Mississippi District Attorney Doug Evans was hit with a proposed class action lawsuit today on behalf of every Black person eligible to serve on a jury in his district. The complaint, filed in federal court, claims his office strikes Black jurors at alarmingly high rates.
Evans, who presides over seven counties, drew a harsh rebuke from the U.S. Supreme Court in June, when the justices reversed Curtis Flowers’s murder conviction on the grounds that Evans intentionally excluded African Americans from the jury in Flowers’s sixth trial. Flowers was accused of killing four people in a furniture store in Winona, Mississippi, in 1996, but has always maintained his innocence.
Evans tried him six times. Several of his convictions were overturned by courts because of jury bias or prosecutorial misconduct; others ended in mistrials. A trial court ruled that the district attorney illegally struck a Black juror in Flowers’s second trial, and the Mississippi Supreme Court found that Evans eliminated Black potential jurors during the jury selection process in his third trial.
The lawsuit, filed by attorneys with the NAACP Legal Defense Fund and the Roderick and Solange MacArthur Justice Center, claims that since Evans became lead prosecutor for Mississippi’s Fifth Circuit Court District in 1992, he and his assistants have struck prospective Black jurors 4.4 times more frequently than white jurors, “a rate that is unparalleled in any available study.”
“The honor and privilege of jury service is a defining feature of what it means to be an American citizen,” the complaint states. “When state or local officials bar a citizen from service because he or she is Black, that discriminatory act is no mere indignity. It is an assertion that the prospective juror is inferior—a second-class citizen who cannot be entrusted with the responsibilities of full citizenship.”
Nichole Young, 40, a Black resident of Grenada, Mississippi, was called for jury duty but struck during Flowers’s third trial in 2004. She told The Appeal that she was disappointed when she found out she was not selected. She remembers making preparations for her parents to babysit her young daughter if she were to stay in the required hotel for the duration of the trial.
“I was open to hear the evidence and hear the case,” she said. “It’s not fair.”
Young said she did not understand why she was struck, and neither did the state Supreme Court. Though Evans said he was striking Young over her position on the death penalty, the court ruled that Evans’s reason was “suspect” because Young held the same views on capital punishment as two of the white jurors who were ultimately chosen.
Since 1986, it has been unlawful for prosecutors or defense attorneys to strike potential jurors because of their race. That year, the Supreme Court ruled in Batson v. Kentucky that peremptory strikes based on race violate a defendant’s rights to equal protection under the 14th Amendment.
Prosecutors and defense attorneys are given two opportunities to strike prospective jurors. First, they can challenge them for cause, such as prior experience in a similar case or another finding that indicates an obvious prejudice. Then, prosecutors and defense attorneys are given a limited number of “peremptory challenges,” which they can use to strike people for any reason other than race.
“The problem here is that Doug Evans and his office is using them because of race,” said Chris Kemmitt, an attorney with the Legal Defense Fund working on the lawsuit. “The Supreme Court has made clear that he’s not allowed to do what he’s doing, and for 25 years, he’s done the exact thing he’s not supposed to do.”
According to the lawsuit, if a Black juror isn’t struck for a cause, there is a 50 percent chance that Evans’s office will strike that person with a peremptory challenge. But if a prospective juror is white, there’s just an 11 percent chance of being struck. Over the course of Flowers’s six trials, Evans removed 41 of 42 possible Black jurors.
Despite statistics like these, Jim Craig, director of the Louisiana office of the MacArthur Justice Center, said the rulings against Evans were far from guaranteed. It’s incredibly difficult and rare to get a finding of jury discrimination under Batson, he said. The fact that multiple courts have found Evans to have violated Batson is “kind of like being on the all-star team of racial discrimination.”
Reporters with the podcast pulled records from 225 trials that Evans has prosecuted and collected data on Evans’s jury discrimination, including all of the statistics used in the class action lawsuit.
Though Flowers is the most high-profile case that Evans has prosecuted, attorneys said his misconduct as a district attorney is more pervasive. Alison Steiner, a public defender who represented Flowers in his fifth and sixth trials, said she defended another client who also claimed that Evans unlawfully struck Black jurors. In the capital murder trial for that defendant, Terry Pitchford, Evans came up with “reasons that were both off-the-wall and affirmatively humiliating” to strike Black jurors, Steiner said. In one case, for instance, he claimed a potential juror was a “known drug user.” In another, he quoted a police captain who allegedly said that another potential juror “obviously has mental problems.”
In the same trial, Evans also said that another potential juror, an unmarried Black father in his 20s is “too closely related” to a man he believed was guilty of capital murder, simply by virtue of his demographics.
“I think [Evans] made categorical assumptions about who he wanted as a juror, and that was almost always jurors who looked like him and his family,” Steiner added, explaining that although Evans is an outlier, the problem is common in Mississippi. “I think there’s been a long-standing assumption that white jurors are going to do better for the prosecution than Black ones.”
Research has shown that a jury’s demographics does affect conviction rates. A study of North Carolina juries by economics professor Francis Flanagan found that for every white male added to a jury, a prosecutor measurably increases the probability that the jury will convict someone, and that probability increases if the defendant is Black. For every Black male added to a jury, the odds of an acquittal for defendants of all races increases. That held true in Flowers’s trials; any time there was more than one Black juror, the case ended in a hung jury.
Studies have shown that racially diverse juries are better for the cause of justice: They are more likely to have accurate deliberation discussion and fairer verdicts than all-white ones. White jurors on diverse juries were more likely to discuss racism than those on all-white juries, the same study found.
According to the lawsuit, Evans’s practice of striking Black jurors is not the only indication of his racial bias. When Evans first ran for district attorney in the early 1990s, he campaigned at events sponsored by the Council of Conservative Citizens, a white supremacist group formed from the membership list of the White Citizens’ Councils that were formed to fight school desegregation in the South in the 1950s and ’60s.
Evans was up for re-election last week, but nobody stepped forward to run against him, so he ran unopposed. As a result, Kemmitt said, it’s even more important that the class action lawsuit brings attention to Evans’s conduct and helps hold him accountable.
“There’s nothing to stop him from continuing to use his office as a means of discriminating against Black prospective jurors and functionally rendering them second-class citizens, other than intervention by a federal court at this point,” Kemmitt said.
Craig said he hopes the lawsuit can shift the burden of having to prove Evans’s discrimination from individual defendants to the community, which can proactively point out and potentially fix the problem.
“He really is so shameless with his practice of striking jurors,” Craig said. “This is probably a lawsuit that has needed to be filed for a long time.”
Megan Webbley was a 31-year-old mother of four when she died of a drug overdose on Sept. 29. It was a Sunday. It was still warm outside, but the breeze was crisp and the trees were already beginning to sport an autumn blush. She was in New Hampshire, attending treatment for opioid addiction. It had been an ongoing battle for 14 years, but her family had hope. They did not expect to lose her that day, and still don’t know exactly what happened, or why she relapsed.
I did not know Megan, but when I read her online obituary, it’s impossible to ignore the similarities between us. We were both born in 1988. Both of us were mothers. Both of us enjoyed music and makeup, as her father wrote in the obituary. Both of us felt called to advocate for “the underdog.” And we both shared that same, stigmatized diagnosis: opioid use disorder.
Then, of course, there is that other similarity we shared. We both became involved with child protective services. “I am hoping that the Department for Children and Families rethinks its mission to be the punisher of addicted mothers, the separator of families and the arbiter of children’s futures,” editorializes Megan’s father after a short, loving description of her life in Vermont. “Because, as one would guess, once the mother is separated from her children, desperation sets in, even with the brightest and most determined of mothers.”
Child services agencies investigated allegations involving 3.5 million children and their families in fiscal year 2017, the most recent statistics available. Of those, an estimated 674,000 cases were substantiated, the vast majority of which involved neglect, which is often coded language for poverty. That means the majority of child services cases could potentially have been addressed with better access to social services, like housing or job assistance, child care, food resources, and healthcare.
But when drug use is involved, that often becomes the focus of the case. Parents are ordered to complete questionable treatment programs and comply with invasive, sometimes embarrassing, surveillance tactics like random observed urine drug testing. Again and again, stories surface in which parents recount having to quit their jobs to attend daily treatment groups, or to comply with drug testing referrals. By some estimates, as many as two-thirds of all substantiated cases involve parental substance use, and it’s cited as a factor in roughly 36 percent of cases involving a child’s removal from the home.
I became involved with the Broward County, Florida, child welfare system in April 2018, after a dispute with my in-laws sparked an investigation. That investigation was brief, and I was not called or notified until there was already a petition filed to remove my daughters. My history of engaging in methadone and buprenorphine treatment for opioid use disorder were repeatedly referenced and scrutinized by the state attorney prosecuting my case. Even when my hair and urine drug tests came back negative, the Department of Children and Families did not drop its case.
Although the investigator acknowledged that my daughters showed no signs of abuse or neglect, I was ultimately charged with neglect and posing an imminent risk of serious harm. My in-laws were granted physical custody of my daughters, then 2 and 4, while I was ordered out of their home and guaranteed only one supervised visit each week. I was mandated to maintain stable housing and income, undergo a psychological evaluation, engage in trauma-informed individual counseling and substance use treatment, take parenting classes, and submit to random drug tests.
To describe what I feel every day as 'desperation' is an understatement.
At no point did anyone question why strict compliance with these particular tasks would ensure safe parenting. And the system seems designed for failure: Recently, when I was dropped from treatment for missing a few days due to the flu, my case was officially moved by my judge from a reunification track to an adoption track. And all this time, I have been separated from my beautiful little girls, who were always my biggest motivators for recovery. Now, we are facing permanent separation from each other. To describe what I feel every day as “desperation” is an understatement.
When an agency removes a child from her parents, it is required by law to make “reasonable efforts” to support the resolution of the issue that led to the removal. That means that child services should pave the way for parents like Megan and me to have ample access to evidence-based treatment for substance use disorder. Some agencies claim to do exactly that, and maybe they do. But there are as many child services agencies in this country as there are jurisdictions, each functioning under guidelines detailed at the state level. Data is self-reported and nonspecific, making it nearly impossible to quantify how many parents actually receive timely referrals to appropriate treatment options.
“What happens with many of these cases … the baby is taken away and the cases move so slowly that the baby is a year old before the baby is given back to the mother,” said Loretta Finnegan, a neonatologist and researcher who has worked in addiction medicine for over 40 years and frequently testifies on behalf of parents in New Jersey whose children were removed at birth. “That’s the wrong thing to do, because if you’re talking about maternal infant attachment, you’ve destroyed the attachment by taking the baby away.” In older children, prolonged separation from a parent can cause them to experience toxic stress. It is correlated with lowered IQ, has been linked to hypertension and diabetes later in life, and can result in long-term PTSD-like symptoms.
In my case, Mishka Terplan, an obstetrician and addiction medicine physician, was retained by my attorney to consult on the level of addiction care I received, and the expediency with which I received it. He asserted in an affidavit that the treatment option I had been given—which involved a referral to detox despite my not having a physical dependency—was not evidence based, and that the six months I had to wait between the start of my case and the time I received the referral was “well beyond the standard of care.”
Recovery is finding community connection, purpose, and meaning. Motherhood fits right into that.Mishka Terplan, obstetrician and addiction medicine physician
Lipi Roy, an internal medicine physician and public health advocate, notes that “stigma still remains the major barrier to care.” When it comes to opioid use disorder, an abundance of research shows that methadone and buprenorphine, medications used to decrease cravings and withdrawal, are the most effective at preventing harm, relapse, and death. Nonetheless, judges in courtrooms around the country are barring the use of these medicines, or allow them only as short-term detoxification aids, based solely upon a misinformed idea that they represent continued drug use. Instead, abstinence-based programs that rely on 12-step peer support groups continue to be the treatment norm, despite a lack of evidence that they work—and some speculation that they cause harm.
“I don’t know of any other phenomena in medicine where the disease is stigmatized, people with the disease are stigmatized, and medicine used to treat the disease is stigmatized,” explained Roy.
In an interview, Terplan pointed out that this leaves parents with substance use histories in an impossible bind. “Recovery is finding community connection, purpose, and meaning,” he said. “Motherhood fits right into that, and yet we have this system that has labeled certain people and populations as being less deserving of that than others, so we are going to even take that away from them, or make it yet another battle in a grossly unfair universe.”
Elizabeth Brico is a freelance writer whose work often focuses on drug policy reform and the child welfare system.
Facing legal challenges and a shortage of drugs for lethal injections, Oklahoma was the first state to announce a plan to use nitrogen to execute prisoners on death row. Mississippi and Alabama soon followed, though none of the states has tried it yet. Critics say the science behind using nitrogen to kill people is spotty at best, and there’s no way to know if it will be as painless as supporters presume. Today we are joined by Appeal staff reporter Lauren Gill to discuss the questions around nitrogen gas and the continuing search for ways to end human life behind bars.
AdamJohnson: 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 The Appeal podcast at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcasts.
As the chemicals needed to carry out lethal injections get more and more difficult for states to procure, a handful of states are turning to nitrogen gas to kill prisoners on their death row. The science of this as a quote unquote “humane” alternative is nonexistent and many advocates say the method is more barbaric than the already barbaric system it is replacing. Today we are joined by appeal writer Lauren Gill to discuss the uptick in plans to use nitrogen gas and what this says about the creative and elaborate ways our system finds to end human life.
LaurenGill: People want to see who is coming up with these execution methods and the more secrecy you have, you know, the more states are able to operate under the table, you know, we just don’t know what’s happening and this could lead to painful executions, botched executions. So it’s really important that the states are very transparent with everything that goes into this process.
Adam: Lauren, thank you so much for joining us on The Appeal.
LaurenGill: Thanks for having me Adam.
Adam: So you wrote a real a light beach read entitled “Using Nitrogen Gas For Executions is Untested and Poorly Understood. Three States Plan to Do It Anyway,” which really gets into the latest and sort of grittiest details about the extent to which there are people in the year 2019 who are still thinking of ways to kill people. You write about how they are trying to now pivot to the use of nitrogen gas because a lot of the previous chemicals for lethal injection and are now difficult to find or have ceased manufacture by companies, specifically companies in Europe. Can you talk to us about what these forces are and specifically, I know it’s Oklahoma, Mississippi, Alabama, but in April 2015 Oklahoma became the first state to authorize the use of nitrogen gas. Can you talk about why there’s this movement for nitrogen gas? Who’s kind of behind it and what the sort of consensus is around its efficacy? It seems weird to debate sort of how humane you kill someone but for the purposes of this, can we talk about how it’s being marketed by government officials versus what the reality is?
LaurenGill: Yeah, sure. So nitrogen gas was first introduced as an execution method in 1995 by a technology consultant who wrote an article for The National Review sort of suggesting it as an execution method. So then fast forward to 2014 and Oklahoma severely botched the execution of Clayton Lockett. He died 43 minutes after being administered lethal drugs. It was a severely botched execution. He arrived on the table, at one point he rose up and said something was wrong. He eventually died of a heart attack. But for that execution, Oklahoma was using a never before used protocol of drugs, which included midazolam, which the state had never used before. Midazolam is a sedative and it’s also been a subject of a lot of controversy lately because it has failed in some situations to render people unconscious who are then left to feel this drug that is meant to stop the heart, you know, coursing through their veins. Some people have said it like feels like fire. So anyway, after that execution, executions in the state were put on hold while there was a review of Oklahoma’s lethal injection protocol. In 2015, Representative Mike Christian, he watches a documentary on the BBC and that documentary is called How to Kill a Human Being and it features a conservative politician turned journalist named Michael Portillo exploring execution methods used in the United States. At the end, he sort of offers an antidote to the previous ones by exploring nitrogen gas. And at the end of that program, he deems it the perfect killing machine. So Christian watches the documentary and then he enlists one of his friends to explore the use of nitrogen gas for executions. And then he brings on two other people, none of them have careers in medicine or science and they write up this 14 page report. There’s really no evidence of original research in the report. They draw on things like a 1963 study exploring humans breathing nitrogen gas through a mask and The National Review article. So at the end of this report, they recommend that nitrogen is a simple and humane way to kill people and they recommend that it be used. The Oklahoma legislature draws on this report somewhat. It authorizes executions by nitrogen gas should lethal injection drugs be otherwise unavailable or the Supreme Court rules it unconstitutional. And then in 2018 the state announces that they are having a bunch of trouble finding execution drugs. One corrections official says that, you know, they’ve searched the Indian subcontinent and have had no success finding these drugs, which really inspires a lot of confidence in the drugs that people are using for executions. And they announced that they’re going to switch entirely to nitrogen. So that’s where Oklahoma is at now. And then in 2017 Mississippi authorized the use of the gas if lethal injection is ruled unconstitutional or drugs are otherwise unavailable. And Alabama follows in 2018 also making it an option for prisoners.
Adam: So this ironically named Mike Christian, he sort of kind of the one man propagandist, he said, quote, the process is “fast and painless. It’s foolproof.” Now, one of the criticisms people make of these increasingly clever ways of killing people is that the quote unquote “humanity” of the execution method is really about making the observer feel good about themselves. Because for the most part, we don’t have any way of gauging the degree to which someone’s in pain. We only have a way of gauging if they appear like they’re in pain. So one of the steps in the process historically has been to sort of sedate the person. Can we talk about that as a sort of factor here and to what extent — you say there’s not really any scientific evidence at all — to what extent is it even really knowable how much suffering one is in once you introduce the concept of sedatives?
LaurenGill: Right. Well, you know, nitrogen has never before been used in executions so there’s a bunch of questions that are surrounding, you know, how this method is actually going to be carried out in reality. Now, one thing that has been raised to me is will prisoners be distributed sedatives before they’re executed to sort of calm them down? But then that again, you know, introduces the same thing that we saw created problems with lethal injection with the first sedative, you know, not really being effective, but yeah, you’re right that these methods are sort of introduced and touted as more humane. But really it’s more, I guess tolerable by people who are watching it. Since nitrogen has never been used before to kill prisoners, there are tons of questions that are surrounding how this method is going to be carried out in actuality. Now we know about nitrogen used, you know, in suicides or to euthanize small animals are also in industrial accidents. But those situations are much different than, you know, what would be happening if someone is being taken to be killed? One doctor told me that, you know, while it could be effective, the theoretical situation that would need to happen for everything to be carried out perfectly, it would be really, really hard to do in real life. People can hold their breath because sort of like the scientific reasoning behind nitrogen hypoxia is that there’s not a buildup of carbon dioxide in the body, that would cause panic. But then again, you know, if you’re being executed, I mean you’re probably not going to be cooperating and, you know, breathing in deeply, in industrial accidents people don’t know that they’re breathing in nitrogen and then, you know, all of a sudden they’re rendered unconscious and they die and suicide people are more cooperative as well. So yeah, there’s just a bunch of questions that need to be answered by the states before they carry out this method.
Adam: To what extent, cause the whole conversation is obviously completely macabre right? Like to what extent do activists you’ve spoke to or anti-death penalty activists, to what extent do they balance the line between like having an earnest conversation about the quote unquote “most humane” way of killing someone versus showing the inhumanity of the method as a means to eventually lead to abolition of the death penalty in general, because obviously the United States is alone in the quote unquote “Western world” continuing executions in the year 2019. From people you’ve spoken to, how does one sort of negotiate the inhumanity of this without necessarily implicitly endorsing some other method? I guess I’m curious about that because the whole conversation, the whole premise of the conversation seems pretty warped to me and from people you’ve spoken to, how do they balance that and to what extent do they use this sort of non-existence of humane killing as one of the reasons why we ought to probably get rid of it?
LaurenGill: So I didn’t actually speak to any anti-death penalty activists, but I did speak to a few people who are experts in the field and who have studied the history of execution methods. And what they said is that, you know, as you look at the execution methods over time, each one is introduced as a way to be more humane than the last one, but there’s a whole bunch of secrecy that also happens with these methods — Where people are getting the drugs? Who are the suppliers? Who are the people coming up with how they’re going to be administered? — that are really left unanswered due to a whole variety of reasons, not the least of which is that some states have enacted these secrecy laws that allow them to keep everything under wraps. One thing that was interesting that Deborah Denno, who is an expert in the history of execution methods, said that over time, you know, they keep getting worse and worse. You could think of nitrogen as the perfect execution method, and it’s possible that the states could carry this out and it could be the perfect execution method, but what’s been raised to me is that they can’t quite be trusted to do this because of what they have done in the past in terms of securing drugs or coming up with methods like lethal injection. That method was adopted from a forensic pathologist who admitted that he was an expert in dead bodies, but not an expert in getting them that way. And then we’ve seen the botched executions over the years, time after time, lethal injection has the highest rate of botched executions. Seven out of one hundred times something goes wrong. So yeah, I mean, it’s possible that this could be a perfect method, but I think history has shown that it would be naive to think that states could carry it out in the way that, you know, the public should trust them.
Adam: Yeah. So you quote one sort of expert in this field. Deborah Denno at Fordham University says, quote, “History has shown they only get worse.” Speaking about the execution methods. “They only get sloppier, they only get riskier. There will come a time when people can’t believe that we did this.” So lethal injections themselves, you said seven out of a hundred times something goes wrong, which is pretty high and that there are those who maybe argue that even just taking someone out back and shooting them is more humane than this, which speaks to the issue of is this really about the observer or the person who’s dying? So I know that the reason why they moved away was because of the lack of materials. Is nitrogen execution sort of more immune to that type of supply loss? Is that one of the perks of it that it can kind of be a sort of long term solution?
LaurenGill: When nitrogen was adopted, people certainly made the argument that it would be much easier to procure the supplies that would be needed to carry it out for executions as opposed to lethal injection where you have to secure these drugs. Now the American Veterinary Medical Association in its handbook on euthanizing animals says that the gas needs to be purified, so it’s not like you can just use any type of nitrogen gas. And then also the states need to figure out a way to administer the nitrogen. So will that be through a mask or will it be in a vacuum chamber? Now, Oklahoma apparently has been having difficulties obtaining a device or obtaining the materials to make this device. Oklahoma DoC told me, in the beginning of this year in February, that you know, when I asked about what was going on with the protocol, they said that they’ve determined some things that are likely going to work, but the issue is that companies and manufacturers won’t sell us the appropriate technology out of fear of backlash from anti-death penalty activists. And then Attorney General Mike Hunter said that over the summer they would, they were hoping to have this device finalized. The summer has come and gone and there’s no device. And then also he said that they were going to pivot to an instate manufacturer and they hoped to have it submitted for court review by the end of the year. So we’ll see. But then, with the nitrogen gas the state has said that it has a reliable supply but it doesn’t have a specific supplier. So I asked the state’s contracted supplier Airgas, they sell industrial medical and specialty gases including nitrogen, and they actually said that they were not going to supply Oklahoma with gas for execution because it goes against their values. And then also Airgas is Alabama’s contracted gas supplier too. So it remains to be seen where these states are going to be obtaining this pure nitrogen gas from and that’s one of the questions that they’re going to have to answer.
Adam: So what is the current state of the legality of this? Is there anyone trying to challenge this or is that kind of a dead end legally?
LaurenGill: So nitrogen has yet to go through the courts. This is going to be something that is likely going to happen when the states actually come up with a way to carry out the executions. Certainly there will be challenges and those challenges, you know, the courts are going to have to decide if these protocols meet the requirement for an execution method and will that amount to cruel and unusual punishment.
Adam: So it seems like they can’t really do anything about it until it starts happening. So, the contract that the state of Alabama has, related to the creation of its nitrogen gas, has been sort of done in secret. Can you kind of talk about that and why that’s a problem and the extent to which people are kind of trying to keep this out of the papers?
LaurenGill: Yeah, so in July, the attorney general of Alabama, he entered into a contract with the workplace safety consultant company related to the implementation of the nitrogen hypoxia execution method. The state is notoriously secretive when it comes to its execution methods and it has refused to show its contract to the public and it refused to give the contract to al.com. I was unable to get ahold of it. But this is problematic because obviously people, you know, want to see who is coming up with these execution methods and the more secrecy you have, you know, the more states are able to operate under the table. You know, we just don’t know what’s happening and this could lead to painful executions, botched executions. So it’s really important that the states are very transparent with everything that goes into this process. And it’s definitely not promising that Alabama off the bat isn’t willing to share its contract on, you know, the implementation of this method.
Adam: Right. Alright, well this was warm and fuzzy. Thank you so much for coming on and talking about this. I know this is sort of not lighthearted to chat about, but it’s extremely important. Again, it’s, I think the fact that we even have to have this conversation is extremely f’ed up, as the kids say. So thank you so much for coming on and we definitely look forward to further reporting on this because I know that there’s not a ton out there about it, so we really appreciate your work on it.
LaurenGill: Thanks Adam.
Adam: Thank you to our guest Lauren Gill. This is The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always, you can rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.
On the night of May 5, 2015, 29-year-old Brendon Glenn was ambling along the Venice boardwalk with his leashed pit bull mix when two uniformed Los Angeles police officers responded to a call reporting a “Black male transient … no weapons.” According to the official police report of the incident, Glenn “appeared very irate” as the officers approached and threatened them with his dog. Body cameras captured Glenn yelling at the officers.
The officers decided Glenn wasn’t “intoxicated to a level where he was unable to care for himself,” so they watched him move on down the street. According to the report, the officers observed Glenn yell at patrons going into a bar and get into a shoving match with a bouncer, which was captured on security footage. The officers then grabbed Glenn, pulling his arm behind his back to detain and arrest him. Glenn allegedly resisted, and the officers shoved him to the ground, kneeling on his back and pulling his arms to cuff him. Glenn pulled away and, according to Officer Clifford Proctor, reached for Proctor’s partner’s gun holster. Officer Proctor fired a round at Glenn; then, noting that Glenn “did not appear to be effected [sic],” fired another round into his body. Glenn was taken to a hospital and died shortly after midnight.
Glenn was one of 25 people shot by Los Angeles police officers in 2015. According to the best available data, the number of Los Angeles Police Department shootings has been on the decline: From 2010 to 2014, police in Los Angeles County shot and killed 375 people, one every five days, according to The Guardian, or over 75 per year. In 2018, LAPD officers shot and killed 15 people. LAPD Chief Michel Moore has touted this as progress and emphasized improved de-escalation training, a technique recommended by the Police Commission, the department’s civilian review board.
But, for many, the number isn’t low enough. Los Angeles still leads the country in law enforcement shooting deaths. And last year it had the second-highest death toll for police shootings in the nation after Phoenix, which had 21. Black residents are disproportionately victims—24 percent of the deaths but only 9 percent of the county’s population. And since 2000, only one member of law enforcement has been charged for killing a civilian.
In Glenn’s case, the LAPD report and video of the incident both failed to show that he was reaching for anyone’s gun. Glenn’s hand was on the opposite side from the officer’s holster, and the report notes that “at no time during the struggle can Glenn’s hand be observed on or near any portion of Officer [redacted]’s holster.” The police chief at the time, Charlie Beck, called for Officer Proctor’s arrest and prosecution.
But on March 8, 2018, after a two-year investigation, Jackie Lacey, the district attorney of Los Angeles County, announced that she would not prosecute because she couldn’t prove the case beyond a reasonable doubt. In an email to The Appeal, Lacey said: “If a peace officer’s conduct rises to the level of a provable crime, my office will file criminal charges.”
Since taking office in 2012, Lacey hasn’t charged a single LAPD officer for a shooting. According to Black Lives Matter LA, over 400 people have been killed by law enforcement or died in custody in the county during Lacey’s tenure. But she has charged only one man, Luke Liu, a deputy in the Los Angeles Sheriff’s Department, for shooting an unarmed man while on duty.
When Lacey was elected, voters expected support for reforms and a healing of the historical racial divisions in Los Angeles. She told the voters during her first campaign that she grew up admiring Martin Luther King Jr. and Abraham Lincoln. Her election was enthusiastically greeted by celebrities like the music producer Sean Combs and the retired NBA player Magic Johnson. But with Lacey now in her second term, many former supporters are disappointed. What happened to the progressive candidate?
Jackie Lacey grew up in the Crenshaw district of Los Angeles with hopes of becoming a schoolteacher. Her childhood was working-class: Her father cleaned lots for the city’s public works department, and her mother worked in a garment factory. She joined the Los Angeles DA’s office in 1986. As an assistant prosecutor and later as chief deputy, Lacey, then the mother of two young children, started in code enforcement “which allowed her some flexibility,” the Los Angeles Times noted in 2012. In that role, she met Steve Cooley, then chief deputy DA, and began to try cases under his supervision.
As a career prosecutor who rose to be Cooley’s chief deputy when he was DA, Lacey got by without making waves. She was known for her collaborative, collegial style. These were the years before progressive prosecutors were gaining media attention, but the LAPD was operating under strict scrutiny after the Rampart scandal, the discovery of ongoing corruption within the police unit that covered the LA neighborhood known as Rampart. Cooley became the district attorney in 2000, winning the election against Gil Garcetti, who had lost both the O.J. Simpson and the Rampart cases. Cooley was re-elected twice before he retired. (Cooley also ran for the attorney general of California against Kamala Harris and lost.) One of Lacey’s first leadership roles was revamping the Central Trials Division, the same office that lost the Simpson trial.
Cooley’s policies were designed to restore trust in law enforcement. For example, long before California voters reformed its Three Strikes law, Cooley, who was a registered Republican, implemented an office policy not to seek the maximum (25-to-life) sentence if the third “strike” was a nonviolent offense, like theft. (Lacey would later support Proposition 36, which codified changes to Three Strikes.) Cooley also created a Public Integrity Division and gave that department independence.
His tenure wasn’t without problems. In 2009, the county’s deputy prosecutors filed union grievances against Cooley’s office for alleged retaliation, namely demoting deputy DAs who joined the union. Lacey originally testified in a hearing that she had told a friend in the office that Cooley disliked the union and that joining it would be a “bad idea.” (In an email to The Appeal, Lacey declined to comment on this incident.) Later, she contradicted herself, according to an LA Times article published months before she won her first term as DA. She blamed the contradiction on low blood sugar that caused her to be confused. The Association of Deputy District Attorneys did not endorse Lacey that year.
But, she gained trust within the department by winning cases, and when, Cooley appointed her deputy DA in 2011, everyone knew she was fated to be his chosen successor. Lacey moved to LA County (she was living in Ventura County), and then Cooley announced his retirement. There was certainly a sense that Cooley was grooming Lacey to carry on his legacy, according to Joseph Iniguez, an assistant DA in the office who is also challenging Lacey in her upcoming election. Cooley said he believed she was the best person to carry on his legacy in the office and, in a 2012 LA Times article, credited her as a “great collaborator.”
Lacey faced a crowded field of five competitors at the primary level. (This sort of primary is a non-partisan contest to winnow the field. Lacey is a registered Democrat.) One primary opponent, then-Los Angeles City Attorney Carmen Trutanich, was favored to win and carried the governor’s and then-LA Sheriff Lee Baca’s endorsements in addition to over $1 million very early on in campaign donations. In a campaign debate, one of Lacey’s opponents, Alan Jackson, who prosecuted Phil Spector, accused her of being “out of touch” and lacking his courtroom experience. (Lacey, for her part, called Jackson “naive.”) Jackson, a Republican, was running to the right, and Lacey was then seen as “softer.” Jackson went on to become a high-profile defense attorney who recently represented the actor Kevin Spacey.
Lacey touted her support for Cooley’s moderately progressive ideas and his office’s policies, mainly through alternative courts: “My ideas are to take the lower-level offenders and put them on probation through alternative sentencing court. And that is really the wave of the future with regard to defendants who are suffering from drug addiction, alcohol addiction or mental illness who commit non-serious, non-violent felonies.” She also emphasized building up units to focus on computer crimes, closing rape law loopholes, and improving hate crime prosecutions.
During her campaign, Lacey emphasized her Los Angeles roots and her background as the daughter of a woman who came to Los Angeles from Georgia as a teen. When she was 21, she told Seventeen magazine (as part of a series on 13 young women): “I’ve seen so many black people cheated by tradesmen or intimidated by the police because they have no knowledge of their legal rights. I’d like to help change that.”
Lacey easily won the election by a wide margin with the support of Cooley as well as the endorsement of the LA Times and glittery national attention. Sean Combs tweeted, “Congrats to Jackie Lacey who became the first woman and African American to be elected district attorney of Los Angeles. LETS GO! POWERFUL!”
When she was elected, Lacey took over the largest district attorney’s office in the nation in a county that sends more people to state prison than any other in California. Lacey supervises almost 1,000 attorneys, 300 investigators, and 800 staff members. By comparison, New York City, with a population of over 8 million, has one district attorney for every borough; Los Angeles just has one for the whole county, which consists of 10 million people. The scale of the department immediately made Lacey a powerful figure as criminal justice reform became a prominent issue nationwide, and especially in California.
But Lacey has largely disappointed those who looked to the new, Black, female and Democratic district attorney to enact change. And, over time, once progressive prosecution ideas have become mainstream and Lacey seems woefully behind, in the model of the same tough-on-crime DA that residents had experienced for decades. Lex Steppling, the director of campaigns and policy for Dignity and Power Now, described Lacey as “a Black woman who claimed her roots openly and publicly, but has carried on the same racist, deadly legacy that preceded her.”
Lacey entered office during the first years of realignment, which reduced the California prison population by transferring supervision of low-level offenders to the county—those who had committed nonviolent, non-sexual, non-serious offenses. During her campaign, she stayed vague on realignment, telling the LA Times that it was “a terrible mistake” as well as “an opportunity.” When realignment didn’t result in a crime wave, she acknowledged that but maintained that there was a “public safety” concern. In an email to The Appeal, Lacey said, “I have supported and implemented criminal justice reform throughout my career as a prosecutor.”
She supported a 2013 change to her office policy, praised by the ACLU, which required prosecutors to disclose all impeachment evidence for law enforcement to the defense. But when activists pushed her for more disclosures, her office remained silent. She said she supported split-sentencing, which allows people to serve part of their sentence on supervision rather than jail, but was very slow to put it into effect. Only after San Francisco implemented an algorithm that would expunge marijuana convictions did Lacey join, too.
According to Black Lives Matter activists, Lacey hasn’t taken the steps to address the racial disparity in the system. She hasn’t supported a “Do Not Call” list that is meant to keep corrupt police officers off the witness stand. She is in the best position, activists say, to help regulate some of the worst excesses of the LAPD, a law enforcement agency with a long history of oppressing communities of color, but hasn’t done so. And Melina Abdullah, an organizer for Black Lives Matter Los Angeles and a professor at California State University, Los Angeles, told The Appeal in a phone interview that Lacey today is no longer the Lacey from Crenshaw: “She’s not grounded in the Black community now. … A lot of Black folks are awake to who she is.”
Steppling agreed that Lacey’s office lacks transparency, and added that the office has shown “zero interest in engaging the community.” Laurie Levenson, a law professor at Loyola Law School and former AUSA, concurred: “I think there’s a general need to open up the office, change the culture, make it understood to people in the community that all ranks can be heard.”
Abdullah says that Lacey’s failure to support progressive legislation is one of the biggest indictments against her as a leader. Lacey opposed Proposition 47, which shifted more incarcerated people away from jails. (“I can’t say I agree with Proposition 47,” she told the LA Times in 2014.) She opposed ending cash bail and has taken no steps toward reducing the city’s high incarceration rate and racial disparity in incarceration. She also opposed Proposition 57 and marijuana legalization, measures that easily passed with Los Angeles voters. She opposed changes to the felony murder law passed last year, even filing motions in court arguing that the statute was unconstitutional. (In July, California Attorney General Xavier Becerra filed a brief that the statute was constitutional.)
Then there’s the death penalty. In 2012, California voters had a provision to eliminate capital punishment on the ballot, Proposition 34. Lacey supported the death penalty (as did almost all of her opponents). The provision did not pass. In 2016, another provision made the ballot. It also failed, but was overwhelmingly popular in Los Angeles.
Yet, Lacey has continued to seek the death penalty in some cases, despite Governor Gavin Newsom’s moratorium on capital punishment. According to a recently released ACLU report, Lacey has sent 22 people to death row since she became DA in 2012, the highest in absolute numbers of any other jurisdiction. All are people of color. At least eight defendants were represented by counsel who had previously or subsequently been found guilty of misconduct.
Advocates focused on Lacey’s use of the death penalty as an especially disturbing example of how prosecutorial discretion perpetuates discrimination in the criminal legal system. In an email to The Appeal, Lacey said, “California voters have twice failed to abolish the death penalty.”
Levenson, however, believes that the ACLU report “didn’t tell the whole story.” She explained, “The big issue is not an individual issue. It’s the overall culture.” She described the longtime culture of the office as the “old-fashioned cowboy approach … hard core, law and order, not open to a different approach. Not collaborative.”
At the same time, Lacey has not yet prosecuted Los Angeles notables accused of corruption and other crimes, like the Church of Scientology and the producer Harvey Weinstein, despite the formation of a task force to look into these cases. Her office didn’t charge billionaire Ed Buckfor two fatal overdoses that occurred in his West Hollywood apartment (her office ultimately charged him for a third, non-fatal overdose in September), arguing recently that the Los Angeles sheriff’s department bungled the investigation. She didn’t prosecute a California Highway Patrol officer who repeatedly punched a homeless woman in July 2014. (The highway patrol settled with the family for $1.5 million.). And questions have come up about her campaign contributions, which have included the bail bonds industry, police unions, and people facing felony charges from her office.
Now, as Lacey enters the race for a third term, she faces opposition from activists. After she declined to prosecute the officer who killed Glenn, activists held an early-morning protest on Lacey’s birthday in October 2018, projecting the words “Jackie Lacey Must Go” on her garage door. They continue to protest outside Lacey’s downtown office every week. Abdullah told The Appeal that activists tried unsuccessfully to get Lacey to attend a town hall meeting: “We tried to engage her, and she reneged on a community meeting.”
She is also facing a slew of challengers in the 2020 race. Unlike the 2012 election, most of these candidates are swinging further left, appealing to those who think Lacey should be enacting more reforms. Perhaps in response to this political pressure, in October, Lacey abandoned her opposition to a law that protected some drug offenders in diversion from deportation. The New York Times has already called the 2020 election “the most important district attorney’s race in America.”
Two current assistant DAs are running in addition to George Gascón who, before becoming the DA of San Francisco, served as the assistant chief under William Bratton when he was the chief of the LAPD. Advocates quoted in the New York Times discuss Gascón’s record for implementing new data-driven solutions and attempts to reduce racial disparity in prosecutions. And, there has been grassroots encouragement for Gascón to run, including an aptly named Twitter account.
But, Gascón has also failed to prosecute officers for high-profile killings. It wasn’t long ago that Gascón faced angry protesters who threw rotten fruit at his apartment door. On the other hand, he championed Assembly Bill 392, now California law, which changed the standard for law enforcement’s use of deadly force to “necessary.” Lacey publicly opposed the law.
Joseph Iniguez, a deputy district attorney under Lacey, is running as the upstart reform candidate. Iniguez came to LA after Lacey won the election because he was eager to work for what he hoped would be a progressive boss. In a phone interview, he said, “She deserves the utmost respect for all of the barriers she’s broken. She doesn’t deserve a pass.” Richard Ceballos, a deputy DA in Lacey’s office, has announced his candidacy as well and is running as “smart on crime,” arguing also that the DA’s office needs to be more progressive.
No matter who is in office, there will be challenges to reform. Levenson believes that Lacey’s attempts to change the office are stymied by others in her office. The deputy district attorneys are protected by their union, which makes firing and demoting people more difficult. In contrast, Abdullah argues that it’s not the deputies hampering Lacey’s reform efforts; it’s that Lacey is “more beholden to police associations who heavily endorse her and give the maximum allowable contributions.”
Abdullah had little patience for letting Lacey off the hook: “It would be relatively easy to build a better reputation than she has,” she told The Appeal. “I think you couldn’t really be much worse.”
Correction: An earlier version of this story misspelled the surname of a law professor at Loyola Law School. She is Laurie Levenson, not Laurie Levinson.
In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail.
In the spring of 2012, near the end of President Barack Obama’s first term, federal prosecutors in North Carolina were pursuing a case against Alejandro Garcia-Lagunas, whom they accused of trafficking large amounts of cocaine. At trial, defense counsel argued that Garcia-Lagunas, who had been renting a room in a small trailer for less than $350 per month, was a drug user, not a high-level dealer.
As the trial progressed, the government recognized that Garcia-Lagunas’s meager lifestyle was a potential weakness in its case. But rather than counter the defense with evidence, it resorted to a racist stereotype: A police detective testified that “Hispanic drug traffickers” live modestly because they send “the majority if not all of the proceeds back to their native countries.” Defense counsel objected, but the judge allowed the detective’s testimony, explaining that “based on his experience, most Latins [sic] send money home whether they’re drug dealers or not.” The government returned to the racist theme during closing argument, reminding the jury of the detective’s testimony, and arguing that Garcia-Lagunas did not “have an extravagant lifestyle” because Hispanic drug traffickers “package that money” and “send it back to their home country.” The jury returned a guilty verdict, and the judge sentenced Garcia-Lagunas to more than 15 years in prison.
On appeal, Garcia-Lagunas argued that the government’s use of a racist stereotype violated his constitutional right to a fair trial, and the government agreed. But Garcia-Lagunas never got a new trial. Around the same time that presidential candidate Donald Trump was verbally attacking a federal district judge for his “Mexican heritage,” the court voted to uphold Garcia-Lagunas’s conviction because the constitutional error was “harmless.”
For the judges in the majority of the 2-1 decision, the government’s heavy reliance on the detective’s racist testimony was not significant. They found the evidence of Garcia-Lagunas’s guilt to be strong, and his defense to be weak. So for them, it was “beyond clear” that the jury would have convicted Garcia-Lagunas, “even had they heard nothing of [the detective’s] improper testimony.”
The case of Garcia-Lagunas illustrates a disturbing feature of the American criminal system: Under a legal doctrine called “harmless error,” appellate judges routinely affirm convictions tainted by legal error whenever they feel confident that the person appealing the conviction is guilty. The doctrine receives far less attention than stories about the misbehavior of police and prosecutors, but as one of the most frequently invoked doctrines in all of criminal appeals, it has a profound influence on the behavior of everyone inside our criminal system, including police, prosecutors, defense attorneys, and judges.
One studyof California death penalty appeals found that, during a 10-year period, roughly 90 percent of death sentences imposed by trial courts were upheld on appeal even though nearly three-quarters were infected by constitutional error. On the other side of the country, “harmless error” may soon decide the fate of 173 people on Florida’s death row, all of whom were sentenced in a way that the U.S. Supreme Court later decided was unconstitutional.
The precise rules of “harmless error” are confusing, and they depend on the type of error that has occurred. If the error does not affect a constitutional right, a court may reverse a conviction only if the error had a “substantial or injurious effect or influence in determining the jury’s verdict.” If the error does affect a constitutional right, the court must decide whether there was a “structural error” or a “trial error.” Structural errors, such as the denial of the rights to counsel, an impartial judge, or jury trial, can never be “harmless”; they result in automatic reversal. For trial errors, such as the admission of illegally seized evidence, a court must reverse unless the government proves the error was “harmless beyond a reasonable doubt.”
Over the last 50 years, the Supreme Court significantly expanded the list of trial errors, so a large number of cases require application of the beyond-a-reasonable-doubt test. Under this test, many courts mistakenly focus on whether the government’s untainted evidence would lead to a conviction in a hypothetical future trial. What they should focus on—and what many do focus on—is whether the government can prove the error did not affect the outcome of the trial that already happened. As the Supreme Court explained in Sullivan v. Louisiana, “the inquiry … is … whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”
The Development of Harmless Error
Appellate review was not always so complicated. For much of American history, any error required reversal. The doctrine allowing a constitutional error to be “harmless” did not arrive until 1967. That year, in Chapman v. California, the Supreme Court created a couple of new rules: (1) constitutional errors can be “harmless,” and (2) constitutional errors require reversal unless the government proves the error was “harmless beyond a reasonable doubt.” The second rule placed a heavy burden on the government, suggesting that most errors would continue to result in reversal. The first rule came with an important caveat: the Court acknowledged that some errors were “so basic to a fair trial that their infraction can never be treated as harmless,” and it listed several examples of these structural errors, including the admission of a coerced confession.
The election of Richard Nixon shattered these limits on the Chapman decision. Earlier in the 1960s, with Earl Warren as chief justice, the Supreme Court decided several cases that expanded constitutional protections for people accused of crimes, including Mapp v. Ohio, Gideon v. Wainwright, and Miranda v. Arizona. During the 1968 presidential campaign, Nixon railed against these cases, and pledged to appoint judges who would combat them. After his victory, Nixon appointed four Supreme Court Justices, including Warren Burger, who replaced Earl Warren as chief justice, and William Rehnquist, who became chief justice in 1986 and remained on the Court until his death in 2005.
In general, the Burger and Rehnquist Courts did not radically alter the substance of constitutional protections established by the Warren Court, as many predicted they would. Instead, as Professor Carol Steiker explains, the Court “revolutionized the consequences of deeming conduct unconstitutional.” In the realm of “harmless error,” the Court diluted Chapman’s beyond-a-reasonable-doubt test and expanded the list of “trial errors.” So today, every error related to unconstitutional police conduct can be subject to “harmless error” review—even the admission of a coerced confession, which Chapman described as a structural error that could never be harmless.
The Problems With Harmless Error
There are many problems with “harmless error,” particularly when the doctrine is applied to constitutional violations.
1. Harmless error ignores important constitutional values.
Our country is haunted by 400 years of racism, yet Alejandro Garcia-Lagunas remains in prison because two judges thought the government’s racist stereotype was “harmless.” His case shows that a myopic focus on guilt can blind judges to broader social harm. By design, many constitutional rights protect values that are unrelated to truth and accountability—values like dignity, privacy, and equality. Guilt-based applications of “harmless error” ignore those values.
2. Harmless error encourages misconduct.
Years ago, during an appellate argument in the state of Washington, a judge asked a prosecutor why, in light of a rule that prohibits trial prosecutors from asking one witness whether another witness is lying, the prosecutors from his office continued to ask the prohibited question. “It’s always been found to be harmless,” he explained.
When the court published its decision, it rejected any suggestion that courts “wink at intentional and repeated unfair questioning by prosecutors under the rubric of harmless error.” But the court then affirmed the conviction, concluding that the prosecutor was “correct in relying on the doctrine of harmless error.”
None of this is surprising. By making the remedy for the violation of a legal right so difficult to obtain, “harmless error” erodes whatever protection the right is supposed to provide.
3. Harmless error freezes constitutional law.
In the 1990s, the Supreme Court ruled that “harmless-error analysis is triggered only after the reviewing court discovers that an error has been committed.” Yet courts routinely ignore this ruling, skip the question of error, and conclude that any error, assuming one occurred, was “harmless.”By refusing to decide whether a constitutional error occurred, courts fail to perform one of their most basic functions: clarifying the law that governs the actions of police, prosecutors, defense attorneys, and trial judges.
4. Harmless error usurps the fact-finding role of juries.
For many courts today, “harmless error” focuses almost exclusively on the perceived strength of the government’s evidence. If the government’s evidence appears strong, the court will not carefully consider the ways in which an error might have affected the jury’s verdict, as Chapman’sbeyond-a-reasonable-doubt test requires. It will simply affirm the conviction.
By relying on the perceived strength of the government’s evidence, courts usurp the fact-finding role of the jury. This is a legal problem because the Sixth Amendment guarantees the right to a jury trial. And when a court determines that some of the government’s evidence was illegally admitted, the only existing jury verdict is tainted by that illegality: There is no longer any verdict that rests exclusively on legal evidence. So, if an appeals court sets aside the illegal evidence, and the remaining evidence allows any inference of innocence, there is a strong argument that the Sixth Amendment requires reversal of the conviction so that a jury, and not a group of appellate judges, can decide the question of guilt.
Focusing on the apparent strength of the government’s evidence also creates practical problems. The appellate judges did not attend the trial, and there is no way to ensure they read the entire trial transcript, which often spans thousands of pages. When they do read the transcript, they may fail to detect body language or sarcasm that changed the meaning of a witness’s testimony. And as Professors Keith Findley and Michael Scott explain, cognitive biases “contribute in powerful ways to a conclusion that the defendant was guilty.”
In many cases, that conclusion is wrong. In New York, for example, a court affirmed Jeffrey Deskovic’s conviction because he confessed to the crime, and his “multiple incriminatory statements” provided “overwhelming evidence” against him. But DNA later established Deskovic’s innocence. Police had coerced his confession.
5. Harmless error provides our punishment bureaucracy with a facade of legitimacy.
The United States is the world’s largest punishment bureaucracy. In numbers unprecedented in the recorded history of human life, we sweep people from their homes, push them through crowded criminal courts, and leave them to languish inside cages of metal and concrete.
The Constitution exists alongside the punishment bureaucracy, and to those inside the cages, it promised a lot: equal protection of the laws, due process, freedom from unreasonable searches. When an appeals court affirms a conviction, it signals to almost everyone in our society that we have kept our constitutional promises. And so the bureaucracy is able to retain mainstream respect, and few understand that the path to a government cage may have been littered with constitutional violations. As Judge Jerome Frank once wrote, “harmless error” transforms important legal protections into “beautiful verbal garlands concealing ugly practices we have not the courage … to contemplate.”
The Dubious Justifications For Harmless Error
The Constitution does not say that a violation of its protections can be “harmless,” but over the years, the Supreme Court has offered a couple of justifications for the doctrine it created. Neither is persuasive.
Claim #1: Harmless error is necessary to avoid the time and expense of retrials.
One of the primary justifications for “harmless error” is that it is necessary to conserve “scarce judicial resources.” In other words, trial judges are busy with a swollen docket of criminal cases, and if appellate courts reversed a lot of convictions, trial judges would have more work to do. As one scholar warns: “the resulting proliferation of retrials would significantly undermine judicial efficiency.”
One problem with this argument is that “harmless error” does not obviously reduce the amount of time that judges spend on criminal cases. It can save a trial judge from handling a retrial, but when applied correctly, with the rigor that its beyond-a-reasonable-doubt test requires, the doctrine shifts a huge amount of work to appellate judges. At each layer of review, at least three judges will hear the case, and each of those judges must examine the entire trial record to evaluate the intricacies of the government’s evidence, the defense evidence, and the possible effects of any legal error on the jury—a fact-intensive evaluation that is generally unnecessary when the only question for the judges is whether a legal error occurred.
A more serious problem is the assumption that trial judges need to process human beings into cages at their current rate, and that doing so efficiently is a worthwhile goal. Police make more than 10 million arrests every year, but a majority of those arrests result in dismissed charges, and less than 6 percent are for violent crimes. Even for people convicted of violent crimes, there is no evidence that putting them in cages is the best way to deter future violence.So, if police and prosecutors were inclined to shrink the size of criminal dockets, they could easily do so without putting anyone in harm’s way: They could arrest fewer people and pursue fewer convictions. Of course, many police and prosecutors are not so inclined. But if appellate courts reversed convictions whenever state actors violated the constitution, police and prosecutors might select and handle their cases more carefully. If they did, the time necessary for retrials would be time well spent.
Claim #2: Harmless error promotes public respect for the criminal process.
Another justification for “harmless error” is that it “promotes public respect for the criminal process by focusing on the underlying fairness of the trial.” But that respect is not earned. To most people, an affirmed conviction signals the absence of error. So, to the extent that affirming illegal convictions garners public respect for our punishment bureaucracy, that respect is not a persuasive justification for “harmless error,” but a symptom of its insidious consequences. It keeps the population ignorant of widespread constitutional violations, and it reduces the threat of resistance.
Claim #3: Eliminating harmless error could weaken constitutional protections.
A third justification comes not from the Supreme Court, but from legal scholars. They worry that eliminating “harmless error” could lead appellate judges, who are often reluctant to reverse criminal convictions, to define constitutional rights more narrowly. This is a serious concern, and in related contexts, broader appellate remedies have had precisely this effect. But the concern is not actually a defense of “harmless error”: It simply recognizes many judges’ strong preference for upholding criminal convictions. The solution is to appoint judges who will not distort constitutional rights to achieve their desired result.
Undoing the Harm
Every day, the doctrine of “harmless error” allows police and prosecutors to act with impunity, and it steals life and liberty from people inside our prisons. What can we do to push back? Here are some ideas:
1. Stop skipping the question of error, and apply Chapman with the rigor that its beyond-a-reasonable-doubt test requires. Judges should not affirm convictions without first deciding whether an error occurred. When deciding whether an error is “harmless,” they should not focus on the strength of the government’s untainted evidence. If the government cannot prove that a constitutional error did not affect the verdict, the court should reverse.
2. Grant executive clemency. State governors could use their clemency power to grant relief to anyone whose constitutional rights were violated on the way to a state prison cell. The president could grant similar relief to people in federal prisons.
3. Enhance state legal protections. The Supreme Court’s decision in Chapmanapplies to federal constitutional rights. States remain free to create rights that are more protective than federal rights, and they can create broader remedies for the rights they’ve created.
4. Pass federal legislation.In Chapman, the Supreme Court wrote that its “responsibility” to “fashion” the existing rule arose from “the absence of appropriate congressional action.” This language arguably creates an opening for Congress to act; it could neutralize the expansion of “harmless error” that occurred after Nixon’s election, or it could abolish the doctrine altogether.
5. Stop defending unconstitutional convictions. There is a wave of “progressive prosecutors,” but few have said anything about appeals. Prosecutors could decide not to invoke “harmless error” in any of their cases; when they agree that a constitutional error has occurred, they could simply concede error.
None of these ideas require complicated tinkering with an already complex legal doctrine. They ask the judicial branch to apply the law as it’s written, and they ask the executive and legislative branches for political courage.
Gabe Newland is a civil rights lawyer and public defender in New York, where he specializes in appellate and post-conviction litigation.
Even after a major class action suit required Illinois to revamp its prison healthcare system, doctors whose alleged neglect resulted in major injury or death still remain on the prison system payroll.
Why Prisoners Get The Doctors No One Else Wants
Even after a major class action suit required Illinois to revamp its prison healthcare system, doctors whose alleged neglect resulted in major injury or death still remain on the prison system payroll.
Gerry Armbruster went to the doctor in May 2014, complaining of tingling and numbness in his arms and hands. He told the doctor how pain in his legs was making it hard to walk, too. “I knew something was wrong, but I couldn’t pinpoint it,” Armbruster said. He says he was told by the doctor that he was just dehydrated and if he drank more water he would be OK.
Two weeks later, Armbruster was back; the pain and numbness had gotten worse. He now had no grip in his right hand. It took him five minutes to write his name on the paperwork given to him at the appointment. Over the following weeks Armbruster went to the doctor repeatedly, yet at each visit, medical staff would not refer him to a specialist.
Armbruster had no option for changing doctors or getting a second opinion: He could only see the doctor assigned to Southwestern Illinois Correctional Center, a 763-bed prison in East St. Louis, where he was serving a three-year sentence for burglary and aggravated battery.
Armbruster did not know he had signs of spinal cord compression, a dangerous condition that can cause permanent damage to the spinal cord, especially if not treated early. Though he spent the final five months of his sentence begging for medical staff to help him, relief did not come until after his release. Ten days after leaving prison, Armbruster found himself on the operating table, a surgeon racing to alleviate the pressure on his spinal cord.
Armbruster was only one in a string of patients who allege that they suffered after their prison doctor, Bharat Shah, missed critical symptoms and misdiagnosed common conditions. Just weeks after Armbruster’s emergency surgery, another prisoner arrived at the prison on a strict antibiotic regimen to keep a mild infection under control. Yet for months, the prisoner later told the federal court in Illinois, Shah refused to give the prisoner the medication, resulting in a severe ankle infection that had to be surgically removed. Months later, another prisoner at the same prison suffered nearly identical symptoms as Armbruster; Shah allegedly refused to treat him.
In court filings, Shah denied that he had provided negligent care. Armbruster’s case is still open, but the other two have been dismissed, one because the prisoner failed to complete the prison’s grievance process before filing his suit and the other because the plaintiff missed a court date.
Shah is far from the only doctor in America’s prisons to face these types of allegations. A joint investigation by Type Investigations and The Appeal that included interviews with prisoners, lawyers, advocates, and a review of hundreds of medical disciplinary records, prisoner medical records, and court filings found that doctors with histories of serious medical errors or past records of misconduct are hired to work in prisons across the country, and they often continue treating patients even after prison officials are made aware of problems.
Correctional healthcare is fraught with conditions that allow problematic doctors to flourish. It can be tremendously difficult to recruit physicians to work at prisons in rural areas, for example, so agencies often turn to specialized private companies for help. That’s what happened in Illinois, where the state Department of Corrections contracted with a correctional healthcare company, Wexford Health Sources Inc., to provide physicians and medical staff to work in the state’s prisons. These public-private partnerships often force the correctional agencies to cede control of hiring and firing individual physicians, and obscure the lines of responsibility when something goes wrong.
Even when a doctor’s mistake results in a permanent disability, prisoners have few options to seek better treatment or push for accountability. In addition to the limitations at the local level, a federal law passed in the 1990s placed restrictions on when a prisoner can sue over treatment. Together, these conditions create a climate of impunity for dangerous doctors, leaving an unknowable number of prisoners permanently disabled, and costing others their lives.
“No one cared,” Armbruster said of his treatment in prison. “They didn’t care … because I wore a blue shirt, blue pants, and an ID that says my name and number on it.”
A groundbreaking class action lawsuit filed in 2013 against the Illinois Department of Corrections (IDOC) offers a glimpse behind the scenes of correctional healthcare. The case, brought by the ACLU of Illinois and the Uptown People’s Law Center in Chicago, alleged systemic failures in the agency’s medical services. It began in 2010 when Don Lippert filed suit, alleging that the insulin needed to manage his diabetes had repeatedly been withheld, which the IDOC denied. The federal court hearing the class action case appointed an independent four-person team of experts—two physicians, a nurse, and a dentist—to determine “whether the state of Illinois was able to meet minimal constitutional standards” in its healthcare program.
The team released its reportin December 2014, and the results were scathing: The IDOC’s healthcare program hired “underqualified” physicians, failed to provide appropriate supervision and oversight, and did not have adequate electronic resources for physicians to manage care. These conditions resulted in at least 36 deaths between January 2013 and June 2014 and two deaths in 2010 that the team deemed “problematic.”
In 2017, as the case continued, the federal court appointed a second team of medical experts to update the court on the department’s progress.
The second team noted some improvements but found that Wexford failed to hire properly credentialed physicians, which increased the risk of harm to patients and led to nearly a dozen preventable deaths from 2016 to 2017.
At least four doctors who were found to have one or more preventable prison deaths attributed to their care remained on staff in Illinois prisons.
Wexford’s chief administrative officer, Elaine Gedman, could not comment on any specific cases, but said the company disputed the findings in the expert reports. “We don’t think that it was a fair and accurate assessment of the care that is provided,” she said, noting “there are hundreds of thousands [of patients] that had no issue with any of the care that was provided.”
The expert teams studied the healthcare delivery in eight prisons and reviewed dozens of deaths. Type Investigations and The Appeal scoured the experts’ reports and mortality reviews and identified doctors that frequently reappeared. At least four doctors who were found to have one or more preventable prison deaths attributed to their care remained on staff in Illinois prisons: John Robert Trost, Saleh Obaisi, Vipin Shah and Kul B. Sood were identified by name in the class action case.
Two of those doctors are no longer treating incarcerated patients in Illinois. Trostno longer works for Wexford in Illinois, butwhile he was medical director at Menard Correctional Center at least four patients died under his care. Two of these deaths were deemed preventable, and two were found to be possibly preventable by the expert team. Obaisi had at least two patients die under his care in a little undera year—both deaths were deemed preventable by the expert team. Obaisi worked for Wexford in Illinois until his sudden death in December 2017. Trost did not respond to interview requests.
But Type Investigations and The Appeal found that two of the other doctors named in the class action—Sood and Vipin Shah—are still on staff.
Sood was the subject of several emails complaining about his performance. At Hill Correctional Center, the facility where Sood worked in western Illinois, the first expert team determined at least two prisoner deaths were “extremely problematic,” and involved “egregious” lapses in care.
Sood was the medical director at Hill Correctional Center in January 2013, when one patient came in complaining of abdominal pain. A doctor noted that the patient’s spleen was enlarged and encouraged him to drink more water and take some naproxen for the pain. By September, the patient was dead. The expert team noted that in the intervening nine months, there were “multiple and disturbing” lapses in his care. The patient had non-Hodgkin’s lymphoma, but received that diagnosis at the intensive care unit of a local hospital only two weeks before he died.
The expert team wrote that thepatient was displaying symptoms commonly associated with cancer, yet “it took four months to obtain the first appropriate imaging test (ultrasound). When that test suggested the need for more detailed imaging by CT scan, that recommendation was ignored, despite increasing clinical evidence of a serious underlying condition.”
According to the expert report, the death summary written by Sood “completely glossed over the significance of the enlarged spleen and focused mainly on the terminal events in the infirmary.”
The expert team concluded that the care could “only be construed as deliberate indifference.”
The second expert team found another preventable death under Sood’s watch. At Hill Correctional Center, a patient was put on blood thinning medications although he had multiple health conditions that made these drugs dangerous for him to use. As his health deteriorated, the patient began showing symptoms that the level of blood thinners in his system was too high; still the doctor did not check the level of medication in the patient’s blood. Eventually, the patient became unresponsive and was sent to the hospital where testing showed extra-high levels of blood thinner medication, which led the patient’s brain to herniate and caused his death in January 2016.
“This doctor is a nuclear radiologist and clearly does not have fundamental medical knowledge sufficient to practice general primary care medicine, and should not be allowed to do so,” the second court-appointed medical team wrote, referring to Sood. “This is a doctor identified on the First Court Expert report as having performed poorly. Yet he continues to practice.”
Though physicians can be board certified in a variety of specialties, primary care or internal medicine expertise is considered critical in correctional settings,where there’s often only one doctor seeing patients with a diverse range of needs, the expert teams concluded. As of 2018,the second expert team determined, only 53 percent of the Wexford physicians working in Illinois had specialized training in primary care, and of those, fewer than a quarter had an advanced board certification in the field.
In early 2016, Sood’s supervisor, Dr. Louis Shicker, had grave concerns after reviewing the death of another one of Sood’s patients. Shicker, then the agency medical director for the IDOC and one of the state employees charged with overseeing the performance of Wexford doctors, classified the case as “a likely avoidable death” and wrote in an email that he had discussed the case at length with the company’s executive-level physicians. “We agree that Dr. Sood has now made some significant errors in the care of IDOC patients at Hill [Correctional Center] and that he will receive a final warning and likely termination or voluntary resignation,” Shicker wrote. Instead, according to emails quoted in court documents in the class action case, Wexford moved Sood to another prison in Illinois. Shicker did not respond to requests for comment or to mailed questions.
Sood did not respond to questions for this story, and Gedman declined to comment on the allegations against him. When the IDOC brings issues about a physician to the company, she said, it attempts to find a “mutually acceptable resolution,” though the company ultimately has final say over any decision. “We’ve transferred some physicians from a more complex facility to a less complex facility if we thought they were better suited for that,” Gedman said.
She questioned the expert team’s assertion that a doctor trained in nuclear radiology or another speciality would be ill-equipped to provide primary care. All doctors get primary care training in medical school, she noted, and said that board certification has little to do with a provider’s performance. Gedman added that the doctors she hires have an average of 29 years experience practicing in general, clinical environments, even if they lack a primary care specialty, and the company provides doctors with refresher courses on primary care. “Frankly, [board certification] doesn’t mean much of anything,” she said. Gedman also provided updated statistics regarding Wexford physicians in Illinois, noting that 52 percent of the company’s regular full-time or part-time doctors are now board certified in primary care or internal medicine. These statistics could not be independently verified.
The court records include evidence that the IDOC was long aware of problems involving the doctors in its facilities.Another doctor, Vipin Shah, has struggled in his work treating prisoners, according to emails exchanged between his colleagues. In July 2015, staff members at Pinckneyville Correctional Center, a prison where Shah worked, contacted Shicker with urgent concerns about Shah’s performance; Shah had ordered vitamins and observation for a patient with an emergent health condition, and the patient had to be rushed to the ER the next day. “The Nurse Practitioner is getting upset in regards to Doctor Shah,” wrote the health care unit administrator, an IDOC employee. “We need to do something,” the regional coordinatorwrote to Shicker in reference to the same event. “Dr. Shah is doing poorly!”
Shah declined an interview request when reached on the phone.
Omar McGhee filed suit against Illinois Department of Corrections employees and Wexford over his medical treatment. In 2015, McGhee, a prisoner at Southwestern Illinois Correctional Center, started experiencing numbness and tingling in his arms. In his legal complaint, McGhee claims that he reported worsening symptoms for months to Bharat Shah, the same doctor who treated Gerry Armbruster the year before. McGhee had two sets of X-rays, the second of which showed what was causing his issues. McGhee says that Shah told him the problem could be fixed with minor surgery, but that it would not be approved until McGhee had completely lost the use of his left arm. The case was dismissed after McGhee failed to show up at a court hearing in September 2016.
Shah denied any wrongdoing in treating McGhee, and in an affidavit suggested he wasn’t present during all the dates of treatment. He did not respond to requests for comment.
It’s not always clear who is ultimately accountable for lapses in prison healthcare. The prison systems hire private companies as contractors, but often can’t fire the doctors that work for them. Though it is contracted by the IDOC to provide care, Wexford was initially named in the class action lawsuit, but later dismissed and not included in the subsequent settlement agreement. Both Vipin Shah and Sood are Wexford employees, and despite the conditions of the settlement agreement, the company still has final say over their discipline or termination.
A spokesperson from the Illinois Department of Corrections declined to respond to a detailed list of questions and stated, “The Department is currently in the process of implementing the recommendations in the Lippert consent decree.”
These problems go far beyond Illinois. In each step of the process, from recruitment to hiring and work performance, corrections agenciesstruggle to find high-performing physicians. In Louisiana, when reports showed that nearly a third of the prison doctors in the state had a record of misconduct, its corrections agency said “sometimes it’s so desperate a situation, you just need a body in the job” when it came to finding physicians to work in the prisons.
In response, agencies turn to the private sector for help. Corrections is a lucrative industry and some companies, like Wexford Health Sources, specialize in correctional healthcare. Gedman, Wexford’s chief administrative officer, said the company uses myriad recruitment strategies, including text campaigns, networking events, and TV and billboard ads. “We try to recruit—just like any hospital tries to recruit—the absolute best doctors that we could possibly recruit,” said Gedman.Still, she acknowledged the difficulty of recruiting physicians to work in correctional settings, which are often in extremely remote areas. “If you are a physician and you have the natural means to do a lot of things because you make generally a good bit of money, oftentimes [you] don’t want to be in the middle of a corn field in Illinois.” she said.
Some practitioners with disciplinary histories bounce from state to state.
Private companies, like hospitals, can check the disciplinary records of potential employees,and they also have access to the restricted records of the National Practitioner Data Bank, a resource that contains all disciplinary action taken against a medical provider. In the class action lawsuit in Illinois, a regional coordinator testified that licensing was the only credential the IDOC reviewed before hiring a physician; the details on training, board certification, or disciplinary history were not part of the review.
Gedman said Wexford does check the data bank before hiring a physician. But a mark on a physician’s history is not an automatic disqualifier from a job treating prisoners, she said. If the medical board allowed the doctor to keep a license, the doctor is still a viable candidate, and a credentialing team decides whether the candidate is a good fit. “Sometimes the answer is yes, even though they may have an issue on their license from the past,” Gedman said.
Some practitioners with disciplinary histories bounce from state to state. Dentist Ruthie Jimerson was disciplined by two health boards: the Michigan Department of Community Health in 2008, and the Indiana State Board of Dentistry in 2013. In a 2018 contract, Jimerson is listed as a dentist employed by Centurion, a corrections healthcare company that provides care in Tennessee prisons.
When Douglas Reaves was a patient of Jimerson’s at Wabash Valley Correctional Facility in Indiana, he said she already had a reputation for being rough on patients. He alleged in federal court that she started extractions before numbing medication took effect, broke teeth, and injured prisoners. In 2015, Reaves filed a lawsuit against Jimerson and her supervisor, alleging that she broke a cap off his tooth and, rather than repair the damage, extracted the tooth. According to his suit, Jimerson had been barred by the Indiana state board of dentistry from performing a cap repair without a supervisor present. He eventually settled the case.
Jimerson did not respond to repeated requests for an interview, but in court documents she denied any wrongdoing.
Gerry Armbruster’s case shows the human cost of prison healthcare gone awry. Armbruster grew up in the small town of Granite City, Illinois. He got a job at the local Hardee’s and dropped out of high school in his junior year. His real passion was cars; he was always fixing and repairing them, and drove a tow truck for many years. “I had a pretty good life until I started using drugs,” Armbruster said. “I was addicted to cocaine and started breaking the law, doing stupid things that I regret.”
In 2011, he was arrested for burglary and aggravated battery and sentenced to three years in prison; it would be his fourth time in prison. In the spring of the final year of his sentence, the pain began. “It started with my hands,” Armbruster said. “My fingertips were always numb, my wrist was hurting, my elbows was hurting, I could barely walk.”
When his then 2-year-old daughter would come to visit, Armbruster was too weak to even lift the toddler. “I thought it would go away but it didn’t go away; it kept getting worse,” he said. The numbness, pain, and tingling became more and more disruptive. “Whenever I had to use the restroom, [it] was very difficult,” Armbruster said. “I had to go straight from the toilet right to the shower because I couldn’t move that good to properly cleanse myself. And that’s when I knew it was really bad.”
Armbruster once dreamed of drafting cars for Chrysler. In prison he would draw every day, designing cards for fellow prisoners to send home to loved ones. “In prison, everybody’s got a hustle,” Armbruster said. “So that was my niche, I drew for my honey buns and my coffee.” He would charge a few dollars a card and sell about 10 cards a day. “I’d call it, not a Hallmark, but a Jailmark. Jailmark by Armbruster Art, that was my hustle.”
When his hands started to bother him that spring in 2014, his business took a hit. He couldn’t hold a pen or a pencil to draw, he said. “[I] stopped when I couldn’t use my hands no more.”
Armbruster filed at least two grievances with prison administration after his symptoms began. In the first, submitted less than a week after he first saw the doctor, he claimed that he was not getting adequate medical attention, and that the doctor only told him to drink more water. The second grievance came just a month after the first. In the second, Armbruster claimed that the medical staff told him Wexford and the IDOC would not fund the expense of sending him to an outside hospital for care. By this point, Armbruster had extreme difficulty writing and needed another prisoner to write the grievance for him.
“I’m in terrible pain, can barely move, have problems with simple task[s], such as getting dressed, taking showers, using [the] restroom, walking, sleeping, arms are continuously numb at all times,” the grievance said. “I’m only requesting proper medical assistance, so I’m able to walk and experience no more pain.”
Gedman disputed Armbruster’s account of his interaction with medical staff and stated that Wexford has never denied care to a prisoner to save money.
Yet, Armbruster’s lengthy struggle illustrates the difficulty prisoners have in seeking redress. Non-incarcerated patients can bring a medical malpractice suit to seek justice and accountability from a doctor who has harmed them. For incarcerated patients, medical malpractice claims can be brought on a state level, but the process is complicated. Requirements can vary, but often state courtsrequire any plaintiff to have an affidavit from another medical professional, attesting that the care the patient received was below professional standards. This second opinion can be near impossible for prisoners to get.
“A prisoner is going to have no chance whatsoever of finding such a doctor who’s willing to talk about other doctors, from his jail cell,” said Alan Mills, executive director of the Uptown People’s Law Center. This challenge weakens one of the few means of accountability available to a prisoner. The arduous process, advocates say, means bad doctors have essentially no consequences for errors and mistreatment, and little incentive to improve.
Derrick Echols, who is serving a life sentence in Illinois, faced all of these hurdles in 2009 after a prison dentist broke a drill bit in his mouth, then stitched the wound with the metal debris still inside. He filed a civil rights case in federal court, and included copies of the X-rays showing the metal pieces in his mouth. Still, the court called his allegations “factually frivolous” and dismissed the lawsuit with prejudice. He successfully appealed the dismissal, and says he eventually settled with his dentist’s insurance company for $22,500 this year.
Given the difficulty of filing state claims, prisoners typically turn to federal court for help, claiming that their civil rights have been violated by the treatment they received in prison clinics.
Apart from the class action suit in Illinois,just under 700 federal prisoner civil rights lawsuits were filed against Trost, Obaisi, Vipin Shah and Sood over the course of the last 25 years. Though the outcome of those cases are unknown and it’s unclear how many of them relate to patient care, advocates saythe sheer number of cases filed suggests that the problems were widespread.
Gedman disagreed with the notion that the number of lawsuits reflects quality of care. Incarcerated people are highly litigious, Gedman said. Even if you’re the perfect doctor, “you’re still going to get a lawsuit. That’s just what they do.”
But advocates like Mills point out that such lawsuits are often a prisoner’s only available option. A federal law, the Prison Litigation Reform Act, restricts when, how, and what kind of help a prisoner can get. The law, enacted in 1996, requires a prisoner to exhaust the corrections agency’s grievance system before filing a claim in court alleging negligent care.
Overseen by corrections officials, the grievance process in many states is extremely complex, with tight deadlines and detailed requirements; any misstep risks disqualifying a prisoner from filing a subsequent federal lawsuit. If a prisoner files a lawsuit before exhausting these remedies, the case will be dismissed without prejudice, allowing them to go back and begin the grievance process again. However, the window to file a grievance after the initial incident is often quite short, meaning that many prisoners aren’t able to meet the deadline.
“If you don’t jump through all those hoops properly, in the right order then you are forever barred from bringing your case in federal court,” said Mills, “no matter how good it is.”
A spokesperson for the Illinois Department of Corrections declined to answer specific questions about the agency’s grievance process.
The decisions that doctors made behind the walls of the prison continued to affect Armbruster long after his release in September 2014.
Armbruster waited 10 days for his Medicare card to arrive before going to the doctor for his pain. “The day that came in the mail was the day I went to the emergency room,” he said. “My mom dropped me off, and I walked into the emergency room and I did not walk out.”
Testing done that day showed Armbruster’s spinal cord was squeezed nearly in half, from a healthy 10mm diameter down to 5.5mm. He cried with relief when the doctor told him they had found the source of his pain.
The neurosurgeon operated on Armbruster for about an hour that night. “I woke up and didn’t feel no pain at all. I was like ‘Hmm, hey, it’s over with, it’s gone,” Armbruster said.
“It wasn’t gone.”
The months-long wait for surgery has led to what doctors say is irreversible damage to Armbruster’s spine. He often has trouble walking and deals with near constant numbness and tingling.
“It was better, a lot better, but it was not by far, done,” he said. “It took a long time to get where I am right now.”
The continued symptoms have forced Armbruster to get creative in his daily life. He started keeping spare cell phones around because his phone repeatedly slipped from his numb fingers and broke on the ground. “I always try to keep my mind on something other than the pain,” Armbruster said.
In the first year after his surgery, when his youngest daughter, then 3, would visit his home, he did his best to keep up with her, but found her too quick. He tied a rope around her waist and around his own, so she wouldn’t get too far away when she ran and played.
Armbruster now lives in an RV near his girlfriend’s house in Cottage Hills, Illinois. With few organizations interested in hiring someone with a felony record and physical limitations, finding work has proved near impossible. He relies on the generosity of his friends and family to keep him afloat. Armbruster can’t draw and can’t work on cars but does his best to keep busy.
“There’s nothing I can do. I’ve just accepted that this is the way it is,” he said. “I know it’s not gonna get better.”
This article was reported in partnership with Type Investigations, where Taylor Elizabeth Eldridge is an Ida B. Wells Fellow.
There’s a growing acceptance of the idea that we need to overhaul our system of mass incarceration. But methods for doing so vary enormously—and some are causing more harm than good. Today’s guest, Civil Rights Corps founder Alec Karakatsanis, has written a new book, “Usual Cruelty,” that explores how even self-proclaimed “reformers” can be part of the problem and prevent true reform from taking hold.
AdamJohnson: 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 at The Appeal magazine’s main Twitter and Facebook page and as always you can rate and subscribe to us on Apple Podcasts.
The question of what constitutes morally useful reform and reform that simply legitimizes an existentially horrible institution is a question that has plagued activists since there has been activists and injustice. This is an especially urgent question for the legal community as so-called criminal justice reform becomes more and more mainstream. Today’s guest, founder of Civil Rights Corps, Alec Karakatsanis, written a new book, “Usual Cruelty,” exploring these big questions, calling on those in the legal profession and the public in general to think more critically about the role they play in our racist, brutal institution of mass incarceration.
AlecKarakatsanis: Punishment bureaucracy, now that it has metastasized, it wants to reproduce and expand itself and so many of the reforms that we’re seeing are actually potentially ways of expanding its reach and actually even further accomplishing the goals of controlling and surveilling and caging and punishing large swaths of our society.
Adam: Alec, thank you so much for joining us on The Appeal.
AlecKarakatsanis: So happy to be here.
Adam: So you wrote a book which could sort of best be described as a prosecutor turning their eye to the legal profession as a sort of institutional apparatus within the broader discussion of criminal justice reform. You write that the quote “emerging ‘criminal justice reform’ consensus” — and you put “criminal justice reform” in scare quotes here, it’s worth noting — “is superficial and deceptive. It is superficial because most proposed ‘reforms’ would leave the United States as the greatest incarcerator in the world. It is deceptive because those who want to largely preserve the current punishment bureaucracy — by making just enough tweaks to protect its perceived legitimacy — must obfuscate the difference between changes that will transform the system and tweaks that will curb only its most grotesque flourishes.” Obviously this is a question we deal with on this show a lot, what is sort of real quote unquote “reform” and what is performed for reform sake or kind of to operate as a kind of a safety valve for power? Can you kind of explain what you meant by that and how you make a distinction between good reform and sort of reform that exists to reinforce the system as a sort of slightly woke-r version than its previous self?
AlecKarakatsanis: Sure. I wrote the book because I think we’re at a very dangerous time in what people call the criminal justice reform movement. I think you’ve got a lot of people now going around, people who are really punishment bureaucrats, people who constructed and perpetuated and profited from the massive criminal punishment bureaucracy that we have and you’ve got them going around the country saying things like ‘we need criminal justice reform, the system broken.’ I mean have you Adam heard anyone say the ‘criminal legal system is broken?’
Adam: Yes. I suppose a kind of normative appeal masking as a descriptive one.
AlecKarakatsanis: Exactly, and I think I always find that term funny because it’s only broken if you think that its goal is to lead to a society of human flourishing, safety and wellness and equality. If you think that the goal of the punishment bureaucracy is something else, let’s say to control certain populations and to preserve certain distributions of wealth and power and racial supremacy, it’s actually functioning quite well.
Adam: Very well, yes.
AlecKarakatsanis: And it couldn’t be functioning better. And in fact it’s this real function that I really tried to describe in the book and try to explain how a lot of the reforms that are being pushed are actually minor tweaks that preserve the architecture of this bureaucracy as a tool of people in power and as a tool of wealth and really white supremacy while sort of curbing some of its most, as you said there, grotesque flourishes, that have led to a lot of popular consciousness that the system is actually maybe not doing what it’s telling us it’s doing. And so for me, there’s this battle going on now between people who actually want to fundamentally transform the way that our punishment system has been working and people who are very, very comfortable with both the punishment bureaucracy, and how how our society looks more generally, who want to kind of try to trick people into thinking that we’re making some really nice changes to the system. And so we don’t need to do too many other changes to the rest of our society.
AlecKarakatsanis: And so I start from the premise that any large bureaucracy, the punishment bureaucracy, now that it has metastasized, it wants to reproduce and expand itself. And so many of the reforms that we’re seeing are actually potentially ways of expanding its reach and actually even further accomplishing the goals of controlling and surveilling and caging and punishing large swaths of our society. So just to take one example, let’s look at like the bail system. People are talking about bail like they’ve never talked about it before, you know, it seems like every podcast and every show and every jurisdiction has a bail reform plan, right? But if you look at actually what’s being proposed, if you look at what most judges and prosecutors and local politicians and state politicians are proposing, you’ll see that the kinds of reforms they’re proposing are actually not striking at what’s wrong with the money bail system. So we have a system where 400,000 human beings are detained right now on any given night, just because they can’t pay money bail. Many of the reforms that people are promoting would keep the same or even protect more people in jail cells prior to trial, but just not keep them there because they can’t pay. It would keep them there by calling them quote “dangerous” or quote “risk of flight” or something like that right? And then for the people that are getting out of jail now, by paying a premium to a for profit commercial bail bond company, under the reforms that are being pushed many places around the country, those people wouldn’t have to pay a bail bond company, they would have to pay an electronic monitoring company. So some of the same aggregations of wealth are now changing their business model from the person that sells you the bail bond to the person that drug tests you and gives an electronic monitor to you that you have to pay $12 a day for. And so you’ve got the same populations being controlled in the same ways, the same entities making the same amount of profit off of the same people and we’re just putting a different label on it. I think that’s a good example of what’s happening all across the sort of wide range of issue areas within the criminal punishment bureaucracy.
Adam: Yeah, no, and it’s meant to sort of speak directly to those people. Cause this is obviously, I mean the sort of tension between meaningful reform and reform that’s sort of just enough to validate the system itself is probably the greatest tension in any left-wing movement over the last 50 years. Right? Like how do you, how do you sort of change things without legitimizing the system or changing it in a sort of token kind of limited hangout way. And I know this is something that plagues people who are abolitionists in this space. I know specifically the Chicago Community Bond Fund deals with this a lot. This was an organization started by, I think it’s probably fair to say, committed abolitionists, many of the anarchists who tell you from the get go that ‘we do not want the bond fund to be here in X amount of years.’ Right? This has to be a political project and now you have new bond funds emerging that are like, some of them are startups and some of them are like sort of institutionalized and that sort of defeats the whole purpose of what a bond fund was supposed to do originally. It’s a very slippery slope and you talk about the slippery slope even with the label of progressive prosecutor and I find myself coming up against this a lot. We had Chesa Boudin on the show, who’s running for district attorney in San Francisco, and I asked him like, how do you define a progressive prosecutor versus the sort of label of progressive prosecutor? Like would it be fair to say we’re going to come up with some arbitrary percentage of the jail population we want to reduce it by? Like how do I define this? Because it does sort of, you begin to define things down to the point of they have no meaning and you write about this specifically in the context of Sally Yates, Eric Holder, Preet Bharara, who of course was behind the Bronx 120, who described themselves as “reformer reformers.” So I guess my question is can you explain why this slippery slope exists and how do some of these kind of liberal reform groups, help prop this up and to what extent do groups like The Appeal maybe even play into that? We describe on the show criminal justice reform to abolition. We sort of try to cover the whole range of things and I’m curious, in the interest of intellectual honesty, I want to talk about how we ourselves have elements of reformism.
AlecKarakatsanis: Sure. Of course. I think one thing you have to understand about most liberals, particularly those elites who have themselves worked in and benefited from the punishment bureaucracy, like some of the people that you’ve talked about, like Preet Bharara and Eric Holder and Sally Yates, and the institutions that sort of represent the same worldview, like The Brennan Center for example, to take one example I talk about in the book, is that fundamentally if you go to fancy conferences, they get grants and philanthropic funding to have those conferences and to have these discussions amongst themselves. And they talk about what they call “justice” at these conferences. And, but the thing you have to understand about them is that fundamentally they pretty much like the way that our society looks. They’re talking about making minor tweaks to the criminal legal system without making major transformations in let’s say the distribution of wealth or in the demolition of various hierarchies in our society or in white supremacy. Right? And so they’re able to have this view that our society is mostly pretty good. Yeah, we have some excesses in the criminal legal system and, and many of those have gone a little too far, but they are able to have this view because at the end of the day, it’s not their bodies and their lives and their families on the line. They’re not the ones being separated from their children and brutalized without sunlight and exercise or medical care in local cages. And so they understand very, very well that no matter what happens in the criminal legal system, they’re not gonna really be the ones who bear the brunt of it. And so they’re able to, in a really sort of detached way, talk abstractly about some of the worst aspects of the criminal legal system without confronting how their lifestyle, their power, the system that they’ve constructed in order to make sure that nobody can walk into their privately owned home and sleep there who doesn’t have shelter or nobody can take money that they earned from their high paying jobs. And so like all of the, sort of the basic fundamental aspects that make our society look the way that it looks, those people want to preserve all of that. And I think what they’ve done is they recognize that the existing criminal punishment bureaucracy is so out of step with its own stated goals that it’s really, in the public’s mind, losing legitimacy. And if that system loses legitimacy, I think they’re very worried about what kind of system might replace it. So I think what we’re seeing in a lot of these fancy conferences and among a lot of these punishments bureaucrats is a recognition that they have to do something to close the gap between the way our laws are written and the way they talk about our laws and their lofty goals and the way the law is lived and experienced by poor people of color because that gap is so intolerably wide right now that even ordinary people are coming around to saying, well wait a second, like this system isn’t doing anything like what it’s telling us it’s doing it. In fact, it seems to be serving all of these other goals. That’s very, very dangerous for people, you know, liberal elites who sort of control out of these systems and profit from them by the way that they can exclude people from their neighborhoods and exclude people from their wealth and their property and benefit from their own privileges. That’s the function that I think a lot of sort of mainstream and I want to also just also include organizations like the one that I work at Civil Rights Corps. I mean all of us are complicit in some way and all of us who are pursuing incremental reforms like Civil Rights Corps has been litigating cases all over the country to try and get as many people out of jail as possible. The money bail system and challenging fines and fees systems and suing prosecutors, but even that work is incremental. And so to me, whenever you do incremental work, And I’m not opposed to incremental work at all, but you have to have a theory for how that incremental work isn’t just harm reduction, but is also actually building power that can contest at a really deep level fundamental power structure in our society. What role are you playing in a movement that changes distribution of power? And some incremental reforms can create a locus for changing a narrative and changing power distributions and other incremental reforms can suck that energy away and you have to have a theory for how what you’re doing is contributing to that more fundamental, more radical power building.
Adam: I think activist Mariame Kaba refers to this as reform reform versus revolutionary reform, which is sort of subjective obviously, but I think the theory of how this sort of informs a broader more radical change is an interesting one. So a lot of what you write about is sort of the culture of the legal world in law school and among lawyers, which I thought was so sort of an interesting, not necessarily a critique I’ve heard, now in the journalism world, these conversations are very common where people say, ‘oh, well I don’t necessarily have that person’s politics or they work for news corps or something, but we’re all, at the end of the day, we’re all journalists, we’re all buddies.’ And this sort of this, you know, it’s like Jake Tapper having a two week meltdown when Obama criticized Fox News. Like there’s this sort of professional norms that you have that can sort of begin to obscure bigger ideological and moral distinctions. And you write about the ways in which these norms are systematized, for lack of a better term, a kind of professional sociopathy. Can we talk about this sort of mentality, the way in which this mentality and these kinds of professional courtesies play into mass incarceration, for lack of a better term?
AlecKarakatsanis: Yes, of course. I think it’s a really important issue for people who work in the punishment bureaucracy to reflect on, and let’s just start with my own experience and my own complicity in this, right? So I was a public defender for four and a half years to begin my career, and I worked at two of what are considered the most zealous and most prestigious public defender organizations, the Federal Defender’s Office and the Public Defender Service in the District of Columbia. These are very high paying, relatively speaking, legal jobs in the public defender world. They have lots of resources. They’re not saddled with unbearable case loads like most public defenders all over the country. Your thought to have the time, energy, and room to be a zealous advocate for your clients. And yet in my four and a half years at both those offices, neither I nor to my knowledge, anyone else at any of those two offices filed a single appeal of a pretrial detention decision. And how did that come to be? These clients, that we cared about a great deal, who are ordered detained, even though they’re presumptively innocent prior to trial, we never even asked an appellate court to overturn that decision because we had become so desensitized to the brutality of pretrial human caging and maybe so cynical about what we could do about it that we allowed it to happen. And I think that has a profound effect on everyone else in the courtroom, let’s say the judges and the prosecutors. You know, when the person who’s supposed to be telling the client’s life story and getting you to understand what it’s like to be separated from your child while you’re awaiting charges in a local jail, the person who’s supposed to be talking about what goes on in these cages and supposed to be setting forth an alternate vision for what the person could be doing outside of jail to assuage any of the court’s concerns. You’re supposed to be telling that compelling story and we were utterly failing. So much so that everybody else in the legal system slowly starts to think, well, it must not be that big of a deal because the public defenders aren’t even raising these issues. They’re never appealing it. We’re never getting overturned, and, and that’s how slowly you create a legal system where 400,000 to 500,000 people on any given night are detained prior to trial. We all became really desensitized to it. Another example that I talk about in the book is when I got to the Public Defender Service in DC and I went into the juvenile court the first day, all of the children there, of course, all of them black — I never saw a white child prosecuted in DC in three years that I was there — were fully restrained in metal chains. We’re talking about 8-year-olds, 10-year-olds, 12-year-olds, many of them with severe intellectual disabilities. The victims of incredible abuse and trauma. They’re fully restrained with a waist chain, ankle chains, handcuffs, they can’t move. They’re very confused. They don’t understand why and everyone in the courtroom is just going about their business. The defense lawyers, the prosecutors, defense lawyers hadn’t objected to it in years and the prosecutors were just doing it. The judges were just doing it every day. How do we get to that point? I mean, and I thought to myself, you know, if this judge came home at night and the babysitter had shackled his child, or you know, the judge went away on vacation and learned that her daughter was shackled for three of the days that she was gone, you might imagine that they would try to criminally prosecute the person that did that to their child. And yet we were just sort of all functioning in this system. We had become really inured to the cruelty that we’re inflicting. And so I just think that like all over the mass incarceration universe, whether it’s shackling people, whether it’s what we’ve allowed our jails and prisons to become, whether it’s the bail issue, virtually at every corner of it, there is a cruelty and there is a complete lack of evidence that anything that we are doing is doing any good for anyone.
AlecKarakatsanis: I really explore in the book how do we get to this point where we are so insensitive to the enormous human cost of what we’re doing and so insensitive to the lack of any perceived benefit to any of it.
Adam: Let’s pin this down here. Let’s say that I’m one of these elite liberal reformers, I’m listening to this right now or I’m someone who works at the Brennan Center or Vera Institute and I’m in my car and I’m saying, ‘okay, well these guys are just being holier than thou.’ That we try to work within a system and that you can always sort of have just over the acceptable edge moral condemnation of the person just sort of slightly to the right of you. Right? And I had this conversation with Chesa when I had him on as well, which is like, okay, we’re going to have talk about reform, like let’s pin this down, let’s define this. So as I, from the sort of moral call for lawyers to just at least think about their surroundings, which I think is intrinsically valuable, what does it look like? Let’s sort of get specific here. What percent of your average county jail should be empty and what should those working towards reform have as a number? Do we make these sort of distinctions between violent and nonviolent? I know that those are not good if you’re really serious about reform. How do make these distinctions between sort of domestic abuse, rape? What does that look like in terms of establishing what a rubric for quote unquote “real reform” or “revolutionary reform” really looks like in your opinion? Like let’s try to be a little bit prescriptive here.
AlecKarakatsanis: Sure. I think it’s very important and it’s why I spend some time in the book, not just criticizing and diagnosing, but actually offering what I think are the types of reforms that or changes that actually are meaningful. I think there’s a few rules of thumb. I don’t think it’s useful to give a particular percentage, right? Because people like me think that no human beings should be in a cage and other people think that there’s some small percentage of the existing people who are in cages should be in cages and they think it’s 3 or 4 percent. I’m not interested in having that fight right now. I think all of us sort of can agree that everyone who I know who’s really, you know, put a lot of thought into and studying it has agreed with what some of the sort of the consensus among like sort of the liberal reforming classes that well over 90 percent of the existing punishment bureaucracy is just totally unnecessary even now.
Adam: That’s a good place to start.
AlecKarakatsanis: But like I don’t think that is as interesting to me as sort of crafting some general rules of thumb. And so one rule of thumb to me is any reform that you push for should be reducing the size of the punishment bureaucracy, and this is some of my big problem with people like Larry Krasner and what they’re doing. Every single year he’s been in office, he sought to increase his prosecutor budget. This is my big problem with reforms like body cameras for the police. Right?
Adam: Well right. Yeah. They just put more money into the institution. This is an abolitionist sort of criteria, which is is it putting more money into the institution? If yes, the answer’s no. If no, the answer’s yes.
AlecKarakatsanis: Exactly. Exactly. That’s a big one. Another one is control. Is this reform giving more control and discretion to punishment bureaucrats? Who is it vesting power in? Is it communities or is it punishment bureaucrats and elites? That’s another big one. The third one is, is the reform sort of backward looking or forward looking? Is it just trying to change a policy going forward or is it trying to repair and confront some of the enormous harm that we’ve done in the past? So for example, you know, is it merely legalizing marijuana or is it legalizing marijuana and preserving the business licenses for selling that marijuana for people who have been formerly incarcerated. That’s just one example, right? Or is it using a lot of the money that was being spent on pretrial caging in a certain jurisdiction and turning that money into helping start worker-owned co-ops right? There’s a number of things that are going on around the country that are actually concerned with sort of repairing that harm and investing in people who’ve been impacted by the system. Another big one to me is what I call the silo mistake, which is the mistake that many, many punishment bureaucrats and liberals make, which is we can fix the criminal punishment system without confronting things like capitalism and white supremacy. The other areas of our society, right? These other systems like how we’re delivering healthcare, what our distribution of property and wealth looks like. In my opinion, the criminal punishment bureaucracy evolved precisely to serve the functions of those other systems. And so it makes no sense to say, oh, we can just tweak a few rules here, slightly lower sentences here, slightly fewer people in jail and money bail there without confronting why we even have all of these systems. And so we need to start joining conversations about what’s called criminal justice reform to conversations about the distribution of wealth to conversations about healthcare and wellness and education and immigration and how all of these things fit together.
Adam: Yeah, I do think that’s sort of the bigger conversation you have to have and that there’s a correlation not just between Rahm Emanuel building a police academy, but closing down mental health facilities and schools and that these things are of course are inexorably linked. One of the takeaways that I read is, I think it’s the most interesting, is a sort of call to fellow lawyers to think critically about the systems we live in. And I keep thinking that it’s one of the more sort of urgent conversations that needs to happen because to me the difference between a radical and a moderate really always boils down to urgency. The violence is ongoing. It’s every day. You know, I was just at Cook County Jail a few days ago and the jail population there has decreased depending on who you ask 15 or 20 percent, that’s good. But like it’s still very high. And the difference between someone who sort of says, okay, well we’ll deal with that in 15 years versus someone who says we need to deal with it in 15 minutes is how urgent they view the violence that’s sort of ongoing. You write quote, “For the legal system to unleash police on the poor communities and communities of color such that the US came to imprison black people at a rate six times that of South Africa during apartheid, it was necessary fo the popular culture and legal culture to develop and nurture serious intellectual pathologies. So deeply have these pathologies captured the legal elite that the wholesale normalization and rationalization of this brutality has become arguably the chief daily bureaucratic function of most of us who work in the system.” Before you go, I want to sort of talk about this plea and why you chose to sort of focus on lawyers as a sort of distinct moral cohort to appeal to and what are these pathologies you really want people to think critically about who may be listening to this who are in the legal profession?
AlecKarakatsanis: That’s such a good question and I’m really interested in your point about urgency, which is something I couldn’t agree with more. I often ask if you found out, or if your listeners found out that while you and I were doing this interview the police had raided my home and in my basement I had a dungeon and it was cages and I was keeping people, I’ve been kidnapping people, mostly disproportionately people of color from the streets, putting them in my dungeon, exposing them to sexual assault, violence, lack of medical care, people were dying, they were sort of living in squalor, no exercise, sunlight, fresh air, you and maybe even some of your non abolitionist listeners would support like a search warrant for my home to rescue those people. Kind of like that guy in Cleveland a few years ago who had the women in his dungeon and some of your listeners might even support prosecuting me for kidnapping and torture of all of these people for years.
And yet that is the situation in 3,160 local jails right now. We’ve allowed them to become grotesque torture chambers and as a legal profession we have had no sense of urgency about that. You know, the one and only time I was invited to the White House, I was never invited back for reasons you might imagine, it was shortly after the San Bernardino shooting and the attorney general came in and interrupted our meeting and said, ‘I’m sure many of you are very concerned. I want you to be assured that we’ve got this tactical team and that tactical team and this FBI people and those people they’re all flying out there right now. They’re taking control of the situation. They’re acting. We’re going to give you another update in a couple hours. You know, thank you so much.’ That is what happens when society treats a problem as urgent. And I couldn’t help but notice that day we had been brought to the Obama White House after seven or eight years of virtual inaction and lack of urgency around any of these issues to talk for the first time about bail and fines and fees. And you can tell when a society takes a problem seriously, you send tactical teams to rescue people. And yet there were no federal tactical teams rescuing people from the Harris County jail when 55 human beings died because they couldn’t pay money bail from 2009 to 2015. There are no tactical teams rescuing people from local jails around the country even though people are enduring incredible torture. And so as a legal profession, our sense of urgency has been completely absent from this issue.
AlecKarakatsanis: And the second point to make in response to your question, which I think is a really a profoundly important one, is that the reason I talk about lawyers a lot is I think that if you look throughout American history, lawyers have thought of themselves as real leaders of movements and I think thought wrongly that the law sort of leads to social justice. And in fact it’s exactly the opposite. Lawyers have actually been the people who’ve translated the dictates of the powerful into the rules and norms and laws that oppress people. And when you look at radical social change throughout this country’s history, it’s never been led by lawyers and courts. You know, the whole function of lawyers and courts is to preserve stability and hierarchies of power. They’re the ones who write the contract. They’re the ones who say, you know, I can’t trespass onto your property if you’ve stolen it from my ancestors. So that’s what lawyers have done. And so I wanted to talk to lawyers and I don’t think the book is just for lawyers. I think it’s for ordinary people also to understand what lawyers are and what they do. But like I wanted to talk to lawyers about how if you are serious and urgent about a social movement that will change the way our criminal legal system looks you can’t be the leader. You need to think about how you can help contribute to a movement that’s actually building power because the law always follows power and you have to stop thinking of yourself as some kind of special leader who’s bringing legal cases through this established court system and thinking that that is actually going to lead to any kind of social change. And so I wanted lawyers to understand the urgency of the problem, but also understand that I wasn’t asking them to sort of take a lead in fixing it, but instead to sort of figure out what role they could play in a broader movement.
Adam: Well I think that’s a great place to stop. Alec, thank you so much for coming on. The book is “Usual Cruelty.” It is out now. Definitely check it out if you can. Thank you so much. I really appreciate it.
AlecKarakatsanis: Thank you so much for having me. It’s been a really wonderful discussion. Looking forward to more.
Adam: Thank you to our guest Alec Karakatsanis. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook page, and as always, you can rate and subscribe to us on Apple Podcasts. The show was produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.
Voting rights advocates are celebrating today as Kentucky and Virginia appear poised to undo a legacy of discrimination at the ballot box.
In Kentucky, one of just two states that still permanently disenfranchise people with felony convictions, Democrat Andy Beshear claimed an upset victory in the governor’s race, though the incumbent governor, Matt Bevin, has yet to concede.
In Virginia, another state that has recently wrestled with the issue of voting rights, Democrats won majorities in both houses of the state legislature, giving them control of the state government for the first time since 1993.
Beshear, who is currently Kentucky’s attorney general, vowed during his campaign and during his victory speech Tuesday to immediately issue an executive order to restore the voting rights of the more than 140,000 Kentucky residents convicted of nonviolent felonies who have completed their sentences. “If they have done their time and served their sentence, they ought to get those rights back,” he said in an interview in May.
Steve Beshear, Andy Beshear’s father, who preceded Bevin as governor, restored the vote to tens of thousands of people by executive order. But after Bevin was elected governor in 2015, he promptly rescinded their right to vote.
As of 2016, roughly 312,000 Kentuckians were disenfranchised for life because of a felony conviction, according to a study by the Sentencing Project.
Andy Beshear’s proposed executive order would significantly alter the racial makeup of the state’s electorate. Kentucky disenfranchises 26 percent of all Black adults, compared to just eight percent of the rest of the population.
Tayna Fogle, an organizer with Kentuckians for the Commonwealth, told The Appeal that she remembers the hurdles she had to navigate to get her voting rights restored after serving time for a drug conviction. She has spent years fighting to help others get their civil rights restored.
“I’m so thrilled,” she said. “We expect this new governor to really restore all of us holistically and allow folks to get the polls … And then we’ll see how Kentucky really changes.”
Still, some voting advocates have lamented that Beshear’s promised executive order won’t go far enough. Because it would only apply to felonies considered nonviolent, Kentuckians who have completed their sentences for violent felonies would be left to apply for individual pardons through the current burdensome process.
With their new legislative majorities, Democrats may now pass legislation to end the state’s lifetime ban on voting, codifying McAuliffe’s executive action into law. “The governor should not be involved, it should be automatic,” McAuliffe told the Appeal in September.
State lawmakers will likely have support from incoming prosecutors who campaigned on expanding voting rights. Three prosecutors who joined a legal challenge to McAuliffe’s rights restoration policies in 2016 lost this year; their stance on voting rights was a major issue in their reelection bids. Theo Stamos and Raymond Morrogh, the incumbents in Arlington and Fairfax counties, lost in the June Democratic primaries. In Albemarle County, Commonwealth’s Attorney Robert Tracci lost to longtime public defender Jim Hingeley on Tuesday.
Democrats in Virginia’s legislature, who now hold majorities, could also go further by pushing to restore the right to vote to people who are on probation and parole, as new Democratic state governments did this year in Colorado and Nevada—or to end felony disenfranchisement altogether.
Parisa Dehghani-Tafti, who was elected Arlington County commonwealth’s attorney on Tuesday, said during her campaign that no one should be stripped of the right to vote over a criminal conviction. “If what we are interested in is safety and justice, it’s hard to make a rational argument that either of these things are served by denying prisoners the right to vote,” she told The Appeal in February. “And we should never forget that these laws are the vestiges of Jim Crow.”
In January, a constitutional amendment that would have abolished disenfranchisement for people convicted of felonies in Virginia died in the GOP-run legislature. The amendment had support from the ACLU of Virginia and the League of Women Voters of Virginia. To be enacted, constitutional amendments in Virginia need to be approved by the state legislature in two separate years with a statewide election in between, and then must be approved by voters.
With a Democratic General Assembly, Virginia lawmakers could also work to pass other voting reforms like automatic voter registration, early voting, Election Day registration, and gerrymandering restrictions.
In Colorado, people currently on parole were allowed to vote for the first time on Tuesday. The state passed a law this year that went into effect in July, restoring voting rights to 11,467 people on parole.
Thomas Hernandez, a 44-year-old Aurora, Colorado, resident who was incarcerated for drug-related offenses and then spent years on probation, parole, and supervised release, told the Appeal that he advocated for the bill this year because he knows what it’s like to be denied the right to vote.
“When you’re in a situation where you have no voice, it’s part of a mindset,” he said. “It’s like, I’m free but I’m really not free. My opinion and my voice don’t count.”
On Tuesday, Hernandez described an emotional scene as he watched as one man who is currently on parole and would have been barred from voting as recently as last year’s midterms, cast a ballot.
“When I was on paper, I didn’t have that opportunity,” he said. “He actually got his voice back for that moment in time.”
“No, I did not.” That’s what former New York City police officer Daniel Pantaleo told the department’s internal affairs bureau when investigators asked if he put Eric Garner, a Black man he and other officers were attempting to arrest in 2014, in a chokehold. “I can’t breathe,” Garner’s last words as officers pinned him to the ground, became a Black Lives Matter rallying cry. But Pantaleo told investigators he placed “no pressure” on Garner’s neck and only tried to prevent him from resisting arrest.
Five years later, Rosemarie Maldonado, the NYPD judge who oversaw Pantaleo’s departmental trial in May, found otherwise, noting in her 46-page opinion that the officer had been “untruthful.” Pantaleo’s denial of using a chokehold—he said that Garner’s “throat area was in the crook of [his] elbow” and not pressed against his forearm—came off as “implausible and self-serving,” Maldonado wrote in the opinion, which recommended Pantaleo’s termination. He was fired soon after.
The departmental trial started with an investigation by the Civilian Complaint Review Board, an independent agency that accepts and investigates complaints against members of the NYPD, ranging from verbal harassment to uses of lethal force. The CCRB, whose 13 members are appointed by the mayor, NYPD, and the City Council, can present these kinds of cases to the NYPD tribunal that handles officer misconduct. But it cannot independently investigate officers found to have lied about their conduct.
A ballot proposal, listed as Question 2 on today’s general election ballot, would change that. If approved, it would grant the board the power to investigate the “truthfulness” of officers’ statements during CCRB investigations and recommend punishment for officers who lie.
It’s not uncommon for officers to be accused of being inaccurate or misleading. Since 2016, the CCRB has sent at least 61 citations to the NYPD claiming officers gave false official statements, according to a recent Gothamist report, but just five were substantiated by police.
The measure would make other changes as well: It would require the police commissioner to give an explanation if the CCRB or departmental trial judge’s suggested punishment isn’t followed. It would also add two members to the board, sets a minimum budget for agency staff, and allow the board to delegate its subpoena power to its executive director to expedite evidence gathering.
The measure is drawing flak from two New York City police unions, who have launched public campaigns against Question 2, alleging without evidence that defense attorneys encourage their clients to “file false [and] frivolous CCRB complaints” that stymie criminal cases and keep violent suspects out of jail.
“Political extremists and cop-haters have been attacking NYC police officers in the streets for years. Now, they’re doing it at the ballot box,” the Police Benevolent Association of the City of New York, the officers’ union, tweeted recently.
Neither the PBA nor the NYPD Lieutenants Benevolent Association responded to The Appeal’s requests for an interview. Police Commissioner James O’Neill, who announced his resignation Monday, declined to comment when publicly asked about the measure last spring.
The CCRB has launched its own campaign to combat misleading claims about the proposal. Rev. Fred Davie, chairperson of the CCRB, told The Appeal in a phone interview that he “cannot encourage people one way or the other on the proposal.” Still, he said, “I think the more steps we can take to increase trust, accountability and transparency in the work that we do as an agency, as a way of enhancing good relations between police and community that leads to better policing, the better.”
The review board ultimately played a key role in Pantaleo’s case. In 2014, a grand jury decided not to criminally indict Pantaleo after Garner’s death. He was placed on modified duty, while the U.S. Department of Justice mulled bringing civil rights charges that never came.
The CCRB was “one of the only reasons the Garner family has been able to find some semblance of justice” five years after Eric Garner’s death, Rev. Al Sharpton, a well-known civil rights leader and adviser to the Garner family, told The Appeal. He supports giving the board more power.
“This ballot measure would help shine a light on the kinds of opaque and arbitrary disciplinary procedures favored by the NYPD that all too often protect bad officers at the expense of Black and Brown families,” Sharpton said. “To me, that’s a long overdue step in the right direction.”
The NYPD, with roughly 36,000 sworn police officers and thousands of civilian department employees, is the world’s largest police force—and it’s no stranger to controversy. In 2018, the review board received 4,745 complaints against the department, an increase from the 4,486 complaints it received the previous year.
The highest percentage of those complaints stemmed from civilians’ interactions with street officers who suspected them of a violation or crime. Victims of the NYPD’s infamous “stop and frisk” tactic won a class action lawsuit against the city and the department in 2013, alleging racially discriminatory enforcement that violated their constitutional rights, and officers were ordered to end the practice. But according to the CCRB’s latest annual report, versions of stop and frisk persist. More than 800 complaints including allegations about “a stop, question, frisk or search of a person” were filed last year.
Although it has existed for more than six decades, the CCRB in New York City didn’t gain its independence from the NYPD and become civilian-led until 1993. In addition to fielding and investigating complaints, a memorandum of understanding with the NYPD allows the CCRB’s administrative prosecution unit to function like a district attorney’s office would in prosecuting substantiated allegations of misconduct against officers, in front of an administrative law judge at police headquarters. The trials are open to the public, as are the judge’s verdicts.
But advocates say the CCRB has been hampered by its inability to require punishment. Though it can recommend sanctions, a police commissioner can opt to depart from them.
For example, an officer was found guilty by a departmental judge of shoving the witness of an arrest three times in his chest and once in his back while the witness was walking away, according to a CCRB report. The CCRB recommended that the officer be forced to give up 10 vacation days, while the trial judge recommended just two vacation days be taken away. The commissioner ultimately reversed the guilty finding.
Sgt. Jessica McRorie, a spokesperson for the NYPD, said the commissioner provides written explanations to the CCRB when it departs from a suggested penalty. She said the department was working with the “CCRB to increase transparency and accountability” but “has concerns with aspects of this package of amendments.” She did not outline those concerns by publication time.
Oversight boards date back to at least the 1920s, when a nongovernmental committee was established by the Los Angeles Bar Association to record complaints against officers, explained Brian Corr, immediate past president of the National Association for Civilian Oversight of Law Enforcement. There are now roughly 200 police oversight bodies nationwide, he said, including one in nearly every major U.S. city.
But these boards vary in their scope, independence, and efficacy, largely because of significant resistance from police unions and local politicians, he said in an interview.
Civilian oversight boards don’t have to pit law enforcement professionals against members of the community, Corr added. Healthy collaborations between all parties can help identify the sources of trauma and distrust in the community as well as the needs of police officers, whose misconduct can be a result of inadequate resources and training, he said.
Criminal oversight boards are “figuring out if there are systemic issues that lead to police conduct that is lawful, but awful,” Corr said. “They are identifying policies that ought to be changed.”
Today’s ballot proposal came out of a more than yearlong charter revision process, during which several local policing reform advocacy groups proposed a more significant reform: replacing the CCRB with an entirely elected body that has the power to dictate officer discipline and pursue criminal-level misconduct charges through an independent special prosecutor. That proposal, championed by the NYC Campaign for an Elected Civilian Review Board, was not recommended by this year’s Charter Revision Commission.
Regardless of whether voters approve Question 2, some advocates are pushing the City Council to pass legislation establishing an elected civilian review board. A previous version of the legislation would have created a 21-member board elected from corresponding council districts. The campaign hopes to have an updated City Council measure introduced “very soon,” Elias Holtz, a steering committee member of the campaign, told The Appeal.
“The CCRB is discredited in the community because it doesn’t have any power to make binding decisions,” Holtz said. “These proposed changes don’t change the fact that police still police themselves.”
On Friday, the Illinois Department of Corrections adopted new rules on how books, magazines, and other publications entering the prison will be reviewed, The Appeal has learned. The directive comes after months of public outcry following one Illinois prison’s removal of about 200 books, many of which deal with issues of race.
“Publications shall not be disapproved solely because its content is religious, philosophical, political, social or sexual content, or because the content is unpopular or repugnant,” the Nov. 1 directive states. The new policy also directs the educational facility administrator to conduct an initial screening of publications for education programs.
In July, state legislators held hearings on the book removals. Acting Department of Corrections Director Rob Jeffreys told lawmakers then that he would revise the department policy on reviewing publications. “That has been my number one thing: to revitalize our current policy creation, review, and application,” Jeffreys said.
Under the new rules, the department still has wide discretion in determining what it can ban. Publications that meet any number of criteria can be prohibited, including content that is “detrimental to the security or good order of the facility,” “facilitates unauthorized organizational activity,” or “may be interpreted as legitimizing gang behavior.”
In a statement, Alan Mills, executive director of Uptown People’s Law Center, said that “the new rules contain vague, ill-defined standards.” For instance, Mills said, the directive includes problematic and unclear limitations on prisoners receiving computer print-outs.
“Publications that have been redacted, altered or otherwise modified from the original published edition and copied materials, including photocopies or material downloaded and printed from a computer, are prohibited and shall not be accepted for assessment or review,” the directive states. The prohibition will not, according to the policy, apply to materials received for educational programs or legal documents. And “personal correspondence shall be handled in accordance with the standard mailroom procedures,” the directive states.
The Illinois Department of Corrections did not respond to requests for comment by press time.
Last year, Uptown People’s Law Center sued the department in two separate suits after some prisons prohibited publications from the Human Rights Defense Center, which produces Prison Legal News, and mail from the Chicago chapter of Black and Pink, a prison abolitionist organization that supports incarcerated LGBTQ people. In a third suit, filed in September 2018, the center sued the department on behalf of Heather Ann Thompson, author of “Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy.” Thompson sent her book to three prisoners; one received it, and the other copies were returned.
Prosecutors in Maricopa County, Arizona, are relying on a controversial report to try to discredit longstanding research on the differences between teenage and adult brains.
The report, filed under seal in at least one case and recently obtained by The Appeal, argues that some young people are capable of understanding their offenses, especially murder, and should be judged individually, in the same way as adults.
It cites various studies to argue that teenagers are not “meaningfully different from adults” when it comes to judgment, reasoning, planning, impulse management, self-control, and other cognitive functions.
“The available literature demonstrates that those adolescents who murder may be disadvantaged by a number of psychosocial or socioeconomic considerations, drug abuse, mental illness, or character disorders,” the report says. “This is no different from those who murder at older ages.”
The report is an attack on pivotal decisions by the U.S. Supreme Court that prohibited extreme sentences for children and teenagers. In Miller v. Alabama in 2012 and in Montgomery v. Louisiana, which made the Miller decision retroactive, the Court argued that because of “fundamental differences” between childrens’ and adults’ brains, young people who commit crimes are more impulsive and susceptible to peer pressure, and have a greater capacity for change, so should not be sentenced to mandatory life without parole.
“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” the Court wrote in its opinion.
Since those rulings, 28 states and Washington, D.C. have changed their laws for juvenile offenders convicted of homicide. More than 1,900 children sentenced to life without parole have had their sentences changed. The research has also been cited in efforts across the country to “raise the age” of criminal responsibility.
The 142-page report for Maricopa County, dated May 1, was written by Michael Welner, a forensic psychiatrist and chairperson of The Forensic Panel, and is signed by seven other academics, researchers, and specialists.
Though it acknowledges that adult brains are different from those of adolescents, it argues that doesn’t necessarily mean that young people are less culpable or less likely to reoffend. “What neuroimaging research to date means to an assessment of murder, and of likelihood of murder, is still limited to speculation rife with ambiguity,” it states.
After being contacted by The Appeal, the Maricopa county attorney’s office issued a press release about the report, criticizing past research for painting all teens as less culpable than adults. “An individualized assessment is vital to criminal punishment because justice is not one size fits all, even with juveniles,” it states. “Experience teaches the scientific community that age alone is not a determining factor to a juvenile’s maturity and corresponding culpability for crime.”
The county attorney’s office said there were “multiple cases” pending in Maricopa County Superior Court involving people who received life without parole sentences for first-degree murder committed when they were minors, between 1993 and 2010. The topics covered in the report “may be presented to the court depending on the specific issues that arise in each case,” the statement explains.
News of the report has worried advocates, who fear it could be used to discredit established neuroscience in resentencing hearings.
“There are still a lot of people out there who want to make children responsible and scapegoat them for all sorts of public safety issues,” said Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School and counsel for the Forensic Justice Project, which advocates for accurate science in the courtroom to prevent wrongful convictions. “A report like this, [in the hands of] someone with that mentality, could destroy the last decade of work on understanding both juveniles’ brains and the science.”
When contacted by The Appeal, Welner said Maricopa County asked his group to study the science behind criminal maturity.
“Our findings covered many areas and extensively referenced a broad array of research,” he wrote in an email. “We are further informed by our diverse experience with juveniles who mature beyond violent criminality to law abiding paths, as well as those who destroy the lives of others as adults as they did when younger. And, that some violent crimes reflect upon the immaturity of the offender, while other offenses embody sophisticated predatory deviance.”
Welner’s report takes particular issue with the American Psychological Association’s (APA) amicus curiae brief in the Miller v. Alabama Supreme Court case, which argued that adolescents are less mature and therefore less culpable than adults.
“The representation of the Miller amicus brief that adolescents are less able than older individuals to control their impulses and consider the future consequences of their actions is grossly misleading,” the report says, citing research that most people of average intelligence have the decision-making abilities of an adult by age 15.
At least one psychologist who reviewed the report disagrees. “That’s entirely inaccurate and it’s not consistent with the science,” said Louis J. Kraus, chief of child and adolescent psychiatry and director of forensic psychiatry at Rush University Medical Center in Chicago. “Most kids at the age of 15 barely have the capacity to testify in court.”
The report also says the APA’s brief ignores risk factors that predispose a teen to violent crime, and instead focuses on age alone as a contributing factor. It offers several examples of ways in which teenagers are expected to be as mature as adults, including the fact that 17-year-olds (with parental consent) can enlist in the U.S. military, and in many other countries, military enlistment at even younger ages is mandatory. “This reflects that there is a cultural expectation of maturity before 18,” the report claims.
Marsha Levick, chief legal officer of the Juvenile Law Center, told The Appeal that her group is preparing to convene experts and lawyers to refute the report. She said the report “misses the mark” for a number of reasons, including its claim that U.S. laws don’t distinguish between adults ages 18-25 and older adults. In fact, she said, the drinking age and other laws, such as those allowing young adults to remain in foster care or on their parents’ health insurance, prove the opposite.
“The law is going in the other direction,” Levick said. “Our laws are becoming more protective of this population.”
Welner’s report was commissioned when Republican Bill Montgomery served as Maricopa county attorney. He was recently appointed to the Arizona Supreme Court and was replaced as the top prosecutor by Allister Adel, also a Republican, who will complete his term and plans to run for the office in 2020. Montgomery, who had been county attorney since 2010, earned a reputation for tough-on-crime prosecutions, including against children.
Earlier this year, for example, prosecutors chose to charge Arianna Ramirez, 15, with first-degree murder. Ramirez was sitting in the back of a car when her boyfriend and his friend shot someone during a robbery. Ramirez was 14 at the time of the murder, meaning that prosecutors could have charged her as a juvenile.
Advocates say that the office did little to change its practices after the Miller decision reshaped juvenile sentencing law.
Lindsay Herf, executive director of the Arizona Justice Project, said her organization identified people who were eligible for resentencing, and met resistance from Montgomery’s office in every case. “I don’t know of any changes that this office made to acknowledge what was said by the high court in those cases,” she said.
The office did not immediately respond to a question regarding its handling of resentencing under Miller and Montgomery.
Welner is a prominent and sometimes controversial forensic psychiatrist who is best known for creating a depravity standard used to define terms such as “heinous,” “depraved,” and “evil” crimes in sentencing. According to a report in Pacific Standard magazine, Welner has used tens of thousands of dollars of his own money to fund the work.
He has interviewed many high-profile defendants on behalf of the prosecution and has testified in court about the psychological state of people who commit violent offenses. Often, he argues that the individuals understood their actions. He’s also often on television discussing forensic science and offering his analysis of high-profile crimes, such as the mass shootings at Sandy Hook Elementary School in Newtown, Connecticut, and a concert in Las Vegas. During a Fox News interview after the shooting in San Bernardino, California, he blamed the incident on “the state of feminism in Muslim countries.”
Welner has also offered psychological analysis of people like Donald Trump, who he said had qualities that are the “embodiment of healthy narcissism” when Trump was a presidential candidate. According to the Wall Street Journal, President Trump considered Welner for a mental health post in his administration.
Though it’s unclear how the report will be used in Maricopa, juvenile law experts fear it will be a tool for prosecutors who want to turn back the clock on juvenile justice reforms.
“We live in a time where science is often discredited for no reason and I hope that this alone … isn’t just going to be weaponized,” Kaplan said. “We have really important and necessary law that treats children as children.”
Jazmyne Eng’s family has been waiting over seven years to learn more about her death at the hands of sheriff’s deputies in 2012.
Eng, 40, had schizophrenia and was a patient at the Asian Pacific Family Center in Rosemead, California. On January 4, 2012, she arrived at the center with a small hammer. She was sitting in the lobby “very calmly,” the center’s director told a police dispatcher when he called to seek assistance in holding Eng involuntarily, according to news reports.
Four Los Angeles county sheriff’s department deputies arrived and, according to a complaint later filed, one deputy shot her with a Taser and another shot her with a gun, killing her. The deputies said Eng, who was under 100 pounds, repeatedly “charged” toward them with the hammer raised, according to a memo by the district attorney’s office. The DA declined to prosecute, concluding that she was killed in self-defense. The family filed a wrongful death and a federal civil rights suit, and was ultimately awarded $1.8 million.
But advocates say they and other families of people killed by law enforcement deserve answers, too.
Senate Bill 1421, enacted in January, requires the sharing of law enforcement personnel cases when there are sustained findings of sexual assault, dishonesty-related misconduct, or use-of-force resulting in death or “great bodily injury.” The law was meant to increase accountability and transparency. But months later, the sheriff department hasn’t shared any of the requested records with Eng’s family.
This week, her family and others joined the ACLU of Southern California in filing suit against Los Angeles county and the sheriff’s department, for not providing documents they say should be made public under SB 1421.
“They have waited months since making those requests and years since their family members’ deaths for this information but have received nothing but silence from LASD,” the attorneys wrote in their complaint.
In a statement to The Appeal, the sheriff’s department said it was “working diligently to satisfy a major unfunded mandate from the legislature. Our budget mitigation efforts have left us with an insufficient capacity to handle the deluge of thousands of [public records act] SB 1421 requests for documents.”
Difficulties obtaining officers’ records is a problem that extends far beyond Los Angeles County, advocates say. In Orange County, assistant public defender Scott Sanders recently filed a motion alleging that the county sheriff’s department may be improperly withholding use-of-force records from the court.
Other departments in California have allegedly destroyed such records rather than share them. While the legislature was considering SB 1421, the Union City police department destroyed records related to use-of-force incidents and police shootings. The Inglewood City Council approved the destruction of records of police shootings in December, just weeks before SB 1421 was to take effect.
Such battles defeat the purpose of the law, said Melina Abdullah, co-founder of Black Lives Matter-LA. “What happens when they’re not transparent with the public is it actually puts us in jeopardy,” she said. “What they’re doing is giving a green light for abuse.”
In Orange County, the sheriff’s department is “slow-rolling” its response to SB 1421, Sanders told The Appeal. The department has posted 16 use-of-force incidents on its website, out of “more than 100 reports that will be reviewed, redacted, and posted in response to the requests for 1421,” according to sheriff’s department spokesperson Carrie Braun.
For more than a year, Sanders tried to obtain records related to the deputies involved in the case of his client, Mohamed Sayem.
On Aug. 19, 2018, Sayemwas punched repeatedly by Michael Devitt, an Orange County sheriff’s deputy and then arrested for felony resisting arrest and public intoxication. Devitt said he felt threatened by Sayem, but the incident, largely captured on dashboard camera video, shows Devitt dragging Sayem out of his car and punching him several times. Sheriff Sandra Hutchens, who left office in December, defended Devitt’s actions saying, “An appropriate use of force was utilized at that time.”
As Sayem’s case proceeded, Sanders filed what’s known as a Pitchess motion to obtain personnel records for Devitt and the other deputies involved in the incident, to determine if any had faced previous allegations of misconduct or excessive force. Sanders also requested documents related to internal investigations into the incident. Under Brady v. Maryland, the sheriff’s department has a constitutional obligation to turn over evidence that could be used to impeach the credibility of a state’s witness, including a member of law enforcement.
But the county counsel and the sheriff’s department have given conflicting statements about the department’s record-sharing policies, raising questions about exactly what information is generally provided to the court, which determines whether it can be disclosed to the defense.
In a meeting in the judge’s chambers last December, Deputy County Counsel Kayla Watson said she was sharing the use-of-force summary for Sayem’s arrest out of “an abundance of caution,” but did not think it was responsive to Sanders’s motion because an internal affairs investigation was not conducted and “there’s no complainant, and there is no mention of excessive force.” When contacted by the Orange County Register, Braun explained the policy slightly differently. She said if force is deemed to be within department policy, it is not required to be shared under a Pitchess motion.
The Orange County sheriff’s department and the district attorney’s office declined to address questions from The Appeal, noting that that the questions involve a case that is currently being prosecuted. The county counsel, which represents the sheriff’s department, did not respond to requests for comment.
“We at this point have no idea how they’re making the call,” Sanders said of the Orange County sheriff’s office. “It erodes completely the faith that anybody would reasonably have that any rules are being followed.”
Sanders is particularly concerned that if the department is withholding all reports on force that it found to be within its policy, it is eliminating most of the reports. Between 2013 and 2018, there were 108 use-of-force complaints, out of which 37 were sustained, according to data released by the department.
Use-of-force reports posted on the Orange County sheriff department’s website show that even when serious injuries are caused, incidents won’t necessarily be determined to involve excessive force. On April 2, 2015, for instance, one deputy opened the door of a prisoner’s cell and told him he had to be handcuffed. The prisoner threw his sandals against the wall, and said, “‘You’re not fucking handcuffing me,’ and took a fighting stance,” according to internal reports on the incident. The deputy put him in a carotid restraint, a controversial hold that compresses the neck. The prisoner fell unconscious. The deputy’s actions were found to be within policy, according to the sheriff department’s records, though the supervising officers recommended that he receive training on alternate uses of force.
In another incident, a deputy punched a prisoner multiple times in the face during a cell extraction, according to the use-of-force summary prepared by the sheriff’s department. And in another, a deputy pulled his gun on a man who appeared intoxicated as he ran away. When another deputy caught up with him, he elbowed the man in the face multiple times, breaking his nose and cheekbones, according to the department’s reports. The deputy said he was acting in self-defense; his actions were found by his sergeant to be within policy.
Somil Trivedi, a staff attorney with the ACLU, said that rather than have the department decide what to share with the court, a judge should decide what is and isn’t relevant.
“If you let the agency itself determine whether its officers have committed use of force, it’s a conflict of interest,” said Trivedi. “There could be information that qualifies under Brady … that is not necessarily corroborated under the sheriff’s own policy.”
In nine states, police officers are permitted to act as prosecutors and arraign people for misdemeanor charges. In Rhode Island, the practice is the norm, meaning that thousands of people face potentially life-altering criminal charges without a public defender at their side. Advocates say allowing police to act as prosecutors presents an inherent conflict of interest. Today, we are joined by Appeal contributors Julia Rock and Harry August to discuss the practice, and how reformers hope to change a system they view as unfair and undemocratic.
AdamJohnson: 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 The Appeal at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcasts.
In nine states, police officers are permitted to double as prosecutors for misdemeanor charges. For one state, Rhode Island, the practice is the norm, meaning thousands potentially face life altering criminal records without a public defender and being prosecuted by a member of a local police department ripe with conflicts of interest. Today we are joined by Appeal contributors Julia Rock and Harry August to discuss this practice and how reformers hope to change a system that many view as unfair and undemocratic.
JuliaRock: We found that in addition to Rhode Island it’s happening in eight other States. And in some of those States, New Hampshire, Virginia, for example, Delaware, police officers are doing all of the arraignments. Whereas in other states it was only in counties or districts that were under-resourced.
HarryAugust: And believe it or not the Attorney General’s Office said that they had nothing to do with that training and these were two assistant attorney generals working in their own time. The slide show that we obtained was all about kind of how the courtroom works and it’s just incredibly basic. And so it was saying, ‘this is what bail is, this is what an arraignment is, this is what justice of the peace is.’
Adam: First off, thank you so much for joining us.
JuliaRock: Thanks for having us.
HarryAugust: Yeah, great to be here.
Adam: Great. So, um, you wrote a piece in October, the headline was “Rhode Island Police Don’t Just Make Arrests. Some Also Act as Prosecutors. The state is one of eight that allow cops to arraign people on misdemeanor charges. Advocates and academics say the practice is unjust.”
So firstly, just how widespread is the practice of police doubling as prosecutors for misdemeanor charges? I know it’s the standard in Rhode Island, but I know there’s other states that do it. Can you give us a sense of what this is and what the scope of it is?
JuliaRock: Yeah. For this story we actually contacted officials in all 50 States to figure out just how many states were allowing police officers or charging police officers with the task of conducting arraignments. And we found that in addition to Rhode Island, it’s happening in eight other states. And in some of those states, New Hampshire, Virginia, for example, Delaware, police officers are doing all of the arraignments whereas in other States it was only in counties or districts that were under resourced and the county prosecutor’s office didn’t have enough resources to send a lawyer they would send police officers. So how widespread it was within the state varied state to state, but we were pretty astounded to find that there were nine states that enabled this practice.
Adam: I think the first question most people would have upon hearing about this is what are the qualifications for a police officer to sort of double as what is effectively a lawyer? You write that quote “In Providence… not one of the city’s police prosecutors has a law degree… Providence Police Department prosecutors receive three months of on-the-job training with a current police prosecutor.” What is the training exactly? So I want to be clear, I don’t engage in credentialism too much because obviously DAs who are heavily credentialed also have problems. Thus the whole point of The Appeal. But at the same time, this seems like a combination of the same kind of tough on crime ethos combined with any appearance of division of conflict of interest. So can we talk about what the qualifications are and what the conflicts of interest are versus conflicts of interest even for your most tough on crime district attorneys?
HarryAugust: So I think the big thing for the training is that, as we mentioned in the piece, it’s with the, on the job training with the current police prosecutor. And so these police prosecutors have not trained with anyone who can explain with the expertise of a legal degree about kind of which types of evidence can be used in court, what the responsibility of a prosecutor is to decline to charge cases. And so when we looked at the training materials for the police prosecution training that two members of the Attorney General’s Office put on, and believe it or not, the Attorney General’s Office said that they had nothing to do with that training and these were two assistant attorney generals working in their own time. The slideshow that we obtained was all about kind of how the courtroom works and it’s just incredibly basic. And so it was saying ‘this is what bail is, this is what an arraignment is, this is what the justice of the peace is.’ And it had no discussion of any of those other things I mentioned. So there’s no legal elements in terms of any duty to reveal exculpatory information.
Adam: So in other words, the main point of tension is over the ethical, because obviously if a DA can sort of lose their law license or get disbarred if they don’t give over exculpatory evidence or don’t violate Brady or whatever. But theoretically police officers have no such sort of independent review process. Is that why it’s dangerous?
JuliaRock: Yeah. So there are kind of two components that are brought up in terms of the lack of legal training. One is what Harry said, instead of going to law school for three years and being taught by a law professor, what probable cause is, you get like a two minute explanation on a slideshow and then kind of use that to bring charges. But then there’s the second problem of people who are barred as lawyers are held to a very extensive standard of ethics that as you pointed out, should hold prosecutors accountable more than it already does, but is kind of a useful way to hold people accountable to following the law. And people who don’t have a law degree, have no obligation to that standard of ethics.
Adam: Okay. Cause one of the issues is sort of a competency argument and you see this a lot even when people criticize Donald Trump, they’re like, ‘oh Donald Trump is playing golf.’ And I’m thinking, well you want him to play golf. So if someone’s like, ‘oh well the police officer is incompetent’ and now from a justice reform perspective, I guess the first question I have is, well don’t you want him to be incompetent? If the issue was to keep less people out of jail or does that competency correlate to violating rights as opposed to getting acquittals?
HarryAugust: Yeah, I think the incompetent prosecutor is just going to bring a charge in every single arrest.
HarryAugust: And I think where the competent prosecutor steps in is declining to arrest charges where there are obvious problems with the case. And so you can arrest someone with whatever evidence the police officer has, but then it’s up to a competent prosecutor to say, that does not meet the standard of evidence to be used in a trial or this was an unreasonable search and this would never, should never be brought into the courtroom or any number of issues with the arrest a prosecutor should step in and say something. And I think an untrained police officer, like you said, an incompetent one, is just not gonna be able to pick up on those things and that’s just gonna be discriminatory just to bring a charge.
Adam: That makes sense. You wrote that one of the things was that police officer’s sort of relationship with small and petty crimes specifically with regards to like businesses, you wrote that quote, “Stephen Erickson, who served as a Rhode Island District Court judge for 20 years, described one example he observed from the bench. In Warwick in the early 2000s, Erickson explained, ‘The police were laser-focused on prosecuting shoplifting, even minor offenses,’ he said, seeking convictions in all cases — rather than community service or dropping the charges, as other police departments would. ‘It’s almost as if they were an arm of the Warwick Chamber of Commerce.’” So obviously, like you said, DAs in general have their own kind of tough on crime ethos but to what extent do police, I mean I was shocked to learn that they prosecuted every single arrest. So like the concept of prosecutorial discretion just doesn’t really apply here.
JuliaRock: Yes, in that conversation with Erickson we kind of discerned that there were a couple of things going on in the situation you just described. The first is that if police officers in a district where there’s a district attorney who’s democratically elected or appointed, really think that shoplifting is a big problem, they might still arrest shoplifters who are only stealing a tiny thing, but then there’s kind of a second layer of decision making. Is it really worth the state’s resources to be spending all of this time prosecuting, you know, people stealing candy bars or is there a better use of resources elsewhere? Is this even worth giving people criminal records for? Whereas if a police department decides, ‘okay, we’re sick of shoplifting and we have a lot of friends who work at these businesses,’ not only do they get to decide to really heavily police those areas and track down people who are shoplifting, but it’s also up to them whether those people are going to be convicted. So it’s like those two first stages in the process are totally up to this one department making decisions. So back to your point, it’s not to say that a prosecutor would necessarily always be making the decision not to prosecute a petty crime, but it’s much more likely if there’s a second level of review that a prosecutor would recognize that it’s a waste of the state’s resources to be going after these people or that they really have a police department that’s acting with a super political intention.
HarryAugust: And I think the second part of what you said about kind of the incentives here, if you’re on the, a lot of these police prosecutors started out as just regular police officers making arrests. And so it’s hard to imagine that if you have spent most of your career making these arrests and then you become a police prosecutor and suddenly you’re declining to charge all of your coworkers arrests I think that it’s hard to imagine that going over well.
Adam: So how does this affect, lets sort of established the stakes here. Is it that Rhode Island just has a very high rate of prosecutions of misdemeanors? Does this sort of get people on the grid? From a criminal justice reform perspective other than the kind of overcharging and sort of bumblingness of the whole thing and, and the guy, apparently the prosecutors are trained similar to when I was a waiter and I shifted to being a bartender and they sort of shadowed for a few months. Other than the sort of credentialism, which I’m sure would appeal to many of our lawyer listeners, what are the sort of moral stakes here?
JuliaRock: It turns out the stakes are really high, far more people are going through the misdemeanor system than other aspects of the justice system where there are trained prosecutors and that initial point of the criminal process where a prosecutor is deciding whether someone should be charged with something they were arrested for is like the one opportunity there is for kind of justice for a person who shouldn’t be brought into the legal system. And so in many of these cases, in misdemeanor arraignments in Rhode Island and elsewhere, defendants can plead guilty at arraignments and choose to. So there was never an opportunity between when they were arrested and end up with a criminal record for someone to say, no, this person really didn’t do something that should lead them to have a criminal record.
HarryAugust: Especially because most of these defendants who are pleading to misdemeanors don’t have a public defender who’s reviewed their case.
JuliaRock: Yeah there’s no public defense in Rhode Island for misdemeanors.
Adam: Wait, what?
HarryAugust: So you could go from the arrest all the way through to pleading guilty to a charge that’s gonna affect your entire life and the entire process could happen without any lawyer looking at your case other than the judge. And the judge is obviously not going to be making that decision.
Adam: Oh, so I didn’t realize that was an element of this too. Doesn’t this sort of come against constitutional concerns or are misdemeanors not considered big enough to trigger some sort of constitutional objection to this? I mean, I assume that reformers have attempted to go that route?
JuliaRock: Yeah. So that is kind of an area for reform right now. Whether that representation extends to the first point in the process at the arraignment. So these people will be represented later in the process. There was a big New York Times article about how understaffed the Rhode Island Public Defender’s Office is and the office has just decided that it’s not going to put resources into misdemeanor arraignments. But that’s also another area where there are a lot of legal questions.
Adam: It seems like the effort to reform prosecutors, which full disclosure, The Appeal and The Justice Collaborative have made a kind of core axiom of their advocacy work both on the nonprofit side and the advocacy 504 side that reforming prosecutors is your highest kind of reform ROI because they’re so powerful. It seems like, and I know this just applies to misdemeanors in Rhode Island but even still misdemeanors are a huge sort of gateway and path to over incarceration. It seems like from a reform perspective, one of the main problems is you can’t unseat or remove through election, through the democratic process a bad police prosecutor because they sort of exist outside the democratic process. So to what extent is this seen as a sort of hurdle to the broader movement to reform prosecutors where a large chunk of those who go through the system in Rhode Island are sort of extra democratic? They’re kind of outside that system.
HarryAugust: Right? I mean, I think that was a big impetus for why we started doing this reporting was kind of seeing these reform prosecutors get elected in Boston and the Berkshires nearby, in Philly and looking at Rhode Island and not even knowing where we would direct any advocacy. I remember pretty early in the process of this just Googling “Rhode Island District Attorney” and not being able to find any website for it and being pretty confused. And then kind of running with that I just didn’t even realize there were states that didn’t have any kind of county prosecutor. And I think that was kind of a, one of the biggest questions of our reporting was where in this entire state bureaucracy can you focus advocacy efforts and who even has the responsibility to change this? And when we ask the attorney general, he said, ‘oh, this isn’t a decision I would make.’
Adam: Right. It’s always a cost issue.
HarryAugust: Right. And then we talked to the courts and they said, ‘oh, only the attorney general can make this decision.’ And then we talked to the Providence city solicitor he said that this is above his pay grade to make decisions like this. And so everyone we asked seemed to be passing it on to another department. And so I think that question of where do you intervene, where do you do the advocacy? I think it’s very much an open question.
Adam: So what are some groups in Rhode Island or even in other States that are trying to shine a light on this? It seems like if these police prosecutors can’t be removed through some sort of democratic process, I assume there has to be a proceeding reform to make them subject to the democratic process. I’m just imagining like a thousand different like cops who look like Brian Dennehy, like determining the fate of-
JuliaRock: I mean they’re all sitting in the front row of the courtroom patting each other on the back and punching each other and joking. It is like a little boys club. Yeah.
Adam: Yeah. What are the local groups doing to sort of try to unseat the boys club?
JuliaRock: Yeah. There are quite a few people in Rhode Island who we talked to who weren’t aware that this was a unique system because they haven’t worked in other states’ legal systems and so didn’t even kind of consider it as an area of reform. And then there’s kind of the other challenge, there’s so many other challenges Rhode Island, there are, you know, challenges over policing and Providence and the lack of public defenders that this really just hasn’t been an issue that local groups have focused on, although we’re hoping that’s gonna turn it around a little bit with this reporting, which has gotten some feedback already. But in South Carolina, which is another state with an extensive system of police prosecutors, the ACLU and the National Association of Criminal Defense Lawyers came together a couple of years ago to do some advocacy work and issue this big report about unconstitutional things happening in the South Carolina court system and talked about police prosecutors and there have been a lot of reform efforts there. So that’s maybe kind of a model for what could happen next in Rhode Island or some, you know, local groups banding together to really take this on. But so far, you know, no group has stepped up to name police prosecutors a priority.
HarryAugust: I think while it would be incredibly hard to pass some statewide legislation that funds the attorney general office to hire county prosecutors or something like that, the alternative here is that in progressive areas of Rhode Island like Providence and other cities like Central Falls, it would be quite easy for the mayor or the city solicitor to decide that this was not a practice that they were going to condone anymore in their city or county. And so I think at the local level, but in each city in town, I think there’s a lot of opportunity for individual mayors and police departments and city solicitors to quite quickly end this practice and there’s nothing really stopping them from doing that.
Adam: All right, Julia, Harry, thanks so much for coming on and explaining that to us. I know, uh, I learned a lot. I suspect our listeners did as well.
JuliaRock: Yeah. Thanks so much for having us.
HarryAugust: Alrighty, bye.
Adam: Thank you to our guests Harry August and Julia Rock. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and you can always rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.
In April 2015, Oklahoma became the first state to authorize the use of nitrogen gas to execute prisoners on death row after a botched execution called the state’s use of lethal injection into question. With the Supreme Court considering the constitutionality of the procedure, and the state facing a shortage in the necessary drugs, Mike Christian, a Republican state representative, proposed nitrogen instead.
“The process is fast and painless,” Christian told reporters at the time. “It’s foolproof.”
The method, known as nitrogen hypoxia, involves depriving the body of oxygen by replacing the air with nitrogen, and has never been used to kill death row prisoners.
Mississippi and Alabama followed Oklahoma in 2017 and 2018 in approving nitrogen for executions. But none of the states has actually come up with a way to use it. That comes as a relief to opponents who say there’s no way to predict whether it will be painless.
Though the suicides and accidental deaths involving nitrogen are sometimes described as peaceful, some doctors say the conditions present in an execution are very different.
“This theoretical situation would be difficult to create in real life,” Dr. John Ard, a neuroanesthesiologist and professor at New York University, wrote in an email. “The prisoner would be in a state of panic.Even if the system was perfect, the prisoner could hold out for minutes by breath holding.”
Nitrogen could be administered through either a gas chamber or mask, and experts say the quality of the nitrogen will be important. A 2013 handbook from the American Veterinary Medical Association on euthanizing animals advises that nitrogen gas “must be supplied in a precisely regulated and purified form.”
States have used gas to execute prisoners before; Nevada was the first state to employ hydrogen cyanide in 1924. The method failed so horribly—prisoners thrashed in distress during long, agonizing executions—that California’s federal courts ruled that it amounted to cruel and unusual punishment.
When today’s primary method, lethal injection, was proposed, officials believed it would be more humane than the electric chair. As with nitrogen, Oklahoma was a pioneer, adopting a protocol recommended by a forensic pathologist who acknowledged that he was “an expert in dead bodies but not an expert in getting them that way.” Since its introduction, lethal injection has been responsible for the highest rate of botched executions: Something goes wrong roughly seven out of 100 times.
“I think that Oklahoma adopted [nitrogen hypoxia] with the same lack of scientific rigor that it adopted the previous method,” Robert Dunham, executive director of the Death Penalty Information Center, told The Appeal. “And the fact that you were the first to make a blunder and you blunder your way through choosing the next method doesn’t make you a leader; it makes [one] question the judgment of other people who follow you.”
The Oklahoma Department of Corrections did not respond to a request for comment on its approval of nitrogen for executions. “We are still working with the Attorney General’s office on developing a method and protocol that meets with legal and constitutional requirements,” Matthew Elliott, a spokesperson for the department, told The Appeal via email.
But Deborah Denno, a Fordham University law professor who is an expert in the history of capital punishment, sees nitrogen as the latest in a string of poorly chosen execution methods. “History has shown they only get worse. They only get sloppier, they only get riskier,” she said. “There will come a time when people can’t believe that we did this.”
Christian, the Oklahoma representative, introduced nitrogen hypoxia to the state legislature after watching “How to Kill a Human Being,” a BBC documentary. In the program, British conservative politician turned journalist Michael Portillo deems a nitrogen mask “the perfect killing machine.”
At the time, Oklahoma had put executions on hold. The state had just botched its execution of Clayton Lockett—he died of a heart attack after writhing and convulsing on the gurney—and was awaiting a U.S. Supreme Court decision on the constitutionality of its new procedure for lethal injection. Authorizing nitrogen to kill prisoners would give the state an alternative way to kill prisoners should it not pass the test.
Inspired by the documentary, Christian enlisted three people to study whether Oklahoma should start using nitrogen gas to execute people. None of them had careers in science or medicine. They put together a 14-page report without any evidence of original research, instead citing sources such as a National Review article and a 1963 study on the effects of breathing in nitrogen through a mask.
The trio recommended that Oklahoma start using nitrogen gas, writing that the method would be a humane and simple way to carry out death sentences.
The Supreme Court ultimately decided that Oklahoma could move forward with lethal injection, but in 2018, state officials announced that they were struggling to secure lethal injection drugs and would be pivoting to using nitrogen for executions instead. The method, they said, would allow the state to start executing people again; its last execution was in 2015.
Yet the change has proved difficult to carry out because the agency has had trouble securing a device to deliver the nitrogen to prisoners. In February emails to The Appeal, Oklahoma DOC spokesperson Elliott wrote that once it has the device, the state will begin working on the protocol for carrying out executions. “We’ve determined some things that will likely work,” he wrote. “The issue is companies/manufacturers won’t sell us the appropriate technology out of fear of backlash from anti-death penalty activists.”
In March, Attorney General Mike Hunter said that the state would most likely recruit an in-state manufacturer and hoped to have the method submitted for court review by the end of the year.
Apart from obtaining the device, the state would also need to procure nitrogen gas. In February, Elliott told The Appeal that the department had a “reliable supply” of the gas, but this month he said that although it has maintained that supply, it does not have “a specific supplier for executions via hypoxia.”
Oklahoma’s contracted gas supplier, Airgas USA, which sells industrial, medical, and specialty gases to the state at a discount, told The Appeal that it would not supply the state with gas for executions. In an email, company spokesperson Kimberly Menard wrote: “Notwithstanding the philosophical and intellectual debate of the death penalty itself, supplying nitrogen for the purpose of human execution is not consistent with our company values. … Airgas’ contact with the State of Oklahoma has been notified of this position.”
Under a 2015 agreement, Oklahoma cannot seek an execution date sooner than five months after the protocol is published by the Department of Corrections. “Just getting a copy of the protocol will not be enough,” Dale Baich, a federal public defender who represents Oklahoma death row prisoners, told The Appeal. “What the state will have to do is be very forthcoming about who it talked to, what are the qualifications of the people who came up with the plan?”
Alabama will follow Oklahoma’s lead in carrying out nitrogen executions, state Senator Cam Ward, chairperson of the Senate Judiciary Committee, told The Appeal. “What I keep hearing is that the new states that have looked at doing this are kind of waiting to see how Oklahoma implements theirs first before just cutting new ground,” he said in a phone interview. “In other words, copy somebody else that’s already done it. I think we’re on hold until that happens.”
A spokesperson for the Alabama Department of Corrections, Samantha Banks, did not answer specific questions from The Appeal about the state’s plan. In an email, Banks wrote that the department is “taking a deliberate approach in developing the protocol for carrying out executions by nitrogen hypoxia. Until the protocol is developed, there is no additional information we can provide at this time.”
In July, Attorney General Steve Marshall’s office entered into a $25,000 contract with workplace safety consultant company FDR Safety to “research process methods, support process, conduct task-based risk assessment, develop job instructions including safety requirements and conduct hazard communication training.”
Senator Greg Albritton, chairperson of the committee in charge of reviewing contracts, told AL.com that the contract was related to the creation of the nitrogen gas execution method. The consultant contracted, Joseph Wolfsberger, specializes in occupational and industrial safety, according to FDR Safety’s website. The company declined to comment on its contract with Alabama. Wolfsberger did not respond to an email from The Appeal.
Marshall’s office would not provide the state’s contract with FDR Safety to AL.com, citing an open records law exception for documents connected to safety and public interest. A spokesperson for Marshall did not respond to requests for a copy of the contract from The Appeal or answer questions about the creation of the execution protocol.
Ward, however, says the contract, which is being paid with taxpayer dollars, should be made public. “Once the contract has been signed, I’ve always felt it should be transparent, public information,” he said.
Unlike in Oklahoma, where all death row prisoners could potentially be executed with nitrogen gas, Alabama prisoners who preferred the method were required to inform the prison warden of their choice over a 30-day period in June 2018. But prisoners and attorneys told the Montgomery Advertiser that no one informed them they had to make a choice until five days before the deadline, when there was not enough time to properly gather information about its use as a killing agent. The state has denied this allegation.
Ultimately, 51 Alabama death row prisoners elected to be executed by nitrogen gas. Their executions are on hold until the state figures out a method to carry them out.
John Palombi, a federal public defender for the Middle District of Alabama, told The Appeal that some of the people he has represented experienced grisly deaths by lethal injection. He advised his clients—39 of whom opted in—to choose to be killed by nitrogen last year because “it would guarantee that they were not executed by a torturous method and protect their right to challenge any new protocol.”
Nitrogen gas will only be used in Mississippi if lethal injection is ruled unconstitutional or is “otherwise unavailable,” according to the 2017 law authorizing the method. The state does not specify the conditions that would need to be met for that to happen.
There has not been an execution in the state for seven years because of challenges to its three-drug lethal injection protocol. In a federal lawsuit filed in 2015, attorneys for death row prisoners argued that using a single large dose of pentobarbital approved by the Food and Drug Administration was safer than using three drugs in succession, citing experts who say it will pose a lower risk of a painful execution. In filings, the state said that it cannot find FDA-approved pentobarbital to use in executions.
As part of that lawsuit, Attorney General Jim Hood wrote in a June 2017 filing that the state had made no efforts to develop a way to kill prisoners with nitrogen hypoxia or to obtain equipment to do so.
The lawsuit was delayed while awaiting a U.S. Supreme Court decision on lethal injection and became active again this month, according to a spokesperson for Hood. Attorneys are scheduled to meet with the judge in November to discuss the case, she said.
Grace Fisher, a spokesperson for the Mississippi Department of Corrections, declined to comment on the status of the nitrogen hypoxia protocol, citing the ongoing litigation. She added, “Under state law, the identity of the supplier of lethal injection chemicals is exempt from disclosure.”
Almost 30 years ago, William Underwood was convicted in a drug conspiracy that left him sentenced to life without parole. But it wasn’t just a life sentence for him—it has been a life sentence for his children as well. Underwood, now 65, tried his best to parent from behind bars—30 years of cards, phone calls, and visitsbrought some solaceto both him and his family. For his children, however, the heartache of separation is intensified by the fact that he’s sentenced to die in prison.
Though family separation policies at the border have rightly provoked outrage, family separation is nothing new in the United States. From slavery, to mass incarceration, to the excessive removal of children into foster care, our country has a long history of dividing parents from their children, thereby causing irreparable harm.
Today, the number of children separated from their parents totals in the millions. One out of every 28 children has a parent who is incarcerated, and 1 in 4 Black children will have a father who has been incarcerated by the time they turn 14. That’s millions of children not only experiencing the pain and stigma of having a parent behind bars, but also the myriad adverse consequences that come along with it, including financial hardship, health and educational challenges, and often permanent separation from their parents as a result of incarceration.
These troubling outcomes—and our failure to address them—underscore our misplaced presumption that incarceration can solve social ills and the fundamental lack of appreciation for the multitude of harms that accompany it.
Fortunately, as greater attention is being drawn to mass incarceration, more studies are emerging that quantify its damage, and evidence is growing that supports moving away from the harsh punitive system of the “tough on crime” era. But this is not just an academic analysis. The impact of incarceration is something children live and see every day—and that we have seen through our own experience and work as criminal justice reformers.
Historically, our justice system has been viewed as simplistically binary: Good people are victimized by bad people and harsh punishment of the latter makes us all safer. This view posits that a system that locks people away prevents harm to others. But the reality is that every time we incarcerate someone, new victims are created who are rarely acknowledged: the children, families, and loved ones of those incarcerated.
Not only does excessive incarceration harm children—it fails to make us safer.
We lock people in dehumanizing jails and prisons where violence is too common and for far longer sentences than other Western democracies would consider, prioritizing punishment over rehabilitation. While sentences in most European countries are rarely longer than 20 years even for the most serious crimes, more than 50,000 people in the United States are serving life without parole sentences, whether or not they continue to pose a danger to the community. Indeed, research shows that extreme sentences do little to deter crimeand can actually be counterproductive.
Correctional practices often erode prisoners’ ability to maintain the stabilizing anchors of family connections. By making phone calls prohibitively expensive and incarcerating people in distant facilities that make consistent visitation challenging, we strip away support systems and the very connections that reduce the likelihood that someone will commit a crime in the future. And this is all done in the name of public safety.
As the front door to the justice system, prosecutors can play an important role in advancing policies that are better for families and for communities. These approaches include creating processes in district attorneys’ offices to proactively identify and remedy past excessive sentences; recommending noncustodial and community-based sentences for parents whenever possible; and working with families to determine the full impact of incarcerationand ensure those concerns are considered at sentencing. Prosecutors can also be advocates for supports that help children navigate the system and address trauma, and they can promote policies that enable in-person contact visits and allow for meaningful engagement that keep families emotionally connected even when they cannot be physically together.
For the first time in decades, we have a real opportunity to create fundamental change that centers human dignity instead of perpetuating a system that creates new victims in the name of justice. With a growing movement of advocates, including people with experience in the justice system, working alongside elected prosecutors committed to smart and compassionate justice reforms, we can create a justice system that preserves family connections and promotes safety for all.
Ebony Underwood is the founder and CEO ofWe Got Us Now, national movement built by, led by and about children and young adults impacted by parental incarceration. She is also a longtime advocate for therelease of her father, William Underwood. Miriam Aroni Krinsky is a former federal prosecutor and executive director ofFair and Just Prosecution
Many states pay incarcerated workers just 20, 30, or 40 cents per hour—and some don’t pay them at all. But incarcerated workers also have virtually no labor rights or civil rights when it comes to battling discrimination based on race, religion, gender, and other protected classes. Today we are joined by journalist Sessi Kuwabara Blanchard who explains why this disparity exists and what’s being done to fight it.
AdamJohnson: Hi, welcome to The Appeal, a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcasts.
Most of our listeners are likely aware that the US hosts millions of incarcerated workers who toil away in obscurity for .20, .30, .40 cents an hour, but many don’t realize the extent to which basic labor rights do not apply to these workers including gender, religious and racial discrimination. Due to a series of Supreme court cases and legal barriers passed by Congress during the tough on crime wave of the 1980s and nineties incarcerated people have virtually no rights when it comes to their workplace. Today we are joined by journalist Sessi Kuwabara Blanchard to explain the lack of legal protections and parts of the difference between employee and inmate or what many suffering under these conditions consider their appropriate label to be: slave.
Sessi Kuwabara Blanchard: The whole notion of like rehabilitation, you know, and how this labor is being seen as like a rehabilitative program is itself like very insidious political project that needs unpacking in a way that we can’t just say, you know, we have to like divest from buying prison made products because there actually isn’t a huge economic incentive behind it.
Adam: Sessi, thank you so much for joining us.
Sessi Kuwabara Blanchard: Thank you so much for having me.
Adam: So you wrote a wonderful article for In These Times detailing the degree to which labor law does not apply to people in prison. I want to start by detailing one specific case that you wrote about. Can you tell us about the story of Kendall Charles Alexander and why a judge ruled that he was not entitled to key labor protections from racial discrimination and retaliation and how this decision impacted his life and what the implications of this decision have been on the broader issue of labor protections of people who are incarcerated?
Sessi Kuwabara Blanchard: Yeah, absolutely. So I think maybe before I dive into the finer details of Alexander’s case, I think I’d wanna have a few kind of flags put up. So the first thing to know about Alexander’s case, which was filed in the District Court of New Jersey in 2015 is that the kernel of the case isn’t necessarily about the facts of the case. It never actually got that far in the courts. And so it’s primarily about these technical details and some of, you know, the very problematic case law as well as statutory law that is basically exempting people who have prison work placements from enjoying any of the kind of labor protections that anyone else in the United States enjoys. So when we’re talking about this, none of necessarily what I was digging in talking with Mr. Alexander about based off of his experience, nothing’s necessarily been settled as fact yet, but it’s kind of, you know, the staging ground for this broader question, right, about labor rights in the prison context.
Sessi Kuwabara Blanchard: And then of course we’ll get into this more too, but since it is on the district court level, the opinion is not binding. It’s currently in the appeals court. It’s in the Third Circuit. So the questions will continue, but again, it’s impact still has yet to be seen, but we’ll get into that later. So basically Kendall Charles Alexander, he’s in his fifties, he’s a black man. He was incarcerated at the Fort Dix facility. It’s like about 30 minutes outside of Trenton, New Jersey. He was like a very skilled industrial worker. He has a lot of experience with engineering. He’s had previous placements with UNICOR or alternatively known as Prison Industries Corporation. And so at Fort Dix, in their factory, their textile factory, he was a mechanic on their sewing machines who is earning an incredible .46 cents an hour, which is not even the lowest that the wages will go.
Sessi Kuwabara Blanchard: And that was back in August 2013 and so given his work experience, he was supposed to be increasing in compensation. Important they don’t talk about it as wages, they talk about it, you know, as compensation. And so it’s supposed to be increasing every month. But his did not increase for seven months. Though it did eventually increase to .69 cents in the spring of 2014 and he alleged that the factory manager, Robert Ortiz, was discriminating against him and preferring white as well as Latinx workers over him and giving those promotions to those workers instead of him, a black worker. And so that’s one of the main factual claims that’s kind of threaded around through the argument that goes into equal protection claims that he makes. And then he makes some other claims about not getting the same benefits as other workers. So Alexander was alleging that the factory manager, Robert Ortiz, was promoting white and Latinx workers over himself. And he’s not necessarily saying all black workers weren’t being promoted, he’s specifically talking about himself, but he is claiming it’s due to his race, being black. So then he went through the administrative relief process and after filing those grievances, he then believed that he was being denied overtime opportunities by the manager, who was again, he was alleging that white and Latinx workers were getting those over him. And so those are the basis of the complaints. And it is still pretty unclear exactly what was happening. And I mean I think there easily could have been like a degree of interpersonal discrimination going on. But based off of a lot of the factual findings, for example, Alexander wasn’t receiving overtime before the grievance was filed. So, you know, it’s hard to say whether there were suddenly a stop in overtime opportunities for him following the grievance. So that’s kind of the basis of it all.
Adam: So he’s claiming racial discrimination, which is not outside of the realm of possibility in the United States and has a long history. And so his recourse is and we can get into this, is not what the recourse would be for a typical non incarcerated person where you either sue or you appeal to the civil rights Department of Justice or Labor Review Board. That sort of normal mechanisms to handle these things don’t really exist for prisoners. And I want to talk about the Prison Litigation Reform Act of 1995 which has actually come up a lot on this show. It seems like whenever we talk about abuse, every activist we talk to, every lawyer we talk to will tell us that the major barrier to any kind of meaningful pushback is this Act, which made it very, very difficult for people to sue in prison. You talked about this sort of administrative recourse they have. Can we talk about the problems with this administrative recourse versus what your average non incarcerated person has?
Sessi Kuwabara Blanchard: Yeah, so in the federal context, in the Bureau of Prisons, you have your administrative remedy claim. Then it goes to appeal in the regional area. If you don’t like what you hear back from the warden then you can appeal it again to the central office. And so Alexander actually pursued those claims all through the entire process. So he technically, and you know, the judge found this as well, that he did in fact exhaust the requirements of administrative remedies, which is a key part of the Prison Litigation Reform Act. One of the main barriers is that you have to exhaust the system and it’s so difficult, you know, just because it takes a long time, you have to have a drive to do it, filling out paperwork, all of that.
Adam: It’s designed to make you give up.
Sessi Kuwabara Blanchard: It’s designed, yeah. And so I actually have a quote here from Alexander that talks about specifically how he seen the administrative remedy process really push down people within the UNICOR workplace. So he wrote, “Cases like mine are always coming up however, people tend to get frustrated after the retaliatory action and give up quite often instead of pushing it through. Anytime that you began the administrative remedy process, you can expect some form of roadblock and a lot of people say forget it.” But then he also says, “I’m not one of those people.”
Sessi Kuwabara Blanchard: The difference here is before you can even get to court, you have to go through this extremely bureaucratic process and clearly a lot of times on the outside for employees, they don’t have that kind of bureaucratic process. They can just take it to court. But I think the key thing actually with this case isn’t the Prison Litigation Reform Act. I don’t think that’s the crux of the issue. And I think it actually is more to do with Bivens claims, which I think are lesser known, a little less sexy in the criminal justice reform space.
Adam: Let’s talk about that.
Sessi Kuwabara Blanchard: Yeah. Yeah. So a Bivens claim comes from the Supreme Court ruling in the context of law enforcement officers who conducted what they found to be an illegal search and seizure. And so basically it offers you the route to receive damages based off of a constitutional violation committed by a federal agent, a federal employee. And prior to Alexander’s case, a Bivins claim had only been extended to two other contexts. One was in the prison context, in the federal prison context, specifically for cruel and unusual punishment cases. And one is Carlson vs. Green in 1980 and basically the BOP agent violated his Eighth Amendment rights by denying access to asthma medication and he died from that. And then the other context was in Congress member’s office. The Congress number was found to be discriminating against his female secretary when he fired her. And that was under the Fifth Amendment. So those are the two contexts that the prison and cruel and unusual punishment and then the unincarcerated labor context for discrimination.
Sessi Kuwabara Blanchard: But then in the middle of Alexander’s case, the Supreme Court heard Ziglar vs. Abbasi in 2017 which was involving a number of plaintiffs who were detained in Manhattan following 9/11 and they, you know, they were claiming a number of constitutional violations, but basically the judge said that courts should be hesitating before extending this claim to other contexts. And so in effect basically said that this recourse, and it’s one of the few recourses, you know, for federal prisoners, is pegged to these three specific circumstances. And those all happened, you know, like over 40 years ago. So that’s the center of where his rights and like paths to legal recourse are being obstructed. And in that finding the judge explicated something that’s happened in other courts but really brought it to the fore and really articulated it clearly that people who are in federal labor work placements don’t have access to the same constitutional protections in that specific work context as employees, unincarcerated employees.
Sessi Kuwabara Blanchard: So yeah, that’s kind of where it all lies.
Adam: Okay. So what you have is this kind of legal no man’s land. You close your article with the following quote: “Ultimately, the outcome of the case raises troubling questions about the status of incarcerated people. ‘If we are not employees, then what are we?’ Alexander wrote in the wake of the ruling. He answered his own question: ‘Slaves.’” This of course is not the first time incarcerated workers have been referenced as slaves. This is something that comes up a lot in the prison, obviously in the prison labor strikes of 2017 and 2018 which we’ve covered. This word — slaves — it’s used by some abolitionists to describe incarcerating labor. What is your thought on that term? Cause, you know, slave obviously evokes a very specific thing. Technically speaking, I personally don’t see how it’s any different than slavery. Obviously it’s not the same as what we know as being sort of racial hereditary slavery in the 18th century and 17th century United States. But there’s certainly more overlap than differences. So can we talk about what are your thoughts on the word slavery and if that somehow seems too harsh, what would be a word you would use in its stead?
Sessi Kuwabara Blanchard: Yeah, so I think, as you said, Alexander uses that word to describe himself. You know, for him that’s very self evident. And I think the feeling of enslavement is very real. And from so many of the different incarcerated people that I’ve been in conversation with for various articles have expressed that to me. There is a critical difference. And I think as again, you recognize between 19th century plantation slavery and more hereditary slavery versus that of today. And I mean there is, there’s so much work that draws the direct connection, the direct kind of legacy of plantation slavery to present day mass incarceration and some of the industries that exist within it. But we can’t lose sight of the fact that it is different in crucial ways. Like for example, you know, prison labor does not have the same economic force that plantation slavery did, where that was really like the heart of the economy, especially in the South.
Adam: Well, right, but from the perspective of the slave they wouldn’t really care right? I mean, but yeah, no, I see what I’m saying.
Sessi Kuwabara Blanchard: Totally. But no, no, I think it’s important and I’m not saying that to undermine the claim that it feels like an enslavement and, you know, like the degree of their access to legal rights in any kind of way is no different from slavery. I think I’m more curious in how it’s just a specific kind of new innovative form of enslavement and confinement where there’s no coherent narratives and reason for why people are being put to work in the way they are. Whereas, you know, with plantation enslavement, it was clear, you know, to drive this economy. Whereas prison labor specifically within the UNICOR context, for the most part, the products generated by prison labor can’t be sold to the private market. And so generally it’s being pushed into the government, the government’s buying those products. So it has this eerie quality where like prison labor is buttressing and basically supplying the material objects of the federal government. The kind of classic example are like license plates, license plates are like, you know, notoriously products of prison labor.
Adam: And then we have the added kicker card instead of just having the unique American tradition of gratuitous racist cruelty for its own sake. It’s an ends in and of itself.
Sessi Kuwabara Blanchard: Right, right. And especially today, they clearly note this and a lot of like the policy documents around it and the statutes around this, they recognize that a lot of the reason for this labor program is to deter idleness. You know, what they call like inmate idleness.
Adam: God forbid, right? Yeah.
Sessi Kuwabara Blanchard: Right. And so equating it with plantation slavery doesn’t do the same analytical justice that like the present issue requires. In this sense, we have to think about the whole notion of like rehabilitation, you know, and how this labor is being seen as like a rehabilitative program is itself this like very insidious political project that needs unpacking in a way that we can’t just say, you know, we have to like divest from buying prison made products because there actually isn’t a huge economic incentive behind it.
Adam: Yeah no I guess obviously I don’t think anyone would begrudge those who are incarcerated from using the word slave. And the reason why I think it’s, it’s a relevant question because this was tackled in documentaries like Thirteen that more or less say they are slaves, which I think sort of beyond the semantic issue, I think it speaks to the moral urgency of what we’re talking about right? Cause, you know, magazines on the left use the word “incarcerated workers” and they get criticism because it makes it look like, oh this is a child worker. It’s like well they’re slaves. Like, you know, they don’t have any agency and so it’s, I feel like I’m in need of some sort of in between word and I don’t quite know what it would be cause incarcerated workers does seem like a euphemism. I was just curious what you thought about it.
Sessi Kuwabara Blanchard: I was recently corresponding with someone else who’s incarcerated in the federal prison system. And I do think a lot of incarcerated folks consider “inmate” and how dehumanizing the word inmate is, how that’s used and like you know how people are denied just being referred to like with their name. They either you know, have their number, their inmate ID number or there’s this referred to as inmate X last name. And I mean obviously inmate has like a formal definition that isn’t as directly, like inmate isn’t defined as a slave. But I think inmate can function in some ways as a specific word to describe the specific type of prison slavery that’s going on.
Adam: Yeah, it’s this weird paradox because we avoid the word inmate because it’s dehumanizing, but then you run the risk of in a way sanitizing the system itself. Does that make sense? So like you don’t wanna use dehumanizing language, but at the same time incarcerated people it sort of, it can also have the dual purpose of sanitizing the suffering and this is something that we’ve talked about a bunch on the back end at The Appeal about why do you strike that balance? Because I do think semantics matter. I think again, because it speaks to the urgency of what we’re talking about. We’re talking about 3 million slaves or 3 million incarcerated workers or 3 million inmates. Those all have different connotations of what we should do to solve the problem.
Sessi Kuwabara Blanchard: Right.
Adam: Anyway. So what is the current legal status of this? This article is a few months old now, but before we go, I want to talk about the current legal status. You actually updated us about Alexander’s status, but what does the sort of broader, is it true that the status quo is a more or less aligned? Is there any sense of change here or is it sort of just working its way through these various lawsuits?
Sessi Kuwabara Blanchard: To the extent of my knowledge, I think it has not progressed in the least, we’re currently stuck in these completely untenable lawsuits. You know, that even if someone wins something, it’s still applied on such an individual level. And I mean just generally also the status of the judiciary is so depressing right now. Like for example Alexander’s cases in the Third Circuit, and I mean like hypothetically if it somehow gets to the Supreme Court, I mean I think even if that happens, like it’s a depressing outcome either way. I guess this is almost like more of a question. I’m still very unclear and I’ve like looked into this myself to tangible outcomes of the prison strikes and I didn’t see any real material wins there. I don’t know. This is actually more of a question for you, Adam. Are you aware of any?
Adam: Yeah, the movement for with a lot of these things, some of them more, for lack of a better term, kind of bourgeois rights. Like for example, voting, which is hugely important, but it’s not as sort of positive economic right is where I think most of the headway was made from the prison strikes. A lot of the activism came out of the Florida movement to enfranchise people who are quote unquote “former felons.” Most of that was one of the primary demands of the strike and I think that provided the moral impetus for that and other movements. And of course just general unseen kind of reforms are also always kind of informed by that aggregate movement. But yeah, no, it’s always hard to tell, right? How do you gauge how these movements work? There’s fifteen think pieces about whether or not Occupy was successful or not, and nobody knows the answer to it.
Sessi Kuwabara Blanchard: Tying in the question of prison labor and enslavement, as well as how the Alexander ruling impacted him and just generally this, the question of prison labor, I think something really important to note is like .46 cents an hour doesn’t get you much, especially when you have court fees. Like when commissary pricing is just so enormously high, like prison phone calls, the rates are insane. So I think and Alexander really explicated this for me in our correspondences, he talked about the psychological toll that this labor has because like you don’t actually reap many benefits from this labor program. Like the pay is shit. They supposedly are giving you skills, you know, for when you get out to find employment. But like okay, they’re setting you up for either like service work because they, you know, they have all these call center programs. They’re setting you up for like extremely low wage jobs as well. You know, it kind of just perpetuates the cycle of poverty and all that. So he talks about the psychological toll and I think something that really bothered him and that came through in our correspondences was the question of like, if we aren’t employees then what are we? And I think you were getting at that, you know, when you were asking is slave the right word? And for Alexander I think slave is the right word. It’s that unsettling feeling that you’re being excluded from pretty much all existent labor law and basically being expelled, you know, from the legal political protections that anyone else who’s a citizen in this country enjoys.
Adam: Yeah it’s like whenever you find these words, it seems like not choosing a word because it seems too extreme or sort of requires too much cognitive dissidence to operate, seems like not the right reason to not use it. It seems like an unwillingness to sort of face the savagery of the system itself. So it’s like an interesting criteria. Well thank you so much. I think that’s a good place to end it. This was very informative. I really liked this piece. I hope you do follow up work on it. I know that it’s basically the totality of people reporting on this stuff we can count it on one hand so we very much appreciate your work in this space. Thank you so much for coming on.
Sessi Kuwabara Blanchard: Thank you so much for having me.
Adam: Thank you so much to our guest Sessi Kuwabara Blanchard. This has been The Appeal. Remember, you can always follow us at The Appeal magazine’s main Twitter and Facebook page, and as always, you can rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer as Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.
Despite Flat Crime Rates, More Cleveland-Area Young People Are Being Tried As Adults
District Attorney Michael O’Malley’s 2016 election was viewed by some as a win for Black Lives Matter, but the number of children transferred to adult court in Cuyahoga County, Ohio, has increased more than 100 percent.
Despite Flat Crime Rates, More Cleveland-Area Young People Are Being Tried As Adults
District Attorney Michael O’Malley’s 2016 election was viewed by some as a win for Black Lives Matter, but the number of children transferred to adult court in Cuyahoga County, Ohio, has increased more than 100 percent.
On the heels of widespread protests over District Attorney Timothy McGinty’s refusal to prosecute the officer who killed 12-year-old Tamir Rice, Michael O’Malley’s 2016 win made national headlines. It was viewed by some as a victory for the Black Lives Matter movement.
But since he took office in Cuyahoga County, Ohio, even while crime has remained flat or fallen, the number of young people sent to adult court has increased more than 100 percent, according to a fact sheet released today by the ACLU of Ohio, the Juvenile Justice Coalition, and the Children’s Law Center.
Last year, 100 young people in Cuyahoga County were tried as adults, according to the fact sheet. In 2017, O’Malley’s first year in office, 91 were transferred to adult court, up from 49 the year before, according to the fact sheet. Such transfers are known in Ohio as bindovers.
“The rise really is in large part attributable to the choices made by prosecutors,” said Kelly McConaughey, executive director of the Juvenile Justice Coalition in Ohio. “They could severely limit the harmful practice. That’s what we would like to see. No other county in Ohio has the same bindover rates.”
O’Malley’s office declined to comment on his office’s use of bindovers.
While Cuyahoga County is sending more youth to adult court, there’s a growing awareness nationwide of the harms associated with the practice. Young people tried as adults, researchers say, are more likely to receive harsh sentences and recidivate than those in the juvenile system, and typically receive fewer services. Having adult charges on their records can limit their opportunities for housing, employment, and education, noted Claire Chevrier, advocacy counsel for the ACLU of Ohio.
“It can be a lifelong struggle to have an adult conviction,” said Chevrier. “It seems like a surprising choice from a prosecutor’s office to send youth to adult court because we know there are worse outcomes.”
Cuyahoga County has long been an outlier when it comes to prosecuting children as adults. Franklin County, for instance, which has a population comparable to Cuyahoga and is home to Columbus, reported far fewer transfers to adult court—19 in fiscal year 2018, according to a report from the Ohio Department of Youth Services published in February.
Each year since fiscal year 2009, Cuyahoga County has tried more youth as adults than any other county in the state, according to the department’s report. But the problem has worsened in recent years, according to advocates. In fiscal year 2018, 89 children were tried as adults, the highest number since fiscal year 2009.
The vast majority of those transferred to adult court in Cuyahoga County and throughout Ohio are Black, according to the department’s report. In fiscal year 2018, 82 percent of youth transferred to adult court statewide were Black; in Cuyahoga County, more than 94 percent were Black.
“It’s a reflection of, not just system-based, but societal, racism,” said Acena Beck, executive director of the Children’s Law Center. “Youth of color, especially young men and boys, they’re more perceived by the system to be adults.”
The decision about which children should be tried as adults is based on the charges prosecutors choose to file. Young people who are 16 or older and charged with murder or attempted murder in Ohio are automatically transferred to adult court in what’s called a mandatory bindover. A 16-year-old charged with aggravated assault, however, would not automatically be transferred to adult court unless there was a firearm present or the person had previously been committed to a state youth facility for certain offenses, explained Chevrier.
Discretionary bindovers are even more subjective. A prosecutor can seek a discretionary bindover for a 14-year-old charged with a felony who is not “amenable to care or rehabilitation within the juvenile system,” according to state statute. For discretionary bindovers, a judge determines if the case goes to juvenile or adult court.
“It’s clear to us that this is widely based on prosecutor discretion,” said Chevrier. “A lot of this has to do with who is in the prosecutor’s office.”
As Cuyahoga increases the number of children it tries as adults, more and more states are passing legislation to raise the age of criminal responsibility. As of Oct. 1, New York no longer automatically prosecutes 16- and 17-year-olds as adults. Starting Dec. 1,16- and 17-year-olds in North Carolina who are charged with nonviolent offenses will no longer be tried as adults. And last week, the Michigan legislature sent a bill to Governor Gretchen Whitmer that would limit, based on the type of offense, when 17-year-olds can be tried as adults.
But, as with Ohio’s statute, a young person’s fate will still largely depend on the prosecutor’s charging decisions and whether the offense is considered violent or nonviolent.
Brandon Cline experienced the trauma of an adult conviction firsthand, according to his mother, Audrey Cline. At 17, he was bound over to adult court in Clark County, Ohio, and ultimately sentenced to seven years in prison for burglary and failure to comply with a police order, she said.
“He needed help, not punishment,” Audrey told The Appeal of her son. “He just needed help and guidance.”
While he was incarcerated, Brandon wrote letters to the Children’s Law Center for its Bound Over Youth Case Profile Project, an initiative to share stories from those transferred to adult court.
In his letters, he detailed his plans for the future: possibly a career in culinary arts, computer engineering, or architecture. “My main thing is I want to have a family of my own,” he wrote. “I need to get stable financially first.”
In 2017, at 25, he was released but struggled to adjust, Audrey told The Appeal. She encouraged him to see a counselor, but he refused.
Less than a year after he came home, on Aug. 30, 2018, Brandon died by suicide, she said.
“It was so hard for him to acclimate and get accustomed to going away as a child, coming out as what everyone perceived as an adult,” Audrey said. “He went from being told when he could basically go to the bathroom or when he had to go to sleep to ‘Here’s this world, have at it. Good luck.’”
When 53-year-old Isaac Young was released from an Illinois prison on May 31 after more than 25 years, he was eager to start his life over. He had already lined up a place to live and had plans to start job hunting while reconnecting with his Chicago community.
Before he was released, the Illinois Prisoner Review Board considered his file and ordered him to spend 120 days on electronic monitoring. When he got home, his parole agent told him he could leave home for only six hours each weekday and less than that on Saturdays. Later, that was increased to eight when he started an HVAC training class.
“It was like I was still behind a wall,” he told The Appeal. “I had movement, but it was limited movement.”
Young said he didn’t have time to go to job interviews and he constantly worried about whether he would make it home by 6 p.m. to check in for the night. He also missed family gatherings and church events on Sundays, when he wasn’t allowed movement at all. For four months, Young lived in this restricted manner until his ankle monitor was removed on Oct. 1.
What Young didn’t realize was that starting on July 15, he should have been allowed far more movement outside his home. That day, in response to a series of state legislative hearings earlier in the year on electronic monitoring, the Illinois Prisoner Review Board (PRB) issued a memorandum that, among other things, altered the conditions of release. The reforms, effective immediately, included a rule that every person released on parole or mandatory supervised release with an ankle monitor have at least 12 hours of authorized movement each day. Any restrictions beyond that have to be approved by the PRB.
But Young’s agent didn’t inform him of the change, he said. A spokesperson for the Parole Review Board said he couldn’t comment on a specific case.
Young said that had he been allowed 12 hours of movement, his experience on his ankle monitor wouldn’t have been as difficult. It would have been easier to find a job, he said, and it would have lessened his daily anxieties about missing check-in.
James Kilgore, an expert on electronic monitoring who leads MediaJustice’s Challenging E-carceration project, said the change gave Illinois the most liberal electronic monitoring regulations for people on post-prison release anywhere in the country.
Yet they still require proper execution, he said. Both parole agents and people on electronic monitoring need to know the new regulations. “If implemented, this rule could make a huge difference for people on EM,” he told The Appeal, but it’s not clear that the Parole Review Board can enforce it. “Ultimately, the decisions about people’s movement get made by individual parole agents on the ground.”
The change addressed concerns that electronic monitoring was overly restrictive. During the state legislative hearings this year, lawmakers were confronted with the challenge, for instance, that medical issues pose for people with ankle monitors. Nicole Davis testified that her uncle was diagnosed with late-stage cancer while on electronic monitoring and missed necessary doctor’s appointments before he died because he was unable to get permission from his parole agent to leave his home.
“Those parole officers would not return my call, they had no sympathy for my uncle,” she told the Illinois House Judiciary Committee in February. The state Department of Corrections did not respond to questions on the case.
Sarah Staudt, senior policy analyst and staff attorney at the Chicago Appleseed Fund for Justice, commended the PRB for hearing out the concerns raised during the hearings and addressing some of them in its memo.
“I’m very happy to hear that they listened to those concerns,” Staudt said. “They did hear what our advocates were saying and what the people who told their stories were saying and provided a pretty major fix.”
“This is a major step forward for the program and if it gets implemented on the ground, it will reduce suffering,” she added.
But community advocates and others who work with people on post-sentence electronic monitoring say compliance is spotty at best. Parole agents continue to restrict people like Young to fewer hours of movement, advocates said, and many individuals with ankle monitors are unaware of the new policy.
Alan Mills, executive director of the Uptown People’s Law Center in Chicago, told The Appeal that he has heard many complaints about denial of movement and that people his organization works with have not heard of the rule change. One of the reasons the memo seemingly isn’t being followed, he said, is confusion over who sets the rules on electronic monitoring.
“The PRB has authority over what conditions of parole they impose,” Mills said. “But parole agents work for the Department of Corrections.”
Jason Sweat, a spokesperson for the PRB, said the board sent the memo to the head of the Department of Corrections and expected the new directive to be communicated to parole agents. Because parole agents work for a separate state agency, he said the PRB has no way to force them to comply.
Representatives for the Department of Corrections did not respond to requests for comment.
If the memo is implemented, Staudt said, it would be a step in the right direction. Although 12-hour movement doesn’t lessen the stigma around electronic monitoring or the privacy concerns it raises, the change begins to address some of the damage that ankle monitors have on people’s lives, she said.
“This is the kind of big step that we should be looking for as EM programs try to improve,” she said. “We don’t want electronic monitoring to impose a substantial impediment to the things that people need to do in their lives—take care of their families, getting a job, getting enrolled in school. Having to specifically request movement for those types of things is just not workable.”
Ultimately, Staudt and other advocates would like to see the use of ankle monitors reduced or ended in Illinois.
There’s little evidence they improve public safety, she said, and people on electronic monitoring often say it makes them feel like they are still incarcerated.
Shawn Manuel, 46, spent six months with an ankle monitor and now gets health and other re-entry services from the Inner-City Muslim Action Network alongside Young. He described the feeling of being home but not being allowed to live his life.
“It’s like a leash,” Manuel said. “It’s worse than a leash. Parole is a leash. Ankle monitors is like a dog house.”
On May 24, 2004, Wade Lay and his 19-year-old son Christopher entered the MidFirst Bank in Tulsa, Oklahoma. Wade carried a .40 caliber handgun, Christopher a sawed-off shotgun.
“His plan was we’ll get some money and we’ll take our revenge or we’ll start our revolution,” Christopher, now 34, told The Appeal. His father was determined, he said, to avenge the deaths of those killed in the federal government’s deadly 1993 standoff with the Branch Davidians, a religious sect, in Waco, Texas.
Inside the bank, in less than a minute, security guard Kenneth Anderson exchanged gunfire with the Lays. All three were shot. Anderson died at the scene.
Wade and Christopher fled and were arrested the same day. Over objections from Christopher’s counsel, they were tried together in September 2005.
The trial judge permitted Wade to represent himself, according to a petition filed on Wade’s behalf last year. Symptoms of what would later be diagnosed by the Bureau of Prisons’ examiner as paranoid schizophrenia were apparent during trial, according to Wade’s appellate attorneys, but he was not evaluated to determine his competency to stand trial.
“Well, it was a miracle what happened in 1776 and it won’t happen again,” Wade told the jurors, according to the transcript. “We have nowhere else to retreat. And I see it crumbling and the founders warned us of this time. Just like the Apostle Paul.”
The jury convicted them both of murder. Wade was sent to death row, where he remains. Christopher was sentenced to life without parole along with 25 years for attempted robbery. He is now seeking a commutation from the governor.
The case has echoes of Mathena v. Malvo, which is now before the U.S. Supreme Court. Both cases revolve around a young, impressionable man alleged to have been influenced by a destructive mentor. And both reflect an ongoing national debate over which young people should be protected from the most severe sentences and be allowed an opportunity for release.
In 2012, the Supreme Court banned mandatory life without parole sentences for people under 18 in Miller v. Alabama, and in 2016, in Montgomery v. Louisiana, it made that decision retroactive, leading to the potential resentencing of about 2,000 people.
Lee Boyd Malvo, who participated in the so-called D.C. sniper shootings in 2002 at age 17, was given four life without parole sentences by the state of Virginia. The question now before the court is whether his sentence, which Virginia argues is excluded from the ban, should still be subject to Miller and Montgomery. Oral arguments were heard this week.
Christopher Lay’s case raises an additional question: Should the Court’s rulings also apply to those in their late teens? Researchers say these young adults are not that different from those a few years younger. Adolescents are more impulsive than older adults, research has found, and more susceptible to negative peer pressure; their brains are not fully developed until their mid-20s.
“There is an increasing call to extend the sentencing principles identified by the Supreme Court in the juvenile sentencing cases to this young adult population really almost as a principle of fairness,” said Marsha Levick, co-founder of Juvenile Law Center, when she heard the details of Lay’s case. Juvenile Law Center filed an amicus brief on behalf of Malvo. “They are pretty much the same individuals in terms of the concerns for culpability and blameworthiness.”
Lay’s case is not the first to try to extend the reach of the Supreme Court’s landmark decisions to older teens. Lawyers with the Abolitionist Law Center in Pennsylvania have asked the state’s appeals courts to grant Avis Lee a hearing in which she can challenge her sentence, based on Miller and Montgomery. She was sentenced to life without parole for a murder that occurred when she was 18. She is now 58.
Some courts have granted such requests. Last year, a federal court in Connecticut ruled in the case of Luis Noel Cruz that Miller applies to 18-year-olds. Cruz was sentenced to life without parole for murders he committed when he was 18.
In 2017, a Kentucky judge found that it was unconstitutional to sentence a person to death who was under the age of 21 at the time of the crime. “Under feelings of stress, anger, fear, threat, etc., the brain of a 20-year-old functions similarly to a 16- or 17-year-old,” wrote Fayette Circuit Court Judge Ernesto Scorsone.
In the Lay case, Juvenile Law Center’s Levick said, the combination of Christopher’s age and his father’s influence created “a very toxic mix that led to quite tragic results.”
Until he was 12, Christopher lived with his father and mother, who home-schooled him and his two sisters, according to court documents. In 1997, his mother left with his sisters, and Christopher and Wade began an isolated and itinerant life together, moving from state to state. They lived in motels, apartments, vehicles, and under bridges, according to a report prepared for the defense by Wanda Draper, professor emeritus of psychiatry and behavioral sciences at the University of Oklahoma. Draper interviewed Christopher and his family members before trial. As a teen, she reported, Christopher picked up odd jobs to help support himself and his father, who was often unemployed and drank heavily.
“Chris took care of his father,” Draper told The Appeal. When she spoke with Christopher before trial, she said, he was “still very much under his father’s spell.”
At the time of their trial, Doug Drummond, an assistant district attorney, said the Lays were “operating outside of reality,” according to Tulsa World.
Christopher told The Appeal that because he was not in school, his only teacher was his father, who believed the government was persecuting him, Christopher said.
He arrived at prison with “zero education,” he said. He focused on reading to be more like his father, who he then considered his hero.
“I knew nothing,” he said. “In reading to become like him, I discovered the things that made me realize he was wrong.”
During his 14 years in prison, he earned a GED and a bachelor’s degree and now tutors incarcerated students at Dick Conner Correctional Center.
“How much he’s invested in those who will get out has been amazing to me,” said Lisa Weis, a former Langston University associate vice president who ran classes at Dick Conner Correctional Center. Weis, Draper, and members of Lay’s family support Lay’s commutation application.
Kim Tryon, Anderson’s sister, opposes Christopher’s release. “Mr. Lay should spend the rest of his life in prison for taking my brother’s life,” she emailed The Appeal. “I believe he should have gotten the death penalty as his father did. My family and I will do everything in our power to make sure he spends the rest of his life in prison.”
In 2015, Christopher wrote to Anderson’s daughter to apologize. She wrote back a year later and they exchanged a series of letters. “I’m so ashamed of what I did to you,” he wrote. “Even as I write this, I hang my head, as I always would if you were in front of me.”
“After getting away from my father and the trap that he is, I grew into the person I was supposed to be,” wrote Christopher in that first letter. “That shames me perhaps as much as anything. I stand on your shoulders, on your dad’s shoulders, and I have no right to.”
The last letter he sent was returned, Christoper told The Appeal; she had moved. He has not heard from her since.
Lay’s chance for commutation could benefit from the election of Governor Kevin Stitt, who took office in January. Though Oklahoma has the highest incarceration rate in the world, the new governor and the Oklahoma Pardon and Parole Board seem committed to tackling mass incarceration, according to advocates.
In February, three of Stitt’s appointments joined the five-member board. From March through August, the board recommended 140 people for commutation, compared with 10 people over the same time period last year, according to the board’s data.
Steven Bickley, who came on as the board’s executive director in July, said the board doesn’t publicly discuss individual pending cases. The increase in approved commutations reflects changing laws and a new understanding of how people can successfully return to their communities, Bickley told The Appeal.
“Criminal justice reform is giving a lot of legitimacy to commutation applications,” he said. “There’s been fundamental underlying changes in the public’s attitude [and] in the laws.” The board, he said, looks very closely at misconduct in prison, believing that “if you can follow the rules on the inside, you can follow the rules on the outside.”
Although the board is prioritizing applications from people impacted by recent reforms to laws governing drug and property crimes, it is considering other cases as well. This month, the board recommended commutation for Tondalao Hall, who was serving 30 years for “failing to protect” her children from a boyfriend’s abuse. In September 2018, the previous board had rejected her application.
To be considered for commutation in Oklahoma, an applicant’s case must meet one of three criteria: the sentence is excessive, the sentence is excessive due to facts not known by the court or jury at the time of trial, or the sentence appears excessive due to a change in statute.
Despite progress in Oklahoma, more work is needed, according to Ryan Gentzler, a policy analyst with the Oklahoma Policy Institute. The state must change both how charging decisions are made and its sentencing practices, including for those convicted of violent crimes, he said.
“If Chris Lay would have been tried in a different county with a different judge or prosecutor that understood the power dynamics between him and his father, I think the outcome could have been much, much different,” said Gentzler. “We just need to do a whole lot more work in getting justice professionals that understand trauma and the human mind.”
Juvenile Law Center is a sponsor of Elizabeth Weill-Greenberg’s documentary play on young people sentenced to life and her upcoming play on young people on the sex offender registry.
Multiple women who have worked with Jody Owens, who is running unopposed for district attorney in Hinds County, Mississippi, say he sexually harassed them while he led the Southern Poverty Law Center’s Jackson office. Their allegations include claims that Owens, who was the office’s managing attorney until June, commented on some women’s appearances, discussed their dating lives, made unwanted advances, or touched them inappropriately.
One woman, who worked for the Southern Poverty Law Center (SPLC) as recently as the spring, filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) in the summer. The Appeal has obtained a copy of the complaint, which details both specific interactions she allegedly had with Owens and a culture in the office in which, she said, his behavior was allowed to continue unchecked.
Asked about these allegations, Owens wrote in an email, “I have never condoned nor participated in any unwanted behavior or touching of any kind with an employee.”
He said he was unaware of the EEOC complaint and could not comment on specific personnel matters because SPLC policy prohibits it. “What I can say is that we strived as an office to foster an environment that was safe and free of harassment of any kind.”
These revelations come roughly seven months after accusations of sexual harassment, gender discrimination, and racism roiled the SPLC’s Montgomery, Alabama, headquarters and led to the ouster of the organization’s co-founder and chief trial lawyer, Morris Dees.
In the complaint, the woman describes a number of instances, starting in November 2018, where Owens made unsolicited comments about her body and touched her without consent. On one occasion, Owens invited her to dinner with members of his family and she said she felt compelled to attend because of his stature as leader of the office.
“While at dinner, Mr. Owens reached under the table and touched [the woman]’s thigh and calf,” the complaint says. “[The woman] recoiled, but he persisted; Mr. Owens continued to touch her leg under the table throughout the meal despite her attempts to shift away.”
After the meal, Owens allegedly approached the woman, grabbed her upper arms, and commented on her muscles, saying she must work out. When Owens left the restaurant, he immediately called the woman’s cellphone under the guise of discussing work, she said, but asked about her dating life. Owens advised her to be careful on dating apps. “This is a small town,” he said, according to the complaint.
“That conversation was the first of many Mr. Owens would have [with the woman], in which he sought to control and limit her interactions with other men in Jackson,” the complaint says.
On another occasion, the complaint states, he told her she has “a body that Mississippi men appreciate,” and that she was “not white girl skinny, but not fat.”
According to the complaint, the woman reported the harassment to Lisa Graybill, the SPLC’s deputy legal director of criminal justice reform, and Twyla Williams, the director of human resources. Graybill and Williams did not respond to requests for comment. The SPLC declined to comment, citing its policy of keeping personnel matters confidential.
Williams arranged for a third-party investigation, according to the complaint, and outside attorneys interviewed the woman. In June, she was told that investigators found her allegations credible, but Owens was not disciplined to her knowledge, and he resigned on June 28.
The complaint alleges that by the time the woman started at the SPLC’s Jackson office in late 2018, the organization “had long been on notice of complaints that Mr. Owens was a sexual predator who targeted subordinate female employees.”
Another woman, who also alleges that Owens sexually harassed her and said that she reported the conduct internally at the SPLC, said she offered to provide additional testimony to support the complainant in the EEOC investigation.
In total, The Appeal spoke with 17 people who worked in the office or considered working in the office since Owens became managing attorney in 2011. Most would only speak anonymously, citing concerns about their professional reputations.
Some praised Owens as a strong leader and caring supervisor. “He was overall a good boss, a good mentor,” said Alesha Judkins, who worked in the office for almost eight years. “It was a crucial part of my career that I’m forever grateful for.”
But the majority of those interviewed described a toxic work environment under Owens’s leadership.
Ten of the intervieweessaid they had experienced, witnessed, or knew about his harassment of subordinate female employees. Some said he directly commented on their appearance and dating life in a way that made them feel uncomfortable in the workplace. SPLC’s human resources department investigated his conduct at least twice, according to the complaint and to women interviewed by The Appeal. Many described his behavior as an open secret in the office.
Some women contacted by The Appeal expressed relief at finally being asked about behavior they said they felt forced to tolerate. But many were also fearful, then and now, of what speaking out against Owens could mean for their careers and personal lives.
“It was really hard for me to pick out at the time what was actually happening,” said Emily Tatro, who worked in the office as an intern in the summer of 2013. “That’s one of the myriad reasons that I didn’t say something then, in addition to getting paid and needing the money, and the power dynamic of the boss, and not being from around there and not wanting to cause a stir as an outsider, and needing this for my career.”
Another woman who has worked at the SPLC under Owens said his behavior shocked her from the moment she set foot in the office. In the beginning, she didn’t know if she was just misreading cultural norms.
“There were a lot of excuses [my colleagues] made that this is just how it is in the South,” she said. “But the fact is that … most men don’t behave this way here.”
Owens worked as the chief policy counsel and managing attorney in the SPLC’s Jackson office starting in 2011, litigating class action lawsuits aimed at tackling mass incarceration, private prisons, and the school-to-prison pipeline. He has also served as a Hinds County special prosecutor and as an attorney at the Butler Snow law firm. He’s a lieutenant in the U.S. Navy Reserve and, according to his campaign website, has served for over seven years.
Progressive reformers have embraced his candidacy, calling him a champion for criminal justice reform. He has campaigned for district attorney on a platform centered on limiting cash bail, establishing a new post-prison re-entry program, increasing access to mental health care, and investing in restorative justice programs.
But former SPLC employees tell The Appeal that Owens created a culture in the office in which women felt bullied and harassed. Anamika Dwivedi, who worked as a policy intern in Jackson in summer 2015, said Owens once chastised her for showing emotion on a particularly stressful day. “He told me, ‘Don’t act like a woman in professional spaces,’” she said.
Owens said approximately 100 employees cycled through the Jackson office during his time there. “It would be disingenuous to tell you that I remember every employee and certainly not every conversation or interaction with every staff member, full-time, part-time or seasonal.”
Though Dwivedi spent only a summer at the SPLC, other women who spoke with The Appeal, including the one who offered to provide additional testimony to the EEOC, had far more contact with Owens. That woman told The Appeal that Owens sexually harassed her on multiple occasions during her first year in the office. The only reason she is not filing legal charges, she said, is because the statute of limitations has passed.
“It’s hard to grapple with and realize what’s happening to you in the context of a brand new job,” she said. “For someone who uprooted my life to move to Mississippi, let alone to do the work I was passionate and remain passionate about … I thought I got my dream job. And I went there and pretty immediately started experiencing things that made me uncomfortable.”
The woman, like many who have worked in the office, moved to Jackson to work for the SPLC and didn’t know anyone in the city. Many former employees described the criminal justice community in Jackson as insular and small, and said their status as outsiders placed them in a vulnerable position. The woman said she felt pressured to attend social events and consume alcohol with Owens.
A few weeks into her tenure, she said, Owens took her to the State Capitol and told her she would be good at legislative work because she’s “a white liberal woman who’s not from Mississippi.” Owens’s comments, which were sometimes about her gender and race, and other times of a sexual nature, escalated over time, she said. She documented seven or eight serious incidents.
During her second month at the SPLC, she went to a restaurant with Owens and other colleagues. When Owens left, she said, he got up and “kissed me on the cheek and whispered that I should stop being so flirtatious.”
She said she remembers her shock at that comment. “I distinctly remember asking a co-worker after the fact what I could have possibly done that would have given that impression, and she said maybe it was the way I turn my head when I listen,” she said.
On other occasions, Owens commented on her choice of shoes, told her not to wear skirts or dresses around legislators because she has “nice legs,” and made overt, flirtatious comments toward her in public.
Roughly eight months into her employment, during a discussion of her work performance, she said Owens told her: “You’re hell on wheels.”
“Oh Jesus, Jody, what does that mean?” she responded, according to notes she took at the time and referred to during her phone interview with The Appeal.
“You’re a dynamo,” he said, according to her notes. “You’re a white, attractive, liberal woman. You have a shape that is attractive to people of all races. People talk about what white men and black men like. You have a shape that everyone likes.”
Owens specifically disputed a number of these allegations. “I have never kissed an employee and told them to stop being flirtatious,” he wrote in his email to The Appeal. “If I had concerns about an employee being inappropriate towards me, I would have consulted Human Resources and/or documented the issue appropriately.”
He also denied pressuring anyone to attend events outside of work hours or making work decisions based on race. “Race never determined whether someone would be good at any work of any kind including legislative work,” he wrote. “We had a diverse office where numerous individuals contributed to all aspects of our work.”
The woman said that after Owens commented on her body, she reported the incident within the SPLC to Graybill, the deputy legal director, which triggered an investigation in which SPLC co-founder Joseph Levin came to the office to conduct interviews with most staff members about the allegations and related conduct by Owens. Several weeks later, she said, Levin and a human resources representative told her that they did not find any grounds to take substantive, remedial action. Still, they said, Owens would go through an unspecified training, and she and Owens would be prohibited from having direct contact with each other. (Owens denied being prohibited from interacting with any employee while at SPLC.)
Weeks later, she said, she met with an SPLC human resources representative and with legal director Rhonda Brownstein, who told her they had received a complaint about her before she complained about Owens. As a result, Brownstein told her, they would be keeping track of her performance.
According to the woman, Brownstein also asked her why she hadn’t raised her concerns about Owens sooner, and the woman responded that she had been afraid.
“She looked at me and said, ‘What would you possibly have to be afraid of?’” the woman remembers. Brownstein, who has since left the organization, did not respond to a request for comment. Levin, who retired in 2016 but is still on the board of the SPLC’s political arm, declined to comment.
The woman said that for the rest of her employment, she faced what she described as retaliation and friction with co-workers who were close to Owens. She never received a raise, could no longer do much of the substantive work she had been doing, and her desk was repeatedly moved throughout the office.
The woman’s father, who said he spoke with his daughter most nights during her time in Jackson, said he remembers hearing about her encounters with Owens and said the harassment made his daughter anxious and stressed. She had trouble sleeping, he said, and when she did, she had vivid nightmares.
The woman said she has warned people who are considering working at the SPLC in Jackson about the issues. “I would never wish my experience on anyone,” she said.
Tatro, the 2013 summer intern, was entering her third year at Georgetown Law School when she worked at the SPLC. She said Owens often spoke to her in the office about her appearance and dating life. The attention created an uncomfortable environment that affected her work. Tatro said the attorneys gave her less substantive work than other interns.
At one point early in the summer, Tatro said, Owens told her that Elissa Johnson, a senior staff attorney and the internship coordinator, did not like her and he was the only reason she was there. “It made me feel like I owed him something,” she said. “Like he was giving me a chance that I didn’t deserve, and that meant that I owed him something.”
During the midsummer evaluations, when attorneys in the office submit anonymous feedback on the interns, Tatro was told that people were unhappy with her performance. When she asked Johnson for more specifics, Tatro said the only explicit feedback was that “I didn’t smile enough in the office.”
“I was just like, ‘What am I supposed to do with that?’ I was just at a loss and really struggling with how to move forward,” she remembered. “You’re in a pretty exciting but also pretty vulnerable position during your 2L summer,” she added. Johnson was unavailable for comment when contacted by The Appeal and did not respond by publication time.
Tatro recalled drinking with Owens at various happy hours and events around Jackson that summer. At one event, where Owens wasn’t present, she said she had to fight off unwanted flirting from a man who told her he was Owens’s friend. In the office the following workday, she said Owens called her into his office and mentioned the interaction.
“If I knew at 26 that that was inappropriate, certainly he knew … or should have known,” she said. “Why would you put someone in a position like that?”
Tatro also remembers an interaction in the office hallway when Owens touched her butt, claiming there was lint on her skirt. She said at least one person, whose identity she doesn’t recall, saw the interaction. “I remember being like, ‘Oh my God. Everyone saw that.’”
Tatro said the culture in the office and Owens’s treatment of her made her feel like a bad lawyer and question whether she wanted to be a litigator, as she had previously thought. She said she did not understand her experience to be sexual harassment until after the summer ended. Once she had time to process her feelings, she said she became more honest with herself and began sharing her bad experience with others.
A friend of Tatro’s from law school said she remembers Tatro discussing Owens’s comments about her appearance in the office. She said Tatro seemed traumatized by her interactions with Owens that summer and said it continues to affect her interactions with men.
“She asked me what I think she does to invite this kind of behavior,” the friend said. “If there’s something that she could do differently. If there was anything that she had done to create a perception that she was open to this.”
When the SPLC fired its co-founder and chief trial lawyer Morris Dees this year in March, the dismissal came amid an uprising by female and nonwhite employees and allegations that Dees had created a racist, sexist work environment. A group of employees signed on to a letter claiming that several allegations of sexual harassment by Dees had been ignored or covered up over the years and that staff members who reported mistreatment faced retaliation.
Dees has denied the allegations and has said his termination was not related to misconduct.
In a statement at the time of Dees’s firing, then-SPLC president Richard Cohen did not give a reason for the dismissal, but said the organization requested “a comprehensive assessment of our internal climate and workplace practices” to ensure that the organization was a place where “all voices are heard and all staff members are respected.” Cohen did not respond to The Appeal’s request for comment.
Shortly after Dees’s dismissal, Brownstein, the SPLC’s legal director, abruptly resigned and Cohen left after an interim president was named.
While the exodus was occurring in the SPLC’s Montgomery, Alabama, headquarters, staff members in Jackson called an all-office meeting during which Owens tried to downplay the accusations, according to the EEOC complaint.
“Mr. Owens told the entire Jackson office that he believed the claims against Mr. Dees had been overblown and that Mr. Dees was simply a ‘hugger,’” the complaint states. “He went on to make sweeping statements about the merit of the complaints that led to Mr. Dees’ removal, characterizing the allegations against Mr. Dees as ‘minor issues.’”
Women who worked under Owens in Jackson said the reports of Dees’s behavior struck a chord. One woman, named as a witness in the complaint, said that, like the employees in Montgomery, she had difficulty reconciling the sexual harassment she experienced with the values and idealistic goals of the organization.
“People move to the Deep South to work for SPLC because they want to do good, and they are in a place where they are coming for idealistic purposes,” the woman said. “The disillusionment immediately is hard to bear.”
“You struggle with the reality that it does do good work, and that it is deeply flawed,” she added.
Though the SPLC fired Dees for misconduct, current and former employees said they were disappointed that Owens was allowed to resign and write his own narrative about the end of his employment.
In June, he sent an internal email stating that he would be leaving the SPLC permanently, despite his initial plan to take a leave and then return to the office after the primary. “I didn’t calculate that my campaign will likely go to the end of August, and then keep me busy for much of the Fall,” he wrote.
A current SPLC employee outside of Jackson noted that Owens’s voluntary resignation preserved his campaign for district attorney. “He was certainly allowed to leave unscathed,” the employee said. The SPLC declined to comment on Owens’s resignation. A spokesperson denied that the organization was trying to protect his campaign: “The SPLC does not, and has not, engaged in any activities either in support of, or opposition to, any candidates for public office, including Mr. Owens.”
Still, many who have worked at the organization say the SPLC should have taken a stronger stance.
“Jody has ruined a lot of lives for women,” said one woman who has worked in the Jackson office. She said she was subject to one of Owens’s off-color comments and heard about other instances of inappropriate conduct from female colleagues. “The SPLC has known about his behavior for a very long time.”
Jailhouse informants are a fixture of pop culture, helping TV prosecutors secure convictions in exchange for leniency or other favors. But the public—and by extension, juries—are largely ignorant of just how common, and how damaging, jailhouse informants are to the criminal legal system. This week, University of California, Irvine School of Law professor Alexandra Natapoff joins us to discuss how and why the reform movement is pushing back on the use of jailhouse informants in criminal cases.
AdamJohnson: 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 at The Appeal magazine’s main Facebook and Twitter pages and as always you can like and subscribe to us on Apple Podcast.
The jailhouse informant is a mainstay fixer on primetime cop shows used as a last resort by desperate prosecutors trying to get their man, but the public and by extension juries, are largely ignorant on just how common, conflicted and harmful the practice is on our system. This week’s guest, Professor Alexandra Natapoff at the University of California Irvine School of Law is a leading expert on the misuses of jailhouse informants and will join us to spell out how reformers are working to push back against this largely unregulated practice.
AlexandraNatapoff: In our most serious cases, where defendants are facing the death penalty, the single largest reason why we get that wrong is because the government uses compensated criminal witnesses and juries believe them.
Adam: Professor Natapoff thank you so much for joining us.
AlexandraNatapoff: Thanks so much for having me.
Adam: You wrote a recent article in The Appeal about the use of jailhouse informants. You wrote an explainer on the issue as well. Can we sort of lay out to our listeners what exactly a jailhouse informant is or otherwise known as a snitch and to what extent juries are permitted to listen to them and to what extent those jurors may not fully understand their conflicts of interests.
AlexandraNatapoff: Informants broadly refer to any defendant or suspect in our criminal system who is offered a deal, who cooperates or provides information to the government in exchange for some benefit. The most famous benefit, of course, is leniency. A leniency for their own crimes, either a shorter stint or the ability to avoid charges altogether. And the use of informants is an enormous and central part of the way we run our criminal system. You can understand it as a kind of off the books form of plea bargaining. We don’t often keep track of it, but it is a form of negotiation that is legal, tolerated and very common throughout all kinds of cases in our criminal system. Jailhouse informants are a subset of informants. Technically they’re just informants who happen to be incarcerated at the time that they offer information or negotiated a deal with the government or are approached by the government in expectation of providing information and a deal. And the reason we focus on jailhouse informants in addition to other kinds of informants is we have a lot of — I shouldn’t say a lot in this realm because we have very little information in this realm but comparatively speaking — we have quite a bit of information about jailhouse informants. We know that they are a substantial source of wrongful convictions. There have been a number of very high profile scandals around the country. There’s an ongoing one here in Orange County right now regarding the use of jailhouse informants because they have triggered so many scandals and so many wrongful convictions we have paid more attention to them. There have been more lawsuits, more investigations, more media and legislative attention to jailhouse informants because their risks and costs have become more apparent over the past decade or so.
Adam: Yeah. So you note a 2004 Northwestern University School of Law study that found that 45 percent of people who were innocent, found innocent on death row, that 45 percent of those convicted that the deciding factor was a lying criminal informant, which is really high. That’s extremely high. Can we talk about the sheer kind of scope of informants just on cases we know where the person was innocent and to what extent are they sort of used as a crutch by district attorneys to kind of get a somewhat weak case over the goal line?
AlexandraNatapoff: So I just want to double down on your comment about how high that is: 45 percent. That’s an astounding number. What that report told us, and that report grew out of the innocence movement. It was created by the Innocence Project at Northwestern University Law School. It was the result of renewed attention to wrongful convictions. And as a result, it told us, as the report put it, the single largest source of wrongful capital convictions in the United States are snitches, are informants. And that’s really an incredible thing to know that in our most serious cases where defendants are facing the death penalty, that the single largest reason why we get that wrong is because the government uses compensated criminal witnesses and juries believe them. So it’s worth, we’ve learned a lot since 2004, since that report came out, but it’s worth remembering just how shocking that finding was and is and the magnitude of the problem. You asked me to talk a little bit about if we know that they’re so risky and we know that they lead to wrongful conviction, even in the most serious cases where hopefully we’re paying the most attention, where the legal system is attending most carefully to the outcome, why do we continue to use them? Why do prosecutors continue to use them? And there’s a practical answer and a structural answer. The practical answer is that informants are cheap and easy to use. You don’t need a warrant. You don’t need anyone’s permission. Law enforcement doesn’t need anyone’s permission to create an informant. If the informant agrees to cooperate, then there are almost no constraints on the government’s ability to use them. They don’t have to tell anyone because we under-regulate this process. And so not until trial, not until a defendant is charged in a case that involves informants do we even get disclosure requirements required by the Constitution. And so in many ways the law incentivizes the government to use informants because we make it so easy. We have an adversarial system. We reward police and prosecutors and law enforcement for winning, for making and winning cases. And so when you give them a very powerful tool to win, we should expect that they will use that tool. And that gets to the structural reason, which is American law both incentivizes and permits the relatively unfettered use of informants. So we create incentives within the criminal system to use them but then the law permits those things and so we’re only really just starting to grapple with how under-regulated this space has been for so long.
Adam: And just to be clear, this is just, for the purposes of this episode, we’re just talking about jailhouse informants. There’s actually a whole other world of informants, informants that, you know, the FBI has an estimated 15,000 informants depending who you ask that they use specifically on Muslim and black populations. But we won’t go into that. So this is sort of one subset of a bigger informant culture. And let’s talk about these, you mentioned how widespread it was, how systemic it is. I want to talk about the systemic conflicts of interest that emerge when you pay people to say that so-and-so said someone, and to what extent, I think the people listening to this would say, ‘oh well if there’s a, you know, a testimony from an informant, there has to be some like recorded proof’ that they’re wearing a wire or there’s some sort of cooperating evidence, that it can’t just be the word of some random guy who’s getting paid. Can we talk about that and to what extent there’s any kind of third party verification of any of this?
AlexandraNatapoff: Yeah, that’s a good point because I think people are surprised at just how deregulated this arena is. So it’s deregulated in part because we permit law enforcement and the government to use informants, but it’s deregulated in the sense that we don’t impose very stringent requirements on that information, on that testimony, which of course is why it so often leads to wrongful conviction because we don’t put that much pressure on the government to get it right. For the most part, and again this is changing because there have been some very important reforms recently in light of our deeper understanding of just how unreliable this information can be, but for the most part, decades ago the Supreme Court upheld the use of compensated criminal witnesses of informants and they held that it did not violate due process for the government to pay its witnesses and then use their testimony and it decided that defendants were sufficiently protected against lying informants against fabricated information by three things. One is that the government is supposed to disclose what we call impeachment evidence. Evidence, for example, of the deal that the informant is getting. The informant is subject to cross-examination in front of the jury. So the jury will hear questions that the defense is permitted to ask that informant. To test whether the informant might be lying and then the jury in some jurisdictions might be instructed that a compensated criminal witness might have special reliability problems. And if all that happens, the Supreme Court said, then at the end of the day it’s up to the jury to figure it out. And it’s worth thinking about just how little help we give juries in figuring out whether informants are lying. You mentioned a moment ago, you know, is there a requirement for a recording or any kind of corroboration? And for the most part, no. The government is permitted to use an informant and leave it to the jury to work out whether they’re telling the truth or not. Indeed, we often hear from prosecutors admitting that they themselves don’t know whether their informant is lying, but that it’s up to the jury to figure it out. So there’s a kind of punting to the end of the process. And as we know, all too often this leads to wrongful convictions because jurors actually are not as good as we would like and would need them to be to figure it out.
Adam: Which is strange because the information is routinely withheld or given to juries based on notions of relevance and whether or not they’ll be prejudiced. So it seems strange that they would say, ‘oh well this is, you know, leave it to some nebulous jury’ that way no one is really responsible for, you know, a paid liar getting into the courtroom. You write that in addition to this, so this kind of this unseemly subprime market. I want to kind of talk about the economics of this for a second. The system you write quote, “Seasoned snitches often invent pretextual reasons for their cooperation, for example, by claiming that they are disgusted by the defendant’s crime, or that they want justice for the victim. These lessons reinforce to informants the value of being entrepreneurial and going after targets without express government direction.” So basically you have a subprime market of, or rather I should say, second-order market of snitches who will find cases themselves that way they will be way more credible if and when they’re called to testify. Can we talk about this phenomenon? I found this very, very kind of disturbing.
AlexandraNatapoff: So you’re right to call it an unseemly market. These are not one-off deals or niche phenomena. There’s a whole world of understanding, of education, of exchanges, of experiences that constitute this market throughout the American criminal system. It’s built into our law. Every defense attorney, every prosecutor, every judge, every sheriff knows that this is part of the negotiation and therefore people in jails know it. People who are facing criminal charges know it. When people who are experienced criminals are repeat players know it. It infuses the way we do criminal justice. Ironically, it may be that the only people who don’t know this is the jury who ultimately have to decide whether people are telling the truth or not. So as a result of these understandings, informants often understand what it takes to make their information, their evidence or their testimony more valuable to the government and therefore more valuable for them. In other words, triggering greater rewards, greater leniency, greater impunity even to commit their own crimes. The more valuable an informant is the more rewards they’re likely to get from the government. And everyone understands this and one of the phenomena that we’ve seen in the jailhouse informant context, in particular, is this kind of quite sophisticated entrepreneurial creation of the right kind of testimony. Seasoned jailhouse informants understand that their testimony is most valuable and most persuasive to juries when they can truthfully say that they have not been promised anything. And so there are all these workarounds in the system whereby informants may respond to unstated cues by law enforcement or understand on their own what they are expected to do in order to get information to trade to the government in which nevertheless they can truthfully get on the stand and say that no government official expressly promised them anything but they know, they know they will be rewarded, indeed later on they are rewarded and everyone in the courtroom, except possibly the jury, understands that that is why they did it in the first place and that they will indeed be rewarded in some way. So you talked about the unseemly market, but it’s a black market in many ways. Its workings are secretive and it doesn’t disclose its own workings at the most important moment, which is, you know when we’re deciding whether to convict somebody.
Adam: If something is later revealed that a jailhouse informant says can be proven as objectively false. For example, they will say, they said, ‘ohI overheard someone say they were in Cleveland’ and then later they find out they were actually in Seattle. Like something that sort of objectively can be proven to be a falsehood, something they could not have possibly overheard or witnessed. Is there any sort of punishment for that or is it kind of like a, you can just make up whatever you want and there’s no real recourse for that?
AlexandraNatapoff: So two things to note about that. One of the misconceptions that people might have is that if a jailhouse informant later is found to have lied, then the defendant who was convicted based on that false testimony would be exonerated. But that is far from automatic. It is very, very difficult to get that information back into court. There are many barriers. So it turns out that the exonerations that we do have and the wrongful convictions we know about are likely just the tip of the iceberg in cases that managed to sort of thread that very, very difficult needle based on, for example, an informant or newly discovered evidence. It’s very, very hard. And moreover, as you point out, it’s very rare for informants to be punished. In other words, there’s almost no downside to lying.
Adam: Right That’s what I’m thinking. You basically, it’s an open market just to bullshit and there’s no real downside to any of it.
AlexandraNatapoff: So the most common downside is if the government figures out that you lied, you might not get your deal.
Adam: Oh okay, right.
AlexandraNatapoff: So you’re back to square one. You’re in exactly the same position you were in before you became an informant and before you lied. Perjury prosecutions for lying informants are extraordinarily rare. It’s hard to think of more than a handful of instances. And the reason is, as we’ve been discussing, these are not one-off deals. This is a market. And so it’s well understood that prosecutors, if they turn around and prosecute their own informants, it will be hard for them to recruit the next one. They will not be seen as good dealmakers for the potential informants coming later. And there are strong disincentives for the government to do that. They rely on informants, they want that kind of entrepreneurial quality. It gets them evidence, good or bad.
Adam: It also could taint any of the other cases this informant testified on. Right.
AlexandraNatapoff: And there are also, as you say, there are institutional reasons why the government might not want to prosecute its own informants. Not only because it would disrupt its own market for information, but also because it would create a record of its own potential carelessness, perhaps it did, as we have seen in so many cases, so many instances where the government did not disclose everything that it was supposed to disclose to the defendant and if the government turns on its own informants, that’s kind of opening up a window on its own practices that in an adversarial system there are very strong disincentives to do.
Adam: So let’s talk about reform then. Obviously this isn’t the first time this conversation’s happened. I know that in legal academia this has been an issue for a long time. Obviously you’re one of the leading experts on attempts to reform this. I know Connecticut just passed a law, as you mentioned, that attempts to curb some of the misuses and abuses here. Can we talk about this law? What is good about it and what are some of the things that can be strengthened and what does this portend for other states potentially moving forward?
AlexandraNatapoff: So it’s actually been a really exciting decade for informant reform. 20 years ago, no one was talking about this question. It was just a subrosa black market, as you put it, an unseemly black market of information. There was very little, not just regulation, but attention to the problem. And it’s really been broken open as an issue in the last 10 to 15 years in large part, if not exclusively, because of the innocence movement and the recognition of just how often compensated criminal witnesses lead to wrongful convictions. Although for other reasons as well. So you mentioned Connecticut, Connecticut, just, it was in July, just passed wonderful, important new reform legislation that requires more transparency with respect to informants. So the government is now in Connecticut, the government is required now to keep, to create, keep, and then disclose more information about jailhouse informants that it uses. And then Connecticut also created a mandatory pretrial reliability hearing in rape and murder cases. And let me just say why that’s so important. So one of the challenges here is that we’re relying so heavily, at the end of the day, on jurors who are not experts in criminal justice, who are not, you don’t have no reason to understand, you know, what the incentives for lying are. They may never have seen a trial, they may never have seen anyone be cross-examined. And in these very serious cases, Connecticut created a requirement that judges essentially pre-screen informants in rape and murder cases. And this is important for two reasons. One is that rape and murder cases, because they’re so high profile and so serious, the potential rewards for informants can be very high. And so there’s just profound incentives for informants to be especially entrepreneurial in this arena. Often people will know that a defendant has been charged with a very serious offense. It’s in the newspaper. Informants famously scour newspapers and court records to get information. And so it’s a very high-risk space for informants to engage in fabrication and collusion. So that explains in part why Connecticut singled out these particular cases. Although, I have written and advocated in the past that reliability hearings should be available in all cases involving a compensated criminal witness, that that rape and murder cases are just the most extreme example. But in every case we should be worried that these informants, you know, have these incentives. And then what these reliability hearings do is they permit judges who are experienced courtroom players, who understand the system to put the government to its burden of showing why any jury should be able to hear these witnesses in the first place. And judges can look, for example, at the rewards that might be forthcoming or that have been promised. An informant’s history, what their incentives to fabricate might be, testimony that they’ve provided in previous cases. Many of these are repeat players and judges are in a particularly good position to evaluate that kind of information to decide that an informant is so unreliable that they should not be permitted to testify at all. And as you pointed out a few moments ago, we do that with evidence all the time. Judges are always screening evidence, they screen documents, they screen experts, they screen everything and it’s a way of bringing informants into the mainstream criminal justice regulation to say, you know what? This is particularly unreliable evidence. We should treat it the way we treat all evidence, which is to give the judge tools to take a look at it.
Adam: Is there any group people should check out maybe online or sort of follow up on this?
AlexandraNatapoff: There’s wonderful litigation and legislation going on all across the country. I keep track of a lot of it on my blog Snitching.org it’s an educational website and folks who are interested in reform efforts, Snitching.org and there’s a legislation section which lists all the new reforms and bills and efforts all over the country and in over a dozen states. It also keeps track of new litigation, important cases that are being filed and litigated and then major news stories, major revelatory news stories on the blog section for people who are interested and so that people can understand the scope of this issue. Just how many aspects of the criminal system it affects. The Innocence Project in New York is doing wonderful work in this space so you can check out InnocenceProject.org. And the National Registry of Exonerations which is based here at UC Irvine keeps track of all the wrongful convictions around the country but in particular ones that are based on informant use and if folks want to look up the cases, the wrongful convictions that have been affected by the use of informants they can look at the registry.
Adam: Professor, thank you so much for joining us. This was fantastic.
AlexandraNatapoff: Thanks so much for having me.
Adam: Thank you to our guest Professor Alexandra Natapoff. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always, you can like, rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Cassi Feldman. I am your host Adam Johnson. Thank you so much. We’ll see you next week.
The jail in East Baton Rouge, Louisiana, has suffered a string of fatalities in recent years. But last month residents learned that the death toll was even higher than they knew. According to data obtained by the Promise of Justice Initiative, a Louisiana-based criminal justice group, 16 men have died under the care of the East Baton Rouge Parish Prison, the local jail, since 2017. Activists are concerned about the number of fatalities, and say the sheriff’s office failed to announce them to the public.
More than 40 prisoners have died in custody since 2012 under the watch of Sheriff Sid Gautreaux III, who took office in 2007.
The sheriff did not respond to an interview request from The Appeal, but in the past, Gautreaux’s office has largely blamed the death toll on healthcare contractors, inadequate jail facilities, and the prisoners themselves.
“The majority of deaths that occur at EBRPP [East Baton Rouge Parish Prison] have been a result of poor health and pre-existing conditions prior to entering the prison,” the sheriff’s office said after the East Baton Rouge Parish Prison Reform Coalition voiced its concerns at a rally. “In addition to having poor health and pre-existing conditions, a large portion of the prison population suffers from drug addiction and the effects of prolonged drug use.”
But two Democrats who are running for Gautreaux’s seat in an election this Saturday say they could do better if given the chance. If none of the candidates receive more than 50 percent of the vote in that race, a runoff will be held in November.
Mark Milligan, a retired police officer who served for over two decades and was born and raised in East Baton Rouge, is one of the challengers. “When you put someone in handcuffs, from that moment on, you’re responsible for them,” Milligan told The Appeal. “You’re not supposed to get the luxury of determining who’s going to live and who’s going to die.”
Though the East Baton Rouge Parish owns the jail, the facility and carceral policy in the parish are the domain of the sheriff’s office, and decisions about who gets incarcerated and how they are subsequently treated are made by the sheriff himself.
In any election, it’s more difficult to unseat an incumbent than beat a challenger, and sheriffs in particular tend to have a long shelf life. A sheriff’s powers are particularly potent in Louisiana, where the state’s Constitution calls the position a parish’s “chief law enforcement officer.”
Gautreaux was first elected as a Democrat but switched parties in in 2011, when he ran as a Republican. That year he was challenged by Milligan, who won 27 percent of the vote to Gautreaux’s 73. This year is Milligan’s third run for sheriff, but he thinks that the parish’s changing demographics—and its disillusionment over Gautreaux’s handling of the jail—have given him an advantage.
Milligan told The Appeal that jail deaths are preventable, a view also held by the Promise of Justice Initiative (PJI), which last summer released a report about the East Baton Rouge jail’s high death toll. The PJI report suggested ways in which jail conditions could be improved: providing adequate medical and health services, having enough staff trained in suicide prevention, reducing the number of prisoners by limiting pretrial detention, and encouraging greater transparency from jail officials.
The jail’s warden said in a statement to The Appeal that the number of people who cycle through the jail ranges from 12,000 to more than 15,000 per year, and that deaths are below the national average, though advocates dispute that assertion. The warden says the jail now has more than 22 rehabilitative programs for prisoners and reiterated that the sheriff is responsible for security at the prison and for ensuring that prisoners have access to medical care, but does not oversee the care itself.
“The Sheriff does not employ nor supervise the medical staff,” the warden wrote. “The Sheriff’s office has no authority over decisions made by the medical department.” Before 2017, the city oversaw healthcare for the jail. Since then, a Georgia-based company called CorrectHealth has provided its healthcare. CorrectHealth was not immediately available for comment.
The warden declined to address advocates’ assertion that deaths were hidden from the public, but said that the jail reports prisoner deaths to the Bureau of Justice Statistics each year.
Gautreaux’s opponents in the sheriff’s race say the measures the jail has taken do little to address the systemic issues behind the deaths.Milligan believes the parish’s poor jail conditions stem in part from overcrowding and can be addressed through policing reform. East Baton Rouge jails people at a rate of 381 for every 100,000 residents—over 100 more people than the national average—and nearly 90 percent of those incarcerated are simply waiting for their cases to be heard or resolved.
“Any misdemeanor charge that does not fall under a violent act should be issued a summons,” Milligan said. “We should be putting violent offenders in [jail], but instead we’re putting [in] every offender that comes along.”
Charles Jean Jr., the other Democratic contender, supports the guidelines proposed by the PJI report. Like Milligan, he backs diversion programs for nonviolent offenders, more focus on mental health needs, and greater transparency from the jail.
To tackle overcrowding, Jean has proposed limiting cash bail, and pointed out that most of the men who have died in the jail were never convicted of crimes. “We need to focus on diversion programs,” Jean said. “The system is screwed up enough. Let’s not screw people up more by putting them in a machine that’s going to pick them up and eat them.”
Jean has lived in East Baton Rouge since the early ’90s and works in healthcare as a quality assurance manager. He spent six years as a campus police officer for Baton Rouge Community College but has never worked in municipal law enforcement. He isn’t daunted by that. “With all respect to the acting sheriff, I couldn’t do worse,” he said, citing Gautreaux’s record of “horrible prison standards, safety issues, deaths.”
Both Milligan and Jean have vowed to end the jail’s 287(g) agreement with ICE—which Gautreaux began in 2017—should they be elected. The agreement is essentially a partnership between local law enforcement and federal immigration officials to hand off undocumented immigrants after they are arrested.
“I believe that removing ICE from the jail would be better for all,” Jean said. “There is no legal obligation to help enforce federal immigration laws.”
One key difference between the two challengers is their stance on whether to build a jail to replace the current building. Jean supports the idea, pushing for a smaller and safer facility, while Milligan believes that a new jail would be a waste of money and do little to help prisoners.
Milligan thinks the parish would be better off repairing the existing jail. “I’m not interested in charging the taxpayers for a new prison,” he said. “I believe we can rehab what we have.”
Though it was built over five decades ago, the East Baton Rouge Parish Prison has not been significantly updated since the late 1980s and has a host of structural issues. Some areas do not have enough surveillance cameras, and jail administration has said the ceilings are too low to install more.In May 2018, the jail closed three of its wings because of safety concerns for both guards and prisoners.
Gautreaux has indicated that he feels hamstrung by the jail’s problems and its lack of funding. “I wish I wasn’t even in the prison business to tell the truth,” he said at an East Baton Rouge Metropolitan Council meeting last spring. “There’s so much that we need out there.”
Finding funds either to update or replace the jail will prove challenging for whoever is elected; for several years voters have rejected tax proposals that would go toward the facility. But Milligan and Jean said that Gautreaux has failed to adequately appeal to voters, and that doing so could convince the parish to devote more funds to the jail and the people in its care.
Activists in East Baton Rouge have been hesitant to endorse either of the Democratic challengers but say a new direction is badly needed. “A new sheriff with a different mindset would make amazing changes,” said Reverend Alexis Anderson, a member of the East Baton Rouge Parish Prison Reform Coalition. “We have nowhere but up to go.”
In December, in an effort to divert people with mental health needs from the jail, East Baton Rouge voters approved a property tax to fund a new mental health crisis center to take in those who need emergency treatment. The center, which is scheduled to open next spring, aims to have 30 beds for relatively short-term stays, said Kathy Kliebert, the board chairperson for the organization managing the center. She thinks the center’s stabilization services will prevent more jail deaths.
Activists, however, are wary of the center, concerned that it will have too close a relationship with parish law enforcement. “I don’t see that center truthfully being the solution, because it was designed to run straight through the criminal justice system,” Reverend Anderson said. Sheriff Gautreaux serves on the center’s board.
David Utter, a lawyer representing families who have lost loved ones at the jail, sees this weekend’s election as a decisive moment for the jail. “There are many things that the sheriff—whoever it is—can do to make that jail safer for people,” he said. The sheriff’s office, by way of the warden, could decide to end the practice of solitary confinement, for instance, which has been shown to inflict trauma and increase the risk of suicide.
William Claiborne, another attorney involved in lawsuits against the jail, echoed those concerns. “Right now, there are mentally ill people being housed [in the jail] who we have no confidence are receiving the care they need,” he said. “Any of those individuals could suffer great harm today, tomorrow or next week, because [jail officials] just keep doing the same thing, which is ignoring the needs of these people and ignoring the reality that the East Baton Rouge Parish Prison is deadly.”
On October 8, the Oklahoma Pardon and Parole Board will hold a commutation hearing to decide whether to release Tondalao Hall, a 35-year-old mother of three who has spent 15 years behind bars under the state’s “failure to protect” law, which held her responsible for abuse inflicted on two of her children by their father.
In 2006, Robert Braxton pleaded guilty to abusing his children, including fracturing the ribs and femur of both his toddler son and his 3-month-old daughter. He was released that day, given two years time served plus eight years of probation. Hall, who was 20 at the time of her arrest, entered a “blind plea” of guilty—without a deal for her sentence—on the advice of her public defender. The judge, arguing that she lied by not testifying more forcefully against Braxton, sentenced her to 30 years in prison.
The case has received national attention during Hall’s several attempts at commutation. She first tried in 2015, and made it to the second round of the two-step hearing process, where she was denied. Last year, she was denied before making it to the second round.
Still, advocates and Hall’s attorney, Megan Lambert of ACLU of Oklahoma, are confident that her chances have improved. For one thing, three of five parole board members are new since Hall’s last attempt, and were appointed by a governor who has expressed a desire to increase the number of parole requests that are granted. The board voted unanimously for Hall to move to the second round, in which she will attend a hearing via video conferencing. She will speak to the board along with her attorney and the instructor who helped her attain her cosmetology license in prison.
Hall’s advocates have another reason for optimism: After a letter-writing campaign by local advocacy organization Project Blackbird resulted in more than 800 letters to Oklahoma County District Attorney David Prater, Prater wrote a letter of support to the parole board, explicitly advocating for Hall’s commutation, the first time an Oklahoma district attorney has done so.
“These are the most green lights that she’s gotten,” said Candace Liger, an organizer with Project Blackbird who has been advocating for Hall since her first attempt at commutation.
The DA made clear, though, in his letter, that he doesn’t think the prosecution or the judge erred in Hall’s case. He said that Hall’s testimony as a witness against Braxton was inconsistent with what she had told prosecutors, and quoted a letter Hall wrote to the judge saying “Lying led me to prison.”
Angela Beatty, a YWCA domestic violence advocate who provided expert witness testimony in Hall’s post-conviction application, said that her case highlights a common problem in Oklahoma, which has the highest incarceration rate in the nation and incarcerates women at almost double the national rate. A 2014 study by the University of Oklahoma found that nearly half of the inmates surveyed grew up with a violent father and that more than 66 percent had a partner who physically abused them in the year prior to their incarceration. In a notarized declaration, Hall describes having been physically and psychologically abused by Braxton. “I never knew what mood he would wake up in,” she wrote. “It was like living with Jekyll and Hyde.” Braxton’s attorney could not immediately be reached for comment.
Beatty said the way Hall’s case was handled was inconsistent with best practices for handling victims of domestic violence.
“This is someone who has experienced recurring abuse from this person who has access to her, is threatening her, and then is glaring at her on the stand—now, we talk about things like emotional safety, and work with clients to prepare them to testify, because that is a traumatic experience,” Beatty said. “Understandably she was in fear of her life.”
Indeed, during the trials of Braxton and Hall, they were transported from jail to the courthouse together, and Braxton was permitted to send letters to Hall throughout the two years leading up to their trials. In her declaration, Hall wrote:
We were transported to the courthouse together. He would threaten me and berate me about my decision to testify. He called me a “bitch” and teased me, saying “What can you tell? You think it’s gonna help you?” I would arrive at the courthouse shaking and in tears. I had to make a complaint before we were finally transported separately. Even when we arrived in different vans, we were still placed in holding cells right next to one another at the courthouse. He asked me why I was testifying against him and threatened to “kick my ass” because of it. I felt terrified and sick to my stomach. I could never get away from him.
Lambert said that Hall did not lie on the witness stand—rather, she was prohibited from testifying about Braxton’s abuse of her because the prosecution failed to file a required notice informing the defense of the crimes the prosecution planned to introduce into evidence. Lambert said when she asked Hall about the letter she wrote apologizing to the judge for lying, Hall said she didn’t understand why she had been cut off from testifying and thought it was her fault she was never able to testify to the full extent of Braxton’s abuse. “It shows how little [the prosecution] understood the facts of the case,” Lambert said. “In their minds, Toni and Robert were truly co-defendants, but in fact, Toni was another victim of his abuse.”
If Hall does not receive commutation, she will not be able to apply again for three years. Still, an application for post-conviction relief is pending, Lambert said, which they will pursue if her commutation is denied. But in that hearing, the judge who first sentenced Hall would be the presiding judge.
Each time Larry cashes the paycheck he earns as a nurse’s assistant at a New York City hospital, he feels like he’s being forced to leave much-needed money on the table. The 42-year-old makes roughly $32,000 in base annual salary, but says he would earn an additional $50,000 if he could pass the criminal background check required to work as a certified emergency room nurse.
In 1994, when Larry was 17, he pleaded guilty to attempted felony criminal sale of a controlled substance, for steering an undercover NYPD officer to a dealer selling crack cocaine. He was sentenced to five years of probation. While still on probation, Larry was arrested and convicted of misdemeanor drug possession. He was sentenced to time served and has managed to stay out of trouble since. But the felony and misdemeanor convictions remain on Larry’s record and have stifled his ability to advance in healthcare or start a new career.
“I always wanted to be a police officer,” Larry, who asked to use a different name to avoid publicly sharing his arrest record, told The Appeal. “But being that I had so many things over my head, as far as the felony and stuff like that, I knew that was out of the question.”
With the help of the Legal Aid Society of New York City, Larry sealed his felony conviction in June under a new state law that allows people who have avoided crime for 10 years to seal up to two previous criminal convictions. But due to an error in the court’s order that sealed his record, Larry’s misdemeanor conviction remained visible on the background check as of September. That revelation has put his potential promotion on hold, he said.
“It actually made me want to give up,” said Larry, who is married and has five children. “But the thing is, I know that by giving up I’m losing hope, and I’m not gonna be able to provide for my family and my kids.”
New York’s state legislature attempted to ease life for Larry and nearly 600,000 like him when it passed a record-sealing measure under legislation enacted in 2017. New Yorkers with criminal records were eligible to have up to two nonviolent misdemeanors, or one nonsexual felony and one misdemeanor, sealed from public view in most background checks. But as of Aug. 31, just 1,758 people had their records sealed since it took effect two years ago. Advocates blame the low participation on the cumbersome record sealing process, as well as the state’s failure to adequately publicize the law and provide resources to assist people through the process.
Even those whose records are sealed may have inadvertent disclosures, as Larry did, or find that the sealing is insufficient because it does not completely lift the cloud of criminal conviction, unlike an expungement, which usually involves destroying all publicly available records of the offense.
That’s why most people’s criminal records should be expunged automatically after they have served their sentences, advocates say. When a record is expunged, it no longer appears in background searches and people can legally deny past criminal involvement when asked.
“I think it should be done easier,” Larry explained. “It should be a law that if a person stays out of trouble for a certain amount of time, it automatically can get sealed. Going through this process helps, but it takes so long.”
Advocates agree and are increasingly pushing for expungement rather than record sealing. “We have huge numbers of people in poverty who have arrests who are basically disenfranchised from working [and] participating in regular activities,” Emma Goodman, a staff lawyer at the Legal Aid Society who leads the organization’s Case Closed Project and who represents Larry, told The Appeal. “Until we actually fix that problem, and address the fact that we’ve been incarcerating more than a quarter of our population for decades, there’s going to continue to be a huge gap in what people are able to achieve.”
Nearly 1 in 3 American adults has a prior arrest or criminal conviction on their record, and many face barriers to gainful employment and upward mobility as a result. According to the Prison Policy Initiative, formerly incarcerated people had an unemployment rate of over27 percent in 2008, compared with a jobless rate of 5.8 percent for the general public. In 2015, New York City“banned the box” on private employment applications, barring employers from asking about a job seeker’s criminal history—and the state has removed the question from public employment and university applications—part of a larger national movement in which 35 states and 150 cities and counties have done the same, according to the National Employment Law Project. But the laws don’t prevent employers from running a criminal background check before extending a job offer.
If records are sealed, most applicants can pass a standard background check, but sometimes clerical errors can cause some offenses to slip through the sealing process. Sealing criminal records is like putting your documents into a Ziploc bag, explained LaTorie Marshall, director of programs for Cage Free Repair, a national nonprofit that helps people expunge marijuana-related offenses. It may blur certain details from public view, but they are still visible upon closer inspection or by certain parties.
“In some places, when people are older, they can’t live in a senior assisted living place because they have a record,” said Marshall. She co-founded National Expungement Week, a series of clinics staffed by pro bono attorneys who help people take advantage of local expungement and record-sealing opportunities. “They can’t even die in peace because the state won’t expunge their records, even though they’ve been out for 40-plus years. How is that fair?”
State lawmakers built on the 2017 legislation in 2019 by passing a marijuana decriminalization package that will allow thousands of New Yorkers to have their drug convictions automatically expunged by the summer of 2020. But most other offenses eligible for sealing require people to make a case for themselves to the court in which they were sentenced, said Judy Whiting, general counsel for the Community Service Society of New York, which provides help with the process.
“People have to bare their souls to get relief that I and many other people think should be given them as a matter of course,” Whiting told The Appeal. “We have an obligation to get people what they’re telling us they need, and they need expungement.”
In recent years, state legislatures have expanded record expungement laws in more than a dozen states and local jurisdictions, including California,Massachusetts,Indiana,Oregon, Oklahoma, andUtah. In September, the district attorney for Salt Lake County, Utah,announced plans to reduce the criminal convictions of 12,300 people—7,600 misdemeanor cases and 6,200 third-degree felony cases will be downgraded to a lesser class. As a result, many people will become immediately eligible, and others will become eligible within a few years, to have their records expunged. And a proposal in the Connecticut General Assembly known as the Clean Slate Act would allow for automatic expungement of misdemeanor offenses three years after completion of the sentence for the person’s most recent misdemeanor offense, and for some felony offenses five years after completing the sentence.
But the record-sealing measure in New York, where there is no expungement law, isn’t reaching enough people, according to Legal Aid, which is representing approximately 300 clients currently working through sealing-related issues.In June, lawmakers in the state Assembly and Senate introduced measures that would greatly expand eligibility for record sealing, Goodman said. But it’s too early to know exactly how many more might qualify for relief, she said.
Larry told The Appeal that if the state allowed him to expunge his record, he would revisit his dream of becoming a police officer. As of now, his sealed felony conviction would still show up on a federal criminal background check, which all police departments require recruits to undergo. Even though his record was the result of a police sting, he said he never grew to resent police officers.
“I learned to forgive because I want someone to forgive me, to give me a second chance,” he said. “I can’t hold that grudge for the rest of my life.”
Protesters gathered recently outside a campaign event for San Francisco district attorney candidate Suzy Loftus, holding signs with photographs of people killed by police while Loftus served as president of the San Francisco Police Commission. There were 15 fatal police shootings during that era, according to SFPD data, 10 of which involved people of color.
“Suzy Loftus has blood on her hands,” read one of the signs. Other signs highlighted her relationship with former police Chief Greg Suhr, who was on the host committee for the event. Ed Lee, then mayor, asked Suhr to resign in 2016 after the string of police shootings and a scandal over racist and homophobic text messages sent by police. Activists have condemned Loftus’s association with him and his support of her candidacy.
“He’s the epitome of what we don’t want law enforcement to be,” said Cat Brooks, executive director of Justice Teams Network, an anti-police-violence advocacy group. “There is no way that she does not know that. So that means she knows how the community feels about it and doesn’t care.”
Brooks supports one of Loftus’s opponents, public defender Chesa Boudin, who is also backed by Philadelphia District Attorney Larry Krasner and Cook County State’s Attorney Kim Foxx. Loftus has her own prominent endorsements, including that of Mayor London Breed. On Friday, a day after the early resignation of District Attorney George Gascón, Breed named Loftus interim district attorney, despite criticism that it could prejudice voters.
Loftus brushed off concerns about Suhr’s support. “My record on police reform is unassailable,” she told The Appeal via email. “I won’t allow my opponents to use Greg Suhr as a tool to divide us. San Franciscans are tired of the ‘us versus them’ rhetoric.”
Loftus, who served as policy chief for U.S. Senator Kamala Harris when she was San Francisco DA, has promised that, if elected, police officers will be independently investigated and held accountable for misconduct. She told The Appeal that as president of the police commission from 2012 to 2016, she “oversaw the termination of more officers accused of serious misconduct than ever before.” Five officers were terminated and 12 received the penalty of “termination held in abeyance,” according to police commission disciplinary reports. None of the officers were terminated for use of force incidents, according to the reports.
Advocates say Loftus could have taken a bolder stance against police violence and the overpolicing of people of color.
“If we’re talking about ending mass incarceration, the DAs and the prosecutors are where the power lies,” said Brooks. “It’s really, really important who we have in those seats.”
In 2015, Mario Woods, 26, had a knife at his side and his back to a wall when, videosshow, about nine police officers surrounded him in a semicircle. They yelled for him to drop the knife, and shot him with bean bag rounds and rubber bullets. Woods began to walk away and five officers started shooting with their rifles, hitting him 20 times.
Suhr defended the officers. “It’s a tragic loss anytime somebody dies,” he said at the time, according to SFGate.com. “We never want to do that. But this is all they could do. I really don’t know how much more you can make it plain to a wanted felon that he should drop the knife.”
Woods’s death sparked widespread demonstrations. A police department internal investigation cleared the officers of any wrongdoing and Gascón did not charge them. Woods’s mother filed a wrongful death suit, which the city settled this year for $400,000.
After Woods’s death, Suhr and Loftus, then president of the police commission, co-wrote a letter to then-Mayor Lee about their plans to change departmental policies. But nowhere in the letter did they discuss immediate discipline or termination for officers who use excessive force.
“Immediately following the Mario Woods incident,” they wrote, the commission, police department, and others, had been “collaborating on a plan to fundamentally re-engineer the way police officers use force.”
Among other changes, the department’s new use-of-force policy prioritized de-escalation, barred the use of certain types of control holds, and prohibited police from shooting at moving vehicles in almost all circumstances. “We changed the policy to reflect a community standard that required that minimal force be used,” Loftus said in an email, adding that use of force has declined by 30 percent since it was adopted.
But John Crew, former police practices project director with the ACLU of Northern California, says officers had already been ordered to use de-escalation techniques in a departmental bulletin issued by Suhr in April 2015. It required “officers to create time, distance, and establish a rapport with people in crisis who are only a danger to themselves.” Lack of enforcement, not lack of policy, led to Woods’s death, said Crew.
“If officers are not following the policy, they need to be fired or this will happen again,” Crew said. “What happened post-Mario Woods was an emphasis completely on changing the policy and never confronting the reality that it was already against the policy.”
When asked by The Appeal why she didn’t publicly call for the firing of officers involved in fatal shootings or criminal charges against them, Loftus said it would have been inappropriate.
“As a police commissioner, you serve in a quasi judicial role and conduct evidentiary hearings in discipline matters,” she said in an email. “As a result, you must remain neutral regarding cases that could come before you and refrain from making comments on the specifics of the cases.”
Yet, advocates say, there were other opportunities to intervene. In 2016, state Senator Mark Leno proposed a police transparency bill, which Lofus took no position on. His bill allowed for public access to certain records related to police use of force and misconduct. DA Gascón and Breed, who was then president of the Board of Supervisors, supported Leno’s bill, which died in committee.
“Any claim during her DA campaign now suggesting she wants to bring more transparency to the SF criminal justice system has to be considered in light of her failure to actually back greater transparency in 2016 when that Leno bill was pending,” Crew wrote in an email to The Appeal.
In February 2016, the mayor’s office and police department announced a partnership with the U.S. Department of Justice’s COPS (Community Oriented Policing Services) Office, which studies police departments and recommends reforms. The more than 400-page study of the San Francisco Police Department was published in October 2016. Loftus left the police commission in January 2017, and joined the sheriff’s department as assistant chief counsel, her current role.
“We found a department with concerning deficiencies in every operational area assessed: use of force; bias; community policing practices; accountability measures; and recruitment, hiring, and promotion practices,” according to the report.
As of May, the police department had carried out fewer than a quarter of the reforms, out of more than 200 recommendations, according to an evaluation released as part of the agreement between the city and the California Department of Justice.
“I hope to see the fulfillment of each of the recommendations,” Loftus told The Appeal by email. “Given the DOJ’s exit from the process, it is up to SFPD, the Commission, the Board of Supervisors, and the Mayor to ensure the reforms are fully implemented.”
Even Loftus’s critics acknowledge that she had tried to improve the department. But, they say, her efforts ultimately fell short.
“If you’re looking at the angle compared to prior police commissioners, at least she led some reforms,” said Crew. “Unfortunately, compared to what was really needed and the scope of what was needed, it was far too little, far too late.”
Editor’s note: This story was updated with the news of Loftus’s appointment to interim San Francisco D.A.
On Thursday, the sheriff’s department in Madison County, Mississippi, entered into an agreement aimed at ending racially biased policing tactics that prompted a civil rights lawsuit against the majority-white county. Eight named plaintiffs alleged that they were unconstitutionally stopped at pedestrian and vehicle checkpoints that were more prevalent in and around Black communities. During discovery, many other people submitted sworn testimony about similar experiences.
The agreement, which settles the 2017 suit brought by the American Civil Liberties Union of Mississippi and the law firm Simpson Thacher & Bartlett, establishes a consent decree that will change how and when deputies interact with pedestrians and motorists at checkpoints. The consent decree prohibits deputies from using race and other demographics as a basis for a stop “unless such characteristics are part of a specific subject description,” and requires the sheriff’s department to collect and maintain racial data for every checkpoint and pedestrian stop.
The department’s policy manuals will be rewritten to reflect the changes, and all deputies will undergo training that includes a focus on “cultural diversity,” “police-citizen interaction” and “implicit bias,” according to court documents that spell out the agreement.Within 30 days, Madison County must also establish a five-member community advisory board that will accept residents’ complaints about the sheriff’s department and make recommendations to the sheriff regarding consent decree compliance.
The ACLU said an agreement of this kind is rare, particularly in the Deep South, where biased policing practices and other misconduct that might spur reform in big cities often float under the radar. The Madison County consent decree has no involvement from the U.S. Department of Justice which, under the Trump administration, limited the agency’s involvement in such agreements.
“It’s significant that we have a robust settlement that is going to be overseen by a federal court and enforceable in federal court, challenging the practices that had really victimized the Black community in Madison County,” Ezekiel Edwards, director of the ACLU’s Criminal Law Reform Project, told The Appeal. “We hope that this not only improves the lives of the residents … but also is both a model and a maybe a warning bell to other police departments throughout the South.”
In a statement issued Thursday evening, Sheriff Randy Tucker said the lawsuit had taken a toll on his department. “Numerous depositions were taken of department employees, thousands of reports and other documents were provided and man hours lost that could have and should have been utilized protecting the citizens of Madison County,” he wrote. After successfully fending off a class action lawsuit, which a judge denied in January, his office decided to settle, Tucker wrote. “The Madison County Sheriff’s Department will continue to serve all citizens of Madison County through leadership and accountability as we always have.”
As a part of the agreement, neither Tucker nor any sheriff’s department employee have admitted to engaging in “unconstitutional, illegal, or otherwise improper conduct,” the agreement states.
Judge Carlton Reeves signed off on the consent decree Thursday afternoon in the United States District Court for the Southern District of Mississippi in Jackson. The settlement includes monetary payments to be made to the plaintiffs, but the ACLU declined to disclose how much each plaintiff would be paid, citing a confidentiality agreement.
The consent decree will remain in effect for four years and will be monitored by a federal judge, as well as by the community oversight board and plaintiffs’ attorneys, according to the agreement.
The Madison County Sheriff’s Department serves an area of about 105,000 people—approximately 57 percent white and 38 percent Black—and is located in Canton, 26 miles north of Jackson, the state capital. The county has the highest per capita income in Mississippi.
According to the lawsuit, data collected from the sheriff’s department shows that between 2012 and 2017, Black residents were subject to 77 percent of all arrests and 72 percent of all citations issued by Madison County deputies. The department focused its enforcement “where Black people live, work, gather and pray,” plaintiffs alleged in the lawsuit, and its deputies “terrorize the community like a gang would.”
Unconstitutional and biased policing was not limited to pedestrian and vehicle stops, the suit states. Lawrence Blackmon, one of the plaintiffs, said deputies arrived at his grandmother’s home in Canton in 2015 and banged loudly on the door, demanding to be let in. When Blackmon asked to see a warrant, the deputies allegedly threatened to break down the door, so he relented and let them in. Officers with their guns drawn then tackled Blackmon, he said, handcuffed him and searched the entire residence. When the search was done, Blackmon was released from the handcuffs and was not charged with a crime.
“We are hopeful that compliance with the agreement will assure a culture change within the Madison County Sheriff’s Department, and that impact will be felt within the community within a short amount of time,” said Blackmon, who is also a local attorney, in a phone interview Thursday.
Though the settlement agreement proposes sweeping changes for deputies who patrol Madison County, it does not address residents’ concerns about the Madison County Detention Center, a nearly 400-bed facility housing both pretrial and sentenced prisoners in Canton. In 2018, three detainees died while in custody and soon after being released, including Harvey Hill, a 36-year-old handyman who was arrested and charged with trespassing at the home of a former employer. On May 6, 2018, sheriff’s deputies working in the jail allegedly singled out Hill, restrained, pummeled, and pepper-sprayed him, before tossing him in a cell, where he was found dead the next morning.
“We believe that the ACLU settlement is certainly a step in the right direction, but it is clear that the correctional officers also need to be retrained and evaluated,” Carlos Moore, a Mississippi-based attorney with the Cochran Firm, told The Appeal on Thursday. On behalf of Hill’s family, Moore filed a federal civil rights lawsuit against Tucker and jail guards on Feb. 19.
Edwards said he believes changes required under the consent decree will prompt the sheriff’s department to “use their awesome power of arrest and detention more judiciously and more fairly.”
“The hope would be that that would result in fewer people being detained,” he told The Appeal, “and certainly fewer people being detained simply because of their race or the part of Madison County in which they live.”
In addition to being unique among Western nations in executing people, the U.S. keeps many of its death row prisoners in prolonged solitary confinement, which is known to inflict physical and psychological harm. Today’s guest, Appeal staff reporter Elizabeth Weill-Greenberg, discusses advocates’ push to change that practice in Oklahoma, a state whose notorious H Unit has taken death row conditions to new lows.
AdamJohnson: 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 The Appeal magazine’s main Facebook and Twitter page and as always you can like and subscribe to us on Apple Podcasts.
In addition to being unique among Western nations and executing people, the United States is one of the harshest countries on earth when it comes to the use of solitary confinement. And within the United States many states commit the uniquely American practice of combining both, solitary and putting people to death. Isolating those on death row to solitary confinement for years as people await their execution. In what one activist calls the equivalent of being quote “buried alive.” Today’s guest, Appeal writer Elizabeth Weill-Greenberg, discusses one such state: Oklahoma, whose notorious H Unit has taken pre-execution torture to new punitive lows.
ElizabethWeill-Greenberg: There seems to be this sort of vague justification that people who are sentenced to death must be more violent, more likely to be violent once they’re in prison and there’s absolutely no research that backs that up at all. In fact, any research that has been done demonstrates the opposite.
Adam: Thank you so much for joining us.
ElizabethWeill-Greenberg: Thanks so much for having me.
Adam: So you wrote an excellent piece and titled “Oklahoma’s Death Row Prisoners Are Forced Into Permanent Solitary Confinement. They Are ‘Buried Alive,’ Advocates Say.” You wrote this piece on the H Unit in Oklahoma State Prison and the kind of broader problem of putting death row inmates in solitary confinement leading up to their execution, sort of add an element of gratuitous torture before the state kills people. We put them in solitary confinement, which most countries recognize as being a form of torture, before we kill them. Can you kind of lay out how widespread this practice is and what the nominal reasons for this policy are and what activists say about those nominal reasons?
ElizabethWeill-Greenberg: So it seems to be a pretty widespread practice. My understanding is that solitary confinement, you know, at least since the early nineties has been the default for people who are sentenced to death. In terms of the justifications, that’s a really good question. Um, you know, I was doing some reading about it and there seems to be this sort of vague justification that people who are sentenced to death must be more violent, more likely to be violent once they’re in prison and there’s absolutely no research that backs that up at all. In fact, any research that has been done demonstrates the opposite: that people who are sentenced to death actually tend to be quite compliant in prison and tend to have fewer disciplinary infractions. That being said, of course, is that even if it were that people sentenced to death, we’re more likely to be violent, which again is 100 percent not true, but even if it were true, subjecting them to torture would still be a completely horrific and grotesque thing to do. But again, even the justification that’s sort of given, you know, like I reached out to Oklahoma Department of Corrections many times to ask them to explain their position, to ask if they had any plans to change this policy and they never got back to me. So I was looking around at other stories and I saw that that tended to be a bit of a pattern. Um, so the justification that we sort of know of, which is this idea of dangerousness, it really doesn’t hold up to any type of scrutiny.
Adam: Yeah. And to be clear, both of these practices, both executing people and solitary confinement are very, very rare, if not never seen anywhere in the quote unquote “West.” The US is two outliers in both of these things and certainly an outlier in combining them kind of parlaying are uniquely punitive instances. So both of these things are very rare and together they’re extremely rare. And so presumably the countries that don’t kill people and don’t torture them before they kill them are doing, you know, the society has not crumbled. Right? Cause presumably it is supposed to have some kind of threatening effect. Like it’s supposed to send a message or something or is it just supposed to be a protection for other inmates or the prisoners themselves?
ElizabethWeill-Greenberg: I was speaking with someone from the Death Penalty Information Center, someone who made the point — and I hadn’t thought of it — that each unit was constructed in ‘91 and this is the same time when we see a lot of these supermax prisons being built. And so this is really, you know, part of a time when we see our country stripping people who are incarcerated of just every human right that they have and any type of dignity. I guess I see it more as part of that context of just there’s no punishment that’s ever enough — up to and including torture.
Adam: Right. You have to keep laying it on because the tougher you are, the more serious you take crime and so on.
ElizabethWeill-Greenberg: Exactly. Yeah.
Adam: So when this prison was created in the early nineties and one Amnesty International observer, you write, described the Oklahoma H Unit as quote “the appearance of what amounts to a concrete tomb. These conditions amount to inhuman and degrading treatment.” Can you give our listeners a sense of what the kind of physical spaces for the solitary confinement, what the daily routine looks like? I know it’s difficult to sort of convey the sheer existential horror of solitary confinement, but can we try to sort of give a rough sketch so people really know the stakes about what we’re talking about?
ElizabethWeill-Greenberg: I should say I haven’t visited each unit myself, so my description will come from the interviews that I conducted and what I’ve read about it, and I should also say that I was not able to speak with anyone who is currently in H Unit or who has survived it. But from what was described to me, I think it sounds like a tomb. The size is smaller than a parking space. In your typical cell it’s two concrete bunks, the sink, the toilet, and that’s it. There’s what’s called “the slot” at the bottom of the door and that’s where people are given their meals. That’s also where they’ll put their hands and feet through to be shackled before they leave their cell. And I should also note, I don’t think I put this in the story, but when I was speaking with Megan Lambert from the ACLU of Oklahoma, she made the point to me that for any person who’s on death row who has any type of mobility issues, that actually just the act of being shackled is extraordinarily difficult. Being able to get your hands through the slot and then your feet through the slot, just to be able to leave your cell. And there was absolutely no access to sunlight. There is no access to seeing the outdoors. So it really is as if you walked into your closet right now and you shut the door. It’s pretty much tantamount to that.
Adam: For 23 hours a day. You note that the only time they ever have any human contact is usually during religious services but even that was curtailed in Oklahoma, correct?
ElizabethWeill-Greenberg: Yeah. That wasn’t a pretty heartbreaking piece of this was that up until 2009 people were allowed to participate in group religious services.
Adam: Just to be clear for the listeners, only twice a month.
ElizabethWeill-Greenberg: Yeah, no, thank you. You’re absolutely right. That’s such an important point. And so they were allowed to have these group religious services, like you said, you know, only twice a month, they were still shackled during these services. And there was, the way it was described to me is, there was like a cage, some sort of barrier between the people on death row and the volunteers from the community who had come in. So we’re still talking about really horrific degrading circumstances, but they were able to speak to each other and to touch each other and hug each other, you know, with things that they were denied at all other times. And then in 2009 the then warden discontinued the program. As far as I can tell, there was no explanation given, at least his memo announcing it, his inner office memo announcing it, which we have a copy of, didn’t say why he had discontinued it. And that seems to be a pretty clear violation of federal law that pretty much says if you are going to impede with an incarcerated person’s right to exercise their religion, there has to be a compelling government interest to do so. And as far as I can tell, that has never been shared with the public.
Adam: So how common is this? How many States do this? Do we have a rough estimate?
ElizabethWeill-Greenberg: It definitely seems that the majority of states that still have the death penalty, that people live in very similar conditions, that they are in solitary confinement. That being said, there are a handful of states that have moved away from the practice which in the letter to the Oklahoma Department of Corrections that was sent from the ACLU of Oklahoma, the National ACLU and the Prison Law Office, and they highlight these other states. Maybe the most interesting one actually is Missouri because Missouri does not have a death row at all. They just housed people sentenced to death with everybody else. And your, the, the type of housing that you’re provided is based on those individual assessments that they give everybody. And then they know that North Carolina has changed its practices so now they get some time out of their cell, they get some time with other people. They have access to work assignments, programs, group exercise, things like that. So it seems like there are some Department of Corrections that are beginning to move away from this practice.
Adam: Yeah. So the only time you break the monotony of solitary torture is to go do hard labor for 15 cents an hour. So it’s a, yeah, that’s very American story. So your article notes that some lawsuits have kind of moved the needle a little bit in terms of changing policy in response to these lawsuits. There was a 2014 case in particular, Virginia, that had the effect of changing the law in that state. Can you talk about the kind of legal mechanisms to push back against the use of pre-execution torture?
ElizabethWeill-Greenberg: Sure. Absolutely. So in Virginia in 2014 several people on death row filed suit to challenge the policy that had them live in solitary confinement until either their sentence was overturned or until they were killed by the state or died by other reasons or other causes. And after that lawsuit was filed, the Department of Corrections instituted several changes or implemented several changes, I should say, where they can now use a common room for programs, religious services and work. They’re now given contact visits and more time outside for recreation. And, and before this, the conditions were pretty similar to Oklahoma’s H Unit in that they were in their cells for about 23 hours a day. I should note that they could’ve gone further. I mean, they could have disbanded the death row altogether and just assigned them housing the way they would assign housing to any other person incarcerated in the system. But yeah, so that’s what happened in Virginia. There’s also a lawsuit, which is still in litigation in Pennsylvania, over the same issue, permanent solitary confinement. And there’s also a lawsuit active in Louisiana now over, again, permanent solitary confinement for people who are sentenced to death.
Adam: Okay. This does seem to be movement. In the last like ten years or so this has gotten the less common, but it’s still common.
ElizabethWeill-Greenberg: Yeah, I think that’s fair to say and I think it has, you know, it’s interesting, right? It’s the death penalty debate is always a really interesting one to me because it just shows, it just shows how extreme and punishing our culture is. Like, for so long I feel like the debate about the death penalty was execution or life without parole and then we weren’t even really like talking about the conditions and the torture of being on death row.
Adam: Or the fact that it’s even a debate when it’s a settled issue 50 years ago in every other country in the world.
Adam: It’s like when they had the after Zero Dark 30 they’re like “the torture debate.” I’m like, wait a second, I thought we settled this. Why are we still debating this? You know, should we be punching people randomly on the street debate? I don’t know. It seems like that’s an obvious one, a little bit of a chip shot. So moving forward, what are activists in Oklahoma attempting to do? What are the sort of cases making their way through the civil courts, if any, in terms of lawsuits to end this practice and to kind of open up this cement tomb?
ElizabethWeill-Greenberg: I mean I think what’s really exciting about what’s happening in Oklahoma is that the ACLU and others have made it very clear to the Department of Corrections that if you do not voluntarily make these changes then we are going to sue you in federal court. And I think that that’s really exciting to see. I think in large part, for me, because this sort of torture chamber has existed for so long and people have known about it for so long, I mean just the fact that it opened in ‘91 and weeks after it opened, you’ve got Amnesty International contacting DoC to say, ‘hey, this is really going to mess people up. This is really going to hurt people.’ You have the report coming out a few years later in ‘94 saying, ‘yeah, this amounts to,’ you know, I forget what language they use, but ‘cruel and degrading treatment’ or whatever it might be. You’re basically burying people alive, and we’re here in 2019 and nothing’s changed. So I think that that’s really exciting to see that there’s going to be this push to change what’s happening in Oklahoma on the H Unit.
Adam: Oh, well that’s good to hear. Thank you so much for coming on.
ElizabethWeill-Greenberg: Thanks Adam. Thanks for talking with me about this stuff.
Adam: Thank you to our guest Elizabeth Weill-Greenberg. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and, as always, you can rate and subscribe to this podcast on Apple Podcast. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.
The Brooklyn Community Bail Fund announced Friday that it would stop providing bail payments to get people out of jail, explaining that revolving bail funds in New York have become “an escape hatch for a political system that lacked the courage to end money bail.”
The group, the largest community bail fund in the country, has provided approximately $4.7 million to free roughly 4,700 people awaiting trial from New York jails since it launched in 2015. Using a revolving pool of money (bail is returned to the fund by the court system when the case is resolved), the organization has been able to alleviate the harm that being detained pretrial inflicts on people and their families, while advocating the end of cash bail and pretrial detention.
Peter Goldberg, the group’s executive director, told The Appeal that he began to think about changing strategies when New York passed a bail reform package in June that did not end cash bail but instead established regulations for bail funds and effectively codified them as a permanent part of the carceral system.
New York is the only state with a law explicitly regulating bail funds. The recent reform package doubled down on that 2012 law, the Charitable Bail Organizations Act, with an amendment that expanded the ability of bail funds to get people out of jail.
As a result, Goldberg said his group determined that it was no longer working “in tension with the system.”
“This really made it crystal clear that we’re being looked to be a part of the system in perpetuity,” he said, explaining that he fears New York could expand the number of people bail funds assist rather than moving toward eliminating cash bail. In its announcement on Friday, the group said it did not want to “prop up an unjust system.”
Instead, the group says it will continue fighting to end pretrial supervision and mass surveillance. Through its new program, the New York Immigrant Freedom Fund, the staff will also fight to secure the freedom of immigrants from detention.
Bail experts and activists applauded the decision.
“I think it’s a super powerful step,” said Pilar Weiss, director of the National Bail Fund Network, which works with roughly 75 community bail and bond funds across the country. “A bail fund that serves the carceral system is not going to cause it to stop holding people on pretrial detention.”
Bail funds, while serving a critical function, are “temporary Band-Aids,” Weiss said, and the changing political situation in New York necessitates a different approach.
Weiss and other bail experts emphasized that the situation in every jurisdiction is different. Though the Brooklyn Community Bail Fund decided to switch gears because of New York’s bail fund legislation, other funds in the state could decide that simply getting people out of jail and reducing immediate harm is their priority.
The Bronx Freedom Fund, a nonprofit bail fund in the South Bronx, tweeted in support of the Brooklyn fund’s decision but did not respond to requests for comment on how the group would handle bail moving forward.
Outside New York, bail funds are at different stages of the process when it comes to raising awareness of the harms of cash bail, Weiss said. They should individually continue to evaluate how they can provide the most benefits to their communities.
Goldberg agreed. Bail funds, whether in New York or elsewhere, should be introspective about their tactics to make sure that they “are not co-opted and we don’t end up becoming grease in the wheels,” he said.
“We’ve recognized the value that bail funds have intrinsically in getting people free,” Goldberg said. “That is an important thing in and of itself, but bail funds are never going to be the solution to bail. Bail payment is never going to be able to deal with all the people who are locked up.”
All “qualifying death row inmates” will be moved out of their current housing unit and into another unit at Oklahoma State Penitentiary in McAlester within 30 days, according to a Sept. 26 letter from the Oklahoma Department of Corrections to the ACLU of Oklahoma.
As The Appeal reported Wednesday, H Unit, Oklahoma’s death row, currently houses 44 of the state’s 47 death-sentenced prisoners in permanent solitary confinement. In July, several organizations, including the ACLU and the Prison Law Office, sent a letter demanding that the department of corrections cease this practice and house those sentenced to death based on the same criteria as other prisoners.
In his letter, Scott Crow, interim director for the Oklahoma Department of Corrections, vowed to move “qualifying” prisoners out of the unit within a month, though his response does not articulate what criteria will be used to determine who can be transferred. The Oklahoma Department of Corrections could not immediately answer questions from The Appeal seeking clarification.
Crow wrote in the letter that there had been “informal discussions” of the issue within the agency for some time. “This move will significantly change their access to natural light and view of the outdoors,” he wrote. “Furthermore, recreation on A Unit has direct sunlight and outside air in a fenced rather than walled environment where conversation among inmates is unrestricted. We also plan to begin contact visitation upon their relocation consistent with A Unit visiting procedures.”
Corene Kendrick, a staff attorney with the Prison Law Office, told The Appeal via email that this is “welcome news,” but additional details are needed.
“The letter doesn’t explain what ‘qualifying’ means, so we will need to get more information about what the criteria will be,” she wrote. “All of the condemned men should have an opportunity to show that they can be safely housed in more humane conditions where they can sit in a room with other people, or go outside to breathe fresh air, feel the sun’s warmth, and see the sky.”
Since H Unit opened in 1991, Oklahoma’s nearly all death row prisoners have lived in permanent solitary confinement. As The Appeal reported, they spend at least 22 hours a day in their cells, which are smaller than most parking spaces, according to advocates. There are no windows to the outside world. The cells, one Amnesty International delegate wrote in 1994 after visiting the prison, give “the appearance of what amounts to a concrete tomb.”
Exercise, which is supposed to be one hour a day five times a week, occurs in a 20-by-20-foot concrete room with an opaque skylight, according to advocates. During visits, permitted on Fridays and weekends, prisoners and their visitors speak by phone, separated by plexiglass.
Mary, whose brother is on death row in Oklahoma, was pleased to hear about the department’s response, noting in a text to The Appeal that it shows “great progress.” To protect her brother from possible retaliation, The Appeal is not using Mary’s real name.
“My worry is they say qualifying inmates,” she texted. “I hope my brother is one of them.”
In the advocates’ July letter, they also demanded that the department reinstate congregate religious services; then Warden Randall Workman banned these services in 2009.
In the department’s response, Crow wrote, “If the inmates adjust well to the A Unit environment, we will assess their suitability for jobs and congregate religious services.”
Advocates say denying congregate religious services violates the Religious Land Use and Institutionalized Person Act. The federal statute protects prisoners’ “religious exercise.” That right can only be impeded, according to the statute, if the state can show there is a “compelling government interest.” In Workman’s interoffice memo announcing the termination of “group congregation services,” no justification was provided.
“We hope to engage in further discussion with state officials about the criteria they plan to use for housing the men in A Unit, and the issue of the religious services, with the goal that we can avoid litigation,” wrote Kendrick in her email to The Appeal. “The most problematic part of the response is that ODC [Oklahoma Department of Corrections] still considers congregate religious services to be a ‘privilege’ and not the fundamental right that it is.”
Senator Kamala Harris wants you to trust the police. In her new criminal justice reform package, Harris, a 2020 Democratic presidential candidate, focuses on restoring public trust in the police through a series of procedural reforms and accountability measures.
The plan calls for better data collection, setting up a review board for police killings to see what lessons can be learned, and more resources for training, oversight, and professionalization. She also pledges to step up the use of the Department of Justice to bring “pattern and practice” cases against local police departments that violate people’s civil rights, something used heavily by the Obama administration but abandoned under President Trump.
The goal of these reforms is to restore public trust in the police by making police more respectful, professional, law-abiding, and unbiased. That vision is consistent with the reforms articulated by President Barack Obama’s Task Force on 21st Century Policing, released in the wake of the Black Lives Matter movement. This approach argues that the problems with police are about the failure to properly execute their mission. Excessive use of force, racial bias, and unprofessional conduct are inconsistent with proper enforcement of the law and this, in turn, undermines public confidence in police. The implication is that people would quit being upset and protesting if the police just enforced the law properly.
The solution is adherence to “procedural justice,” which is premised on the belief that people feel better about and are more trusting of the police when police take the time to better communicate with the public about why they are taking enforcement action, listen to what the public has to say, and follow proper police procedures.
But what’s missing from the Harris package and procedural justice more generally is any real interrogation of the enhanced scope of policing that has occurred over the last 40 years. The Vera Institute of Justice released adata tool this year that detailed the extent of low-level arrests in the U.S. The organization found that in 2016, police made over 9 million arrests for nonviolent offenses. The target of these arrests are overwhelmingly people of color and poor white people.
The aim of this data exercise, the authors write, is to “reduce the criminal justice system’s footprint—by unlocking key policing data and, in doing so, elevating the narrative of overreliance on arrests and the need for viable alternatives.” This is exactly what’s missing from the Harris plan and the entire procedural justice approach. The problems of policing in America are not just the failure to properly implement the law. There is a significant problem of overpolicing driven by a toxic politics of using criminalization to manage the problems of poor and non-white people.
Proponents of procedural justice argue that reform can be achieved through more training on the use of force, reducing implicit bias, and enhancing communication skills. This can also involve facilitating dialogues between police and the public in the form of community policing, exposing civilians to police training, and encounter sessions in which police and the public share their stories of trauma and racism.
This approach can be seen most clearly in the work of theJustice Collaboratory and theCenter for Policing Equity. They issued areport this month outlining strategies to accomplish this. And according to the authors, this report was influential in shaping the Harris plan. Like Harris’s plan, it emphasizes restoring public trust in the police. The report lays out five action steps: training police in procedural justice, putting more federal money into community policing, collecting and using data to hold police accountable, conducting listening tours in communities to explore past police abuses, and creating a national review board to assess the systemic factors behind improper police violence.
Harris has largely embraced this approach in her calls for more resources for training, community policing, data collection, and oversight.
But that approach misunderstands the roots of the problem. We do not need to give narcotics units implicit bias training and we do not need school police officers to become friendlier. We need to end the war on drugs and instead provide high-quality drug treatment, harm reduction measures, and targeted community investments. We need to completely replace school police with counselors, restorative and transformative justice programs, and more investment in public education. Failing to take on the ever-expanding role and power of police means that even if they are better trained and more professional, they will continue to needlessly criminalize millions of people because of their poverty—a strategy that is at its core a major cause of racial inequality.
It’s worth noting that there are two important attempts at decriminalization in the Harris plan. The first is Harris’s pledge to end the federal prohibition on marijuana, which is a major source of arrests in communities of color. The other is an acknowledgment that police may not be well suited to respond to mental health crisis calls. But this does not go nearly far enough and even these pledges are very thin on details. Harris maintains the entire federal drug prohibition infrastructure under her plan with just a carveout for marijuana. This is hardly the plan to “end the failed war on drugs” that she claims it is. And on mental health, she puts more resources into policing first, while working to improve the availability of mental health services.
This approach stands in stark contrast to a recentreport released by theLeadership Conference on Civil & Human Rights and Civil Rights Corp and signed off on by dozens of national civil rights and social justice organizations. The report, “Vision for Justice 2020 and Beyond,” focuses primarily on reducing the scope and power of policing. It lays out as its primary mission not the restoration of public trust, but instead a program of investing in communities and individuals so that we can substantially scale back our use of police and prisons to manage social problems. It proposes concrete steps for ending the war on drugs at the federal and state level. It calls for banning the use of facial recognition and predictive policing tools, halting civil asset forfeiture, ending federal support for police militarization, and abolishing the 287(g) program of local police cooperation with the ICE deportation machine. Instead of fixing school policing, it demands federal support for school counselors and restorative justice programs so that we can eliminate school police.
If we want to actually reduce the burden of policing on communities, we must reduce our reliance on them. A more professional war on drugs is still a fundamental injustice at the heart of race and class inequality in America; people should not “trust” narcotics police no matter how much training and accountability is put in place. Harris’s plan is rooted in her prosecutorial past in that it continues to look to the criminal legal system to make communities safer, and this is the root of her mistake.
Alex S. Vitale is a professor of sociology and coordinator of the Policing and Social Justice Project at Brooklyn College. He is the author of “The End of Policing.”
Roughly 482,000 people are held in jails across the country each night awaiting trial, many because they are too poor to pay their way out. In recent years, criminal justice reformers and activists have set their sights on ending the cash bail system, arguing it has created a two-tiered justice system. And increasingly, their work is paying off. In recent weeks, they’ve won court battles that have chipped away at the country’s reliance on cash bail as a condition of pretrial release.
Elected judges are responding to pressure from activists, who raised awareness about the harms of cash bail through protest and mass bailouts, and by enlisting prominent advocates, attorneys told The Appeal.
“The courts themselves have been aware of the money bail system for decades. They’ve been using it. They’ve been the ones inflicting the pain on people,” said Alec Karakatsanis, executive director of Civil Rights Corps, a nonprofit that challenges inequity in the legal system. “So it’s only the result of a big shift in the popular narrative that has made people understand how unfair and unjust and irrational it is to make decisions about who’s in a jail cell and who’s with their family based on who has access to money.”
Since June, courts have ordered that defendants be provided with attorneys at their bail-setting hearings, have ruled that judges can’t profit off bail payments, and have dismantled bail schemes from the ground up. Here’s a look at the reforms:
On Sept. 11, a federal judge issued a temporary injunction in an ongoing lawsuit over the cash bail system in Galveston County, Texas, ruling that people have a right to defense counsel at their initial court appearances when bail is set.
The case revolved around Aaron Booth, 36, who was arrested for felony drug possession in 2018 and detained at the Galveston County Jail because he couldn’t afford bail. According to the complaint, no attorney was present during his bail hearing so his inability to pay was never raised.
District Attorney Jack Roady’s office and magistrate judges in the state argued that the injunction was “impermissible and unjustified expansion of the Sixth Amendment.” Felony judges asked the court to delay the order to avoid chaos in the courts, but the federal judge denied the request.
As a result of the injunction, attorneys for poor arrestees will be able to argue for release, challenge any potential finding of probable cause, and help arrestees secure evidence.
“These are all of the things that need to happen immediately in a criminal case that you are far more likely to see the benefits of if you have a lawyer with you,” said Twyla Carter, a senior staff attorney for the ACLU’s Criminal Law Reform Project who is part of the team representing the plaintiffs in the litigation.
Studies show that the presence of an attorney at a bail-setting hearing increases the likelihood an individual will be released on their own recognizance, the bail amount will be lower, and they will not be jailed pending disposition of their case. Given that initial bail hearings are often very short and judges have little time to consider each case, it’s difficult for a defendant to effectively advocate for themselves. Judges’ racial biases may also come into play and affect bail decisions.
“It should shock absolutely nobody that the failure to have counsel during an initial bail hearing, when a critical decision is made concerning pretrial release, leads to concrete harm in the form of outcomes that are far worse than if counsel were provided,” Magistrate Judge Andrew Edison wrote in a recommendation last month that was adopted by U.S. District Judge George Hanks when he issued the injunction.
The injunction in Galveston isn’t the only recent example of court-ordered bail reform in Texas. In September, a federal judge approved a settlement between officials in Harris County, home to Houston, and arrestees who had filed a federal lawsuit over the county’s bail practices.
The decision stemmed from a 2017 ruling that found the county’s bail practices were unconstitutionally infringing on “equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.”
Under what Carter called a “landmark settlement,” judges agreed to no longer ask for cash bail as a release condition for most criminal defendants charged with misdemeanors. The agreement also included the installation of a monitor to oversee bail practices for the next seven years, public defense services for poor defendants, and data collection to allow the country to analyze its practices.
Officials with Harris County’s pretrial services division told The Appeal that under the new arrangements, about 85 percent of people charged with misdemeanors will be released pretrial without bail.
District Attorney Kim Ogg objected to the settlement, saying in an interview with Houston Public Media that she supports bail reform, “but this proposed settlement is not bail reform that adequately protects the public” because it doesn’t take into account anyone’s interests except the arrestee. Republican misdemeanor judges had also opposed the reforms, but the November 2018 election brought a new wave of Democratic judges and county officials who supported dismantling the county’s bail system.
In late August, the Fifth Circuit Court of Appeals upheld a lower court’s ruling that a New Orleans magistrate judge has a conflict of interest when he sets bail for criminal defendants because bail fees help fund court operations.
A district court judge ruled last year that the fines and fees system at Orleans Parish Criminal District Court is unconstitutional. Karakatsanis, whose group filed the lawsuit, called the district court judge’s ruling an unusually comprehensive decision limiting cash bail because it meticulously spells out all of the equal protection and due process principles that bail violates.
“Plaintiffs have been deprived of their fundamental right to pretrial liberty,” Judge Eldon E. Fallon wrote. Given that “deprivation of liberty requires a heightened standard,” he said, a judge has to prove that there is “clear and convincing evidence” that someone should be detained.
Under the order, arrestees must be given hearings with counsel before they can be detained pretrial. The judge, meanwhile, has to present findings that detention is absolutely necessary before holding someone.
Since the ruling, some judges in New Orleans’s criminal courthouse have stopped assessing bail on criminal defendants.
After the Fifth Circuit ruling, an attorney for Cantrell said he is considering whether to challenge the decision, arguing that state law mandates that Cantrell oversee the fund in which cash bail is collected.
In another major decision, a federal judge ruled in June that St. Louis jails cannot hold people pretrial simply because they cannot afford to post bail. The ruling applied both to current detainees, who received new detention hearings, and to any future arrestees going through the city’s legal system, who would get a hearing within 48 hours of their arrests.
Legal groups filed the lawsuit on behalf of arrestees who said judges didn’t consider whether they were financially able to meet their bail amounts. The median bond set in St. Louis is $25,000, according to the lawsuit, but the median income in the city is just over $38,000. One lead plaintiff, David Dixon, told The Appeal in February that he was appalled when a judge ordered him to pay $30,000 in cash.
“At first I thought it was a joke,” Dixon said. “It was impossible. Ain’t no way I can come up with $30,000, let alone $5,000.”
Robert Dierker, an associate city counselor, told The Appeal that his office opposed the ruling and asked for a stay, partly because it could result in the release of “several hundred people charged with very serious felonies.”
But the federal judge blasted city officials, saying in a hearing that she was “somewhat appalled” the city was not abiding by her order and urging the city to implement the changes immediately.
As cannabis use is legalized in more and more jurisdictions across the country, child welfare systems aren’t always keeping pace. Allegations of drug use are still raised in family court, particularly against parents of color, and those who admit using cannabis are often subject to heightened surveillance. We are joined today by Miriam Mack and Elizabeth Tuttle Newman, staff attorneys from The Bronx Defenders, to discuss the lessons to be gleaned from states like New York and Colorado.
AdamJohnson: 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 at The Appeal magazine’s main Twitter and Facebook page and as always you can like and subscribe to us on Apple Podcasts.
As cannabis use has become legal in more and more jurisdictions across the United States, the assumption for most people — understandably — has been that the criminalization of its use would drop in proportion, but in several states, the use of cannabis by parents, even away from one’s children, has been used in a haphazard and measurably racist way by child protective services as a pretext to tear families apart. Today we are joined by Miriam Mack and Elizabeth Tuttle Newman and attorneys from the Bronx Defenders Office to discuss the use of arbitrary drug tests to harass low wage, largely black and Latinx parents.
MiriamMack: This is Miriam. Many of the standards are best interest standards, what’s in the best interest of the child? And that standard is made by people who are impacted by racism, who are impacted by classism, who are impacted by implicit bias.
ElizabethTuttleNewman: This is Elizabeth. So what we’ve seen in our experience as family defense practitioners every day in the South Bronx is that the drug war is just as pernicious in family court. It does all of the same things that it is done in a criminal context from separating families to ravaging communities. The War on Drugs is an intervention point that the government has historically used to surveil and control people of color and it isn’t just limited to incarcerating people.
Adam: Quick production note, we will be using the terms marijuana and cannabis interchangeably in this episode. Marijuana being, because that’s a more popular term we suspect people will know, but to be clear, marijuana has racist origins and largely exists to stigmatize the use of cannabis. The term we generally prefer using is cannabis. We will slowly migrate over to that term as the podcast continues. Thank you so much for coming on the program.
Thanks a lot.
Adam: So you wrote, y’all wrote, as they say in my native Texas, y’all wrote an article for The Appeal on September 9th called “Parents Threatened With Losing Children Over Cannabis Use,” which exposed me, and I assume all who read it, to something that almost never gets talked about but is infinitely interesting, which is that as we’ve increasingly in the state and local levels decriminalized cannabis use — marijuana — although of course this is not at all uniform. The general impression is that the issue was kind of behind us, that the war is kind of won, but there’s one area in particular you note that has an extremely racist implementation of cannabis law that is very much alive and thriving, which is that of child protective services. Can you talk about the uses and misuses of the War on Drugs and how the state is taking away children or increasingly monitors parents for the use of cannabis and what the racial makeup of this implementation is?
MiriamMack: Sure. Okay. This is Miriam. One of the reasons why we wanted to take time to write about the prosecution of cannabis in the family court system is because Ms. D, who we wrote about and who’s mentioned in the story, that’s the type of thing that we see on a daily basis. Ms. D’s story is emblematic of what we see happen in family court every day and, you know, she is a young mom, uses cannabis a few times a week. There’s no allegation or any suggestion that her use of cannabis has any sort of negative impact on her children. But even still her family was subject to surveillance. She was subject to court monitoring. She was required to participate in a daily drug treatment program which caused her to almost lose her housing and put her children in jeopardy. And housing can always be, destabilized housing can always be the basis for further and continued family court intervention. And this is just one example of hundreds of cases we’ve seen where cannabis use, despite its wide use throughout New York and throughout the country and legalization, is a very active issue in family court.
ElizabethTuttleNewman: So this is Elizabeth. Ms. D’s story really does reflect the realities of the child protective system writ large. Nationwide there has been a lot of attention paid to the way that the drug war has hurt black and Latinx people, but really not enough attention paid to the ways in which the drug war has manifested in the child protective system where we work. So what we’ve seen in our experience as family defense practitioners everyday in the South Bronx is that the drug war is just as pernicious in family court. It does all of the same things that it has done in the criminal context from separating families to ravaging communities. The War on Drugs is an intervention point that the government has historically used to surveil and control people of color and its reach isn’t just limited to incarcerating people. It’s another dimension of the drug war that we have been focusing on, that folks on the ground level had been fighting for but it can be invisible if you’re not focusing on that. That’s one of the reasons why, you know, we’re a family defense attorneys, but we do work in a holistic office. So we come at this problem at the Bronx Defenders from different ways, whether that’s through a criminal context, an immigration case or a civil case like housing. And that’s one of the reasons that we have to be under one roof is because of the government works against families from many different angles.
Adam: So let’s talk about these racial disparities, which I think, you know, on the show I could almost sort of pre record saying the system is racist, but these are actually numbers that shocked even me as someone who does this for a living. You found quote, “One study found that Black children are 6.2 times more likely to be involved in a report of abuse or neglect than white children, 7.8 times more likely to be involved a report found to be credible by the child welfare agency, and 12.8 times more likely to be placed in foster care. Moreover, in New York, Black children remain in foster care longer, on average, than white children.” To what extent are African American parents who use cannabis — now, obviously this happens to white people too, but at a far less frequent rate — to what extent is that seen as sort of child abuse or some kind of pathology where when some white yuppie does it, it’s kind of just a, a sort of hobby?
MiriamMack: This is Miriam again. That’s sort of absolutely what we see here in New York. And I think the best example of that is that The New York Times relatively recently ran a story sort of talking about the pot moms of Park Slope, right? And there, you know, there have been sort of jurists that have remarked upon the fact that walking around in New York City and observing folks using marijuana liberally in some parts of the city, whereas in the South Bronx that could lead you into real family court issues. And so there’s just a different sort of approach and I think you’re absolutely right when you said that the behavior is pathologized because certain behavior that would be okay in wealthier parts of New York City is absolutely viewed with suspicion and is viewed as a point in which that family needs to be, or the family that is in court needs to be brought into court. The family needs to be regulated. And I think that part of that is that even with the trend of legalization throughout this country and even in New York where there was a discussion in the legislature about legalizing marijuana and there’s been discussions in courtrooms from our attorneys suggesting the fact that this is something that is not uncommon, a parent to use cannabis is not uncommon. And in fact the law requires for ACS to do more than just say — ACS is the Administration of Children’s Service, which is the child welfare administration here in the five boroughs — but the law requires for ACS to say something more than this parent uses whatever substance it is, but in this case it’s cannabis. And what we see is that the same behaviors that we know are going on all throughout the city, that in fact parents talk openly in The New York Times about using marijuana and how that not only doesn’t affect their parenthood but also makes them better parents. That cannot be said in the Bronx family court. That gets parents into hot water. It leads to parents cases dragging on longer. It leads to people having to go to drug programs and I think it would be unheard of in other jurisdictions.
Adam: Now to be clear, just to clarify for our listeners, Ms. D, the person we’re talking about here as an example, was asked by a protective investigator if she smoked and she said yes cause she thought it’s legal, it’s not a big deal. But she did not do it in front of her children. So I think those who may be listening and be like, well you shouldn’t smoke weed in front of your kid. She never did it in front of her child and was never alleged by the state to have done it in front of her child. So we’re really talking about completely private use. Now, I know that when I grew up, my parents drank every night. Alcohol was very common. So we have this kind of 1960s morality where people drink ten hours a day and then turn to someone smoking weed and call them a beatnik dope fiend, which of course science has bared out as completely nonsensical and indeed it’s quite the opposite. Alcohol sort of empirically is much worse for you, as is of course smoking. If one of these child protective services people were sitting here now, what would they sort of say to rationalize that apparent hypocrisy, even setting aside the racist element?
Miriam Mack: I think that’s a good question. You know, I think that part of what we have heard in our experience in court is that, you know, there’s so much discretion in the child welfare setting, right? There’s so much, you know, many of the standards are best interest standards, what’s in the best interest of the child? And that standard is made by people who are impacted by racism, who are impacted by classism, who are impacted by implicit bias. And so I think we have heard for sure in court that first of all, people say sort of dismissively ‘well I’m not concerned with those parents,’ right? We’re talking about this family and this parent should not be using any sort of substances, let alone illegal substances. And, you know, in New York marijuana is decriminalized, but it’s not legalized, right?
Adam: Right, right. Sorry, I should clarify that. It’s not legal. You’re right. Sorry.
MiriamMack: But I think, but I think still, I think, you know, to your point with Ms. D, the reason why she was forthcoming about it is because it is decriminalized and many people use marijuana and she wasn’t using the marijuana around her children, right? But I think that we have to take a step back and think about the fundamental premise of ACS. You know, in theory, ACS is an administration that is tasked with protecting children. But we know as public defenders that it functions as an administration that surveils poor people, that controls poor people and largely in our experience, because poverty often tracks race and the folks that we are dealing with are all poor people of color for the most part. And what our sort of experience shows is that black and Latinx folks are held to a different parenting standard, right?
MiriamMack: And part of that is also because they are more visible to the system than let’s say the parents in Park Slope. When you’re not constantly coming into contact with government actors, you know, whether it’s through living in a shelter or it’s through being on Medicaid or HRA then you have less exposure and necessarily your parenthood is less likely to be indicted by the system.
Adam: Yeah. Which is why of course anytime there’s some whimsical New York Times style section story about pop moms or small business owners breaking into the marijuana vertical it kind of outrages African-Americans on Twitter for good reason. Right? It’s, it’s just held to a wildly different standard. So you mentioned the New York Administration for Children’s Services. You note that Administration for Child Services Commissioner David Hansell quote “testified that the agency uses neither a parent’s cannabis use nor a positive toxicology alone as a basis for child protective determinations.” Now the word alone here is doing a lot of work.
Adam: How does this statement from the commissioner, how does it compare from y’alls experience on the ground as public defenders?
MiriamMack: Right, so I think it was very interesting for us to hear him say that ACS was no longer bringing cases based on cannabis use and that ACS’ policy was that a positive toxicology alone — which in fact is the law — but a positive toxicology alone cannot be the basis for child protective determinations. We were surprised to hear that because our experience as public defenders and we spoke to this in the hearing and also individuals who themselves have been surveilled and policed by the system spoke to this, we saw and still see on a daily basis or on a regular basis rather, that in fact ACS was bringing cases based on allegations of marijuana use. And in fact ACS was bringing cases based on marijuana use where there was no actual articulated connection to the impact on the child, right? And, and these are not standards that we, the Bronx Defenders, are sort of bringing into court. This is the law. The law requires, not that you just argue that a parent is using some sort of substance, whether it is a regulated substance or it’s an illegal substance, but you have to also, you know, ACS, they’re not prosecutors, right? We use the language of prosecution because it’s government surveillance and intervention much the same way of criminal prosecution. But at the end of the day, they are tasked with protecting children, not just regulating adult behavior. And in fact we see plenty of petitions where one of the allegations is, ‘oh, and you know, the parent uses cannabis.’ And we were surprised to hear the commissioner say that ACS is no longer bringing these cases. I mean it is extremely concerning when a commissioner of the Administration of Children’s Services does not actually know what’s happening. And we would be remiss to fail to acknowledge that ACS does have policies that often track the law, that correctly track the law, but what is happening on their line level, it does not reflect their policies. And so the idea that the commissioner could come into a hearing and say that cannabis is not being prosecuted suggests that ACS does not actually know what’s happening, that they have wrong information going into the room. And to me that is an indictment of the system and it reflects ACS’ approach, which often is to intervene first and evaluate later.
ElizabethTuttleNewman: This is Elizabeth again. I just wanted to make one point with regard to the hearing. Um, one thing that was revealed is that ACS doesn’t actually collect data on the prosecution of cannabis use across racial or class lines. So all we can really rely upon in answering these questions is observing what we know to be true. There’s no reason that ACS couldn’t be collecting this data and making that data public. We already have a good idea of what it will tell us based on our experiences on the ground as practitioners, but it’s essential, you know, to have data that will show us that information. And also just to have more transparency in general about how that information is used on a citywide level.
Adam: Right. Okay. So one thing that is a factor here that you note is that marijuana is, in terms of drug testing, is kind of low hanging fruit because unlike alcohol, which leaves your body in a few days, marijuana can stay there for as long as a month. So just as a matter of kind of biology, if you will, it’s much easier to play gotcha with marijuana than it is other substances. To what extent do you think this is a product of what you alluded to, where they’re looking for things that are wrong and marijuana is just far more likely to come up?
ElizabethTuttleNewman: I think that the fact that cannabis can stay in your system for a month is absolutely a way in which it’s different from many other types of drugs. I think one of the realities that our clients face before ever coming to court and ever even meeting a lawyer or knowing about their legal rights, is that caseworkers may ask them to take a drug test and they won’t know what their rights are. Parents who want to keep custody of their children may feel like they have no other choice. In fact, they may feel like, ‘okay, this is decriminalized, in fact, if I’m forthcoming as Ms. D was, that will only help me. The case worker says that she’s a social worker, that she’s here to help me, that she’s here to provide assistance to my family.’
Adam: Right. And little do they know that they are agents of law in effect?
ElizabethTuttleNewman: Absolutely, yes.
ElizabethTuttleNewman: I mean they’re, they’re investigating a case and they are the key witness in the prosecution of that case.
Adam: Yeah. I see. Like a lot of people wouldn’t know that. So one thing ya’ll noted it in your piece was that somewhat paradoxically greater criminalization among black and Latinx parents, for example in Colorado, that the decriminalization of marijuana has paradoxically led to a greater criminalization of minorities. You cite a Denver Post article that found between 2013 and 2015 that quote child welfare cases involving parental or caretaker drug use increased by two full percentage points. This was around the time that Colorado legalized cannabis. Can you explain what’s going on there exactly? Is it that the legalization leads to more ubiquity of cannabis and the child protective services however remains in its pre decriminalization approach?
Elizabeth Tuttle Newman: Yeah, so I think the first thing is we’re not really sure, but we have some ideas. What we learned in writing our article and in speaking with different Colorado based practitioners, is that there has been an uptick in drug related cases being filed even after legalization. And again, some of the issues around data transparency also impact Colorado in which we don’t know which drugs are being used or in what way they’re being, the filings are increasing or among what population. We don’t have that information. So we know that in Colorado, even though it’s been legalized, it does seem that parents who use cannabis are being overly scrutinized in ways that parents who do not use cannabis are not. So it would appear that there is still a stigma against cannabis use even after legalization. Maybe that’s not for individuals who use on their own, but it certainly seems to be true for caregivers and of course pregnant people whose bodies that we as a society are much more comfortable policing in general. So based on talking to Colorado practitioners on the ground, some of the practitioners speculated that perhaps because of legalization, perversely enough, the child protective system is taking an even closer look at cannabis. The idea that they postulated being that, you know, now that cannabis is legalized, of course the system shouldn’t trust the people who we already did not trust to begin with, to use cannabis responsibly. And thus we are the ones that need to intervene without these criminalizing, you know, statutes. I just want to emphasize that the bottom line is that we don’t know what happened in Colorado, but from our experience we have seen how legalized substances can still be used as a proxy for poor parenting for our clients in the Bronx. A good example of that is alcohol misuse. When it comes to alcohol misuse, the law is comparatively good. For a parent to be found neglectful, the law requires that parents be proven to have lost control of their actions and thereby pose a risk of harm or harm to their children. The issue that we see comes in the implementation of that law and how it’s actually applied on the ground because we’ve seen ACS drag families into court for alcohol use that falls well below that high standard that I just stated. So based on talking to people in Colorado, what we’ve seen with ACS caseworkers and how they handle even legal substances, we have reason to believe that even cannabis legalization will not cure a misapplication of the law that continues to prosecute parents and separate families.
Adam: I mean it seems like the state just sends a lot of mixed signals and obviously applies the application of these laws in a racist and classist fashion. What is the kind of conventional thinking amongst scholars who studied this about what the policy should look like?
Miriam Mack: We know that as public defenders what we would implore the state to do is to follow the law, right? That is a basic step that can be taken to mitigate some of these issues that Elizabeth and I are discussing. So first and foremost, follow the law and also apply the law in a way that is not motivated and animated by race and by class. Right? And so as Elizabeth was saying, and as I was noting earlier, the law requires not just an articulation that a parent does something that ACS believes is not good, right? Just because a parent uses cannabis, that’s not enough. There has to be some sort of causal connection to that parents’ use of cannabis on an impact on the child. There’s a good causal connection to some sort of harm to that child. That is something very basic that we are not seeing. And I think that another step that the state could take is that some of the benefits of the doubt that are afforded to wealthy white folks, some of the benefits of the doubt that are afforded to, you know, even white parents that we see in the Bronx family court. I mean they’re few and far between, white parents that we see in Bronx family court, but our experience as public defenders is that there are many benefits of the doubt that they’re afforded, that our black and Latinx clients are not afforded. Right? Another step that could be taken right now is to exercise caution and to really investigate before intervening with a family. You know, one thing that sort of ACS celebrates, and to be clear, it is good that ACS is, that less children are going into foster care. But another thing that has to be interrogated is that intervening in a family’s life, even if it doesn’t result in foster care, but being involved in a family’s life, coming to their house, asking parents basic questions, forcing them to engage in programs, forcing them to have caseworkers come to their home, that in and of itself is a type of surveillance that is a burden that is most strongly borne by poor people of color in this city. And so before intervening in an individual’s life, actually taking the time to evaluate before intervening. You know, it’s the opposite with ACS often that we see is ‘well we’ll just file and then we’ll figure stuff out once it’s in court.’ And so I think those are some guidelines I think that we would put forth as public defenders. I think they’re very basic guidelines that we would sort of put forth in terms of how to address these issues because frankly the law is clear and if ACS were to follow the law or to follow its policies or to communicate its policies to line level attorneys, we would be having a different conversation.
ElizabethTuttleNewman: I think in terms of a larger scale prescriptive issue, we need to stop criminalizing poverty. It’s important to recognize that the child welfare system criminalizes poverty.
ElizabethTuttleNewman: In a city like New York, that is racialized. So we’re talking about the systematic surveillance of poor people of color. The vast, vast majority of our cases are neglect cases. They are not abuse cases. That’s rooted in the criminalization of poverty. So we’ve seen parents being brought into court, not just for cannabis use, but for other things like leaving their children home alone for a brief period of time due to lacking childcare when they work multiple jobs or having a dirty home when their landlord is exploitative and refusing to make necessary repairs to their home or when the family is placed in a shelter that’s way too small for the family or for even telling a doctor that a parent is suffering from postpartum depression. So I think all of these ways we see on the ground that a lot of what happens and a lot of why parents are being brought in to court has to do with criminalizing poverty.
Adam: That seems to be a recurring theme on the show, 90 percent of what we cover is, uh, take resources out of the carceral state and give it to social services and that’ll help. The old cliche about life’s about choices, but rich people have way, way, way, way more choices.
MiriamMack: Right. And I think it’s the criminalization of poverty. But I think also it’s the sort of larger picture of the fact that we can’t ignore that this country is haunted by a history that has found it easier to separate black and Latinx women from their children than they have white women from their children. We come from a history of black families being separated through slavery, of indigenous children being separated from their families. This is not something new. We see it now on the border, right? With children being separated from their families. And one point in the conversation was the crisis that’s happening on the border that folks are talking about is that family separation is not new to the United States. And for people of color the assumption is that, and especially poor people of color, the assumption is that the children are better off elsewhere and the idea that their parents and the bonds that they have with their parents have value, that that’s not acknowledged by the courts. It doesn’t seem to be acknowledged by ACS. And one of the sort of scholars that is really important to our work and that guides our work, Dorothy Roberts, notes that if an outsider looked at the American child welfare system, they’d conclude that it’s not a system designed to promote the welfare of America’s children, but rather a system to monitor and punish poor families, especially black families. So, you know, it’s this historic devaluing that we see that reverberates throughout all of our systems. This is the point that Elizabeth made in the beginning where the War on Drugs is an intervention point in black and Latinx communities where it is precisely, it’s community separation across the board, right? When a loved one is incarcerated that is family separation. The child welfare system separating children from their parents: family separation. The way the immigration system is functioning: family separation. And then that functions that reverberates throughout communities and deprives communities of their ability to be able to build power and resist the very structures that keep this power structure the way that it is. So I think that it’s sort of like levels on levels of building on the history of the United States and it all reverberates in the systems that we’re talking about right now.
Adam: I think that’s a perfect place to end it. Miriam Mack, Elizabeth Tuttle Newman, thank you so much for coming on.
ElizabethTuttleNewman: Great. Thank you so much.
MiriamMack: Thank you so much.
Adam: Thank you to our guests Miriam Mack and Elizabeth Tuttle Newman and the Bronx Defenders Office. Remember you can always follow us at The Appeal magazine’s main Twitter and Facebook page and as always you can like and subscribe to us on Apple Podcasts. The show is produced by Florence Barrau-Adams. Production assistant Trendel Lightburn. Executive producer Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.
A death sentence in Oklahoma means years in near total isolation on the state’s death row, known as H Unit. According to advocates, death row prisoners are trapped inside their cells for at least 22 hours a day. Their only escape is death or a change in their sentence.
Though many states house people on death row in isolation, the conditions in H Unit are exceptionally brutal, advocates say. Each cell, which is smaller than a parking space, has two concrete bunks, a toilet, and sink. Before leaving the cell, a prisoner’s hands and feet are shackled through a slot in the cell door, the same slot that food trays are passed through. With no windows to the outside and a land bank surrounding most of the building, residents live effectively underground, according to advocates.
“People in H Unit are literally buried alive,” said David Fathi, director of the ACLU National Prison Project.
Now advocates are seeking to end the practice. In July, several groups, including the National Prison Project, the ACLU of Oklahoma, and the Prison Law Office, sent a letter to the Oklahoma Department of Corrections demanding that it stop placing death row prisoners in solitary confinement simply because they are sentenced to death.
Instead, the authors wrote, death row prisoners’ housing should be determined like any other prisoner’s, based on their behavior. If the department does not voluntarily take action, the organizations will file suit in federal court, according to the letter, which notes that “minds and bodies” are “irreparably damaged” by solitary confinement. The department’s response is due Thursday, according to the ACLU of Oklahoma. The department did not respond to The Appeal’s questions on the use of permanent solitary confinement for prisoners on death row.
“Hundreds of years ago, people who were sentenced to death would be physically tortured before their execution,” said Fathi. “Now we psychologically torture people before their execution.”
H Unit has a long and menacing history. Just weeks after it opened in 1991, Amnesty International sent a letter to the director of the Oklahoma Department of Corrections about the unit’s use of isolation, warning of potential deleterious effects on the state’s death row prisoners. About three years later, Amnesty International released a report on the unit, after a delegation visited and spoke with prisoners and staff. The cells, according to one delegate’s report, give “the appearance of what amounts to a concrete tomb.” He concluded that “these conditions amount to inhuman and degrading treatment.”
The state’s death row is housed within the Oklahoma State Penitentiary in McAlester. Forty-four of the state’s 47 death row prisoners live in H Unit, according to the Department of Corrections website. The only woman serving a death sentence is at a women’s prison, according to the department. One of the two death-sentenced men not in H Unit is in a federal prison; the other is in a county jail.
It’s complete sensory deprivation.Corene Kendrick, Prison Law Office
Exercise, which is supposed to be one hour a day five times a week, occurs in a 20-by-20-foot concrete room with an opaque skylight, according to the letter. During visits, permitted on Fridays and weekends, prisoners and their visitors speak by phone, separated by plexiglass.
“It’s complete sensory deprivation,” said Corene Kendrick, a staff attorney with the Prison Law Office.
One of the few opportunities for human interaction was during religious services, held twice a month, according to the advocacy groups’ letter. During these services, prisoners—albeit shackled—prayed, sang, and spoke with community members and each other.
“About 10 guys at a time would gather in a single space and there would be bars between them and the religious volunteers holding the group religious services,” said Megan Lambert, a staff attorney with the ACLU of Oklahoma. “They could hold their Bibles, hold their psalm books, touch each other on the shoulder, give each other hugs.”
But in 2009, then warden Randall Workman, banned group religious services. That’s a violation of the Religious Land Use and Institutionalized Person Act, according to the letter. The statute guarantees people who are incarcerated the right to practice their religion unless the state can show there is a “compelling government interest” to impede that right. In an interoffice memo announcing the termination of “group congregation services,” no justification was provided. Among the groups’ demands is that prison officials reinstate services. The department did not respond to The Appeal’s questions about the ban.
Mary’s brother, who has been on death row for more than 10 years, looked forward to the services, one of his only connections to the outside world, she said. To protect her brother from possible retaliation, The Appeal is not using Mary’s real name. “He would go to these Bible church services and be talking to the preacher and have discussions,” Mary told The Appeal. “That made him feel normal for a while.”
During his time on death row, the loneliness, she said, has “changed him.” He has talked to her about trying to end his life, she said. “He’s come down to the very second, he’s getting ready to do it, and he wants to do it but he can’t do it,” she said. “He just says, ‘I have to endure this.’”
Though permanent solitary confinement has been the default for many death rows across the country, there is no “penological justification” for it, according to Fathi. The advocates’ letter cites research that found that death-sentenced prisoners tend to have fewer disciplinary infractions than other incarcerated people.
“It’s completely irrational to give this one factor decisive control over where and how a prisoner is housed,” he said.
Several corrections departments have begun to change their practices. In North Carolina, for instance, people on death row are provided weekly religious services, eat meals together, and are permitted in a common room for up to 16 hours a day, according to the letter.
Changes have been implemented in Virginia as well, as a result of a 2014 lawsuit filed by five death row prisoners. Those sentenced to death can now use a common room for programs, religious services, and employment. They are also provided contact visits and more time outside for recreation. Before these changes, they spent about 23 hours a day in their cells for no other reason than they had been sentenced to death, according to the suit.
It’s completely irrational to give this one factor decisive control over where and how a prisoner is housed.David Fathi, ACLU National Prison Project
Last year in Pennsylvania, several groups, including Abolitionist Law Center, the ACLU of Pennsylvania, and the ACLU National Prison Project, filed a class action lawsuit, challenging the Pennsylvania Department of Corrections’s policy of placing death row prisoners in permanent solitary confinement. The case is still in litigation, according to Fathi. In July, former Graterford prison superintendent Cynthia Link published an opinion piece on Pennlive.com about the damage inflicted on prisoners on Pennsylvania’s death row and the officers who work there.
“The Department of Corrections has thousands of highly professional and deeply committed staff,” she wrote. “But nearly all of their training and expertise are cast aside when it comes to maintaining condemned prisoners in their tiny boxes for decades.”
Prisoners also filed suit against Louisiana for its practice of placing all death row prisoners in solitary confinement. They are currently working on a settlement agreement, the plaintiffs’ attorney, Betsy Ginsberg, told The Appeal. Since the suit was filed in 2017, Ginsberg said, “there have been significant changes.” Men on death row—there is only one woman in the state who is serving a death sentence—have been granted access to congregate classes and religious services, and can eat together during lunch, she said.
Mary hopes the Oklahoma Department of Corrections will implement reforms for her brother and the others condemned in the state who spend, on average, more than 12 years on death row before their executions, according to the state Department of Corrections website.
The last person executed in Oklahoma was Charles Frederick Warner, in 2015. Later that year, the state’s then Attorney General Scott Pruitt imposed a moratorium after it was learned that the state had planned to use a drug that had not been approved for lethal injections to kill a death row prisoner, according to The Intercept. In March of this year, Attorney General Mike Hunter announced officials were close to finalizing a new method of execution using nitrogen gas but, according to local reports, the state has had trouble obtaining a device to administer the gas.
Although Mary doesn’t want her brother to die, she believes execution would be more humane than for him to “live like he lives,” she said. “It’s hell on Earth.”
When Kevin Thompson was found murdered and dismembered in his home in South Pittsburgh in May 2018, investigators started digging into the evidence to identify the culprit. After a license plate camera in the city spotted Thompson’s car at an intersection a few days after the incident, police were able to identify the driver as Thompson’s roommate, who allegedly confessed to the crime.
The camera was part of a surveillance network launched in recent years that now includes more than 1,000 security cameras and more than 350 license plate readers in Allegheny and surrounding counties. Similar to ones in use elsewhere around the country, the network is meant to spot people engaged in crimes such as theft, kidnapping, and hit-and-runs.
In many cities, such networks are paid for and installed by the local government or by the police department. But in Allegheny County, home of Pittsburgh, District Attorney Stephen Zappala Jr. has taken surveillance into his own hands. His office has led the installation of the cameras, making experts question whether Zappala is expanding the role of prosecutor.
“It seems like it kind of skips a step,” said Matthew Guariglia, a policy analyst with the Electronic Frontier Foundation. “For a prosecutor to be doing this, it doesn’t seem like it’s an attempt at preventing crime so much as expediting the process of putting people into the criminal justice system.”
According to records obtained by Pennsylvania investigative news outlet The Caucus, Zappala’s office has spent roughly $1.5 million on the network over the past five years, mostly obtained through drug forfeiture.
Thus far, Zappala’s office—arguing that sharing such information could leave the system vulnerable to hacking—has declined to name the company they’ve contracted with to monitor the camera footage, share details of the contract, or say how the private player intends to use and store the vast amounts of sensitive data. Zappala’s office confirmed details of the program to The Appeal but declined to discuss its implications.
“He’s created a dystopian reality in the county,” said Andy Hoover, a spokesperson for the ACLU of Pennsylvania. “The residents are being watched at all times and it’s by some anonymous company that he won’t even name.”
John Hudson, owner of Security Consulting Solutions, said he has a contract to develop the system of cameras and license plate readers in Allegheny and adjacent counties. He told a local reporter that the system is deployed throughout Allegheny, Beaver, Butler, and Washington counties, and collects nearly 13.5 million plates each week.
Jason Tashea, an adjunct professor of law at Georgetown University and an expert on the impact of technology in criminal legal systems, worries license plate readers aren’t doing what Allegheny County says they are doing.
“I think there’s an open, unanswered question about whether or not this is helping people solve crime,” he told The Appeal. “There’s always the anecdotal evidence that this has done something good in an ongoing investigation, but whether or not it justifies the cost and the broader security and privacy concerns is a different question.”
The technology can easily be misused. Police have used cameras and license plate readers to scan worshippers at a mosque, according to news reports, and people attending protests. According to the ACLU, over 80 police departments have also agreed to share license plate data with ICE.
“License plate readers open the door to a more constant surveillance in a way that seems like the Supreme Court may be uncomfortable with,” Tashea said, explaining that the Court has shown concern about tracking people in public without search warrants.
A bill moving its way through the Pennsylvania legislature would regulate license plate readers, but Hoover says it doesn’t go nearly far enough. “We feel that the data collected by the readers should be deleted within hours or days,” he said. “The bill lets the Pennsylvania State Police hold the data for up to a year.”
There are also indications that Allegheny County won’t stop at just license plate readers.
“Down the road is facial recognition,” said Dick Skrinjar, a project manager in Zappala’s office, during a February community forum in Pittsburgh, according to The Caucus. Skrinjar explained that the technology could help restrict the movement of children on probation. “We can put them in the system and restrict where these people go, and keep them out of areas they’re not supposed to be in.”
Privacy and civil liberty experts say that facial recognition technology is problematic when applied to children and teenagers because there is a higher risk of false matches for young faces. Hoover called the thought of cameras tracking children on probation—or anyone in the district—highly disturbing and questioned whether Zappala had thought through potential consequences.
“That’s the problem with technology,” he said. “Once it starts, law enforcement never wants to stop and that’s why there have to be restrictions on its use. Facial recognition is just going to expand the ability of the DA’s office to know where people are at all times.”
Zappala’s expanded role raises questions about how prosecutors will wield the information they obtain when it comes to criminal trials, said Andrew Ferguson, a law professor at the University of the District of Columbia and an expert on predictive policing.
“We’re used to prosecutors standing back, getting the information or data from police, and then getting to make an objective judgment about whether or not they want to move forward,” Ferguson said. “Here, they’re moving into the investigative role. That certainly happens in some big cases … but for ordinary cities and for ordinary crime, it’s a different role for prosecutors and it means there are different obligations and different ethical considerations.”
One such obligation Ferguson described is the requirement, under the Supreme Court’s 1963 ruling in Brady v. Maryland, for prosecutors to disclose exculpatory and impeaching material.
In an article published in the UCLA Law Review in May, Ferguson looked at how prosecutors are joining the big data revolution, and called the analysis of their Brady obligations an “urgent examination because intelligence-driven prosecution is being promoted nationally as the future of prosecution.”
Given Zappala’s move into data collection, Ferguson said the DA’s office would effectively have to analyze the six months of driver’s license data and provide anything exculpatory to the defense. If prosecutors accuse someone of a crime, but the driver’s license cameras actually caught him or her in a different place at the same time, they would have to share that information.
“If there are cameras recording everywhere and that data is in the possession of the prosecutors, it’s hard for them to say that they didn’t know when one of their cameras collects impeaching or exculpatory information,” Ferguson said.
Ferguson’s research has found that intelligence-led prosecution has become a national phenomenon, with new tactics in cities in California, Delaware, Louisiana, Missouri, Illinois, and potentially more jurisdictions.
Legal questions like this will become more complicated, Ferguson said, as prosecutors move toward collecting more data related to people’s everyday lives.
“If they take on that role,” Ferguson said, “they have to really worry about how it impacts their objectivity, their ability to evaluate cases coming to them, and whether there aren’t other obligations that also arise when they play this new role as investigator.”
Progressive prosecutors have swept into office across the country, winning district attorney seats in Pennsylvania, Massachusetts, and beyond. But what does it mean to be a “reform prosecutor”? What is the ideology of the movement and those who lead it? To answer these questions and more, we are joined this week by Chesa Boudin, a public defender running for San Francisco district attorney. He’ll discuss his vision for the city and what being a reform DA means to him.
AdamJohnson: 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 follow us on The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on Apple Podcast.
From Massachusetts to Philadelphia, reform prosecutors are having some success of late. But what does it mean to be a quote unquote “reform prosecutor?” What are the limits and overarching ideology of the movement and what can be expected from those who are embracing the label? To answer these questions and more we will be joined this week by Chesa Boudin, who is himself running for San Francisco district attorney. He will be joining us to discuss his vision for the Bay Area and what, to him, the label of reform DA really means.
ChesaBoudin: Because voters are demanding change everybody running for district attorney now, certainly in big cities, is calling themselves a reformer regardless of what their history of work shows and regardless of what they actually plan to do. And that makes it difficult to distinguish people who are genuinely committed to transforming the approach to the criminal justice system and those who are committed to basically continuing the status quo.
Adam: Chesa, thank you so much for joining us.
ChesaBoudin: Thanks for having me. I’m excited to be on the show.
Adam: So we obviously talk a lot about reform prosecutors, reform DAs, so forth. You are the first person running we’ve had on the show, so excited to talk about that. The term reform is used somewhat loosely and I think strategically there’s a reason for that because, you know, one never wants to kind of die on the altar of perfection, but when you say the word reform or you hear the word reform prosecutor, what to you does that mean?
ChesaBoudin: You’re absolutely right that it’s become a popular and widely overused and abused term and I think a big part of the reason is that, um, because voters are demanding change, everybody running for district attorney now, certainly in big cities, is calling themselves a reformer regardless of what their history of work shows and regardless of what they actually plan to do. And that makes it difficult to distinguish people who are genuinely committed to transforming the approach to the criminal justice system and those who are committed to basically continuing the status quo. And that’s something we see in my race here in San Francisco where there’s four candidates and three of us are all saying we are reform candidates. I think Tiffany Cabán in her district attorney race in Queens said it well when she distinguished herself by identifying herself as a decarceral prosecutor, not just a reform prosecutor, but one whose reforms were aimed at decarceration and finding ways to make our communities safer without relying on incarceration as a first resort and actually striving to decrease the number of people that we put in jail and prison. I’m committed to the same thing and I believe that empirically we can make our communities safer by decreasing the number of people we incarcerate if we’re smart about how we do it.
Adam: Right. Okay. So there’s what I would refer to as reformist pain points, or kind of knotty issues — K-N-O-T-T-Y — knotty issues that I kinda want to untangle here. So one of the things that a lot of big city reformers run into, and this happened with Kim Foxx in Chicago where I live, is the issue of gun violence and gun control where this is obviously sort of a liberal wedge issue and justifiably so, but some reformers have relied on heavily prosecuting low-level gun offenders, which if you talk to local activists and bond reform supporters will tell you that it is true that prosecuting people for gun charges is a major driver in longer sentences, especially pretrial. And it’s something the media loves to harp on, especially here in Chicago. What is your approach to gun control? How do you balance the need for public safety versus the use of gun laws to put people in jail?
ChesaBoudin: Well look, I think we need to take a big picture view and recognize that guns are responsible for a tremendous amount of violence, uh, and trauma in our communities. And we need to do a more effective job of getting guns off the streets. There’s no question about that. And we need to take gun violence and gun crimes seriously. We don’t need to look further than any of the mass shootings that have occurred in recent weeks to recognize what a serious issue this is. But the Trump administration and the US Supreme Court has made it very difficult for us to regulate guns and access to guns at the local level because of a deeply antiquated view of the Second Amendment. I think that means a couple things for progressive prosecutor candidates or reform decarceral prosecutor candidates like myself when it comes to how we approach guns and gun violence. First is we absolutely need to continue efforts to get guns off the streets through gun buyback programs, through partnerships with community based organizations — like United Playaz here in San Francisco or Brothers Against Guns — who can work with community members to get guns out of the hands of young people and destroy those guns. Second, we do need to have police be proactive about getting guns off the streets, but we don’t need to use every time someone’s arrested for possession of a gun as an opportunity to destroy their lives, bran then a felon, make it impossible for them to go on and get an honest job. We also don’t need to turn every time a gun is discharged into a case where we try to send somebody to prison for life. We do need to take the crime seriously, we do need to get guns off the street, but most of all, we need a district attorney who’s going to use every tool and resource available to change the law so that we have better abilities to prevent guns from coming into our communities in the first place. That means a big picture, proactive impact litigation approach to changing the rules and regulations that the Supreme Court is using to hamstring local authorities in the face of the NRA lobby and the gun industry’s efforts to dump dangerous weapons into communities that have long histories of trauma over policing and violence.
Adam: Right, so you would try to move away from a carceral approach. What are your thoughts on gun diversion programs? I know Eric Gonzalez, the DA in New York and Brooklyn, has gotten tons of grief from the NYPD for doing a very, very minor version on this. Is that something that you’ll look into? I know that as far as reformers and abolitionists go, that one’s kind of a bit of a mixed bag, but what are your thoughts on gun diversion programs?
ChesaBoudin: I’m open to learning more. I think one of the great benefits of being in the position I’m in as a candidate is that I get to watch and learn from the successes and mistakes of folks like Eric, folks like Larry, folks like Rachael who are implementing and experimenting with these sorts of reform policies and see what works. I am absolutely committed to finding ways to send less people to prison and less people to jail, but we need to do it in a way that’s consistent with public safety. And uh, I am eager to see the results of Eric Gonzalez’s diversion program. I do think that it’s important always to recognize that people are more than their worst mistake, that we want to be using contact with police in the criminal justice system, not to destabilize or destroy lives, but to uplift, support and where necessary supervise so that people don’t have future contact with law enforcement and instead get the structure they need to be successful members of their community. That’s true regardless of what the crime is. But the stakes are very high when we’re dealing with guns. And we see that in Ohio and we see that in Texas and we see that across the country, particularly as white supremacists are finding access to assault rifles and other weapons of war.
Adam: Yeah. So your plan, you have a plan that really jumped out on me reading through your proposals to replace jails with mental health care. This is something that activists, abolitionists, reformers have been talking about for a long time, which is this idea of this most profoundly in Chicago Rahm Emmanuel closed mental health care facilities while closing schools and then of course increasing the number of prisons. It’s kind of a left-wing watchword, but I think it’s a super important philosophy. Can you talk about what it means to not just have decarceration but provide the other side of the equation, which is a modicum of social safety net and support for those who are vulnerable?
ChesaBoudin: Absolutely, and this is a key issue, you know, going back to the eighties there was an intentional plan by the Reagan administration and others to close down mental health facilities, to stop providing a social safety net for people who suffered from mental illness and the results have been really horrific and then gone hand in hand with the expansion of the prison system. In San Francisco, I want to make it really concrete because there’s two different issues on both sides of this coin here. On the one hand, 75 percent of the people arrested and booked into county jail are drug addicted, mentally ill or both. That means what’s driving our crime, our arrests, our interactions with police in the community are actually things that can and should be viewed through a lens of public health crises, not simply public safety and crime. Right? There’s a definite explicit connection to treatment, to health care, to addiction that is driving the crime that our police are making arrests in. On the other side, we have a jail that is divided into several parts. One of the jails is called County Jail #4 and it’s in a building, on top of the building, which is seismically unsafe. If there’s an earthquake in San Francisco, as there have been in the past, that building will likely collapse and everybody in it, the inmates, the sheriff’s deputies who run the jail, the nursing staff, the civilian workers who are in the building will likely all die. It is a tremendous fiscal and human liability to continue running and operating that jail. Now I’m committed to closing that jail — County Jail #4 — I think we can do it in a way that is entirely consistent with public safety and what we do is we transfer the people who do present a serious public safety risk from that jail to the other two jails that house San Francisco inmates. One is County Jail #5, one is County Jail #2. And the other people who are filling those jail beds should be processed for release as quickly as possible and as safely as possible. Here’s how we do it. I want to throw out a few statistics to make clear how excessive the San Francisco county jail population is today. In order to safely close County Jail #4 and not replace it with a new jail, we would need to reduce the daily jail population by approximately 10 percent.
ChesaBoudin: How do we get there? Right now, 80 percent of people in San Francisco county jail are pretrial, they’re awaiting trial. They have not been convicted of a crime. They’re presumed innocent. 65 percent of people in San Francisco county jail will spend a week or less there. We’re not talking about folks who represent a serious public safety risk because judges or prosecutors are deciding that it is safe for them to be released on average in less than a week. We’re talking about people who are cycling through the jail for very short destabilizing periods that can have, if any, only a marginal connection to public safety. 20 percent of the people or more are there simply because they’re too poor to pay money bail. In other words, if they were wealthier, a judge has already determined that they would be safe to be released. There was another 10 percent — remember the exact same number that we need to reduce the population by in order to close County Jail #4 — 10 percent are simply awaiting placement in a drug treatment program or a mental health program and there are not enough beds available in those facilities. In other words, judges have already approved almost exactly the number of people who we need to reduce the county jail population by for placement in non jail residential facilities where they can have their underlying medical conditions treated, but there simply isn’t enough bed space in those facilities and so the jail is being used as basically a holding tank for people with mental health issues, with homelessness issues. 40 percent of the jail population is homeless. If you look at all those numbers, it is not that difficult to reduce the jail population by the 10 percent necessary to close County Jail #4 safely and still make sure that people who do present a serious threat to public safety are detained pretrial if that’s appropriate.
Adam: So let’s talk about this bifurcation that is kind of implied in some of your language. You say that you want to quote “focus resources on serious and violent felonies.” One of the things writers like John Pfaff and some advocates have argued is that this distinction between violent crime and nonviolent crime is not always very clear cut, especially when it comes to things like gun possession. Do you think reinforcing a dichotomy between violent and nonviolent, Pfaff makes the argument that to meaningfully reduce prison population in this country we’re going to have to chip away at things we consider to be violent or felonious. Is that a conversation you think that you want to have or that you agree with, or do you think that this distinction between so-called violent and nonviolent is a useful taxonomy for reform prosecutors to indulge?
ChesaBoudin: I absolutely agree with Pfaff big picture that we need to move past that dichotomy. I also think we need to recognize that the way mass incarceration works is that it has a very, very broad base. And while it’s true that the people in state prisons across the country are increasingly people who have been convicted of a crime that is defined as violent and that I think is integral to Pfaff’s point. It’s also true that when we look at who’s getting arrested, prosecuted, who is unable to get jobs because of prior convictions, who is on probation or parole in ways that limits their housing options, their employment options, their travel options, it is still, and certainly in a place like San Francisco, largely for crimes that are nonviolent. And there’s another big part of the dynamic in San Francisco that’s important to understand, which is that there are numerous murder cases, for example, to take the most serious kind of case, that are more than five years old with people in jail awaiting trial. And one of the reasons for that is there are simply not enough courtrooms or judges available in San Francisco to try all the cases. And right now, two thirds of the jury trials, the most resource intensive part of the criminal process in San Francisco, are for crimes that are defined by law as petty offenses, misdemeanors. Half of those, fully a third of the total number of jury trials, are cases where there’s actually no named victim in the charging document, where there’s no person or animal or property that was harmed by the conduct that’s being criminalized. And so when I talk about the need to focus on serious violent crimes, I say that very mindful of the excellent arguments that Pfaff has made and committed to continuing to engage critically with the way those terms are used and defined, but also with a commitment to having a victims first district attorney’s office, one that prioritizes healing the harm that crime causes in communities, that prioritizes not retraumatizing survivors of crime and recognizing that the status quo approach not only uses the criminal justice system as a way to sweep up tremendously large numbers of mostly young black young men and put them on correctional supervision and put them in debt and give them search conditions, but also a system that uses and abuses victims to that end and often ignores the real needs that survivors of crime have.
Adam: If you are fortunate enough to be the district attorney of San Francisco, do you plan on prosecuting drug related offenses?
ChesaBoudin: Uh, I do not plan on prosecuting simple possession or use or paraphernalia.
Adam: How do you define simple possession versus intent to traffic or whatever kind of-?
ChesaBoudin: I think we see a lot of overcharging in this area and we see a lot of people who are using who are arrested and charged with possession with intent to sell. So I certainly intend to end the practice of overcharging. I also don’t think that the criminal justice system is a good solution to the drug crisis we see on our streets in the Tenderloin and really across the country. I do certainly intend to prosecute pharmaceutical companies, doctors, pharmacists who are participating in dumping prescription medication onto our streets. I think that’s a much better way to attack the supply side then going after street-level dealers and I intend to attack the demand side of the drug industry and the drug crisis, uh, by partnering with community based organizations, nonprofits and the Department of Public Health to have a harm reduction approach to decrease addiction and the demand for drugs. I don’t think that jail cells are a therapeutic way or an effective way to deal with people who are suffering from drug addiction. We know that periods of incarceration are actually often what cause overdoses and that the War on Drugs has not only been a total failure, but it’s been a racist and a costly failure. I refuse to double down on that failure. I am committed to finding a medical approach to dealing with the drug addiction crisis we see on our streets, but I understand that in the short term, pairing people with services they need will often still happen through the context of arrests and short periods of incarceration. But I’m committed to working with San Francisco and with our community based leaders such as Glide Memorial Church, Felton, Drug Policy Alliance to develop a harm reduction approach to the drug epidemic.
Adam: You were endorsed by Angela Davis, who is obviously very well respected in activist communities. She refers to herself as a prison abolitionist. Do you refer to yourself as a prison abolitionist?
ChesaBoudin: I do not. I think that as a theory, it’s an amazing talking point. I think it’s something that we should be committed to exploring and finding ways, as I said, to decarcerate our country. It is absolutely unacceptable and disgraceful that in the United States and more than half of Americans have an immediate family member who is currently or formerly incarcerated. Uh, that being said, I think until we do a tremendous amount of work in our communities to reduce trauma, to reduce violence, to reduce the causal factors driving violent crime, we are a long way off from being able to fully imagine a society without jails or prisons. But we certainly should be committed to significantly reducing the number of people and to working towards a society that doesn’t need to rely on putting people in cages.
Adam: I’m super sympathetic to that position. I think even some abolitionists would tell you that they understand that it’s a normative goal, not necessarily an overnight thing. When you say reduce the prison population, what, do you have like a generic percentage that you think would be a meaningful amount of decarceration or do you think that’s a little hacky way of looking at it?
ChesaBoudin: No, I think it depends on the jurisdiction. I think for me, because of the issue we talked about earlier with the San Francisco county jail, the short term goal is to reduce the jail population by about 10 percent so we can safely close County Jail #4. You know, in the longer term I think we also want to be committed to reducing the number of people we send to prison. And, you know, those two goals are often at odds with each other because it’s easy to reduce the number of people you send to prison if you increase the number of people you keep in county jail and vice versa. What California did in response to the Supreme Court litigation over prison crowding was they basically shifted a huge number of inmates from state prisons to county jail, and the number of people behind bars basically stays the same but instead of being housed in a state prison, their housed in a county jail. I think we need to be focused on reducing both numbers. I think how fast depends on a lot of factors. I think we should go as fast as we can safely, but we need to be mindful of the fact that many of the people who are currently housed in jail, who’ve been institutionalized by jails and prisons are not necessarily well-served by being dumped onto the street without reentry planning. We need to have much more robust reentry planning and services to ensure that the people we are releasing, who we are not incarcerating going forward, have the support, the structure and the opportunities they need to survive and thrive in the community.
Adam: Chesa, thank you so much for coming on. This was very informative and thanks so much for engaging all the questions.
ChesaBoudin: Thank you Adam. Really appreciate the work you all do. I love listening to your pod and I’m eager to talk to you again in the future.
Adam: Appreciate it.
ChesaBoudin: Take care. Thank you.
Adam: Thank you to our guest Chesa Boudin. This has been The Appeal podcast. Remember, you can always follow us on Twitter and Facebook at The Appeal magazine’s main Facebook and Twitter page and, as always, you can rate and subscribe to us on Apple Podcasts. The show is produced by Florence Barrau-Adam. Production assistant is Trendel Lightburn. Executive producer Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.