the maximum capacity of 10,150 soon. In a news conference Wednesday, several county commissioners pointed to the law’s disproportionate focus on non-violent felonies like prostitution:

With the Cook County jail nearing capacity, Cook County Commissioner Bridget Gainer, backed by Board President Toni Preckwinkle and several other commissioners, is asking State’s Attorney Anita Alvarez to place a moratorium on charging suspected prostitutes with a felony. . . .

“Cook County puts too much focus on non-violent felonies,” Preckwinkle said at a news conference Wednesday. “We’re holding people in detention who ultimately will be sentenced to probation and released or have their charges against them dropped.”

“Cook County jail far exceeds the national percentage for people held pre-trial,” she said, citing U.S. Department of Justice statistic showing 48 percent of suspects remain behind bars as their cases wind their way through court.

According to Illinois Department of Corrections records, there were 127 prostitution admissions in 2012, costing $2 million. End Demand Illinois, an advocacy group against sex traffickers, estimates that holding an individual facing felony prostitution charges costs Cook County $5.3 to $9.5 million every year. Illinois has one of the harshest prostitution policies in the nation; only 7 other states still charge prostitution as a felony, and Illinois is the only state to allow felony prosecution after one offense.

At best, targeting sex workers is unproductive; at worst, it discourages these women — most of whom were recruited into the sex trade at age 16 or younger — from leaving or reporting their pimps. Moreover, the criminal justice system tends to dole out sentences with a racial bias. A recent study conducted in Cook County found that black defendants are at least 30 percent more likely to be sent to prison by a judge than white defendants for the same crime.

Cook County may be motivated to relax this draconian policy by budget troubles, if not by compassion. State prison spending has more than tripled over the last 3 decades, making it the second fastest-growing burden on state budgets. The problem has become so unsustainable that even conservative social scientists now recommend alternative sentencing programs that would reduce the prison population by at least one-third. While the moratorium on felony charges is a stopgap measure, the Illinois Senate is also considering a bill to do away with felony sentencing for prostitution entirely.

Jess Bravin has a must-read piece about the town of Cleveland, Mississppi, where most of the African-American children still attend an all-black public high school , East Side High School, on one side of the town’s old railroad tracks. On the other side sits one of the few public high schools in the Mississippi Delta where significant numbers of black students and white students sit in class together — but at a price. The white children dominate school activities at Cleveland High, and much of the white minority in the town is fighting hard to keep it that way. As Cleveland High’s homecoming queen expresses the white community’s anxieties, “[w]hen you have all the black kids come in, we’re going to have a majority black football team, our whole basketball team is going to be black, I mean, everything—our homecoming court, our beauty review, our student council, all of our activities.”

The most gut-wrenching aspect of the story isn’t the white community’s opposition to full integration, however, it is the fact that many African-Americans within Cleveland oppose a Justice Department lawsuit seeking to desegregate both of the town’s high schools — including one of Cleveland’s highest ranking black officials:

Local officials said a merger would throw white students into the minority and chase away white families.

In nearby communities that complied with court-ordered integration, “the high school now is damn near all black,” said Cleveland’s school board president, Maurice Lucas, who is black. “There ain’t enough white folks to go around.” . . .

Emily Jones, the archivist at Cleveland’s Delta State University, is firmly opposed. “We like our traditions, to sit down in our own culture,” said Ms. Jones, 36, who is white.

If the government prevails, Ms. Jones said, Cleveland could become like nearby Greenville, where white enrollment at public schools is 3%. “My sister and her husband moved to Cleveland from Greenville because of the schools,” she said. “They would move again if the schools changed.”

Lucas’s concerns are not idle fears. When I was a teacher in the Mississippi Delta, I taught in a de facto segregated public middle school where well over 90 percent of the students were black. Although the town had a substantial white minority, nearly all the white children attended a nearby private academy, and this is a common story in many Delta towns.

The most hopeful part of Bravin’s piece comes close to the end, when he describes a Louisiana community that broke out of this trap. The white academy system was one of the techniques pioneered by segregationist Sen. Harry Byrd’s “massive resistance” campaign against public school integration. Most of the academies that grew up in the wake of white opposition to integration were founded forty decades or more ago. So the children who attend them today attend an institution that is firmly established within their towns and is often the same school their parents attended.

Last May, however, Lincoln Parrish, Louisiana agreed to merge its segregated school system into an integrated student body in response to a Justice Department lawsuit, and this agreement so far appears successful. As Bravin explains, “[b]lack enrollment at schools in the district—which had ranged from 26% to 92%—is now between 52% and 60%.” This is only one example, and there is still time for a white academy system to form in Lincoln Parrish, but it is also a hopeful sign that integration can succeed in towns that do not already have an alternative school system where white families can flee.

Two prominent senators introduced bipartisan legislation this week to give judges more sentencing discretion in crimes with mandatory minimums. The bill introduced by Sens. Rand Paul (R-KY) and Patrick Leahy (D-VT) would expand a so-called “safety valve” provision that allows judges to sentence below the statutorily required prison term from just some drug cases to all federal crimes carrying a mandatory minimum sentence.

Mandatory minimum sentences tie judges’ hands, and shift the discretion in determining punishment from judges to prosecutors, who are not neutral arbiters in criminal cases they pursue. The sentencing requirements are also a major contributor to the United States’ bloated prison population, the highest in the world. In a statement introducing the bill, Senate Judiciary Chair Leahy called U.S. reliance on mandatory minimum sentences a “great mistake”:

As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep violent criminals off the street and deter those who would commit violent crime. I have come to believe, however, that mandatory minimum sentences do more harm than good. As Justice Kennedy said, “In too many cases, mandatory minimum sentences are unwise and unjust.” […]

The United States has a mass incarceration problem. Between 1970 and 2010, the number of people incarcerated grew by 700 percent. Although the United States has only 5 percent of the world’s population, we incarcerate almost a quarter of its prisoners. At the end of 2011, 2.2 million people were in jail or prison in the United States. That means we incarcerate roughly one in every 100 adults.[…]

In addition to driving up our prison population, mandatory minimum penalties can lead to terribly unjust results in individual cases. This is why a large majority of judges oppose mandatory minimum sentences. In a 2010 survey by the United States Sentencing Commission of more than 600 Federal district court judges, nearly 70 percent agreed that the existing safety valve provision should be extended to all Federal offenses. That is exactly what our bill does.

The bill is a first crucial step toward reforming the unduly draconian federal sentencing scheme, and garnered immediate praise from Families Against Mandatory Minimums. But even FAMM, which released a report this month on “safety valve” provisions, has noted that the safety valve scheme currently in effect for federal drug crimes imposes a stringent five-factor test for escaping mandatory minimums. One federal judge who lamented in two outspoken opinions that the scheme treats low-level drug offenders like kingpins described the “safety valve” provision this way:

The “safety valve” provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective. Even though more than 94% of crack defendants have no leadership or managerial role, fewer than 10% of such defendants qualify for the safety valve.

In a second opinion sentencing a defendant who did qualify for safety valve treatment, U.S. District Judge John Gleeson pointed out that even those who escape mandatory minimums receive unduly harsh sentences under the U.S. Sentencing Guidelines, which are no longer mandatory but carry tremendous weight with federal judges.

FAMM’s report highlights more lenient safety valves in several states, but the proposed federal safety valve provision is far better than none at all and would, at a minimum, spare more defendants receiving unjust sentences. Gleeson and other judges have also implored prosecutors to use their own discretion to dole out less mandatory minimums, and the U.S. Sentencing Commission to reform its own outdated standards.

Left: Kansas Secretary of State Kris Kobach (R). Right: State Rep. Ponka-We Victors (D).

A Native American state representative in Kansas rebuked Secretary of State Kris Kobach, a leader in the anti-immigrant movement, at a hearing yesterday.

“I think it’s funny Mr. Kobach, because when you mention illegal immigrant, I think of all of you,” said State Rep. Ponka-We Victors (D), a member of the Tohono O’odham Nation of Arizona, during a hearing on Wednesday about a state statute that allows children of undocumented immigrants to pay in-state tuition rates at public universities. Her comments drew loud applause from the audience.

The Topeka Capital-Journal has more:

Wednesday’s hearing on House Bill 2192 would have repealed a nearly 10-year-old statute that allows students who graduate from Kansas high schools and have lived in Kansas for at least three years to pay in-state tuition at state universities and community colleges, regardless of residency status.

Kobach, a lightning-rod for controversy on immigration issues, told the committee federal law conflicts with that statute.

“U.S. citizens should always come first when it comes to handing out government subsidies,” Kobach said.

Kobach, author of anti-immigrant state laws like SB 1070 in Arizona and HB 56 in Alabama, is a central figure in the conservative push to oppose immigration reform. He served as an advisor on Mitt Romney’s presidential campaign in 2012 and continues to fight for stricter laws in Kansas and around the country.

New York police officers testified this week that their office set quotas for both the number of police stops and arrests. Officers Adhyl Polanco and Pedro Serrano are two of the more than 100 witnesses to testify during a trial in a class action challenge to the New York Police Department’s rampant use of “stop and frisks,” a practice with constitutional implications in which an officer stops someone suspected of a crime, and may subsequently frisk that individual if they have justification for doing so.

The Department has conducted more than 5 million stops since Mayor Bloomberg took office in 2002, more than 85 percent of which targeted blacks or Latinos and only 12 percent of which resulted in criminal charges. Both Serrano and Polanco testified that supervisors required at least 20 summonses and one arrest each month, and that they were pressured to stop individuals — regardless of the grounds for doing so —  under threat of punishment. Polanco also said police later added a stop-and-frisk quota of five per month. During the trial, Polanco played an exchange he recorded in 2009. The New York Daily News reports:

In the tapes, one of Polanco’s supervisors is heard demanding that cops make their “20 and 1” quota and lambasting those who came up short.

“If you want to be a zero, I’ll treat you like a zero,” patrol Sgt. Marvin Bennett fumed on tape.

Polanco also recorded his patrol commander, Lt. Andrew Valenzano, telling officers to meet their quotas by ticketing bicyclists.

“If you see people over there on bikes, carrying the bags, you know, good stops,” Valenzano says on tape. “That’s what we need.”

Officer Angel Herran, a union delegate, was taped telling officers the quota was agreed to “in this last contract.”

“They’re telling you to ‘go make money,’ ” Herran is heard saying.

In his testimony, Pollanco added that officers who did not meet their quotas were pressured to find stops any way they could, or else:

Those numbers were “nonnegotiable,” Mr. Polanco testified, with supervisors warning that anyone failing to meet the goals would “become a Pizza Hut delivery man.’”

Punishments could include denial of overtime assignments and requests for days off, schedule changes or a move to another precinct. “They can make your life miserable,” Officer Polanco said. […]

When lagging behind those benchmarks, he said supervisors directed him to street locations where other officers had detained people. His instructions, he said, were to make arrests or issue tickets for offenses he hadn’t observed.

At other times, Officer Polanco said, he was directed to fill out stop-and-frisk forms documenting stops he didn’t make.

As a last measure, Officer Polanco described in his testimony a task called “driving the sergeant,” in which he was allegedly assigned to drive the streets with a supervisor. He said he would perform stop-and-frisk searches and even make arrests searches on people selected by the supervisor.

“You have absolutely no discretion,” he said.

Polanco is among those who came forward about police pressure to meet quotas in 2010. Many other officers alleged quotas, pressure to make stops, and attempts to manipulate crime statistics in an extensive 2010 Village Voice exposé. A jury even concluded that the NYPD used an illegal quota system during a trial on injuries resulting from a 2006 arrest. Police Commissioner Raymond Kelly has written off the allegations, saying the Department has ”productivity goals,” “just like your job does, just like any job does.”

In 2010, New York State passed a law explicitly making quotas as a consideration for punishment illegal. But even if they weren’t banned by statute, quotas such as the one described by witnesses this week are subject to legal challenge because they pressure police officers into making stops without a constitutional basis for doing so. Allegations that systematic police stops are made without the constitutionally required “reasonable suspicion” are the basis for the class lawsuit. The federal judge overseeing this lawsuit has already ruled in another stop-and-frisk case that police stops in the Bronx are likely unconstitutional.

Recently, the Supreme Court reiterated that police may search a suspect when a trained drug sniffing dog indicates that the suspect is carrying drugs or other illegal materials, and “all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Thus, if police wish to search a suspect for drugs, but lack a constitutional basis to do so, a drug dog can sniff the suspect and provide police with probable cause for a search if the dog “alerts.”

In Washington state, however, it is no longer a crime for someone of legal drinking age to carry up to an ounce of marijuana — and that changes the constitutional status of dog sniff. If a dog is trained to sniff out marijuana and cocaine, and it alerts after sniffing an adult suspect, that no longer would lead a “reasonably prudent person think that a search would reveal contraband or evidence of a crime” because it is likely the dog only reacted to the presence of marijuana on the suspect. Marijuana sniffing dogs cannot no longer provide probable cause that a suspect is engaged in criminal activity, because the dogs are trained to alert when the suspect is doing something that is no longer illegal under state law.

As a result of this constitutional dilemma, several Washington state police departments are retraining their drug sniffing dogs:

The passage of I-502 made things difficult enough for the humans tasked with creating and enforcing the laws for legal marijuana. Now, try explaining the difference between “personal use” and “intent to sell” or the gray area between state and federal law to a dog.

That’s why many law-enforcement agencies around the state, including the Seattle Police Department and Washington State Patrol, will no longer be training their drug-sniffing dogs to alert for marijuana. . . .

Sgt. Sean Whitcomb said the Seattle Police Department is already taking steps to desensitize its dogs to marijuana through rewards and constant training.

Currently, some law enforcement agencies continue to use marijuana-sniffing dogs in Washington. As a memo from the Washington Association of Prosecuting Attorneys explains, however, these dogs can no longer be relied on exclusively to justify a search.