AN ATTACK ON THE POLICE BY A DEFENSE ATTORNEY

How Mandatory Minimums Enable Police Misconduct

By Scott Hechinger

The New York Times
September 25, 2019

Last year, Jacob, a young man I represented, made an exceedingly rare choice. He rejected a favorable plea offer because he wanted to hold the police accountable in a hearing to challenge his illegal stop, search and arrest.

To those who do not work in criminal court, Jacob’s decision may not seem particularly momentous. Yet everyday across the country, police officers willfully violate people’s rights, in large part because of their certainty of never having to take the stand to answer for their actions.

Police departments rightfully get blamed for the crisis in violent and corrupt policing. The recent firing of Daniel Pantaleo, the New York Police Department officer who strangled Eric Garner to death, lied about it, kept his job for five years and got terminated only after international pressure and the recommendation of a Police Department judge, underscores why.

But the near impossibility of getting fired is only part of the crisis of impunity. An overlooked but significant culprit is mandatory minimum sentencing.

In criminal courts throughout this country, victims of police abuse — illegal stops and frisks, car stops and searches, home raids, manufactured charges and excessive force — routinely forgo their constitutional right to challenge police abuse in a pretrial hearing in exchange for plea deals. They do so because the alternative is to risk the steep mandatory minimum sentence they would face if they went to trial and lost. Prosecutors use the fear of these mandatory minimums to their advantage by offering comparatively less harsh plea deals before pretrial hearings and trials begin.

The result is not only the virtual loss of the jury trial — today, 95 percent of convictions come from guilty pleas instead of jury verdicts — but also the loss of the only opportunity to confront police misconduct in criminal proceedings. In New York City, for example, less than 5 percent of all felony arrests that are prosecuted have hearings to contest police misconduct. For misdemeanor arrests that are prosecuted — a third of which are initiated by the police — less than .5 percent of cases go to a hearing. A guilty plea also has the effect of insulating police from any civil rights lawsuit asserting false arrest because a plea of guilty serves as an admission that the officers’ arrest was justified.

A year before his court appearance, Jacob was heading home when undercover detectives stopped a car he had borrowed. They ordered him and his three friends out of the car, handcuffed them and searched the car without justification. The officers later claimed that he failed to signal and that they smelled a strong odor of marijuana emanating from the vehicle when they approached, both common police lies used as pretexts to stop and search predominately black and Latinx people.

During the search, the officers recovered a handgun from inside the spare tire compartment in the trunk. Jacob adamantly denied knowledge of the gun — it was not his car, other people used the vehicle, and there were multiple passengers — but he was charged with possession of a loaded firearm, a “violent felony” under New York law.

The stakes were significant for this 21-year-old with no criminal record. At a pretrial hearing, where the legitimacy of the stop and search of the vehicle would be examined and a judge would determine whether to suppress (preclude the prosecutor from using any evidence relating to the firearm at trial), it would be his word against the officers’. And if he lost and went to trial, he would face the mandatory minimum of three and a half years in prison.

On the day of the hearing, the prosecutor in Jacob’s case offered a last-minute plea deal: a nonviolent felony with a sentence of probation. But if he turned it down that day, the deal would forever be off the table. Prosecutors call this a “one-time offer,” a routine pressure tactic that undermines a meaningful opportunity to make a truly voluntary decision. Most people take the deal.

The framers of the Constitution envisioned a far different system. They knew well from British rule that the government’s power to stop, search, detain, accuse, judge and punish people suspected of committing crimes presented unique risks for abuse. While they did not envision plea bargaining or the kind of policing we have today, three of 10 amendments in our Bill of Rights — the Fourth, Fifth and Sixth — when read together, collectively describe the view that government power should be vigorously challenged, without fear of reprisal or punishment, at every turn when it threatens the liberty of individuals. This original intent becomes meaningless if defendants cannot seek and receive judicial protection. As the United States Supreme Court warned nearly 60 years ago in the landmark Mapp v. Ohio: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

Jacob got his public hearing. Two of the officers involved in his stop, search and arrest were compelled to testify. I cross-examined them over three days. They were visibly uncomfortable, even upset at times. It was clear that they never expected to testify. The judge found the officers’ testimony “implausible,” holding that the search violated Jacob’s constitutional rights, and granted Jacob’s motion to suppress the firearm. Soon after, the prosecution dismissed all charges.

A month later, however, I learned that the same prosecutor was relying on the same team of officers to prosecute another man. He, too, was charged with possession of a gun found under similar circumstances. A week after that, I passed by the officer whose testimony under oath the judge had rejected as “implausible.” He was sitting in court, waiting for another judge to sign off on a search warrant — to enter and search someone’s home — sworn out by him.

The message that the system sent to this officer and continues to send to others is clear: You can do anything and the system will not hold you accountable. In fact, the system will protect you.

We must abolish mandatory minimum sentences. Aside from denying individualized justice and driving mass punishment, they usurp the role of the jury, coerce guilty pleas and, yes, insulate police misconduct. But as Jacob’s case underscored, even in the rare cases where officers are forced to testify and a judge finds them unbelievable, there is no mechanism to ensure that they are halted from being able to contribute to future prosecutions.

Fortunately, there is a growing national conversation among forward-thinking district attorneys and prosecutors to take police accountability more seriously. District attorneys like Larry Krasner in Philadelphia and Kim Gardner in St. Louis have developed “do not call” lists of officers whom they refuse to rely upon based on previous findings of incredibility or misconduct. If more prosecutors start rejecting arrests from bad officers, a strong message can be sent and their ability to continue hurting people can be stymied.

Prosecutors must also end the practice of the “hearing penalty,” where a plea offer made is forever lost once the hearing starts. A plea offer, once made, should not depend on a person’s having the audacity to exercise their constitutional rights.

A system that provides no disincentive for misbehavior and no accountability for those with the greatest responsibility and the power to take away a person’s liberty is profoundly dangerous.

Jacob’s demand for accountability for the officers who illegally stopped and searched his car, despite the risks, despite the institutional pressures not to, should serve as a model for lawmakers, prosecutors and anyone else who claims to care about justice and the epidemic of police abuse and violence.

Mr. Hechinger is a senior staff attorney and the director of policy at Brooklyn Defender Services, a public defense law firm representing 30,000 people arrested in Brooklyn each year.