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A county in North Carolina wants to give its bail system a serious makeover

A local solution to a national problem.

A county in North Carolina wants to give its bail system a serious makeover

A local solution to a national problem.

Last week, the MacArthur Foundation rewarded a $2 million grant to Mecklenburg County, North Carolina, as part of an effort to reform aspects of its criminal justice system. The grant calls for a focus on the county’s bail system, which continues to trap people behind bars because they are poor — even though they haven’t been convicted of a crime.

The grant represents an important step toward making the bail system one based on a defendant’s risk to the community, rather than their ability to pay.

The MacArthur Foundation selected Mecklenburg, the largest county in North Carolina, as well as seven other counties to receive funding and technical support as part of its Safety and Justice Challenge. The Challenge first launched in 2015 to encourage local jurisdictions to evaluate their jail practices and implement strategies that can reduce the number of people languishing behind bars.

“What became apparent, as we looked at the landscape of the jails across the country, was that the problem was national in its scope, but … solutions that are necessary are very much locally-driven,” says Laurie Garduque, MacArthur’s Director of Justice Reform. Collaborators have brainstormed reforms tailored to meet their counties’ specific needs, but the hope is that their plans can also serve as a blueprint for jail reform efforts across the country.

In Mecklenburg County, changes have already been made to money bail in recent years, but the system remains flawed. In 2010, the Senior Resident Superior Court Judge and the Chief District Court Judge created non-binding guidelines for judges to use when deciding what a bond amount should be. The recommendations served as an early risk assessment tool that suggested higher amounts for serious crimes, as well as people who posed a greater threat to the community — a determination based on very specific criteria, including outstanding warrants for a person’s arrest, additional charges against them, past substance abuse, and “gang involvement.” At the time of implementation, Chief District Court Judge Lisa Bell said the guidelines established a system that didn’t trap people in jail because they were too poor to get out.

In 2014, the county launched the Public Safety Assessment (PSA), another tool to assist judges with pretrial release decisions. Now, every defendant is rated on a six-point scale that predicts the likelihood that he or she will fail to appear in court or commit another offense if released pretrial. Once someone is arrested, a court magistrate decides there is probable cause and sets an initial bond. If the bond can’t be paid, the defendant is jailed. At that point, a team of six people at Criminal Justice Services assigns a risk score based on objective criteria, such as the current charge, conviction history, additional pending charges, and previous times the defendant has failed to appear in court. Higher scores are believed to indicate a higher likelihood that someone will re-offend, jeopardize public safety, or fail to appear. The assessment is then used by judges during a defendant’s first appearance court to decide what the pretrial release conditions should be.

Following the tool’s implementation, the county’s jail population dropped 11 percent and the crime rate hasn’t increased. According to District Court Judge Elizabeth Trosch, an analysis of the first three months showed that black and white defendants were equally likely to receive a secured or unsecured bond. Sonya Harper, the director of Criminal Justice Services, and Jessica Ireland, the program manager for the office’s pretrial service program, also told In Justice Today that the PSA was an accurate predictor of whether or not someone would re-offend or fail to appear.

Still, some critics are concerned that risk assessment tools don’t rule out bias completely. People of color are disproportionately arrested, convicted, and sentenced to incarceration, meaning the objective criteria these tools are based on are, to some degree, skewed by racial bias — even if they aren’t intended to be. Black people can be perceived as a higher threat because they are more likely to come into contact with law enforcement and have previous charges or convictions on record. There is no way to accurately predict what a person’s actions will be in the future, which means these tools are premised on hypothetical scenarios. According to the Human Rights Watch, these tools can also be reductive — turning defendants into numbers instead of treating them as people with unique circumstances.

Even with the PSA in place, bail is still too high for poor defendants. People who are arrested but ultimately deemed low risk are still spending days in jail, because the PSA doesn’t happen until after a magistrate has met with the accused, found probable cause, and decided to impose an initial bond. Many defendants cannot pay the bond, so they are locked up until a judge agrees to release them during their first court appearance.

“The first thing we recognized is that we need to make sure that the first officer who makes a decision whether to book someone has the information to make sure these people, who will just be released anyway, don’t spend days in jail,” Trosch said. “That one to two days is extremely disruptive for a person — with employment, family, housing.”

What’s more, some people are jailed for low-level offenses that wouldn’t result in any jail or prison time after a finding of guilt. In 2013, North Carolina eliminated active sentences for anyone convicted of fewer than four Class 3 misdemeanors — low-level offenses that include failing to change an address with the DMV or paying for property with a worthless check. The only punishment that can be imposed under these circumstances is probation and a fine. But defendants accused of Class C misdemeanors are still jailed pretrial because they are poor — not because their offense calls for it.

There are also glaring racial and ethnic disparities among the jail population. As of October 2, there were 1,707 people detained at the Mecklenburg County jail, according to Harper and Ireland. Sixty-eight percent of them were African Americans, who only make up almost 33 percent of the county population. Caucasian defendants accounted for 20 percent of the jail population, but make up 58 percent of the county population. Sixty-two percent of detainees were held pretrial. The average length of stay for pretrial misdemeanor and felony defendants is 128 days and 43 days, respectively.

With the grant, criminal justice stakeholders say they want to tackle the racial disparities, equip the court magistrates with the PSA to keep people out of jail, and ensure that people aren’t detained pretrial for Class C misdemeanors.

“We’re very much aware that some folks are able to maneuver through the criminal justice system much more easily than others,” Harper said. “We’re aware that we have a number of folks who end up in our system [and] find themselves caught up in circumstance.”

MacArthur funding has already yielded positive results in other jurisdictions, including Philadelphia, which has six jails and a sky-high carceral population. In 2016, the law enforcement community set out to scale back that population 34 percent by 2019, using a $3.5 million MacArthur grant. More than two-thirds of the money was allocated to cash bail alternatives, and $100,000 was funneled into a pretrial risk assessment system. By May 2017, the jail population had already plummeted by 18 percent. The jail population has also dropped in Charleston County, South Carolina, which received a $2.25 million grant from the foundation to develop a risk assessment tool and establish a system to remind people to appear in court. There, the goal is to reduce the jail population by 25 percent by 2019, and there are, reportedly, more mental health and drug rehabilitation alternatives to incarceration.

But these efforts have also been met with skepticism, because the criminal justice actors devising and implementing these reforms are the same people who caused mass incarceration in the first place. There have also been numerous setbacks in jurisdictions that previously received this grant. According to Garduque, translating proposals into a full-blown operation requires ongoing dialogue and engagement, which hasn’t occurred at every site. The decision-making process requires give and take from different stakeholders in order to land on an approach that works for everyone involved, which has created some difficulty. Data collection has also been murky, because agencies have different record-keeping systems, making it hard to track cases and progress.

There is also a push in other reform-oriented counties — including Harris County, Texas and Cook County, Illinois — to simply eliminate cash bail for low-level offenses.

Despite these challenges and criticisms, Garduque and the collaborators in Mecklenburg County are acutely aware of the need for reform and optimistic that it can be done. “It’s not just the criminal justice system that’s implicated,” Garduque said. “It’s a community problem.”

Thanks to Josie Duffy Rice and Jake Sussman.

Injustice Roundup: My Weekly Roundup of Stories on Abusive Police Officers, Prison Guards, and Prosecutors

Injustice Roundup: My Weekly Roundup of Stories on Abusive Police Officers, Prison Guards, and Prosecutors

In the era of Trump, it can be hard to keep up with essential stories about injustice in America. This is my weekly column where I give a rundown of important headlines that have unfolded that may have gotten past you. If you have not done so already, please subscribe to our regular newsletter here. It’s the absolute best way to stay informed.

Louisiana sheriff says how much he wants to keep good men in prison so they can clean his car and change his oil

For many of us in this community that fights injustice daily, the words Caddo Parish immediately make us cringe. In many ways, it is ground zero for so much that is horribly wrong with the criminal justice system. Earlier this year, Louisiana passed a criminal justice reform package that aims to reduce the prison population by at least 10%. In a press conference about how much he dislikes many of these reforms, Sheriff Steve Prator, in plain English, openly states how he hates seeing good men let go because they are the ones that “can pick up trash,” “wash cars,” “change oil in our cars,” and “cook in the kitchen.” Watch it for yourself. It’s troubling and basically shows how our current systems of mass incarceration are slavery by another name.

California prosecutor illegally withholds evidence, the state bar recommends her law license be suspended, she testifies that she’d do it again

Injustice is local and it’s likely that you have not heard of how outrageously corrupt the District Attorney’s Office in Orange County, California is and has been for years on end. I study these offices across the country and few rival how gross this one is from the top on down.

Back in 2013 Deputy District Attorney Sandra Lee Nassar deliberately withheld key evidence from defense attorneys. That’s illegal. The California State Bar has now recommended that her law license be suspended for a year and that she be put on probation for at least three years while she proves to the bar that she has been rehabilitated. Why? Because the state bar found evidence not only of other misconduct, but testimony revealing that she said she’d do it again.

“One issue that distinguishes the present case (from the others) is (Nassar’s) lack of insight and understanding regarding her own misconduct,” the bar said in its recommendation. “This court found deeply disturbing (Nassar’s) testimony that she would engage in the same conduct again. In her capacity as a prosecutor, (Nassar’s) lack of insight on this subject represents a tremendous threat of future harm to the public and the administration of justice.”

Here’s my take: Sandra Lee Nassar should never again be allowed to be a criminal prosecutor.

The truth is finally being told about Manhattan’s District Attorney — Cy Vance

In the span of about 10 days, the house has come crashing down for Manhattan’s District Attorney, Cy Vance. While he regularly throws the book at Black and Latino youth in the city, we recently found out that he made case after case disappear not just for Harvey Weinstein, but for the Trump family as well — each who gave him large donations around the time he opted to drop the strong cases against them.

Sadly, he is running unopposed for reelection and the date has already passed for someone better to get on the ballot. People are considering running against him as write-in candidates, but calls are growing for him to step down altogether. I support those calls. His integrity and public reputation are compromised.

The DA of Salt Lake City justifies the absolutely unjustifiable police murder of Patrick Harmon

Sadly, I’ve seen hundreds of horrible videos of people being killed by police in America. The video of the police execution of Patrick Harmon will stick with me for years. A 50 year old black man, Harmon can be seen and heard on video before the shooting sobbing at the possibility of going to jail. Police appear to have initially confronted Harmon because they didn’t like how he was riding his bike on the road. When they ran a check on Harmon and learned that he had an open warrant, police decided to place him under arrest. At that point, he panicked and ran, then police shot him repeatedly in the back.

Mind you, Harmon was a toothless, life-worn man, who could’ve been chased down with a brisk walk. Officers chose instead to shoot him on the spot.

The DA insists the shooting was just fine. They always are, according to him. It’s disgusting.

Multiple NYPD officers accused of rape and child prostitution

I’ve written a great deal about the NYPD’s 42nd Precinct. Some of the officers there are among the most corrupt men I’ve ever encountered. That’s why it was no surprise that an officer from the precinct, 40 year old Raul Olmeda, not only paid a 15 year old girl for sex, he also filmed it. Prosecutors have charged him with over a dozen different crimes.

This comes at the same time as DNA from two different NYPD cops has been matched to DNA taken from rape kits after the officers were accused of raping a Brooklyn teenager that they had handcuffed after a traffic stop.

What I know is that the evidence on all three of these men is more than enough to not only arrest, but convict virtually any everyday New Yorker.

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Why Would Prosecutors Refuse DNA Testing?

In this Oregon capital case, it could ensure that the state doesn’t execute the wrong man.

DNA Lab at University of Michigan

Why Would Prosecutors Refuse DNA Testing?

In this Oregon capital case, it could ensure that the state doesn’t execute the wrong man.

On March 20, 1998, Harriet Thompson was found dead in her Salem, Oregon, apartment. The scene was gruesome, “a scene from a slaughterhouse” the District Attorney would say — blood stains on the floor, bloody shoe-prints, bloody towels, a bloody bathroom and a broken, bloody knife. The police formulated a theory that the crime was a murder-robbery.

A week later, the police arrested Jesse Lee Johnson because he had some of Thompson’s jewelry, allegedly giving earrings to his girlfriend and selling a ring. Johnson admitted he had been in Thompson’s apartment — he knew her — but denied being involved in her death. At trial, prosecutors presented some forensic evidence — a cigarette butt, footprints and fingerprints — to argue that Johnson had been in the house that day and had killed Thompson. Prosecutors offered to let Johnson plea to manslaughter, which he turned down. He was then convicted of capital murder and sentenced to death.

Johnson has maintained his innocence for twenty years. Now, his counsel, Steven Wax of the Oregon Innocence Project, is asking for DNA testing of 38 samples from the crime scene. Many of them were never tested; others were tested using an older DNA test that has fallen out of use because it is not as accurate as current methods. The Marion County District Attorney’s office is opposing any requests to test more evidence, arguing in their brief that “this is not a DNA case.”

Even though DNA testing has helped exonerate over 340 people, there are still prosecutors who oppose disturbing standing convictions, favoring finality over justice.

For example, St. Louis County Prosecutor Bob McCullough defended the capital conviction of Marcellus Williams even though post-conviction DNA testing pointed to a different person. McCullough’s office and the Missouri Attorney General’s office continued to argue that other evidence, mostly consisting of jailhouse snitch testimony, pointed to Williams’s guilt. Ultimately, the Missouri governor stayed the execution pending an investigation.

In another recent Philadelphia case, Anthony Wright faced execution for a rape and murder that he did not commit. Wright — who was only 20 at the time of his arrest — says he gave a confession after being threatened by the police. Post-conviction DNA testing, which the original prosecutor Lynne Abraham resisted, pointed to another suspect. Despite the fact that a judge ordered a retrial based on the DNA results, then-District Attorney Seth Williams prosecuted Wright again and lost.

And, even though DNA testing is the gold standard for convictions and exonerations, there are differences in how DNA evidence has historically been processed as well as how that evidence can be used and interpreted. In the early stages of DNA exonerations, the evidence was relatively simple — DNA from a rape kit, for example, definitively excluded the exoneree from the crime.

In Johnson’s case, the DNA evidence requires more interpretation because, as Johnson admits, he was in the apartment. Therefore, it would make sense that his DNA would be found on objects also in the crime scene. For example, some evidence was tested for DNA, but the results were not conclusive. Some DNA samples — like those from the bloody bathroom and the likely murder weapon — excluded Johnson, but law enforcement never matched the DNA to anyone else. Some DNA samples were mixed and difficult to process. Some DNA matched other people. And some DNA samples did match the defendant, but they could also have been present because Johnson had been in the apartment before. (The state used other evidence — like footprint matching — at trial, but the results were not only potentially tainted by law enforcement but have also been deemed unreliable by the scientific community.)

This is likely to be the next generation of DNA exonerations — cases where the DNA can point to other suspects or cast appreciable doubt on a conviction.

Last Friday, Johnson’s counsel argued in favor of additional DNA testing while the DA’s office defended their position that the current Oregon law does not apply to Johnson’s case because, they argued, there was not enough to show that the results would fully prove Johnson’s innocence. Steve Wax, Johnson’s legal counsel, argued that the Oregon statute only required a “reasonable possibility” that the evidence points to innocence. It would be impossible to prove otherwise until the testing is complete, as Wax explains. Via email he told me after the hearing, “Seven exclusions of Mr. Johnson’s DNA from items at the murder scene raise significant questions about the conviction that we are hopeful further testing could answer.”

Thanks to Josie Duffy Rice.

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