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May 17, 2022

Criminal Justice

When Arrested

Q: Do police have to tell people why they are arresting them? Sarah from California

A: Under federal law, you have the right to be told why you are being arrested and the crime for which you are being arrested. If you are arrested based on a warrant, you have the right to see the warrant, to read it, make sure your name appears on it, and to see the charge against you. For more specific examples which include traffic stops, please visit the “Know Your Rights” section of this website. 

High in Public

Q: If I'm caught high in public, what will happen? Boston from California

A: : It depends on the state you are in. Generally, being high in public is not a crime. However, in some state’s being high on any drug in public and causing a disturbance is considered a crime. In California, being high in public places can be legal as long as you are not bothering anyone or endangering yourself or others. Worst case scenario, if you are caught high in a public place and the police believe that you are high and bothering others or endangering yourself or others, you can be arrested, sent to jail and charged for violating the state’s public intoxication laws or disorderly conduct laws. Remember you always have the constitutional right to remain silent if you have broken the law or not. Other than  providing your name, you do not have to answer questions. If you wish to remain silent, say so aloud: “Officer, I wish to remain silent.” Anything you say to a law enforcement officer can be used against you and others. You should always talk to a lawyer before agreeing to answer questions: “Officer, I’d like to see a lawyer.” A lawyer’s job is to protect your rights., keep repeating your request for a lawyer or simply remain silent.

Implicit Bias and Advocating for Change

Q: Why are drug offenses considered so serious, when data shows no relationship between prison terms and drug use, and implicit bias against Black and Brown people? Ryan from Washington D.C.

 A: Racism and the legacy of slavery in America is with us in many ways, but especially in the criminal legal system. Since the founding of this country, the criminal legal system has been used as a tool of racial oppression. In the days of slavery, “slave codes” created stricter laws and harsher punishments for enslaved people. After emancipation, Jim Crow laws created an entire legal system based on the separation of races and penalizing people of color who violated the rules of segregation.  Once segregation was formally outlawed, the country turned to mass incarceration—creating new crimes and punishments that were race neutral on their face, but absolutely racist in their effect (for example, with the crack/powder cocaine sentencing disparity:  Congress passed a law in the 1990s that punished possession of crack cocaine 100X more seriously than powder cocaine.  It was common knowledge that when the law was passed, crack cocaine was used in Black communities while powder cocaine was used in White communities.) And part of this current system of mass incarceration depends on the over policing of communities of color. Black people are not more likely to be perpetrators of crime than white people, but Black communities are far more policed than white ones, resulting in far more instances to be erroneously identified as a perpetrator of a crime. Then, once arrested, many problems often arise compromising the fairness of the legal system. Use of junk science, police and prosecutor misconduct, eyewitness bias, ineffective or overworked/underpaid counsel, etc., help lead to Black people not only being disproportionately targeted by the criminal legal system, but also erroneously targeted more often.  

Systemic racism also means that people – victims of crime, police, prosecutors, etc – harbor implicit biases. Because we live in a country and culture that has weaponized skin color, we have internalized biases about who commits crime. And for many, those biases result in the disproportionate targeting and blaming Black people for societal problems like crime. 

Knowing your rights will empower you to feel confident and at ease if you ever find yourself in an engagement with law enforcement. By knowing your rights, you will be armed with tools to demonstrate that you too should be treated with dignity and respect:

1. Practice the phrases outlined below so you become comfortable with the language. Please share this with your family, friends, and neighbors. Knowledge is power!

▪ “Officer, I wish to remain silent.” 

▪ “Officer, I’d like to see a lawyer.”

▪ “Officer, I don’t consent to searches.”

▪ “Officer, am I free to go?”

2. Utilize the Power of Social Media

A key component to effectuating meaningful change is communicating calls for reform to the widest audience possible. Social media is a free, easily accessible platform that reaches persons all around the globe. After a police killing, we typically hear about the incident for a few days and around key milestones in any resulting legal proceeding. Shortly thereafter, the story fades away from news cycle. Utilizing social media can provide the means for continuous dialogue once mainstream media stops covering an issue.

3. Contact Your Local Government

As Thomas Jefferson once said, “The government closest to the people serves the people best.” In our current political climate, this cannot be underscored enough. There is a wealth of opportunities for citizens to engage with their local government. You can testify at a public hearing, write a letter to your representative, or attend a town hall.

Many of the laws and policies that are developed by our legislatures come directly from issues raised by the community. We therefore must invest time and energy to contact our local lawmakers so they are aware that we will not allow these outrageous actions by our police departments to go unnoticed.

4. Volunteer in Your Community

Knowledge is power. When you know your rights, know how to influence your local government, and ultimately know your self-worth, you have the courage to demand change.  The unfortunate reality is that too many people are not in a position to absorb necessary resources or develop personal relationships with positive role models. If we each dedicated just a small amount of time to volunteer in our community on a regular basis, it would make a world of a difference. There are countless ways to do so — check out your local youth groups, senior centers, or nonprofit organizations. Our communities need us.

According to a 2015 study, racial minorities made up about 37.4 percent of the general population in the United States, but they made up 62.7 percent of unarmed people killed by police. What can we do about it? We can require accountability and transparency by taking the actions described above so the senseless cycle of police killings does not repeat itself over and over again. We need to call for independent prosecutors, implicit bias and cultural awareness training for police departments, and improved police-community relations.  Collectively, we must serve as the influencing voice in the fight for justice.

Allocating Resources to Education vs Jail

Q: Why spend so much money on putting minorities in jail when we can change lives with education? Justin from Washington, D.C.

A: A long history of racism makes it difficult even today, 68 years after Brown v. Board of Education, to equalize educational opportunities, either in the quality of elementary and secondary schools or in access to higher education. Our society has long found it easier to lock people up than to really tackle the root causes of crime and inequality. Both getting to the causes of crime and improving the quality of education present significant challenges to society; simply prosecuting crime without worrying about the consequences for society seems simpler to our elected leaders. 

As mentioned in the response to the question above this one, the best way to bring attention to these isssues is to advocate for change. For example, many of the laws and policies that are developed by our legislatures come directly from issues raised by the community. Collectively, we must serve as the influencing voice in the fight for justice.

The Cash Bail System

Q: The cash bail system is unfair to low-income people and people of color.  Are there ways to fix it? Precious from Washington D.C.

A: Yes, cash bail systems result in the jailing of low-income individuals pre-trial, who are disproportionately people of color, simply because they cannot pay the bond or bail set. As the ABA observed in a letter to Congress, “[c]urrently more than 450,000 Americans are jailed while awaiting trial simply because they cannot afford money bail.” Research shows that remaining in jail pre-trial, even for a brief period, not only subjects the individuals to the trauma of incarceration but jeopardizes their ability to maintain jobs and family ties, hinders their ability to work with their attorney and prepare and defense, and increases the likelihood that the individual will reoffend. 

For this reason, numerous civil rights groups and lawyer organizations have been promoting bail reform. ABA Resolution 2017A112C urges jurisdictions to release individuals without cash bail unless a court determines “that release on cash bail or secured bond is necessary to assure the defendant’s appearance and no other conditions will suffice for that purpose.” In several jurisdictions including California and Texas, lawsuits have successfully challenged bail practices and helped enact reform that ensures more people are released without money bail. In other places, like New York, legislatures have enacted bail reform to ensure that people are not detained because they are unable to pay to obtain release.

In jurisdictions still using cash bail, community organizations have created bail funds, which use donated money to help individuals pay bail, obtain release, and access services. Some examples of these organizations include the bail fund at Race Matters friends in Columbia, Missouri, and the Richmond Community Bail Fund in Virginia. At the national level, the Bail Project created a national fund to “prevent incarceration and combat racial and economic disparities in the bail system.”

Individuals wanting to help fix the cash bail system in their jurisdiction can work with advocacy organizations working on litigation or legislative reforms – like the ACLU – or locate and perhaps hold a fundraiser for a local bail fund. Additionally, most individuals facing detention due to inability to pay cash bail are represented by a public defender. Another way to help would be to volunteer at your local public defense provider. 

Public Defender's Obligation to Call You Back

Q: Is a public defender obligated to return your calls? Mike from Washington, D.C. 

A: Yes, a public defender, and any other kind of attorney, should return a client's call. Many states have rules which address this issue. For example, in DC where you live, the Rules of Professional Conduct (Rule1.4) say that a lawyer 'shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information'. But please understand, many public defenders have overwhelming case loads and it may take time to respond. If you believe the response is too slow, the next step is to call and talk to the attorney's supervisor. 

Laws about Lying

Q: What are the laws on lying? Under what circumstances, if any, are lies made criminal? Nasir from Washington, D.C.

A: It is often said that it is a crime to lie – or make intentionally false statements – to a government official. This is not correct in all circumstances. Rather, lying is a criminal offense if the individual is under a formal oath or obligation to tell the truth. In these instances, lying, which is often called perjury or sometimes false declaration. (See, for example, 18 U.S. Code §1621) For example, one takes an oath when serving as a witness in a court proceeding. Lying on the witness stand is a crime, and someone who commits this crime can be charged with perjury. Similarly, if an individual is sworn in before a Congressional committee and lies, the person can be referred for prosecution. Likewise, when one submits a formal statement to the government, like a tax return, you must sign them under penalty of perjury. Putting intentionally false statements into such submissions – or lying – is a crime. The punishments for such lies be severe. For example, making false statements on a federal tax return is a felony carrying a punishment of up to 3 years in jail and a fine of up to $100,000. (26 U.S. Code §7206)

Often people are concerned about whether it is a crime to lie to the police. In general, you can face charges for lying to police in three circumstances: (1) when asked to identify yourself; (2) when under oath; and (3) when reporting a crime. In Pennsylvania, both refusing to identify oneself to a police officer and giving false identification are misdemeanors. (PA Code Title 34 § 904) Similarly, knowingly giving a false report to DC police is punishable by a fine of up to $300 and up to 30 days in jail. (DC Code § 5-117.05)

One last category of lying crimes worth mentioning is fraud or false impersonation crimes, in other words lying or pretending to be someone else, usually to obtain money. In your jurisdiction of Washington, DC, for example, it is a misdemeanor to pretend to be a police officer. It is punishable by up to 180 days in jail. (DC Code § 22-1406) In many jurisdictions, there is a general law against impersonating any government official. For example 18 U.S. Code §912 makes it a crime to “pretend[] to be an officer of employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money . . . or thing of value.” The crime is punishable by up to three years in prison.