How Chicago Could Beat Trump in Court

Originally published in VICE on August 9, 2017.
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For months, Donald Trump has been fueling panic about Chicago’s crime rate, repeatedly threatening to use his power as president to “send in” federal troops to deal with the scourge of homicides plaguing the city.

On Monday, Chicago made its own power move.

The city filed a federal lawsuit against the Trump administration in an effort to stop the Department of Justice, led by Trump’s frenemy Jeff Sessions, from punishing Chicago for its status as a so-called “sanctuary city.” In defending the lawsuit on CNN, Mayor Rahm Emanuel stressed that forcing his city to choose between its values and the police department’s community policing philosophy is “a false choice” that “undermines our actual safety agenda.” Going after Trump and Sessions over policing is also likely a welcome change for Emanuel, who has drawn harsh fire for Chicago’s police brutality and persistently high violent crime.

The lawsuit centers on a federal grant, the Edward Byrne Memorial Justice Assistance Grant—or Bryne JAG—used by state, city and tribal governments to support law enforcement. In July, Sessions—a longtime foe of undocumented people—took his first real step to crack down on sanctuary cities when he announced that he would be imposing new conditions on localities that want to receive cash from the Bryne JAG.

Chicago’s lawsuit alleges that these new conditions—which empower the feds to interrogate arrestees at local jail facilities, and require local law enforcement officials to detain individuals longer than justified by probable cause—are “unauthorized and unconstitutional.” Meanwhile, the city received $2.3 million from the Bryne JAG last year.

While Sessions has already responded to Chicago’s legal challenge by saying that the Windy City “has chosen deliberately and intentionally to adopt a policy that obstructs this country’s lawful immigration system,” a number of legal experts have argued the lawsuit’s central claims actually rest on sturdy shoulders. George Mason Law School professor Ilya Somin told me that while it’s not unusual to see a presidential administration attempt to finagle grant conditions, he’s “not aware of a case as blatant as this one where the executive branch just seems to make up conditions on its own, and doesn’t even have a minimally plausible argument that they were included in the bill Congress passed.”

Likewise, Phil Torrey, an attorney focused on the intersection of criminal and immigration law at the Harvard Immigration and Refugee Clinical Program, thinks Chicago’s suit has some real muscle. Here’s what he had to say about the latest major lawsuit against the Trump administration, and how this saga might play out from here.

VICE: What do you make of Chicago’s new lawsuit? Is it viable? 

Phil Torrey:
 I think Chicago feels like they’ve been backed into a corner as they anticipate potentially losing JAG funding. They make a number of claims—on statutory and constitutional grounds—and I’d say both have a good deal of merit.

What are some of the stronger claims?

Well there are a few. One is Chicago’s spending clause claim: Basically what the city is saying is that the executive agency responsible for administering these federal grants cannot impose additional restrictions on those funds without congressional approval. And in this instance, Congress has not given any authority to the DOJ to impose the kinds of restrictions Sessions is advocating for. I think that’s a pretty clear, straightforward argument.

I also think the city of Chicago and other municipalities are currently in compliance with federal law, specifically Section 1373 [a federal statute that bars local governments from restricting the sharing of immigration status information with ICE agents]. If you look closely at their “sanctuary” policies, you’ll see they don’t have rules that restrict the sharing of this information. I think the DOJ is incorrectly construing those policies to claim cities are running afoul of the law.

But if Chicago is arguing the DOJ needs congressional approval to condition federal funds, couldn’t the GOP-controlled Congress just go ahead and do that, and effectively render the lawsuit moot?

Yes, Congress could attempt to pass some legislation that would further restrict JAG funding, but that hasn’t been done yet. There could be other constitutional challenges to that kind of statute, but as it stands, that specific enabling language to allow the DOJ to pass new restrictions has not been approved.

One complicating factor is that the Bryne JAG is related to public safety, and Congress can’t impose its will on municipalities in a way that would force them to implement new public safety measures. Constitutionally, public safety is completely within the purview of a city or county or state, and Congress could arguably be overstepping its authority if it passes legislation that forces these localities to do something that they believe harms their public safety.

Do you think other local governments will follow Chicago’s lead, as some reports suggest they are considering?

You’ve got city, county, and state law enforcement officials all serving different roles within the realm of public safety, and some of these new conditions placed on the Bryne JAG funding affect those players in different ways. You could definitely imagine multiple levels of local government filing claims—either in conjunction with Chicago or separately against the DOJ.

Can’t the administration argue—with some merit—that the federal government has broad discretion over immigration policy?

This is actually being framed more as a public safety issue than an immigration enforcement issue. And when you’re operating within the realm of public safety, then states and localities have full constitutional authority to enact and enforce policies that they see fit. Municipalities are saying, “Wait a minute—public safety is our realm to operate in. You can go ahead and enforce immigration laws. Do what you need to do, but don’t come in here and tell us how to do public safety.”

As this case winds its through the courts, what should we be looking out for next?

Hundreds of municipalities have decided that the best way to police their communities is by separating their public safety enforcement from immigration enforcement. If we move to entangle them, it may have a chilling effect that could really harm community systems.

I think this case illustrates that the administration is putting a target on states, counties, and municipalities that have these types of [community policing] policies—considering them somehow against federal law. Essentially what the DOJ is doing is saying, “We’re going to substitute your own views on what’s best for your communities with our views.”

You effectively have a federal government attempting to force municipalities to change their policies, which is actually contrary to how you’d expect a traditional Republican, conservative government to act. Normally you’d expect to see conservatives favoring local autonomy and disfavoring federal overreach. That’s not what’s happening.

This interview has been lightly edited and condensed for clarity.

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Q&A: Drug Addiction Is a Learning Disorder

Originally published in The American Prospect on July 7, 2017.
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For the past 30 years, Maia Szalavitz has researched and reported on science, drug policy, and health. Before that, in her early 20s, she herself became addicted to cocaine and heroin—sometimes injecting the drugs several times a day. Even after overdosing, after being suspended from Columbia University, and after getting arrested for dealing—facing a 15-year-to-life sentence under New York’s now-repealed Rockefeller drug laws—Szalavitz struggled to quit. In her latest book, Unbroken Brain: A Revolutionary New Way of Understanding AddictionSzalavitz explores why getting off drugs is so difficult. She challenges the public to see addiction as a neurological learning disorder—much more like autism and ADHD—than a moral failing, or a chronic illness. This conversation has been edited and condensed.

Rachel Cohen: Your book takes aim at some of the nation’s central narratives around drug addiction. Can you start by describing some of these, and why you think they’re off the mark?

Maia Szalavitz: We have this whole public narrative around the idea that addiction is a chronic brain disease, which is wrong, and that narrative is overlaid onto a treatment system which is primarily focused on getting people in 12-step self-help groups that basically involve confession, restitution, and prayer. If such a treatment were suggested for autism, or any other illness, people would say, “Wait a minute, that’s faith healing, and that’s not what we do in modern medicine.” But in addiction nobody seems to notice this contradiction, and that’s because we as a culture don’t really believe addiction is a disease—we see it as a sin.

One of your major arguments is that we should start to think of addiction as a learning disorderWhat does this mean?

You cannot be addicted without learning that the drug fixes something for you. On a very basic and silly level, if you don’t know, then you can’t crave it, and then you can’t go out and seek it. People can recover from addiction when they learn to do different things.

Addiction, like other learning disorders, tends to start at a particular period in brain development. Like schizophrenia, addiction is overwhelmingly a disorder of late adolescence and early adulthood.

You talk about the problem of “overlearning”and say addiction is defined by compulsively using a drug or activity despite negative consequences.

One of the most interesting things about addiction is that it’s a special kind of learning, in that it gets learned more deeply. Basically if you think about it, if you love some subject, like math, you will learn about it with an intensity someone who hates math could never achieve. Or if you fall in love with somebody, you start to learn every little thing about that person.

Our brains are evolved to do this so we can successfully reproduce and raise children, but when that system gets misdirected towards a substance, you get this intense learning of cues associated with the drug, intense longing, this sense that if you don’t have it you just can’t survive. It resets the priorities in your brain. If you don’t have love to compare it to, you’d just think this person is completely crazy and they’re making really stupid choices. But when you understand that it’s basically the same thing as when people have affairs—complete with the lying—you realize this is just a misdirection of a very natural system that we all have and are all vulnerable to having misdirected in varying ways.

So “overlearning” occurs when you just focus so intently on one thing. That is a terrible disadvantage when the thing is a drug. But it can be an incredible advantage if that thing is a subject of inquiry you’re using in your work, for example.

What are some implications of recognizing that addiction is a learning disorder?

So there are several things. One is that there’s this interminable debate about whether addiction is a disease or not. My feeling is basically that if you want to call it a disease, if that’s important to you, you can say it’s a disease that takes a form of a learning disorder, like ADHD and depression. If by “disease” you mean that it’s not the person’s fault—I’m totally with you. If by “disease” you mean it’s chronic and progressive, like cancer or Alzheimer’s, well the data just don’t show that.

And like other learning disorders, it only affects narrow parts of learning. For example, you can have dyslexia, but still have a very high IQ.

The other and even more obvious implication is that if addiction is marked by a failure to respond to punishment, then we should realize that punishment is a really stupid way of dealing with addiction. Yet this is what we as a country have decided we’ll do. It’s just insane that we think we can use the criminal justice system for this. It does not solve anything to put someone in a cage for a couple days for possession of a substance.

You find that most of our drug policy was crafted not based on public health, but on racism.

There is no reason other than racism that marijuana is illegal, and it’s very clear from the history that that’s the case. Many tend to have this misguided idea that the Drug Enforcement Agency sat down one day and rationally weighed the costs and benefits of each substance. But all of our drug laws, including alcohol prohibition, resulted from racist or anti-immigration panic, or a combination of the two.

In your book you talk about the importance of “harm reduction” for drug policy. Can you briefly talk about what that is and why it matters?

The idea is well let’s stop moralizing around the idea that people shouldn’t have these types of pleasures, and instead we should care about a person’s drug use when that person’s drug use does harm. If you’re using and things are good, we shouldn’t care. If you’re using and harming yourself and others, that’s when policymakers should get involved.

Harm reduction says let’s accept the fact that people in every culture around the world for all of human history have used psychoactive substances, and instead of trying to stamp out versions of them that we don’t like, let’s focus on the harm. That allows you to figure out why people are using, help them to get better, or to do it more safely. The beauty of harm reduction is it allows you to say to someone, “Hey I want to save your life, it doesn’t matter if you’re still using drugs, I’m not here to judge you, but I don’t want you getting HIV or dying of an overdose.” When you approach someone like that, especially people who are really marginalized and face all kinds of horrible situations, it’s really powerful. They’re so used to people coming at them with an agenda of I’m going to fix you. Simply treating people with kindness and respect creates an opening for change that you can never get through threats and humiliation.

Most people accept that alcohol prohibition didn’t work, yet for some reason still back broad bans on other types of drugs. And you note in your book that even though the U.S. has fought harm reduction policies for drugs, we all can see that harm reduction policies associated with alcohol, such as teaching people to select designated drivers, have been really effective.

This again comes back to racism. Alcohol has long been accepted by white people. Drugs that white people like are legal and drugs that white people have tried to use to oppress other people are not. In America, and around the world because of America, we have decided that certain substances are OK even though they’re more harmful than some illegal ones.

It’s actually kind of surprising that tobacco was legalized because it was an indigenous American drug, but the reason why is because it was one of the first products that America could sell to support its capitalism. Rum, sugar, and tobacco were big drivers of our economy for a very long time—and a lot of that runs on addiction.

We banned other indigenous drugs like marijuana and cocaine because we basically associated these with threats to white culture, particularly threats to white masculinity. If you review the history of how things became illegal, it’s always about how this particular substance makes it easier for this hated minority to get white women through rape and seduction.

Nixon also had his “Southern Strategy” and the idea was to associate black people with crime and drugs, which created a rationale to lock them up. When black people were seen as a signal of criminality, then harsh measures were needed. But when symbols of drugs are associated with white people, we tend to think they need treatment, not punishment. As someone who has advocated for treatment and not punishment for decades, it is really sad to me that the way we have made progress towards humane policy is because we want to be humane towards white people. If we can get towards compassionate policy, though, then hopefully we can make it humane for everyone.

Your book was published before Attorney General Jeff Sessions came to power, and he’s been spewing a lot of regressive rhetoric on drug policy recently. What do you think the Trump administration means for drug reform?

I don’t think anyone knows, but I do think it will be very, very difficult to put the marijuana genie back in the bottle, and that’s a good thing for drug reform generally. Once people realize that you can legalize marijuana and the world does not end, once you see what nonsense our drug laws are based on, it opens the door for creating sensible policy. Our current policies are not rational. They are not scientific. They are not based on anything other than prejudice. And to be clear, this doesn’t mean I think we should create Philip Morris heroin—that would be a bad idea, too—but what we should be thinking about is what is the best way to regulate the human tendency to use psychoactive substances and how do we make sure that the substances people use are the least likely to yield harm. That’s the basis on which we should craft drug policy, not that drugs are immoral.

You talked a bit about disability rights advocates pushing for ‘neurodiversity.’ Do you see addiction as something that should, or will, be part of this movement?

I absolutely do. I think addiction should be considered a form of neurodiversity and we should understand addiction through the lens of disability. If you think about it in terms of autism, people with autism often take comfort in repetitive behaviors, which is very similar to people with addiction who take comfort in repetitive behaviors. When you accommodate people and allow them to be their weird selves, you make things better for everyone.

How was your book received by other experts in the field?

It’s been received amazingly well, which really surprised me because I’ve been saying pretty much the same kinds of things for a long time and it used to be seen as really out there. I’m not the first person to make these arguments, but there really has been a sea-change.

I certainly have gotten criticism from some 12-step people, mainly those who felt like they wouldn’t have been able to recover if they weren’t forced into the 12-step program. My answer to that is that 12-step programs can be fabulous self-help, and should be available, but if we want to argue for more compassionate medical treatment of addiction, then we need to let doctors actually treat it.

Progress often feels slow. As someone who has followed this for many years, is it hard to stay hopeful?

Actually it’s funny because some of the younger activists will say to me, “How can you be so optimistic?” But when I first tried to get people to pay attention to humane drug policies in the ‘80s and ‘90s, I was cast as fringe and radical. And now we have eight states where recreational marijuana is legal. In the 1980s, you’d be told you’re a traitor in the drug war if you even think about stuff like that. We also today have white empowered parents fighting for harm reduction, whereas in the past the white empowered parents were saying to lock up drug users, use tough love. Nobody today even has a good case for why locking up a heroin user for possession is helpful, and that’s a really radical change compared to all the stuff I used to hear during my own addiction and early recovery.

Baltimore Is Finally Doing Something About Its Notorious Police Force

Originally published in VICE on January 12, 2016.
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The city of Baltimore and the federal government unveiled the terms of a sweeping 227 page consent decree Thursday morning, a legal document mandating reforms to the local police force. The deal emerged 21 months after 25-year-old Freddie Gray died while in police custody in April 2015, and five months after a scathing Department of Justice report alleged a litany of unconstitutional, racist, and just plain mean-spirited policing practices in Charm City.

“Through this agreement, we are moving forward together to heal the tension in the relationship between BPD and the community it serves,” US Attorney General Loretta Lynch said at a press conference in the city. “The agreement is robust and comprehensive,” she added, emphasizing that it was negotiated to ensure effective policing, restore the community’s trust in law enforcement, and advance the public and police officers’ safety.

Like 14 similar deals currently being enforced on law enforcement jurisdictions across America, the Baltimore consent decree lays out a number of new rules and systemic changes. Among other things, it calls for a community oversight task force to recommend tweaks to the current civilian oversight systems, insists on respect for individuals’ First Amendment rights to protest and monitor the police, imposes guidelines on proper use of force and transport of people in custody, protocols on constitutional stops, searches, and arrests, requirements for annual “community policing” trainings for all officers, and new procedures for conducting sexual assault investigations. While the BPD has moved to implement some of these reforms already—which the decree acknowledges and commends—Baltimore now has a legal tool to help cure what critics believe is a broken culture of often-brutal policing.

The deal also represents one of the last chances for the Obama administration’s activist Justice Department to leave its fingerprint on the American criminal justice system—and to rein in rogue cops at the center of Black Lives Matter protests. The only question is how aggressively a new, “law and order” happy White House under Donald Trump will enforce it.

The Baltimore City Fraternal Order of the Police, the local police union, quickly issued a critical statement after news of the decree broke Thursday, bemoaning the fact that they were not included in the negotiations. “Despite continued assurance by representatives of the Department of Justice that our organization would be included in the Consent Decree negotiations, no request to participate was ever forthcoming and we were not involved in the process,” the statement said. “As we were not afforded an advance copy of the agreement, neither our rank and file members who will be the most affected, nor our attorneys, have had a chance to read the final product and, as such, we will not have a comment now. Be assured, however, that a response will be forthcoming at the appropriate time.”

Police unions in other cities have worked to block reform efforts through their collective bargaining agreements, and Baltimore activists say they are bracing for similar resistance from the local FOP. The Baltimore police union has opposed reforms to the Law Enforcement Bill of Rights, which governs how officers accused of misconduct are treated in Maryland. Some activists say the statewide law stands as the city’s biggest barrier for meaningful police accountability and transparency.

In October, for its part, the Baltimore FOP issued its own recommendations for inclusion in the consent decree, calling for things like increased whistleblower protections, more cops, and technology upgrades.

During his confirmation hearings for US Attorney General this week, Alabama US Senator Jeff Sessions expressed skepticism about using consent decrees to force change in police departments. “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness,” he said. Sessions also once wrote that court-ordered consent decrees were “undemocratic” and “dangerous,” which taken with his more recent comments has served to send a chill down the spine of police reformers nationwide.

Still, Outgoing Attorney General Lynch assured the public at Thursday’s press conference that the consent decree “will live on past this administration.” After all, it is court-enforceable and there will be an independent monitor overseeing the agreement.

But Lawrence Brown, an assistant professor of public health at Morgan State University, told VICE he has “no faith in Trump’s folks, especially if it’s Beauregard Sessions” and that he expects the police union to oppose key elements of the agreement. “Other means will have to be utilized to ensure this is enforced,” he said, pointing to ongoing efforts to change or repeal the Law Enforcement Bill of Rights.

Meanwhile, DeRay McKesson, a Black Lives Matter national activist and administrator in the Baltimore City Public School system, praised the agreement on Twitter for its scope, and noted that it’s the first consent decree he’s ever seen to include school police.

 

Skepticism that the new administration will hold local cops’ feet to the fire abounds, however. One member of Baltimore Bloc, a grassroots group focused on police reform, told VICE that she and her fellow activists have no confidence in a Trump DOJ to enforce the consent decree, even if they had their doubts about enforcement under a Hillary Clinton DOJ, too. “I think Baltimore Police is going to resist it all the way, FOP’s statement is already obstructionist as hell, and it was the police gleefully violating people’s rights that got us here,” the activist said.

The city has been under pressure to finish the consent decree before Inauguration Day. That’s because once the agreement is finalized—it still needs court approval—a federal judge will be empowered to enforce it, no matter who is president or US attorney general. Still, legal experts generally agree that if the police department or city political leadership fail to follow through on the terms of the agreement, it will be up to Trump’s Department of Justice to take them to court to compel change