ACS is pleased to distribute “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests”, an Issue Brief by Christy E. Lopez, a civil rights attorney with a practice focusing on police and criminal justice reform. Almost a year ago, the issue of "contempt of cop" arrests was thrust into the national news when Harvard University Professor Henry Louis Gates, Jr., was arrested by Cambridge Police Department Sergeant James Crowley. Sergeant Crowley was responding to a 911 caller who had reported a burglary in progress at Professor Gates's home, which is where the two encountered each other. As the events unfolded - Crowley's investigation of the burglary call and Gates's response to the Crowley's questions and actions - the situation escalated, and led to Sergeant Crowley arresting Professor Gates for disorderly conduct in the middle of the day just outside the front door to his house. The charges were later dropped, and after President Obama waded into the whole affair by saying that he thought the police acted "stupidly," the President later hosted a "beer summit" with both Gates and Crowley at the White House to help resolve the situation.

Ms. Lopez argues that "Sergeant Crowley's decision to arrest Professor Gates may or may not have been stupid. It may or may not have been consistent with Cambridge Police Department policy. But, if the facts are as Crowley asserted in his arrest report, the arrest was unlawful." She describes the law, and contends that, however loud, rude, or obnoxious Gates was, his behavior "falls squarely in the realm of speech protected by the First Amendment," and he should not have been arrested. Ms. Lopez continues that, "[d]espite its illegality, the arrest of Professor Gates was not unusual. This scenario - an individual being arrested after responding obstreperously to perceived police misconduct - is one that plays out routinely across the United States, albeit without the Ivy League backdrop or culminating in conflict-resolution-through-beer."

In this Issue Brief, Ms. Lopez asserts that there is "widespread misunderstanding of police authority to arrest individuals who passively or verbally defy them" and that there is "abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who 'disrespect' them or express disagreement with their actions." She believes that "abusive arrests cause direct and significant harm to those arrested and, more generally, undermine the appropriate balance between police authority and individual prerogative to question the exercise of that authority." To fully explore this issue, Ms. Lopez discusses the relevant law governing these types of arrests, and several investigations of problems in police departments around the country. She then details her reasons for asserting that "the harm caused by improper arrests and threats of arrest for disorderly conduct far outweighs the justification given by some police and pundits for the aggressive (overly-aggressive, some would say) use of these statutes," and concludes by proposing "a roadmap for legislators, advocates, law enforcement officials, and others seeking to address this problem."

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ACS is pleased to distribute an Issue Brief by Scott Phillips, Associate Professor in the Department of Sociology and Criminology at the University of Denver, entitled “Hire A Lawyer, Escape the Death Penalty?” In this Issue Brief, Professor Phillips describes the results of his study to test the claim made by death penalty opponents that wealthy defendants who hire legal counsel are exempt from capital punishment. His research focuses on Houston, Texas, and surrounding Harris County, which is the county with the largest number of executions in the United States and is the largest jurisdiction that uses court-appointed lawyers to represent defendants who cannot afford an attorney, although the county is currently considering the creation of a public defender. The data for the study include the 504 adult defendants indicted for capital murder in Harris County from 1992 to 1999, and represent all of the relevant cases from this time period. Professor Phillips compares the outcomes in cases where the defendant hired a lawyer with cases where the defendant had a court-appointed lawyer and finds that, “[h]iring counsel for the entire case not only eliminates the chance of death, but also dramatically increases the chance of an acquittal.” He also finds that “[h]iring counsel for a portion of the case substantially reduces the chance of death,” and “hiring counsel did not appear to be the province of the wealthy because virtually all capital defendants seem to be poor.”

Professor Phillips argues that these dramatic findings “are not an indictment of appointed attorneys, but rather an indictment of the structural deficiencies inherent in the appointment method of indigent defense.” He discusses these deficiencies and reform efforts in Texas aimed at addressing them. He believes that the reform efforts have not succeeded, however, and argues that “the solution is to create a public defender office, including a capital defender unit, in Houston that is responsible for all indigent cases. The public defender must be funded at a level proportionate to the DA’s office.” He acknowledges that, “[t]he hybrid plan currently being considered [that would use both a public defender and appointed attorneys] represents genuine progress and is a laudable step in the right direction,” but concludes by asserting that “Houston’s distinction as the capital of capital punishment creates a special obligation to provide the most rigorous system of indigent defense possible. Only a top-notch public defender can meet such a standard.”

This Issue Brief has been updated by the author with additional information since it was originally published on February 23, 2010.

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Professor Phillips previously wrote an ACS Issue Brief entitled, “Racial Disparities in Capital Punishment: Blind Justice Requires a Blindfold.” His first issue brief described research he conducted on race and capital punishment in Harris County, and is available here.

ACS is pleased to distribute "Toward a Public Health Approach to Drug Policy," an Issue Brief by Alex Kreit, Assistant Professor and Director of the Center for Law and Social Justice at Thomas Jefferson School of Law. On March 11, 2009, President Barack Obama announced that he will nominate Seattle Police Chief Gil Kerlikowske to be the next director of the Office of National Drug Control Policy, also known as the "Drug Czar." Chief Kerlikowske's nomination comes as we approach the 40th anniversary of the "war on drugs," which followed the passage of the Controlled Substances Act in 1970. Professor Kreit argues that, after nearly 40 years, "it is becoming increasingly clear that our current drug control strategy has not worked." He reaches this conclusion after discussing a variety of studies and surveys that detail the amount of money that has been spent by the United States as part of this "war," and the results we have gotten in terms of the rate of drug use in general, use of drugs by young people, and the ease of obtaining drugs, particularly in comparison to other countries that have used different approaches to addressing these issues. He also discusses the significant impact that U.S. drug policy has had on the size and composition of our prison population.

Professor Kreit calls on the President and the new Drug Czar to change the focus of our nation's drug policy from a punitive approach to one that looks at and addresses the problem through the lens of public health. In a discussion of recent surveys and election results, Professor Kreit sees the opportunity for politicians to seek fundamental change in our approach to combating drug use because the views of voters have been changing, and American citizens are now more open to these changes than they were in the 1980s and 1990s. He acknowledges that "[t]here is no magic bullet that can solve the problem of substance abuse." Nevertheless, Professor Kreit believes that "[t]here are ... a number of readily identifiable reforms that can help begin to set us on the right track and build a foundation for more significant improvements in the future." In particular, he suggests shifting funding from programs that have unsuccessfully focused on limiting the supply of drugs to programs that have proven successful at reducing demand, and seeking changes to federal law to remove provisions that are hampering the government's ability to pursue effective programs. In addition to adopting the changes he proposes, Professor Kreit concludes by advocating for the creation of a commission to conduct a comprehensive reevaluation of U.S. drug policy in light of the significant amount we have learned from other countries and four decades of our own experience with the current approach.