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The Appeal’s Favorite Stories of 2018

Our staff picks 12 stories worth reading (or rereading) before the new year.

Photo illustration by Anagraph. Photo by arturbo/Getty.

The Appeal’s Favorite Stories of 2018

Our staff picks 12 stories worth reading (or rereading) before the new year.


We’ve had a busy year at The Appeal, covering the criminal justice system from the ground up in cities and counties across the country. We’ve exposed some of the key players and policies driving mass incarceration, and highlighted the powerful work of those pushing for reform. As we near the end of 2018, we asked our staff members to choose their favorite stories.

Scott Heins for The Appeal

Policing

  • Melissa Gira Grant and Emma Whitford’s reporting on Yang Song, a Chinese immigrant and sex worker, brought to light troubling omissions in the NYPD’s narrative of her death. The authors’ account, piecing together the testimony of families and neighborhood residents, indicated that Yang Song may have been sexually assaulted by a law enforcement official (or someone posing as one) and pressured to become an informant before her alleged suicide. This context raised questions about what really drove Song to her death, and the larger policing practices that made her feel so desperate in the first place. (George Joseph, staff reporter)
  • In a searing look at local law enforcement’s role as foot soldiers for federal immigration policy, Debbie Nathan explored how federal funds meant to fight serious crimes like narcotrafficking and terrorism are being used to profile undocumented immigrants. She highlights the heartbreaking story of Jorge Arroyo, who was detained by a sheriff’s deputy during a routine traffic stop and turned over to ICE. (Aviva Shen, senior editor)
Illustration by Ariel Davis

Prosecution

  • For this piece, George Joseph investigated how a federal gun prosecution pipeline under former Attorney General Jeff Sessions affected the lives of Black people living in Alabama. The story is an important look into how gun control measures and a focus on “violent” offenders can destroy the lives of everyday people trying to survive. (Raven Rakia, staff reporter)
  • This article by Katie Rose Quandt stood out to me because it took readers inside a felony murder case. It clearly explained felony murder rules to the uninitiated, and also the inner workings of the court from a juror’s perspective in relation to this case. I was drawn into the storytelling as if I was right there with the people Quandt spoke with for the piece. The story has a happy ending, too: This month, Colorado Governor John Hickenlooper commuted Curtis Brooks’s sentence. (Malecia Walker, senior copy editor)
  • In the past 20 years, the number of people annually sentenced to death has dramatically declined. That’s because defense teams have improved, thanks largely to new members, the mitigation specialists, who do profound investigations into defendants’ lives and create empathy among juries. As a former mitigation specialist myself, I was impressed at how well this article by Maura Ewing describes the work. (Debbie Nathan, senior staff reporter)
Photo illustration by Anagraph. Photo by Justin Merriman / Getty Images

Incarceration

  • George Joseph and Simon Davis-Cohen wove a powerful narrative about Mario Ramos, a man who has spent decades on Rikers Island and in mental institutions, that showed how individuals with mental illness suffer in New York’s justice system. Ramos has been transferred between jail and mental institutions dozens of times, yet he is still not capable of standing trial. As the authors note, at any given point, more than 40 percent of Rikers’s population is mentally ill, so Ramos’s story paints an important picture of a widespread problem. (Kira Lerner, staff reporter)
  • The prison strike was one of the year’s major stories in activism, but it was clouded by the opaqueness and secrecy of prison administrators. In that context, Raven Rakia’s “Why Prisoners Are Striking Today” was an essential guide to learning about the demands of the strikers and the terrible conditions they were protesting. (Daniel Nichanian, senior research and editorial fellow)
  • Illness is the leading cause of death in America’s jails and prisons, but many of those deaths could be prevented with adequate medical care. In “Just Let Him Kick,” Elizabeth Weill-Greenberg provided a detailed portrait of how people suffering from chronic illnesses behind bars often fail to receive the care they need. (Ethan Corey, researcher/fact checker)
  • In “Worse Than Guantánamo,” Kira Lerner introduced us to Sheriff R.L. “Butch” Conway of Gwinnett County, Georgia, who frequently used a “Rapid Response Team” to punish even minor disturbances with violent force. The story managed to convey both the brutality of life in this particular jail and, more broadly, the sometimes dangerous power of sheriffs. (Cassi Feldman, senior editor)
Scott Olson / Getty

Commentary

  • Character assassination is pervasive in media coverage of Black victims of violence. In “Against Innocence,” Zoé Samudzi exposed and rejected the idea that “only ‘innocent’ and uncomplicated victims deserve justice and safety.” (Crystal Maloney, social media editor)
  • This year provided no shortage of stories of sexual violence survivors feeling ignored or doubted by prosecutors and judges. So when Judge Rosemarie Aquilina sentenced Larry Nassar, it was a national event; to some, her judgment sounded like righteous feminist fury. In this piece, Kelly Hayes and Mariame Kaba took on the considerable task of breaking down why punishment is not justice. (Melissa Gira Grant, senior staff reporter)
  • The Appeal has published some incredible reporting this year, and has done a great job of centering real people affected by our criminal legal system. But I also find the pieces that contextualize that system more broadly to be invaluable. John Pfaff is one of the people who over the past few years has dramatically reframed the way I think about the criminal justice system, and I love this piece of his about what we value—and what we don’t. (Josie Duffy Rice, senior staff reporter)

In 2018, Activists Transformed ‘Tough on Crime’ from Asset to Liability

A series of electoral victories signals a nationwide shift.

From left: St. Louis County Prosecuting Attorney Bob McCulloch; former Sheriff Donnie Harrison of Wake County, North Carolina; and Sheriff Rich Stanek of Hennepin County, Minnesota, all lost re-election bids this year.
Photo illustration by Anagraph. Photos via Michael B. Thomas/Getty Images (left), Wake County Sheriff/Twitter, and Sheriff Rich Stanek

In 2018, Activists Transformed ‘Tough on Crime’ from Asset to Liability

A series of electoral victories signals a nationwide shift.


St. Louis County Prosecuting Attorney Bob McCulloch was thrust into the national spotlight after Ferguson police officer Darren Wilson killed Michael Brown in August 2014. But while McCulloch faced protests for protecting Wilson in the ensuing months, he had nothing to worry about when it came to his own re-election race. He had already vanquished his primary opponent by 43 percentage points, and was unopposed in the general election. Weeks after securing a seventh term that November, McCulloch announced that Wilson would face no charges.

“On the night of the non-indictment, my prayer was that I would have an opportunity to be directly involved four years later in changing history,” recalled Reverend Dr. Cassandra Gould, the executive director of Missouri Faith Voices. “Last year, we decided that [the 2018 St. Louis] prosecutor race would be the biggest thing that we would work on this year. … We saw this race as being very pivotal in restoring hope to the community and in changing the course of history.”

The grassroots work of Missouri Faith Voices and other organizations shook St. Louis this year. In August, McCulloch lost his bid for an eighth term to Ferguson City Council member Wesley Bell, and that was just one in a series of upsets that befell entrenched incumbents this year.

While 2018 did bring significant setbacks for those who aim to reverse the country’s punitive practices—from the Trump administration’s aggressive immigration policies to the likelihood that federal and state courts grew more hostile to reform—criminal justice reformers nationwide also redefined expectations for what is achievable through local and state politics.

Organizers saw unprecedented success connecting the injustice experienced by residents with the power exercised by local officials. And some of these officials owned up to the vast authority they possess and took steps to confront mass incarceration head on, providing examples of how to circumvent these debates’ usual third rails in the future.

‘An unprecedented year of organizing’

District attorneys and sheriffs rarely face stiff competition, but something was in the air in 2018.

McCulloch became prosecutor of St. Louis County in 1991. Donnie Harrison, known for abusive policing practices and for targeting immigrants, was first elected sheriff of Wake County, North Carolina, in 2002. Rich Stanek, who helped ICE as the sheriff of Hennepin County, Minnesota, has been in office since 2007.

All three lost their re-election bids this year, having drawn substantial protests and community organizing against their policies. And others who lost (like the appointed district attorney in Berkshire County, Massachusetts, and Milwaukee County’s acting sheriff) were the heirs of longtime incumbents like Milwaukee’s David Clarke who had proved impossible to dislodge in cycles past.

Multiple organizers attributed these victories to broader engagement in their communities and to more receptive audiences for their arguments, as well as to renewed coordination among groups looking to transform local politics.

“This has been an unprecedented year of organizing, with different kinds of people who are not the usual suspects coming out against family separation locally,” Andrew Willis Garces, the organizing coordinator for American Friends Service Committee and Siembra NC, said of efforts to push back against cooperation with ICE in Alamance County, North Carolina. Although the county’s longtime sheriff Terry Johnson was re-elected while running unopposed in November—many officials who were cooperating with ICE outright lost in the 2018 elections—he announced soon after that he was dropping his bid to join ICE’s 287(g) program amid vocal mobilization against it.

“The vast majority [of people] are totally new to organizing, but they all have a personal relationship to the issue,” Garces added.

Similarly, Gould of Missouri Faith Voices said that participation by people directly involved in the criminal justice system proved decisive in transforming the St. Louis conversation. “People who are impacted know it’s not just their stories,” she said. “But rarely do they get to tell their story, and rarely do people care enough to listen to their story. … We were able to connect the story of their pain to their opportunity to make something different happen.”

Campaigns led by formerly incarcerated individuals, such as the Florida Rights Restoration Coalition and Louisiana’s Voice of the Experienced, also made major inroads elsewhere in the country.

Groups with different messages and tactics benefited from coordinating efforts more tightly than they had in the past, according to Gould in regard to St. Louis and Christine Neumann-Ortiz, executive director of the Milwaukee-based immigrants’ rights group Voces de la Frontera. “We created a joint platform with the reforms that we wanted to see” in the Milwaukee sheriff’s office, said Neumann-Ortiz. “That brought a broader group of people together and really united the Black Lives Matter movement and the immigrants rights’ movement. It was a solid coalition that formed to have this broader vision of change that we wanted. … There was a natural synergy. It was a galvanizing moment.”

‘Go where reforms are most needed’

The country has largely moved away from the era in which politicians compete based on who is more “tough on crime.” Many public officials now call for reducing stratospheric incarceration rates.

But this goal will remain difficult to achieve as long as reform proposals concentrate on how to deal with low-level offenses like drug possession. According to a report by the Prison Policy Initiative, a majority of the people incarcerated in state prisons have been convicted of offenses classified as violent—a reality that calls for changes still perceived as politically risky.

But in 2018, some officials signaled that it may be possible to push further in transforming the criminal justice system.

The era of trying to get away with the highest charge regardless of the facts is over.Larry Krasner, District Attorney of Philadelphia

The California legislature, for instance, narrowed the circumstances under which an individual can be convicted of murder for a homicide they did not commit and enabled existing convictions obtained under the prior felony murder doctrine to be vacated; it required that children under 16 remain in the juvenile justice system without allowing exceptions for higher-level offenses; and it reduced sentencing guidelines for individuals already convicted of some serious felonies.

“The legislature is for the first time rethinking the way we react to violent behavior,” Anne Irwin, the director of Smart Justice California, told The Appeal in October after Governor Jerry Brown signed those three bills. “That broad recognition that mass incarceration is not a good thing and is not keeping us safe is now extending to even crimes of violence.” Irwin called for policies that are geared toward rehabilitation and repair, “so that even those folks have a shot at redemption after they have paid their debts and committed themselves to changing.”

Larry Krasner, who became district attorney of Philadelphia this year, has also implemented changes to how homicides are prosecuted.

Amid national efforts to curb excessive sentencing such as the Sentencing Project’s Campaign to End Life Imprisonment, which calls for maximum sentences of 20 years, Krasner has questioned the expectation that prosecutors should pursue life without parole sentences, and encouraged filing lower charges and seeking less severe pleas. “The era of trying to get away with the highest charge regardless of the facts is over,” he told Maura Ewing in Slate. These policies follow other changes Krasner put in place after taking office in January.

“A lot of the reforms that we see around the country are not going to do much to dismantle mass incarceration,” said Ashley Nellis, a senior research analyst at the Sentencing Project. “They’re a great first step, but we have a serious incarceration problem on our hands, and Pennsylvania is a great example of that.” Nellis pointed out that 16 percent of Pennsylvania’s prison population is serving a life sentence or a sentence of 50 or more years, a number that’s partly due to the state’s mandatory sentences of life without parole for anyone convicted of first- or second-degree murder.

“If we’re serious about criminal justice reform, we have to go where reforms are most direly needed,” Nellis said in praise of Krasner’s policies.

Still, it remains a norm to carve out large categories of offenses from criminal justice reforms. In November, for instance, the New Jersey attorney general instructed law enforcement agencies to stop honoring requests made by ICE that individuals be detained beyond their scheduled release date; courts have repeatedly ruled that such requests are unconstitutional. Yet the attorney general also allowed for exceptions for individuals charged with “a violent or serious offense.” Immigrants’ rights advocates told The Appeal that these requests are no less unlawful.

The ranks of officials who shun facile distinctions between groups of defendants are nevertheless growing. “We can’t exclusively focus on nonviolent offenders,” Rachael Rollins, Boston’s incoming district attorney, wrote in a candidate questionnaire during her campaign. “We need to start having hard conversations about violent offenders and what we are doing to make sure that when they return to the community they have the tools necessary to re-enter successfully.”

What lies ahead

The interplay between emboldened organizers and the new public officials elected in 2018 will be crucial to the landscape of criminal justice reform in 2019 and beyond.

“We want to be in conversation with [Wesley Bell], and remind him of the pain of the people, remind him of why it was necessary to elect him so that things don’t stay the same,” Gould told The Appeal about the incoming prosecutor of St. Louis County. “We don’t expect St. Louis County to be run the same way in two years that it was run over the past 27 years.”

“I also believe that, even beyond the prosecutor in St. Louis County, we put elected officials on notice that the power still rests with the people,” Gould added.

Looking back on 2018

Looking back on 2018


What you’ll read today

  • Spotlight: Looking back on 2018

  • Louisiana strip club dancers fear more crackdowns as ‘Anti-Trafficking’ law goes into effect

  • Video shows Baton Rouge police pinning man to the ground and beating him

  • Back-to-back jail deaths rock small Utah county

  • Pretrial detention costs $15 billion a year

  • Arrests under a constitutionally suspect statute put people at risk of deportation

  • Who, and what, does Pennsylvania’s DA association stand for?

In the Spotlight

Looking back on 2018

This year was not short on big news stories, including those about the courts and justice systems. Supreme Court Justice Anthony Kennedy retired and Brett Kavanaugh was nominated to replace him. We explored what Kavanaugh’s nomination would mean for criminal justice and what Kennedy’s departure meant for challenges to the torture of solitary confinement. After the sexual assault allegations against Kavanaugh came to light, many expressed discomfort with the idea of a teenager’s actions condemning him for life, revealing a blindness to how our criminal legal system actually operates. After a confirmation process that failed to meaningfully grapple with the accusations against him, Kavanaugh raged about how he was treated. We hoped his sense of grievance would translate into an appreciation of the ordeal that people accused of crimes go through.

The Trump administration brought America’s treatment of immigrants to a new low in many ways, including by ushering in a policy of family separation—a policy notable for its disregard for the humanity of children and families crossing the border but also in line with the long history of separation of parents and children in the criminal legal system. Pardons emerged as a tool of resistance to the deportation machinery. After a tenure marked by contempt for the human and civil rights of immigrants, victims of police abuse, and people of color, Jeff Sessions resigned as attorney general. Criminal justice and immigrant advocates might have cheered, but for his final attempt to gut police reform, and President Trump’s nomination of William Barr as his replacement. The First Step Act, which advances very modest reform and relies on problematic risk-assessment tools, was was signed into law by Trump today.  

There was also a multitude of important state and local stories—some that pointed toward progress in dismantling mass incarceration and others that showed how much work remains to be done. And while many did not make national headlines, they either signalled trends toward reform or highlighted the injustices of our systems of mass incarceration. While there are too many to summarize, here are a few of the stories and issues we explored.

Alabama ‘beach house sheriff’ pocketed money meant for meals for people in jail: Over three years, Sheriff Todd Entrekin of Etowah County took $750,000 from a source he called “Food Provisions” and used it to buy a $740,000 house. Under the law, what he did was legal. In the November elections, two Alabama counties voted to end the practice of sheriffs keeping money allocated to feed people in jail. Etowah County was not one of them.

Parole for Herman Bell and a backlash: It has become increasingly clear that significantly reducing the country’s prison population is only possible if we revisit decades-long or life sentences for people convicted of violent offenses. In March, the New York State Parole Board granted the release on parole of 70-year old Herman Bell. Bell was incarcerated for 44 years for the 1971 killing of two police officers. His release was consistent with the board’s recently-adopted rules and the law, and with, as Bruce Western and Bernard Harcourt wrote shortly after, “a belief that debts can be paid, and those who have caused terrible pain to others, like Bell, are nevertheless worthy of redemption.” The backlash was predictable from some quarters (the police union) and deeply troubling from others (New York City Mayor Bill de Blasio).

In coal country, opposition to a toxic prison: Plans to build a federal prison in Letcher County, Kentucky, were approved in late March. The project has powerful congressional backers, but also faced sustained local opposition. The plans moved ahead despite concerns about the environmental and health consequences of so-called toxic prisons—in this case, one built on a mountaintop coal removal site. It is now the subject of a federal lawsuit brought by the 21 incarcerated people represented by the Abolitionist Law Center. There is still strong local opposition. One challenged the claim that prisons drive economic growth, telling Courthouse News: “If prisons were good economic development for rural America, rural America would be doing better.”

How local crime reporting promotes law enforcement narratives: An article in Popula described how local crime reporting “skews heavily toward the narratives of police and prosecutors.” Adopting law enforcement narratives can feed into readers’ worst instincts and can reflect bias, given that newsrooms remain overwhelmingly white. Hunter Pauli reflected on his time as the lone crime reporter at a daily paper in Butte, Montana. “I found the process for deciding which poor residents of my city to shame completely arbitrary,” he writes. And the permanent shaming—a person’s contacts with the criminal legal system then become the first results in any web search—has no upside. “No one becomes a more informed member of their community after 30 seconds spent reading a story about a homeless woman who shoplifted meat,” Pauli pointed out. This week, the editor of the Mississippi Sun Herald, Blake Kaplan, wrote directly to readers explaining why the publication will now cover crime differently.“What is good for us may not be what is good for South Mississippi,” he said.

Accountability in Chicago over Laquan McDonald’s killing: Chicago police officer Jason Van Dyke was found guilty of second-degree murder for the killing of 17-year old Laquan McDonald in 2014. The city’s efforts to conceal video of the shooting rocked Chicago and led to seismic political consequences, including Mayor Rahm Emanuel’s announcement that he will not seek re-election next year. In October, nearly four years after the shooting, Van Dyke was found guilty of second-degree murder, an unprecedented conviction for a Chicago police officer. The trial of three of the officers who covered up Van Dyke’s actions concluded before a judge in early December. The judge has said she will announce her verdict Jan. 15.

And, finally, the elections: Blue wave aside, there was a tide of criminal justice victories on Nov. 6. With the Appeal: Political Report, we previewed many of the most significant local and state races, through special editions on attorney general races, law enforcement races, and ballot initiatives. In the Political Report, Daniel Nichanian highlighted the significance of North Carolina sheriffs’ decisions to withdraw from ICE’s 287(g) program and end cooperation with the agency. Rachael Rollins, who won her race for Suffolk County, Massachusetts, district attorney, announced a plan to stop prosecuting 15 low-level offenses. Wesley Bell ran as a reformer in St. Louis and unseated seven-term incumbent Robert McCullough.  

Stories From The Appeal

 

Dancers and supporters rally at the Louisiana Statehouse [Lyn Archer]

Louisiana Strip Club Dancers Fear More Crackdowns as ‘Anti-Trafficking’ Law Goes Into Effect. A ban on dancers under 21 raises questions about the growing role of the state’s Office of Alcohol and Tobacco Control in policing clubs. [Melissa Gira-Grant]

Video Shows Baton Rouge Police Pinning Man to the Ground and Beating Him. The officers were part of the department’s Street Crimes Unit, known among residents for its aggressive patrols. [Daryl Khan and Clarissa Sosin]

Back-to-Back Jail Deaths Rock Small Utah County. Two women died at the Duchesne County Jail in the span of about one week in 2016. Now their families are suing in federal court. [Lauren Gill]

Stories From Around the Country

Who, and what, does Pennsylvania’s DA association stand for? Larry Krasner quit the Pennsylvania District Attorneys Association (PDAA) in November, faulting it for pushing regressive policies. One of the PDAA’s activities is to lobby for or against legislation that touches on criminal justice, ostensibly on behalf of state prosecutors. The Appeal: Political Report reviewed two years’ worth of public statements from the PDAA to determine what policies it has supported and who it speaks for. “As a growing number of reformers take office as prosecutors, they … have blurred expectations that there is such a thing as the prosecutors’ side in criminal justice debates,” Daniel Nichanian writes. “But the PDAA’s public role and rhetoric don’t bear significant traces of these changes.” The association supported a series of bills to toughen sentencing and opposed measures to facilitate post-conviction relief. And its views are often presented in the media and in its own statements as the perspective of law enforcement writ large, which strengthens its authority but does not do justice to the range of views regarding prosecutorial practices. Turahn Jenkins, who is running for district attorney in Pittsburgh, told the Political Report that he might quit the PDAA as well if elected. [Daniel Nichanian / The Appeal: Political Report]

Arrests under a constitutionally suspect statute put people at risk of deportation: The number of people arrested for “loitering for purposes of prostitution” in 2018 was more than four times as many as in 2017, according to reporting by Jezebel  and Documented. More than half the arrests were in heavily immigrant neighborhoods in Queens, putting many of those arrested at risk of deportation. The uptick in arrests is in conflict with a 2017 NYPD initiative to build trust with immigrants, including potential victims of human trafficking and intimate partner violence. Plaintiffs in a class action lawsuit argue that police target trans people and people of color for arrest. Bianey Garcia, an organizer with the Trans Immigrant Project at Make the Road New York, pointed out the grave dangers that can follow: “An unjustified arrest can end in the deportation of trans women who have fled their countries due to violence.” Several state senators have said they would support a bill to strike the statute from the criminal code. [Emma Whitford / Jezebel and Documented]

Pretrial detention costs $15 billion a year: A new report by the Hamilton Project at the Brookings Institution looks at the cost of incarcerating nearly half a million people pretrial. The report’s authors estimate the cost at $15.3 billion per year, including the $11.7 billion it costs to jail people and the lost income and economic output of those jailed. It notes that the overwhelming majority of people in jail are considered eligible for release, but cannot afford the cost of money bail. And since incarcerating people pretrial makes it significantly more likely that they will plead guilty, it leads to the costs of those additional convictions, which include decreased wages, employment rates, and annual earnings. [Patrick Liu, Ryan Nunn, and Jay Shambaugh / Hamilton Project]

Thanks for reading. We’ll see you on Jan. 2.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

ICE Is Using Driver’s License Applications To Arrest Immigrants

More states are giving undocumented immigrants driver’s licenses, but many DMVs are sharing their information with ICE.

Photo illustration by Anagraph. Photo by asiseeit/Getty Images

ICE Is Using Driver’s License Applications To Arrest Immigrants

More states are giving undocumented immigrants driver’s licenses, but many DMVs are sharing their information with ICE.


One day in June 2017, Gladys Díaz got an unusual call from a stranger. At the time, Díaz and her partner, Baltazar Aburto Gutiérrez, were living in Ocean Park, a town of about 1,800 people on the Pacific coast of Washington State. Both were undocumented Mexican immigrants. Aburto Gutiérrez worked for a seafood company, harvesting clams in tidal mud flats. He and Díaz were raising three daughters.

The girls had started making piñatas with Díaz, who was selling them online. The caller said he wanted one and asked Díaz to bring some piñatas to a parking lot. Aburto Gutiérrez was suspicious, but Díaz went anyway. The caller turned out to be an ICE agent. He arrested her and she was deported to her hometown, near Puerto Vallarta, in Mexico.

In November 2017, the Seattle Times interviewed Aburto Gutiérrez about the piñata sting’s trauma to the family. Days later he, too, was arrested. He recalled the ICE agent explaining that “My supervisor asked me to come find you because of what appeared in the newspaper.”

To arrest Aburto Gutiérrez, ICE enlisted help from an unexpected agency: Washington’s Department of Licensing (DOL). The state allows people to use foreign passports and birth certificates to apply for a driver’s license, and Aburto Gutierrez had submitted his Mexican birth certificate. The DOL communicated this fact to ICE, who cited it as their probable cause. After Aburto Gutiérrez’s arrest, the Seattle Times discovered that ICE was regularly working with the DOL to arrest undocumented people in northwest Washington.

Driver’s license bureau cooperation with ICE goes beyond Washington. Additional investigations by immigrants’ rights organizations and government agencies, including the Vermont Human Rights Commission, have revealed that drivers license bureaus in other states have shared information that ICE has used to arrest people for alleged violations of immigration law. Advocates are now pushing back against the practice, even as they work to increase the number of states that let undocumented immigrants drive.  

Driving legally — and facing backlash

As recently as the 1990s, immigration status was not an issue when someone applied for a driver’s license. But in 1996, the Clinton administration enacted an immigration reform law which allowed states to deny licenses to people who were undocumented. Soon undocumented immigrant drivers without licenses, particularly in heavily automobile-dependent areas, were living in terror of being stopped and turned over to ICE and Border Patrol.

But by 2013, legislators in some states were responding to data showing that allowing undocumented immigrants to drive legally not only prevents deportations, but also improves road safety, lowers car insurance costs, and boosts local economies as travel to school and work gets easier. Today 12 states, Washington D.C., and Puerto Rico allow undocumented immigrants to get drivers licenses.

But motor vehicle department sharing of undocumented immigrants’ driver’s license data with ICE has enabled ICE to apparently retaliate against people who have criticized the agency, like Aburto Gutiérrez. The sharing has also led to the arrest of people who have never spoken out publicly against ICE. Two lawsuits have recently been filed to address both of these issues—one in Washington state and the other in Vermont.

Baltazar Aburto Gutiérrez
Baltazar Aburto Gutiérrez

After Aburto Gutiérrez’s arrest in Washington in late 2017, outspoken immigrants’ rights activist Maru Mora Villalpando received a letter telling her that she was deportable.  Mora Villalpando is from Mexico and is well-known in Washington for her work supporting hunger strikers at ICE’s detention center in Tacoma. She later learned that ICE had gotten her address from the DOL.

Following media attention to Mora Villalpando’s and Aburto Gutiérrez’s cases, Washington Governor Jay Inslee in January ordered the DOL to stop helping ICE with immigration investigations, and the DOL’s director resigned in June, citing family reasons. Months later, in October, three immigrants’ rights organizations sued the Department of Homeland Security and ICE, accusing them of violating the free speech rights of immigrants and immigrants’ rights groups.

Flouting privacy protections

A similar suit was filed in November in Vermont. That state introduced a driving permit in 2014 whose application does not require a U.S. passport, birth certificate, or social security card. But within months after the permit became available, employees at Vermont’s Department of Motor Vehicles (DMV) were sharing information with Border Patrol and ICE about people with foreign-sounding names, according to documents that Migrant Justice, a Vermont immigrants’ rights group, received after filing an open records request.  The DMV suspected them of living outside the state and fraudulently requesting Vermont licenses, but ICE often used the data to make arrests for immigration violations.

Vermont’s Human Rights Commission investigated, and in 2016 the DMV was prohibited from giving information to ICE without a subpoena or evidence of a criminal investigation. Yet 
the sharing continued.

Migrant Justice has organized Vermont dairy workers to improve pay and working conditions and pay on farms and from the state’s storied ice cream company, Ben & Jerry’s. The organization is loudly critical of ICE. It is also politically influential. In 2017, Vermont’s attorney general appointed Migrant Justice leader Enrique “Kike” Balcazar Sanchez to his Immigration Task Force.

ICE by then had started asking the DMV for data from Migrant Justice Center members’ license applications. The DMV complied, and someone in the office wrote on Balcazar Sanchez’ application: “UNDOCUMENTED.” ICE arrested him in March 2017.

The National Immigration Law Center, or NILC, is a Los Angeles-based advocacy group that supports driver’s licenses for undocumented people. The NILC  recommends that state motor-vehicle departments receive court orders or subpoenas before sharing information with ICE for criminal investigations; and they should refuse to assist with immigration investigations. NILC attorney Tanya Broder told The Appeal that it’s important to promote these protections for immigrants, because several more states may soon allow undocumented people to get licenses, including New Jersey, New York, Minnesota, Michigan, and Rhode Island.  

The current lawsuit filed in Washington against ICE and homeland security discusses the arrest of immigrant clam digger Baltazar Aburta Gutiérrez. But by the time the case is decided, he may be gone from the country. He was released on bond from immigration detention in January, and his attorney, Stephen Robbins, told The Appeal that he is scheduled for an immigration court hearing in 2021. In the meantime he still lives in Washington, near the Pacific coast. His deported partner, piñata maker Gladys Díaz, is with the couple’s daughters. They also live near the Pacific now—but in Mexico, almost 3,000 miles away.

Louisiana Strip Club Dancers Fear More Crackdowns as ‘Anti-Trafficking’ Law Goes Into Effect

A ban on dancers under 21 raises questions on the growing role of the state's Office of Alcohol and Tobacco Control in policing clubs.

Dancers and supporters rally at the Louisiana Statehouse
Lyn Archer

Louisiana Strip Club Dancers Fear More Crackdowns as ‘Anti-Trafficking’ Law Goes Into Effect

A ban on dancers under 21 raises questions on the growing role of the state's Office of Alcohol and Tobacco Control in policing clubs.


In Louisiana, a hotly contested law went into effect this month: Strip clubs that serve alcohol may no longer employ women ages 18, 19, or 20 as erotic dancers.

The age ban, passed in 2016, was sold as an anti-trafficking effort, but it was immediately challenged as unnecessary and unjust by three women, on the grounds that it violated their constitutional rights. In court filings, the women said the ban would not only cause dancers like them to lose a source of income, but they would also be cut off from legal venues for sex work, ones where they said they felt safer.

Though the age ban is only now going into effect, the crackdown on dancers in New Orleans started much earlier. In response to what the Louisiana Office of Alcohol and Tobacco Control (ATC) described as complaints about “possible human trafficking” in the French Quarter, the agency joined the New Orleans Police Department to raid eight strip clubs there in January, and raided another three in New Orleans East in August. The agency has variously described these raids as investigations into drug trafficking, sex trafficking, and prostitution.

While the agency has offered no evidence of human trafficking, the raids have clearly brought harm to dancers: The January raids put hundreds out of work until the clubs could regain their liquor licenses. Two of the raided clubs have shuttered permanently.

“What is happening is almost exactly as I predicted it,” said Lyn Archer, a dancer and organizer in New Orleans. ATC is taking a leading role in policing strip clubs, and Archer sees their enforcement methods as proof the agency wants more clubs to close and more dancers out of work. “They know that we don’t believe our work should be a crime, and they do believe that it should be,” Archer told The Appeal. “They believe punishment is a deterrent.”

ATC and trafficking

The dancer age ban was backed by politically influential anti-human trafficking advocates, who said such a law was needed to protect women. Madeleine Landrieu, dean of the Loyola University law school and sister of former New Orleans Mayor Mitch Landrieu, was a driving force behind the law, as was the New Orleans branch of Covenant House, a homeless-youth services provider that co-leads a Department of Justice-funded anti-trafficking task force. Landrieu claimed to The Appeal in January that strip clubs are “a gateway or a pathway [to trafficking] for women.”

Yet, ATC has not announced any instances of trafficking it unearthed as a result of the raids, “The investigations are currently ongoing,” said Michelle Burks-Augustine, a spokesperson for the agency.

The sense of paranoia caused by the raids, dancers say, has now become a fear that any customer could be working undercover for law enforcement.

Months after the raids, dancers are now competing for fewer jobs at the remaining clubs. The clubs that managed to reopen after being raided had to agree to contract “secret shoppers” to monitor dancers’ work and report violations to ATC. The sense of paranoia caused by the raids, dancers say, has now become a fear that any customer could be working undercover for law enforcement. “I find myself watching my responses very carefully,” said Devin, a New Orleans-based dancer. “I’m always worried it’s going to cost me my job.”

Devin and other dancers say ATC’s approach to enforcement is punishing them for alleged human trafficking the agency has yet to find. In August, ATC noted that it was suspending one club’s liquor license for alleged violations related to dancers’ performances—as documented by undercover investigators—but also for failing to put up a human trafficking hotline poster. All adult businesses in the state are required to do so by law (along with every hotel, gas station adjacent to a highway, and “outpatient abortion facility”).

To restore their liquor licenses, two clubs were required by ATC to train all staff on identifying human trafficking. “I think by forcing that human trafficking training, it allows the girls to know when they’re being victimized and when they’re not,” ATC Commissioner Juana Marine-Lombard said at the time, adding that the agency would continue to investigate whether the dancers were trafficked.

Though ATC has taken a significant role in the state’s anti-trafficking enforcement fight, the agency has shown limited understanding of the issue.

Devin said such efforts were counterproductive. “It doesn’t make any sense, because it’s not helping,” she said. Not only have the raids targeted dancers, she told The Appeal, it’s not clear if or how they have helped people who may have been trafficked. “They have no proof that what they are doing is working.”

Though ATC has taken a significant role in the state’s anti-trafficking enforcement fight, the agency has shown limited understanding of the issue.

“Prostitution in and of itself is sex trafficking,” ATC Commissioner Marine-Lombard said at a press conference on the January strip clubs raids. (At the same press conference, New Orleans Police Department Superintendent Michael Harrison quickly added he doesn’t share that belief.)

On the webpage for ATC’s Human Trafficking Task Force, the agency asserts that “nearly 300,000 U.S. children are at risk of being trafficked,” which the Washington Post Fact Checker deemed a “bogus claim.” The page also states that the “average age of entrance into human trafficking is 12-14 years for girls,” a claim the Post has also debunked. The anti-trafficking organization Polaris, which operates the human trafficking hotline that ATC requires strip clubs to advertise, also says that claim has no basis.

Tensions flare

ATC says it works collaboratively with local and state police to fight trafficking. But the agency appears to have little interest in working with dancers, dancers say, or even hearing their concerns. At a meeting that Archer requested after ATC’s August raids, she and other dancers offered ATC Deputy Commissioner Ernest Legier alternatives to raids that would be less harmful to dancers and less disruptive to the club. They asked why ATC raided only at night, for instance, and why it was necessary to read dancers’ identification aloud publicly in the club with customers present during raids. Could the ATC make visits during the day? Could ATC agents instead ask for dancers’ employment records, held in the club offices, to confirm dancers’ identities?

Legier said the agency was duty-bound to enforce the law, according to several people at the meeting. And after a few minutes, he abruptly left.

The spaces to do other forms of sex work safely are being removed from us.Devin, New Orleans-based dancer

In correspondence to Archer provided to The Appeal, Legier later explained his actions. “I ended the meeting because it did not seem to be productive and some of your demands are not reasonable in light of the circumstances,” he wrote. “However, I relayed your concerns to the Commissioner and she would like more information on the ‘HARM REDUCTION APPROACH’ you proposed.”

Archer responded with a detailed list of questions about ATC’s raids, including, “How are officers trained to respond when they encounter a trafficked person?” After two months, when dancers had yet to hear from ATC again, Archer emailed Legier. He responded with a statement he said Commissioner Marine-Lombard asked him to forward, reiterating that ATC would continue to “surveil” the clubs, which owners had agreed to after ATC suspended their licenses. And Marine-Lombard concluded, without answering their questions, “I welcome an open and HONEST dialogue with respect to this issue. Your membership can play a very important role in assisting ATC’s effort to stop sex and drug trafficking.”

Legier told The Appeal that he ended the meeting when “it became clear” that the dancers present “would not admit proven allegations of illegal acts occurring on premises and criticized the agency’s approach to enforcing these violations.” He said he ultimately apologized, and that Marine-Lombard offered them a future meeting.

As to dancers’ concerns that the raids endanger them, he said, “The agency has an obligation to enforce the laws placed on the books by the governing authorities. Any citizen has the right to pursue changes by working with legislative representatives.”

But so long as ATC surveillance and raids continue, dancers say they create a riskier environment for those who had once relied on the clubs for work and now look to other kinds of sex work to survive. After the passage of SESTA/FOSTA in April, federal legislation targeting online sex work ads, “the spaces to do other forms of sex work safely are being removed from us,” Devin said. When there’s a raid on a club and it closes, she added, “it’s just moving people out onto the streets. It’s literally all that it’s doing.”

What Pennsylvania’s DA Association Stands for, Spotlight on Disenfranchisement in Nevada, and More

What Pennsylvania’s DA Association Stands for, Spotlight on Disenfranchisement in Nevada, and More


In This Edition of the Political Report

December 20, 2018:

  • Pennsylvania: Spotlight on the Pennsylvania District Attorneys Association

  • Missouri: How activists helped change St. Louis

  • Nevada: State prepares to reform its disenfranchisement rules, but will it go further?

  • New Jersey, New York, Oregon: Reviewing legislative debates

You can visit the Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration.

Pennsylvania: Spotlight on the Pennsylvania District Attorneys Association

Philadelphia District Attorney Larry Krasner announced in November that he was leaving the Pennsylvania District Attorneys Association (PDAA), an organization that brings together the state’s prosecutors and assistant prosecutors and that lobbies in their name in the state capital.

Krasner, who has implemented ambitious reforms since taking office in January, explained his departure by denouncing the policies advocated by the PDAA as regressive. “They have been claiming that Philadelphia supports this absolute nonsense, this throwback set of policies, and we do not,” he said in a speech. “The [PDAA] will not claim legitimacy of its most important criminal justice jurisdiction and try to take us back 40 years.”

As a growing number of reformers take office as prosecutors, they have increased awareness of the wide range of policies that DAs can enact and have blurred expectations that there is such a thing as the prosecutors’ side in criminal justice debates. But the PDAA’s public role and rhetoric don’t bear significant traces of these changes.

What policies has the PDAA supported?

The PDAA plays a major lobbying role in Harrisburg, the state capital, advocating for or against legislation and policy changes that touch on law enforcement practices. “I have found that Democrats and Republicans listen to them very closely,” said Elizabeth Rosol, the legislative director of the ACLU of Pennsylvania. “There is an ever-present concern about not wanting to rankle the DA’s association.”

The association took a public position on 16 bills and two specific policy debates in 2017 and 2018, based on my review of all press releases that it issued during those two years.

It championed a series of measures to make the law more punitive or criminalize a new action. These include reinstating mandatory minimum sentences, reinstating requirements that people convicted of sexual offenses sign up on a registry, increasing the gravity of offenses that involve fentanyl, and making it a misdemeanor to record courtroom proceedings. The PDAA typically presents such measures as essential to public safety. “Mandatory minimum sentences work to improve public safety: they help to keep the most dangerous offenders off our street,” the PDAA writes in one press release.

Conversely, it objected to bills that facilitated post-conviction relief and DNA testing, denounced a report critical of the death penalty, and raised concerns about proposed prison closures. It has also issued more generalized warnings about the goals of criminal justice reformers and about viewing the criminal justice system as structurally flawed. “We cannot… let one individual under very unique circumstances indict an entire system,” the group wrote in response to a press conference held by Governor Tom Wolf and the rapper Meek Mill after the latter’s release. “We caution against the wholesale elimination of appropriate consequences and accountability in the criminal justice system cloaked in the concept of reform.”

Who does the PDAA speak for?

In the media, PDAA pronouncements often get reified as the perspective of law enforcement writ large, as the view that reflects the experience of striving for safety and caring for victims.

Take a September article in the Morning Call about a report released by the Abolitionist Law Center against Pennsylvania’s use of life without parole sentences. The author turned to the PDAA for a perspective rebutting the study, and quotes its executive director as saying that murder “warrants the most severe sentence.” The article characterizes the pushback as follows: “[The report’s] conclusions were panned by law enforcement, which has long maintained that life without parole fulfills a promise made to the families of countless murder victims.” But this characterization is contradicted by the reforms that Krasner was concurrently putting in place in Philadelphia to change the approach of his DA’s office to homicide cases and minimize life sentences.

“Because they’re speaking as the association, my strong belief is that legislators often assume that it’s all DAs saying that to them—and that matters,” said Rosol. “Some of their power derives from the assumption that their positions are held uniformly and unanimously by all district attorneys who remain in the association, but I don’t know if that’s true.”

Montgomery County District Attorney Kevin Steele, the legislative chairperson of the PDAA, told me in an email through a spokesperson for the organization that “legislative and policy issues are discussed and decided upon through the PDAA’s Executive Committee.” The committee is a subset of the state’s district attorneys. “All of Pennsylvania’s 67 district attorneys are invited to participate in statewide business meetings twice each year,” Steele added. “These discussions help inform the Executive Committee’s decisions.”

When asked whether a PDAA statement is meant to reflect the view of all DAs, Steele said that “positions taken by the PDAA reflect the views of the Association. As with other associations, District Attorneys are free to disagree with such positions.”

This nuance can get lost in press coverage, as mentioned above, as well as in some PDAA pronouncements. In 2017, for instance, Bucks County District Attorney John Adams (who was then the PDAA president) delivered a testimony on behalf of the PDAA position calling for more severe sentences for fentanyl offenses. “We are in a crisis,” Adams said. “Pennsylvania’s district attorneys ask that you help us respond to it.” In another testimony, Cumberland County District Attorney and PDAA communications chairperson Dave Freed also spoke on behalf of his peers. “As prosecutors, our experience is that sex offender registries work and represent good policy,” he said. And in a press release calling for mandatory minimums to be reinstated, the association wrote that “law enforcement and prosecutors in Pennsylvania have seen a difference on the streets and in the courtroom without [longer sentences].”

Turahn Jenkins, who is challenging Stephen Zappala in Allegheny County (Pittsburgh) in 2019, told the Appeal: Political Report that if he wins he may emulate Krasner and leave the PDAA.

“The views and policies of the [PDAA] are partly responsible for many of the issues that plague our criminal justice system; their desire to restore mandatory minimum sentences & their failure to adopt innovative approaches to case dispositions being the most problematic,” Jenkins said in a statement emailed by a spokesperson. “Once elected, I will not seek inclusion in the PDAA unless the organization demonstrates a willingness to reconsider their policy positions and the negative impact they have on the citizens of the Commonwealth.”

You can find a standalone version of this story here.

Missouri: How activists helped change St. Louis

Wesley Bell ousted St. Louis County Prosecuting Attorney Bob McCulloch in August, four years after protesters assailed McCulloch’s actions after a police officer killed Michael Brown in Ferguson. Defeating McCulloch, who had been in office since 1991, involved years of sustained organizing on the part of activists who participated in the Ferguson protests. Last week, I talked to Reverend Dr. Cassandra Gould, the executive director of Missouri Faith Voices, about her work in St. Louis County and about what toppled the longtime prosecutor. You can read the full conversation here. Below is a brief excerpt:

Bob McCulloch had been in office since 1991. What do you think made his loss possible in 2018 when he had been winning for so long?

Our bet was that if we focus specifically on increasing the electorate by having conversations with voters of color and Black voters who don’t normally vote, we could increase turnout, and not just for the sake of one election. People could start taking ownership of their own community. We were knocking on doors and talking to young people, particularly in Ferguson, and asking them what they wanted to be different. We discovered that there was a sense of hopelessness in the situation. They felt that the system was completely against them and that they didn’t have an opportunity to change it. But we talked to people and we listened; people really started to come on board and to re-imagine what their community could look like. We made this big bet to do something different. Most campaigns focus on white swing voters, but we decided we wanted this to be the people’s campaign. We hired people who understood the criminal justice system. We had a young man run our canvassing campaign who was a formerly incarcerated person. We wanted people who had a stake in the game and understood the criminal justice system from the inside out.

What were the main messages you heard in your conversations during the campaign?

Particularly among young African Americans, it was about feeling harassed. I would say 98 percent of the people we talked to had some personal involvement with police, with traffic stops, with fines and fees, or if it wasn’t them it was some family member who was impacted by the system in very negative ways. We heard a lot about the amount of time they spent in jail waiting for a hearing or trial. Some people don’t know that, they don’t know what happens behind the curtain. Having people share those stories in public spaces made a tremendous difference…. People who are impacted know it’s not just their stories. But rarely do they get to tell their story, and rarely do people care enough to listen to their story, and many of them are not accustomed to the power of their story. Using their voice and engaging in a democratic process, it’s also a way to lift their voice. We were able to connect the story of their pain to their opportunity to make something different happen, as opposed to keeping it to yourself but not ever bringing it to light.

You can read the rest of our interview with Cassandra Gould here.

Nevada: State prepares to reform its disenfranchisement rules, but will it go further?

Nevada, which has some of the country’s strictest felony disenfranchisement laws, is changing its rules in January. But it will still retain a system that is harsh by national standards and will disenfranchise large numbers of residents.

These exclusionary rules will soon become the responsibility of state Democrats, who are set to take full control of Nevada’s government in 2019 for the first time since 1992.

Nevada is one of 12 states where people are still disenfranchised after completing a sentence. The upcoming reform (Assembly Bill 181) will keep Nevada on that list. While it will expand the groups who qualify for automatic rights restoration, anyone convicted of a higher-category felony and anyone with multiple convictions of whatever severity will remain disenfranchised even after serving a sentence. (AB 181 is thus weaker than Florida’s Amendment 4, which was adopted via referendum in November and does not contain the latter exception.)

All Nevadans who are incarcerated, on parole, or on probation will also remain disenfranchised. Other states are more inclusive on this front as well. Of the 13 states other than Nevada that will be under full Democratic control in 2019, seven enfranchise some or all such individuals.

AB 181 does make it easier for people to regain the franchise post-sentence if the reason they are barred from voting is a failure to meet the financial costs of probation or parole. That’s because it eliminates the rule that grants automatic eligibility to regain voting rights only to people who receive a so-called honorable discharge from probation or parole. “It’s a lot easier for people with money to finish their sentence honorably,” said Blair Bowie, a Campaign Legal Center fellow who has helped Nevadans regain their rights as part of the Restore Your Vote campaign. A dishonorable discharge can stem from many reasons, including an inability to pay court fines and fees.

By breaking the link between voting and honorable discharges, which Bowie calls a “hidden wealth barrier,” AB 181 will reduce the financial disparities in disenfranchisement.

That alone will cut into Nevada’s high rate of disenfranchisement. Four percent of Nevadans and 12 percent of African American Nevadans were disenfranchised as of 2016, a racial disparity is line with the vast inequality in the state’s incarceration system, according to a report by the Sentencing Project.

But Nevada will still disenfranchise tens of thousands come 2019.

“There’s definitely a movement toward getting rid of these outdated and punitive laws,” Bowie told me. “It’s great that Nevada is taking a small step in that direction, but there’s a lot more that they could do.”

According to Bowie, of the Nevadans whom Restore Your Vote assisted in 2018 only to discover that they were ineligible to have their rights restored, more were barred from voting because they had multiple convictions on their record than because of a dishonorable discharge. These people will still be disenfranchised under AB 181. Importantly, a wide range of offenses result in felony convictions; for instance, Nevada has a low threshold for when theft counts as a felony.

Those whose rights are not automatically restored have some other paths available to them, such as petitioning for an individual pardon. But those paths are “cumbersome and opaque,” according to Lauren Kaufman, an attorney at the ACLU of Nevada. “The process is so rare and obscure that no one really knows how to do the petitions,” Bowie agreed. Nevada restored the right to vote to less than 300 individuals over two decades through such post-sentence mechanisms, according to the Sentencing Project.

Nevada advocates also say that rules regarding who can vote are confusing enough that many people do not know that they actually are eligible, especially in the absence of adequate communication by the state’s public authorities. “We need a law that is so simple and so clear that you don’t need to get legal advice,” said Lonnie Feemster, the state director of the NAACP National Voter Fund.

Feemster called on Nevada to be bolder than just tweaking rights restoration rules or making the process easier to comprehend. “We shouldn’t try to make a law that’s essentially a holdover from the Jim Crow period into a law that’s understandable,” he told me. “We should get it eliminated, it shouldn’t be in the books.”

What are the prospects of future reform? AB 181’s legislative history signals political support for further steps. An early version introduced by Democratic leaders in 2017 automatically restored the rights of those who completed their sentence; restoration was to be immediate for most and to happen after two years for those convicted of more severe offenses. But the governor was Brian Sandoval, a Republican who had vetoed a similar bill in 2011, and so lawmakers weakened AB 181 to ensure passage. Sandoval signed it in June 2017. In January, Democrat Steve Sisolak will replace Sandoval.

None of the Democratic sponsors of AB 181 responded to requests for comment about whether they would push for more expansive reforms in the next session. Feemster said that he is advocating for Nevada’s legislature enfranchise everyone not presently incarcerated. He added that his own conversations with lawmakers made him optimistic that the state would “correct the really grievous wrong that has been done to citizens of Nevada and to African Americans in particular.”

If the legislature does not act, or even if it does while not going as far as voting rights advocates would like, Nevada allows for popular initiatives. In November, for instance, Nevadans enabled automatic voter registration by approving an initiative for which organizers had collected signatures.

You can find a standalone version of this story here.

Nationwide: Reviewing legislative debates

New Jersey: The legislature adopted a bill (Senate Bill 1036) that requires that all cases of people who are killed by police officers or who die while in custody to be investigated by the attorney General’s office rather than county prosecutors. “This bill is needed because like every institution where human interaction is at the forefront, there is a susceptible element of perceived corruption that can exist,” said Assembly member Britnee Timberlake. SB 1036 now needs Governor Phil Murphy’s signature; Attorney General Gurbir Grewal, an appointee of Murphy, testified against the bill.

New York: Governor Andrew Cuomo has announced that he now supports legalizing marijuana for recreational use in New York. Cuomo’s position, a turnaround from his past views, comes as Democrats take control of the legislature for the first time since 2010. In his speech, Cuomo also advocated a range of bills strengthening voting rights but did not address reforming felony disenfranchisement. Reverend Al Sharpton published an op-ed in the New York Daily News two weeks ago calling for the state to confront the issue. “Restoring a person’s right to vote restores their most basic level of personhood and citizenship in this country,” Sharpton wrote.

Oregon: The death penalty is inscribed in Oregon’s state Constitution, which prevents its outright abolition via regular legislation. But Oregon Public Broadcasting reports that some Democratic lawmakers are pushing to shrink its scope. Possible changes include creating a higher standard in jury deliberations and shrinking the definition of aggravated murder (the only homicide charge that can result in the death penalty in Oregon) so it covers fewer circumstances. (See also: our coverage of the prospects of death penalty repeal in New Hampshire.)

Thanks for reading. We’ll see you in 2019!

Why the First Step Act is, at best, a ‘baby step’

Why the First Step Act is, at best, a ‘baby step’


What you’ll read today

  • Spotlight: Why the First Step Act is, at best, a ‘baby step’

  • Oklahoma governor releases 21 prisoners shut out of drug sentencing reform

  • New Jersey cop sued over shooting ranks first in his department for use of force

  • Justice wins!… Merriam-Webster’s word of the year

  • Legal loophole lets Texas hide records of jail deaths and police shootings

  • Crime keeps going down

In the Spotlight

Why the First Step Act is, at best, a ‘baby step’

For David Patton, executive director of the Federal Defenders of New York, The First Step Act should be called the “baby step act,” he told the Daily Appeal by phone. “It’s limited.” This is true for a number of reasons, but in our conversation, Patton focused on the legislation’s heavy reliance on risk assessment tools in determining who is eligible to earn time credits for early release. People forget that it should be a risk “and needs” assessment, he says, and the needs side is important. When needs are part of the equation, we ask not only whether a prisoner might pose a danger to someone else, but rather what makes sense to help with that person’s future. “Does a prisoner need vocational training? Substance abuse or mental health treatment?” To use risk assessment scores instead “to decide directly how much time someone should spend in prison is really problematic, and this bill does that.”

This is not only because risk assessment tools have been shown, time and again, to perpetuate and magnify racial disparities, although that fact looms large for many. “While we applaud the use of evidence to reduce recidivism, the reliance on factors like a person’s history, educational background, and other demographic factors to classify them risks exacerbating and further embedding historical and institutional patterns of bias, particularly against individuals of color,” experts Colleen Chien and Clarence Wardell III write in The Hill. “Similar concerns are being raised by the civil rights community about the application of risk assessment tools in pretrial detention contexts in dozens of jurisdictions and of sentencing tools in 28 states. These automated systems, often built on incomplete and biased data, are part of what Michelle Alexander has called ‘newest Jim Crow’ and Virginia Eubanks has called the ‘digital poorhouse.’” [Colleen V. Chien and Clarence Wardell III / The Hill].

This is not a theoretical worry: These tools are already dictating who is behind bars and who goes home, and they are only as good as their design. Last year, ICE changed its computerized risk assessment software “so that it always recommends detention for apprehended immigrants to conform to Trump’s ‘zero tolerance’ stance on illegal immigration,” reports Motherboard. “This change led to an almost immediate increase in the detention of immigrants with little to no criminal history, who would’ve normally been released on bond until their court date.” And in California, what could have been a landmark bail reform bill became a step backward when it created a presumption of detention and left the task for developing risk assessment tools “to each locality” ultimately giving “judges total discretion to decide whether to release an individual and on what conditions,” which many believe will lead to more people detained pretrial, not fewer, according to professor Erwin Chemerinsky.

The First Step Act, for its part, tasks the attorney general with developing and adopting the assessment system “to provide prisoners with tailored treatment based on whether they were minimum, low, medium, or high risk,” Chien and Wardell note. The bill would require the attorney general to consult with an independent review committee when developing the tool and would require regular reporting on overall recidivism and on racial disparities. But it “falls short” because the attorney general is not accountable to the committee and because there is no mechanism for sharing prisoner-level data or for disclosing details about what factors will be relied upon by the risk assessment system or how. Chien and Wardell recommend that lawmakers or the Department of Justice enact provisions mandating more transparency that would release de-identified data to researchers and relevant communities, along with details about the resulting system. They also ask that members of the civil rights community be invited to serve on the independent review committee. [Colleen V. Chien and Clarence Wardell III / The Hill]

“Risk factors” that are used to construct assessment tools broadly fall into two categories, according to the National Center for Biotechnology Information: static factors, which are “generally unchangeable information such as previous offense history” and dynamic factors, which include “current symptoms, use of alcohol or illicit substances, and compliance with treatment.” These dynamic factors are changeable and offer the opportunity for intervention. Patton points out, however, that it’s unclear how anyone could meaningfully measure dynamic factors for people who are incarcerated. “I’m not aware of any scoring system that’s been validated by science or research for people who are in institutions” and “it’s not clear one could be validated.” Patton says that leaves us with the possibility of using a scoring system that doesn’t yet exist, or using the tools that are out there today, which produce biased results. Either way, he says, “you would not want to use that score to directly impact the length of someone’s sentence as opposed to the programming someone gets.”

That is why Patton’s office told lawmakers that if they wanted to adopt a system with an objective, evidence-based risk and needs assessment to individualize the programming, they should not tie early release credits directly to those assessment scores, but rather measure success within those programs. The question should be, “are they in fact doing the programs that your scoring system says they should do?” Not only did the First Step Act fail to do that, Patton said, but “they compounded the problem further by having a whole host of exclusions for eligibility criteria.” And “the fact that only people in the low-risk categories are eligible means that people at higher risk won’t have incentives to do risk reduction programming. That’s not just bad policy,” he adds. “What it likely means is that you’re actually crowding out the programming, making it less likely that the people most in need of programming will get it.”

“Finally,” write Chien and Wardell, “it is unclear whether prison administrators will be required to follow the tool’s recommendations—studies of similar systems show that judges often deviate, leading, in the case of Kentucky for example, to judges overruling the presumptive default to deny release without bail to persons of low or moderate risk two-thirds of the time.” Patton agrees. “There is a whole history that gives us reason to believe it won’t be implemented in the most productive way. Sitting here today, the Bureau of Prisons could be letting people out earlier than they do, they don’t take full advantage of prerelease custody and halfway houses in the way they’re authorized to. They don’t make recs on compassionate release for older medically disabled inmates. They don’t need this bill to do that.” Could this bill push them to release more people? Sure, he says, but he isn’t optimistic. “Like all things, if the agency is just constitutionally opposed to letting people out early, they are going to drag their feet.”

Stories From The Appeal

 

Kayla Jo Jeffries was granted clemency by Governor Mary Fallin after serving
three years of her 20-year sentence. [Oklahomans for Criminal Justice Reform]

Oklahoma Governor Releases 21 Prisoners Shut Out of Drug Sentencing Reform. But more than 1,100 others are still serving sentences that voters decided were too harsh. [Kira Lerner]

New Jersey Cop Sued Over Shooting Ranks First in His Department for Use of Force. Officer Sheehan Miles of the Trenton Police Department had 43 force encounters between 2012 and 2016, according to a new database. [George Joseph]

Stories From Around the Country

‘Justice’ wins!… Merriam-Webster’s word of the year: The dictionary publisher Merriam-Webster this week selected “justice” as its word of the year, inspired by 12 months of headlines about the “obstruction of justice, the Department of Justice and a certain Supreme Court justice, not to mention high-profile debates over racial and social justice (or the lack thereof),” reports the New York Times. “In choosing the noun, Merriam-Webster said ‘justice’ was looked up on its website a whopping 74 percent more often this year than in 2017. Searches for the term spiked following news stories that featured the word, the company said, often involving the Justice Department, which is overseeing the special counsel investigation into Russian meddling.” Merriam-Webster said, “For many reasons and for many meanings, one thing’s for sure: justice has been on the minds of many people in 2018,” and the term “was at the center of many of our national debates in the past year.” Oxford Dictionaries listed “toxic” as its word of the year, and Dictionary.com went with “misinformation.” [Dan Levin / New York Times]

Legal loophole lets Texas hide records of jail deaths and police shootings: An investigation by Reason has found that when someone dies in police custody in Texas, “it’s nearly impossible to get anything besides the most basic incident reports.” A controversial Texas public record statute, known by critics as the “dead suspect loophole,” shields the release of police records in cases that didn’t result in a conviction. It has been employed over and over by the state “to prevent families, journalists, and others from accessing records concerning police shootings and jail deaths.” Reason found that “between 2003 and 2018, the loophole was used in at least 81 cases.” The statute, Sec. 552.108(a)(2), was passed in 1997, with the intention of shielding the privacy of the wrongfully accused and innocent, “but media organizations and transparency advocates say the law has been twisted to shield the police from scrutiny.” A state representative from El Paso, Joe Moody, has introduced legislation to close the loophole. [C.J. Ciaramella / Reason]

Crime keeps going down: President Trump announced his candidacy while drumming up fear of immigrants coming into the country to commit crimes, despite plentiful research debunking that idea. Over the last two decades, America’s immigrant population has grown while its crime rate has dropped, and after some slight upticks in crime in 2015 and 2016, an analysis of preliminary crime data for 2018 by the Brennan Center for Justice showed that overall crime rates as well as murder rates have resumed their downward trajectories. The report, “Crime and Murder in 2018: A Preliminary Analysis,” concludes that crime and murder in 2018 are again declining in cities across the country, continuing the downward trend, although an update finds that murder rates in a few cities––including Washington, D.C., and Houston––remain above 2015 levels. [Ames Grawert and Cameron Kimble / Brennan Center for Justice]

Thanks for reading. We’ll see you tomorrow.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

Video Shows Baton Rouge Police Pinning Man To The Ground and Beating Him

The officers were part of the department's Street Crimes Unit, known among residents for its aggressive patrols.

Steven Wayne Young (left) recounts his Oct. 24 arrest by officers in the Baton Rouge Police Department. Randy Brown witnessed and filmed the incident.
Clarissa Sosin

Video Shows Baton Rouge Police Pinning Man To The Ground and Beating Him

The officers were part of the department's Street Crimes Unit, known among residents for its aggressive patrols.


Two weeks after a routine police stop in Baton Rouge, Louisiana, you can still make out the injuries on Steven Wayne Young’s body. There are the scabs on his wrists from where the handcuffs tore into his skin when an officer dragged him by the arm. He lifts his shirt over his head and bows his head forward to give a clear view of his back. He has mottled skin where the prongs of a police Taser latched onto him. He mimics the sizzling sound of the weapon’s electricity racing through him.

Young, 42, points to a picture on his phone—the mugshot taken of him while the officers booked him. His eyes are nearly swollen shut, he has an open wound on the right side of his temple, and tears from being pepper sprayed streak his cheeks. His face contorts as he talks about the agonizing sensation of being sprayed in his eyes over and over. Then he takes out the medical documents showing his litany of injuries. He was taken to a health clinic after the East Baton Rouge Parish Prison refused to accept him in the condition he was in.

Police have consistently denied Young’s account that he was beaten for no reason and local media reported that an officer had been cleared after an internal investigation into the incident.

Now, as Young recovers from his injuries, he is facing gun, marijuana, and resisting arrest charges. As he recounts the brutal, nearly six-minute beating, his voice starts to crack, and he begins to cry. It’s not any one injury he sustained, or a specific blow he received that leads Young to weep. It is recalling that feeling of helplessness. That feeling from his childhood that he so despised as a student who bounced from school to school in special education classes.

“When I start getting to thinking about their whooping that they were putting on me like bullies—and two at the same time—that was that feeling when I’m like, when I’m getting beat up and I can’t do nothing about it,” he said, his voice cracking, his chest heaving. “And everybody’s sitting back looking at me looking like a fool, you know what I mean? And it hurts me. That hurts me. I can’t stand a bully. I can’t stand nobody that preys on somebody.”

‘They did that for a blunt?’

Young’s Oct. 24 arrest started when the officers pulled up in a white Dodge Charger outside his apartment complex and accused him of holding a blunt, which Young insists he did not have. The Baton Rouge Metro Council passed an ordinance in February allowing officers to issue tickets for small amounts of marijuana instead of making arrests, though officers are still able to make arrests under state law at their discretion.

The confrontation quickly escalated. According to the arrest report, Young tried to pass of the blunt to a neighbor then tried to flee—first on his motorcycle then on foot. When the officers tried to restrain Young, according to the report, he fell to the ground. One of the officers then Tasered him. Then the two officers and Young “actively fought,” according to the police report, until back-up came. After the fight but before putting him in the cop car to take him to booking, they searched him and found a concealed weapon in his pants, according to the police report.

Young and his neighbor, Latrice Robinson, dispute this version of events. Both said that they weren’t smoking a blunt when the officers showed up and that the officers approached them aggressively, tackling Young from the beginning of the interaction. Young said he never had an opportunity to try to flee or to fight back. He said he went from trying to put his motorcycle away to getting beaten, Tasered, and pepper sprayed.

The encounter, which lasted several minutes, was captured on videos by residents and bystanders—two of whom were also arrested after Young’s beating and arrest. In the videos, they express shock and disbelief at the beating, which continues even after Young is cuffed and seemingly defenseless on the pavement.

At moments in the footage, there are pauses in the violence, and it seems like the beating has come to an end. Then, suddenly, an officer will unleash another series of blows to Young’s head.

In a video taken from across the parking lot, a woman yells “Look at him, look at him punching. Why?” while the officer smashes Young’s head. In the background as she speaks, there’s a loud thump—either from the sound of the impact of a cop’s fist with Young’s skull or from the sound of Young’s head bouncing off the pavement.

In another video filmed from an apartment overlooking the parking lot, a woman’s voice shouts “You’re going to kill him!” while she bangs on the window.

Randy Brown, 38, was in the parking lot that day with his teenage son. He taped the incident and yelled out in disbelief when he heard how it all started. “They did that for a blunt? Goddamn!” he’s heard yelling in his video. Just the day before, he later told The Appeal, he had instructed his son to turn around and walk in the opposite direction if he saw the white Chargers.

Now, his son was able to see firsthand why.

Brown and his son fled back to their apartment when the police started to arrest bystanders who were telling them to stop the beating. One of the two other people arrested, a maintenance worker for the apartment complex, can be seen in the video getting shouted at by one of the officers who arrived as back up. Just as the cop is about to cuff the worker, a woman’s voice warns Brown, “He was just standing there—put that camera down.” The final seconds of the video are of the pavement as he races back home.

The Baton Rouge police press office initially declined to comment for this story, including on the size and mission of the Street Crimes Unit. Instead, the office directed requests to the department’s legal division. A representative responded that the legal office doesn’t answer questions but suggested that The Appeal submit a public records request. The representative noted that any records related to the criminal prosecution of Young are “not subject to disclosure until the criminal litigation is finally adjudicated.”

However, after repeated attempts at getting comment, the public information office finally confirmed what it told the local media. In an interview with a television station, Sgt. L’Jean McKneely Jr., a police spokesperson, said the officers who beat Young will be exonerated by what’s seen in their body camera footage. He said the videos released to the public do not show the whole story. He said Young didn’t listen to the officers’ commands and he continued to resist even when he was handcuffed.

“He was actively fighting, went to the ground, and continued to fight actively with the officers,” McKneely said. “And all that is clearly on the body cam.”

“Once you see this video, you will see why he resisted, especially when we pulled the gun he had concealed in his waistband.”  

McKneely said that the footage captured by the officers’ body cameras justifies their actions.

But, they have yet to release this video.

Young and his lawyer have requested it be released. A court date was scheduled for today to determine the disposition of the body camera and dashboard camera footage.  A judge denied the request to order the release of the footage.

If released and if the officers used their body cameras appropriately, the footage would show what happened at the beginning of the arrest, settling the dispute between Young and his lawyer and the BRPD over what happened during the initial interaction. It would also show what happened after the bystanders stopped shooting with their phones.

When Alton Sterling was shot and killed by Baton Rouge police in 2016, the BRPD also said body camera footage of the incident would justify its officers’ actions in the eyes of the community. It did not. In fact, when longer videos emerged—both footage the police seized without a warrant and video from the officers’ body cameras—the new footage only stoked further controversy over what many community members saw as unnecessarily aggressive treatment of Sterling from the very beginning of the incident.

“There is an aura of mistrust between the Black community and the police department,” Ron Haley, Young’s lawyer, said. “And it has to do with situations like Steve Young. It has to do with situations like Raheem Howard, Alton Sterling, Calvin Toney.”

A climate of fear

The police department hasn’t released the names of the officers involved in the incident, but they are with a unit well known to Black residents.

Like many police departments across the country, Baton Rouge has a specialized Street Crimes Unit, which goes into high-crime neighborhoods and aggressively pursues drug and gang activity. Baton Rouge’s unit is responsible for several recent police shootings and excessive-force complaints. In October, an officer from the unit was fired after he lied about a shooting during a traffic stop.

The fear of the team is ubiquitous. Many people who live in the predominantly Black neighborhoods of North Baton Rouge have a story to tell. A mother who lives on the 2000 block of North 16th Street in Baton Rouge told The Appeal during an interview in August that she had to chase an officer from the team out of her house one day because he barged in looking for her son who had just come home from work. She said most of the young men in her community had been stopped on the street for no reason. During the interview, several young men came rushing over to her porch, telling The Appeal that they wanted to avoid contact with the unit who had just started their patrol.

In two dozen interviews, Black residents said they knew what days the team comes through their neighborhoods. The officers drive unmarked white Dodge Chargers. While out speaking with residents, reporters from The Appeal saw the Chargers drive through a neighborhood and watched people run into their homes. Parents teach their children not to talk back to the officers in those cars. Community leaders, residents, and local politicians say the unit threatens residents and stops them without cause.

“They have a track record of showing up in the community and terrorizing people,” said Gary Chambers, an activist who organizes around police-community relations.  

Steven Young shows his injuries.
Clarissa Sosin

Chambers said the aggressive policing is actually doing more harm to the relationship between Black residents and the police department. Who wants to reach out to the police, he asked, if they’re going to beat you while you’re trying to park a motorcycle? “Whooping ass isn’t solving the problem,” he added.

Haley, Young’s lawyer, has interviewed hundreds of clients in his more than a decade as an attorney in Baton Rouge handling cases of police abuse. “The Street Crimes Unit is a big reason for the fractured trust between the police and the community it’s supposed to protect,” Haley said. “I understand it’s a two-way street. I understand why there is a thought to overpolice certain parts of the Baton Rouge community. But it’s not working.”

An example of how badly it isn’t working, he said, is what happened to his client. He insists that the police release the dashboard camera footage and the body camera footage of the incident. But to pin this on specific officers misses the point, he said. This problem with abuse and violence is one that runs deep in the Street Crimes Unit, he claims, citing his experience in several prior cases.

“We are seeing too many incidents coming out of that unit that are coming to question in a very public way,” Haley said. “And after a certain point, we have to question: Is this more the individual officer? Or is this the culture of the unit?”

He said that in nearly every case there is some sort of a resisting charge levied against the defendant when the police use force. “They use that resisting charge to justify their officers’ force,” he said. “That is why he was not surprised when his most recent client, Young, had a resisting charge field against him by the BRPD. It’s a predictable part of the script when dealing the BRPD, he says, whenever questions of excessive force come up in one of his cases.

So far Young has only been arrested by the BRPD. He has yet to be formally charged by the district attorney’s office.

Collateral damage

Latrice Robinson, the neighbor who was with Young in the minutes leading up to the beating, was one of the two bystanders arrested that day. She was charged with obstruction of justice and possession of marijuana, and spent 17 hours in the East Baton Rouge Parish Prison. According to her arrest report, she tried to hide Young’s blunt as the police approached. Robinson denies this. She said she believes she was arrested for taking photos of the license plates of the police cars and joining in a chorus of people who were pleading with the officers to stop the beating.

“The real truth is,” Robinson said explaining her arrest, “I was able to see what happened.”

The beginning of the arrest of the maintenance man who worked for the complex can be seen in one of the videos. He could not be reached for this story.

Robinson, 48, had been chatting with Young and helping him guide the back of his motorcycle into the gated lot in front of his apartment when a Dodge Charger pulled up suddenly and two officers got out, she said. Robinson, who was out walking her dog and looking for the property manager, had seen the Charger just minutes before. The officers had been conducting a search. They rushed toward Young. “Give me the marijuana! Don’t try to pass it off,” an officer shouted, according to Robinson—a command that perplexed both Young and Robinson who said they did not have a blunt. Then, one of the officers charged at Young who fell, taking Robinson and his bike down with him.

“I didn’t know what they was going to do next,” said Robinson, who said she sat startled on the ground next to her dog and watched everything unfold in front of her. One of the officers pulled out a weapon, a Taser she quickly realized when Young began to writhe on the ground, electric currents jolting through his body. Then they got on top of him and started hitting him.

“Dang is this really happening? This can’t be happening,” thought Robinson, who had only seen police beat civilians in movies and on TV. “This is not happening in front of my own eyes!”

Witnessing the beating shook Robinson’s world view. She grew up in a family of police officers and had always trusted the police, she said.

“Now I’m like, I don’t know who to trust,” she said. “I don’t know if I should trust them.”

In the videos, Robinson, visibly distraught, paces around in the crowd of bystanders with her dog in her arm, verbally protesting the abuse taking place just feet away from her.

She said she wondered later how many others the police had abused.   

At the end of November, Young’s lawyer went public with his attempt to get the dashboard camera and body camera footage of the incident. But, as Young and his lawyer fight the criminal charges and prepare a civil lawsuit, his fear about what the cops could do next has only increased.

Throughout the past few weeks, he said, he had seen white Dodge Chargers following his car and driving through his neighborhood.

“If I don’t leave Louisiana I’m really seriously in trouble. I’ll take a lie detector test to show that I’m not exaggerating about my feelings. I am scared for my life,” he said. “I’ve got to leave—I cannot stay in the state of Louisiana.”

Back-to-Back Jail Deaths Rock Small Utah County

Two women died at the Duchesne County Jail in the span of about one week in 2016. Now their families are suing in federal court.

Tanna Jo Fillmore (left) and Madison Jody Jensen
Photo illustration by Anagraph. Photos via Starks Funeral Parlor (left) and Jared Jensen

Back-to-Back Jail Deaths Rock Small Utah County

Two women died at the Duchesne County Jail in the span of about one week in 2016. Now their families are suing in federal court.


On Nov. 23, 2016, Melany Zoumadakis received three distressed phone calls from her daughter, Tanna Jo Fillmore. She had been incarcerated in Utah’s Duchesne County Jail a little over a week and called Zoumadakis for days, each time sounding more fearful than the last. Fillmore told her mother she hadn’t taken her medication for her anxiety and attention-deficit/hyperactivity disorders because jail officials refused to give them to her.

A rodeo queen with a knack for reciting cowboy poetry, Fillmore loved riding horses and telling jokes. She had a history of mental illness but was improving just before she was locked up, largely because of her medications. During her calls from the jail, Fillmore begged her mother to bring them to her. On the final Nov. 23 call with Zoumadakis from the jail, Fillmore threatened to die by suicide and then abruptly hung up.  The next day, Fillmore was found hanging her in cell.

Between 2013 and 2016, at least four people died at the jail in Duchesne County, a tiny part of the state approximately 100 miles southeast of Salt Lake City that is home to only about 20,000 residents. Three of those deaths were suicides—the leading cause of death at Utah’s jails and jails across the country. This year, in late November, Fillmore’s family filed a civil rights lawsuit in federal court naming the county, two of its medical providers, and Duchesne County Sheriff David Boren as defendants. In The Fillmore lawsuit came just weeks after the family of Madison Jody Jensen, who died in 2016 from dehydration due to heroin withdrawal at the jail, filed an amended civil rights complaint in federal court. Zoumadakis said of Fillmore: “Her being gone at 25 years old is a pain that is not explainable. My daughter did not want to die.”

The Duchesne County Sheriff’s Department declined to comment, citing the ongoing litigation.

“They should treat people with love and respect…when they have people in the jail they’re human beings.”

On Nov. 15, 2016, Fillmore, who had just moved to Salt Lake City, was arrested there on a probation violation stemming from a misdemeanor drug charge in Duchesne County. The violation was for failing to call her probation officer, but she was booked into the Salt Lake County Jail and held overnight nonetheless.

The next day, Fillmore was moved to the Duchesne County jail where she told the booking clerk she was prescribed Xanax for anxiety and D-amphetamine sulfate for ADHD and also had post-traumatic stress disorder and major depressive disorder. Because she had previously been incarcerated there, her psychiatric records were already in the jail’s system. According to the lawsuit, Fillmore was then sent to her cell without ever being examined by the jail nurse, asked to sign a release so that personnel could obtain her medical records, or given her medications.

In addition, Zoumadakis, who is a registered nurse, repeatedly called her daughter’s probation officer, Steve Hooley, to warn him that she would destabilize if she was not given her medications. According to the lawsuit, Hooley assured Zoumadakis that he would inform the jail of her daughter’s psychiatric needs. But on Nov. 22, Fillmore had not received her medications, so she submitted a medical request form and met with jail nurse Jana Clyde. Clyde told Fillmore that she wouldn’t be provided with her medications because she was a “drug addict,” according to the lawsuit. Clyde did not respond to a request for comment from The Appeal.

As problems with Fillmore getting her prescriptions persisted, her phone calls to her mom sounded increasingly urgent—and hopeless. Zoumadakis pleaded with Hooley to tell the jailers to put Fillmore on suicide watch. “Hooley advised Zoumadakis that Fillmore had been placed in an observation cell,” according to the lawsuit, “and told her not to worry.”

On Nov. 24, Zoumadakis’s daughter Calley Clark gasped after receiving a Facebook message from a friend that her sister had died. Fillmore’s family told The Appeal that they learned of her death from Thanksgiving Day Facebook messages from people around town, rather than the sheriff’s office. “Even after she was dead they still didn’t even respect us,” Clark said. “We have to find out in this awful message on Facebook. She was already at the morgue being autopsied by the time we found out.”

Dr. Kennon Tubbs is responsible for the medical and mental health care of incarcerated people at the Duchesne County Jail. Under the contract, Tubbs or one of his physician assistants conduct sick calls on Thursdays and provides phone consultations as needed. Critics say the weekly visits fill the bare minimum of the constitutional requirement to provide medical care for inmates. “I think he does provide the care that he’s contracted to do, but he fashions the contracts in such a way that doesn’t meet the needs of the inmates,” said Zoumadakis’s attorney, Tyler Ayres.  

Tubbs, who has contracts with more than half a dozen Utah county jails and a 2016 deal with the Teton County Jail in Wyoming that netted him $200,000 per year, said jail officials never contacted him about Fillmore before her death. He added that he would not have given Fillmore her medications; he insisted that Xanax and ADHD medication D-amphetamine are “not for suicidal behavior.” ” Studies have found, however, that abruptly stopping the use of amphetamines is strongly associated with extreme dysphoria and suicidal ideation. Tubbs also argued that not much could have been done to save Fillmore because she only told her mother and not the jail’s medical staff that she would kill herself. “Suicide is not easily preventable,” he said. “The problem with suicide is a lot of times the patients who commit suicide don’t notify anyone.” Tubbs said that had he known that Fillmore threatened to die by suicide, he would have put her under 24-hour watch.

Zoumadakis alleges in the lawsuit that that jailers and medical staff were negligent when they failed to provide proper medical care to her sick daughter.  “They should treat people with love and respect and they should get them help no matter what they have to do,” she said. “When they have people in the jail they’re human beings.”

“Puking for 4 days straight, runs, diarrhea, can’t hold anything down not even water.”

On Dec. 1, 2016, not long after Fillmore’s death at the Duchesne County Jail, Madison Jody Jensen was found dead in her cell. When an investigator examined her emaciated body, he noted crusty pieces of vomit in her hair. She had been throwing up as she went through heroin withdrawal. Just days earlier, when she was booked at the jail, the 21-year-old, who stood at 5’11”, weighed 129 pounds; when she died, she weighed 112 pounds. The medical examiner later determined that Jensen died from dehydration due to opiate withdrawal.

Deaths from withdrawal are common in jails and prisons; in June, the ACLU sued Whatcom County, Washington, over its failure to provide access to medication-assisted treatment to incarcerated people with opioid use disorder, arguing that such policies violate the Americans with Disabilities Act.

Like Fillmore, Jensen was booked into the jail on minor charges—in her case, drug possession—and she also struggled with mental health issues. She told her father, Jared Jensen, that she had suicidal thoughts and her drug possession arrest stemmed from an argument between the two about her escalating drug use and mental health problems. When Jensen was arrested at her family home on Nov. 27, 2016, a Duchesne County Sheriff’s corporal told her that “jail would help her detox” and she would be free in a week, according to the lawsuit.  Jensen and her father also believed that she would go to drug court the next day and then be admitted to a treatment program. But because of conflicts with the judge’s schedule, her court date was moved from Monday to Friday.

Within 10 minutes of entering her cell, Jensen began vomiting and excreting diarrhea. The next day, she and her cellmate pressed the call button several times to ask for help but were simply told that the jail was aware that she was sick. At one point, Jensen vomited and defecated on herself. When she asked to take a shower, the jailer allegedly refused to allow her to do so.

Jensen continued to suffer and eventually filled out a medical request form. “Puking for 4 days straight, runs, diarrhea, can’t hold anything down not even water,” she wrote in late November 2016, dating the form Dec. 31 out of delirium. But she was not seen by Clyde, the nurse, and Dr. Tubbs said he was never contacted. Tubbs declined to comment on the matter because of a lawsuit filed this year by Jensen’s family. In 2017, the Utah attorney general’s office charged Clyde with negligent homicide in Jensen’s death. But last February, a Utah judge dismissed the case, ruling that there was not enough evidence to proceed.

On Sept. 20, Jensen’s family filed an amended civil rights complaint in federal court against Duchesne County, Sheriff Boren, Clyde, Tubbs, and others.

“I have a hard time reconciling the fact that a jail takes a person in knowing that they’re withdrawing from drugs,” Ryan Hancey, Jensen’s father’s attorney told The Appeal, “and in the course of the jail stay know that the person is exhibiting symptoms consistent with bad withdrawals … and still that inmate is allowed to die from dehydration of all things.”

ICE Air, a little-known division of ICE, deports people in shackles and funnels tax dollars to Republican-friendly businesses

ICE Air, a little-known division of ICE, deports people in shackles and funnels tax dollars to Republican-friendly businesses


What you’ll read today

  • Spotlight: ICE Air, a little-known division of ICE, deports people in shackles and funnels tax dollars to Republican-friendly businesses

  • ‘I gotta be strong for my babies.’

  • Senate passes First Step Act, a significant change to federal approach to criminal justice

  • Republican-sponsored amendment requiring data collection on police shootings didn’t make the cut

  • Mississippi newspaper will forego revenue by cutting down on sensationalist crime coverage

  • Read carefully: A Louisiana law could restore voting rights to 16 times as many people as initially expected

In the Spotlight

ICE Air, a little-known division of ICE, deports people in shackles and funnels tax dollars to Republican-friendly businesses

As many of us pack our bags for holiday travel, there are those for whom the skies are decidedly less friendly. “Shackled at their ankles and wrists and their shoelaces removed, a long line of men and women waited on the tarmac as a team of officers patted them down and checked inside their mouths for anything hidden,” write Nomaan Merchant and Angeliki Kastanis for the Associated Press. “This was a deportation flight run by ICE Air. The chains would be removed and the shoelaces returned when the plane landed in El Salvador.” This obscure part of ICE is nevertheless core to its mission: It transports detainees from one city in the U.S. to another, and out of the country for “final removal.” About 100,000 people are deported on these flights every year. The federal government has spent approximately $1 billion on these flights in the last decade, and the Trump administration wants to raise ICE’s budget for charter flights by 30 percent. Those deported to Mexico are usually flown to southern U.S. cities and driven to the border, but because immigrants from El Salvador, Guatemala, and Honduras have overtaken Mexican immigrants in numbers, more international flights are needed when it comes to deportation. [Nomaan Merchant and Angeliki Kastanis / Associated Press]

The flight that the AP saw boarding in Houston carried 50 people, nearly half of whom have had no contact with the criminal justice system at all. “We try and be as humane as we can with everything that we do,” said Pat Contreras, director of enforcement and removal for ICE’s Houston field office. “We try to make them safe,” although it is unclear whose safety is really on his mind: “We want to make sure that not one individual does anything wrong.” [Nomaan Merchant and Angeliki Kastanis / Associated Press] Luis Alberto Castro is a 53-year-old from Guatemala who overstayed his student visa 35 years ago, started a remodeling business in Salt Lake City, raised a family, and then got pulled over for a traffic violation and deported. He was interviewed by NPR right after he landed in Guatemala City after an ICE Air flight, carrying a plastic bag full of his belongings. ICE Air treated everyone on board like a felon, he said: “We were handcuffed the whole time. They shouldn’t be treating us like total criminals.” [John Burnett / NPR] See also Our 4/30/18 edition covers the harrowing and profitable industry of prisoner transport inside the U.S.

A decade ago, ICE began chartering private planes. ICE says this move saves about $25 million a year and allows for more flexibility. This strategy also avoids “putting large numbers of deported immigrants on commercial planes, which requires buying tickets for deportation officers accompanying them, or holding them in the U.S. for longer than necessary and tying up space in detention centers.” Contreras claimed that this stems from sensitivity to immigrants’ well-being: “I don’t want to elongate anybody’s detention with us,” he said. “If a judge says you need to be removed, we should be expeditiously working to execute that order so that person does not spend any longer in detention than necessary.” But advocacy groups say ICE Air is an example of how private companies benefit from immigration enforcement. “The way you would save money on ICE Air is by deporting fewer people, not by privatizing the industry,” said Bob Libal, director of Grassroots Leadership. “ICE is a largely privatized agency,” Libal said. “In many ways, it’s been captured by the industries that profit from deportation and detention.” [Nomaan Merchant and Angeliki Kastanis / Associated Press]

“There’s a lot of money to be made there,” Ben Davis, a criminal justice researcher for the anti-privatization non-profit In the Public Interest, told Aviva Shen, for ThinkProgress. Shen, now an editor at The Appeal, wrote that a report released by the Office of the Inspector General in April 2015 found that ICE pays an average of $8,419 per flight hour for charter flights, regardless of how many people are on each plane. “The report also found that the agency had done little to ensure these flights were efficient or necessary, wasting as much as $41.1 million in taxpayer dollars during the 3.5 year study period.” Ominously named CSI Aviation is the main provider of these deportation flights; from 2013 to 2016 alone, CSI received more than $300 million in Department of Homeland Security contracts. The company’s CEO, Allen Weh, is a major Trump supporter: He was a Republican delegate, helped lead Trump campaign rallies, and donated the maximum amounts allowed. [Aviva Shen / ThinkProgress] Interviewed on NPR, Weh took a fatalistic stance: “We move people out of the country, and often we will move people in the country, and, frequently, they will be in handcuffs.” [John Burnett / NPR]

Chartering planes not only allows Trump to reward his loyal supporters, it also makes sure that the administration is only working with friendly partners, avoiding embarrassing spectacles like when, over the summer, various commercial carriers refused to transport children separated from their parents at the border. Corporations, for many, are taking on moral responsibility as the government seems to dispense with it. Over the summer, Frontier Airlines stated that it would “not knowingly allow our flights to be used to transport migrant children away from their families.” United Airlines, Southwest, and American Airlines made similar announcements. Many flight attendants had posted testimony on social media channels describing groups of Latinx children they had seen on domestic flights, accompanied not by parents but by federal agents. They have been trained to recognize and report possible cases of child trafficking, and found it hard to square their role as protector with that of collaborator. Soon after these statements, President Trump signed an executive order to end the family separation policy. [Richard Fausset / New York Times]

Stories From The Appeal

 

Illustration by Michelle Mildenberg

‘I Gotta Be Strong for My Babies.’ An Oklahoma woman is serving 18 months in prison after being accused of failing to protect her daughter from the girl’s dad. [Roxanna Asgarian]

Stories From Around the Country

Senate passes First Step Act, a significant change to federal approach to criminal justice: The First Step Act would create new programs to help prepare certain “low-risk” prisoners for re-entry; if they participate, they would be able to earn reduced sentences or enter “prerelease custody,” such as home confinement. The legislation, which the House is expected to pass this week, would also prohibit shackling pregnant prisoners and almost completely eliminate solitary confinement for young people. Prisoners would be held in facilities close to their homes, if possible. Mandatory minimum sentences for some nonviolent drug offenses would be shorter, and the “three strikes” penalty would go from life to 25 years. Judges would have more liberty to get around mandatory minimums in some cases. It would also address the so-called stacking mechanism that can add decades to prison terms when a firearm is involved, limiting it to cases where the person has previously been convicted. Crucially, the bill would give people who were sentenced under the massive crack-cocaine disparity a chance to have their cases re-evaluated. [Nicholas Fandos / New York Times]

Progressives gave up on making most of the sentencing reforms retroactive. See also Our 11/15/18 edition explains how the bill would do a lot more good if that effort had succeeded.

Republican-sponsored amendment requiring data collection on police shootings didn’t make the cut: Senator Tim Scott of South Carolina, the only Black Republican in the Senate, failed to get his amendment in the final version of the First Step Act. The Walter Scott Notification Act, named for the man shot and killed by a North Charleston police officer while fleeing a traffic stop, would have “stipulated that any state receiving federal law-enforcement funding must collect and preserve key data tied to such incidents, including name, race, description of the event and overall circumstances that led to the weapon being discharged,” according to the Post and Courier. “States that do not comply would have been subject to a 10 percent reduction in federal grant funds.” Scott, who isn’t related to Walter Scott, touted his proposal, saying, “By giving us a deeper understanding of situations that lead to officer-related shootings, I believe the Walter Scott Notification Act can keep both our law enforcement officers and our communities safer.” [Michael Majchrowicz / Post and Courier]

Mississippi newspaper will forego revenue by cutting down on sensationalist crime coverage: The editor of the Mississippi Sun Herald, Blake Kaplan, wrote directly to readers this week explaining why the publication will now cover crime differently. Although crime stories are among its most popular, giving them “more clicks,” “more advertising revenue,” and “more exposure,” Kaplan writes, “what is good for us may not be what is good for South Mississippi.” Daily crime reporting “creates a false impression” of high levels of violent crime, so “I’ve directed our reporters to ask themselves a few questions before they report a crime story” including “is there an imminent public-safety concern? Is the crime so serious the community needs to know about it? Is the crime part of a trend that warrants frequent updates?” The paper has also discontinued the “mugshot” gallery, because those photos “stayed a part of people’s lives forever, whether they were convicted or not” and “did not really meet our core mission of our news organization, to inform and serve the people of South Mississippi with news that affects their lives.” [Blake Kaplan / Sun Herald]

Read carefully: A Louisiana law could restore voting rights to 16 times as many people as initially expected: Louisiana’s legislature approved a law last spring restoring voting rights to those with criminal convictions who were still under supervision, as long as they were in good standing with parole five years after release from prison. At the time, lawmakers expected it to give around 2,200 people the right to vote. Now, advocates and elected officials say the law as drafted should apply more broadly, bringing the number as high as 36,000. The law states: “a person who is under an order of imprisonment for conviction of a felony and who has not been incarcerated pursuant to that order within the last five years shall not be ineligible to register or vote.” Advocates argue that it should apply to those on probation, who never went to prison, even if they haven’t been on probation for five years. This issue was raised during the first hearing on the legislation, but subsequent discussions focused only on parolees, leading many to vote for it assuming it would not jeopardize their own political interests: Senator Dan Claitor, a Republican from Baton Rouge, urged colleagues to vote for the legislation, saying, “It’s not like it is going to be a sea of folks that are going to sway elections all over that state.” [Julia O’Donoghue / Times-Picayune]

Thanks for reading. We’ll see you tomorrow.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

New Jersey Cop Sued Over Shooting Ranks First in His Department for Use of Force

Officer Sheehan Miles of the Trenton Police Department had 43 force encounters between 2012 and 2016, according to a new database.

Photo illustration by Anagraph. Photo by Mihajlo Maricic/Getty Images

New Jersey Cop Sued Over Shooting Ranks First in His Department for Use of Force

Officer Sheehan Miles of the Trenton Police Department had 43 force encounters between 2012 and 2016, according to a new database.


On the evening of Aug. 27, 2016, Alfred Toe, 34, was with his family attending a memorial celebration for a fellow member of Trenton’s Liberian community. Toe got into an argument with one of the people at the event and stormed off to his brother’s car to grab a gun, according to a combination of police and witness accounts. His brother, Constantine, saw him returning with the gun and confronted him, insisting he put back the weapon. In his attempt to get back the gun, it went off, shooting Constantine in the hand. Despite his injury, Constantine managed to disarm his brother. Then Sheehan Miles, an off-duty Trenton police officer, who happened to be at the event, came onto the scene.

What happened next is contested.

Local prosecutors said Miles was holding the brother’s gun in one hand and his own in his other, when Toe attempted to “gain control” of one of the weapons. In the ensuing struggle, they said, Toe “was shot once in the chest” and later pronounced dead at the hospital.

But, in a federal civil rights lawsuit filed in August, Toe’s family claims that Officer Miles had no physical contact with Toe before shooting him.

Constantine had gotten his brother “under control,” they said, and was trying to defuse the situation when Officer Miles approached. The family alleges that the officer, wearing plainclothes, came onto the scene and got Constantine on the ground lying face down, handcuffing him and placing him under arrest. Miles, the lawsuit claims, didn’t identify himself as a police officer. Toe called out to him several times, yelling, “Get off my brother.” Miles started to say “Stand back” and suddenly pulled the trigger.

Miles, cleared by county prosecutors and the state attorney general’s office, remains in the department.

The Toe family’s lawsuit against the officer alleges he used excessive force against Toe. Newly published data suggest their concerns may not be isolated.

Miles is ranked number one in the Trenton Police Department for use-of-force incidents between 2012 and 2016, according to a New Jersey police use-of-force database, recently created by NJ Advance Media, based on information from the Trenton police.

Between 2012 and 2016, Miles was involved in 43 use-of-force incidents, more than seven times the departmental average per officer during that period.

In those four years, according to the outlet’s analysis of police use-of-force forms, Miles was involved in 43 use-of-force incidents, more than seven times the departmental average per officer during that period. Of his incidents, 11 included open-handed or closed-fist strikes, nine involved deployments of pepper spray, and four included baton strikes, though those numbers were below departmental averages.

The data also show that 81 percent of the people subjected to Miles’s forceful encounters were Black. In most cases, the civilians were said to have “resisted police officer control”; in six, they were said to have attacked the officer, who is also Black. Seven percent of those encounters left Miles injured, while roughly 25 percent left the civilians injured.

Patrick Whalen, the attorney suing the Trenton Police Department on behalf of the Toe family, told The Appeal that such data could aid in the lawsuit.

In an email, Brooks DiDonato, a lawyer representing Miles and the police department, declined to address questions about Miles’s use-of-force incidents and the Toe shooting. In a response filed in court, DiDonato denied several of the family’s allegations, including the claims that Miles did not identify himself as a police officer and that the two had no physical contact.

The Trenton Police Department has stood behind Officer Miles. The department acknowledged his role in the shooting in May 2017, nearly a year after the incident, when it awarded Miles with the department’s highest honor, the commendation of valor. During the ceremony, Capt. Anthony Pasqua described Miles’s scuffle with Toe and commended his “alert actions,” noting they are “in line with the department’s traditions.” The department did not answer questions about the Toe family’s lawsuit or its commendation of Miles.

In 2016, seven of the 10 Trenton officers who had the most incidents between 2012 and 2016 received departmental awards.

Miles is far from the only officer to be honored by the Trenton Police Department despite frequent use-of-force encounters. In 2016, seven of the 10 Trenton officers who had the most incidents between 2012 and 2016 received departmental awards.

Seventeen-year department veteran Timothy Long, ranked number seven with 20 use-of-force incidents between 2012 and 2016, has been named in at least four federal lawsuits, two of which were dismissed while the other two resulted in payouts.

Eliezer Ramos, ranked number nine with 19 use-of-force incidents, was caught on camera in 2016 appearing to instruct a fellow officer to lie about discovering a gun, according to footage obtained this year by The Trentonian.

The Trenton Police Department did not respond to The Appeal’s requests for comment about Long and Ramos.

Several of the city’s officers are under investigation by the FBI for other incidents involving excessive force.

Oklahoma Governor Releases 21 Prisoners Shut Out Of Drug Sentencing Reform

But more than 1,100 others are still serving sentences that voters decided were too harsh.

Kayla Jo Jeffries was granted clemency by Gov. Mary Fallin after serving three years of her 20-year sentence.
Oklahomans for Criminal Justice Reform

Oklahoma Governor Releases 21 Prisoners Shut Out Of Drug Sentencing Reform

But more than 1,100 others are still serving sentences that voters decided were too harsh.


On Dec. 5, 26-year-old Kayla Jo Jeffries walked out of Oklahoma’s Kate Barnard Correctional Center after three years of incarceration. She returned home and reunited with her two daughters, the younger of whom had been born while she was incarcerated. She almost immediately began a hairdressing job.

Jeffries had been prepared to remain in prison until her daughters were much older. She was serving a 20-year sentence for three drug-related felonies she committed when she was 18. She had worked hard from inside prison to get clean and to earn a GED and a cosmetology license. The Pardon and Parole Board recognized her accomplishments and sent her home in time to spend the holidays with her family.

“God’s good and I believe he’s going to see us through,” Jeffries told The Appeal, explaining how life on the outside is “overwhelming,” but exciting nonetheless.  

Jeffries was one of 21 people, mostly women convicted of drug possession, whose sentences were commuted Dec. 5 by Oklahoma Governor Mary Fallin, a Republican. Each of the 21 individuals were serving a sentence of more than 10 years—together, more than 340 years—for crimes that are now punishable by a no more than a year in prison and a $1,000 fine.

Two years ago, nearly 60 percent of Oklahoma voters approved State Question 780, a sentencing reform measure that went into effect in July 2017 and reclassified drug possession from a felony to a misdemeanor.

When Jeffries, then more than a year into her sentence, found out that the sentencing reform had been approved, she said she was “hopeful.” She felt good knowing the measure would affect men and women like her in the future. But because the law was not retroactive, she and hundreds of others would remain in prison on their original sentences, barring a reprieve from the governor.

Although Fallin’s 21 commutations recognized the new reform, many more people remain in prison on sentences voters decided were disproportionately harsh. More than 1,100 people are still serving felony sentences for drug possession, according to Oklahomans for Criminal Justice Reform, a nonprofit organization that pushed for the law change and the recent commutations.

I need help. I am ready for recovery.Chad Mullen, an Oklahoman sentenced to ten years for drug possession

Oklahoma is now the most incarcerated state in the nation after Louisiana enacted reforms to reduce its prison population. An unusually high share of prisoners are serving time for drug possession in Oklahoma.

The state’s prison population has continued to grow and the Department of Corrections asked for a $1.57 billion budget for the coming fiscal year, which it would use to add 5,000 beds to its facilities. Before 2017, Oklahoma’s prison population had grown by almost 10 percent in five years at a time when other states have cut down on incarceration and reduced crime.

Chad Mullen, a 26-year-old who was sentenced before the passage of State Question 780, wrote to The Oklahoman from prison to explain how he feels serving a 10-year sentence for felony drug possession after the law changed.

“Here I am, Chad Mullen with 2,600 days left on a 10-year sentence for an addiction,” he wrote. “I need help. I am ready for recovery. Actually past due.”

To help people like Mullen, advocates are pushing for the law to apply retroactively. Kris Steele, former Republican speaker of the state House and now the executive director of Oklahomans for Criminal Justice Reform, told The Appeal that such a change has broad support among lawmakers.

“It looks very promising,” he said. “There’s a lot of interest. We have both Republican and Democrat elected officials who are stepping up and leading the charge to accomplish the goal of retroactivity.”

Yet an effort to apply the change retroactively failed this year. The Republican chairman of the Senate Judiciary Committee, who has since left office, refused to hear the bill largely because of pressure from district attorneys.

“The biggest barrier to reform to Oklahoma has historically been prosecutors,” Steele said.

Most district attorneys in the state criticized State Question 780 before and after its passage. They spread false narratives about the measure, saying it would make Oklahoma “more liberal than California and Washington state” when it comes to drug possession. After it was approved by voters in 2016, the Oklahoma District Attorneys Council pressured the legislature to water it down by passing legislation giving prosecutors the power to prosecute people for felony drug possession within 1,000 feet of a school. The legislation failed, and sentencing reform opponents were unable to reverse the ballot initiative. But many remain opposed to reform and say they will do what they can to hold on to strict sentencing guidelines.   

The biggest barrier to reform to Oklahoma has historically been prosecutors.Kris Steele, executive director of Oklahomans for Criminal Justice Reform

“They are resistant to change because of fear of losing power or control,” Steele said. “Maybe it’s financial reasons because so much of their budgets are also funded through fees and fines and payments on the backs of people who commit crimes.”

Trent Baggett, executive coordinator of the Oklahoma District Attorneys Council, said in a phone interview that his organization will continue to study whether State Question 780 should apply retroactively.

“I don’t want to say, knee jerk, that we would support [retroactivity],” he said. “I think the individual cases should be reviewed. That would be like saying, ‘just open the doors and let them all out.’ That’s not a fair thing either. Those individuals need to have their cases looked at and their experiences in prison considered.”

The Parole and Pardon Board sent another group of nine peoplea majority women convicted of felony drug offenses—to Fallin’s desk last week with favorable recommendations. She is expected to consider them in the coming weeks and issue their commutations in what could be another emotional ceremony.

Still, the commutations are a small step for Oklahoma. In a blog post in April, Ryan Kiesel, the executive director of the ACLU of Oklahoma, compared the state’s incarceration problem to a tumor. By approving of incremental reforms, like individual commutations, Fallin is telling the state that the tumor is no longer growing. What she can’t say, Kiesel noted, is that the tumor is shrinking.

“[We] should be asking the question why, in this moment when lawmakers at both ends of the political spectrum are signaling their willingness to tackle this crisis, when polls show voters support bold reforms, that this is all we get,” he wrote. A recent poll released by lobbying group FWD.us found that four out of five registered voters in the state believe it’s important to reduce the number of people incarcerated, and 76 percent support making State Question 780 retroactive.

Not only does Oklahoma’s prison population lead the nation but the state also incarcerates women and African Americans at a higher rate than any other. And as of late 2017, drug possession was still the top crime for prison admissions in Oklahoma, as prosecutors charge individuals using the sentencing laws at the time of their crime and not at the time of their sentencing.

“It’s heartbreaking,” Jeffries said of the people still serving the outdated sentences. “There’s definitely a need in Oklahoma, but I believe we’re starting to see the beginning of those changes coming to pass right now.”

Steele said that making State Question 780 retroactive is part of a larger plan to help Oklahoma join the dozens of states that are successfully reducing their prison populations.

“We realize that we have a severe problem with mass incarceration,” he said. “We also realize that we didn’t get to these outcomes overnight and we’re not going to undo them overnight. But we have a logical, methodical plan in place to systematically reduce the number of people incarcerated in Oklahoma and retroactivity is just a piece of that puzzle.”

‘Stand Your Ground’—a law that favors white men and increases homicides—now applies to cops in Florida

‘Stand Your Ground’—a law that favors white men and increases homicides—now applies to cops in Florida


What you’ll read today

  • Spotlight: ‘Stand Your Ground’a law that favors white men and increases homicidesnow applies to cops in Florida

  • Is the NYPD’s Special Victims Division prematurely closing sexual assault cases?

  • St. Louis reformer DA hasn’t taken office yet, and his staff already wants to join a police union

  • Statue of Liberty protester found guilty

  • After almost 24 years in prison, Colorado man sentenced at 15 will be released

  • Some immigrants are ordered released, but are held illegally

In the Spotlight

‘Stand Your Ground’a law that favors white men and increases homicidesnow applies to cops in Florida

Last week, Florida’s Supreme Court ruled that “Stand Your Ground” laws apply to police officers. The ruling offers even broader immunity to officers than they already enjoy, making it harder to hold police criminally responsible for killing civilians, even when they had other options than to kill a person. The court held that police officers have the same rights as other Florida residents: “Put simply, a law enforcement officer is a ‘person’ whether on duty or off.” The case before the court stemmed from the 2013 killing of a computer engineer who was mentally ill. The engineer, Jermaine McBean, a 33-year-old Black man, was walking into his apartment complex with an air rifle slung across his shoulders, and people called police after seeing him yell to himself. Three Broward County sheriff’s deputies responded, but McBean apparently could not hear them when when they told him to drop his weapon. He was listening to music with earbuds. One of the deputies, Peter Peraza, claimed that McBean turned and pointed the air rifle at the officers, so he fired three shots, killing him. But witnesses said McBean never pointed a weapon. And after a New York Times examination of the case, Peraza was indicted. He was the first Florida law enforcement officer to be charged in an on-duty killing in decades. [Frances Robles / New York Times]

Peraza claimed Stand Your Ground protection, and it was granted, but an appellate court ruled against him, and the Florida Supreme Court sided with Peraza. In 2012, a Florida officer tried unsuccessfully to claim Stand Your Ground to avoid trial after stomping on a 63-year-old man. The officer, Juan Caamano, went to trial and was acquitted. “Last year, two Miami police officers successfully invoked Stand Your Ground immunity when they were sued for damages in the beating of a man in a wheelchair,” reports Frances Robles for the New York Times. David I. Schoen, an attorney representing McBean’s family, said the ruling was particularly troubling because it placed too much decision-making power on elected local judges, who often depended on support from police unions to win elections: “Every unscrupulous law enforcement officer in Florida who kills a civilian now in suspicious circumstances will say he feared for his life, and even with eyewitnesses saying otherwise, he walks.” [Frances Robles / New York Times]

The 2005 law eliminates a person’s duty to retreat from a dangerous situation and allows them to use deadly force “if he or she reasonably believes it is necessary” to prevent harm or death, shielding people from both criminal and civil liability. It is commonly associated with the 2012 shooting of 17-year-old Trayvon Martin by George Zimmerman, who claimed he shot the unarmed teenager in self-defense. Last year, Florida’s law was expanded, shifting the burden of proof from the defense to the prosecution, requiring that the government prove that a person who used deadly force instead of retreating did not act reasonably. [Elizabeth Elkin and Dakin Andone / CNN.com]

It may come as little surprise that the laws make people less safe, not more. The RAND Corporation conducted a meta analysis of various studies that aimed to measure the impact of Stand Your Ground laws. They found evidence that the laws increase homicide rates, including one study published in JAMA Internal Medicine showing that Florida experienced a significant 24 ­percent increase in total homicides and a 32 percent increase in firearm homicides associated with the enactment of the Stand Your Ground law in 2005. [Lea Xenakis / RAND Corporation]

As if white people did not have enough relative advantages in our criminal justice system, some analyses have shown that Stand Your Ground laws favor white defendants. “The American legal system’s handling of violent self-defense has long favored white, property-owning men,” scholar Caroline Light argued in an op-ed last year. “Nonwhite, female, poor, or gender-nonconforming people have always been more likely to be punished for defending themselves and less likely to see the courts come to their aid when they are harmed.” She cites a study that documents how people perceive Black men as larger and stronger and thus more threatening than they actually are. These biases work their way into this law’s application because “defendants must convince the court that they were truly—reasonably—in fear for their lives in the moment when they used violence. But the concept of ‘reasonable fear’ is anything but value-neutral. Courtrooms are filled with people— judges, jurors, lawyers and witnesses—whose perceptions are shaped by the prejudices and implicit biases of our culture.” [Caroline Light / New York Times]

Light points to the case of Marissa Alexander, a Black Florida woman who fired a warning shot “to fend off an attack from her estranged husband” who had told her, “If I can’t have you, nobody will.” No one was harmed, but Alexander was denied Stand Your Ground immunity and charged with aggravated assault with a deadly weapon. Then-State Attorney Angela Corey explained that, in her opinion, Alexander “was not in fear” when she fired her weapon, she was “angry.” [Caroline Light / New York Times]

Yesterday, a trial date was set in the Florida case of Michael Drejka, a white man who shot and killed Markeis McGlockton, an unarmed Black man, after McGlockton pushed him to the ground during an argument over parking. The parking lot incident was captured on surveillance camera. Drejka had told authorities he feared being hit again, and the sheriff initially refused to arrest him under the Stand Your Ground law, fearing such an arrest would make his department vulnerable to a lawsuit. Ultimately, the sheriff did arrest Drejka, and he was charged with manslaughter. [Kathryn Varn / Tampa Bay Times]

Stories From The Appeal

 

Photo illustration by Anagraph. Photo by Bumblee_Dee/Getty Images

Is the NYPD’s Special Victims Division Prematurely Closing Sexual Assault Cases? Advocates say victims are being pressured to sign “withdrawal” forms to quickly close investigations and protect the department from legal liability. [Meg O’Connor]

Stories From Around the Country

St. Louis reformer DA hasn’t taken office yet, and his staff already wants to join a police union: Yesterday, prosecutors and investigators voted to join the St. Louis Police Officers Association. The vote comes weeks before Wesley Bell, a Ferguson City Council member who wants to reform the criminal justice system, is set to take office as the county’s first-ever Black prosecutor. As the Daily Appeal discussed last week, even when supported by voters, progressive prosecutors often face harsh resistance from inside their own offices. “[U]nionizing could make it tough for Bell to implement reforms by providing additional job protections to any prosecutors who refuse to play along,” writes Radley Balko. The vote “mostly seems to be a direct attack on Bell and his promised reforms.” The prosecutorial response to the 2014 police killing of Michael Brown was disparaged in part because the prosecutor “seemed reflexively defensive of cops,” so having “the same union represent both cops and prosecutors certainly won’t help with the public perception—particularly in the black community—that St. Louis prosecutors will always back the cops.” [Radley Balko / Washington Post]

Statue of Liberty protester found guilty: Yesterday, a federal magistrate judge ruled that the activist who scaled the Statue of Liberty on July Fourth is guilty of three misdemeanors: trespassing, interference with agency functions, and disorderly conduct, Therese Patricia Okoumou faces a maximum of 18 months in prison. Okoumou climbed the statue to protest the Trump administration’s family separation policy. She reached only the hem of Liberty’s robes, but the NYPD’s Emergency Service Unit was called, and it removed her and evacuated visitors. Okoumou, a naturalized citizen from Congo, said yesterday, “As long as our children are being placed in cages my moral values call for me to do something about it.” She wore a blue headband that read “I care,” an apparent response to Melania Trump’s tone-deaf border visit outfit. [Claire Lampen / Gothamist]

After almost 24 years in prison, Colorado man sentenced at 15 will be released: Departing Colorado Governor John Hickenlooper commuted six sentences last Friday, all life without parole sentences given to young people. One of those people was Curtis Brooks, who, at age 15, was sentenced to life without parole for his role in a robbery that left one person dead. He has been incarcerated for almost 24 years. Brooks was a homeless boy playing video games at an Aurora mall, where he met up with three boys, and they hatched a plan to steal a car. The plan went awry and another of the boys shot and killed a 24-year-old. Brooks––who, unlike the other boys, had no criminal record––was convicted of felony murder, and received an automatic sentence of life without parole, a sentence that was re-evaluated under a subsequent Supreme Court ruling. Brooks, whose story was covered in The Appeal, counts among his supporters his elementary school principal, a former juror on the case who regrets the conviction, and the original trial and sentencing judge. In prison, Brooks studied philosophy and foreign languages, and committed himself to making amends: “My mission is to vindicate any person that has supported me in any way.” [Andrea Dukakis / Colorado Public Radio]

Some immigrants are ordered released, but are held illegally: New court filings show that since the zero tolerance policy went into effect, more than 20 people have been unlawfully held in custody after they have been ordered released. “Capacity and clerical errors are largely responsible for the delays in releasing people, the documents show,” according to Maya Srikrishnan of the Voice of San Diego. “Every single day in our district there is someone in custody who should not be,” reads a court briefing filed by the Federal Defenders of San Diego. “While the Court has attempted to accommodate the government’s shift in policy, the high volume of prosecutions brought by the government in San Diego and El Centro has led to several challenges,” including attorneys not being able to meet with or even locate their clients. [Maya Srikrishnan / Voice of San Diego]

Thanks for reading. We’ll see you tomorrow.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

‘I Gotta Be Strong for My Babies’

An Oklahoma woman is serving 18 months in prison after being accused of failing to protect her daughter from the girl’s dad.

Illustration by Michelle Mildenberg

‘I Gotta Be Strong for My Babies’

An Oklahoma woman is serving 18 months in prison after being accused of failing to protect her daughter from the girl’s dad.


On Dec. 28, 2016, Tressie Shaffer woke up early for her morning shift at Wendy’s. She made a bottle for her youngest child, a 5-month-old, and gave it to her while the baby’s dad, Jason Scott, his two kids, and Shaffer’s three older children slept. She tucked the baby back in bed before leaving for work at 6:30.

Scott, who was unemployed, took care of the six children in their Tulsa, Oklahoma, home while Shaffer was working her shift that day. Just after 9 a.m., Shaffer’s manager pulled her aside with horrifying news: Her baby wasn’t breathing.

A co-worker drove her home. As they arrived, the baby, identified in court documents by the initials Z.R.S., was being loaded into an ambulance. Later, doctors would report that she had extensive bleeding on her brain and significant retinal hemorrhages, injuries that would most likely leave her blind and on a feeding tube for life. Investigators ultimately charged Jason Scott with causing the baby’s head trauma, attributing her injuries to violent shaking.

“I don’t know what happened, I really don’t,” says Shaffer now, fighting back tears over the phone. “I could never, ever imagine him doing something like that to our daughter. But that’s what they keep saying over and over again.”

Shaffer spoke to the Appeal from the Tulsa County jail, but she was transferred soon after to a state prison to serve out her 18-month sentence. Her crime? Permitting child abuse.

Oklahoma, like many states, has a “failure to protect” law that allows the prosecution of a caregiver who “knows or reasonably should know that the child will be placed at risk of abuse.”

In Shaffer’s case, the prosecution noted that the baby had bruises before the incident, which Shaffer says happened at daycare and when she hit her head on a baby bouncer. They also referenced a prior incident during which Shaffer witnessed Scott shaking the baby; Shaffer says he “jiggled her legs” in a playful manner. Scott hasn’t been tried yet but was charged with child abuse by injury and faces a maximum sentence of life in prison.

Shaffer, whose attorneys have filed a notice of appeal, told The Appeal she had no reason to suspect that abuse was occurring or would occur. “It’s ridiculous to expect somebody to predict what’s going to happen tomorrow.”

Failure to protect

Oklahoma has the highest incarceration rates in the country, according to a study released in June by the Prison Policy Initiative, and the state incarcerates women at more than double the national rate. Nearly two thirds of the women in the nation’s prisons are mothers of minor children, according to the Bureau of Justice Statistics. Ruth Hamilton, Shaffer’s attorney, said laws like “failure to protect” help fuel women’s imprisonment, which is the fastest-growing segment of the country’s prison population.

While proponents of such laws believe they will encourage parents to keep potentially abusive partners away from children, Hamilton disagrees. “I can’t see any value to this law beyond pure punishment,” said Hamilton, legal director of Still She Rises, an Oklahoma public defense nonprofit that represents mothers in the criminal justice system. “There are a lot of laws that have very limited deterrent value, but you could argue it. But in this case, who is going to be deterred by this? There’s no point to it except just to punish somebody because a child was injured—and not the person who did the injuring.”

I can’t see any value to this law beyond pure punishment.Ruth Hamilton, attorney for Tressie Shaffer

Hamilton recalled another Oklahoma case that was similar. In 2006, Robert Braxton Jr. was sentenced to probation plus two years time served for severely beating two of his girlfriend Tondalo Hall’s three children, but Hall herself was sentenced to 30 years in prison under the “failure to protect” law for permitting the abuse. Hall testified that she was also a victim of Braxton’s abuse. Yet, on her attorney’s advice, she entered a “blind plea” in which she admitted guilt without a deal from the prosecutor. Her sentence, and its seemingly disproportionate severity compared to Braxton’s, brought national attention to the unfair application of such laws, which carry potential life sentences in six states, including Oklahoma. In September, Hall’s request to have her sentence commuted was denied; her next chance to argue for commutation will be in three years.

Kris Steele, a former Oklahoma House speaker who is now the chairperson of Oklahomans for Criminal Justice Reform, said the application of the law is biased toward mothers, and is harming the very children it’s meant to protect. “These children have been traumatized through abuse,” Steele said, “and then when we take the one person out of their life that provides any stability or comfort or nurturing, it makes a bad situation worse.”

Oklahomans for Criminal Justice Reform is hoping state lawmakers will amend the law in the 2019 legislative session, he added. Currently, permitting child abuse and committing child abuse are in the same section of the law, and are punishable with the same range of sanctions. “The goal is to take ‘failure to protect’ out of the section of the state statute that applies to abuse and even murder, and have it in its own statute with its own range of consequences,” Steele said.  

Illustration by Michelle Mildenberg

Shaffer’s children were taken into foster care as the case was initiated, and Assistant District Attorney Sarah McAmis moved to terminate her parental rights, pushing that case to a jury trial. The children’s attorneys—one was assigned for the three older children and one for the baby —found that the children should remain with their mother. The jury in juvenile court agreed that the children should remain in Shaffer’s care.

Just before Shaffer’s criminal trial began, the juvenile court judge closed the case against Shaffer and even offered to speak to the district attorney on her behalf. But the district attorney’s office pushed ahead with the criminal trial, asking for a life sentence for Shaffer for knowingly permitting child abuse.

“The case of Tressie Shaffer was extensively litigated and ultimately 12 citizens of this community unanimously agreed that she was guilty of the crime of Permitting Child Abuse by Injury,” Assistant District Attorney Andrea Brown, who prosecuted Shaffer’s criminal case, said in a statement after the verdict. “Unfortunately, the victim will endure a lifetime of difficulties and denied opportunities based upon the choices made by Ms. Shaffer. Nothing will ever alleviate that amount of pain and suffering.”

A complicated case

Tressie Shaffer’s story is unusual and complex. Four years before her daughter’s injury, Shaffer’s second child, who is now 7, was found to have been shaken by Shaffer’s previous partner, Michael Lemery, who is serving a 25-year sentence for child abuse. That child sustained bleeding on his brain and in his eyes.

Shaffer’s lawyers argued that the previous incident should not be introduced during her October 2018 trial since it involved a different child and a different partner, and Shaffer was not charged in the incident. But at the trial, Judge Kelly Greenough allowed the inclusion of the Lemery case, as well as the prosecution’s allegations that Shaffer’s home was unkempt and that she had smoked marijuana around her children. Yet the judge excluded the outcome of the juvenile court case that went in Shaffer’s favor. Through a spokesperson, Greenough said she is unable to comment or respond to questions regarding a pending case or a case on appeal.

Hamilton believes the judge’s decisions contributed to Shaffer’s harsh punishment. “I definitely think that was a big part of it,” she said. “It’s hard for people, if they believe that two babies were shaken, it’s hard to believe that she’s being a protective mom.” The prosecution also noted that Z.R.S. had bruises on her body that predated the alleged incident, but Shaffer has incident reports from her daycare showing that the baby had sustained bruises and bite marks there; she had pulled her out of the daycare as a result.

Courts don't want to look at any of the science.Trevor Reynolds, attorney for Michael Lemery

Another complicating factor in Shaffer’s story is that she, Z.R.S., and her son who was injured have a rare genetic disorder called Marfan syndrome, which affects their connective tissue and can result in heart and eye problems, scoliosis, and other issues. Trevor Reynolds, who represented Lemery in his preliminary hearings, said he argued in court that Marfan syndrome could have led to the older child’s injuries. “Courts don’t want to look at any of the science,” Reynolds told The Appeal. The prosecution’s doctors “look at it like, a baby’s hurt, so somebody must have hurt the baby.” An attorney for Scott said his team is looking at a similar defense, and that Scott maintains his innocence.

There is a major debate around the science of shaken-baby syndrome, also known as abusive head trauma. Prosecutors and many doctors say a “triad” of symptoms—bleeding between the skull and brain, bleeding at the back of the eyes, and brain swelling—confirms a shaken-baby syndrome diagnosis; other doctors say the science isn’t conclusive and other factors, like accidents or underlying disease, can result in these symptoms. The controversy has led to several overturned convictions, but the American Academy of Pediatrics confirmed its support for the diagnosis last year.  

Tressie Shaffer hopes to get out of prison by January 2020, when she will first be eligible for release. Until then, her four children are staying with her best friend, who has a 2-year-old of her own. Z.R.S., now 2, has special needs, including a caregiver to administer round-the-clock medicine and feedings. Between switching homes and enduring their mother’s trials, the children have been through a tumultuous upheaval over the past two years, Hamilton said.

“This whole thing has been really, really traumatic for them,” she said. At one point, the Department of Human Services visited Shaffer’s friend’s house. The friend told Hamilton that the children “had a horrible reaction to it, sobbing and blaming themselves.” Hamilton has started a fundraising campaign to help Shaffer’s friend care for the children while Shaffer is incarcerated.

For Shaffer, the sentence came as a shock, but she tries to stay positive for her children, with whom she video-conferences briefly most nights, when she can get access to one of the in-demand machines. “They say to get into a lot of classes to help the time pass,” Shaffer said, “But all I do is think, ‘I gotta be strong for my babies.’”

Correction: This story has been updated to note that Shaffer was transferred from jail to prison soon after our interview.

Cambridge, Mass., asserts community control over surveillance technology

Cambridge, Mass., asserts community control over surveillance technology


What you’ll read today

  • Spotlight: Cambridge, Mass., asserts community control over surveillance technology

  • San Francisco officials wanted to close a dilapidated jail by 2019. So why is it still open?

  • Woman held on $300 bail dies after five months in Texas jail

  • Officers who snatched a 1-year-old from his mother’s arms did nothing wrong, according to the NYPD

  • North Carolina counties quit ICE program

  • Prosecutors in St. Louis County want to join the police union

  • Protester who climbed the Statue of Liberty goes on trial today

In the Spotlight

Cambridge, Mass., asserts community control over surveillance technology

Last week, the Daily Appeal looked at the NYPD’s launch of a drone program and the civil liberties concerns it raises, given the department’s history of unlawful surveillance, including of mosques and Muslim New Yorkers. The nation’s two largest police departments, the NYPD and the LAPD, now both have drone programs. The NYPD sought input from the New York Civil Liberties Union and the City Council on its drone policy before the official start of the program and describes the drones as intended primarily for non-surveillance purposes. But much of NYCLU’s feedback was ignored, according to the organization, and the final policy has loopholes that give enormous leeway for surveillance.

Elsewhere, there is momentum toward greater community control and oversight. Last Monday, Cambridge, Massachusetts, joined a small number of jurisdictions around the country that mandate transparency and community control over the use of surveillance technology. The City Council passed an ordinance that requires the body’s approval before any surveillance technologies can be “funded, acquired, or used.” The ordinance came out of two years of community input and negotiations over the language of the law and was backed by the city’s police commissioner. [Jenna Fischer / Patch]

The ordinance covers a wide range of devices and software including “automatic license plate readers, video surveillance, biometric surveillance technology including facial and voice recognition software and databases, social media monitoring software, police body-worn cameras, predictive policing software.” The law also covers surveillance technology that is already in the city’s hands. The police or any other city department seeking to use the technology must provide the City Council with information including the technology’s capabilities, the precise intended use, how the data would be preserved and protected, the cost of acquiring and using it, and the potential negative effects on civil rights and civil liberties and how they would be prevented. Under the law, city departments, including the police, must regularly report how they are using the surveillance tools. [Jenna Fischer / Patch]

Cambridge became the first Boston-area town to have legislation regulating the acquisition and use of surveillance equipment. The City Council of Lawrence, Massachusetts, passed a similar ordinance in September and the ACLU of Massachusetts is pushing for the adoption of legislation in two other towns, Brookline and Worcester. [Jenna Fischer / Patch]

Laws of the type passed by Cambridge’s City Council were first passed in Santa Clara County in California in 2016. Seattle; Davis, California; and other cities soon followed. This year, Oakland, California, passed an enhanced version of the law.

Oakland’s ordinance raised the bar in two crucial ways. The first was that it clearly defined surveillance technology to include software used for surveillance-based analysis. The second was that it prohibits city agencies from entering into nondisclosure agreements (NDAs) or contracts that undermine the protections of the ordinance. The Electronic Frontier Foundation highlighted the importance of these provisions, noting that, “For years courts and communities have been kept in the dark about the use of surveillance technology as a result of NDAs not only with tech vendors but also with federal agencies including the FBI.” [Nathan Sheard / Electronic Frontier Foundation]

The NYPD is among those agencies that have defended the use of nondisclosure agreements—and resisted community oversight of surveillance technologies. In City Council hearings last year on the Police Oversight and Surveillance Transparency (POST) Act, a deputy NYPD commissioner explained the department’s failure to make contracts available for review, saying, “Many of these technologies, because they’re only effective if bad people don’t know how they work and how to defeat it, are given to us pursuant to very strict nondisclosure agreements.” The range of surveillance practices that the NYPD fails to disclose information about includes facial recognition software, predictive policing software, X-ray vans, the “mosque raking” program that targeted the city’s Muslim communities, and body-worn cameras, according to reporting by the Intercept. [Ali Winston / The Intercept]

Like the ordinance adopted the Cambridge City Council, the POST Act would require the NYPD to report and evaluate all surveillance technologies that they intend to acquire or use. However, Electronic Frontier Foundation notes the limitations of the POST Act, which, unlike the ordinances adopted in Berkeley, Oakland, Seattle, Nashville, and now Cambridge, would not give the New York City Council veto power over the acquisition of surveillance technology. Nor would it give the City Council the power to order the NYPD to cease use of equipment that it used in violation of the published policy. [Nathan Sheard / Electronic Frontier Foundation]

Concerns about surveillance technology in Cambridge go back to at least 2009 when the Department of Homeland Security installed eight cameras on city streets—a small fraction of the more than 100 installed in the greater Boston area. Going under the gaze of video cameras is the cost of being in public in most large cities, but in Cambridge, thanks to public outcry, the cameras were never turned on. And thanks to the recent ordinance, they still cannot be turned on without approval from City Council. [Adam Sennott / Wicked Local]

Stories From The Appeal

 

San Francisco District Attorney George Gascón
[Photo illustration by Anagraph. Photo by Justin Sullivan/Getty Images]

San Francisco Officials Wanted to Close a Dilapidated Jail By 2019. So Why Is It Still Open? Everyone agrees the jail at 850 Bryant should close, but it’s not yet clear what would happen to those locked inside. [Melissa Gira Grant]

Stories From Around the Country

Woman held on $300 bail dies after five months in Texas jail: Janice Dotson-Stephens died in the Bexar County, Texas, jail Friday. Dotson-Stephens, 61 years old, had been jailed since July on a misdemeanor trespassing charge because she could not pay $300 bail. It was her first arrest. KSAT 12 reported that officials with the Bexar County sheriff’s office “have not said why Dotson-Stephens stayed in the jail so long, since a $30 payment would have likely been all it took to release her on bond.” She was arrested July 17 and not assigned a court-appointed attorney until Aug. 8. A judge ordered a psychological evaluation Aug. 27, 10 days after she refused to appear in court. [Dillon Collier / KSAT 12]

Officers who snatched a 1-year-old from his mother’s arms did nothing wrong, according to the NYPD: The NYPD Internal Affairs bureau has decided that the officers who tugged Jazmine Headley’s 1-year-old son out of her arms at a public benefits office in Brooklyn and then waved a Taser at the group of horrified witnesses did nothing wrong. Headley was arrested on misdemeanor charges that were dismissed last week and was at Rikers Island for four nights, away from her child. A video of NYPD and security guards’ treatment of her and her baby led to widespread outrage and condemnation. Politico reports that the the Internal Affairs investigation has yielded three policy recommendations: “guidelines for interactions between NYPD and HRA [Human Resources Administration] officers, summoning an NYPD supervisor when police respond to calls at HRA facilities and reviewing tactics and training programs for situations in which police officers encounter someone holding a young child.” [Rosa Goldensohn / Politico] On Thursday, Headley notified the city of her intention to sue. [Ashley Southall and Nikita Stewart / New York Times]

North Carolina counties quit ICE program: Mecklenburg and Wake counties, home to Charlotte and Raleigh, withdrew from ICE’s 287(g) program, which authorizes local law enforcement to research the immigration status of individuals detained at the county jail. The two counties’ new Democratic sheriffs had pledged to curtail cooperation with ICE in their successful challenges to incumbent sheriffs. The Appeal: Political Report examines the landscape of 287(g) in North Carolina in the wake of this dual announcement. Four counties are still participating in the program. But the new Republican sheriff of Henderson County has said that he is undecided about whether to continue in 2019; the immigrants’ rights groups Compañeros Inmigrantes de las Montañas en Acción and El Centro are organizing against the program in the county. [Daniel Nichanian: The Appeal: Political Report]

Prosecutors in St. Louis County want to join the police union: Wesley Bell replaced seven-term incumbent Bob McCulloch as St. Louis County prosecuting attorney in November. McCulloch, who had held the position since 1991, presided over the non-indictment of Darren Wilson, the police officer who shot and killed Michael Brown in Ferguson in 2014, one in a pattern of cases in which he did not press charges against officers who killed Black men. Bell, a former public defender and Ferguson City Council member, ran on a progressive platform with commitments to end cash bail, not seek the death penalty, and seek the appointment of a special prosecutor in cases of police shootings. (Our newsletter of Aug. 7 looked at Bell’s candidacy.) Now, assistant prosecutors are trying to join the police officer’s union with a vote scheduled for today. Tony Messenger of the St. Louis Post-Dispatch writes that, “The timing is odd, if not outrageous.” Bell’s chief-of-staff told Messenger that, “The timing is curious. For 28 years the employees have not unionized, and I noticed this happened just after the voters demanded sweeping change.” [Tony Messenger / St. Louis Post-Dispatch]

Protester who climbed the Statue of Liberty goes on trial today: Therese Patricia Okoumou’s federal trial in the Southern District of New York begins today. Okoumou climbed the Statue of Liberty on the Fourth of July to protest the separation of immigrant families at the U.S.-Mexico border. She is charged with three misdemeanors, including trespassing and disorderly conduct. The trial will be before a judge, not a jury, and she faces a maximum of 18 months in prison if found guilty on all three charges. Okoumou told PIX 11 that she looked forward to the opportunity “not only to talk to the judge but to the whole world as I did on the Fourth of July to remind everyone that we have children in cages and there are still a lot of children in cages.” [Nora Abramov and James Ford / PIX 11]

Thanks for reading. We’ll see you tomorrow.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

Is The NYPD’s Special Victims Division Prematurely Closing Sexual Assault Cases?

Advocates say victims are being pressured to sign ‘withdrawal’ forms to quickly close investigations and protect the department from legal liability.

Photo illustration by Anagraph/Photo by Bumblee_Dee/Getty Images

Is The NYPD’s Special Victims Division Prematurely Closing Sexual Assault Cases?

Advocates say victims are being pressured to sign ‘withdrawal’ forms to quickly close investigations and protect the department from legal liability.


On March 13, 2012, 19-year-old Katherine Murrell walked into the NYPD’s Special Victims precinct on Grand Avenue in Brooklyn. It had been seven months since she was raped and she hoped it wasn’t too late for justice.

Like many victims of sexual assault,  Murrell wasn’t willing to report what happened on that night in August 2011. But months later,  Murrell had nightmares and worried that if she didn’t do anything, someone else would get hurt. Armed with video of her alleged assailant recorded by friends the night of the assault,  Murrell was ready to have the Special Victims Division investigate.

Instead, she said, Detective Victor Paribello asked her about the number of sexual partners she’d had and how often she partied.

Later, on Aug. 16, 2012, Paribello handed Murrell a one-page “withdrawal” form she believed she had no choice but to sign, allowing detectives to close the case as either “B-6 Unfounded” or “C-3 Uncooperative Complainant.” “I have informed Detective Paribello that I do not wish to pursue this case any further,” read the form that Murrell signed. “I have been informed of alternative options available to me regarding this matter.” The next day, Paribello closed her case, writing that she was “no longer willing to cooperate or pursue this case,” according to the his notes in Murrell’s case file obtained through a Freedom of Information Law (FOIL) request.

“I remember distinctly thinking that this was the only thing that I could do, because that’s the way he presented it to me,”  Murrell told The Appeal. “He pretty much said we’re never going to find him, you don’t know whose house it was, you don’t know anything essentially. … He said there’s nothing else we could do.”

As far as Murrell knew, Paribello never spoke with any witnesses who were present on the night she was raped. Though she wanted her rape to be investigated, she says Paribello told her to sign the withdrawal form, then deemed her to be “uncooperative.” Paribello didn’t respond to emails from The Appeal seeking comment.

NYPD’s high rate of “unfounded” rapes

What happened to Murrell isn’t unusual.

In 2014, 1,160 cases assigned to the Special Victims Division were closed using the code “C-3 Uncooperative Complainant,” NYPD data obtained through a FOIL request shows, meaning 12.5 percent of all cases assigned to the Division that year (9,254 total) were closed due to an alleged lack of cooperation from the victim. By 2016, 1,551 cases were closed using the uncooperative complainant code.

In March, the Special Victims Division was blasted in a New York City Department of Investigation report that found staffing levels had stagnated while caseloads had skyrocketed, causing detectives to cut corners to close sexual assault cases. In the months since the report, the NYPD restructured the Special Victims Division and reassigned the head of the division, Deputy Chief Michael Osgood, to a patrol borough on Staten Island. He resigned from the NYPD the following week. In mid-November, Deputy Chief Judith Harrison, a 21-year department veteran, became head of the division. NYPD now says overall staff in the Special Victims division has been increased to 281, including 230 police officers and detectives and 51 other personnel. However, city budget documents from the 2017 fiscal year indicate that in 2016, it was a  “286 officer division,” so the personnel numbers effectively remain unchanged.

Staffing is far from the its only problem. In New York City, according to FBI data, nearly 19 percent of the 2,767 total reported rapes were considered unfounded, defined by the FBI as “false” or “baseless.” Research shows only 2 to 10 percent of reported rapes are actually false.

Some boroughs have an especially high percentage: 27 percent of rapes reported in Queens were deemed unfounded in 2015.

Though high rates of unfounded rapes are common in cities and their surrounding areas, including Baltimore County and Scottsdale, Arizona, the percentage of rapes given this designation in New York are significantly higher than that of any other major city with more than 1 million residents in the United States.

From 2014-16, the NYPD unfounded more than 16 percent of rapes. During that same time period in Los Angeles, the country’s second most-populated city, the LAPD unfounded 1.6 to 3 percent of reported rapes.

According to FBI guidelines, reported crimes can be unfounded “if the investigation shows that no offense occurred nor was attempted.” But the NYPD consistently classifies more rapes as unfounded than any other crime. In 2014, 20.2 percent of rapes were considered unfounded by the NYPD. That same year, .8 percent of robberies and assaults and .9 percent of larcenies were unfounded. The crime with the second most-unfounded complaints was motor vehicle theft at 10.9 percent.

“The form wasn’t presented like I had a choice.”

Police departments appear to use withdrawal forms in sexual assault investigations to protect themselves legally. “I don’t know why you wouldn’t just write that the victim didn’t want to proceed in your report,” said Liz Donegan, a former head of the Austin Police Department’s sex crimes unit. Tom Tremblay, a retired police chief from Vermont who works with the Department of Justice to ensure law enforcement agencies are improving their response to sexual assault and domestic violence, said the “departments that I’ve talked to say they use the form because they want to have clear documentation that the victim has selected not to participate, so that should there be liability for not following through with the case, the department feels they’re covered.”

The NYPD would not comment on specific cases nor would they explain what accounts for the high percentage of unfounded rapes. But a spokesperson for the department told The Appeal in an email that “the NYPD has made significant changes to the Special Victims Division over the last 8 months, including leadership, staffing, facilities, policy and training. As the new Commanding Officer of SVD, Deputy Chief Harrison is reviewing assignments, duplication of efforts, and identifying processes that need reform as well as meeting with advocates and other partners in law enforcement. As part of this review, Deputy Chief Harrison is looking at the Withdrawal Form and will be making changes to it. These changes will include eliminating language that has a negative connotation associated with it, and ensuring that as this information is collected, it is done in a capacity that is victim-centric. This may involve creating a new document or making significant changes to the existing one.” Retired NYPD Special Victims detectives interviewed by The Appeal maintain that the forms are simply used to document that the victim no longer wished to participate in the investigation.

Experts and advocates also expressed concern about detectives presenting withdrawal forms to a victim upon initially investigating their case.

In 2015, NYPD Special Victims detectives asked a teenage girl to sign a withdrawal form while she was still in the emergency room after undergoing a forensic rape exam. Stacia Buckner, a former Staten Island rape counselor, was in the ER that night as an advocate and called Amy Edelstein, who worked in the borough as a rape crisis coordinator. Bucker felt that the police should not have insisted that the girl sign the withdrawal form upon their first meeting in the ER because she had just undergone invasive exams and a traumatic experience. Bucker and Edelstein told The Appeal that the teenager was not informed that it would be harder for her to get financial assistance for services such as therapy or for HIV-exposure medication if she signed a withdrawal form.

“They pressured her to sign the form,” Buckner said. “She ended up signing it because she didn’t know what her other options were. She felt pressured—the detectives refused to leave the hospital until she signed it.”

In another instance corroborated by two advocates, including Josie Torielli, formerly the assistant director of intervention programs at the New York City Alliance Against Sexual Assault, a Special Victims detective unfounded the rape of a woman who needed HIV-exposure medication after the assault. OVS initially paid for the medication, but when they discovered that her rape was unfounded, they told the victim she owed them $2,500.

When a Brooklyn Special Victims detective handed Lisa Smith (not her real name) a withdrawal form in 2015, she believed that she had to sign it. The detective said he didn’t have much to go on in the case and the withdrawal form would merely put the investigation on hold pending the gathering of further evidence, such as surveillance tapes. Later, when the investigation was reopened by different detectives at the insistence of an advocate, Smith discovered that the detective who was first assigned to her case never attempted to recover surveillance tapes or interview witnesses.

“The form wasn’t presented like I had a choice,” Smith said. “There was no back and forth.”

Later, Smith applied for assistance from OVS. She made a small claim for the cost of her clothes that were confiscated by NYPD as evidence, but was sent a denial letter saying they couldn’t determine that a crime had occurred.

“She told me what happened to me…‘wasn’t rape’ because I didn’t say no.”

OVS officials told The Appeal that they are a payer of last resort, meaning victims must first make requests for assistance through health, other insurance policies, or workers’ compensation. Case closure codes, they said, are just one factor considered when determining eligibility for assistance (along with whether the victim has insurance and the results of forensic rape exam). In 2017, OVS received 870 claims for assistance from sexual assault victims. 53 percent were denied, according to data shared by OVS.

Ultimately, when withdrawal forms are inappropriately used to close sexual assault investigations, advocates say, victims suffer. In January, 26-year-old Christina West (not her real name) met with a Brooklyn Special Victims detective after leaving the hospital where she had undergone a forensic rape exam. She says she trusted the police to investigate her case.

But after West finished recounting to a female detective how she had feared for her life and pretended to be asleep when a stranger assaulted her, she simply read the section of the New York State penal law on sexual assault aloud to her.

“She told me what happened to me ‘wasn’t a crime,’ and ‘wasn’t rape’ because I didn’t say no,” West said. The detective then handed her a withdrawal form, asked her to read it, and left the room.

“I was really angered by that because at no point did I express that I wanted to cease the case,” West said. “I didn’t sign it. I wrote ‘I was raped’ on it and left the building. The police instilled so much guilt, even to this day, I question myself.”

We know how to make prosecution less awful, but many prosecutors work hard to resist any changes

We know how to make prosecution less awful, but many prosecutors work hard to resist any changes


What you’ll read today

  • Spotlight: We know how to make prosecution less awful, but many prosecutors work hard to resist any changes

  • The Appeal Podcast: How local governments are pushing back against ICE

  • Florida’s Supreme Court rules that ‘Stand Your Ground’ applies to police officers, too

  • Debunking frightening myths spread by Arizona prosecutor Bill Montgomery

  • Reformist prosecutor in Florida faces challenges from her staff

In the Spotlight

We know how to make prosecution less awful, but many prosecutors work hard to resist any changes

The third season of “Serial”––the podcast that in many ways revolutionized the medium––focused on the everyday workings of one courthouse in one city: Cleveland. “We didn’t go to Cleveland and sift through hundreds of cases looking for the most egregious injustices we could find,” producer and host Sarah Koenig says in the final episode. “We didn’t have to. The ordinary ones told us everything we needed to know.” After nine episodes tracing the myriad quotidien injustices that fail Cleveland residents daily, she imagines what she would put in the courthouse suggestion box: “After hanging around this building for a year, I have many suggestions, just off the top of my head. I’d say, go minimalist. Don’t pile six charges onto a single crime when one charge will do. Don’t overcharge to force a guilty plea. Don’t lock anyone up, unless they’re demonstrably violent. Admit that police officers lie under oath. Get out of the punishment business and turn toward the urgent problem of fairness.” Koenig continues: “Keep obsessive track of who exactly is being charged with what crime, how their sentence shakes out, and what their life looks like in three years or five years. Take note of the color of their skin and how much money they make.” [Sarah Koenig / Serial]

“Cops, prosecutors, judges, lawyers—call out the colleagues who degrade your profession. Pay assigned attorneys and public defenders at least twice as much as you’re paying them now,” she says. “And overall, slow down. Doubt yourselves.” If only allowed one suggestion, she adds, “let’s all accept that something’s gone wrong. Let’s make that our premise.” She notes that the county prosecutor told her that “people need to realize we have the best criminal justice system in the world,” which indicated that prosecutors might concede that there is room for improvement, but they are “not chomping for an overhaul, the kind of extreme makeover that the data is screaming at us to undertake.” [Sarah Koenig / Serial]

Concrete actions to take in furtherance of an overhaul are not unknown. This week, Fair and Just Prosecution, in conjunction with Emily Bazelon, the Justice Collaborative, and the Brennan Center for Justice, released “21 Principles for the 21st Century Prosecutor.” These principles focus on rolling back over-incarceration and improving the fairness and efficacy of the system. The authors of the report––by way of disclosure, this newsletter writer was a contributor––offer “practical steps prosecutors can take to transform their offices, and collectively, their profession,” including examples of “innovative endeavors by prosecutors around the nation,” as “illustrations of new approaches.” The hope is that “prosecutors will adopt a new and bold 21st Century vision for meting out mercy and justice.” Among the principles for shrinking the system are: “make diversion the rule,” end cash bail, “promote restorative justice,” and “shrink probation and parole.” To make the system fairer, principles range from “change office culture” to “broaden discovery” all the way to “employ the language of respect.” [Fair and Just Prosecution, Justice Collaborative, and Brennan Center for Justice]

Some of the work highlighted in the report was enacted by relatively new prosecutors, elected on reform platforms, such as Larry Krasner in Philadelphia, Kim Ogg in Houston, and Kim Foxx in Chicago. But there was also innovation among those who have long held the office, such as Dan Satterberg in Seattle. Which is to say, all prosecutors can and should be heeding these calls for change.

But most of them don’t. And many actively block any attempt to make life more palatable for the people caught up in the system and their families. Josie Duffy Rice has written for The Appeal about the power of district attorney associations, groups with “strong policy perspectives” that have “enough sway to simply shut down criminal justice reform at the legislative level,” even changes that are so desperately needed, and so common-sense, that they have bipartisan support in deep red states like Alabama. As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just ‘enforce’ the law; in fact, they help to make it.” Rice adds, “When it comes to criminal justice [prosecutor associations] are largely responsible for the gulf between policy and public opinion.” [Josie Rice Duffy / The Appeal]

Yesterday’s Daily Appeal included a story about a lawsuit brought by the New York state district attorneys association, challenging a prosecutorial oversight commission that was set to be formed. The district attorneys association declared its members will “not tolerate unconstitutional interference” in their work, writing in court filings that the law “unlawfully subjects prosecutors to discipline without any governing standards, in contravention of their due process and equal protection rights.” The oversight group’s formation has been delayed indefinitely. And this comes after the association—which, according to Rice, “has been shaping criminal justice legislation in New York for over a century”—helped to scuttle other reform measures that the governor had pushed, sorely needed in the areas of bail and discovery, where New York lags far behind other states.

Writing for the New York Law Journal this week, City Council Member Rory Lancman––who is running to unseat the anti-reform district attorney in Queens––notes that prosecutors have tremendous power in the system, and rarely face consequences for abiding by even the “limited restraints” that have been set. “No state, including New York, has embraced the responsibility of using its disciplinary rules to infuse prosecutorial decision-making with ethical standards that have teeth,” Lancman writes. “No New York state district attorney’s office has adopted such rules as internal policy. And relying on disciplinary rules generally applicable to all lawyers misses the important distinction between lawyers representing private interests and those—prosecutors—representing public ones.” He quotes professor Angela J. Davis, who has written: “As representatives of the state, prosecutors represent ‘the people’ (including the defendants they prosecute) and are charged with ‘doing justice’ rather than zealously pursuing the interests of individual clients.” [Rory Lancman and Rachel Graham Kagan / New York Law Journal]

Stories From The Appeal

 

Photo illustration by Anagraph. Photo by John Moore/Getty Images

The Appeal Podcast: How Local Governments Are Pushing Back Against ICE. This week’s guest, Appeal senior reporter Debbie Nathan, has been documenting how municipalities throughout the United States, especially those in deep red Texas, are using everything from mass protests to direct action to lawsuits to fight the rightward shift in immigration policies. [Adam H. Johnson]

Stories From Around the Country

Florida’s Supreme Court rules that ‘Stand Your Ground’ applies to police officers, too: The ruling yesterday offers even broader immunity to officers than they already enjoy, making it harder to hold police criminally responsible for killing civilians. The court held that police officers have the same rights as other Florida residents: “Put simply, a law enforcement officer is a ‘person’ whether on duty or off.” The 2005 law, according to the New York Times, “eliminates a person’s duty to retreat from a dangerous situation and frees them to use deadly force ‘if he or she reasonably believes it is necessary’ to prevent harm or death,” shielding people from criminal and civil liability. David I. Schoen, an attorney representing the family of the civilian killed, said the ruling was particularly troubling because it placed too much decision-making power on elected local judges, who often depended on support from police unions to win elections: “Every unscrupulous law enforcement officer in Florida who kills a civilian now in suspicious circumstances will say he feared for his life, and even with eyewitnesses saying otherwise, he walks.” [Frances Robles / New York Times]

Debunking frightening myths spread by Arizona prosecutor Bill Montgomery: “Arizona persists in the failed policies of mass incarceration, wasting resources to imprison low-level offenders,” write Jay Jenkins and Ashley Nguyen of the Texas Criminal Justice Coalition. “Data in two recently published reports detail what an outlier Arizona has become and how badly reform is needed.” Why has Arizona remained stuck in the past? One reason is that “influential tough-on-crime prosecutors, eager to preserve their own power, use cherry-picked data and long-discredited talking points to stoke fear of reform,” they write, especially Maricopa County Attorney Bill Montgomery who insists “at every turn that Arizona doesn’t need reforms proven so successful elsewhere.” Jenkins and Nguyen’s op-ed debunks three of his most pernicious myths: that Arizona provides treatment and not incarceration to those who need it; that 95 percent of Arizona’s prisoners are violent or repeat felony offenders; and that, “You have to be committed to a life of crime to go to prison in Arizona.” [Jay Jenkins and Ashley Nguyen / Arizona Capitol Times]

Reformist prosecutor in Florida faces challenges from her staff: A new report that aims to come up with data-centric ways to define good prosecution, funded by the John D. and Catherine T. MacArthur Foundation, showed that some reformist elected prosecutors have difficulty winning over their staff. In Jacksonville, Florida, some prosecutors working under State Attorney Melissa Nelson, who promised to transform her office’s culture, still don’t agree with her changes. Some deny their role in creating racial disparities. Some are not prioritizing juvenile justice reform. Others say their direct bosses were less on board with reforms. According to the report, “prosecutors had difficulty readily articulating what success looks like to them.” Despite Florida’s sky-high incarceration rates, 30 percent of prosecutors said the system was too lenient. And one prosecutor lamented, “in an ideal world the prosecutor would own the courtroom. It’s our decision; we charge the case; the courtroom should be ours. Instead, judges turn us down all the time.” [Andrew Pantazi / Florida Times-Union]

Thanks for reading. Have a great weekend.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

San Francisco Officials Wanted to Close A Dilapidated Jail by 2019. So Why Is It Still Open?

Everyone agrees the jail at 850 Bryant should close, but it’s not yet clear what would happen to those locked inside.

San Francisco District Attorney George Gascón
Photo illustration by Anagraph. Photo by Justin Sullivan/Getty Images

San Francisco Officials Wanted to Close A Dilapidated Jail by 2019. So Why Is It Still Open?

Everyone agrees the jail at 850 Bryant should close, but it’s not yet clear what would happen to those locked inside.


It’s been three years since the fate of San Francisco’s aging jail at 850 Bryant St. was all but sealed by the city’s Board of Supervisors. The building that houses the jail, known as the Hall of Justice, has been found seismically unsound and is plagued with rodents, asbestos, and seeping sewage. In a unanimous 2015 vote, the supervisors refused to allocate funds to build a new jail on an adjacent lot.

“I am not going to support another stand-alone jail to continue to lock up African Americans and Latinos in this city,” said London Breed, then president of the board and now mayor, at the time of the vote. Instead, the board and District Attorney George Gascón agreed, the funding for the jail should be directed toward diversion and mental health programs to keep people out of jail.

A year later, the city administrator, Naomi Kelly, urged the city to move quickly. She said the building, which also houses courtrooms and the offices of the San Francisco district attorney should be vacated by 2019 because it was dangerous to those who work and are incarcerated there. “At least the [prosecutors] can go home,” she said at the time. “The inmates are there 24-7, and they are locked in.”

Some offices have since left the building. But with 2019 fast approaching, the jail remains open, with several hundred people still trapped inside.

Members of the No New SF Jail Coalition fought for years against the construction of a jail, but they say the options now on the table—including moving prisoners to other jails or building other jail-like facilities—are troubling.

“Reconstruction, renovation, rebuilding, expansion of jailing capacity, extending the lifespan of the jail system—all of those options are, from a community perspective, unviable, and we won’t accept them,” said Lily Fahsi-Haskell, campaign director at Critical Resistance and part of the coalition.

They want to return to the question of what it would take to truly shrink the number of people in the jail and to close it for good, Fahsi-Haskell told The Appeal. “The first step is reducing criminalization and arrest.”  

Shrinking the jail population

The push to close the Hall of Justice intensified in 2017 when city employee labor unions demanded that then-Mayor Ed Lee move employees out of the Hall of Justice. The building “suffers from asbestos, lead paint, pests, rodents, sewage leaks, power outages, flooding, consistently broken elevators,” they wrote, adding that the city had long known the building was seismically unsafe.

Deirdre Hussey, the mayor’s spokeswoman said at the time that Lee believed it was a “moral imperative to remove everyone from the Hall of Justice, including existing inmates.”

In 2016, the Board of Supervisors assembled a work group including Sheriff Vicki Hennessy, Breed, and Public Defender Jeff Adachi plus community based-organizations and coalitions to craft a plan to close the jail and rehouse its roughly 350 current residents. In October, the group made its final presentation to the board’s public safety and neighborhood services committee.

While the county’s [overall] jail numbers have dropped significantly in recent years, and arrests in the city are down, the population at 850 Bryant has remained steady.

To close the jail, the work group found, “the in-custody jail population must be reduced by an average daily population of between 166 to 228 people.” While the county’s [overall] jail numbers have dropped significantly in recent years, and arrests in the city are down, the population at 850 Bryant has remained steady. 

High bail is still keeping hundreds of people in the jail system, according to the work group. Of the 1,329 people in custody in San Francisco jails on one day this August, 319 had bail set higher than $100,000, and of those, 194 had bail set over $500,000. And most people were not even eligible for bail, because they were serving out a sentence, or had other conditions that prevented their release. 

San Francisco’s jails also incarcerate a population that is disproportionately Black—53 percent in a city that is only 6 percent Black.

In October, the San Francisco district attorney’s office received a $2 million grant from the MacArthur Foundation “to enhance in-custody treatment of mental illness, reduce the jail population, reduce recidivism, and to eliminate need for a replacement facility,” said Max Szabo, a spokesman for Gascón. He says the office is aiming for a 16 percent reduction in total jail population. Achieving that, Szabo says, would entail getting those in need of mental health or substance use disorder services into treatment. About 40 percent of those in the system countywide, including at 850 Bryant, have mental health concerns, he said.

Though his office is in the process of moving out of the Hall of Justice, Gascón said he has doubts that the people jailed at 850 Bryant will be moved out by even the end of 2019, though it’s not impossible. “I think it would require aggressive action by the board to clear out the jail,” Gascón told The Appeal. “And it could be done.”

Getting people out is “really doable,” said Fahsi-Haskell, “and there’s multiple ways that could be accomplished very very quickly.” Those include arresting fewer people for crimes of poverty, releasing more people pretrial, or getting more young people out of the system, she said. “A lot of steps could be taken. But there’s a lot of pointed fingers and a lot of passing the buck.”

Finding alternatives

Those who remain in the jail when it officially closes would need to move elsewhere. They could be released into the community with support, an option that advocates back, or moved to other facilities. The city could lease space in the Santa Rita Jail in Alameda County, but San Francisco Public Defender Jeff Adachi opposes that plan because it would mean incarcerated people would be much farther from their families and their attorneys. There is also a jail in San Bruno operated by the county of San Francisco, which Sheriff Vicki Hennessy supports expanding, but she says it would require $183 million in renovations and wouldn’t be available until 2023.

Gascón has endorsed a third option: The jail’s residents, or some of them, could be housed in what his office is calling a behavioral health justice center, meant to divert people from the jail by offering them mental health and substance use disorder treatment.

A better option, advocates say, would address the intersections between mental health and criminal justice.

Soon after the supervisors’ vote defeating a new jail, Gascón proposed building such a center as an alternative. Though it met opposition at the time, he said, “I still believe it is the right solution.” Police would apprehend people and take them there, as they would a jail, and they would still face charges. But the proposal advanced by Gascón stresses that the center is not “a ‘mental health jail’” and is intended to be therapeutic.

As it was envisioned, the center is in part a secure facility, and while the treatment services offered are voluntary, advocates say people will feel coerced to accept them if the alternative is jail. “We proposed one with several tiers of services, including a lockdown facility,” said Gascón, noting that it was the locked part of the facility that drew opposition from the community.

“I am willing to perhaps not include that component and include all the others,” Gascón said, “because we need to get this done.”

A better option, advocates say, would address the intersections between mental health and criminal justice without further involving people in the system. Members of the No New SF Jail Coalition support expanding programs like the Progress Foundation, which offers cooperative housing and treatment services in a community setting, to people who have been homeless, incarcerated, or have a history of substance use.

“It’s something the community has already established,” said Suleima Rosales, a member of Critical Resistance. “What would it look like for the board of supervisors to invest in that?”

North Carolina’s largest counties quit ICE program, what it means to run as a nonpolitical prosecutor, and more

North Carolina’s largest counties quit ICE program, what it means to run as a nonpolitical prosecutor, and more


In This Edition of the Political Report

December 13, 2018:

  • North Carolina: State’s two largest counties quit ICE’s 287(g) program. Will a third follow?

  • Washington: What does it mean to take politics out of prosecution? A look at Pierce County

  • Wisconsin: Will anyone run for district attorney?

  • Maryland, Pennsylvania, Tennessee: Brighter spotlight on life sentences and parole rules

You can visit the Appeal: Political Report website to read our latest analyses of the local politics of criminal justice reform and mass incarceration.

North Carolina: State’s two largest counties quit ICE’s 287(g) program. Will a third follow?

ICE’s prized 287(g) program took a hit last week. Two of the nation’s four largest counties with 287(g) contracts quit the program within days of one another; both are North Carolina counties that encompass more than one million residents each.

Gerald Baker and Garry McFadden promised to curtail cooperation with ICE in their successful bids against the sheriffs of Wake County (Raleigh) and Mecklenburg County (Charlotte) this year. And both terminated their counties’ 287(g) contracts shortly after entering office.

The contracts authorize local law enforcement to research the immigration status of people brought to the county jail. Mecklenburg and Wake’s participation led thousands to be deported over the last decade. Its proponents argue that these deportations improve public safety; Wake County’s departing sheriff, Donnie Harrison, described 287(g) as “a valuable tool that has identified some very dangerous individuals.” But Harrison’s participation meant that he was alerting ICE of people who were not yet convicted and who faced minor allegations. According to Indy Week, one of the last individuals to face deportation in Wake because of 287(g) is a man named Coronilla Loyola who was arrested in November for driving without a license.

Harrison’s policies shaped the very circumstances of Loyola’s arrest since Harrison rejected demands by immigrant rights’ activists that he support legislation enabling undocumented people to get driver’s licenses or that he recognize alternative forms of identification.

In addition, Durham County’s new sheriff, Clarence Birkhead, announced that he would stop honoring ICE requests to continue detaining individuals beyond their scheduled release. (Durham was already not part of 287(g).) Birkhead ousted Sheriff Mike Andrews, who defended such detainers, in the Democratic primary in May.

Mecklenburg and Wake’s departures leave four North Carolina counties in the 287(g) program.



One of these four, Henderson County, has a new sheriff who is publicly undecided about whether to remain in 287(g). Lawrence Griffin ousted Sheriff Charlie McDonald in the Republican primary, which took place right after high-profile ICE raids. Griffin expressed ambivalence toward 287(g) during the campaign. “I am going to have to look into [287(g)] in detail,” he told WLOS in May. “We have a lot of folks in this area that have come here looking for a better way of life. They are paramount to the economy of Henderson County as a whole, so I don’t want to use it as a punitive measure to intimidate anyone in the county.” Griffin indicated in November that he was still undecided and he pointed to the current contract’s June 30 expiration as a horizon for his decision. The immigrants’ rights groups Compañeros Inmigrantes de las Montañas en Acción and El Centro have been active in demanding change, and First Congregational United Church of Christ in Hendersonville launched a petition for the county to quit 287(g).

Cabarrus County is yet another 287(g) county with a new sheriff. Cabarrus joined the program in 2008 under the direction of Democratic Sheriff Brad Riley, who retired this year and endorsed Republican Van Shaw, the eventual victor. I found no public statements from Shaw about 287(g), and his office did not answer requests for comment regarding his position toward it.

The sheriffs responsible for 287(g) contracts in the remaining counties are still in office. Both secured new four-year terms in November. In Gaston County, Democratic Sheriff Alan Cloninger joined 287(g) in 2007, and his website boasts of the deportations that the program has enabled. In Nash County, Republican Sheriff Keith Stone joined 287(g) in March of this year. Despite the fact that this county is politically competitive, Stone secured a second term without facing a single opponent in either the primary or general election.

Immigrant rights’ organizers also scored a win in Alamance County, where Sheriff Terry Johnson dropped his application to rejoin the 287(g) program in November. The Obama administration terminated Alamance’s contract in 2012 after a Department of Justice investigation alleged discrimination and racial profiling by Johnson and his deputies. Groups including Siembra NC and Down Home NC organized numerous protests against Johnson’s bid for a new 287(g) contract this year. Andrew Willis Garces, the organizing coordinator for American Friends Service Committee, the group that launched Siembra NC, told me that this local mobilization was crucial to the sheriff’s decision to back down. “They’ve seen the level of opposition,” he told me. “It’s literally been evident on street corners. That has everything to do with it. This has been an unprecedented year of organizing, with different kinds of people who are not the usual suspects coming up against family separation locally. That is very inspiring.”

However, Johnson is still looking to reinstate a contract to house ICE detainees in exchange for payments. The 287(g) decision “is a victory in the sense that there will not be county employees doing ICE’s job, but there will still be ICE employees nearby,” Garces said of this other potential deal. “It’s still going to undermine public safety.”

You can find a standalone version of this story here.

Washington: What does it mean to take politics out of prosecution? A look at Pierce County

Mark Lindquist, the Democratic prosecuting attorney of Pierce County (a populous county home to Tacoma), suffered an uncommonly large defeat for an incumbent in November. He lost 63 percent to 37 percent to independent candidate Mary Robnett, an assistant attorney general.

Lindquist’s ethics were at the forefront of the campaign. In 2015, whistleblower complaints against Lindquist led to an external investigation that documented a toxic work environment within the prosecutor’s office and retaliation against critical employees and defense attorneys. This year, Lindquist received an admonition from the Washington State Bar Association for a separate complaint against remarks he made in 2016 on the TV program “Nancy Grace” about a murder trial that his office was prosecuting.

In her challenge to Lindquist, Robnett emphasized that prosecutors ought to be nonpolitical. Her website stated that she “strongly believes that politics doesn’t belong in the Prosecutor’s Office. Crime is not partisan. Justice shouldn’t be political.”

But Robnett’s campaign also illustrates the limitations of this commonly used trope.

For one, it ignores the policy decisions that actors involved in the criminal justice system are constantly making. Robnett’s platform has no statement regarding how she would exercise her vast discretion, for instance when it comes to charging decisions or bail; in fact, it displays no recognition of the policy freedom that prosecutors have. Moreover, in highlighting how the campaign is apolitical, Robnett’s website prominently features the support of police unions, as though these groups did not themselves have a politics. “Mary has received the endorsement of every police organization that is endorsing in this race,” says her website. But many of the organizations listed were simultaneously opposing Initiative 940, the referendum that lowered the threshold to prosecute police officers for using excessive force.

This trope reinforces the expectations that the main axis on which to differentiate within prosecutors is whether they are competent and exercise good governance, and that prosecution is mainly about obtaining convictions. The website’s main criticism of Lindquist’s prosecutorial practices are that he “has the highest number of overturned guilty verdicts”; and it highlights Robnett’s experience “handl[ing] some of Pierce County’s biggest cases and worst criminals.”

This framing also downplays the criminal justice system’s broader problems. Robnett pledged to transform the prosecutor’s office in terms of overcoming Lindquist’s tenure as a rogue public official. “We deserve a Prosecutor like Mary, a professional who is focused on crime, not image management and climbing the political ladder,” says her platform page. But Robnett skipped two of a trio of questions about how she would address the “epidemic of over-incarceration” in one candidate questionnaire; in answer to a third, she only mentions increasing the use of diversionary programs and drug court.  

But this question was an important one. Of Washington’s five most-populous counties, Pierce has the highest number of prison admissions per capita, according to statistics released by the state Department of Corrections. And in filing a class-action lawsuit in 2017 against the way in which the Pierce County Jail treats people with mental illnesses, the ACLU of Washington condemned the county’s “revolving door of incarceration.”

Whether the policies implemented by the incoming prosecutor reinforce or reverse these patterns of mass incarceration will be central to assessing Robnett’s tenure. But confronting these problems will require going beyond targeting a set of exceptionally rogue practices.

You can find a standalone version of this story here.

Wisconsin: Will anyone run for district attorney?

An obstacle to using elections to hold district attorneys accountable for their policies or their misconduct—let alone to transform the criminal justice system from the inside by getting candidates to pledge reform—is that elections for prosecutor rarely feature multiple candidates. A Political Report analysis earlier this year, for instance, found sparse competition in California, Minnesota, Oklahoma, and Utah’s 2018 elections.

Wisconsin’s elections are coming up in 2020. The Political Report reviewed all elections held in the state since 2008 to show the extent of this phenomenon.

Over this period, Wisconsin held three regular elections for district attorneys (in 2008, 2012, and 2016). But very few drew more than one candidate. Of the 71 district attorneys elected in 2016, only 23 faced an opponent in either the primary or the general election. And that was already a substantial increase over 2008 and 2012.

In fact, the majority of Wisconsin counties haven’t held a single contested DA election in the last 10 years. A near-majority hasn’t held one since before 2008.

Even those counties that did hold a contested election at some point were unlikely to pull off that feat twice. Just 10 counties held more than one contested election from 2008 to 2016.



This isn’t a pattern that primarily concerns small counties, where one might expect a smaller pool of candidates. In Wisconsin’s 10 largest counties, there were just four instances from 2008 through 2016 where the winner faced even a single opponent. (This means that these counties chose their district attorney in elections where the winner was the sole candidate on 26 out of 30 occasions.) None of these counties held two contested elections over this period.

Will the electoral pressure on Wisconsin’s district attorneys increase in 2020 in the wake of some of the recent successes for candidates who have run on overhauling the criminal justice system? The Political Report will keep an eye on this question as 2019 unfolds.

You can find a standalone version of this story here.

Maryland, Pennsylvania, Tennessee: Brighter spotlight on life sentences and parole rules

Excessively lengthy sentences were under the spotlight last week when the Tennessee Supreme Court ruled that Cyntoia Brown will be eligible for release after 51 years for a crime she committed at the age of 16. Writing in the Daily Appeal, Vaidya Gullapalli explains that Brown’s sentence should be understood in the context of Tennessee’s harsh sentencing laws and of the nationwide efforts to end life imprisonment. In the wake of U.S. Supreme Court rulings that have restricted life without parole sentences for minors, one issue is whether existing parole procedures provide a meaningful prospect for release. Gullapalli reviews recent court decisions that have denied relief to petitioners in Tennessee and in Missouri. (Tennessee legislators from both parties have pushed legislation to expand the parole eligibility for people convicted as teenagers in recent years, but such bills have not succeeded so far.) The Florida Supreme Court issued similar rulings this year, reversing a decision it had issued in 2016. And Maryland’s Supreme Court ruled in August that the state’s tight parole process was sufficient.

Rachel Cohen reported in The Intercept on Maryland’s strict parole rules this week. Since 1995, Maryland has required that governors personally approve parole requests for anyone serving a life sentence. This rule has restricted opportunities for release as Democratic and Republican governors have routinely rejected recommendations made by the state’s parole commission, including requests made by petitioners who were sentenced as minors. Cohen writes that advocates have launched a multipronged efforts to change parole rules and to pressure Governor Larry Hogan into approving more requests now that his re-election campaign is behind him.

Finally, Samantha Melamed reports in the Philadelphia Inquirer on the predicament of some Pennsylvanians who were sentenced to life without parole as minors. To seek new sentences based on the recent U.S. Supreme Court rulings, they must first drop their claims to innocence. “Stay in jail because you’re claiming you’re innocent, or bet on a chance at freedom now,” said Jules Epstein, a law professor at Temple University. “That’s a horrible choice.”

Thanks for reading. We’ll see you next week.

The waiting game: NYPD ripped 1-year-old from mother, but why did the benefits office expect her to wait for hours, standing up, with a child?

The waiting game: NYPD ripped 1-year-old from mother, but why did the benefits office expect her to wait for hours, standing up, with a child?


What you’ll read today

  • Spotlight: The waiting gameNYPD ripped 1-year-old from mother, but why did the benefits office expect her to wait for hours, standing up, with a child?

  • Pennsylvania man charged with homicide wasn’t even present when victim was killed

  • Man who trolled officer by playing “F*** tha Police” found not guilty

  • With almost 15,000 immigrant children in government custody, shelters near capacity

  • New York prosecutors sue over prosecutorial watchdog commission, delay implementation

In the Spotlight

The waiting game: NYPD ripped 1-year-old from mother, but why did the benefits office expect her to wait for hours, standing up, with a child?

There is no shortage of things to ask about the treatment that 23-year-old Jazmine Headley received at a social services office in Brooklyn last week. Headley was with her 1-year-old son, waiting for childcare vouchers for over four hours in the crowded room, and because there were no available chairs, she sat in a corner with her child in her lap. A security guard told her to stand, Headley refused, the security guard called police, and when the NYPD arrived, they forcibly wrenched the boy out of Headley’s arms. When onlookers objected, an officer pointed a Taser at them and at Headley. They then arrested Headley and charged her with resisting arrest, acting in a manner injurious to a child, obstructing governmental administration, and trespassing. She was held at Rikers Island. An order of protection kept her from having contact with her son. But a video of the incident went viral, prompting widespread outrage, and, in response to that outrage, the judge ordered her released (calling the incident a “horrific scene that was broadcast all over the United States”) and the Brooklyn district attorney’s office dropped the charges. [Ewan Palmer / Newsweek]

One could ask, for example, what makes an officer so insensitive to ignore the anguished screams of a mother and, in the face of no danger at all, rip her child away and threaten both with a Taser. (The answer might lie in the police’s obsession with “complete submission” at the expense of safety, a topic we explored last week.) One could ask who the officers thought they were protecting when they pried a baby from his mother, who had done nothing wrong, an act that necessitated two visits to the hospital. (The baby is expected to make a complete recovery.) One could ask if Headley should have been charged with acting in a manner injurious to a child, or why the officers weren’t charged since they actually injured the child. One could ask why the NYC Human Resources Administration “peace officers” called the NYPD instead of, perhaps, getting Headley and her child a chair, or, in the alternative, doing nothing because she wasn’t bothering anyone? (The peace officers have been put on administrative leave.)

Patrick Lynch, president of the largest NYPD union, said his officers were simply enforcing the law, though it was unclear which law she had broken. “The event would have unfolded much differently if those at the scene had simply complied with the officers’ lawful orders,” he said, apparently regardless of how nonsensical those orders were. “The immediate rush to condemn these officers leaves their fellow cops wondering: When confronted with a similar impossible scenario, what do you want us to do? The answer cannot be ‘do nothing.’” This prompts the question: Why not?

One could ask if Headley would still be sitting on Rikers Island, with a protective order keeping her from her child, if a bystander had not recorded video. And how many times has this happened when no one was recording?

But one little-noticed aspect of the story is the sheer wait that Headley was expected to endure, and how she was expected to comport herself and control her child during that wait. In courtrooms, jails, and benefits offices around the country, low-income people are told to wait. For hours. They are not told to return in an hour, or that someone will call them when it’s their turn, or to take a seat, have a cup of water, and read a book. In criminal court, defendants and their families are often forced to wait for hours. They must do so silently, and are not allowed to read a newspaper, let alone check their phone. There is simply no regard for their time. In this writer’s experience as a public defender in New York, defendants show a tremendous amount of patience during the long waits in court, more patience than this writer has ever had. One judge would penalize any client who arrived late––for any reason––by forcing him or her to return the next day and sit silently for hours until the case was called last, at 5 p.m. If that would cause the person to miss work, or a doctor’s appointment, or a parent-teacher conference, the judge would say, “I don’t care. You can be here, or you can be in jail.”

In criminal courts, “a defendant must show up—braving long lines at security, only to fritter away hours waiting in courtrooms, just to appear for a ‘calendar call’ that usually lasts 90 seconds or less and almost always results in further adjournment,” writes former public defender David Feige. He notes that these long waits, repeated over months and years, can be disastrous and cause people to plead guilty simply to end the court dates. Feige has proposed that criminal defendants be treated more like civil litigants, whose lawyers file lawsuits and litigate them on their behalf. They need not appear until it is time to be deposed or go to trial. [David Feige / New York Times] As Malcolm Feeley noted in his seminal 1979 study, when it comes to lower criminal courts, the process itself is the punishment.

One attorney told the Daily Appeal that in a Dallas courtroom recently, a woman’s cell phone rang, and she immediately left the courtroom. Unsatisfied that the disturbance was gone, the judge ordered a bailiff to chase the woman outside, which he did. He snatched the phone from her hands, returned, and handed it to the judge. In Washington, D.C., one attorney tells the Daily Appeal that “marshals and security are basically on self-appointed phone patrol” and also throw people out if their children make any noise. In New Orleans, according to one former public defender, “judges loved to arrive hours late and then throw tantrums and issue warrants if clients had the nerve to step out to use the bathroom or their phones.” Another attorney says a D.C. woman was crying while waiting for her case to be called, and “the judge yelled at her and ultimately made her go into the hallway and wait.” One public defender who used to practice in New York reminds us that although people coming to court from the outside are treated badly, those who are brought to court from Rikers wait  in court holding cells, where they often go long periods, sometimes all day, without anything to eat or drink. As another New York-based defense attorney noted on social media, about Jazmine Headley’s ordeal: “Nobody chooses to bring their infant to a crowded waiting room to sit on the floor and then be harassed by security so they can get a daycare voucher so they can go clean floors.”

I, like many, complain about trips to the DMV, but the last time I went, I settled into a padded chair, took out my laptop, and used the wifi to get work done. In the end, I waited only half an hour––which, in New York, is about average.

Stories From The Appeal

 

Photo illustration by Anagraph. Photo by txking/Getty Images

Pennsylvania Man Charged With Homicide Wasn’t Even Present When Victim Was Killed. Darius Jacob Taylor was out of state when a robbery he was allegedly involved with ended in murder. But because of the felony murder rule, he’s charged with criminal homicide and faces life imprisonment. [Joshua Vaughn]

Stories From Around the Country

Man who trolled officer by playing “F*** tha Police” found not guilty: This week, a Michigan jury took nine minutes to acquit a man who had blasted an anti-police anthem in the presence of an officer. In June, a sheriff’s deputy was ticketing a driver for a traffic violation, when another man, James Webb, who did not know the driver, began playing NWA’s “F*** tha Police,” and then walked into a store. When he came out of the store, the officer gave him a ticket for misdemeanor noise violation. Webb faced a $500 fine and 93 days in jail, but he felt it was a free speech issue, and took the case to trial. A jury acquitted him. The officer had claimed that he took issue with the expletive in the song, but Webb’s attorney notes that a video of the incident showed the officer using the same word. When asked what he would say to the officer, Webb told FOX 2 Detroit, “I don’t know, just same as the song would say. Sorry. Sorry that you didn’t get one over on somebody.” [Zuri Davis / Reason]

With almost 15,000 immigrant children in government custody, shelters near capacity: The children are mostly teenage boys from Central America fleeing poverty or gangs, and they plan to ask for asylum. The largest migrant youth shelter, located in a remote area of Texas, is taking in roughly twice as many children as it can release. The government is considering various solutions, including releasing children more quickly to sponsors in the U.S. or adding more beds. NPR reports that the process for screening potential sponsors has “slowed to a crawl” because of a “new policy that says anyone who lives in the sponsor’s house can be fingerprinted for a criminal background check,” which the Trump administration justifies by saying it is a precaution taken to ensure the safety of the children. Relaxing those vetting rules would enable 1,300 children to be released to sponsors, according to a source familiar with the shelter operation. Ironically, the Office of Inspector General in the Department of Health and Human Services last month faulted the shelter contractor for not conducting FBI fingerprint background checks on its 2,000 staffers. [John Burnett / NPR]

New York prosecutors sue over prosecutorial watchdog commission, delay implementation:  “Governor Andrew Cuomo and top lawmakers in the New York Legislature have agreed to delay the creation of a special commission to investigate complaints of misconduct by the state’s prosecutors, according to a stipulation approved by a state judge,” reports the Albany Times-Union. The agreement was reached in response to a legal challenge from the state district attorneys association, which filed a lawsuit that claimed the law was unconstitutional. The district attorneys association declared its members will “not tolerate unconstitutional interference” in their work, writing in court filings that the law “unlawfully subjects prosecutors to discipline without any governing standards, in contravention of their due process and equal protection rights.” The governor’s office has said that legislative amendments will repair the constitutional defects and the commission will be established. [Brendan J. Lyons / Albany Times-Union]

Thanks for reading. We’ll see you tomorrow.

Have a tip for The Appeal? Write to us at tips@theappeal.org. A good tip is a clear description of newsworthy information that is supported by documented evidence.

Pennsylvania Man Charged With Homicide Wasn’t Even Present When Victim Was Killed

Darius Jacob Taylor wasn’t in the state when a robbery he was allegedly involved with ended in murder. But because of the felony murder rule, he’s charged with criminal homicide and faces life imprisonment.

Photo illustration by Anagraph/Photo by txking/Getty Images.

Pennsylvania Man Charged With Homicide Wasn’t Even Present When Victim Was Killed

Darius Jacob Taylor wasn’t in the state when a robbery he was allegedly involved with ended in murder. But because of the felony murder rule, he’s charged with criminal homicide and faces life imprisonment.


Twenty-year-old Wesley Burnett was shot once in the chest on Oct. 20 while attempting rob two men in a wooded area near a farm outside Chambersburg, Pennsylvania.

Burnett died along a gravel road near the crime scene; soon after, four men, including Darius Jacob Taylor, 20, were charged in his killing. But Taylor did not fire the shot that killed Burnett. He was not even in the state when the offense occurred.

At first, Taylor was charged only with conspiracy to commit robbery. But Franklin County District Attorney Matthew Fogal amended his charges to include criminal homicide—a catch-all charge in Pennsylvania that includes second-degree murder and carries with it a potential life sentence.

Police said Taylor helped Burnett and another man, Issayah Fostion, 20, coordinate a marijuana buy from Cole Robinson, 19. The plan was rob Robinson, but Taylor sent Burnett in his place. When Burnett pulled a gun, he was shot and killed by Anthony Bernardo, 36, who was traveling with Robinson.

Fostion then called Taylor to tell him what happened. Taylor told Fostion to take Burnett to the hospital, but Fostion feared he would get in trouble, so he dumped Burnett along the side of the road and fled.

Pennsylvania State Police initially charged Fostion, Bernardo, and Robinson with second-degree murder, which carries a mandatory sentence of life in prison; Bernardo’s and Robinson’s charges were later changed to criminal homicide. All four men charged in connection with Burnett’s death were denied bail and are  being held in Franklin County Jail awaiting trial.

Fogal declined The Appeal’s request for an interview because he said he is barred from making “extrajudicial comments” about the case.

States Beginning To Reject Felony Murder Rule

The felony murder rule—which punishes people for deaths that occur during the commission of crime like robbery—continues to carry profound consequences. On Dec. 4, Texas executed Joseph Garcia, who was convicted of capital murder in the death of a police officer during a robbery at a sporting goods store in 2000, even though Garcia maintained he never fired his gun. Garcia and his six accomplices, who had escaped from prison just before the robbery, were charged under Texas’s law of parties, which holds that the state must show only that an accomplice to one felony may have “anticipated” another felony could occur in order to be held responsible for the crime.

But use of the felony murder rule is being rejected elsewhere. California recently passed a law changing the standard for the use of felony murder. Under the new law, prosecutors are required to prove the defendant was the actual killer or substantially assisted the killer.  The new law would also allow people convicted of felony murder to petition for a new sentence. Supporters of the law estimate that 400 to 800 people are serving sentences in California for felony murder.

In Pennsylvania, however, the use of felony murder persists. In 2014, Fogal charged 20-year-old Darius Spoonhour with second-degree murder after a 2013 home-invasion robbery near Chambersburg.

Police said Spoonhour and Jannoris Hughes attempted to rob the home of Mickle Shaffer, but Shaffer fought back, grabbed Hughes’s gun and killed him. Shaffer was convicted of third-degree murder and sentenced to at least 20 years in state prison. Fogal later dropped the felony murder charge against Spoonhour in exchange a conspiracy to commit robbery plea in which he was sentenced to three and a half to seven years in prison.

Proponents of the felony murder rule say it’s a deterrent against violent crime and helps prevent death during the commission of such crimes. But there is little or no evidence to support that argument.

Susan Sharp, a professor of sociology at the University of Oklahoma, told The Appeal that it is highly unlikely that someone committing a robbery or any other crime is thinking they will get caught and do not consider the consequences of someone getting harmed or killed during its commission.

Sharp said prosecutors use the potential of a felony murder charge to coerce guilty pleas to lesser charges that “become a notch in the prosecutor’s belt.”

A 2016 study by University of Chicago law professor Anup Malani found the felony murder rule has little to no deterrent effect and may slightly increase the number of deaths associated with serious felony crimes. While much of the academic work around the felony murder rule focused on its legal justification, Malani’s study used nationwide FBI Universal Crime Report data between 1970 and 1998 to review its efficacy. Malani found no evidence that the felony murder rule had a deterrent effect on crime or reduced the number of deaths resulting from felonies. “Policymakers should draw one conclusion from this paper: the felony-murder rule does not substantially improve crime rates,” Malani wrote.

For Taylor, his alleged involvement in a robbery that turned deadly could mean he that he has already spent his last days as a free man—despite not firing a shot or even being present at the scene of the crime.

The Appeal Podcast: How Local Governments are Pushing Back Against ICE

With Appeal senior reporter Debbie Nathan.

Photo illustration by Anagraph. Photo by John Moore/Getty Images

The Appeal Podcast: How Local Governments are Pushing Back Against ICE

With Appeal senior reporter Debbie Nathan.


With the swearing in of President Trump in January 2017 came an aggressive rightward shift in America’s immigration policy, specifically with regard to Immigration and Customs Enforcement. Our guest, Appeal senior reporter Debbie Nathan, has been documenting how municipalities throughout the United States, especially those in deep red Texas, are pushing back using everything from mass protests to direct action to lawsuits.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.

Transcript:

Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod and on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe and rate us on iTunes. With the swearing in of President Donald Trump in January 2017 came a broad rightward shift in America’s immigration policies specifically with regard to Immigration and Customs Enforcement, otherwise known as ICE, which has increasingly been used as a kind of strike force against immigrant communities, harassing, documented and undocumented a like. Our guest, Appeal reporter Debbie Nathan, has been documenting how municipalities throughout the United States, and specifically those in Texas, are pushing back against these forces using everything from legal support to direct action to lawsuits.

[Begin Clip]

Debbie Nathan: There’s a law that was passed in the Texas legislature that has a short list of crimes that can be cited rather than arrested and charged as misdemeanors that you can get a ticket. And one of those is possession of small amounts of marijuana. And so now in Austin, if you’re stopped and you have a little amount of marijuana, you are always cited now rather than arrested. And of course that’s very protective of immigrants because once the immigrant gets into the jail the immigrant is a sitting duck for ICE, but with a citation you don’t go to jail. We believe this is very helpful for all of Austin’s population and particularly as we know the over representation of people of color and poor people who are subject to this kind of law enforcement.

[End Clip]

Adam: Thank you so much for coming on Debbie.

Debbie Nathan: Thank you.

Adam: So you’ve written recently and done some really good reporting on the ways in which municipalities are pushing back against both the state and federal immigration policies. Uh, specifically the federal policies under Trump. You wrote an article on November 9th called, “States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies,” that detailed some of the efforts that are going on in this regard. I want to start by talking about what’s referred to generally as the Freedom Cities movement. What does that mean in the context of ICE? I know that with Trump there’s sort of a whirlwind effect where we can lose track of all kinds of racist policies and actions that are going on, but, but can you sort of clear the air here and talk about what the current status of ICE’s policies are in these cities? Um, and what quote unquote “liberal” cities and municipalities are doing to push back?

Debbie Nathan: ICE has for a while had a policy where it demands that, um, for example, sheriffs who run jails, tell ICE when an immigrant is getting ready to be released from jail. And so that gives ICE the opportunity to show up and do an interview about this person’s immigration status. And this has actually been going on for quite a while. It was going on under the Obama administration. And um, but when Trump came in, by the time Trump came in, there were several municipalities, there were counties and there were cities and states as well that had passed policy saying, you know, we’re not going to share this information with ICE. And so the DoJ under Trump started saying, we are coming down on you, if you are not going to be sharing information with ICE we’re citing a law called US Code 8 §1373, which is an Immigration and Nationality Act law that says that local law enforcement cannot prohibit its officials from sharing information with ICE. So the DoJ said, we’re just going to take away your JAG J-A-G grants, which are Justice Assistance Grants. They are like a lot of money that are given to localities to beef up their criminal justice enforcement. And so, um, you know, that was the main threat that was made against many, many localities. Some of those localities where, um, New York, Chicago, Philadelphia, Los Angeles, San Francisco, New Orleans, there were counties, there were smaller cities, there were states including California and Vermont. So it’s, it’s really interesting in order to see how cities have been able to push back lately against ICE’s demands that they’ve based on 1373, we have to look at a lawsuit that was brought by the governor of New Jersey against the National College Athletic Association and the National Hockey League and the NBA and the NFL. And um, it’s a, it’s a lawsuit claiming New Jersey’s right to allow gambling, sports gambling. So it turns out that back in the nineties, Congress enacted this law called the Professional and Amateur Sports Protection Act, which basically outlawed sports betting nationwide except for a few grandfathered states that already had it. So New Jersey brought this case that ended up going all the way up to the Supreme Court and it was decided by the Supreme Court earlier this year. What they decided was that this Act, um, violated the 10th Amendment, you know, which that’s the part of the Constitution that reserves for the states what the federal Constitution doesn’t cover. But also the court decided that it, this sounds so military, it also violated what’s called the Commandeering Principle. You ever heard of that?

Adam: No. What is that?

Debbie Nathan: So the Commandeering  Principle says that unless Congress passes a whole set of regulations covering particular activities, Congress can’t order local governments to regulate in a particular way.

Adam: Okay.

Debbie Nathan: Okay. So, so basically the Supreme Court said that, um, you know, this, this lawsuit, they decided for New Jersey because they said that this Professional and Amateur Sports Protection Act was unconstitutional. Now, going back to what these local municipalities did when they, they also, sometimes were sued or they sued the DoJ and they argued that 1373 was unconstitutional using this Supreme Court decision based on sports gambling. And so, um, there have been judges now in Philadelphia, Chicago and Los Angeles have said that’s right, 1373 for the same reasons is unconstitutional. The California court actually said it looks like it’s unconstitutional, but um, you know, what we can expect is that they’re going to be a lot more lawsuits brought by these local entities against 1373. So it looks like 1373 is going to be knocked out. But this is a thing that it leaves a lot of, I wouldn’t say a lot, but several states, this phenomenon still leaves several states under the thumb, not even of 1373, but of their own legislatures. So Mississippi, for example, Tennessee, Iowa, they recently, their own state legislatures passed laws saying that law enforcement cannot refuse to share information with ICE. And the one actually, the one state that everybody probably knows about, who’s interested in this, is Texas. So last year it was very contentious and made national news, Texas passed a law called Senate Bill 4 or SB4 and not only does SB4 say that, um, for example, a sheriff cannot refuse to give information to ICE, you know, I mean, it’s not just that the sheriff’s going to like not get some funding, but that sheriff can also be arrested and charged with a crime. So SB4 before is very draconian and there’s no way that any municipality in Texas can go and sue based on the unconstitutionality of that. It is just not gonna work. And so, um, what’s really interesting is that there are communities in Texas where they’ve sort of tried to, particularly city councils, they’re trying to figure out work arounds to protect immigrants.

Adam: Yeah. So, so what you have here, broadly speaking, just to kind of backup, is that there’s an interplay between the federal government, which is obviously very right-wing and very hard on immigration and then you have these municipalities which are generally speaking more liberal. Uh, they obviously have huge immigrant communities, um, and then you have certain states that are kind of an extra tier of pro-Trump immigration that’s sort of preemptively outlaw cities from doing certain things. Now, one of the cities you highlight, which is I think pretty much the quintessence of this dynamic, is Austin, Texas, go Longhorns, they’re my, they’re my alma mater, where the pushback is coming from the city. And you highlight one council member there, a gentleman by the name of Greg Casar, who teamed up with groups like Grassroots Leadership, United We Dream, Workers Defense Project, they’re trying to make these ordinances to prevent police from doing these sorts of things. Um sort of this whole, ‘show me your papers’ routine and throwing people in jail. Can you talk about this case and what the current legal status of these efforts are?

Debbie Nathan: Yeah. Um, so first I should say that Greg Casar is a member of an organization called Local Progress, which is kind of a subsection of a national organization called the Center for Popular Democracy. So Local Progress is this national network of progressive elected officials from cities and counties and towns and school districts and other governments across the country and they get together and they talk about how they can do things on a sort of very local level. So Greg Casar is on the Austin City Council, as you mentioned, and is a member of Local Progress, he teamed up with the groups that you mentioned to start doing things like, I find this very creative, for example, he was looking, really giving a close look at what Texas law allows. Okay. So one thing that Texas law allows is the Fifth Amendment right not to answer if a border patrol agent or an ICE officer asks you what your legal status is. You don’t have to answer. And so, um, what the police are doing an Austin now because of Greg Casar’s work with the city council, is that they, when they stop people, if they ask them what their legal status is, at the same time that they ask, they have to tell the individual, you know, you have a right not to answer.

Adam: Right because a lot of people wouldn’t know that, obviously.

Debbie Nathan: Yeah, that’s right. Most people don’t know that. And um, you know, another thing that they’ve done and I think that this represents not just a concern for immigrants, but a concern for the people of color in all of these communities that are interested in doing this, there’s a law that was passed in the Texas legislature that has a short list of crimes that can be cited rather than arrested and charged as misdemeanors, that you can get a ticket, and one of those is possession of small amounts of marijuana. And so now in Austin, if you’re stopped and you have a little amount of marijuana, you’re always cited now rather than arrested. And of course, that’s very protective of immigrants because once the immigrant gets into the jail, right? The immigrant is a sitting duck for ICE, but with a citation you don’t go to jail. And you know, I mean, clearly this is very helpful for all of Austin’s population and particularly as we know, the, um, over representation of people of color and poor people who are subject to this kind of law enforcement. So those are a couple of things that are happening in Austin and then when I did the article, there are other members of Local Progress in Texas. There’s a guy on city council in Dallas is um, you know, gone to meetings and met Casar and he’s doing the same kind of thing in Dallas. His name is Philip Kingston. He also started a cite and release policy that’s similar to the one in Austin and it covers a few misdemeanors including marijuana possession. When I talked to him, he told me that he was going to ask the Public Safety and Criminal Justice Committee of the city council to also require the police tell detainees that they don’t have to answer questions about their immigration status. He was like, he said, you know, once he got that going, he would go to the full council. And then I spoke with a council person in El Paso who is also a member of Local Progress and she said that she was sort of waiting for some more progressive political developments on city council and she was planning to do this as well. So, um, this is what’s going on in Texas and you know, again, like there are actually progressive little towns and smaller cities in Texas that haven’t ever heard of this, you know, it’s still a very fledgling kind of a situation. And it’s interesting to me as a reporter because sometimes when I would go and talk to local officials in other places in Texas, they’ve never heard of this. And just the reporting itself, it’s kind of weird, the reporting itself does a little bit of seeding. It’s very interesting.

Adam: One of the criticisms that sanctuary cities have gotten from the left is that a lot of these nominal sanctuary cities have carve outs. I know that specifically in Chicago, where this show is recorded, Rahm Emanuel has been criticized for presenting himself as a defender of immigrants, but there’s a lot of carve outs for when these so-called sanctuary cities can assist ICE. And one of them is, for example, an outstanding criminal warrant. If they’ve ever been convicted of a felony or have an open felony case, that happened in one major case, and one major factor that is, I think the more egregious end of this, is whether or not they’re on the city’s gang database or the police’s gang database, which is notoriously broad and includes a lot of people. Is notoriously racist as well. Pretty much anyone who has vague ties to gang can get on it. Can we talk about what the limits of even sanctuary cities are and what that term means in different contexts?

Debbie Nathan: Yeah, I mean there are a lot of carve outs. The one that I’m aware of in Chicago, um, has to do with task forces. I remember reading about people that were just working at a bodega, you know, at a convenience store, and a ICE and police task force came in and raided the store and arrested everybody working there, including the cashier because they were looking for somebody there. I think the, the absentee owner of this place, you know, they suspected him being involved with something or other, whether drugs or gang. Um, so yeah, I mean there are many situations where, you know, these local officials are still working with ICE and a lot of times they’re sort of soft spots situations. They have to do with the public’s perception. You know, that it’s really important to control gangs or it’s really important to control drug distribution rather than possession. Actually it’s interesting in Austin, talking about task forces, in Austin they don’t feel that they can pro forma refuse to do task forces. They can’t just as a matter of principle, but the city council person was telling me that it’s a very valid refusal to say, you know what? ‘We don’t have the resources for this. We’ve got other things that we need to do with our cops then join your task forces.’ And um, again, you know, I think if you come up with some concrete reasons why this is just a misuse of resources at a particular time, that works. So I mean some of these things that people have to do, the reasoning or the rationale is, you know, I don’t know how far it can go because you always come up against, as you said, these carve outs. But I think the fact that, that these local lawmakers are thinking about these things and trying really hard to act on them is something that really needs to be, um, you know, really brought to the public, especially in places like Texas.

Adam: One of the things we talked about offline is how people in these rural areas, especially in South Texas and Southern California and a lot of agriculture, a lot of worker hotspots, who don’t have access to these more generally liberal cities. These people are cut off from these kinds of liberal enclaves. Um, what are efforts to actually reach out to those people or trying to go where they are? I know this is an issue with immigrant courts. There’s a lot of rural counties in Texas that are very conservative and people who are, who are out there, who are undocumented, who find themselves in these immigrant courts, they are three, four, five times more likely to be held in jail without a reasonable bail. What are activists doing to try to reach out to these more obscure places, uh, that aren’t necessarily sanctuary cities, but are kind of in a place that have a high concentration of immigrants in rural areas?

Debbie Nathan: You know I live in South Texas, I live right on the border and I’ve lived on the border for years and I would say that the situation is complicated in that first of all, immigration detention is different from criminal detention. And second of all, the border is so utterly inundated from here all the way to California, not only, I mean, with border patrol agents. Now in Texas, you also have, you have this flank. I mean it’s literally an army of state troopers who have been working with the border patrol for a very, very long time, for years. So they hand people over. They stop them pretextually and they hand them over to the border patrol and there’s always a border patrol agent within five minutes away. And so the stop, even if the stop is completed, supposedly for the ticket, for the traffic violation, there’s a border patrol agent that’s going to up before the tickets been written. And so that’s considered legal, right? You’re not making a new stop because the guy shows up while you’re writing the ticket or, or you just prolong the stop. You say things like, ‘well, you know what  I need to go back to my car and get something, you just wait right here, sir,’ while you’re waiting for the ten minutes instead of five minutes from the border patrol. So I mean, it’s such an exceptional situation on the border. And then people who are taken directly into immigration detention do not pass go, do not pass the jail. They don’t even go to jail, you know. So, um, the only thing that I could say is that when you combine that with the fact that there are no immigration lawyers in places like South Texas that could work pro bono, there’s literally two or three and yet this is the place where most people are arrested under those circumstances, right? So you have an extremely beleaguered activist community and I’ll tell you another thing about that activist community, is that and I’m speaking more about Texas I guess then Arizona and California, you have many, many people that themselves are DACA or they’re green card holders, they’re not US citizens. They’re terrified to do anything that’s going to result in their arrest as activists, which is going to put them in danger of being deported. I mean there’s just multiple reasons, Adam, why this kind of activism is really hard and it’s not that some of these communities are not liberal. The man that I mentioned, you know, the mayor of La Joya, Texas. La Joya is two miles from the border as far as city hall is, in that, in that city. But he feels extremely constrained because his economy is so based on the presence of border patrol and DPS and because he’s just worried about the material well being of his city. You look up in the sky in La Joya and you see drones and you look down and you see razor wire and you see the military and you see border patrol and you see state troopers. It’s really, really hard in communities like this to do the kind of work that’s being done up in Austin, but I think that once it really gets going in other parts of Texas, there will be the possibility of doing it right on the border. Border communities are not necessarily conservative communities, they’re just militarized communities.

Adam: What groups do you see pushing back against the federal and state focused on deportation and ICE?

Debbie Nathan: Grassroots Leadership in Austin and Workers Defense Project are really doing strong, you know, aggressive and creative work to push back. On the national level, there’s an organization, the Immigrant Legal Resource Center, ILRC. It’s a group of lawyers, they’re based in California and in DC and they just provide really, really good resources to activists about the law. I mean, you know, it took me like five minutes to talk about 1373 and to talk about a gambling decision from the Supreme Court, but activists often need to know a lot about immigration law and a lot about case law and these guys are really good resources.

Adam: Yeah, that was great. We’ll definitely check those out. Debbie Nathan I really appreciate you coming on the show.

Debbie Nathan: Thank you so much Adam.

Adam: Thank you to our guest Debbie Nathan. This has been The Appeal podcast. Remember, you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Just a heads up, we’ll be taking a holiday break over the next coming weeks and we’ll see you in the new year.

Cyntoia Brown and an effort to end life imprisonment

Cyntoia Brown and an effort to end life imprisonment


What you’ll read today

  • Spotlight: Cyntoia Brown and an effort to end life imprisonment

  • NYPD commander’s text messages show how the quota system persists

  • Sheriff’s office allegedly tipped off ICE in violation of sanctuary law

  • Will Kentucky end felony disenfranchisement?

  • Many life sentences and few commutations in Pennsylvania

  • Courts can’t be in the business of collecting debt owed for jail time

In the Spotlight

Cyntoia Brown and an effort to end life imprisonment

Last week, the Tennessee Supreme Court issued its decision determining that Cyntoia Brown, sentenced to life in 2006 for killing a man when she was 16, will become eligible for release only after serving a minimum of 51 years in prison. Brown has explained how she acted in self-defense, shooting Johnny Allen, the 43-year old man who had picked her up for sex, after he showed her the rifles and guns in his home and when she believed he was about to harm her. Brown’s case, the story of her life and the violence she experienced as a teenager engaged in survival sex work, has attracted national attention in the last year. [Mariame Kaba and Brit Schulte / The Appeal]

The Tennessee Supreme Court’s decision came in response to a question of law from the Sixth Circuit Court of Appeals. The Sixth Circuit is considering Brown’s argument that her mandatory sentence of life is prohibited under the Supreme Court’s ruling in Miller v. Alabama, which deemed a mandatory sentence of life without parole for youth under 18 to be unconstitutional. The Sixth Circuit had sought clarification on Tennessee’s sentencing laws, to understand if and when Brown could be eligible for release. Governor Bill Haslam is also considering Brown’s petition for clemency and has promised to reach a decision before he leaves office in six weeks. [Lilly Dancyger / Rolling Stone]

The laws under which Brown was sentenced are some of the harshest in the country. Tennessee’s truth-in-sentencing laws, adopted in 1995, abolished parole for the crimes punished with the longest sentences, and doubled the presumptive minimum time a person must serve before becoming eligible for release. The possible sentences for a conviction of first-degree murder for adults are death, life without the possibility of parole, or life. For those under 18 when they are sentenced, the two options are life without parole and life. A life sentence, as the Tennessee Supreme Court clarified last week, is a determinate sentence of 60 years. Someone sentenced before 1995 could become eligible for release after serving 60 percent of that 60-year sentence, but that changed. Anyone sentenced to life after 1995, like Cyntoia Brown, must serve at least 85 percent of the sentence, or 51 years. [Jeannie Alexander / Nashville Scene]

Last year, the Associated Press reported that there are at least 100 other people sentenced as teenagers in Tennessee who must serve half a century before they will become eligible for release. Speaking with the AP, Marsha Levick of Juvenile Law Center called Tennessee’s sentence of life “the most extreme so-called alternative to [life without parole] that I’ve heard.” Legislative efforts to shorten these sentences have so far been unsuccessful. [Sheila Burke / Associated Press]

But Tennessee is not the only state where people, including those sentenced as teenagers, are serving extremely long prison terms. Extreme sentences, even those that seem to fly in the face of constitutional protections, have largely resisted challenge. In April, the Supreme Court declined to hear the petition of Bobby Bostic, sentenced to 241 years for robbery and other non-homicide offenses committed in Missouri when he was 16. Bostic’s lawyers argued that the sentence, under which Bostic would not be eligible for parole until he was 112, was prohibited under the Supreme Court’s decision in Graham v. Florida, that sentences of life without parole for juveniles who did not commit homicide were unconstitutional. Judge Evelyn Baker, at the time of sentencing, said, “Bobby Bostic, you will die in the Department of Corrections.” Bostic will not be parole eligible until 2201. “Nobody in this room is going to be alive in the year 2201,” the judge continued. [Liliana Segura / The Intercept] In a sign of how much attitudes toward lengthy sentences, particularly for young people, have begun to change, Judge Baker went on to write an op-ed for the Washington Post, expressing regret over the sentence she imposed and support for Bostic’s release. Despite wide-ranging support for Bostic’s petition, the Supreme Court declined to consider the case. [BBC News]

Last week, the Sentencing Project launched its Campaign to End Life Imprisonment. The campaign builds on the organization’s research into the impact of life and “virtual life” sentences and calls for sentences to be capped at 20 years. The United States sends people to prison for life at the same rate that Denmark, Finland, and Sweden send people to prison at all. The Sentencing Project’s focus on “life imprisonment” includes what it terms virtual life sentences, sentences of at least 50 years—like Cyntoia Brown’s and Bobby Bostic’s—that have the effect of incarcerating people for a lifespan. Currently, 206,000 people are serving life sentences, 44,000 of them virtual life sentences, a number that has quadrupled since 1984 and makes up 1 out of every 7 people in prison. And while the rate of life sentences has increased sharply across the board, the number of women and girls—many of them with experiences of sexual assault, trauma, and abuse—serving life sentences has gone up even faster. An end to life imprisonment would also overwhelmingly affect Black and Latinx people, who make up two-thirds of those in prison sentenced to life. [Ashley Nellis / Sentencing Project]

The Sentencing Project’s campaign comes at a time of widening recognition that any meaningful change to the U.S. system of incarceration requires tackling the decades-long sentences handed down for an array of convictions. The sentencing of Cyntoia Brown to life in prison is representative of the worst of the practices that built mass incarceration. Dismantling it requires a new consensus that Brown, and the hundreds of thousands spending decade after decade in prison for no justifiable reason, should be free.

Stories From The Appeal

 

Photo illustration by Anagraph. Photo by tillsonburg/Getty Images

NYPD Commander’s Text Messages Show How the Quota System Persists. Officers say the language used now is more subtle but still encourages numbers-driven policing. [George Joseph]

Stories From Around the Country

Sheriff’s office allegedly tipped off ICE in violation of sanctuary law: Attorneys for a woman detained by ICE for four months are alleging that the Alameda County Sheriff’s Office informed ICE of her scheduled release from jail, in violation of the California Values Act, the state’s sanctuary law. The law, also known as Senate Bill 54, went into effect January 1. Maria Ortega Rangel, who is undocumented, moved to California from Mexico 18 years ago. In January, she was charged with drug trafficking and initially denied bail, after detectives found heroin belonging to her husband in their home. When a judge ordered her release two weeks later, she was brought back to Santa Rita jail where ICE agents arrived later that day to arrest her. Ortega’s attorneys believe sheriff’s deputies “proactively communicated with ICE” to let them know when Ortega would be released, according to the East Bay Express. Ortega was released from immigration detention in May after a federal magistrate judge found that she was wrongfully denied the opportunity to post bond, and prosecutors have dismissed all charges against her. [Darwin BondGraham / East Bay Express]

Will Kentucky end felony disenfranchisement? Can Kentucky change its draconian disenfranchisement rules, which permanently strip all individuals convicted of a felony of the right to vote? The Appeal: Political Report examines some avenues of reform that organizers are pursuing in a state that disenfranchises 9 percent of its voting-age population and 26 percent of all Black adults. Proponents have pushed a constitutional amendment to restore the rights of people who complete a sentence for most felony convictions, much like Florida just did. But Kentucky, unlike Florida, has no popular-initiative process so the legislature would need to adopt such an amendment. Such measures gained bipartisan support in the recent past but eventually stalled; a Democratic senator plans to introduce a new version in 2019. Advocates also call for targeting what gets charged as a felony in the first place. “According to the state’s Department of Public Advocacy, a majority of juveniles charged with misdemeanor theft in 2016 were white; a majority of those charged with felony robbery were African American,” according to the Political Report. “The latter charge comes with a lifetime ban on voting, but not the former.” [Daniel Nichanian / The Appeal: Political Report]

Many life sentences and few commutations in Pennsylvania: Pennsylvania Governor Tom Wolf has commuted only two life sentences in his nearly four years in office. The state has more than 5,300 people serving life without parole sentences, the second-highest number in the country. Wolf also has not granted a pardon or commuted a sentence since 2016. Lieutenant Governor Mike Stack, who made improving access to pardons a priority, blames the Board of Pardons, which he oversaw. In four years, the board recommended five out of 200 applications for commutation of a life sentence to the governor. Stack blames a politicized board-appointment process and the requirement of a unanimous vote in favor of commuting a life sentence before an application can be forwarded to the governor. Changing the way the board operates would require a constitutional amendment. An alternative is the passage of a law, introduced unsuccessfully last session, that would make those serving life eligible for parole after 15 years. [Samantha Melamed / Philadelphia Inquirer]

Courts can’t be in the business of collecting debt owed for jail time: A Missouri appeals court ruled Tuesday that courts cannot be involved in the collection of payments from people charged for their incarceration. The decision came in the case of John Wright, who was sentenced to 90 days for failing to pay a taxi bill, and then owed $1,300 for his “board bill,” the charges levied for his time jail. After his release, Wright was ordered to report to court “month after month for show-cause hearings, or payment review hearings.” The St. Louis Post-Dispatch reported that “the decision, if it stands, in effect ends a debtors prison scheme that has been common in rural counties throughout the state.” In its unanimous decision, the court found that “the term ‘show-cause hearings’ is never mentioned (in the key sections of law) and is therefore not the proper method by which to collect costs.” [Tony Messenger / St. Louis Post-Dispatch]

Thanks for reading. We’ll see you tomorrow.

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NYPD Commander’s Text Messages Show How the Quota System Persists

Officers say the language used now is more subtle but still encourages numbers-driven policing.

Photo illustration by Anagraph. Photo by tillsonburg/Getty Images.

NYPD Commander’s Text Messages Show How the Quota System Persists

Officers say the language used now is more subtle but still encourages numbers-driven policing.


For almost a decade, the NYPD has battled lawsuits, whistleblowers, and press exposés alleging that the department enforces a “quota” system that requires officers to log a certain number of arrests and summonses—or face retaliation. Officers themselves have spoken out against quotas, arguing that the practice encouraged cops to ignore some offenses, while embellishing or making up others.

Since Commissioner James O’Neill took over in 2016, the department has consistently said quotas no longer exist, and promised to punish supervisors found to be enforcing the practice.

But officers across the city say the practice continues in other, more subtle forms. Internal text messages from one Manhattan lieutenant, obtained by The Appeal, offer a window into how NYPD precinct supervisors, and the officers under them, are still being pushed to chase numbers.

In a June 2018 text conversation obtained by The Appeal, the lieutenant notifies his sergeants about an upcoming TrafficStat review meeting at NYPD headquarters, where his boss may be questioned about the precinct’s traffic enforcement activities. With the review in mind, he orders the sergeants to make sure their patrol officers focus on certain traffic violations, such as speeding or using a cell phone while driving:

“Apparently we have traffic stat next week,” he says. “Make sure we have the cops handle hazard traffic conditions in their sector. Who ever is in tmrw for patrol I want a traffic initiative in our cpl,” a likely reference to a crash-prone location.

The lieutenant adds that he wishes he could give his sergeants individual data on their officers’ activity numbers. “Make sure all your cops are contributing,” he says. “Unfortunately I don’t have the break down for the officers as our traffic sgt has not provided any stats for us.” (A 2012 lawsuit alleged that individual officer activity numbers were being used to enforce the quota system.)

The NYPD has long maintained that while it uses “performance standards” to evaluate officers, it does not push them to hit specific numerical targets.

“There are no numerical enforcement quotas established by the NYPD,” Lieutenant John Grimpel wrote in a statement to The Appeal regarding the content of the texts. “Performance evaluations are conducted for all Department employees based on an assessment of their duties, responsibilities and specific conditions of their assignments.”

But six NYPD officers who reviewed the messages told The Appeal that such language is typical of the new, less explicit methods supervisors use to enforce an unofficial quota system today.

He’s ordering them nicely to go and find those summonses. It doesn’t matter how you get them, just get them. anonymous officer, NYPD

Although it’s unclear how widespread these practices are, the six officers said they have experienced such pressure within their precincts. Three of these officers—Ritchie Baez, Pedro Serrano, and Sandy Gonzalez—are part of the “NYPD 12,” a group of officers of color that is suing the department over alleged retaliation for their refusal to go along with the quota system. After raising questions about the practices, the officers allege, they were given undesirable posts, lost overtime, or were passed over for promotions. The other three officers requested anonymity, citing fears of professional reprisal. All six saw echoes of the quota system in the texts about traffic enforcement.

“He’s ordering them nicely to go and find those summonses,” said one of the officers. “It doesn’t matter how you get them, just get them. We still have a quota. Nothing changes. You still have to pay your rent.”

How ‘broken windows’ fuels quotas

Scholars say the unofficial quota policy developed in response to the NYPD’s introduction of “broken windows” policing in the 1990s. Setting activity minimums helped push a sometimes recalcitrant force to crack down on the low-level violations prioritized by the new approach. This pressure pushed officers to go after both minor quality-of-life crimes and traffic violations, as the Village Voice exposed in 2010. Police leaders believed that increasing day-to-day opportunities for questionings, searches, and arrests would catch criminals and deter would-be criminals.

Since its implementation, crime has gone down, and NYPD leadership took credit for the drop. But scholars have increasingly cast doubt on the degree to which these tactics brought down crime. Activists consistently argued that the program disproportionately targeted Black and Latinx residents for minor offenses.

The resulting backlash has led to intensified scrutiny of quota practices. In past leaks to the press, supervisors have been caught giving officers explicit target numbers for specific offenses. In the texts obtained by The Appeal, the lieutenant does not reference a specific number, but makes clear that he is tracking their summons totals, relative to last year, to ensure that the unit is “productive.”

In another message, he notes that “traffic stat package shows day tour was the least productive in the 28 day,” referring to an NYPD data handout that compares current and last year’s precinct summons numbers in 28-day intervals. “This is not your guys fault as I didn’t have any stats to review and discuss with you guys.” The message concludes with the seemingly contradictory note: “The amount of summons is not our focus. Please constantly remind your cops what our goals are in terms of traffic.”

Although the commander says quantity doesn’t matter, the tracking sheet used by the department suggests otherwise. The Appeal viewed a November 2018 version of an NYPD 28-day summons tracking sheet, like the kind referred to by the lieutenant. The sheet shows rows of a select group of offenses, like “Bike/ E-Bike,” “Cell Phone,” and “Speeding,” and compares the “Current 28 Day” total to that of the year before. Summons categories with higher numbers compared to last year are colored in green, while categories with numbers coming up short are colored in red.

If I’m out there and I need to get red lights, and I see a dangerous lane change, I’m probably not going to go after that because I need my red lights. anonymous officer, NYPD

The officers interviewed say the messages show supervisors are still under pressure to maximize the number of summonses their officers write even if they can’t set a specific numerical goal as in previous years.

“Productivity means, ‘Are you bringing in the numbers?’” said one officer, referring to the lieutenant’s language in the text messages. “They’re saying that the day tour hasn’t done their fair share of numbers. You’ll never get them to say a number, but it’s understood that you’re expected to get so much.”

Another officer agreed with that assessment, adding that he has heard of similar practices elsewhere. “A captain once told me, it just means we can’t put a definite number,” he said. “But it doesn’t mean we can’t tell them to write more.”

The quota expectations are set by last year’s numbers, the officers say, pointing to the lieutenant’s reference to the “28 day” productivity data. To track officers’ activity and generate numbers for the right offenses, the officers said, precinct captains use the kind of summons tracking sheets viewed by The Appeal.  Precinct captains must match or increase their activity relative to the previous year, or face criticism, multiple officers explained.

When they go to TrafficStat, they’re called out on that. ‘Why are you down? Why aren’t you where you were the year before?’” said the officer who spoke about productivity. “Most of the times they’re looking for, at the minimum, obtaining last year’s number, and more is certainly desired.” 

The officers say this seemingly relentless focus on stats forces officers to hunt for summons opportunities, which may not be fair or even legal.

“If I’m out there and I need to get red lights, and I see a dangerous lane change,” the officer continued, “I’m probably not going to go after that because I need my red lights.”

To get their numbers, officers will sometimes “inflate” what they see, one officer said. “When they need to get that number and it’s getting late, instead of 67 they might write 71 [speeding violations],” he added. “It’s not the officers’ fault. It’s the supervisors who know what’s happening.”

A 2017 statistical analysis by Columbia Ph.D. student Jonathan Auerbach shows how the quota system influences behavior. Examining 2014-15 traffic summonses and moving violations citywide, Auerbach found that while collisions remained effectively unchanged, officers tended to write more tickets in the second half of the month. This ticket bump, he found, was “due entirely” to officers with below-median ticket productivity in the two weeks prior. On the other hand, officers ahead of their peers in ticketing for the first half of the month drastically reduced their ticketing rate in the second.

The hard part is that they are targeting innocent people for riding their bike on the sidewalk or having a dog without a leash, things that go on all over the city but have different impacts in different neighborhoods.Nicole Smith Futrell, CUNY School of Law

Not everyone sees such benchmarks as a problem. Joe Giacalone, a retired NYPD detective sergeant and adjunct professor at CUNY’s John Jay College of Criminal Justice, agreed the text messages “certainly sound like” quota instructions, but argued the NYPD needs such tools to ensure officers do their jobs.

“There are very few ways we can evaluate police officers’ activity. You can’t count how many times they shake someone’s hand on the street,” he said in a phone interview. “It’s written in the job description to make arrests and write summons, so it’s not forcing you. You signed up for that.”

‘Quota pressure from the top’

The text messages obtained by The Appeal focus on traffic enforcement, but NYPD officers say they believe unofficial quotas are also still pushing officers to ticket residents for other infractions, such as low-level quality-of-life violations.  

Ritchie Baez, a Bronx officer and one of the NYPD 12, says although sergeants in his precinct don’t explicitly set numerical targets nowadays, he believes their priorities link back to the quota system.

“They say this is today’s initiative, whether it be Vision Zero’s cell phone summonses, or urinating or drinking in public,” said Baez. “When you’re being asked to do a specific initiative, that’s because of the quota pressure from the top.”

In January, “Crime + Punishment,” a film chronicling the efforts of the dozen NYPD officers who sued over the quota system, won a Sundance Film Festival award. The next month, the NYPD, while still denying the existence of the system, instituted a mandatory no-quota training session for officers.

City Council reforms passed last year have resulted in more broken windows summonses being issued as civil, rather than criminal, violations. But these low-level police stops, whether for traffic violations or civil infractions, can still have pernicious collateral consequences, especially for poor residents of color, argues Pedro Serrano, another Bronx officer who is part of the NYPD 12.

Let’s say you get a summons and you can’t pay it,” he notes. “They can suspend your license. But you’re driving around still, so now they have to arrest you.”

In the first three quarters of 2018, the NYPD issued nearly 900 criminal summonses for drivers with suspended, revoked, or no licenses. During that same period, Black and Latinx residents made up the majority of those receiving civil and criminal summonses.

Nicole Smith Futrell, an associate professor at the CUNY School of Law, says quotas or “productivity goals” are often more pronounced in Black and Latinx neighborhoods because police want to stop and question more residents in areas with higher rates of crime. Yet these broad-brush tactics, she argues, criminalize average residents just because of where they live.

The hard part is that they are targeting innocent people for riding their bike on the sidewalk or having a dog without a leash, things that go on all over the city but have different impacts in different neighborhoods,” she said. “You have to stop people based on suspicion of a crime. If you are finding these low-level ways just to stop people, that’s problematic.”

The NYPD’s decades-long commitment to broken windows policing means that unofficial practices like the quota system are likely to persist, says Bernard Harcourt, a Columbia University law and political science professor, who has criticized the NYPD’s approach to low-level crimes since the early 2000s. “There are real issues of path dependence here,” he said. “Institutions create real legacies and this is one that seems to be staying with us.”


If you are a current or former law enforcement officer, please contact us with tips. Reporter George Joseph can be reached on the secure phone app Signal at 929-282-2471 or by email at gmjoseph@protonmail.com. To ensure your messages are end-to-end encrypted, email with a free Protonmail or text with a Signal account.

The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow

The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow


What you’ll read today

  • Spotlight: The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow

  • Secretly recording police officers is protected by First Amendment

  • A punitive turn looms on Florida Supreme Court

  • Philadelphia law enforcement derived millions from selling seized properties, including to police officers

  • Indiana police chief fired over disciplinary failures and police assault of handcuffed man

In the Spotlight

The country’s largest police department now has a drone program. NYPD critics worry illegal surveillance will follow

Last Tuesday, the NYPD announced that it will deploy 14 drones and train 29 police officers to operate them. The NYPD now joins a rapidly growing list of police agencies around the country that have drone programs. The announcement has triggered concerns about unauthorized surveillance, given the department’s history of spying programs. [Ashley Southall and Ali Winston / New York Times] See also Our July 20 newsletter looked at the vast and unregulated field of law enforcement drone use.

In a statement after the announcement, the New York Civil Liberties Union (NYCLU) argued: “The NYPD’s drone policy places no meaningful restrictions on police deployment of drones … and opens the door to the police department building a permanent archive of drone footage of political activity and intimate private behavior visible only from the sky.” The department insists it will not engage in warrantless drone surveillance, but that is far from reassuring given its history of spying on mosques and Black Lives Matters protests. The NYCLU saw an early draft of the drone policy and provided feedback. Though the department incorporated some of the organization’s input, it ignored the bulk of it. [Kay Wicker / Think Progress]

The NYCLU is concerned that the department will use drones “to spy on protesters legally exercising their constitutional rights.” Surveillance is far more feasible with drones because they are small and relatively inexpensive. The NYPD policy provides for the use of drones to monitor “large scale events” but does not clearly define what a “large scale event” is. Also, though the policy forbids equipping drones with real-time facial recognition technology or, after the NYCLU’s feedback, the use of the technology on drone footage, it creates an exception for footage in the “case of a public safety concern,” potentially “an exception so big it swallows the rule.” The technology, known for being error-prone when identifying people of color, could therefore be applied to footage of “the movements of hundreds of thousands of New Yorkers.”

The NYCLU had also recommended that footage be retained for no longer than 24 hours to prevent its misuse. However, footage will instead be automatically kept for 30 days, and that period can be extended if needed for “civil litigation, subpoena production, FOIL [Freedom of Information Law] requests or other legal process”—creating another easy-to-abuse loophole. [New York Civil Liberties Union]

Joo-Hyun Kang, the director of Communities United for Police Reform, criticized the city for not seeking wider public input and oversight. The decision to adopt the drone program and the failure to solicit greater community input, she said, “reflects a dangerous anti-democratic pattern of the de Blasio administration and the NYPD that disregards the perspectives of communities most impacted by police abuses.” [Ashley Southall and Ali Winston / New York Times]

The New York chapter of the Council on American-Islamic Relations (CAIR-NY) also condemned the drone program. It pointed to a 2016 report by the NYPD inspector general which, while focusing on consistent noncompliance with court orders regarding investigations into political activity, also found 95 percent of intelligence investigations targeted the Muslim community. As the Brennan Center for Justice put it, “American Muslims bore the brunt of these violations by a staggering ratio.” CAIR-NY contrasts the NYPD’s heavy surveillance of the Muslim community with its failure to take seriously the threat posed by right-wing extremists and white supremacists. The group’s legal director argued that it is “wrong of the NYPD to take to the skies before tackling ground-level privacy concerns.” [CAIR-NY]

As of May of this year, over 900 law enforcement and emergency services agencies around the country had acquired drones, according to the Center for the Study of the Drone at Bard College. The center estimates that agencies have been buying drones at a rapid rate, with the number acquiring drones going up by 82 percent between 2017 and 2018. Nor is this a full accounting of agencies that have used drones, since one department can use the drone services of another nearby or even contract the services of a drone operator. [Center for the Study of the Drone]

There has been mixed success in fighting the use of drones by domestic law enforcement agencies. Seattle’s police department became one of the first in the country to receive permission to do so but sustained outcry from residents led to the city abandoning the drone program in 2013. [Dante D’Orazio / The Verge] Our July 20 newsletter looked at an ordinance adopted in May in Oakland, California, which the Electronic Frontier Foundation described as the “new gold standard in the movement to require transparency and community engagement before local police departments are permitted to acquire or use surveillance technology.” [Nathan Sheard / Electronic Frontier Foundation] In Illinois, a bill that would have rolled back protections against surveillance of protesters was defeated this year. [Shahid Buttar / Electronic Frontier Foundation]

Seattle’s drones were packed off to Los Angeles in 2014 and remained in storage there until last year when the LAPD started a yearlong pilot program. Now the nation’s two largest police departments, NYPD and LAPD, have drone programs. Though the LAPD pilot placed substantial restrictions on the use of the drones, Engadget reported that, “critics … are worried that what the police say they’ll do and what they’ll actually do are two different things.” [Jon Fingas / Engadget] Hamid Khan, an activist with the Stop LAPD Spying Coalition told Gizmodo that law enforcement agencies have a track record of mission creep. “The capacities and capabilities [of drones] need to be seen not just in that single tool, but in how it fits into larger architectures of surveillance and information gathering.” [Sidney Fussell / Gizmodo]

Stories From Around the Country