06/17/13 – Ezekiel Edwards – The Scott Horton Show

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We're going to move to next week, part two.
And so, I don't know.
You might like it, though.
It's at the Washington Times.
Libertarian America.
Okay, so our next guest on the show today is Ezekiel Edwards from the ACLU.
Hi, Ezekiel.
Welcome to the show.
Thanks, Scott.
Good to be here.
Good, good.
I'm very happy to have you here.
And I'm sorry, I didn't even get a chance.
I was running so far behind from the last interview going over.
I didn't get a chance to ask your position at the ACLU.
Are you a lawyer?
Yeah, I'm a director of the Criminal Law Reform Project at the ACLU, and, yes, I am a lawyer.
Okay, good deal.
And I guess while you're answering my second question, I'll go ahead and Google you up so that I can at least out-produce you well at the end of the interview.
How about that?
Sure.
Sounds good.
All right, now, I've got a lot of things I want to ask you about that I know you guys are just up to your eyeballs.
Thanks for giving me the time today.
First of all, this DNA ruling by the U.S. Supreme Court, could you please explain the case and what are the likely consequences of this recent thing?
This was two weeks ago, I think, right?
Yeah, sure.
Well, in short, the Supreme Court decided that it was constitutional or not unconstitutional for the state of Maryland to take the DNA of people who had been arrested but not convicted of, quote-unquote, serious crimes.
And so this is something where before there had been any kind of adjudication of the guilt or innocence, the government could collect DNA swabs from anyone who had been accused of committing, arrested and accused of committing a serious crime.
So we think, and that's the first time that the court has said that a state can do that.
There are states that have laws on the books that are reserved for people being convicted of serious crimes, and then there are states actually that have laws on the books that are even worse in Maryland where they can take it up for any arrestees, even if the crime is not serious.
That being said, we see, I should note that the court's decision was 5-4, with Justice Scalia actually writing a very powerful dissent that this should be unconstitutional.
The ACLU considers this a serious blow to genetic privacy.
Normally the police cannot search an individual, and when you take a DNA swab you are searching them, for evidence of a crime without specific reason to think that that search is going to actually uncover some evidence, and without a warrant from a neutral detached magistrate saying that the police have probable cause to undertake that search.
What the court has said here is they don't need a warrant, they don't need probable cause, they don't need individualized suspicion, they can simply conduct a search for your genetic material, and then just based upon an arrest, under the guise they claim of identifying you, but what it really is is for law enforcement purposes to see if you've committed any other crimes.
Well, I mean, and that's important too, right?
And was that part of Scalia's judgment there that this is actually a lie, that this is a fake excuse that, oh, well, we just want to make sure that your driver's license is an accurate one, so we need your genetic code?
Yeah, that's exactly right.
I mean, the majority opinion tries to justify it as to the state of Maryland is, hey, we're not actually doing any kind of criminal investigation here, we're just trying to make sure that you are who you say you are.
First of all, we already have plenty of mechanisms in place to do that.
Secondly, it usually takes a number of days to get back the kind of DNA information to verify that, so it doesn't even really get to the purported purpose because they need to know kind of right away, are you who you say you are?
As Justice Scalia pointed out in his dissent, what this is really about is not about identifying an arrested individual, but it's really served to achieve one end, which is to turn up evidence of suspects to solve a prior crime, having nothing to do with the offense for which the individual was arrested.
And as Scalia wrote, if we took the DNA of everyone in society, everyone who gets on an airplane, everyone who applies for a driver's license, everyone who goes to public school, at some point you may turn up evidence of a crime somewhere.
But as he said, I doubt that the quote-unquote proud men who wrote the Charter of Our Liberties would have been so eager to open their mouths for royal inspection.
So we see this as an affront, certainly to privacy, and not as a mechanism that's going to make a particularly significant impact in improving public safety.
Well, that's fun to hear, kind of especially from him, that you mean there's a limit on government authority in the name of taking good, good care of us?
Because, you know, I was thinking, if we only put infrared cameras in everybody's house at night, that that would prevent most murders in America, which are men beating their wives and or girlfriends to death.
Yeah, no, I mean, well, look, the thing is here, there are, if you take the DNA of somebody who's been convicted, let's say, of a felony, you know, that makes some sense, you could say, in the balance of kind of government interest in solving crimes and personal privacy.
But as of last November, for instance, California had over 120,000 arrestee samples because California allows you to take it.
It's being challenged now by the ACLU, but allows you to take DNA samples from arrestees, but was unable to show that a single one of those had solved a crime that, had you tested after somebody was convicted, wouldn't have been solved.
And so what you're doing is creating this vast DNA databank, often, of course, targeted at poor people and poor people of color, given how the arrest rates tend to shake out.
And just based on the fact that they've been arrested, and the irony also is that states around the country, and the Innocence Project could tell you this, have huge backlogs when it comes to arrestee samples.
They don't really have the mechanisms in place, the personnel and the money, to even control the backlog of DNA samples that they have.
So really a better way to be spending this money would be to be going to crime scene samples that the police have collected, but haven't actually analyzed, and looking at those, rather than collecting them from a bunch of Americans, many of whom will turn out to be innocent.
Right.
Well, it's just like James Bamford said on the show last week, talking about the NSA scandal, which I think we might get to here in a minute if we're lucky, about they just keep adding hay to the stack.
They're not getting any better at looking for needles whatsoever.
That's exactly what they're actually doing.
And so we think it's unconstitutional, both in light of the Supreme Court's basically understanding that the Fourth Amendment requires you to have a warrant when you want to conduct a search for criminal investigatory purposes of an individual.
You need to be able to tell a neutral magistrate, hey, we have this probable cause to believe that this person may have evidence, or this search may turn up evidence of a crime.
That's been totally gutted here.
You don't need any of that.
You just basically have given law enforcement the authority to seize our genetic blueprint, have it analyzed, and put into a criminal database without any judicial oversight.
And even as a policy matter, we don't see it as kind of wise public policy, both because now the government has all of this access to very sensitive private genetic information, which I think particularly in light of what we've seen recently is quite troubling, and because there's really no hard evidence that it helps to solve serious crimes with any frequency.
Right.
Well, and also, it's just one more little thing out of so many where it changes the people's relationship to the state.
Somewhere way back when, this was supposedly a temporary limited constitutional republic created by free men to serve their security interests, period, not to be the boss of them and enslave them far worse than the king of England could have dreamed, swabbing their DNA samples.
It's amazing.
And that's the part that I'm happy is even getting noticed here, that like, man, what's happening to us?
We've got to open our mouths for the swab.
And by the way, what's a serious crime anyway?
Does that have a definition in the law?
Yeah.
I mean, they tend to be, in Maryland, more serious crimes.
And certainly if you've been arrested and charged with murder or rape or assault, these are some of the crimes.
Why don't they just say felony then?
Yeah, well, because there are some felonies for which, nonviolent felonies, which might not necessarily fall into the parameters of Maryland's law, but I think it's actually important to know when you bring up Maryland's law.
But wait, does that mean that misdemeanors might count as serious crimes if some felonies don't, that some misdemeanors might?
Well, I think the way that actually Justice Scalia read this and that a lot of people had read this decision is that this is simply, even though Maryland's law is different from the laws of other states, you basically knock down the door to start taking samples from all arrestees.
And, in fact, that's what some states do.
In fact, it's important to note that even though we are unhappy with the decision in Maryland v.
King, there are actually some protections under Maryland law that you don't get in other states.
So, for instance, not only do you have this kind of very serious crimes, but you have to have been arrested and charged.
The DNA samples can only be taken to people who have been charged with a crime after a judge has found that there's probable cause to think they've committed a crime.
Again, you're still searching for other evidence of another crime at some other point.
But there are states like California, for instance, where you can take DNA from people who are merely arrested for much less serious crimes, including, for instance, in California right now, simple drug possession or bouncing a check.
In fact, the federal government right now can take your DNA if you're arrested for a whole host of federal crimes, including letting your dog off the leash on federal land.
And so even though Maryland v.
King only deals with Maryland statute and so we are continuing to challenge other DNA sampling statutes for less serious offenses like the ones I just mentioned, certainly the court's decision, I think, is going to embolden states to think that, well, if we can take it for this, we're going to be able to take it for that.
And we're kind of heading down a slippery slope to where I think any arrest at some point will subject you to having your DNA put in a vast government database.
Obviously we will fight those at every step, but certainly this case did not help.
Okay.
And now, yeah, the whole fishing expedition aspect of it, too, is pretty incredible.
It's sort of as the whistleblower Snowden says, they're getting to the point where at any point in the future, 15 years from now, they might decide they want to go back and scrutinize every decision you ever made.
Well, yeah, and there's also another concern, which is that law enforcement has, you know, increasingly sought to use or states something called familial searching, where if they get DNA from a crime scene and it doesn't match, let's say, an arrestee's or a suspect's profile, but they start to look and do what they call familial searching to see if maybe it would match one of your family members.
And so there are lots of ways in which this kind of DNA analysis and collection, I think, can infringe on the privacy rights of people both directly and indirectly.
And so, you know, it's quite troubling.
All right.
Now, I'm sorry I made you answer so much about the DNA story because I've got a lot of other things to get to here, although the NSA thing has gotten a lot of coverage, so we'll save that to last if we can get to it.
But can we talk about the drug disparities?
Maybe we can give this kind of a brief treatment, but you had this report about the disparity in who gets arrested and prosecuted for possession and trade in marijuana in the United States.
Yeah, so, well, it's actually just possession that we looked at.
So the ACLU just came out with really a first-of-its-kind report looking at marijuana arrests between 2001 and 2010 with a focus on the racial disparities.
And it's a national report where we look at all 50 states and their respective counties.
And what we found, kind of the highlights, I guess, were this.
Between 2001 and 2010, there were over 8 million people arrested for marijuana offenses in the United States.
Almost nine out of every ten of those arrests were for possession offenses.
We found that there were 100,000 more arrests in 2010 than there were in 2001.
When you look at the racial disparities, blacks were nearly four times as likely nationwide to be arrested for marijuana possession as whites, even though when it comes to marijuana usage, the rates are comparable between blacks and whites.
We found that in some states, particularly in the Midwest, like Illinois, Iowa, Minnesota, blacks were eight times as likely to be arrested.
They're also eight times as likely in Washington, D.C.
We found counties around the country where they were 10, 15, 20, even 30 times as likely to be arrested.
And keep in mind that this is happening at a time when lots of states and public opinion are moving into a kind of anti-prohibition place on marijuana.
Over 50% of all Americans across color lines now favor legalization.
Two states, Colorado and Washington, have legalized.
A bunch of states have decriminalized.
Eighteen states plus D.C. have medical marijuana.
So while you have the country moving in one direction, we found that, in fact, law enforcement, particularly in communities of color, are kind of moving in a different direction, which is enforcing marijuana laws, throwing people in jail.
And states spent, we estimated, total in 2010 over $3.6 billion enforcing marijuana possession laws.
So we're at an interesting crossroads in America.
We've got kind of policymakers on one level and public opinion moving in one direction, but law enforcement in certain areas kind of moving in another.
All right.
Well, obviously they're not achieving a drug-free America with this.
I think you might have hit on a little bit of the incentive for the structure there when you talked about how many billions are at stake in terms of spent on law enforcement.
And it's a huge jobs program for cops all across America, the drug war on every level, local, state, and federal, obviously.
But why the racial disparity?
I mean, it's not like every sheriff's department in the South is just full of former Klansmen or something like that.
I mean, outright racial bigotry has been pretty, like, what, passe or where, for a long time now.
Even racists have got to pretend they're not.
So something is really screwed up here where the numbers are this far off.
And believe me, I'm not saying more whites ought to be arrested.
Right.
Well, I mean, look, first I think that race still is a significant, deeply significant issue in this country, which is why the Voting Rights Act is still so important.
And in some ways things have changed drastically, and in some ways things have stayed the same.
And so I think it's important that whether the bias is going to be explicit or implicit, it's something that we clearly have to deal with.
And I think this data presents that squarely.
So, for instance, I think racial profiling is still a big, big problem in police departments around the country.
And that profiling can be by white police officers or Latino police officers or African-American police officers.
But there is still, both in terms of which communities are getting patrolled, who's getting stopped, there's still a lot of, I think, race that factors into those decisions.
I would note that one of the things that was really astounding in our report was that, again, we looked at counties across the country, and we found that in virtually every county that we looked at, blacks were more likely to get arrested for marijuana possession than whites.
It didn't matter if it was in the Northeast, the Midwest, or the South.
It didn't matter if blacks were 2% of the population, of the county's population, or 20% or 40%.
It didn't matter if it was urban or rural.
And it didn't matter if the median family income was $100,000 or $40,000 or $20,000.
We saw disparities.
So I think bias clearly plays a role in policing, both in terms of entire communities where police are setting up and also what you look like if you're in another kind of community.
I think what you mentioned about incentives, you know, the police, for two reasons.
The federal government gives out money every year, lots of it, to local and state agencies, law enforcement agencies, to carry out various goals, including drug law enforcement.
And one of the ways that you can kind of justify why you're asking for funding or explain how you've used funding is by showing the number of arrests that you've made, including misdemeanor and felony drug arrests.
There's a built-in incentive to kind of set goals around arrest numbers.
And I actually think that this is already a problem, even internally, where police departments have increasingly been using what I'd say is kind of quantity-based policing, which is really judging their productivity and their success on the number of arrests and the number of stops and the number of frisks like we see in New York City, not based on kind of other metrics like looking at violent crime rates, looking at how many civilian complaints there have been, looking at how the community relations are and whether they see police actions as legitimate and fair.
There are other metrics, but I think police have really relied heavily both internally for their own assessments and then for federal funding purposes on just quantity.
And if you're going to be interested in making a lot of arrests, you're generally going to go and do them in places where they're easier to make, they're cheaper to make, they're politically less risky, and a lot of the time, as we've seen with the drug war generally, that's communities of color.
Right.
Well, and, I mean, that was going to be my one objection was, well, blacks are, in general, poorer and easier to pick on for the cops.
They can afford representation, on average, of a lower quality than the average white guy, busted on the same charge, that kind of thing.
But then the wrinkle in that was you said that, no, even if you're talking about upper-middle class black part of town where everybody makes $100,000, they still get jacked for pot all the time.
Well, right.
Whether they get jacked literally as often is less clear as to that.
They are arrested at the same kind of disparate rates as we see around the country.
And let's face it, I mean, sure, there are arguments like, well, if some people say, well, they're more open-air drug markets in black communities than white communities, black marijuana use tends to be more public than white marijuana use, and there's not a lot of empirical study on that.
But even if that's true, the truth is, I mean, the police, first of all, have been enforcing drug laws in private settings in black communities for a long time.
So just because crack cocaine might be in an apartment hasn't necessarily ever stopped the police from ferreting it out and arresting people.
So you could do the same with marijuana.
And the truth is police departments know if they went around certain college campuses, they could probably find a decent amount of marijuana possession arrests, but they don't do it.
And I think our point is, when you think about that these are arrests and convictions that can saddle people and follow them for the rest of their lives, you lose federal financial aid, you can lose employment, you can lose housing, if you're a legal resident, you can be deported.
So there are serious consequences.
And if they're not worth kind of levying out those consequences to the white community for marijuana possession, then they shouldn't be worth doing it to the black community.
And again, I'm noting that in Colorado and Washington, you can now, as an adult, legally possess and use marijuana without any consequence explicitly, while in communities like Baltimore and Philadelphia and Mississippi, blacks are getting thrown in jail for it.
So there's a disconnect in our marijuana policy, as there has been, as you know, for a while in our overall drug policy.
Yeah.
Well, and I think the federal mandate thing, this has been a problem for so long.
I remember the story about on the New Jersey Turnpike.
Basically, if you're driving while black on the New Jersey Turnpike, tough for you.
And then the locals said, man, the feds have a gun to our head that says bring us numbers of arrested black people, basically.
What are we supposed to do?
But then the feds come and say, and this was in Janet Reno years, oh, you New Jersey State Police are such bigoted racists going after black people.
We're now going to put a federal government minder in charge to make sure that you iron out this disparity.
So what do they do?
They just start targeting white people, just going fishing for white people on the New Jersey Turnpike, so they don't get in too bad of trouble with Janet Reno, who made them do it in the first place.
Well, look, I mean, the answer, right, our answer to marijuana policy and to the racial disparities is not to go out and arrest more white people.
In fact, the ACIU supports marijuana legalization so that no one, no matter what your skin color, can be arrested for it.
You would take all the resources that are being put into making these arrests.
I should note that one of the things we found was half of all drug arrests in 2010 were for marijuana.
So when you think of the drug war, which is a pretty significant component of law enforcement activity in the United States, 50 percent of those arrests are marijuana related.
So think of the resources that police are spending towards stopping, searching, arresting, jailing, handcuffing, paperwork around marijuana.
You should take those resources and put it towards ferreting out more serious crime.
There are lots of crimes in this country, serious crimes, that go unsolved.
You could also, if you legalize, like Colorado and Washington, take that revenue, put it to drug treatment, put it towards public schools, and that's exactly what they're going to do there.
So, you know, that's our solution to marijuana.
As far as, you know, police departments, you know, there's a way to kind of enforce the Constitution when you're carrying out your police duties, and I think one of the reasons we see hit rates on whites, and by that I mean when the police, as studies have shown that when the police stop and frisk white people, that they are more likely to find contraband or pull them over on the side of the road, that the hit rate and the arrest rate is actually higher per capita, and I think, or per stop, and I think the reason is because oftentimes when it comes to white folks, cops are actually using reasonable suspicion, probable cause, and not kind of stopping people just based on the community that they live in or trying to make their numbers.
Or even unreasonable suspicion, like, man, that truck feels a little funny to me, but still they got a better chance if they're not looking to just pull over any white person like they do with any black person.
Right, no, so if somebody says to me, well, what's an example of good policing?
I mean, I think you could probably look at the way that police departments police certain white communities and say, well, that's a better form of policing.
They're not just going to stop you because you're driving through or because you're walking on the street.
They're not going to stop you if they think that they have reasonable suspicion that a crime may be.
Then again, I think you might be talking about 20 years ago or something.
I'm white as can be, and I'm scared to death of the police, and I think all reasonable people should be.
They'll kill you, and they'll never get in trouble for it ever, ever, unless it's Saturday night and you're their girlfriend and they're off the clock.
Then maybe they could be indicted and maybe fired for two weeks or something suspended thing.
But otherwise they can kill anyone they want, no matter how white we are, no matter how rich you are and get away with it.
So I would recommend that all people think of them as the occupying military force and their enemy.
I met a young black kid when I was a cab driver.
Kid was probably seven years old.
He said, my grandmama told me when you see a cop, a cop pulls you over, you put your hands out the window immediately because they'll shoot you in the head.
And I think that that's sound advice from a prepubescent young black male.
Well, I have to – so we might disagree there a little bit in the sense that I think that there are definitely police departments that are doing better work than others and some that are really trying to improve.
I certainly agree with you that there are excessive force problems in police departments.
The use of tasers has been something we've been looking at a lot.
And certainly in terms of when you think of the kind of surveillance information that the government and law enforcement has, it's very, very problematic in terms of privacy, the racial profiling.
So certainly the ACOU monitors and pays close attention and in some cases files lawsuits, as we did recently in Michigan, against police departments that we think are bending or breaking the Constitution.
I don't think that applies to all police departments.
I know that there are police chiefs out there that are trying to do the right thing and police officers that are trying to abide by the Constitution.
And I just think some departments do it a lot better than others.
Listen, let me keep you just a couple of minutes over time.
Is that okay?
Yeah, I have about two more minutes.
Okay, good.
Yeah, that's all I need really.
I just wanted you to comment real quick, if you could please, about Salinas versus Texas and the Fifth Amendment self-incrimination here.
Could you just give us a rundown?
Sure.
We're very disappointed in that decision where, you know, basically the Supreme Court said that your right to remain silent was not quite as serious a right as we thought.
That's a case where a young man was being questioned by the police.
He hadn't yet been arrested.
He was at the precinct, and he was talking to the cops.
And when they asked him a specific question, he didn't answer.
And eventually when he was arrested and charged at trial, the prosecutor sought to use that or did use that statement against him.
Sorry, used his silence against him and said that somehow that was incriminating.
And basically the Supreme Court today said there was nothing wrong with that.
And so normally you have a right to remain silent, and the fact that you don't speak can't be used against you.
But the court said today that because he didn't invoke his right to remain silent, that he could not now complain that it was used against him.
And so what it basically does is puts people in a very difficult position when you're being questioned by the police, even if you're not under arrest, because if you're asked something where you're afraid that your answer is going to raise suspicions, even if you're innocent about who you know or where you were, you can either choose to answer it and raise those suspicions and perhaps get yourself into trouble, or you can decide not to use it and then know that the prosecution can use it against you in a court of law.
So, you know, the court has kind of whittled away our kind of right to remain silent and our Miranda rights over the past several years.
And I think this was just, even though this wasn't a Miranda case, just another example of that.
Yeah.
Well, it just seems strange.
I mean, the dissenting opinion must have said that his remaining silent was, come on, tantamount to his invoking his right to remain silent, right?
This is America.
He's seen TV.
He knows he has the right to stop talking, so he stopped talking.
How can that not be invoking his right to stop talking?
I think you said it as well, if not better, than the dissent in this case.
And unfortunately, the majority disagreed.
Unbelievable.
OK, listen, thank you so much for your time, Ezekiel.
I really appreciate it.
Thanks, Scott.
All right, everybody, that is Ezekiel Edwards from the ACLU.
He is director and previously a staff attorney at the ACLU.
He was formerly at the Innocence Project.
And I'm sorry, this doesn't have the, I don't think, the title that he gave us on introduction there, which I didn't write down.
But anyway, there you go.
Ezekiel Edwards from the ACLU.
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