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A daily report on important news nationwide from Ted Gest of Criminal Justice Journalists, plus commentary and research highlights.

 Mass Deportation of Haitians from Texas

The U.S. is beginning what could be the swiftest and largest deportation of migrants and refugees in decades by flying Haitians camped in Texas back to their home country, the Associated Press reports. Over 320 migrants arrived in Port-au-Prince on Sunday on three separate flights and six additional flights are expected on Tuesday. The U.S. plans to expel people on seven flights on Wednesday, four of which are going to Port-au-Prince and three to Cap-Haitien. The flights are departing from San Antonio. Haitians were not allowed to seek asylum, a parallel to the 1992 expulsion of Haitian refugees at sea. 

Similar expulsions have occurred previously, with large numbers of Mexicans being sent home during peak years, but none were so sudden. Comparable numbers of Central Americans have also crossed the border without being subject to mass expulsion. However, due to the pandemic, Mexico has agreed to accept Central Americans from: Mexico, Guatemala, Honduras and El Salvador. Mexico will not accept Haitians. Despite the border closure on Sunday, the Haitian immigrants found other ways to cross nearby. Many of them crossed the border into the U.S. through the Rio Grande River before being stopped by Border Patrol agents. Many of them were starving, with very little food to eat or give to their children. Since the earthquake in 2010 and the lack of jobs after the 2016 Summer Olympics in Rio de Janeiro, many have made the dangerous journey across the U.S.-Mexican border.

 Senate Official Blocks Democrats' Immigration Reform

The U.S. Senate parliamentarian said Sunday that the Democrats’ plan to provide a pathway to citizenship for millions of immigrants living in the U.S. illegally couldn’t be included in a wide-ranging $3.5 trillion measure expanding the safety net and responding to climate change, the Wall Street Journal reports. Parliamentarian Elizabeth MacDonough said that the plan to legalize a group including young immigrants, farmworkers, essential workers and those living in the U.S. on humanitarian grounds didn’t abide by Senate rules. The finding was a setback for Democrats, who are advancing their legislation through a procedure that requires only a simple majority, rather than the 60 votes required to overcome a filibuster. No Republicans are expected to support the Democrats’ proposal, and Vice President Kamala Harris would break any 50-50 tie.

To qualify for inclusion in legislation advanced through the "budget reconciliation," any change must have a significant impact on the federal budget that is more than incidental to the policy change being sought. The parliamentarian said granting legal status to immigrants would mark “a policy change that substantially outweighs the budgetary impact of that change.” Democrats were hoping to create a legal path to citizenship for immigrants in the U.S. illegally, including so-called Dreamers, who entered as children. Democrats are still likely to propose alternate changes to immigration law to the parliamentarian, including updating a law known as the registry that would allow anyone present in the U.S. before a certain date to become a legal permanent resident. The stakes have risen for the young immigrants known as Dreamers after a federal judge in Texas ruled that the Deferred Action for Childhood Arrivals program, which provides many of them temporary deportation protections, is illegal.

 Incarceration Rate Down 13% in Decade, Census Data Show

The U.S. incarceration rate last year was down 13 percent from 2010, new Census data show, the Marshall Project reports. About one-third of the drop came from California and New York. Overall, 41 states, the District of Columbia and Puerto Rico saw reductions in the total number of people who were incarcerated. In five other states, the number of incarcerated people increased compared with a decade earlier, but the rate went down because the total population increased faster than that in the prisons. Only four states had an increase in the incarceration rate. 

Incarceration rate fell further after Census data were collected because of COVID-19. Experts attribute the decline to a slowdown in the court system and parole offices, reducing the number of people sentenced and caught for violating parole. Police departments cut back on proactive tactics, like traffic stops, and the number of drug crimes dropped. Prison and jail officials rushed to empty out facilities as a preventative measure during the pandemic. The census also affects "prison gerrymandering," which stems from the fact that prisoners are counted in areas they are held and not their home areas, inflating the population of rural communities containing jails and decreasing the political power of urban areas that have lost their population to incarceration. In most states the raw number of incarcerated people did not change, despite efforts made during COVID-19 to reduce the population in prisons.

 'A Damning Indictment' of Supreme Court on Police

Since the death of George Floyd, there has been a public outcry arose against police brutality, especially involving people of color, and demands that police cease using chokeholds, stopping Black men for seemingly no reason and shooting dozens of people of color each year. What most people do not know is the extent to which this behavior has been condoned by the judicial system, says Melvin Urofsky in a New York Times review of Erwin Chemerinsky's book, "PRESUMED GUILTY -- How the Supreme Court Empowered the Police and Subverted Civil Rights" Urofsky says Chemerinsky  "presents a damning indictment of the Supreme Court. In case after case, the nation’s highest tribunal has found that police actions, even when clearly in violation of constitutional prohibitions, are acceptable". The decisions have not only prevented citizens from getting injunctions against use of such practices as chokeholds, they have also made it almost impossible for those who have been the victims of police brutality to win civil suits seeking compensation. As Chemerinsky declares, the court’s record “from 1986 through the present and likely for years to come, can easily be summarized: ‘The police almost always win.’ ”

Chemerinsky is doubtful that with the current makeup of the court, any meaningful reform of police practices will result from judicial action. While the justices, who willfully ignore the racial implications of their cases, rule that police forces can get away with almost anything, their decisions are not binding should Congress or state legislatures, or even municipal governments, enact rules governing police misbehavior. A chokehold or a warrantless search may not, in the eyes of conservative justices, violate the Constitution, but they have never ruled that the Constitution requires such practices. 

 138 Charged With Health Care Fraud

The Justice Department is charging nearly 140 people, including medical professionals, with alleged health care fraud schemes that have resulted in around $1.4 billion in losses, reports the Wall Street Journal. About $1.1 billion of the alleged fraud was related to telemedicine, and 43 defendants in 11 areas allegedly were submitting false or fraudulent claims for remote health visits. Allegedly, telemedicine executives paid doctors and nurse practitioners to order unnecessary equipment, tests and medications. These were all done without any real in-person interaction with the patients, and sometimes without so much as a phone call. The money gained was spent on luxury yachts and real estate. 

The DOJ Criminal Division and 28 U.S. Attorneys' offices, the FBI, the Department of Health and Human Services, the Drug Enforcement Administration and several other law-enforcement agencies coordinated in investigating the case. Of the 138 people charged, 42 were medical professionals. Nine of the defendants allegedly exploited the COVID-19 pandemic by falsely billing more that $29 million. The defendants misused patient information to claim Medicare for expensive, unnecessary tests; $133 million was gained through false claims for substance and alcohol abuse treatments. Over 12 million doses of opioids and other drugs were prescribed and over $14 million was falsely billed. “These fraudulent activities prey on our most vulnerable—those in pain, the substance-addicted, and even the homeless,” said Anne Milgram of the DEA. “Not only do these schemes profit from desperation, but they often leave their victims even deeper in addiction.”

 NYC's Rikers Faces 'Collapse in Basic Jail Operations'

Entire units of inmates are left unguarded. Prisoner suicide attempts are rising. Nearly a third of correctional officers are out sick or can't work with inmates. New York City officials are scrambling to address alarming conditions at the Rikers Island jail complex. Lawyers and lawmakers say the safety of inmates and officers has never been more imperiled in the 90-year history of Rikers, long known for its reputation for violence, the Wall Street Journal reports. "The humanitarian crisis I saw is, simply, stunning," Public Advocate Jumaane Williams said after a tour of Rikers last week. New York Gov. Kathy Hochul on Friday ordered the release of 191 Rikers inmates and signed a bill to end reincarceration for technical parole violations. The Less is More Act will help lower the inmate population at Rikers, improving conditions, officials said

"No one—no inmate, no correction officer, no family member who visits—should have to witness the reality of Rikers as it exists today," Hochul said, calling the jail's conditions "an indictment on everyone." Rikers was hit hard by COVID-19. At the start of the pandemic, infection levels were among the highest of any U.S. workplace. Since then, the jail has seen staffing shortages and a steadily rising inmate population. More than 2,600 of 8,400 uniformed correctional workers are out sick or on medically modified duty, which means they can't work with prisoners. Officers who do report to work have been forced to work as many as four back-to-back shifts, often without access to food or rest. The inmate population has grown to 5,800 in August, compared with 4,000 in the early months of the pandemic. COVID-19 has forced the courts to scale back operations, leading to lengthier jail for those awaiting trial. Ross MacDonald, the chief medical officer for Correctional Health Services, sought help from City Hall to address what he called "a collapse in basic jail operations."

 St. Louis Struggling to Recruit and Retain Officers

Officer departures in St. Louis and St. Louis County have spiked this year to almost a 60 percent increase compared to the average of the previous four years, the St. Louis Post Dispatch reports. While announcing his retirement last month, St. Louis Police Chief John Hayden said, “We’re competing for the best officers in the region and they can go elsewhere for more money and less demands.” Current ratios of officers to residents aligns with that of similar sized agencies and crime rates, but leaders fear the ratio will continue to decline if nothing is done to reverse it. More than 82 officers are expected to leave by the end of the year compared to the average from the past four years of 51. Only 75 new officers and trainees have been hired this year compared to 100 in the same time frame during previous years.

Departures in St. Louis are outpacing those nationally, which amount to only one percent. Police department leaders, recruiters and officers believe that the increase in focus on police misconduct, calls to defund the police and the increased stress over high homicide rates and the pandemic, better benefits at other departments and low unemployment rates are contributing to this trend. “In a lot of places, policing is looked at in a negative fashion today: Social media, the news, protests, so that’s of course making it hard to get recruits,” St. Louis Police Academy Director Lt. Angela Dickerson said. “And when they do complete our top training, in St. Louis these days they have a tendency to leave.”

 High Court May Take Up Case on Secret Surveillance Disclosures

Before becoming attorney general, Merrick Garland wrote a strong opinon on the importance of being open in the justice system, the New York Times reports. "Indeed, since at least the time of Edward III, judicial decisions have been held open for public inspection," Garland said. "At bottom," he wrote, this "reflects the antipathy of a democratic country to the notion of 'secret law,' inaccessible to those who are governed by that law." Last month, the Justice Department, now headed by Garland, told the Supreme Court that under the First Amendment the public had no right to access secret decisions issued by a federal court.

The Justices are set to consider hearing that case, brought by the American Civil Liberties Union regarding decisions made in the Foreign Intelligence Surveillance Court, on Oct. 8. The case Garland had written about the importance of openness regarded electronic surveillance and concerned different laws. However, his general point provides an important framework. "Secret law of all types causes several concrete harms that are antithetical to democratic norms," said a brief from the liberal Brennan Center for Justice and the libertarian Americans for Prosperity Foundation supporting the ACLU. "Secret law prevents the public from understanding and shaping the law and thus inhibits democratic accountability; disables checks on governmental abuses of the law; and weakens the quality of the law itself." After the 2013 leaks by Edward Snowden that disclosed the U.S. government authorizing the collection of all U.S. phone calls and emails, Congress passed the USA Freedom Act of 2015. Critics argue that this is not enough. They argue that under the separation of powers the judicial system should make rulings for the public, not the executive branch. Additionally, they want the decision to apply to decisions made before the law was enacted, between Sept. 11, 2001 and the present. "These court opinions are vitally important," said Patrick Toomey of the ACLU. "They can have far-reaching consequence for Americans' privacy and free expression rights. It shouldn't be up to the executive branch whether the public has access to them."

 Only Four Arrests in Capitol Rally for Rioters

A rally Saturday by Donald Trump supporters protesting the prosecutions of hundreds of people charged in the Jan. 6 riot at the U.S. Capitol ended without the violent clashes law-enforcement officials feared, the Wall Street Journal reports. Officials took no chances, deploying hundreds of officers from across the region—some visibly armed and in riot gear—installing a metal fence around the Capitol and requesting assistance from the National Guard, measures largely absent ahead of the January breach. The crowd was small—about 400 to 450 people, by law-enforcement estimates, including dozens of reporters and camera crews—and the "Justice for J6" rally a block from the Capitol unfolded with few problems.

Capitol Police reported the arrests of four people, including a man who had a knife and two others on outstanding felony warrants out of Texas. A fourth man was arrested after someone spotted him with a handgun. He was charged under a federal statute that makes it illegal to bring a gun onto the Capitol grounds. Protesters said they were supporting the more than 600 people charged in the Capitol riot, whom they depicted as political prisoners and victims of state coercion, rather than lawbreakers. Saturday's speakers played down details of the Jan. 6, attack that amounted to one of the greatest U.S. security lapses since Sept. 11, 2001 and put law enforcement and intelligence officials on edge for the possibility of future violence by newly emboldened extremists. Most of the cases stemming from the riot are still winding through the courts. Of the more than 600 charged, at least 50 people have pleaded guilty, mostly to misdemeanors. Only six have had their cases adjudicated and been sentenced. 

 Simone Biles Credits Indianapolis Paper for Sex Abuse Reports

In her Senate committee testimony about the abuse she faced from doctor Larry Nassar, gymnast Simone Biles blamed the system that failed her. Biles believes that USA Gymnastics failed her even during her competition at the summer 2016 Olympics in Rio de Janeiro. "I didn't understand the magnitude of what all was happening until the Indianapolis Star published its article in the fall of 2016 entitled 'Former USA Gymnastics doctor accused of abuse,'" Biles said. The article Biles referred to was one in which former gymnast Rachael Denhollander accused Nassar. This was a part of a series of investigative journalism stories called "Out of Balance." The project brought accountability to a place where there previously had been none, the Washington Post reports. 

The story began with a tip to Star reporter Marisa Kwiatkowski. She had been reporting on the problems in schools of reporting abuse. A source advised her to look into USA Gymnastics, based in Indianapolis. Over the next year, Kwiatkowski and her colleagues read through countless documents, flew to 14 states and interviewed many athletes and others related to the world of gymnastics. The first story was published as the Rio Olympics began. USA Gymnastics had a policy of not reporting child sex abuse claims unless they came directly from the athlete or a parent. At the time, the reporters had no idea that Olympians had been abused. The story ultimately led to over 150 others coming forward about Nassar. Nassar has since been sentenced to up to 175 years in prison.

 Durst Convicted of Murder, Faces Life Term

Robert Durst, the real estate scion who evaded criminal suspicion for half his life only to become a sensation after damaging admissions were aired in a 2015 HBO documentary, was convicted on Friday in the execution-style murder of a close confidante more than 20 years ago. The verdict after seven and a half hours of deliberations was the latest action in a case that spanned almost four decades. It began with the mysterious disappearance of Durst's first wife, Kathie, in 1982 and concluded with his conviction for the killing of Susan Berman, a friend who prosecutors said helped him cover up his wife's disappearance and death. Durst, a frail 78-year-old, was convicted of first-degree murder and faces a life sentence with no option for parole, reports the New York Times. 

The jury found that special circumstances had been proved about the death of Berman, determining that Durst had been "lying in wait" for her and that he was "killing a witness" because he feared she would reveal what she knew about his wife's disappearance. The trial began in March 2020, but adjourned days later for 14 months because of the pandemic. When it resumed in May, the jurors were spread across the gallery while prosecutors sat in the jury box. Everyone, including the judge and witnesses, wore masks as precautions against COVID-19. David Chesnoff and Dick DeGuerin, defense lawyers for Durst, will appeal. They depicted Durst as a hapless, socially awkward man who "doesn't make good decisions," and ended up in the wrong place at the wrong time and ran, twice. The defense called Durst the victim of ambitious prosecutors and deceptive filmmakers.

 Body Likely Gabby Petito's Found in Wyoming

A body found in northern Wyoming is believed to be the missing Gabby Petito, 22, the Associated Press reports. Petito was on a cross-country trek with her boyfriend when she seemingly vanished. Her boyfriend, Brian Laundrie, 23, is missing as well. The body was found on Sunday just east of Grand Teton National Park. The cause of death has not yet been confirmed. The specifics of how and where she was found have not been disclosed. “Full forensic identification has not been completed to confirm 100% that we found Gabby, but her family has been notified,” said FBI agent Charles Jones. “This is an incredibly difficult time for (Petito’s) family and friends.” 

Laundrie has been identified as a "person of interest." He was last seen in Florida on Tuesday. Police on Monday swarmed his home.The officers served a search warrant, and local media reported that Laundrie’s parents were seen getting into a police van. Video showed at least a dozen law enforcement officers, including one wearing an FBI jacket, pulling up to the house in North Port, Fl., and rushing inside. Investigators were still looking for information from anyone who may have seen Petito and Laundrie around camping sites in the west. They left from New York in July with the goal to reach Oregon by October. They drove cross-country in a converted van visiting national parks along the way. On Sept. 1 Laundrie arrived back in Florida at his parents' home alone. On Sept. 11, Petito's family filed a missing persons report. 

 Amid COVID-19, 343 More Mass Shootings Than Expected

There were 343 mass shootings more than expected during the pandemic. So says a research letter published this week in JAMA Network Open that analyzed Gun Violence Archive's count of mass shootings — defined as four or more injured — from January 1, 2014, through June 30, 2021. Tracking shootings from April 16, 2020, through June 2021, the authors said that the above average rates of mass shootings led to 217 more deaths and 1,498 more injuries.

Over the 15-month study period, the additional 0.8 mass shootings per day meant 0.5 more people killed and 3.4 more injured per day. The increase was "consistent with the notion that mass shootings, an extreme form of violence, may be influenced by social and economic factors," the researchers wrote, noting the pandemic's "sudden and additional psychological and financial strains across society."

 New Migrant Crisis: Haitians Sleep Under Texas Bridge

Thousands of Haitian migrants who have crossed the Rio Grande River are sleeping outdoors under a border bridge in South Texas, creating a humanitarian emergency and a logistical challenge U.S. officials call unprecedented, reports the Washington Post. Authorities in Del Rio say more than 10,000 migrants have arrived at the impromptu camp, and they are expecting more. The influx has presented the Biden administration with a new border emergency at a time when illegal crossings have reached a 20-year high and Department of Homeland Security officials are straining to resettle more than 60,000 Afghan evacuees. The migrants arriving at Del Rio appear to be part of a wave of Haitians heading northward, They have embarked on a grueling, dangerous journey to the United States with smuggling organizations managing the trip, according to border authorities and refugee groups.

More than 29,000 Haitians have arrived over the past 11 months, including some in mixed-nationality families with children born in Brazil, Chile or other South American nations. They have trekked through the jungles of Panama's Darien Gap, navigated migrant camps and criminal gangs in Central America, and dodged border guards and troops along highways of southern Mexico. Some say the economic toll of the pandemic pushed them to leave. Others see a more welcoming U.S. administration offering them a fleeting opportunity to reach the U.S. The Biden administration has curtailed deportation flights to Haiti after the assassination of President Jovenel Moïse in July and an earthquake Aug. 14 that killed more than 2,000. The U.S. is scrambling to send additional agents to Del Rio to help process the migrants, issuing them numbers as they queue up to be formally apprehended, the first step in applying for asylum or another form of U.S. protection. Most of the migrants are likely to be released into the U.S. with a notice to appear in court later. Along the banks of the Rio Grande on Thursday, hundreds of migrants waded through knee-high water along a concrete spillway, moving between the camp and shops on the Mexican side. They carried ice, plates of food and other supplies. 

 Federal Prisons Reviewing Trump Transgender Inmate Policy

The Justice Department is reviewing its policies on housing transgender inmates in the federal prison system after the Trump administration rolled back protections for transgender prisoners, the Associated Press reports. The federal Bureau of Prisons’ policies for transgender inmates were put into the spotlight this week after a leader of an Illinois anti-government militia group who identifies as transgender was sentenced to 53 years in prison for masterminding the 2017 bombing of a Minnesota mosque. Emily Claire Hari, who was convicted as Michael Hari, was sentenced or the bombing of Dar Al-Farooq Islamic Center in Bloomington, Minnesota. It will now be up to the Bureau of Prisons’ Transgender Executive Council — a group of psychology and correctional officials — to determine where to house Hari among the 122 federal prisons.

Under the Obama administration, the bureau’s policies for transgender inmates called for that council to “recommend housing by gender identity when appropriate.” That language was changed in the Trump administration to require the committee to “use biological sex as the initial determination.” The Trump manual, which remains in effect, says the agency would assign an inmate to a facility based on identified gender only “in rare cases.” About 1,200 inmates — of the nearly 156,000 federal prisoners in the United States — identify as transgender. Because Hari has already been sentenced, the council must decide quickly on a prison. A Justice Department spokesperson said the bureau is committed to providing all inmates with a safe and humane environment, “Including providing gender-affirming housing where appropriate. BOP is in the process of reviewing the current version of its policy regarding transgender inmates.”

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