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FBI Crime Data is Out. Here’s What You Need to Know.

Lies, damned lies, and crime statistics.

Illustration by Daniel Longan

FBI Crime Data is Out. Here’s What You Need to Know.

Lies, damned lies, and crime statistics.

This story was produced with support from The Academy for Justice at the Sandra Day O’Connor College of Law at Arizona State University.

On Oct. 5, 2022, the FBI released its annual report on crime in the United States for 2021, just as it has done for more than 90 years. If the past is any indicator, the new data will likely trigger a slew of media coverage, ranging from clickbait listicles about “the most dangerous cities in America,” to speculative think pieces conveniently blaming year-to-year fluctuations in crime on a single policy or idea.

As we prepare for the reactions to the new crime data, we must be aware of the limitations of the FBI statistics, and the ways they get manipulated for political purposes. The public’s perception of crime remains profoundly disconnected from actual crime rates, with the majority of Americans reporting that they believe crime has increased nearly every year between 1990 and 2020, according to Gallup opinion polling. In reality, violent crime fell during all but seven of those years, and property crime fell during all but two.

To make informed decisions about public safety, we must first establish a common understanding of what crime statistics say, and what they can and cannot tell us.

How Crime Becomes Crime Data

Because the vast majority of crimes never get reported to law enforcement, crime data is never a perfect reflection of crime itself. In order for a crime to end up in the FBI’s crime data:

  • The crime must be reported to or observed by the police.
  • Police must accurately record the crime in their internal database.
  • The respective police department must share its data with the FBI.

Each step in the process presents its own challenges. Surveys conducted by the Bureau of Justice Statistics suggest that more than 50 percent of violent crimes and around 70 percent of property crimes are never reported to police. For certain types of offenses, such as sexual assault, upwards of 75 percent of incidents may never be officially documented.

Reporting rates can vary significantly from year to year, creating the appearance of trends that may not actually exist. For instance, research suggests that in the wake of the #MeToo movement in late 2017, the proportion of rapes reported to police increased by roughly 10 percent nationwide. Conversely, studies have found that high-profile incidents of police violence can make residents less likely to call 911 or report offenses to police. In some cases, much smaller changes can have a major impact on overall reporting rates. In San Francisco, for example, reported incidents of shoplifting doubled for one month last year after one Target store implemented a new security system that automatically reported thefts to the police.

But even when crimes do get reported to police, it doesn’t mean they will ultimately submit accurate data to the FBI. The FBI only audits crime reports from local agencies when the agencies request it, which doesn’t happen often. Reporting by the Milwaukee Journal-Sentinel in 2012 found that fewer than 1 percent of law enforcement agencies received an audit during each of the preceding five years. Some states, such as Texas, perform their own checks to ensure accurate reporting, but many states do not.

This leaves ample opportunity for departments to report inaccurate numbers, often intentionally. Police have been manipulating crime data for as long as this data has existed. In 1931, just one year after the FBI began collecting crime statistics from local police, a presidential commission concluded that police departments could not be trusted to report accurate data, because they had skewed figures to seek “expanded powers and equipment for the agency in question rather than for the purposes which criminal statistics are designed to further.”

Since then, investigations by media outlets and oversight agencies have uncovered numerous examples of systematic efforts by police departments to manipulate crime data for their own purposes. Perhaps most notoriously, in 2009, the NYPD detained Officer Adrian Schoolcraft in forced psychiatric hospitalization for six days after he blew the whistle on efforts to artificially lower the crime rate by discouraging victims from reporting crimes and misclassifying serious crimes as minor offenses. Similarly, in 2014, an investigation by Chicago Magazine found that the Chicago Police Department had lowered the city’s official murder rate by recording homicides as non-criminal deaths.

Data manipulation can work in the opposite direction, too. A 2014 investigation by the Department of Justice found that a Georgia police department had reported roughly 11,000 aggravated assaults in 2009, even though the department had investigated fewer than 2,000. The over-reporting was ultimately uncovered as part of a bid to win a $3 million federal grant to hire more officers.

Of course, not every inaccurate statistic is the result of intentional dishonesty. In 2018, the Long Beach Police Department admitted that it had over-counted cases of aggravated assault because its crime analysts had misunderstood the FBI’s definition of the offense.

Inaccuracy issues aside, many police departments simply do not report any crime data to the FBI. For most of the past 20 years, somewhere between 15 to 30 percent of law enforcement agencies failed to report complete crime data to the FBI. As a result, we have no crime data for jurisdictions that cover somewhere between 5 and 10 percent of all U.S. residents.

This year, the issue of non-reporting is worse than it’s been in decades. That’s because the FBI is no longer accepting data from agencies that use the Summary Reporting System (SRS), the method of compiling crime statistics that dates back to the earliest days of the annual crime statistics program. Instead, they’re requiring agencies to use the National Incident-Based Reporting System (NIBRS), a more sophisticated approach to tabulating crime data that tracks an expanded list of offenses and includes more detailed information about each individual criminal incident, such as the property value of goods stolen in a theft.

Although NIBRS was launched in 1989, until last year, the FBI allowed departments to use either method to report crime data. Even though the FBI had announced its plans to phase out the SRS in 2015, many agencies—including the New York City Police Department and the Los Angeles Police Department—have yet to update their computer systems to comply with NIBRS reporting requirements. As a result, this year’s crime statistics will include complete data from just over 50 percent of law enforcement agencies in the country. Nearly 40 percent didn’t submit any data at all.

As a consequence, the overall numbers the FBI released at the national, regional, and state levels will be far less precise than usual, meaning it’s not possible to say for sure whether crime rose, fell, or stayed the same between 2020 and 2021.

What Crime Statistics Miss

Most of the crimes included in the annual crime report—homicide, aggravated assault, robbery, rape, arson, larceny, burglary, and motor vehicle theft—were selected by the International Association of Chiefs of Police in 1929, and they largely reflect concerns about street crime, rather than white-collar offenses and even organized crime.

These offenses aren’t even necessarily the most harmful from a societal perspective. Property crimes accounted for roughly $30 billion in economic losses in 2019; in contrast, a 2014 estimate by the Economic Policy Institute found that wage theft cost workers nearly $50 billion every year. Similarly, homicides killed just under 19,000 people in 2020, less than one-tenth of the number of people in the U.S. who die of pollution-related causes each year. Although most of those deaths are caused by perfectly legal means (operating a coal power plant isn’t illegal), criminal enforcement of environmental laws is virtually nonexistent.

The FBI’s limited definition of “crime” means that official statistics present only a partial picture of criminality. If someone robs a McDonald’s, the robbery might show up in the annual crime statistics. But if McDonald’s steals money out of its workers’ paychecks, the FBI’s crime figures won’t count it. In this way, the outsized focus on the most sensational types of crime allows some of the most egregious offenders to escape notice. This matters because many police departments use crime data to decide where to invest their resources. If the data placed an equal emphasis on white-collar crimes, police might struggle to justify their current enforcement priorities.

Although NIBRS includes an expanded list of offenses, it isn’t much better. Most of the new categories include things like drug crimes, illegal gambling, prostitution, and vandalism. The handful of white-collar offenses it does include, such as bribery and embezzlement, aren’t tracked by many law enforcement agencies, so these crimes are still unlikely to garner much attention.

How to Lie with Crime Statistics

Media outlets and politicians add to the public’s misunderstanding of crime by searching for simple takeaways in the numbers where none exist, in some cases leading them to abuse data that is already suspect to begin with.

By far the most common genre of crime data story, the “Most Dangerous Cities in America” listicle, is also the most erroneous. Writing an article that claims Philadelphia is more dangerous than Houston may be a good way to get clicks, but comparing crime figures across jurisdictions can elide important differences in geography, demographics, and how various municipalities are structured and governed. A city whose borders include affluent suburbs can’t be easily compared with one whose jurisdiction ends just a few blocks outside of an urban core.

Nonetheless, these comparisons are so frequent that the FBI now includes a “Caution Against Ranking” in its annual crime data release. The FBI notes that “rankings provide no insight into the numerous variables that mold crime in a particular state, county, city, town, tribal area, or region” and “lead to simplistic and/or incomplete analyses that often create misleading perceptions adversely affecting communities and their residents.”

Another major error media outlets make when reporting on crime statistics is aggregation. When an article talks about the “crime rate,” it’s lumping together each of the individual crimes that make up the FBI’s crime index. The problem is that this counts all crimes equally, regardless of severity. In 2019, there were just over 8 million index crimes reported in annual crime statistics. Of those, more than 5 million were cases of larceny/theft; just a little over 16,000 were homicides. The number of homicides could triple and the overall crime rate would barely budge.

Even when reporters use a slightly narrower measure, such as the violent crime rate, homicides still account for less than 2 percent of all offenses included in the FBI’s violent crime index. Thus, it’s important to be precise about which crimes are up and which are down.

Most importantly, crime statistics don’t tell you why crime rates are changing. Journalists will often turn to experts to try to fill in this gap, but even experts rarely know what causes crime to increase or decrease from year to year, or even decade to decade. Nonetheless, the hunt for simple explanations dominates much of the coverage around the annual crime data release: Crime is up because of bail reform, or because people bought more guns, or because schools were closed during the pandemic, or because kids are playing too many violent video games and listening to Beatles records in reverse. The reality is that all, some, or none of these factors might be at play, but identifying the impact of any single factor is often impossible.

What Are Crime Statistics Good for Anyway?

Given these issues, one might wonder if we shouldn’t just ignore crime statistics entirely. But this data can be helpful if used properly.

The FBI publishes historical crime data going all the way back to 1975, which can provide essential context for understanding how year-to-year changes in crime rates fit into longer trends. The increase in homicides during 2020 was one of the largest jumps in decades, but even so, homicides remain well below their peak in the 1980s and early 1990s.

Additionally, the annual release of crime data includes more than just the topline figures that tend to dominate news coverage. The FBI also releases detailed statistics on topics like arrests, police employment, and use of force. While these data collections come with their own problems, digging deeper into FBI data can help reveal misallocations of police resources, such as departments that arrest thousands of people for low-level offenses while only solving a fraction of murder cases. This data can also expose racial disparities in law enforcement practices.

And, while distinct from the FBI’s annual reporting, many cities, including Chicago and Baltimore, publish detailed data on crimes and police activity in real time. This information can be useful for journalists, community organizers, and policymakers who want to hold law enforcement agencies accountable.

It’s impossible to have a meaningful debate about public safety policies and priorities without reliable facts and figures to ground discussion. Crime data can be a valuable tool in this context, but only to the extent that it’s accurate and the public is aware of its shortcomings. Until the FBI boosts participation in NIBRS—which may not happen until 2025 or later—media outlets and researchers have the responsibility to help fill in the gaps.

DOJ Admits It Has No Idea How Many People Die in Law Enforcement Custody

Thousands of deaths in jails, prisons, and police custody have gone uncounted in recent years. Now the DOJ is calling for changes to federal law.

Emiliano Bar via Unsplash

DOJ Admits It Has No Idea How Many People Die in Law Enforcement Custody

Thousands of deaths in jails, prisons, and police custody have gone uncounted in recent years. Now the DOJ is calling for changes to federal law.

The federal government has failed to count thousands of deaths in law enforcement custody over the past three years, the Department of Justice conceded in a report published last week.

The report, authored by the Office of the Attorney General, offers an unprecedented accounting of the government’s neglect in tracking deaths in U.S. prisons and jails and at the hands of police, as required under the Death in Custody Reporting Act. Since October 2019, the DOJ has missed at least 18 percent of all deaths in state prisons, 39 percent of deaths in local jails, and between 62 and 71 percent of deaths in police custody, according to the report, which compared the number of deaths reported under DCRA with publicly available sources of information.

In total, more than 5,000 deaths in the criminal legal system have gone uncounted over the past nearly three years. Fifteen states failed to report any arrest-related deaths in that period, and seven states failed to report any deaths in local jails.

“This underreporting is widespread, and not the result of a small number of lagging or uncooperative states,” the report says. The DOJ claims that without changes to DCRA, it will be unable to collect “accurate and complete information” on deaths in custody.

The findings seem likely to bolster criticism from congressional lawmakers who have accused the DOJ of “preventable” failures in implementing the law. On Tuesday, the Senate Permanent Subcommittee on Investigations is set to hold a hearing on Capitol Hill that will include testimony from the DOJ official in charge of collecting in-custody death data, as well as two witnesses whose family members died in custody in Georgia and Louisiana.

Shortly before Tuesday’s hearing, the subcommittee—led by Sen. Jon Ossoff, a Georgia Democrat—released its own findings on DCRA implementation, documenting nearly 1,000 deaths in custody that went uncounted in the 2021 fiscal year alone. The subcommittee report found that 70 percent of deaths reported to the DOJ were missing at least one piece of information required by DCRA. In roughly 40 percent of cases, no cause of death was reported.

The DOJ report attributes its failure to track deaths under DCRA to “unintended consequences” of the legislation, which “have degraded and hindered the Department’s ability to produce complete and accurate information.”

Congress passed DCRA in December 2014, prompted in part by the high-profile police killings of Michael Brown and Eric Garner. The legislation requires states and federal law enforcement agencies to report all deaths that occur in prisons, jails, and immigration detention facilities, as well as all fatalities that occur during police interactions with civilians.

States that fail to report data to the federal government risk losing up to 10 percent of their federal funding under the Edward Byrne Memorial Justice Assistance Grant (JAG) Program. Byrne JAG funds are the primary source of federal money for nearly every part of a state’s criminal legal system, including police, prosecutors, public defenders, jails, prisons, and probation and parole systems.

Federal efforts to collect in-custody death data have yielded mixed results over the past two decades. A voluntary data collection program by the DOJ’s Bureau of Justice Statistics (BJS) received nearly 100-percent response rates from state prisons and local jails, documenting more than 85,000 deaths between 2000 and 2019, when the program ended. In contrast, a BJS effort to track arrest-related deaths by relying on reports from state governments was abandoned in 2014 after an internal study found that states were failing to report roughly half of all arrest-related deaths.

In 2016, the BJS announced plans to improve reporting by collecting data directly from state and local law enforcement agencies. The BJS was also supposed to supplement the data reported by the agencies using open-source methods, such as databases like Mapping Police Violence. However, as The Appeal reported in 2020, the decision to tie in-custody death data to federal grant funding under the 2014 DCRA unintentionally scuttled this plan. Because the BJS can only collect data for research purposes, DOJ lawyers concluded that the agency could no longer be involved in tracking in-custody deaths. Instead, the responsibility would fall on the Bureau of Justice Assistance, which oversees the Byrne JAG Program but has little experience managing large-scale data collections.

Beset by internal debates over how to best implement the legislation, the DOJ failed to collect any data from states under DCRA for nearly five years after the law went into effect. A proposal released in December 2016 relied on a combination of centralized state-level reporting of death data and open-source data collection. But Donald Trump’s DOJ quickly scrapped this plan, replacing it with a stripped-down version that relied exclusively on quarterly reports from state officials, who were expected to collect data on all three categories of reportable deaths. The new plan also eliminated the voluntary data collection program for prisons and jails under BJS, meaning that states—rather than individual local agencies—would be solely responsible for compiling statistics.

According to the DOJ’s report last week, this reliance on state-level reporting meant that the DOJ had no choice but to replace a program that had nearly a 100-percent response rate with one that relied on state officials “using varied strategies [that] collectively have proven to be ineffective in producing complete and accurate information.“

In a DOJ survey published in the report, state officials responsible for collecting mortality data under DCRA reported widespread noncompliance among local jails and law enforcement agencies. Two-thirds of surveyed officials said that they lacked any leverage to force uncooperative local agencies to comply. Earlier this year, a review of state policies on in-custody death reporting by The Appeal found that just 15 states have laws that require correctional facilities to report in-custody deaths, leaving them with little recourse to compel agencies to comply with DCRA standards.

Because of these systemic failures, the DOJ says that it would be “unfair” to penalize states for failing to report deaths as required by DCRA. “The penalty could be applied to a state, even when that state may be fully reporting to BJA what it has received from local agencies and where the lack of reporting is occurring only at the local level,” the report says.

The absence of official data has left journalists and researchers to rely on open-source data to fill critical gaps in our understanding of the extent of deaths in law enforcement custody. A 2020 investigation by Reuters documented more than 7,500 deaths in 500 U.S. jails between 2008 and 2019, finding a 35-percent increase in death rates over the past decade. A report earlier this year by PennLive revealed that officials in Pennsylvania jails were routinely failing to report deaths that occurred after people in their custody were hospitalized.

With no official statistics on deaths in prison and jails since the beginning of the pandemic, nonprofit organizations have had to lead the way in tracking the impact of the COVID-19 pandemic on incarcerated people. Figures collected by the UCLA Law COVID Behind Bars Data Project using publicly available information suggest that at least 3,000 incarcerated people have died from COVID since the start of the pandemic. But this figure may be missing thousands of additional deaths, as there is no consistent standard for reporting COVID-related fatalities in custody.

DCRA’s failures have also left the public with no official data on the number of people killed by police each year. Although data collected by Mapping Police Violence using open-source methods finds that police have killed at least 8,224 people since DCRA became law in December 2014, this figure is almost certainly a substantial undercount.

“[Journalists and nonprofits] have stepped in to attempt the data collection that DOJ is statutorily obligated and best situated to do, as DOJ has the resources, expertise, and tools to facilitate compliance and conduct cross-jurisdictional data analysis,” the Senate report says.

To correct these issues, the DOJ report proposes reforms to DCRA that would allow the DOJ to collect data directly from law enforcement and correctional agencies. Funding would also be provided to help state and local agencies improve their data collection practices, and penalties for noncompliance would be made mandatory. In the meantime, however, the DOJ says it intends to leave the public in the dark.

“DOJ is not required to—and has no specific plans to—publish any state and local custodial death information for FY 2020, FY 2021, or beyond,” the Senate report says.

Instead of Rehabilitation, Prisons Fuel a Vicious Cycle of Instability

Incarcerated people need opportunities to learn and grow.

Sayan Moongklang/iStock

Instead of Rehabilitation, Prisons Fuel a Vicious Cycle of Instability

Incarcerated people need opportunities to learn and grow.

During my 31 years in prison, I have watched as almost all programs aimed at rehabilitating people have been drastically reduced or completely eliminated. What is left is a system that is focused exclusively on punishment—punishment that continues even after a person’s time has been served—and a system that leaves everyone, inside prison and out, at risk and cruelly misserved.

Prisons in the United States haven’t always been like this. When I entered the system, in 1990, things were starkly different. In Maryland, where I first went to prison, the Jaycees and other civic organizations, the NAACP, and various support groups had prison chapters so that the incarcerated population could actively engage with the diverse missions and values of each group. The NAACP used to send sponsors to meet with us and educate us on how to register to vote while still in prison, which is almost unheard of now.

We also had opportunities for leadership and community engagement. I was the president of a youth organization at my prison from 1993 to 1995. We brought in guest speakers that included community leaders and politicians such as the late congressman Elijah Cummings and former NAACP President Kweisi Mfume. Media outlets would cover our annual summit, which featured panel discussions with incarcerated people, their families, and community leaders on topics such as the value of youthful offenders returning to their communities and the importance of second chances.

Our options for education were seemingly unlimited, including the chance to obtain associate’s, bachelor’s, and even master’s degrees, because the Pell Grant was still available to prisoners back then.

It didn’t feel like we were being warehoused. We had seemingly free reign to go where we needed without having to get a pass or wait to be called. One building had religious studies; another had gym equipment; another had a law library. Even though we were in prison, we could use these resources freely, as long as we didn’t abuse them. We weren’t just doing time and looking for trouble; we had activities that not only kept us busy but also helped us to flourish.

In 1994, all of that began to change. That’s when Congress passed President Bill Clinton’s crime bill, which gave states lots of money to build new prisons but took away funding for educational and rehabilitative programs. There were cuts to a number of in-prison programs as a result of the legislation, which was championed by both Democrats and Republicans. One of the most damaging results was the end of our eligibility for the Pell Grant program, which helped incarcerated people pay for college education.

When this happened, I had just started my own college education, studying for an associate’s degree in general studies at Baltimore City Community College after getting my GED in 1992. I was just beginning to enjoy learning for the first time. School helped me be more disciplined, and focusing on my studies kept me out of trouble. Having my access to education taken away at that time was devastating. And I wasn’t the only one. Within a decade, the percentage of prisoners taking college courses fell by almost half, according to the Prison Policy Initiative.

When they cut all the programs, there was nothing left for a young person to do besides hang out on the tiers outside our cells, in dayrooms, or in the exercise yard. I was surrounded by young people who were running around without any real supervision or programming. In that environment, my friends and I started getting bad ideas. In 1996, at the age of 25, I became one of the originators of a prison gang that soon became prevalent in the Maryland state prison system, which resulted in me being sent to a high-security prison for five years. My situation was a prime example of idle time not serving the youth! (I left that gang many years ago. After five years in max, I was ready to turn over a new leaf.)

When you imprison people for decades without caring about their welfare, they return to society no better than when they went in. The stigma of prison affects every aspect of their lives. They can’t vote. They struggle to find jobs. Their families may be broken or estranged. They deal with many kinds of mental and physical health issues. By failing to prepare them for life after prison, we are creating a vicious cycle of instability in underserved communities.

When you give people opportunities for education, however, it opens up a whole new world to them. When people come into prison, they often struggle with negative or self-destructive impulses. Learning helps people change their mentality and values—and ultimately their behaviors change, too. If we want people to make better choices, we need to give them better options.

My nonprofit, Inside/Outside Consults, is committed to reimagining prisons and changing their culture from one founded in a philosophy of penalization to one focused on mental health and restorative justice. We encourage state officials to adopt educational programs, mental health treatment, and policy changes based on the Scandinavian model to improve safety, dignity, and respect for prison employees and incarcerated people alike.

Incarcerated men and women are human beings, first and foremost. We have to help them move on from the stigma of prison while they accept responsibility for the harm they have caused. That won’t happen if we don’t give people in prison the chance to learn and grow.

Amid Fears of Crime and Mental Illness, States Move to Expand Forced Treatment

Advocates of assisted outpatient treatment say it could reduce homelessness and mass shootings. Critics call it incarceration by another name.

Cory Mogk | Unsplash

Amid Fears of Crime and Mental Illness, States Move to Expand Forced Treatment

Advocates of assisted outpatient treatment say it could reduce homelessness and mass shootings. Critics call it incarceration by another name.

In 1999, a 32-year-old woman, Kendra Webdale, died in New York City after being shoved in front of a subway train. The man who pushed her, Andrew Goldstein, had been released from a mental hospital just over two weeks earlier.

The media outrage that followed Webdale’s death blamed New York’s mental health system—and the state’s elected officials—for allowing Goldstein to go free in the days before her killing.

“Bedlam on the streets,” a New York Times headline declared. The accompanying story described Goldstein as a “ticking time bomb” who should have a disclaimer on his forehead: “If off medication, run for cover!” Though crime in the U.S. had had reached its lowest levels in decades, the New York Post wrote that New Yorkers were living in fear of being pushed in front of a train by “a crazed attacker.”

The New York legislature responded by passing Kendra’s Law, which gave courts the power to force people with “a history of lack of compliance with treatment for mental illness” into “assisted outpatient treatment”—or AOT—which usually entails a compulsory regimen of psychiatric medication. People who fail to comply with these orders can be detained by law enforcement and face possible involuntary hospitalization.

Two decades later, more than 40 states have enacted some form of AOT legislation. A 2016 study estimated that at least 9,000 people are under AOT orders nationwide, including more than 3,000 in New York alone. Proponents point to statistics showing reduced rates of hospitalization, arrests, and homelessness among people who receive AOT orders, but research also suggests that compulsory treatment is no more effective than voluntary treatment—and, in some cases, may even cause harm.

Now, amid worsening crises of mental health, addiction, and homelessness, several states, including New York, Washington, and California, are in the process of expanding their use of AOT, even as mental health advocates raise concerns that there aren’t enough voluntary treatment options.

“There’s always this rush to force treatment as the answer, but … we don’t have enough treatment services for people who explicitly are like, ‘I want these services,’” said Kimberly Mosolf, an attorney with Disability Rights Washington, which has opposed the state’s effort to expand AOT. Many states, including Washington, have “an underfunded, outpatient community-based mental health system,” she added.

In the decades leading up to the passage of Kendra’s Law, New York, like many other states, had sharply reduced its mental hospital population in a wave of “deinstitutionalization,” enabled by the development of the first effective antipsychotic medications. Between 1953 and 1999, the number of people in New York’s psychiatric institutions dropped from 93,000 to just 6,000. As people left these facilities, however, states often failed to provide support. Many people ended up on the streets or entangled in the criminal legal system. By 1999, there were more than three times as many people with mental illness in jails and prisons as there were in state hospitals.

Some mental health experts argued that the turn away from compulsory treatment during the second half of the 20th century was a historic mistake driven by an uninformed concern for civil rights. “Hundreds of thousands of vulnerable Americans are eking out a pitiful existence on city streets, underground in subway tunnels or in jails and prisons because of the misguided efforts of civil rights advocates to keep the severely ill out of hospitals and out of treatment,” psychiatrist E. Fuller Torrey and attorney Mary Zdanowicz wrote in a 1999 op-ed.

In 1998, Torrey founded the Treatment Advocacy Center (TAC) to push policymakers to expand the use of involuntary treatment. The organization soon became the leading advocate for the adoption of AOT programs nationwide, pushing AOT as a solution for homelessness, addiction, crime, and even mass shootings. TAC found numerous allies, including major psychiatric organizations, legislators on Capitol Hill, and the National Sheriffs’ Association.

Today, AOT represents a small portion of a vast apparatus of state-mandated mental health treatment. There are no official figures, but researchers estimate that more than 1 million people in the U.S. are subject to involuntary psychiatric detentions each year, most lasting for no more than a few days at a time.

Unlike involuntary hospitalization, AOT—which typically lasts several months to as long as one year, with the possibility of renewal—allows people with mental illnesses to remain in their communities while receiving treatment. Nonetheless, civil liberties advocates say that AOT and psychiatric detention both rest on the premise that some individuals need to be compelled to engage with treatment.

“It can be a very traumatic, difficult experience to be forced to do something,” Mark Cooke, a lawyer with the ACLU of Washington, said. “If things don’t go well, how are you going to enforce it? And is that going to compound trauma for people?”

But proponents of AOT say that a court order is the only way to get some people into treatment. The premise of AOT rests partly on the concept of the “black robe effect”—the idea that people who resist psychiatric care will be more likely to comply if they have to meet with an authority figure, such as a judge.

Data from New York show that people who received AOT are less likely to be hospitalized, become homeless, or engage in harmful behavior. However, other studies suggest that these results may have more to do with direct access to mental health services than with the compulsory nature of AOT. A 2017 systematic review of studies on AOT found little evidence that AOT patients had better outcomes than people who received voluntary care.

Nonetheless, amid growing concerns over homelessness and crime, legislators in multiple states have passed or considered laws that further empower courts to require counseling, evaluation, and medication.

In New York, Gov. Kathy Hochul recently signed a budget that expands eligibility for AOT orders and allows courts to renew orders within six months after they expire if a person experiences an increase in symptoms of mental illness. The original law required that someone exhibit “violent behavior” to qualify for a renewal; Hochul’s budget eliminates this requirement.

For Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services, the new budget presents a conundrum. “I’ve been calling it a tale of two budgets,” he said. Rosenthal noted that the budget includes crisis response reforms and wage increases for mental health workers, but he said he finds the expansion of AOT troubling.

“It’s about coercion and criminalization,” Rosenthal said.

Part of the logic behind the expansion of Kendra’s Law is that it will improve community well-being. However, critics say placing forced treatment of the mentally ill side by side with other public safety measures promotes the idea that people suffering from psychiatric disorders present a unique threat to the broader populace. In reality, people with serious mental health problems commit only about 3 to 5 percent of all violent crime. “Candidly, it’s an election issue and some mentally ill people have been cast as violent,” Rosenthal said.

Another issue, according to critics of AOT, is that there is a general lack of mental health services that might keep people out of crisis in the first place.

When the Washington legislature considered SHB 1773, a bill to expand the use of AOT, earlier this year, peer support groups, civil liberty organizations, and disability rights proponents said that the legislation would lead to an influx of cases that Washington’s state hospitals were unequipped to handle. In 2018, the state’s largest psychiatric hospital lost $53 million of federal funding after it was found in violation of regulatory standards.

Advocates also say that critical gaps in other services, such as housing, can make it harder for individuals to complete court-ordered treatment.

“I do not have funding for, nor is funding provided for, housing,” said Joshua Wallace, who heads Peer Washington, a community-based group that provides mental health support and other services. “There were some people who … could not be released because there was no housing for them. That’s like 200 people who continue to be held against their will.”

Under Washington law, people under civil commitment orders cannot be released into unsafe or unhoused environments.

“If they weren’t homeless when they went in there, they likely lost their home while they were in there. So no place to release, no release,” Wallace said.

Despite these concerns, the legislature approved SHB 1773 in March, with nearly unanimous support.

In California, lawmakers are looking to expand AOT as a tool to manage growing frustrations about the state’s unhoused population. In March, Gov. Gavin Newsom unveiled a proposal to invest $12 billion in reimagining the state’s mental health care system, including the creation of so-called Community Assistance Recovery and Empowerment (CARE) Courts, which could compel as many as 12,000 people into forced treatment. The California State Senate approved the legislation at the end of May; it’s currently awaiting a hearing in the Assembly Committee on Appropriations.

The $65 million CARE program would offer participants no guarantee of housing, according to an open letter published by Human Rights Watch, though Newsom’s budget would include specific plans for what is being calledmental health housing.”

“A lot of the folks that are targeted for this are people that are experiencing homelessness or at risk of homelessness,” Andrew Imparato, the executive director of Disability Rights California, said. “And it’s not clear how the housing aspect of this CARE plan is going to work.”

Imparato worries that CARE Courts will give the state new powers to forcefully remove unhoused people from the public view, under the pretense of providing medical care.

“The politics in California around people who are unhoused—they’re nasty. Every elected official is under pressure to ‘do something’ about homelessness,” Imparato said. “And I really feel like CARE Courts are a way of saying, ‘Well, we need to try something.’”

The Human Rights Watch letter echoed those concerns, saying, “These state actors could place those who disobeyed their commands into the CARE Court process and under the control of courts.”

Instead of increasing states’ reliance on forced treatment, policymakers could expand funding for peer-respite centers, says Stefanie Kaufman-Mthimkhulu, executive director of the peer support collective Project LETS. These centers provide crisis intervention along with support from mental health care workers who have direct experience with being shuffled through psychiatric and drug treatment systems themselves. Peer respites often work directly in and with communities that have high rates of mental health and addiction problems, but they function less as an arm of the state and more as a guiding hand between social services and patients.

These centers offer a holistic set of services in areas such as suicide prevention, drug counseling, and connections to more traditional off-site resources while allowing patients to have more control over deciding how long they stay and when crisis intervention is necessary.

Peer support systems such as respite centers have also been found to reduce hospitalization rates and inpatient intervention, although there is no research directly comparing their outcomes with AOT.

Just as importantly, Kaufman-Mthimkhulu said, peer-led treatment programs allow people with mental illnesses to retain their autonomy while receiving the support they need.

“The reality is … that a cage and imprisonment doesn’t only have to be inside of a physical cell that is outside of your home or outside of your community,” Kaufman-Mthimkhulu, who has experienced involuntary hospitalization, said.

“So, if somebody is being told they can and can’t leave, what they can and can’t put in their body, if someone is being told that they have to see a provider … all of those things, to me, are incarceration.”

Illinois Prison Water Contamination Keeps Getting Worse

Water at 12 state prisons has tested positive for the bacteria this year.

Stateville Correctional Center, in Crest Hill, Illinois.
Photo via Rw2/Wikipedia.

Illinois Prison Water Contamination Keeps Getting Worse

Water at 12 state prisons has tested positive for the bacteria this year.

Legionella bacteria have been found in the water at 12 Illinois prisons since testing began in February, according to lab reports obtained by The Appeal. Legionella can cause Legionnaires’ disease, a potentially fatal type of pneumonia. More than 9,000 people are incarcerated across the impacted facilities.

The new testing results seem likely to buoy concerns from community members about water quality issues in Illinois prisons. Earlier this month, local groups called for the state to conduct a top-down assessment of the water infrastructure at the state’s prisons after an Appeal investigation published in March revealed that Legionella was found in five prisons, not two as the Illinois Department of Corrections (IDOC) and the state health department first announced. The revelation prompted accusations from advocates that IDOC had initially misled the public about the extent of the contamination.

Water sources at 33 out of IDOC’s 45 facilities have now been tested for Legionella bacteria, according to lab reports the department shared with The Appeal. The latest results show that contaminated water has been detected at Jacksonville Correctional Center, Pinckneyville Correctional Center, Taylorville Correctional Center, Dixon Correctional Center, Logan Correctional Center, Decatur Correctional Center, and Southwestern Illinois Correctional Center. Previous rounds of testing returned positive results at Graham Correctional Center, Joliet Treatment Center, Kewanee Life Skills Re-Entry Center, Northern Reception and Classification Center at Stateville (Stateville NRC), and Stateville Correctional Center. Testing is conducted by the University of Illinois.

Contaminated water has been a longstanding problem in Illinois prisons, many of which have aging infrastructure. A study of the water crisis in Flint, Michigan showed that old pipes can contribute to the growth of Legionella bacteria. In Illinois, several of the state’s prisons opened decades ago. Stateville, one of the state’s oldest prisons, opened almost a century ago, in 1925. Of the other prisons where Legionella was found, most were built well over twenty years ago.

One person at Stateville was diagnosed with Legionnaires’ in 2015, and in 2020, two people incarcerated in Illinois’ Pontiac Correctional Center—which opened in 1871—contracted the disease. The water at Pontiac was tested in May, and the bacteria were not detected, according to a lab report provided by IDOC to The Appeal.

In February, just a month before legionella was found in Stateville NRC, the civil rights firm Uptown People’s Law Center and Jenner & Block LLP sued the prison’s warden and director over conditions at the facility. They alleged, among other claims, that sink water in the cells smells “like sewage and has a faint, brown color.” According to the complaint, staff bring in their own jugs of water. After The Appeal reported that Legionella have been found at NRC, the attorneys filed an amended complaint, stating that prison officials have not supplied prisoners “with bottled water on a consistent basis.” Several incarcerated people said they had not received “any alternative drinking water sources.”

After the first round of positive tests in March, IDOC hired a water consulting firm to conduct additional testing and implement a “Corrective Action Plan,” an IDOC spokesperson told The Appeal in an email. Steps in the plan include flushing contaminated water sources, posting advisories informing people of contaminated water, and replacing old faucets at certain facilities, according to the spokesperson.

Water sources that have tested positive for Legionella are typically retested within about two weeks, according to IDOC. Subsequent rounds of testing at Decatur, Graham, Jacksonville, Pinckneyville, Southwestern, Kewanee, Logan, and Dixon found that the bacteria were no longer present—though that doesn’t necessarily mean other water sources aren’t contaminated.

At Joliet, a retest of a contaminated water source tested negative, even as testing of an additional six sources revealed a second positive result. The most recent round of retesting showed that this second water source was still contaminated.

A similar pattern occurred at Stateville NRC and Stateville, which are on the same campus. Legionella was detected in both the first round of testing conducted in March and in subsequent testing of different water sources in May.

Legionella bacteria can cause the respiratory infection known as Legionnaires’ disease when it moves from water to a person’s lungs—if it is breathed in through droplets of water while taking a shower, for instance, or if while drinking water it “goes down the wrong pipe,” according to the Centers for Disease Control and Prevention. Person-to-person transmission of Legionnaires’ may be possible but is extremely unlikely.

In recent years, outbreaks of Legionnaires’ disease have been reported at prisons in California, Indiana, New Jersey, and Connecticut. “Large or complex water systems” are especially vulnerable to legionella bacteria, according to the CDC.

“We are showing the effects of decades of deferred maintenance,” Alan Mills, executive director of the Uptown People’s Law Center told The Appeal in March, after water at five prisons tested positive for Legionella bacteria. “These are old prisons, which for many years… were packed way beyond the capacity of which they were built, and that puts a strain on every system.”

Update: This story has been updated to reflect retesting results for Logan Correctional Center and Dixon Correctional Center.

28 Years, 160 Arrests: What One Man’s Record Reveals About San Diego’s Broken Justice System

What do you do with people who are repeatedly failed by social services and the legal system?

San Diego County Sheriff's Office

28 Years, 160 Arrests: What One Man’s Record Reveals About San Diego’s Broken Justice System

What do you do with people who are repeatedly failed by social services and the legal system?

The past 28 years of Angel’s* life are laid out in court files—dozens of them—starting with a drug arrest in March 1994, when he was 19 years old. Now 47, Angel has been arrested by San Diego County law enforcement more than 160 times—including 21 times since May 2021—mostly for misdemeanor drug possession.

According to available records and an email interview with his sister, Angel has suffered from schizophrenia and drug addiction since he was a teen. During one jail stay, he was involuntarily medicated, per a judge’s order.

The sheer number of Angel’s interactions with the criminal justice system suggests both a man unable to overcome his mental health struggles and a set of institutions that has singularly failed to help him do so. Over and over again, prosecutors, judges, and jailers have reached for the same blunt tools, even though those tools have so clearly done nothing to disrupt the pattern of Angel’s life.

The Appeal made multiple attempts to locate Angel while this story was being reported, including by contacting family members and homeless-outreach workers and by looking out for new arrest records. Every attempt was unsuccessful—a testament to how thoroughly the system can lose track of vulnerable people.

Neil Besse, a deputy public defender in San Diego who, until recently, headed up the office’s mental health diversion unit (but has not represented Angel) described Angel as “falling through cracks like few others.”

Even the San Diego City Attorney’s office admits that continually prosecuting Angel hasn’t proved effective.

“It is clear that [Angel] needs treatment services and that repeated booking into jail will not provide him the support he needs to heal and get out of the criminal justice system,” Hilary Nemchik, then a spokeswoman for the office, wrote in an email to The Appeal late last year.

The average daily population of San Diego County jails fell during the pandemic, from 5,630 in 2019 to just under 4,000 at last count. As San Diego officials explore ways to further reduce the population, a question lingers: What do you do with people like Angel, who are repeatedly failed by social services and the legal system, and who account for a disproportionate number of the incarcerated population?

“A criminal legal system that is responding to mental illness and substance use by arresting someone dozens of times per year for years on end is neither humane nor effective,” Aaron Littman, a clinical teaching fellow at UCLA School of Law, said. “Jailing someone over and over is expensive, and that money could doubtless be better spent on providing supportive, community-based services.”

Court records provide a window into the mounting futility of the cycle of arrests and re-arrests that has marked Angel’s life. Minutes from hearings suggest a system and defendant that have grown weary of each other. “[Defendant] refused to get on the bus” appears multiple times in case files, referring to the bus that transports prisoners from jail to court for scheduled hearings.

Angel’s sister, Sandra, said in an email that her mother, who died in 2018, had searched many times over the years for a treatment program that would accept Angel. When those efforts failed, she would try to find him a place to sleep at a shelter or motel because he was often too volatile to stay with her.

“She always worried about him,” Sandra said.

In San Diego, 35 percent of people with a history of substance abuse who are arrested for a felony and 42 percent who are arrested for a misdemeanor also have a diagnosed mental illness, according to a recent study by the San Diego Association of Governments, a regional planning and policymaking agency. These individuals are more likely to experience housing instability, making treatment difficult.

It seems there were some attempts to grapple with Angel’s mental illness early on. In July 1999, for instance, Angel, then 24 years old, agreed to plead guilty to two felonies—stalking and assault with a deadly weapon—in exchange for the possibility that the judge would recommend he be sent to a state psychiatric hospital for treatment instead of to prison.

“I make no commitments, but I will consider whether to make the recommendation,” San Diego Superior Court Judge Gale Kaneshiro told Angel, according to a transcript of his sentencing hearing.

“That’s what I would like for you to do for me,” Angel responded, “so I can get better.”

Yet, according to court records, there is no indication that Angel was ever sent to a state psychiatric hospital or, aside from being involuntarily medicated during a jail stay, that he has ever received any kind of inpatient treatment. Instead, he has repeatedly been sent to state prison.

Records show that when Angel was offered probation in exchange for participating in a treatment program, he had difficulty following the rules. Multiple case files include warrants for his arrest because he failed to show up to court. At one point, he was arrested for not showing up to get the results of a medical test. He has been kicked out of group homes and, according to recent court records, is currently homeless.

Angel “has demonstrated that he is unable to remain law abiding,” one probation report says, referring to an incident in 2012 in which Angel attacked his mother. The report does say that the probation officer referred Angel to one of San Diego County”s largest mental health services programs, but that he was rejected beause he was deemed a safety risk. In 2014, California voters passed Prop. 47, which reduced low-level felonies, including most cases of simple drug possession, to misdemeanors. Since nearly all his crimes were for drug possession, Angel got caught up in what Besse describes as a “culture of misdemeanors,” in which cases move quickly through the court, leaving little time for judges and attorneys to assess a defendant’s needs.

Angel has a history of addiction to meth, which can exacerbate mental illness, making him a difficult client.

“It takes the experienced attorneys not days but weeks, and sometimes months, for a client to really get thinking clearly after using meth for any sustained period of time,” Besse said. “The methamphetamine and the compressed misdemeanor timetables, they just don’t lend themselves to that.”

Besse described the criminal legal system as being compartmentalized and “out of sync with itself.” He said that the system’s inability to link Angel with the services he needs after arresting him was clear evidence of its failings.

“If they’re not reaching [Angel] on any of the bookings, that raises policy-implementation questions,” he said. “Like, are we going to use the criminal system or not use the criminal system? If we’re going to use it, let’s all work together and use it wisely. If we’re not going to use it, then let’s get the message all the way down to the boots on the ground and tell them to take [arrestees] to a hospital, take them to a sobering center, or don’t even do anything, you know?”

Angel has also found himself caught in a particularly grim trap: some of the very programs that might help stop his cycle of arrests are closed to him precisely because of those arrests.

“Our prosecutors attempted to engage him in various diversion programs, but due to his criminal history … he did not meet eligibility requirements,” Nemchik, the San Diego City Attorney’s spokeswoman, wrote. “Eligibility criteria for these programs is determined by the providers and designed to protect their employees, other participants, and the public.”

When The Appeal reached out to Nemchik in December, she said the City Attorney’s office had referred Angel to the county’s Behavioral Health Services Department. But the City Attorney also continues to prosecute him. While The Appeal waited nearly four months for a judge to grant access to Angel’s 2012 probation report—his most recent—he was arrested another five times and had two new cases filed against him.

Again, both new case files include warrants because Angel did not show up to his arraignments.

Last October, Terra Lawson-Remer, a member of the San Diego County Board of Supervisors, whose election in November 2020 gave the board a Democratic majority, introduced a proposal aimed at identifying gaps in county services, such as drug and mental health treatment, that might help keep people like Angel from cycling through jail.

The proposal, which was passed unanimously by the board, was the first of its kind for California’s second largest county.

In a memo to the board, Lawson-Remer cited a recent report by the American Addiction Centers, which found that it costs $81,000 a year to incarcerate someone with mental illness but only $32,000 a year to provide that person with housing and social services.

“People keep cycling through the system, and it’s not making them better, right? It’s not solving the problem and it’s costing taxpayers a ton of money,” she told The Appeal.

She hopes the study will help explain why existing programs aren’t reaching the most difficult cases. The goal is to have a final report in hand by February 2023 along with a five-year plan for adding services and programs.

“The study is meant to address—to really identify—the gaps in our services,” she said. “And there are many of them, right? I’ve heard this from providers, I’ve heard this from judges, I’ve heard this from police, I’ve heard this from the DA, the public defender. Everyone’s agreed that we do not have the right type of services—and enough of them—and a sufficient infrastructure to meet the need.”

“We’re not building a rocket ship,” Lawson-Remer said. “I mean, it’s a hard problem to solve, but it’s not something we don’t understand or haven’t grappled with before. It’s just that there hasn’t been political will or interest to tackle it, because it’s easier to sweep it under the rug.”

Jerry Hall, a behavioral health advocate and the founder of Civic Mapping, which analyzes data related to behavioral health and the criminal legal system, applauded Lawson-Remer’s proposal.

“I would argue that any day of the week, the lack of data is the No. 1 problem we’re all facing,” he said. “If we had the data, we could hold people accountable.”

He cautioned that interventions for people like Angel, who have been neglected by the system for decades, will cost money before they save money.

“The point is to help the man, it isn’t about the money,” he said.

Will Matthews, spokesman for the criminal justice reform group Californians for Safety and Justice—which authored Prop. 47—also applauded Lawson-Remer’s proposal. He said California’s history of using incarceration to solve societal issues has created the problems of addiction, homelessness and jail churn that San Diego and other counties are grappling with.

“We have never committed to funding a treatment and prevention infrastructure,” he said. “We have committed to a strategy that defaulted to locking people up—and we know that that didn’t work, because at the height of mass incarceration in California, the recidivism rate was around 70 percent. We don’t want to go back to those days.”

* Editor’s Note: Because we could not speak directly to Angel for this story, The Appeal is only using his first name to protect his privacy.

Prosecutor Lauded For Investigating Trump Also Wants to Send Educators to Prison

As Fulton County DA Fani Willis’s profile rises, the glossy coverage has largely ignored her crusade to incarcerate teachers accused of cheating on tests.

Fulton County District Attorney Fani Willis
Ben Gray | Associated Press

Prosecutor Lauded For Investigating Trump Also Wants to Send Educators to Prison

As Fulton County DA Fani Willis’s profile rises, the glossy coverage has largely ignored her crusade to incarcerate teachers accused of cheating on tests.

If you’re not from Atlanta and you’ve heard of Fulton County District Attorney Fani Willis, chances are it was from pundits gushing over her gutsy investigation of Donald Trump. Or maybe it was from her prosecution of rapper Young Thug and 27 people affiliated with his record label, Young Stoner Life, which Willis has cast as a “criminal street gang.” Or you could have seen reports that she’s among the growing number of prosecutors in red states pledging not to bring charges against abortion seekers.

“It is my responsibility as the elected District Attorney to set priorities for the use of my office’s resources,” she told the Atlanta Journal-Constitution shortly after the Supreme Court overturned Roe v. Wade.

But as Willis’s national profile rises, some of her priorities have evaded the spotlight, namely her efforts to incarcerate Black educators—mostly women—for allegedly cheating on standardized tests.

In 2015, 11 Black educators were convicted on RICO charges and sentenced to prison in what’s known as the Atlanta Public Schools Cheating Scandal, which dominated local headlines for well over a year. Of the 12 people who went to trial, only one was acquitted. Willis was one of three lead prosecutors on the case, but her involvement didn’t end there.

In 2020, with the backing of the local police union, Willis was elected district attorney, making her the first Black woman to hold the office. Her predecessor, Paul Howard, had been the county’s top prosecutor for more than two decades.

Since Willis took office, she’s fought the Atlanta educators’ appeals. Last week, her office opposed a sentence reduction to spare a former principal from prison, but a judge granted it anyway. Six more educators could still be locked up unless Willis changes her stance.

Social justice groups are calling for Willis to hit the brakes on a case that they say has criminalized Black educators, perpetuated systemic racism, and ignored the root causes of cheating.

The prosecution of Atlanta’s educators was unprecedented, from the RICO charges to the prison sentences. Typically, administrators and educators accused of cheating have had their professional licenses suspended or revoked, or they were fined or sentenced to community service. (Thanks to federal policies like No Child Left Behind, cheating is a fairly widespread problem.)

But over the last seven years, two Atlanta educators have gone to prison and seven have had the threat of prison hanging over their heads as they appealed their cases.

One of those defendants can now breathe a little easier. On June 28, former principal Dana Evans narrowly avoided prison when retired Fulton County Superior Court Judge Jerry Baxter—the same judge who originally sentenced her to a year in prison—agreed to reduce her sentence to probation and community service. (In Georgia retired judges are allowed to preside over cases). “What she has told me today is that she has accepted responsibility for what happened,” Baxter said. He also said he believed that some of the witnesses who testified against Evans had “agendas.” He concluded, “I gotta do what my conscience tells me and this is what it’s saying.”

Evans was not accused of cheating. She was accused of failing to stop it. At the Fulton County Justice Center, Evans apologized for her negligence. Her colleagues at a mental health clinic attested to the valuable community work she has done, and her lawyer, Bob Rubin, said she has fostered positive growth for “refugees, the mentally ill, victims of crime, and children who are poor.” A prison sentence would end that, he said.

Before the judge handed down the new sentence, Fulton County Chief Senior Assistant District Attorney Kevin Armstrong argued that Evans should be sent to prison. When asked by the judge if his position came “from the top down in the DA’s office,” Armstrong answered that it did.

Rubin told the court that before the hearing, he had met with Armstrong and Willis to discuss a sentence reduction for Evans. They were open to it, he said, but they ultimately weren’t satisfied with the apology letter Evans wrote.

“For that reason [Willis] wants to put Dr. Evans in jail for a year,” he said. “And I just don’t think that’s right.”

Tiffany Roberts, public policy director at the Southern Center for Human Rights and a legal expert familiar with the case, called Willis’s stance “quite disappointing.”

“We are hopeful that DA Willis utilizes a different approach in any remaining cases where teachers are facing similar sentences,” Roberts told The Appeal. “Moreover, we hope that she undertakes a more progressive, evidence-based approach overall in her office to focus on solutions that make communities safer, rather than merely punishment.”

Willis’s staff did not respond to a request for comment from The Appeal.

Willis is defending convictions that are steeped in inequity and hypocrisy. In 2010, then-Governor Sonny Perdue launched special investigations into Atlanta Public Schools and the Dougherty County School System based on a statewide analysis of 2009 test scores that found cheating might have occurred in more than half of Georgia’s elementary and middle schools. At the same time, he applied for and won a $400 million federal grant by touting rising test scores that he attributed to “higher standards and harder assessments.”

The investigation into Atlanta Public Schools quickly escalated into a dragnet. Georgia Bureau of Investigation agents pulled teachers from classrooms and interrogated them without lawyers present, promising immunity if they confessed and named colleagues who cheated—a recipe for false accusations. The investigations found that cheating was widespread in both Atlanta Public Schools, which was helmed by a Black superintendent, and Dougherty County schools, where the superintendent was white. The Dougherty County investigation was swept under the rug. But in Atlanta, Willis’s predecessor, Paul Howard, indicted 35 educators from 11 schools.

Howard’s indictment pushed the bounds of RICO to claim that Atlanta Public Schools was a criminal enterprise in which educators conspired to cheat to gain bonus money. However, the special investigation had concluded that bonus money “provided little incentive to cheat,” and most of the 12 educators who went to trial never received a bonus. One was a teacher whose students didn’t even pass the tests. Others taught first and second grade, in which students only took practice tests that didn’t count toward “targets”—the goals set by the district.

But these details got lost in the spectacle of the trial. In her opening statements, Willis told jurors, “You are going to learn—surprise, surprise—a lot of teachers are women. A lot of the teachers in Atlanta Public Schools were African American teachers, quite frankly, and that a lot of them were single mamas. They needed their jobs,” implying that they would do anything, even cheat, to stay employed.

While the prosecution peddled in stereotypes, Judge Baxter’s behavior threatened to bias the jury against the defense. Evans’s appellate brief cites dozens of examples.

Baxter was often rude to defense attorneys, even calling one a “peacock” and threatening to arrest him for jaywalking. He allowed a witness to move around the courtroom to identify a defendant and told her she was “getting cold.” And he consistently rushed the defense. The state called more than 200 witnesses, but when it was Evans’s lawyer’s turn to bring witnesses, Baxter complained after the ninth. “How many more of these witnesses do you plan to put up?” he demanded.

Many state witnesses were educators who accepted immunity or plea bargains in exchange for agreeing to testify. Two recanted on the witness stand. There were so many conflicting testimonies that, outside the presence of the jury, Baxter said, “Perjury is being committed daily here.”

The trial lasted eight months—the longest criminal trial in Georgia history.

The appeals have dragged on for seven years. In that time, some have moved more quickly than others. An administrator and a teacher have gone to prison and been released, and now Evans’s case is resolved. Meanwhile, six defendants are represented by one public defender who has been stuck in a fight with the state over providing them each their own attorney.

When Willis told the Atlanta Journal-Constitution she wouldn’t use “precious tax dollars” to prosecute abortion cases, she conceded a fact that many prosecutors prefer to downplay: that they have immense discretion over which cases to pursue. It begs the question of why precious tax dollars should be used to send educators to prison, especially given the serious flaws in the investigation and trial.

Willis has an opportunity to help correct a long-standing injustice in Fulton County. She can seek a resolution with the remaining defendants that would keep them out of prison and finally put the cheating scandal to rest. And her new national fan club should demand she do it.

Aja Arnold contributed reporting to this story.
Disclosure: Anna Simonton is the coauthor, with Shani Robinson, of None of the Above: The Untold Story of the Atlanta Public Schools Cheating Scandal, Corporate Greed, and the Criminalization of Educators. Robinson was convicted in the cheating trial. Simonton is a graduate of the Atlanta Public Schools, and Evans was a counselor at Simonton’s middle school.

‘I Did Not Shake My Son’: Is a Father Serving Life for a Crime That Never Occurred?

Expert says trauma from childbirth, not shaking, led to the death of Danyel Smith's two-month-old child.

Danyel Smith and LaTasha Pyatt, June 2016
Courtesy of LaTasha Pyatt

‘I Did Not Shake My Son’: Is a Father Serving Life for a Crime That Never Occurred?

Expert says trauma from childbirth, not shaking, led to the death of Danyel Smith's two-month-old child.

Danyel Smith’s trial didn’t take long. The prosecution wrapped up its case in a little over a day, and the defense in less than three hours. Prosecutors in Gwinnett County, Georgia, alleged that on April 29, 2002, Smith had shaken his two-month-old son, Chandler, who then died from his injuries days later. Prosecutors claimed Chandler showed tell-tale signs of the dubious medical diagnosis “shaken baby syndrome.”

On the stand, Smith told the jury that he was innocent and that his son had stopped breathing during a car ride. He said he’d done all he could to try and save his baby.

“I did not beat my son,” he testified. “I did not shake my son.”

On Nov. 21, 2003, Smith was convicted of felony murder, cruelty to children, and aggravated battery. The judge sentenced him to life in prison.

Almost two decades later, Smith still maintains his innocence, and his attorneys say that trauma sustained during childbirth led to Chandler’s death. Last month, Smith’s family members held a protest in support of him outside the courthouse. Attorneys from the Southern Center for Human Rights began representing Smith last year, after the filmmaker Asher Levinthal, who is working on a documentary about shaken baby syndrome, asked them to look into the case.

In May, after years of setbacks and delays, Smith’s case finally inched forward when the Georgia Supreme Court agreed to consider a motion arguing that the trial court erred when it sided with prosecutors and denied Smith’s request for a new trial without holding an evidentiary hearing.

Even though Gwinnett County District Attorney Patsy Austin-Gatson ran on a platform promising criminal justice reform, court records show that prosecutors in her office have consistently opposed Smith’s efforts to prove his innocence.

“As for the district attorney, I had had great hopes for her coming into Gwinnett County,” Smith’s fiancée, LaTasha Pyatt, told The Appeal. “We really were expecting her to do her job.”

Over the past 20 years, the scientific and legal communities’ understanding of shaken baby syndrome (SBS) has dramatically changed, leading to a growing number of exonerations. Just last year, there were five exonerations involving cases of alleged SBS, bringing the known number of SBS wrongful convictions to 26 since 1989, according to the National Registry of Exonerations. All but six of these exonerations occurred after Smith’s conviction. Among the exonerated, some of the true causes of death have been revealed to be sickle cell anemia, stroke, and pneumonia.

In Smith’s case, trauma sustained during childbirth, not abuse, led to Chandler’s death, according to his attorneys.

“These people don’t know me to think that I have hurt my son. That has been the hardest burden that I have had to live with the past 20 years,” Smith said in a statement sent via his attorneys to The Appeal. “Being accused of something like this and losing my son.”

On the day Chandler collapsed, his mother and Smith took him to his eight-week wellness visit at the pediatrician and ran errands. Then Chandler’s mother went to an appointment to apply for food assistance. The baby, who appeared to be sleeping, stayed home with Smith.

About 20 minutes after she left, she called Smith and asked him to come meet her and bring the baby; she would not be approved for benefits unless Chandler was present.

On their way to the office building, Smith saw that Chandler appeared to not be breathing. He was on the phone with the baby’s mother and told her something was wrong, according to their trial testimony.

Smith says he pulled over to the side of the road, performed CPR, and then drove to the office building where Chandler’s mother was waiting. He carried the baby out of the car and Chandler’s mother called 911. Two bystanders attempted to perform CPR before paramedics arrived and took Chandler to the hospital.

Almost immediately, the treating physicians concluded that Chandler had been abused. On May 1, 2002, police arrested Smith at the hospital. Five days later, Chandler was taken off life support and died.

At the time, Smith was a father of three, including Chandler, and had never been accused of child abuse, according to his attorneys.

“My dad didn’t raise me, that motivated me even more to be there for my kids,” Smith said in a statement to The Appeal. “That has been robbed from me.”

At Smith’s trial, the prosecution alleged that Chandler’s injuries were caused by shaking with impact.

“We have a collection of findings here that are classic and in some cases virtually exclusive for violent shaking,” the county medical examiner testified. A pediatric neurosurgeon told the jury, “Unless somebody could tell me something else was going on with this child … I think he was a shaken baby. I’ll be happy if somebody can tell me something else.”

In the decades since Smith’s trial, exonerations and studies have shown that the triad of symptoms associated with SBS—subdural hemorrhage, retinal hemorrhage, and brain swelling—can have a number of other explanations, such as short-distance falls, trauma sustained during childbirth, or illness. In a case in New Jersey earlier this year, a judge ruled that the prosecutors could not bring in testimony of SBS in their case against a father accused of shaking his son. SBS, the judge wrote in his ruling, “lacks scientific grounding” and is “akin to ‘junk science.’”

The evidence in Chandler’s case suggests birth trauma—not shaking—led to his death, according to Dr. Saadi Ghatan, the director of Mount Sinai Health System’s pediatric neurosurgery program. Ghatan, who is working on the case pro bono, reviewed Chandler’s brain scans and medical records, along with the mother’s medical records related to her pregnancy and delivery.

Chandler was born premature, at 35 weeks, by an emergency cesarean. His head was delivered by vacuum extraction, whereby a suction device was placed on his head, according to Chandler’s mother’s medical records. Ghatan noted in his affidavit that vacuum extraction can cause a skull fracture.

Chandler weighed less than five pounds when he was born and was sent to the neonatal intensive care unit. A nurse documented that his head was swollen, but no follow-up was conducted and he was discharged about a week after his birth.

When he was about a month old, Chandler’s mother called 911 because she feared he was having a seizure, but the paramedics who arrived dismissed her concerns. A seizure, they said, would mean he was jerking around, which he wasn’t. But, according to Ghatan, a seizure in an infant can also present as the baby “zoning out or being startled.”

Chandler’s death “was not the result of parental abuse or mistreatment, nor was his death caused intentionally by anyone,” Ghatan wrote in his affidavit. His death “began with his early and difficult birth.”

In May, protesters gathered outside the courthouse in Gwinnett County to protest what they say is Danyel Smith’s wrongful conviction.
Courtesy of Southern Center for Human Rights

In March, less than a month before Ghatan was set to testify at an evidentiary hearing, the trial court granted the prosecutor’s request to dismiss Smith’s motion for a new trial.

The prosecutor argued in his legal filings that Smith’s evidence is not new and, therefore, should not be heard by the court. He even opposed Smith’s motion to appear in civilian clothes at his evidentiary hearing—which was ultimately canceled, at the prosecutor’s request.

District Attorney Austin-Gatson declined to answer The Appeal’s questions about Smith’s case.

“The prosecution has decided to oppose our ability to even present evidence so far,” Mark Loudon-Brown, one of Smith’s attorneys, told The Appeal. “If they wanted to reverse their position and agree with us that he’s entitled to a new trial, they could do that today.”

Smith’s legal team told The Appeal that they asked Austin-Gatson’s conviction integrity unit (CIU) to investigate his case on March 22, 2021—the same month Austin-Gatson launched the unit. Three days later, a CIU attorney emailed Loudon-Brown and said she would be looking into the case. More than a year later, however, Smith’s legal team says they’re still waiting for the unit to complete its review. Austin-Gatson created the unit because she is “a strong advocate for justice and fairness,” the DA’s website says.

“Any cases within our CIU for investigation will not be subject to discussions with the media,” Austin-Gatson wrote in an email to The Appeal. “We appreciate your interest in this matter, but we will not be commenting on it.”

Pyatt, Smith’s fiancée, told The Appeal she doesn’t understand why Austin-Gatson wouldn’t move faster in this instance.

“If she started this integrity unit to truly right the wrongs in Gwinnett County, I don’t know a better case than Danyel’s case to start with,” she said.

Unless the prosecutor’s office changes course, Smith’s fate lies with the Georgia Supreme Court. The path to exoneration through the judiciary is a circuitous one—the state’s highest court can order the trial court to hold an evidentiary hearing, which could lead the judge to order a new trial. If that happens, the prosecutors can either start preparing for the new trial or drop all charges.

Smith and his supporters say they’ve already waited far too long for Smith to be released from prison for a crime he did not commit. At the family’s protest last month, they chanted, “No justice, no peace,” and held home-made signs. “Please give my innocent son his life back,” read a hand-written sign held by Smith’s mother.

“My freedom has been taken from me,” Smith said in a statement to The Appeal. “I want the State of Georgia to undo this wrong and make it right. Period.”

It’s Time to Take a Clearer Look at Bail Reform

In the raucous debate over bail reform, simple facts have fallen out of sight.

Michael Appleton / Mayoral Photography Office

It’s Time to Take a Clearer Look at Bail Reform

In the raucous debate over bail reform, simple facts have fallen out of sight.

This story was published in partnership with New York Focus.

In early March, New York City Mayor Eric Adams lashed out, once again, at bail reform.

“Failing criminal justice laws,” he said in a statement, had allowed a person “with a history of violence who poses a clear threat to public safety to just walk out of court.”

He was referring to a man who had been living in a homeless shelter and was accused of smearing feces on someone in a Bronx subway station. The man had been released after an arraignment weeks earlier without being required to post bail, since he’d been arrested on misdemeanor charges.

“We can’t allow this horrific situation to be the status quo,” Adams continued. The laws must be changed to “keep people who are clearly a danger to others off the street.”

His statement was part of the campaign he began even before taking office to roll back New York State’s landmark 2019 bail reform law, which made a number of lower-level charges ineligible for bail.

His efforts met partial success in the state budget New York passed last month. Governor Kathy Hochul had insisted that the budget include changes to the state’s law. Lawmakers didn’t go as far as she wanted, but they did walk the law back further after having rolled portions of it back in early 2020, which will only further swell jail populations that have recently been increasing.

But in the raucous debate over bail, the actual facts have fallen out of most New Yorkers’ sight. It’s high time to take a more clear-eyed look at the history and impact of bail reform.

What Adams failed to mention is that New York’s bail law is not—and never has been, even before bail reform—about preventing crime. Judges have never been allowed to set bail based on whether someone might commit more crimes. As it used to be throughout the country, bail in New York has only been meant to ensure that people return to court for their later hearings and trials.

Bail reform has in no way failed. In fact, despite concerted attacks from conservative politicians and media, it’s mostly worked the way it was supposed to. The 2019 law was intended as a way to reduce jail populations and ensure people weren’t incarcerated on low-level charges because they couldn’t afford to post bail. And in the years since, it has in fact reduced the state’s jail population while still ensuring that people return to court.

“No one is arguing bail reform is ineffective because people are absconding and we can’t prosecute them,” said Jullian Harris-Calvin, director of the Greater Justice New York program at the Vera Institute of Justice. “People are returning to court.”

How Bail Works

Judges have the option to set bail during arraignment hearings, which are the initial court hearings that occur shortly after someone is arrested for allegedly committing a crime. If the judge is concerned that the defendant will not attend their next court hearing, they can require the defendant to post cash bail—money that defendants will get back only if they return to court, acting as a kind of collateral. (Judges can also remand defendants and send them to jail without the possibility of bail, though this is relatively rare.)

But prosecutors and judges have abused the cash bail system for years, using it as a way to incarcerate people they deem dangerous. Before bail reform, judges routinely set high cash bail amounts even for nonviolent and low-level offenses, forcing nearly 24,000 people in early 2018 to sit in jail simply because they were too poor to buy their way home.

In 2010, Kalief Browder was 16 years old when he was arrested in the Bronx for allegedly stealing a backpack. The judge set his bail at $3,000. His family couldn’t afford to pay it, and Browder spent three years incarcerated at Rikers Island awaiting trial, never convicted and presumed innocent, two of them in solitary confinement. In 2013, the charges were dropped and he was released. About two years later, he died by suicide.

Browder’s case later inspired reforms to New York’s bail law, and in 2019 the legislature passed a law barring judges from setting cash bail for most misdemeanors and nonviolent felonies. If judges do set bail, the law requires them to consider a defendant’s financial circumstances and set an amount that won’t create “undue hardship.”

In late 2019, just ahead of the law going into effect in January 2020, judges started implementing the rules ahead of time. New York’s pretrial jail population—people awaiting trial and not yet found guilty—began to fall. That population stood at 11,906 in November 2019, but had dropped to 8,519 by January 2020, when the law officially took effect. The population continued to fall and reached a low of 7,242 people by that April.

How Bail Reform Is Working

Even though fewer people are sitting in jail before their trials, they’re still returning to court at the same rates as before. Most people who are released without having to post bail in New York City are mandated to check in periodically with one of the city’s three supervised release providers. Those providers report that in all New York City counties except Queens (for which they don’t have data), 91 percent of clients have returned to court in the 14 months since bail reform went into effect, higher than the 87 percent cumulative rate from March 2016 to December 2020 for all boroughs.

The rates are similar throughout the entire state.

According to an analysis by the Vera Institute, between January 2020 and June 2021, 91 percent of people who were released on their own recognizance—in other words, without conditions like bail or supervision—had no bench warrant issued against them, which indicates they attended all their scheduled court dates. The same was true of 84 percent of people under pretrial supervision. The rates are indistinguishable from those of people who had to post bail, 89 percent of whom did not have bench warrants issued against them.

“Bail reform in New York has been a huge success,” said Scott Levy, managing director of policy at the Bronx Defenders. “Tens of thousands of people have been able to fight their cases from home, go to work, take care of their kids, provide for their families, continue with their educations, while meeting their obligations to the court.”

In New York City alone, according to data from the city comptroller, bail was set in 14,545 cases in 2021, a huge drop from 24,657 in 2019.

But ever since New York’s bail reforms went into effect in January 2020, they have been the subject of intense criticism by some lawmakers, prosecutors, and police officers.

Politicians and media outlets have seized on incidents in which a person allegedly committed a crime after being arraigned and released for a different crime. These attacks on the law have prompted state legislators to water down the bail reform law during both the 2020 and the 2022 budget negotiations.

In April 2020, lawmakers rolled bail reform back by making more than a dozen charges eligible for bail that had been excluded under the original law. Many judges have also become resistant to following the law and have started shoehorning cases into the bail-eligible exceptions, and many are failing to ask about defendants’ ability to pay bail, according to court observations conducted by the Vera Institute.

Since the 2020 changes went into effect, the number of pretrial detainees has slowly crept back up. At the end of 2020, the pretrial jail population stood at 9,731—more than a third higher than its record low in April 2020, though still nearly 40 percent lower than its 2018 peak.

Compromises and Carve-Outs

This year’s budget rolls the bail reform law back even further. Two gun charges—criminal possession of a weapon in the third degree and criminal sale of a firearm to a minor—will now be bail eligible. Criminal possession of a firearm—a nonviolent charge involving an unloaded gun—will be subject to bail if allegedly committed after someone was released before their arraignment or trial without bail.

The 2019 reform law made most nonviolent felonies ineligible for bail while allowing judges to set bail for violent ones. According to Yung-Mi Lee, legal director of the criminal defense practice at Brooklyn Defender Services, criminal possession of a firearm is a nonviolent felony that entails an unloaded gun, with no bullets nearby, that no one was intending to use to cause harm. It would become a violent felony, and therefore subject to bail under the original 2019 reforms, if the gun was loaded, ammunition was in the owner’s residence, the serial number was defaced, the owner had a prior felony conviction, or the owner intended to use it unlawfully to scare or hurt someone.

The original bail reform law also exempted theft—the same crime that Kalief Browder was charged with—from bail, along with most misdemeanors.

Theft is a nonviolent charge—if a gun or weapon was involved, it would become robbery. Instead, theft entails “someone going to CVS and taking a bottle of shampoo,” Lee explained. “You’re homeless and living on the streets and you go to the CVS and you steal a sandwich in the refrigerator aisle.”

Now, theft will be eligible for bail and pre-arraignment detention in certain circumstances. A judge may set cash bail for someone accused of theft if the alleged theft occurred while the person was released on a prior charge or given a desk appearance ticket, which is similar to a summons. The judge must also find that the alleged theft was “in furtherance of other criminal activity” and was not “negligible.”

Neither of those terms—“negligible” or “in furtherance of other criminal activity”—has yet been defined.

“It’s obviously going to be subjected to wide-ranging interpretation,” Lee said, by both prosecutors and judges. One judge, for example, might deem stealing $50 worth of items negligible, while another wouldn’t agree. “There’s probably going to be discrepancy across the state depending on who the judge is.”

Harris-Calvin pointed out that while the legislature may be trying to carve out crimes resulting from poverty, that may not be the actual impact.

“Judges didn’t have to hold people who stole sandwiches or laundry detergent before, and they still would,” she noted. “I don’t know how useful that’s going to be in practice, especially when it’s completely undefined.”

Finally, when deciding to set bail, judges will be required to weigh whether a defendant has been previously charged with causing “serious harm” and whether they have a history of using or possessing a gun. It’s yet to be seen what judges decide constitutes serious harm, which is not defined in the budget—it could include physical harm, economic harm, and/or property damage. And given that Black people are disproportionately likely to be arrested and incarcerated, taking past charges into account risks baking systemic racism into the process.

These changes didn’t go as far as Governor Hochul had wanted. But they still threaten to increase the pretrial jail population and further erode the progress that had been made under the original bail reform law. The Data Collaborative for Justice estimates that they will make about 500 more New York City cases eligible for bail each year, meaning hundreds or possibly thousands more statewide. It will be up to judges to decide whether to set bail in those cases, but their track record shows they are likely to do so. “When given the option, they are willing to put people in jail over low-level crimes,” Harris-Calvin said.

The end result of these changes will be more New Yorkers locked up before their trials—not because people are failing to show back up to court, but because powerful politicians are whipping up fear and papering over the facts.

Will Biden Step up on Solitary Confinement?

After a bold campaign promise, the president has remained almost silent as thousands languish in solitary in federal prisons. Advocates say they remain hopeful that he will find his voice on the issue.

ADX Florence in Colorado
Federal Bureau of Prisons

Will Biden Step up on Solitary Confinement?

After a bold campaign promise, the president has remained almost silent as thousands languish in solitary in federal prisons. Advocates say they remain hopeful that he will find his voice on the issue.

This story was published in partnership with Solitary Watch.

“Biden believes no act can justify the inhumane treatment of an individual in the hands of the government.” This surprisingly powerful statement appeared in the sweeping criminal justice reform platform released during the 2020 presidential campaign as part of then-candidate Joe Biden’s pledge to “ensure humane prison conditions” should he be elected. His first step towards fulfilling this promise, according to the statement, would be “ending the practice of solitary confinement, with very limited exceptions such as protecting the life of an imprisoned person.”

It was a logical place to begin, given the growing international consensus that solitary confinement is torture, as well as mounting evidence of its throng of physiological and psychological consequences—from psychosis, self harm, and suicide to recidivism, unemployment, and drug overdoses after release. Short of the death penalty, solitary confinement is arguably the cruelest form of punishment the United States government leverages against its own citizens today.

Advocates have been trying to hold Biden to his word. In June 2021, a group of more than 150 organizations sent a joint letter to the administration urging it to move forward with plans to fulfill the campaign promise. A “Blueprint for Ending Solitary Confinement by the Federal Government,” released the same month by the Federal Anti-Solitary Task Force (FAST), outlines a comprehensive legal and administrative framework with which the administration could curtail the practice in federal prisons and beyond.

“Ending the practice of solitary confinement would end the pain, torture, and trauma of tens of thousands of people languishing in harsh and harmful conditions,” the letter concluded.

But in his first year in office, the only known movement on solitary confinement to emerge from the White House has been a single paragraph in a 17-page draft Executive Order on criminal justice, composed over the course of fall 2021 and leaked in early January by the right-wing website The Federalist.

Focused largely on policing, the order contains one section titled “Improvement of Conditions of Confinement.” One subsection, which until now has not been reported on, instructs Attorney General Merrick Garland to “submit a report to the President detailing the steps the DOJ has taken…to ensure that Restrictive Housing in federal institutions is used rarely, applied fairly, and subject to reasonable constraints” and “to help ensure that individuals in DOJ custody are housed in the least restrictive setting necessary to ensure their safety and the safety of staff, other prisoners and detainees, and the public.”

In order to have anything to report, the Justice Department would presumably need to quickly institute meaningful changes to its policies and practices in the area of solitary—something that, according to the numbers alone, as well as accounts from journalists, advocates, and incarcerated people, it has so far failed to do. What those changes might be is anyone’s guess, since the language, though pitched in the direction of reform, is vague and a long way from the wording of Biden’s campaign pledge.

What’s more, the leaked draft of the executive order has been met with incensed reactions not only from the conservative media but also from House and Senate Republicans and police unions. Some backtracking on the policing reforms, at least, seems likely.

Anti-solitary advocates have not given up hope, though. FAST members have met with staff of the White House Domestic Policy Council, and are still pressing for a meeting with the Justice Department, according to Jessica Sandoval, director of Unlock the Box, one of the organizations principally responsible for the letter and the blueprint. They also believe the administration may soon issue an executive order focused specifically on solitary confinement. “Biden has the opportunity to make significant strides on a fundamental human rights issue,” Sandoval said, “even while he is under pressure on other criminal justice reforms.”

A Past to Reckon With

Both Biden and Harris have plenty to live down in their political pasts if they want to be taken seriously by advocates of prison reform and decarceration. Joe Biden has earned widespread criticism from opponents of mass incarceration for his role in the Violent Crime Control and Law Enforcement Act of 1994. The “Biden Crime Law,” dubbed so by the President himself as recently as 2008, helped propel the “tough on crime” approach that has come to define the country’s proclivity for harsh punishment and mass incarceration.

There can be little doubt that the 1994 crime bill directly contributed to the expansion of solitary confinement across the country. Two provisions of the law, known together as Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) funding, financially rewarded states for ensuring those convicted of certain crimes served a substantial portion of their lengthy sentences.

A 2003 report by the Correctional Association of New York, an independent prison oversight group, found that after the New York legislature voted to dramatically restrict parole opportunities, the state was awarded nearly $200 million in VOI/TIS funds. All of these funds, according to the report, went to building “high-tech lockdown facilities,” including both solitary confinement units and a supermax prison, with a combined capacity of 3,000. The consequences of such isolation were tragic; the report also found that despite never constituting more than 10 percent of the correctional population, people held in solitary accounted for more than half of suicides committed in the New York prison system between 1998 and 2001.

According to a 2012 report by the U.S. Department of Justice, New York was just one of dozens of states across the country to directly allocate VOI/TIS funds in the late 1990s and early 2000s to adding prison beds, including some used for solitary confinement, and to “harden” the security level of existing units.

Kamala Harris first significantly engaged with calls to end solitary confinement as California’s Attorney General. In 2013, 30,000 people incarcerated throughout the state went on hunger strike to protest the use of solitary confinement. The California Department of Corrections and Rehabilitation (CDCR) ignored calls to limit the practice on its own, instead obtaining a federal judge’s permission to force-feed the strikers. And the state, under Harris’s direction, fought for dismissal of a class-action lawsuit on behalf of people serving “indeterminate” periods in solitary, many of whom had been isolated for ten years or more. A settlement was reached in 2015, and California agreed to reduce its use of solitary confinement.

Activists have since accused both Harris and her successors of failing to uphold the state’s end of the agreement. This month, a federal judge ruled that the CDCR continues to commit systemic due process violations in its use of solitary confinement.

What the President Can Do About Solitary

If Biden and Harris are looking to redeem themselves for their record on solitary confinement, as they generally have sought to do when it comes to criminal justice reform, there are a multitude of legal and administrative paths they can take.

As outlined in FAST’s blueprint for the administration, Biden could wield his nearly total power over the federal Bureau of Prisons to institute new limits on solitary confinement in all 122 BOP-run correctional facilities. A simple directive could change the lives of more than 10,100 individuals held in isolation in BOP prisons as of last week. That figure constitutes 7.5 percent of the total population in BOP custody (a solitary confinement rate nearly double the national average) and one out of every six people held in solitary confinement in jails and prisons nationwide, according to recent estimates.

Biden’s former boss Barack Obama used his executive power to address solitary confinement and publicly acknowledge its use in U.S. prisons and jails. In July 2015, Obama directed then-attorney general Loretta Lynch to oversee a report on the overuse of solitary in the federal prison system.

Then, in early 2016, he denounced the practice in an opinion piece for the Washington Post, where he also stated that the federal Bureau of Prisons would adopt the recommendations made in the Lynch report. These included restricting the use of solitary on juveniles and people with mental illness, eliminating it as a punishment for minor prison rule violations, and encouraging facilities to provide individuals in solitary confinement with more out-of-cell time.

An analysis completed by Solitary Watch in January 2016 determined that even had it been implemented in its entirety, the Lynch plan would have left out large segments of the federal solitary population. Since Obama remained in office for only a year, the reductions were far smaller. Under Trump, the number and percentage of individuals in solitary confinement in BOP custody grew to more than 12,000 and 8.2 percent in February 2020. The pandemic led to even more widespread isolation in federal prisons as solitary confinement became BOP’s primary tool to fight the spread of COVID-19. Conditions overall in BOP facilities reached a new low under Trump, including staffing crises, high suicide rates, physical and sexual abuse by guards, criminal activity by staff, and a shameful record of preventable COVID infections and deaths.

At the same time, the appetite for solitary reform has grown since the Obama years, says Tammie Gregg, who worked in the DOJ’s Civil Rights Division during that time and now serves as a deputy director of the ACLU’s National Prison Project. She pointed to the high number of states with pending legislation seeking to limit the use of solitary confinement as evidence that “public opinion has shifted on this front.”

Several FAST members Solitary Watch and The Appeal spoke with said they believe Biden should take much bolder steps against solitary than those proposed by Obama. The President could begin by nominating a progressive with a stated anti-solitary record to replace Michael Carvajal, the Trump-appointed BOP head who recently announced his resignation. Biden could then direct Attorney General Merrick Garland to come up with a new plan to address the use of solitary in all BOP facilities, as well as local jails and private prisons that incarcerate federal prisoners.

The goal of such a plan might be to bring the federal prison system in compliance with the UN’s Standard Minimum Rules for the Treatment of Prisoners (known as the Nelson Mandela Rules), which bar solitary confinement lasting longer than 15 consecutive days, as well as for vulnerable populations like children and people with mental illness. Or it could aim for the even more dramatic changes laid out in the FAST blueprint, which calls for abolishing solitary except as a brief emergency de-escalation measure, and creating alternatives that provide treatment, programming, and safety without extreme isolation.

Biden could also take steps to influence the use of isolation outside of the federal system. He could direct the DOJ’s Civil Rights Division to step up investigations of particularly egregious uses of solitary, and challenge them under the U.S. Constitution, Americans with Disabilities Act (ADA), and Civil Rights of Institutionalized Persons Act (CRIPA). Most recently, one of these investigations found Alameda County, California, in violation of the Eighth and Fourteenth Amendments for their use of prolonged solitary confinement in housing incarcerated individuals with severe mental illness in the county jails.

In addition, Biden could direct the DOJ’s Bureau of Justice Statistics to collect meaningful data on the use of solitary confinement in state prisons and local jails, and the Bureau of Justice Assistance to work with states and counties to reduce their reliance on solitary. The administration could offer states financial incentives to conform to certain limits on the use of solitary, such as those in the Mandela Rules. Such a move would be a particularly apt response to the legacy of federal incentives in the 1994 “Biden Crime Law.”

Time to End the Torture

Any action Biden takes at the federal level would come at a time when the public has shown a growing appetite for solitary reform. One recent survey found that a strong, bi-partisan majority of registered voters supported meaningful limits on solitary confinement, and a slim majority supported limits similar to those laid out by the Mandela Rules. The issue, all but invisible only a decade ago, is now regularly covered by mainstream press outlets from across the ideological spectrum.

Anti-solitary campaigns are now active in at least nineteen states, and legislation to limit solitary for the most vulnerable populations has passed in a number of them, with additional bills in the pipeline, according to Unlock the Box’s Jessica Sandoval. The movement got what many see as its biggest win yet in the spring of 2021, when New York state passed the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act, creating the first law in the nation to command compliance with the Mandela Rules.

While pressing for an executive order that “makes good on his promise to end solitary confinement,” Sandoval acknowledges that such an action would be second-best compared with the real prize: meaningful federal anti-solitary legislation, which can’t be as easily reversed by changes of administration. Bills have been introduced in Congress in recent years, and Sandoval says that more are in the works; but so far none has moved out of committee. The clock is also ticking on the putatively Democratic majority, and congressional Republicans have shown little interest in limiting solitary for anyone but the January 6th riot suspects in the D.C. jail. The best chance for speedy relief for the approximately 10,000 people in federal solitary clearly lies with Biden’s pen.

“Biden could just say ‘I will make the U.S. federal prison system in compliance with Nelson Mandela rules,’ said Johnny Perez, a FAST member who directs prison policy for the National Religious Campaign Against Torture, and a survivor of five years in solitary confinement.

“He could lead the world in ending torture by going further than the Mandela Rules and advancing efforts to completely abolish solitary, with meaningful alternatives,” Perez said. “He could do that right now, he could tweet that tomorrow, President Trump-style… I would love to see that happen.”

A New Jersey Woman Claimed Innocence In ‘Shaken Baby’ Death. Now Her Conviction May Get Another Look.

Spurred by an Appeal investigation into Michelle Heale’s controversial 2015 case, a law professor is asking New Jersey’s Conviction Review Unit to “correct an injustice” and set Heale free.

A New Jersey Woman Claimed Innocence In ‘Shaken Baby’ Death. Now Her Conviction May Get Another Look.

Spurred by an Appeal investigation into Michelle Heale’s controversial 2015 case, a law professor is asking New Jersey’s Conviction Review Unit to “correct an injustice” and set Heale free.

Michelle Heale was babysitting 14-month-old Mason Hess in 2012, when, according to Heale, his body suddenly went limp. She called 911.

“He has no movement in any parts of his body,” she told the operator. “His whole body is lifeless.”

An ambulance arrived and rushed Hess to the hospital. He died days later.

Police and prosecutors claimed Heale, who had no history of violence, had shaken Hess, causing his death. Heale maintained her innocence, but in 2015, a New Jersey jury convicted her of aggravated manslaughter and child endangerment. When the verdict was read, Heale “was in complete shock,” she wrote to The Appeal.

Heale was sentenced to 15 years in prison. At the time, her twins were six years old.

Significant questions about Heale’s guilt have emerged in recent years, spurred by an investigation published in The Appeal in 2020 that tackled the questionable science her conviction had been based upon.

Now, Heale’s conviction may be on its way to getting another look. This week, Colin Miller, a professor at the University of South Carolina School of Law, is submitting an application on Heale’s behalf to the New Jersey Attorney General’s Conviction Review Unit, asking that they “correct an injustice and set Michelle Heale free.” Law student Jasmine Caruthers assisted Miller in preparing the application.

Miller, who is also co-host of the wrongful convictions podcast, Undisclosed, began to investigate Heale’s case after reading The Appeal’s reporting.

“This is one of those cases where forensic science has gone haywire,” said Miller, comparing SBS to the discredited fields of bite mark analysis and microscopic hair comparison. False or misleading forensic science has contributed to more than 700 known wrongful convictions since 1989, according to the National Registry of Exonerations.

Former New Jersey Attorney General Gurbir Grewal created the conviction review unit in April 2019. Since its inception, the unit, which is headed by former prosecutor and family court judge Carolyn Murray, has exonerated just one person, Taron Hill. Hill was wrongfully convicted of murder in 2006 and was released in July. Over 450 applications have been submitted to the unit, according to the attorney general’s office, each involving a potential miscarriage of justice. Nearly 200 of those applications are in the screening process, and another 95 are awaiting screening. Nineteen applications are “currently under active re-investigation.”

Hill is one of 43 people who has been exonerated in New Jersey since 1989, according to the National Registry of Exonerations. Heale’s supporters hope she will soon be added to that list.

At Heale’s trial in 2015, the prosecution relied on evidence that, at worst, has been discredited, and at best, remains highly contested.

Shaken baby syndrome, also known as abusive head trauma, is a theory first developed in the 1970s. Proponents claim that shaking a baby produces a so-called “triad” of catastrophic injuries exclusive to victims of SBS — subdural hemorrhage, retinal hemorrhage, and brain swelling. No other injuries, such as bruising or grab marks, need to be present for the diagnosis. The shaking is so violent, medical experts often testify, that the person last with the child must be the one responsible.

But studies — and a growing number of exonerations — have challenged the tenets of SBS.

“The imprimatur of that incorrect medical conclusion has led not only to wrongful convictions, but also a cascade of collateral harms: decades of incarceration or even imposition of the death penalty, the shattering of families,” said Laura Cohen, a Rutgers University law professor and co-founder of the New Jersey Innocence Project, in an email to The Appeal.

In a 2016 literature review, researchers examined 1,065 studies on SBS in an attempt to determine if shaking, with no external injuries, produced the triad of injuries. In total, 1,035 of those studies were excluded because they had examined fewer than 10 cases. The review didn’t identify a single SBS study that could be characterized as “high quality,” noting that most studies were unable to confirm whether subjects had been the victims of abuse.

A separate study, published by the Belgian Neurological Society, concluded that, contrary to expert testimony common in SBS cases, there are no retinal hemorrhages that are only present in abusive head trauma cases.

“[SBS] has never been validated,” said Keith Findley, co-founder and president of the Center for Integrity in Forensic Sciences and co-founder of the Wisconsin Innocence Project. While defenders of SBS often point to their clinical experience to support their diagnoses that shaking causes the triad, “that doesn’t confirm the shaking is the cause,” said Findley. “It just confirms that they call it the same thing every time.”

Courts, too, have become skeptical of prosecutions based on the SBS triad. In the summer of 2018, about two months after the state Supreme Court refused to hear Heale’s appeal, a trial court acquitted Robert Jacoby of aggravated assault. New Jersey prosecutors had claimed Jacoby had shaken his approximately 11-week-old son. But Jacoby maintained that his baby had unexpectedly vomited and gone limp, at which point he’d taken him to the hospital.

“It is now well established and widely accepted in the scientific community that there are other alternate causes or conditions that ‘mimic’ findings commonly associated with SBS,” the trial judge wrote in his ruling.

In Heale’s case, the prosecution’s medical experts told the jury that illness or an accidental fall — both of which Hess had experienced shortly before his collapse — could not have contributed to Hess’s death.

Alex Levin, then chief of pediatric ophthalmology and ocular genetics at Wills Eye Hospital in Philadelphia, testified that the injuries to Hess’s eyes provided a textbook example of the effects of shaken baby syndrome. The only other possible cause of the injuries, Levin claimed, was if “a television or something crushed his head, unless he was killed in a car accident, unless he fell 11 meters.” The prosecutor asked another witness, Lucy Rorke-Adams, then a neuropathologist at Children’s Hospital of Philadelphia, if there was any doubt that Hess had been shaken to death. Rorke-Adams replied, “No.”

Both Levin and Rorke-Adams have testified for the prosecution in SBS cases where the accused was later exonerated.

Contrary to testimony from the state’s experts, there were other viable explanations for Hess’s death, according to The Appeal’s 2020 investigation.

The day before Hess collapsed, he threw up at Heale’s home. His mother took him to the pediatrician, who diagnosed him with ear and upper respiratory infections, and prescribed antibiotics. His mother, who’d been friends with Heale for several years, offered to keep him home.

“R u sure i don’t want to get any of you sick,” she texted Heale. “Won’t be the first time, won’t be the last time. Everyone will be fine,” Heale replied.

When Hess was rushed to the hospital from Heale’s home, the emergency room doctor diagnosed him with pneumonia.

Hess had also suffered a fall at home about a week before his collapse, his parents testified. In the autopsy report, the medical examiner noted there was a bruise on his forehead.

“Mason just walked into the sliders… think the bump now looks bigger. Leaving the screen on now!!!” Heale texted Hess’s mother the day before his collapse, according to court documents. “Lol unreal,” his mother replied.

Several studies have concluded that symptoms once thought to be exclusively associated with SBS can be caused by something as simple as a short-distance, accidental fall. There can also be a delay between the fall and a child’s collapse or death, according to several case examples Miller cites in Heale’s application.

“You can have cases where initially everything appears okay and then it’s only later when you realize the impact this had,” said Miller.

Before Heale’s trial began, her attorneys contacted Chris Van Ee, a biomechanical engineer and accident reconstruction specialist. Van Ee prepared a report and emailed it to her attorneys, but never heard back, according to Heale’s application. In his report, Van Ee wrote that external injuries would be present on Hess if Heale had violently shaken him. “There are no reported skull fractures, bruises, or other injuries to indicate that Mason was abusively shaken with great force or otherwise assaulted,” he wrote. But his report was never presented at trial. 

“There was an expert — the leading expert — ready, willing, and able to testify,” said Miller, adding that Van Ee’s report presented evidence that Hess’s death was “far more likely” caused by a short fall than by shaking.

“Shaken baby syndrome is a diagnosis of exclusion, not inclusion,” said Miller. “This is something that certainly cannot be excluded as the cause of death.”

In many SBS cases, medical professionals and law enforcement dismiss evidence that supports alternate explanations for a child’s death, said Jessica Henry, a professor at Montclair State University and author of the book, “Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened.”

“Once folks come in with this notion that the child is dead because there must have been some kind of abusive act, they stop focusing on the rest of the medical evidence that would suggest otherwise,” said Henry.

Heale hopes the attorney general’s office will review “all the facts of my case” and “recognize that I am not the woman portrayed by the prosecution,” she wrote to The Appeal.

Heale stays in touch with her twins, now 13, through phone calls, emails, and occasional visits. Before the pandemic, she saw her children two or three times a month, but over the last two years, she’s gone for months at a time without seeing them.

“Physically being away from my children and husband is the hardest part of being incarcerated,” Heale wrote to The Appeal. “Nothing can replace being home and involved with them on a day to day basis.”

Even as her faith in the legal system has deteriorated, Heale has tried to remain optimistic, buoyed by the support of her family and friends. On the first day of the month, she wrote, “Happy February…another month closer to home!”

After 51 Years In Prison, Louisiana’s Longest-Serving Incarcerated Woman Is Free

Gloria Williams, who became known as “Mama Glo” behind bars, was released Tuesday, more than two years after the state parole board first recommended that her sentence be commuted.

Gloria Williams embraces her sister Mary Smith-Moore shortly after her release from the Louisiana Correctional Institute for Women.
Fox Rich | PDM NOLA

After 51 Years In Prison, Louisiana’s Longest-Serving Incarcerated Woman Is Free

Gloria Williams, who became known as “Mama Glo” behind bars, was released Tuesday, more than two years after the state parole board first recommended that her sentence be commuted.

Jan. 25, 2022, was the day Gloria Williams, Louisiana’s longest-serving incarcerated woman, had long been dreaming of.

After 51 years in prison, the 76-year-old had been granted parole. Within hours, she walked out of the gates of the Louisiana Correctional Institute for Women and into the jubilant hugs of her friends and family—including her sister Mary Smith-Moore.

“Over the years, I’ve talked to her, visited her, emailed her,” Smith-Moore told The Appeal. “But to have her touch my face and me be able to hug her, it’s just unexplainable, that emotion, that feeling that you can touch your sister.”

In 1971, Williams, then 25, was arrested in Opelousas, Louisiana, after she and two others tried to rob a grocery store using a toy gun she’d taken from her son. During a struggle with the store’s owner, Budge Cutrera, Williams’s co-defendant, a 16-year-old girl, fatally shot Cutrera with a firearm he kept behind the counter. Nine months later, all three were sentenced to life without parole.

While incarcerated, Williams became involved with the prison ministry and the Big Sisters program, in which long-termers mentor newly-arrived women. Through her counseling and mentoring, Williams earned the nickname “Mama Glo.”

Williams’s release on Tuesday was the product of years of advocacy and patience. In July 2019, she appeared before the Louisiana Board of Pardons and Paroles, which unanimously recommended that Gov. John Bel Edwards commute her sentence to make her immediately eligible for parole. By then, Williams was the only one still imprisoned for Cutrera’s death. The woman who shot him had died 15 years earlier in prison; the other person involved, Philip Anthony Harris, was granted a commutation in 1987.

With the parole board’s blessing, Williams finally had a chance at freedom. But for over two years, the governor took no action on the recommendation for commutation.

Then COVID-19 hit. At the time, Williams was living in a dormitory with dozens of women and no walls or doors separating them.

In early 2020, Williams contracted COVID-19, which developed into bilateral pneumonia. She was hospitalized and placed in the intensive care unit. In May, she was returned to prison. By then, 165 of the prison’s 213 women had tested positive for COVID-19.

Now requiring supplemental oxygen, Williams continued to wait for the governor’s decision. She applied for—and received—an interstate transfer, which would allow her to live with her son and his family in Houston if she were paroled.

Finally, on August 20, 2021, over two years after the parole board’s recommendation, Edwards officially commuted Williams’s sentence, making her eligible for parole consideration. But Mama Glo’s wait for freedom still wasn’t over.

On Tuesday, Williams appeared via Zoom before three parole board members, as well as Cutrera’s son, grandson, and granddaughter.

Williams listened while the three described the pain of losing Cutrera in 1971. “She took away someone we love. We don’t get him back,” Cutrera’s granddaughter said, crying throughout her statement.

Then, it was Williams’s turn to speak. “I cannot change the pain that I’ve caused the Cutrera family,” she started. “Sorry is not enough. I deprived you of your father [and] your grandfather.” Wiping her eyes with a tissue, Williams apologized, stating that she wished she could go back in time and undo her actions.

The three parole board members expressed their condolences to Cutrera’s family, and reminded them that the parole board’s responsibility was to evaluate Williams based on the present circumstances.

“My job today is not to look at the person who did this horrible thing 50 some-odd years ago, but to look at the person she is today,” said parole board member Sheryl Ranatza.

Parole board member Bonnie Jackson said it was the board’s duty to “not consider the crime to the exclusion of everything else,” before citing Williams’s age and low risk score as determining factors in her decision to support parole.

The board members voted unanimously to grant Williams parole, with the stipulation that she have no contact with the Cutrera family.

Hours later, Williams walked out of prison. In addition to her sister and two sons, one of whom was three years old when she went to prison, Mama Glo’s supporters included members of Participatory Defense Movement NOLA (PDM NOLA), an organization founded by a formerly incarcerated couple that had advocated for Williams’s release.

“Mama Glo’s release from prison set a new trajectory for people to believe what’s possible,” Fox Rich, PDM NOLA’s co-founder, told The Appeal. “It will continue to show that everyday people can make a difference in the system.”

Williams’s sister Mary Smith-Moore agreed. “I’m so grateful for the people who stood with us and behind us, who held the doors open for us to walk through.” Four days earlier, Smith-Moore had buried her husband. After the funeral, she prepared to travel to Louisiana for her sister’s parole hearing and possible release. “You have to have somebody when you can’t be there. Families can’t do it alone.”

Williams is now in Texas, reunited with her family, including her two remaining siblings, adult children, adult grandchildren and great-grandchildren, one of whom was born 15 minutes before her release.

After Years Locked up for Stealing Cold Medicine, Reginald Randolph Is Released

But if he loses his appeal and New York Gov. Kathy Hochul declines to grant him clemency, he will likely be sent back to prison.

Randolph and his family in 1997.
Legal Aid Society

After Years Locked up for Stealing Cold Medicine, Reginald Randolph Is Released

But if he loses his appeal and New York Gov. Kathy Hochul declines to grant him clemency, he will likely be sent back to prison.

This story is published in partnership with New York Focus.

Reginald Randolph, a 58-year-old visually impaired man who spent years locked up at Rikers Island after his arrest for stealing cold medicine, was released from New York state prison Tuesday, following a hearing at a Manhattan courthouse.

In a brief proceeding at the New York State Supreme Court Building, Randolph appeared shackled before Judge Althea Drysdale, who warned him that this was not a “get out of jail free card,” and that he must abide by the terms of his release.

Randolph agreed, and Drysdale declared that he would be released on his own recognizance. But Randolph remained shackled — his hands cuffed in front of him and his ankles shackled together — for another 90 minutes.

“I feel great,” Randolph told New York Focus and The Appeal as he sat in the courthouse hallway, waiting for his restraints to be removed. “I feel like I have a normal life. I feel like I’m a normal human being.”

Newly elected Manhattan District Attorney Alvin Bragg, who ran for office promising criminal justice reform, agreed to Randolph’s release pending a decision on his appeal, which could take up to two years, according to his attorney with the Legal Aid Society, Jeffrey Berman. If Randolph loses his appeal and the governor does not grant him clemency, he will likely be sent back to prison.

For now, Randolph will move into The Redemption Center, a supportive housing program that serves formerly incarcerated people in New York City, and will begin mental health and substance dependence treatment, according to Legal Aid.

As first reported by The Appeal and New York Focus, New York Criminal Court Judge Cori Weston, a former public defender, sentenced Randolph in August to two to four years in prison for stealing cold medicine from Duane Reade convenience stores. Randolph had already spent more than 800 days locked up at the Rikers Island jail complex in New York City, even before his state prison sentence began in November.

Randolph’s attorneys have maintained that incarceration poses a potentially deadly risk to their client. Randolph suffers from chronic obstructive pulmonary disease, asthma, schizoaffective disorder, and polysubstance use disorder. He has lived in poverty for much of his childhood and adult life, and has struggled with chronic homelessness since his mother’s death in 2001.

At the time of his arrest for stealing cold medicine, “I didn’t have no stability in my life,” said Randolph. “I was sleeping in subway trains.”

In September, Legal Aid filed a clemency petition with Gov. Kathy Hochul (D) asking that she commute Randolph’s sentence. New York state Senators Jessica Ramos (D-Queens), Gustavo Rivera (D-Bronx), and Julia Salazar (D-Brooklyn), along with more than 200 community and faith leaders, have all urged Hochul to grant Randolph clemency.

Hochul has not made a decision on his petition, according to Legal Aid. The governor’s office did not respond to a request for comment.

Randolph and his social worker, Afeisha Julien, shortly after his release on Jan. 25, 2022.
Elizabeth Weill-Greenberg

Randolph’s path to state prison began in drug court, often hailed as a compassionate alternative to more punitive policies of earlier decades.

After being locked up for more than a year while awaiting trial, Randolph was offered a deal that would get him off Rikers and into a diversion program. First, he had to plead guilty. If he failed to complete drug court and was rearrested, he faced up to 14 years in prison, according to his Manhattan drug court plea agreement.

Three days after being released from jail into a court-mandated treatment program, Randolph left. “It was too much,” he told New York Focus and The Appeal in an interview last year. “It was too much coming at me.” The court sent him to another program; he left after less than a month.

Randolph’s experience is common among participants of judicial diversion programs, which include mental health and drug courts. State lawmakers are considering legislation called the Treatment Not Jail Act, which would direct treatment courts to adopt a harm reduction model guided by healthcare professionals.

The bill would allow people to enter treatment courts without pleading guilty, extend eligibility to people with a variety of disabilities — including developmental and intellectual — and expand the types of offenses eligible for diversion. Judges would also be forbidden from failing participants for not obtaining full-time employment or housing.

Under current rules, drug court participants are subjected to arbitrary restrictions and onerous requirements. In the Manhattan drug court, repeated violations of the court’s rules, such as arriving late, can result in jail time. All Manhattan participants must obtain full-time employment or, if they’re disabled, social security benefits. They’re also required to abstain from drugs and alcohol and submit to weekly drug testing.

The legislation would move away from an abstinence-only model of treatment, expanding the definition of success to include reduced substance use or “improved well-being [and] social stability.” It would also give participants the right to a hearing if they’re accused of violations, so they can respond to allegations against them and cross-examine witnesses.

“We know for a fact that providing human beings with housing and with continued access to their community and any other essentials to life actually helps people recover,” Jessica Ramos, the bill’s primary sponsor in the state senate, told New York Focus and The Appeal.

Ramos’s bill would come too late to help Randolph, but supporters say it could spare people like him years of trauma and incarceration.

Meanwhile, Randolph’s team is pushing for the governor to grant him clemency, which would ensure he isn’t sent back to prison, regardless of how his appeal plays out. But for now, Randolph is cherishing his freedom. Shortly before his shackles came off, he said he’d had trouble sleeping for the past few days. “I was excited about being free,” Randolph said. “Being like a human again.”

Why New York Jail Populations Are Returning to Pre-Pandemic Levels

After the state rolled back a progressive bail law, data from the Vera Institute of Justice suggests judges are ordering more people be held in jails, amid continued worry over COVID-19.

Design: Natalie Pryor; Photo: Vladislav Rechetnya | Pexels

Why New York Jail Populations Are Returning to Pre-Pandemic Levels

After the state rolled back a progressive bail law, data from the Vera Institute of Justice suggests judges are ordering more people be held in jails, amid continued worry over COVID-19.

In mid-September, Angela Reich was sleeping at a supportive living facility for people struggling with substance use when police showed up at her door. They arrested Reich and brought her, in shorts and no bra, to drug court. Reich had started using again, and the facility had contacted the officers.

Kim Durkee, Reich’s mother, said the drug court judge sent her to jail in Broome County, New York, rather than to treatment, “to keep her safe, is what they claim[ed].”

Reich takes mood-stabilizing medication and medication to help with nightmares, which Durkee said she did not receive in jail. As a result, she wasn’t thinking or acting normally, said Durkee, and when presented with paperwork to be released to a treatment program, she did not sign it. She wasn’t released until late November.

Reich’s detention would have worried her mother under any circumstances, but she has been even more fearful during the pandemic. Jails have been “incubators” of COVID-19, according to a recent study. More than 20 percent of people in New York City jails have been infected at least once during their time in custody, and many more people in jails across the state have fallen ill.

But jails are still filling up. Data collected by the Vera Institute of Justice and shared with The Appeal shows that jail populations fell significantly across New York State until April 2020 and then began to rise by late summer,, nearly reaching their pre-pandemic levels by the end of that year. Between April and December 2020, the number of people in the state held pretrial—those charged with a crime and presumed legally innocent—rose by 34.4 percent, or nearly 2,500 people.

Despite some narratives that crime has been on a dramatic uptick, New York’s incidents of the most commonly reported crimes were nearly a quarter lower in 2020 compared to 2011, although there were small upticks in some violent crimes like murder and aggravated assault, according to the state’s data. Those increases are similar to the trend across the rest of the country.

The rise in the state’s jail populations, according to Vera’s experts and a forthcoming report shared with The Appeal, have instead been driven by judges choosing to incarcerate people instead of turning to other alternatives after the state rolled back its landmark bail reform law.

Durkee knows her daughter, like others in jail, struggles with her own issues. “But they’re still people,” she said. “Why is jail the ultimate answer?”

Bail reforms rolled back

In April 2019, in an effort to reduce the number of people in the state’s jails, New York legislators passed a law that barred judges from setting cash bail for most misdemeanors and nonviolent felonies, and required them to assess someone’s ability to pay before setting bail.

Initially, “bail reform actually worked,” said Jullian Harris-Calvin, who collected and analyzed the data and is the director of the Greater Justice New York program at Vera. Though the law didn’t take effect until January 2020, judges started to implement the new rules ahead of time, and jail populations dropped significantly, according to Vera’s analysis. Between April 2019 and April 2020 the number of people incarcerated pretrial fell by 46.2 percent statewide.

“A lot of judges were taking bail reform seriously,” said Harris-Calvin. And even those who didn’t like it still weren’t able to set bail for a large number of charges, she said. More people were “home with their families, going to work, and taking care of their children while fighting their case from home.”

“It seemed really positive,” said Alexis Pleus, executive director of Truth Pharm, a criminal justice reform organization in Binghamton.

But in April 2020, just months after bail reform had gone into effect, the state legislature rolled it back, making more than a dozen charges newly eligible for bail. The rollback followed a flurry of media reports that amplified select cases of people who were released without bail and then allegedly committed other crimes. The state rolled back its law “before there was any way there could have been data or any analysis to prove that bail reform was leading to growing crime rates,” Harris-Calvin noted.

At first, jail populations continued to decline anyway in response to the public outcry to release people at the start of the pandemic. But all of that began to fade in the summer of 2020. “We’ve been seeing our jail population tick back up,” Harris-Calvin said. In some counties, such as Cortland and Onondaga, the pretrial jail populations were higher at the end of 2020 than before bail reform took effect.

Courts shut down in response to the pandemic so cases took longer to process. Many state prisons stopped accepting transfers from jails, forcing people to wait months, while others were held past their release dates if they had been exposed to COVID-19.

Judges setting bail in many cases

And just as the fear mongering over the bail law got to the state legislature, Harris-Calvin suspects that “it also took hold of judges and prosecutors.”

Between June and October of 2020, Vera researchers observed 300 virtual arraignments in Broome, Erie, and Tompkins counties—counties diverse in their geography, size, and demographics, and where pretrial populations rose an average of 31 percent after the start of the pandemic. Despite the fact that fewer than a third of cases concerned bail-eligible charges, judges set bail or ordered someone to be detained in more than two-thirds of cases, according to data shared with The Appeal.

Vera’s court observations have shown that many prosecutors and judges are “trying to shoehorn particular cases into the new exceptions to the bail law,” she said. Judges are also still resistant to the law: In the court observations, judges routinely stated that they only ordered people to be released when charged with bail ineligible misdemeanors and nonviolent felonies because the law forced them to.

The state’s bail law still requires that judges take financial circumstances and ability to pay into consideration when setting bail. But “judges aren’t taking that seriously,” Harris-Calvin said. In more than 70 percent of cases where judges set bail, according to Vera’s observations, neither the judge nor the defense attorney brought up the person’s ability to pay it. “In courtrooms, there’s actually no discussion at all about someone’s financial circumstances,” Harris-Calvin said.

In response to a request for comment, Lucian Chalfen, director of public information for the New York court system, said in an email: “At arraignment, Judges set bail based on the facts and circumstances of the case solely to ensure a defendants [sic] return to court. If a defendant has an issue with the amount set, they can appeal the decision to the Appellate Division.”

Tompkins County has experienced a slightly different trend than the other counties, according to Vera’s data. Thirteen people were held pretrial in April 2020, 23 in August, and 17 in December. “Tompkins is doing very, very well at keeping the numbers as low as possible” thanks to investments it has made in alternatives to incarceration programs, said David Sanders, the former criminal justice coordinator for the county. But racial disparities increased: While the incarceration rates of Black and white people were nearly identical in May and June 2020, the gap had reopened by July.

Dangers of COVID-19 in jails

Being confined to jail is particularly dangerous, as COVID-19 continues to be a threat, according to advocates. The Broome County jail has been declared a COVID-19 hotspot at various points during the pandemic. At first people in the jail weren’t given any protective equipment like masks or sanitation equipment, advocates say; the jail eventually handed out masks but never gave out cleaning supplies. People who Pleus’s organization has worked with have told her that they were given one Tylenol a day when suffering from COVID-19 and little medical attention. Every time someone in a pod of incarcerated people got exposed, they would all go into lockdown for 10 days.

“It’s an unimaginable horror story,” said Bill Martin of Justice and Unity for the Southern Tier.

As in Broome County, the jail population in Erie County “started to creep back up” last fall, said Colleen Kristich, community researcher at Partnership for the Public Good. Advocates were alarmed at the lack of masks and hygiene products — not to mention the inability to socially distance in cramped living spaces.

Cortez Foster was arrested in January 2020 during a traffic stop and barred from posting bail to get out of the Erie County jail because he was on post-release supervision from a prior arrest. When the pandemic started, he said he and other incarcerated people weren’t given access to cleaning supplies and weren’t issued masks until much later in the year. Correctional officers entered units without masks on. Foster worried that his heart murmur put him at increased risk if he were to get COVID-19. “[W]e don’t know if we will contract this deadly virus while being held hostage in this facility that can not provide us with proper medical care,” he wrote in a petition in April 2020. People who tested positive were put into one unit together. “It was sickening. It was horrible,” he told The Appeal.

While in jail, Foster missed the first year of his son’s life, and his fiance struggled to pay her bills while caring for a young child on her own. His mother went into cardiac arrest, eventually requiring surgery, but Foster couldn’t get released to care for her. Once he was released this past January, “she got her confidence … back up simply because she knows her son is home,” Cortez said.

Where lawmakers stand

There’s little appetite in Albany for another fight over bail reform, Harris-Calvin said, and some lawmakers are trying to further weaken the law, not strengthen it. U.S. Representative John Katko, whose district includes Syracuse, has introduced federal legislation that would give judges more power to impose bail if they believe someone might be dangerous. Shortly after winning the election for New York City mayor, Eric Adams said rolling the state bail law back further to give judges more discretion will be a top priority.

But other lawmakers have raised concerns about whether high bail amounts are risking people’s health. In late November, U.S. Representatives Carolyn Maloney and Alexandria Ocasio-Cortez sent letters to all five of New York City’s district attorneys urging them to seek lower bail in order to reduce the city’s jail populations. “We have grave concerns that excessive bail amounts are leading to unnecessary pretrial detention and contributing to a humanitarian crisis in New York City’s jail system, particularly on Rikers Island,” they wrote of the jail complex there. Along with U.S. Representative Jamie Raskin of Maryland, they also sent letters to all district attorneys urging them to release anyone incarcerated on a misdemeanor or nonviolent felony, or those who face “significant health risks.”

To reduce jail populations at Rikers and throughout New York State, Harris-Calvin argues that state lawmakers have to “give the bail reform law more teeth.” First, she said, lawmakers need to undo the rollback of the law. But they also need to issue guidelines for how judges and prosecutors should take someone’s financial situation into account.

“We need to continue to move bail reform forward and strengthen its protections of people who are presumed innocent,” Harris-Calvin said. That will “allow for more people to go home.”

Gay And Trans ‘Panic’ Is Still Being Used To Justify Anti-LGBTQ Attacks

Some states have banned the controversial legal defense, but other efforts, including at the federal level, are facing challenges.

Tingey Injury Law Firm | Unsplash

Gay And Trans ‘Panic’ Is Still Being Used To Justify Anti-LGBTQ Attacks

Some states have banned the controversial legal defense, but other efforts, including at the federal level, are facing challenges.

When news broke in July 2020 that Memphis firefighter Mack Bond had been shot to death in his car, his colleagues and community were stunned. Bond, 58, had been with the Memphis Fire Department for 21 years and was remembered as a committed public servant.

“Mack faithfully served as a member of this department for over twenty-one years and was a valued member of our MFD family,” Chief Gina Sweat said in a statement at the time. “He will be greatly missed.”

A couple, Carlton Wells and Danielle Mack, were arrested days later in connection with the shooting, and news reports of the arrest detail a grim motive for the killing. According to a local news report, Wells told police that he shot the firefighter multiple times after Bond allegedly propositioned Wells and his girlfriend for sex, making Wells uncomfortable. The area where Bond was shot was known as a gay cruising area, according to a report in Out Magazine. A grand jury indicted Wells in October 2020 on two charges: second-degree murder and possessing a handgun with a felony conviction. Mack was also indicted on a felony charge of evidence tampering.

Wells’s statement shocked queer activists, who have come to call the claim and others like it the gay and trans panic defenses. And Tennessee is one of dozens of states where defendants are able to make similar statements in court as justifications of their violence against queer people. And while a handful of states have passed laws excluding the defenses from allowable legal arguments, roadblocks still exist, including at the federal level.

The gay and trans panic defenses are not criminal legal defenses on their own, like self-defense, but instead used to argue provocation, diminished capacity, or insanity, as well as self-defense, according to Carsten Andresen, a criminal justice professor at St. Edward’s University in Austin, Texas. In other words, a victim’s sexual orientation or gender identity is argued to have provoked the defendant’s “panic” and thus the sometimes deadly violence inflicted on a queer victim.

“I describe it like carbon monoxide,” Andresen said. “There’s a hazardous byproduct of putting out all these toxic ideas about gay people and other LGBTQ+ people — this idea that they’re predatory. It’s ridiculous.”

Andresen said he has identified more than 200 cases in the last 50 years in which the panic defenses have been used. He estimates, however, that there are hundreds of cases he has not yet found. The Williams Institute at the UCLA School of Law recently found that gay and trans panic defenses have appeared in publicly reported court opinions in roughly half of U.S. states since the 1960s.

The institute compiled a non-exhaustive list of cases that used the defense. Those cases typically centered on unwanted flirtations and sexual advances, or discovery of someone’s trans identity. Arguments that focused on flirtations or advances also relied on stereotypes of queer people, mainly queer men, as a sex-craven predators and claims were often made that the victims were attempting to sexually assault the defendant.

In some cases identified by legal scholars as employing the defense, defendants still received harsh sentences. Jaron Nabors was sentenced to 11 years in prison in 2006 in Alameda County, California, after pleading guilty to voluntary manslaughter in the death of trans teenager Gwen Araujo, who was beaten and buried in a shallow grave by Nabors and three other men after they learned she was transgender. In 2016, James Dixon was sentenced to 12 years in prison in New York City after he pleaded guilty to manslaughter after beating to death Islan Nettles, a trans woman with whom he’d been flirting. In 2018, James Miller of Texas escaped a murder or manslaughter charge, but he was found guilty of criminally negligent homicide and sentenced to six months in jail and 10 years of probation after fatally stabbing Daniel Spencer in 2015. Miller told police that Spencer got angry after Miller rejected sexual advances and became violent.

But as controversial as the defenses are, Andresen’s research shows that they are still somewhat effective. In a sample of 104 cases, he found that murder charges were reduced for people using the defensed 33 percent of the time, resulting in relatively shorter prison sentences. Only a handful of the cases Andresen identified resulted in acquittals.

Andresen and other critics of the gay and trans panic defenses said there is a significant difference between claims of self-defense and crimes that show an obvious anti-queer bias. They point specifically to disproportionate violence inflicted on queer victims that they say belies defendants’ self-defense claims.

“It’s so over the top,” Andresen said. “If you look at somebody that in real life suffered a horrific crime, and then they are lashing out … nobody does it like that.”

In one such case, Joseph Biedermann was acquitted of murder in 2009 in Illinois after he stabbed Terrance Hauser 61 times. Biedermann said he stabbed Hauser after Hauser allegedly drew a sword and threatened to sexually assault him. Rick Garcia, Equality Illinois’ political director at the time, blamed the acquittal on the gay panic defense.

“The gay panic defense is passe but, unfortunately, it still works in some places,” Garcia told the Chicago Tribune. “It seems to me that this jury based its verdict not on the facts but on deep seated anti-gay sentiment.”

Queer people, particularly queer people of color, experience disproportionate violence. An October 2020 study analyzing data from the National Crime Victimization Survey found that queer people are almost four times more likely to be the victims of violent crime than people who identify as straight.

And this year is the deadliest on record for violence against transgender people, according to the Human Rights Campaign. As of Nov. 20, there were 47 homicides of trans people in the U.S., mostly Black or Latino. Last year held the previous record, with 44 known killings. Activists have long said the true number is likely much larger if accounting for unreported deaths and those misreported by police departments, the media, and victims’ own loved ones.

Kristen Browde, co-chairperson of the National Trans Bar Association, said the gay and trans panic defenses particularly impact transgender women because of the disproportionate violence they face. “I find it outrageous that any judge in any court would for a moment tolerate the thought that all people are not equal, that all lives are not of the same value,” Browde said. “And that is what [the gay and trans panic defense] is saying. When you allow a defense like that, somehow one person’s life is worth less than another’s because that person is transgender.”

In the face of deadly violence against trans people, some legislators have made efforts, with varying success, to ban the gay and trans panic defenses in courtrooms across the country.

In 2013, the American Bar Association unanimously approved a resolution that called on state legislatures to ban the defenses, and the following year, California became the first state to do so. Virginia, Vermont, Oregon, and Maryland enacted a ban on the defenses this year, bringing the total number of states to ban the defense to 15, along with the District of Columbia.

Maryland Senator Clarence Lam, a Democrat who sponsored his state Senate’s version of the bill, told The Appeal that he was surprised at how quickly the measure passed.

“I was under the impression that it’d take more than one session to get this done and I was pleasantly surprised it passed in one full legislative session,” Lam said. The bill was introduced before the COVID-19 pandemic, but a shortened legislative session left the bill on the floor. It was reintroduced last year and passed unanimously in both the state House and Senate.

“I think it speaks to where society is these days in recognizing LGBTQ+ rights and recognizing that these are regular people just like everyone else,” Lam said.

Among legal scholars, however, views about the legitimacy and legality of the defense vary.

In a 2008 paper about the defense, George Washington University Law School professor Cynthia Lee wrote that legislative bans were misguided because courtroom arguments and education about LGBTQ+ issues were more apt to counter the problematic defenses. But in a 2020 research paper revisiting trans panic defenses, Lee wrote that she has since changed her mind, believing the bans to be an important and effective tool.

“All the education in the world will not encourage an individual who is explicitly biased against transgender individuals to see the victim in a trans panic case as an ordinary human being who did nothing to provoke the defendant other than being a transgender person,” Lee wrote in the paper.

Some, including Andresen, the St. Edward’s University professor, have voiced concerns that the bans could be overturned through lawsuits accusing them of violating defendants’ due process rights. But in her 2020 paper, Lee argued that under the current U.S. Supreme Court precedent, the bans would be constitutional.

“It is unlikely that the Supreme Court would find that a legislative ban on the trans panic defense violates a defendant’s due process rights,” Lee wrote.

But not all efforts to ban the defenses at trial have been successful. “Sadly, there are many, many states where bills to do away with this excuse for violence have been introduced but those bills are languishing,” said D’Arcy Kemnitz, executive director of the National LGBT Bar Association. “And it makes me so upset to have to say this, but I have seen it time after time — those bills often will become law only after someone gets hurt or killed.”

In Texas, for instance, a bill to ban the defenses, introduced by state Representative Gina Hinojosa in November 2020, failed to make it out of committee.

Hinojosa, a Democrat who represents parts of Austin, expressed disappointment that the bill failed along party lines after a Republican colleague backed out of an agreement to support it. She says she intends to reintroduce the bill, however, or pass it on to a colleague to sponsor.

“I do think that my Republican colleagues were open and I think some may have even been convinced, but because LGBTQ+ issues have become so polarized … they didn’t think they were free to vote in support of the bill without facing political repercussions in a Republican primary,” she said in a phone call.

Hinojosa said a nonbinary constituent brought the issue to her attention and motivated her to take it up. She believes the ban is a crucial way to ensure equity within courtrooms across the state.

“This is a basic justice issue,” Hinojosa said, “and until we’re able to remedy the law, members of our LGBTQ+ community will be less safe, and less protected by our state laws.”

State legislatures across the country have also tried to limit the rights of transgender and other queer people. Texas legislators in particular have introduced 47 bills this year — three times more than any other state — targeting trans youth in sports, gender-affirming care, and birth certificate updates, according to reporting by The 19th.

Scholars like Browde of the Trans Bar Association say similar gridlocks in Congress could also doom a bill to abolish the defenses in federal courts. In April, U.S. Senator Ed Markey of Massachusetts and Representative Chris Pappas of New Hampshire, both Democrats, introduced the Gay and Trans Panic Defense Prohibition Act. Markey is focused on building support for the bill as it moves through the House Judiciary Committee, said his press secretary, Taylor St. Germain.

“It’s common sense legislation that has support across the country,” St. Germain said in a phone call. “Senator Markey is of the belief that these so-called defenses only exacerbate bigotry facing people and take away the legitimacy of the federal prosecution.”

How the NYPD’s Troubled Sex Crimes Unit Is Set Up To Fail Victims

Former top cops say a culture of neglect at the NYPD has left inexperienced and poorly trained officers in charge of some of the department’s most sensitive cases.

NYPD officers at an Occupy Wall Street protest in November 2011
Teresa Shen | Flickr

How the NYPD’s Troubled Sex Crimes Unit Is Set Up To Fail Victims

Former top cops say a culture of neglect at the NYPD has left inexperienced and poorly trained officers in charge of some of the department’s most sensitive cases.

The biggest police department in the country has been under fire for bungling sex crimes for years — and retired New York Police Department officials say the situation has only gotten worse.

The Special Victims Division (SVD) is now full of officers who have little to no investigative experience, sources say. At the same time, structural problems created by the NYPD discourage talented detectives from joining the SVD but incentivize those unqualified officers to join in search of a promotion, even if they have no care or interest in investigating the sensitive cases assigned to the division.

Sources also say the SVD has allowed in some “hooks” or “contracts” — members of the NYPD who have used their connections within the department to get the jobs they want, regardless of their qualifications. In addition, training for special victims detectives was suspended when the COVID-19 pandemic began, meaning many inexperienced investigators who joined the SVD since then have received almost no specialized training.

Advocates, lawmakers, and four former Special Victims Division supervisors who spoke with The Appeal say the NYPD has spent years neglecting serious structural problems that have long damaged sex crimes and child abuse investigations in New York City. In multiple cases, women were assaulted and children were killed after detectives failed to appropriately investigate reports of rape or abuse. But, after a city watchdog agency released a damning report on the SVD in 2018, the situation has worsened significantly, sources say.

In a statement shared with The Appeal, Sgt. Edward Riley, a spokesperson for the NYPD, said that the department has made the SVD better in recent years, not worse. “These assertions are false,” Riley wrote in an email to The Appeal. “Training has been enhanced, staffing has been increased, cases per investigator have been reduced. These are just some improvements that were put in place since the report.”

But sex crimes and child abuse victims who have ended up with untrained and unqualified detectives assigned to their cases have suffered real consequences. In 2019, a special victims detective falsely told a rape victim that her identity would become public if she went forward with her case and the only way to avoid publicity was to close it. When the woman’s alleged attacker was later arrested on burglary charges, investigators made several more errors that ultimately led to the man’s release. He then attempted to rape three more women. That same year, another special victims detective falsely told a rape victim that women often lie about being raped to get back at a boyfriend or avoid being deported, then didn’t collect crucial evidence or follow up on leads in her case. At a recent City Council hearing, a woman named Christine said after she was drugged and raped in September 2020, investigators closed her case without her knowledge, didn’t collect video evidence or interview witnesses, tried to make her pay over $1,000 to get her hair tested for date-rape drugs, and refused to connect her to anyone that help her figure out how to pay for the test.

“Rape is not a priority for the NYPD,” said Jane Manning, an advocate for sexual assault victims and director of the Women’s Equal Justice Project. “They could fix this if they wanted to. But they won’t give Special Victims the staff and resources to succeed.”

The 2018 report showed that NYPD leadership ignored requests to provide the SVD with appropriate staffing and resources for years, though the NYPD has about 55,000 employees and a $5.4 billion budget at their disposal to rectify these problems.

“Not a single operational issue listed in the report from three years ago has been resolved,” retired Special Victims Division chief Michael Osgood, who is still in contact with many staff members in the division, told The Appeal. “But worse than that, most of the internal systems have been abandoned or decommissioned, like quality management units and over a dozen training courses. Nothing has been corrected, in fact things have gotten worse.”

Osgood said the SVD is also now “flooded with white shields — police officers directly from patrol with no investigative experience” and that many assignments to the SVD are “political favors called ‘hooks’” which exacerbate problems at the division by adding investigators who may not necessarily care about the work.

Osgood was in charge of the Special Victims Division for nearly a decade before he was forced out in 2018. He says he was ousted in retaliation for cooperating with the Department of Investigation inquiry, despite commands from NYPD leadership to obstruct the investigation. Now, he is suing the city and several top NYPD officials over his ouster and says that the NYPD prioritized hiding the department’s shortcomings over helping crime victims.

“I saw what the inadequacies of the division are doing to thousands of victims,” Osgood said. “Why can’t the NYPD structure a correctly organized SVD? It’s a combination of sexism, ineptitude, and they’re not accountable to anybody.”

Through Riley, the NYPD said, “The accusations made by retired Chief Osgood are not based on facts” and defended the department’s process for hiring and training special victims investigators. “Special Victims Unit investigators bring a victim-centric and evidence-driven approach and work tirelessly to build the strongest possible case. The NYPD is committed to ensuring that all sexual assault survivors feel the safety and support needed to come forward and help the NYPD bring them the justice they deserve,” Riley said.

Chart by Natalie Pryor

Between 2018 and 2020, the number of investigators at the SVD increased by 29, but the experience level of investigators has dropped precipitously, according to data from the NYPD.

The NYPD has a grading system for detectives: third-grade detectives are those with the least amount of experience; second-grade detectives are ones who have been promoted and ideally have much more experience; first-grade detectives are even higher in the ranks. In 2018, the SVD had 12 first-grade detectives and 14 second-grade detectives. By 2020, those numbers dropped to four and eight respectively, meaning the division had lost 14 higher-quality detectives. During that same time, 21 third-grade detectives were added to the division. Fifteen officers were also added, bringing the total number of police officers without detective experience working in a division that investigates extremely complex criminal cases to 63, up from 48 in 2018.

Former special victims supervisors who spoke with The Appeal said new investigators are coming into the division with very little skills or experience. One sergeant said that many of the officers joining his squad were white shields from the transit bureau. He said he could not recall any actual detectives joining his squad.

“It’s one thing to bring in someone doing investigations in another division, they have some foundation to work off of,” said retired Lt. Craig Nilsen, who worked for the SVD from 2015 to 2021. “Taking police officers off patrol with hardly any investigative skills — it’s like taking a quarterback out of high school and throwing them into the Super Bowl.”

“If you’re investigating a rape, there is no room for error,” Nilsen said. “It’s a pervasive issue.”

The NYPD defended the experience level of police officers who have joined the SVD in recent years. In an email to The Appeal, Riley said that “these are seasoned, well-rounded cops,” who “undergo comprehensive training” and are “committed to this important and challenging work.” Riley said some officers previously worked on domestic violence prevention or neighborhood coordination teams and “are familiar with investigating sensitive cases and managing large caseloads.” Regarding the significant loss of first and second grade detectives in recent years, Riley said the NYPD has had “unusually high attrition” over the last 18 months.

It is possible to get more experienced detectives to join the SVD, former supervisors and advocates say, but the NYPD isn’t doing it. Most members of the homicide squad are first- or second-grade detectives, and only 20 percent of the squad are third-grade detectives. There were no officers on the homicide squad as of 2018. Yet nearly 68 percent of investigators in the SVD were third-grade detectives as of 2020, according to data from the NYPD presented at a City Council hearing this year. And nearly one-fourth of SVD investigators are officers without detective shields.

“No police officers go into homicide, you have to be a third-grade detective to be considered for transfer into homicide, so they must have some control over it,” said Mary Haviland, an advocate for sexual assault survivors and former executive director of the New York City Alliance Against Sexual Assault.

Chart by Natalie Pryor

The increasingly inexperienced members of the SVD also have far more cases than comparable divisions. In 2020, the city’s sex crimes and child abuse investigators dealt with an average of 47 cases each. But the city’s homicide detectives each had fewer than three cases to investigate on average in 2018, the most recent year for which data is available.

It is difficult to attract highly skilled detectives to the SVD, former supervisors say, because there are no incentives for them to join. Because of the way the NYPD’s detective grading system works, investigators with experience working for other detective squads, such as the vice enforcement or criminal enterprise divisions, may lose their opportunity to get a promotion if they move to another squad.

“If you’ve been in the precinct detective squad for 10 years, they’ll put you on the grade list [to get a promotion], but if you leave the office, you’ll no longer be on that list,” said the former supervisor, who asked not to be named because they still have ties to the division. “So they won’t leave.”

There is also little opportunity for promotion once inside the SVD, sources say. Promotions to second or first grade are discretionary, meaning NYPD leadership ultimately decides which detectives from across the department they want to award the limited number of grade promotions to. Detectives have long criticized the NYPD’s promotion system for being opaque and based more on connections than qualifications. And the NYPD’s longstanding refusal to even allocate the appropriate number of investigators to the SVD has made the impression that there is little chance for getting a grade promotion once inside the division.

“It is totally arbitrary in the NYPD the way the [grade] promotions come down,” said Nilsen, who was also a supervisor. “It’s very hard to get second- and third-grade promotions. It’s who you know and if you’re well liked. It’s extremely hard to get, only a small amount of slots come through every month, and how they’re divvied up are not necessarily fair.”

The Appeal shared its reporting regarding grade promotions with the NYPD, but the NYPD did not respond to statements made about the arbitrary nature of these promotions. Instead, Riley said that SVD investigators have attained grade promotions, but promotions have been less frequent across the department during the COVID-19 pandemic.

The inclusion of “hooks” or “contracts” in the division who use their connections within the NYPD to get a job they may not be qualified for exacerbates the problem with detective quality in the SVD. For example, if a rookie cop has an uncle who is a chief, the chief could place a call to SVD leadership and ask that they place the rookie in the division, regardless of qualifications or performance history. These transfers can be approved by the SVD’s commanding officer or by more senior leadership outside the division.

Although there is little incentive for qualified detectives to join the division, sources say that some rookie cops, including hooks, want to move to SVD because they see it as an easy way to get a promotion, since officers are automatically promoted to detective third grade after doing 18 months of investigative work.

In written testimony submitted to the City Council this year, Osgood, the SVD’s former commanding officer, said several people with intimate knowledge of the division’s personnel process told him that a significant number of current SVD investigators are hooks who got in by cashing in on political favors.

“Those unqualified persons will cause investigative damage for the next decade,” Osgood wrote in his testimony.

During a City Council oversight hearing on the Special Victims Division in October, the division’s current commanding officer, Michael King, said people who he has not selected are sometimes transferred into the division. He said in those cases, “the transfer process usually is at the discretion at a level above the Special Victims Division.”

The Appeal reached out to King about systemic issues at NYPD and its oversight of the SVD, but did not receive a response.

Nilsen said the transfers of hooks into the SVD is a symptom of the division having so few people interested in joining.

“It’s that or nothing,” he said. “You need some people there. In a perfect world, you’d have a ton of qualified candidates and you’d choose the cream of the crop, but this is what we’re dealing with.”

Before publication, The Appeal shared findings regarding hooks in the SVD with the NYPD. While a spokesperson for the department responded to many other statements shared by The Appeal, they did not respond to nor deny The Appeal’s statements regarding hooks.

Not only does the SVD currently have many inexperienced investigators, those who joined last year have also received little to no training, according to the NYPD’s own data.

In 2019, 77 investigators took a 10-day course on criminal investigations, 72 took a five-day course specifically for special victims investigators, and 71 people took a four-hour course on trauma-informed interviewing.

In 2020, only eight people took the criminal investigators course, eight took the trauma-informed interviewing course, and none took the specialized course for SVD investigators. And while more people took an additional course on the forensic experiential trauma interview technique (FETI), King said at the City Council hearing that over one hundred investigators still had not received the training and as a result are not allowed to interview victims by themselves.

In an email, NYPD’s Riley said it is not accurate to say many investigators who have joined the SVD since COVID-19 began have received little to no specialized training: “All members transferred to SVD received CIS [criminal investigations course] and SVD [special victims division investigator’s course] training.” But Riley also said the NYPD training attendance data cited above by The Appeal is accurate.

In addition, Riley said that FETI training did stop for a period of time after the department’s contract with the training vendor expired. They have now found a new vendor and “the 100 or so investigators transferred into SVD during this gap period” will get that training.

Course 2019 Attendance 2020 Attendance Length
Criminal Investigations Course 77 8 10 Days = 80 hours, 60 hours of Classroom Instruction
Special Victim Investigator’s Course 72 0 5 Days = 40 hours, 29.5 hours of Classroom Instruction
Trauma Informed Interviewing 71 8 4 hours of classroom instruction
Forensic Experiential Trauma Interview 0 49 7 days = 49 hours, 4 days of classroom instruction and 3 days of practical applications of FETI techniques.

In its training report, the NYPD noted that all training after March 12, 2020 was canceled due to COVID-19. Yet the NYPD’s report also indicates that all of the courses are a mix of PowerPoint slides, lectures, and interactive discussions, all of which likely could have taken place over online video conferences.

Asked at a city council meeting why the SVD did not use online meetings to train special victims investigators during the pandemic, King, the current SVD commander, said that the detective bureau is in charge of training, not the SVD, so he doesn’t know why they didn’t continue the trainings.

“We didn’t have enough people, and they weren’t properly trained, it was sad,” said Sgt. Mike Rothenbucher, who retired in 2020 after spending about seven years working for the SVD. Rothenbucher worked on child abuse cases and said he could not imagine having a child who was a victim of abuse and then having a detective assigned to the case who did not know what they were doing.

He also said that caseloads were so out of control, they were borrowing people from other squads just to handle the cases that were coming in, though other squads were also stretched thin. “We were robbing Peter to pay Paul,” Rothenbucher said.

When detectives failed to thoroughly investigate the cases assigned to them, deaths, further harm, and retraumatization was the result for many New Yorkers who rely on the SVD to respond to reports of sexual assault and child abuse. Being assaulted, penetrated, or violated against your will can cause lasting psychological and emotional wounds. When victims go to the police for help, but are instead treated with scorn and disbelief, it deepens those wounds.

“The failure to fix the Special Victims external systemic factors,” former SVD commanding officer Osgood wrote in testimony to the City Council, “has resulted in thousands of cases diluted, thousands of victims not participating in their investigation, [and] an array of catastrophic events.”

Several children killed in New York City in recent years were known to the NYPD before their deaths. In September, 1-year-old Legacy Beauford was killed and sodomized. The New York Times reported that police had received at least three 911 calls about a baby crying at Legacy’s home in the Bronx since May. The Times also reported that in July, a special victims detective was investigating an allegation that Legacy’s older brother was being sexually abused. According to The Times, the case was closed without any children being examined or interviewed. Legacy was killed two months later.

In an email to The Appeal, Riley said all three 911 calls were made anonymously with no call back information. “One 911 call was dispatched as an ambulance call and was unfounded,” Riley said. “The other two were dispatched as possible child abuse. Officers responded and observed the children to be in good health with no visible marks or injuries and a report was taken.”

In August, child care workers told the police both 4-year-old Jayce Eubanks and his 5-year-old brother had visible injuries. The two were interviewed at a Child Advocacy Center, but said they were injured while playing, the New York Times reported. Police said Jayce was given a referral for a medical exam, but never showed up for an appointment. By Sept. 12, Jayce was dead. An autopsy found that the 4-year-old had a fractured skull, broken ribs, a perforated stomach, and bites on his ears.

At the City Council meeting in October, King admitted that what happened in Jayce’s case “was a mistake by the investigator.” King said the investigator should have filed a report that would have required officers to visit the child’s home after he did not show up for a medical exam. Instead, no report was filed, the case was closed, and Jayce was killed.

Not all sexual assault survivors want police, prosecution, and incarceration to be the only option when it comes to seeking justice. Decades of relying on police to respond to sex crimes has not reduced the prevalence of sexual assault, nor has it consistently produced positive outcomes for victims. But survivors who seek other ways to heal, like restorative justice processes, have limited options and are often left choosing between seeking punishment or doing nothing at all.

The survivors who do choose to report their assault to the NYPD are too often met with cruelty or indifference. A survey of 20 anti-violence organizations that work with an estimated 5,000 sexual assault survivors per year across New York City found that a strong majority of providers say that based on their experiences with victims, the SVD is not doing a good job responding to survivors. Nearly all providers agreed that survivors feel ignored by police.

The NYPD told The Appeal that its 2020 year-end rape clearance rate (a measure of how many cases are closed through arrest or exceptional means, such as the death of a suspect) was 40.7 percent. But that only includes vaginal rape case and exclude all cases of anal and oral rape, a practice of undercounting rapes for which the NYPD has come under fire. Including these cases gave the NYPD a quarterly clearance rate of between 25-33 percent (the NYPD doesn’t publish annual clearance rates). This means that the vast majority of rapes reported in New York City do not lead to an arrest. And it’s possible that clearance rate is even lower, since the NYPD has historically labeled many rape cases as “unfounded,” defined as false or baseless, and those cases would not be included in the overall stats.


NYPD Rape Clearance Data

2020 Bronx Brooklyn Manhattan Queens Staten Island Citywide
Q1 34.1% 24.5% 25.4% 26.0% 0.0% 26.2%
Q2 37.5% 32.4% 6.3% 44.4% 35.7% 32.7%
Q3 29.7% 38.0% 17.5% 15.2% 13.3% 25.0%
Q4 20.8% 26.9% 20.3% 34.2% 22.2% 25.9%

New York City will soon have a new mayor, and with that, a new police commissioner. Mayor-elect Eric Adams has picked Keechant Sewell, the Nassau County chief of detectives, to become New York’s first female police commissioner. But it remains to be seen whether a new mayor and new commissioner will do anything to fix the problems that have been plaguing the SVD for years.

Another option looms on the horizon: In August, sexual assault survivors asked the Department of Justice to investigate the NYPD’s repeated mishandling of sex crime cases. A DOJ pattern or practice inquiry into the NYPD could lead to external enforcement and accountability for a department that has long operated without it. It is possible the federal government could compel the NYPD to make changes.

“I fully support a DOJ investigation,” said Osgood. “The damage caused to the SVD over the past few years can only be corrected by an outside source.”

To Understand Gun Violence, Talk to People in the Trenches

Utkarsh Tiwari | Unsplash

To Understand Gun Violence, Talk to People in the Trenches

If you’ve tuned into the news lately, you’ve probably heard that gun violence has been on the rise amid the COVID-19 pandemic. Shootings increased by more than 30 percent across the United States in 2020, with nearly 4,000 additional firearm homicides and more than 9,000 additional firearm injuries taking place last year compared to 2019. We’re seeing the escalation of an epidemic that even in normal times claims almost 40,000 lives each year, including suicides, and costs the nation an estimated $280 billion annually.

Gun violence is “expensive pain,” to borrow a phrase from rapper Meek Mill, whose hometown of Philadelphia is on pace for a record high in homicides this year. And we all pay a price: Researchers have concluded that nearly everyone in this country will know at least one victim of gun violence in their lifetime.

But in many Black communities, the recent rise in gun violence is much more than a topic covered in news reports. It’s a fixture of daily life, and Black men in particular continue to suffer disproportionately. Despite comprising less than 7 percent of the total U.S. population, Black men have regularly made up over 50 percent of gun homicide victims each year. We don’t have complete demographic data for the last two years, but early indications suggest this share may have only grown.

If you’re viewing this problem from the outside in, it’s possible to get the impression that there are simple ways to address this epidemic — by blanketing neighborhoods with police or cracking down more harshly on gun possession. There are certainly plenty of voices in academia, law enforcement, and the media who have earned their reputations as “experts” by advocating for measures like this.

But framing gun violence as solely a law enforcement problem only further criminalizes and weaponizes Black and brown bodies. And as we’ve seen with firearms task forces in poor communities of color like Baltimore, a police-first approach can give way to corruption and abuse, which further compounds this issue by breeding additional distrust of law enforcement.

The prevalence of these narratives only shows how painfully uninformed the mainstream discussion remains around gun violence and its causes, effects, and potential solutions. Most analyses of gun violence are what we call “flyovers,” done at 30,000 feet, with little understanding of the context and ecosystem in the most affected communities. These portrayals are often absent the voices of the survivors and perpetrators of gun violence — those most affected by a disease that continues to infect the nation.

This brand of research is myopic at best and lazy at worst. It’s like trying to understand the fabric of a complex interpersonal issue by looking at satellite images.

It doesn’t have to be this way. As Black gun violence researchers and ethnographers, we have spent our careers getting close to what’s happening on the ground. We live in the trenches, proximate to human suffering, and it’s this direct contact that forms the basis of our research. Although we use some sociological and criminological theories in our work, our analysis also incorporates the theories generated by the street scholars whose lives are intertwined with the issues we’re tackling. Their theoretical frameworks are far more insightful than the 30,000-foot theories broadcast from the ivory tower.

After all, if you want to understand what’s driving this recent increase in shootings, shouldn’t you ask the people who’ve been living through it?

Slim’s theory

In Fall 2020, while filming our award-winning docuseries “Life After the Gunshot,” which centers on the lives of young Black male survivors of gun violence in Washington, D.C., we asked a cast member named Slim why he thought 2020 was on pace to be his city’s most violent year in decades.

Slim grew up in a Southeast D.C. neighborhood notorious for high rates of gun violence. He had witnessed shootings throughout his life, and had been shot in two separate incidents, the last in 2019. When we brought up the recent violence, Slim explained that since COVID hit, it had become difficult for people to sell and buy drugs. The supply on the street had quickly dried up.

Though we knew drug prices were increasing, Slim’s theory expanded on this idea. With borders closed and ports backed up, the vast underground network that delivers drugs to communities across America had snarled nearly to a halt. As the supply decreased, the cost of drugs on the street surged. With more pent up demand from consumers stuck at home and often socially isolated due to COVID restrictions, the few sellers who still had access to drugs were able to do brisk business.

But just as it had with the mainstream economy, COVID sent shockwaves through the labor market in the underground economy.

For many people in poor communities across the country, selling drugs is a job. It is a means of economic survival. Market fluctuations in the drug economy threatened that survival, as people lost jobs or saw their income drastically reduced. For the low-level dealer who got by selling drugs, COVID potentially squeezed them out of the game. Now, only those individuals with connections and access to the limited supply of drugs were making money, and even they were paying a premium price for product. Others with no connections to the supply would have to find a new occupation. But where does one go when they lose their job in the illegal economy?

As the destabilization of this ecosystem gave way to mounting community violence and trauma, more young people decided to carry guns. In the end, this is a rational choice for individuals forced to navigate a precarious environment, where the threat of victimization is constant, whether by robbery, or an argument or slight that can lead to being shot. We’ve heard this narrative numerous times from young people: “I carry a gun because I’m on defense.” But someone is always on offense.

Beyond the flyover

Are we saying that Slim’s theory is an all-encompassing answer to a question that others have been unable to answer? Not quite. But Slim does offer a perspective that a flyover analysis could never capture. Although some attempts to explain the recent increase in gun violence have identified COVID-related economic stressors, they haven’t applied this rationale to the black-market economy.

For neighborhoods with high rates of unemployment, where some people survive on the underground economy, Slim’s theory is plausible. Yet very few people appear willing to have such a nuanced conversation. Academics who do their research from 30,000 feet might assert that there is no evidence of the theory in official data like police reports or unemployment figures. Police would likely resist an explanation that recognizes the realities of the drug trade and their inability to stem it. And policymakers might prefer not to rely on a premise that could highlight their own failures, which have forced many people in communities of color to turn to the underground economy in the first place.

But if you listen to the narratives coming from those in the trenches — the voices of the street scholars who frame their theories from the inside out, not the outside in — it becomes clear that this sort of gun violence goes much deeper than a few bad individuals who can simply be locked away in cages.

To address this problem, we must acknowledge that it is a symptom of the vast structural violence and disadvantage embedded into so many poor communities of color. Confronting structural violence is obviously not an easy task. Many of our social structures and institutions have been configured to perpetuate harm, inequality, and suffering for members of marginalized groups. It will require a broad, concerted effort to account for that historic damage and begin realigning these systems.

We can start by approaching gun violence as a public health issue — not one of enforcement alone. In any other context, we would not hesitate to pour resources into understanding and combating a threat of this magnitude. When the U.S. decided to take a public health approach to preventing traffic fatalities, the nation was able to prevent 3.5 million deaths over 50 years.

State and federal funding for gun violence research has been severely choked off since Congress enacted the Dickey Amendment in 1996. Even the $25 million for research allocated by the Centers for Disease Control and Prevention and National Institutes of Health in 2020 seems a paltry amount for a $280 billion-a-year issue. But this is a microcosm of the fundamental challenge on this issue: If policymakers truly want to address gun violence, they must be willing to make a commensurate investment in comprehensive solutions.

The flyover analysis can obscure this difficult reality. And it’s impossible to ignore the racial dynamics associated with this shortsightedness. Many white, middle-class academics, policymakers, and journalists pride themselves on their analytical prowess, even though they never get close to this problem. To entertain Slim’s theory, they would first have to engage with Slim as an individual with agency and ideas, capable of making his own analytical observations. But their identity limits their ability and willingness to do so, and as a result, the flyover becomes the default.

At 30,000 feet, Slim, his neighborhood in Southeast D.C., the people who live there, and the gun violence they experience is all theoretical. These issues become abstractions to be examined, rather than complex, interconnected problems with life-and-death consequences for millions of people.

To echo human rights advocate Bryan Stevenson, no progress in understanding human suffering has ever been made without being proximate to it. The truth and the answers are on the ground.

Dr. Joseph Richardson is the Joel and Kim Feller Professor of African-American Studies and Medical Anthropology at the University of Maryland, and lead epidemiologist for the Center for Injury Prevention and Policy at the University of Maryland R Adams Cowley Shock Trauma Center, where he investigates gun violence, violent injury, community trauma, and the effectiveness of violence prevention and intervention programs.

Che Bullock is executive producer and director of the award-winning documentary “Life After the Gunshot,” and co-owner of Change Agents LLC, which specializes in trauma-informed care, peer support, and hospital-based violence intervention programs.

Why Atlantans Are Pushing to Stop ‘Cop City’

After the city council passed the ground lease for massive police facility known as “Cop City,” local opposition hasn’t ceased; it’s evolved.

Fakurian Design | UnSplash

Why Atlantans Are Pushing to Stop ‘Cop City’

After the city council passed the ground lease for massive police facility known as “Cop City,” local opposition hasn’t ceased; it’s evolved.

This story was produced in partnership with The Mainline, an independent women-led magazine based in Atlanta.

On Sept. 8, the Atlanta City Council gathered after listening to nearly 17 hours of comments from over 1,100 constituents across the city. The flood of messages concerned one thing: a proposed $90 million police militarization training facility known among locals as “Cop City.” The renderings of the facility include a mock city for officers to train in, as well as a helicopter landing base, new shooting ranges, burn tower sites, and more. Its development is being spearheaded by the Atlanta Police Foundation and two-thirds of the funding comes from “philanthropic” and corporate donors, kicking the remainder of the bill to the public.

The project’s supporters, who include Mayor Keisha Lance Bottoms and Georgia Gov. Brian Kemp, have described the facility as a vital tool for improving police morale and fighting crime. Yet about 70 percent of the people calling in expressed their opposition to Cop City. Beyond the basic objections to such a major expansion of the city’s policing footprint, environmentalists are also up in arms, since the site’s proposed location lies within the South River Forest, which is the Atlanta area’s largest remaining green space and, scientists say, one of the city’s greatest defenses against worsening climate change.

The land also carries a dark history. Originally inhabited by the Muscogee (Creek) Tribe before their forced removal in the early 19th century, the land became part of a complex of farms that included a slave plantation and federal prison labor site. The area slated to be Cop City was eventually sold to the city of Atlanta, which used it for forced agricultural labor by incarcerated people from 1920 to the late 1980s. (Bottoms has said that the city “didn’t have anything else to choose from” in terms of a site.)

None of these things deterred the City Council. Nor did the 17 hours of comments. After brief deliberation, the council passed legislation to authorize the ground lease of the forested land to the Atlanta Police Foundation in a 10-4 vote. The legislation leased 381 acres of land to the foundation for $10 a year. But there is still a chance that Cop City could be stopped, and people who flooded the City Council meeting with their opposition have vowed to make sure that it is.

The Cop City vote was the culmination of a process that has seen Atlanta’s political establishment — often with the support of the city’s corporate media — relentlessly determined to give Atlanta police what they wanted. This stance is nothing new.

George Floyd’s murder in Minneapolis, along with the police killing of Rayshard Brooks last June, ignited historic protests in Atlanta. But the city’s government has firmly stood in the way of any significant police reform efforts. When the protests began, mass arrests took place throughout the city along with numerous incidents of police brutality, such as that toward college students Messiah Young and Taniyah Pilgrim. The Atlanta Police Foundation paid bonuses to city cops after some staged a sick-out after Officer Garrett Rolfe was charged with felony murder in Brooks’s killing. (Officer Devin Brosnan was charged with aggravated assault after video showed that he kicked Brooks while he was on the ground after being shot.) A City Council member later pushed for additional bonuses to come from the city’s budget. The City Council killed one reform bill at the behest of Bottoms, who then vetoed separate, compromise reform legislation. Officers who were publicly charged in Young’s, Pilgrim’s, and Brooks’s cases have since been hired back on the force and given back pay. The Atlanta Police Department’s budget is now slated at $230 million, a roughly 7 percent increase from the previous year. Now, the city government is working directly with the police foundation to develop its new “state-of-the-art” police militarization facility.

From the beginning, the process to create Cop City has been secretive. Mayor Bottoms quietly ordered the formation of the advisory board for the project on Jan. 4. There was no press release issued and no local coverage. The board consisted solely of police and fire department chiefs, foundation heads, and city employees, seemingly violating the mayor’s administrative order, which said the board should have community members.

Legislation to lease the land for Cop City was introduced in the City Council in June. (Although the land is city-owned, it resides in unincorporated DeKalb County, where residents do not have representation in the City Council.) As public opposition mounted, the police foundation hosted two “public input sessions” over Zoom in July, during which it presented a slide show, answered pre-submitted questions with no time for residents to respond, muted all constituents, and disabled the chat feature. Administrators of the meeting had their cameras turned off and names anonymous.

The police foundation could also count on support from its longtime allies within the city’s corporate and media elite. The editorial board for local legacy newspaper The Atlanta Journal-Constitution vociferously supported Cop City ahead of the vote, and the paper’s “Voices Against Violence” section regularly gave space to pro-police pieces full of tough-on-crime rhetoric that echoed the APF’s talking points. (The paper’s parent company, Cox Enterprises, is a donor to the Atlanta Police Foundation; Cox CEO/President Alex Taylor is leading the fundraising efforts for the facility.)

Ahead of the September vote, it appears the police foundation pulled out all stops. The nonprofit filed as a lobbying group on state and local levels on Aug. 25 with no previous records indicating they had done so in previous years. Nicholas Juliano of local lobbying firm Impact Public Affairs, whose clients include Delta, Uber, and others, is listed as the foundation’s lobbyist with a payment exceeding $10,000.

Map of the proposed police training facility

Over the summer, residents in Atlanta joined in building a widespread coalition in what became known as the “Stop Cop City” campaign. The campaign’s focus was to counter the heavily supportive messaging circulating in the press and from officials, and to push the moderate-to-conservative City Council to oppose the facility. Although the council passed the legislation, the opposition hasn’t stopped; it has evolved. Construction hasn’t yet broken ground and the lease includes a provision that would allow the city to terminate the agreement with the requirement of giving the police foundation 180 days notice. (Atlanta will also be getting a new mayor in January: Andre Dickens, one of the 10 council members to approve the lease legislation.)

Since the vote, organizers have shifted their focus toward connecting with the Muscogee (Creek) community. On Nov. 27, Muscogee (Creek) community leaders from Alabama, Oklahoma, and Georgia gathered in Atlanta to connect with their ancestral lands through a traditional stomp dance ceremony and cultural sharing tradition. The event, which was organized in collaboration with community leaders of the Stop Cop City campaign, took place in the forest at the proposed construction site.

“One of the things that I hope is that this would just be the first step of a migration of our indigenous communities coming back to their homelands,” Rev. Chebon Kernell, of the Native American Comprehensive Plan and Helvpe Ceremonial Grounds, told The Mainline in an interview. “My hope is that together, as we foster this migration back to recognizing our homelands, that also we can educate the public at large, and say, ‘We want a healthier society. We want a safer society for all of our people, especially for our communities of color who have been displaced in so many different ways.’ … We’re hoping that we start with recognizing indigenous peoples, but then we also recognize the intersectionality that takes place with just having the right to exist.”

Organizers have stayed in the streets and kept up their public criticism of Cop City. In a statement ahead of a march on the police foundation’s headquarters on Oct. 23, Community Movement Builders, a local organizing group that has been a core part of the campaign, described the facility as “a war base where police will learn military-like maneuvers to kill Black people and control our bodies and movements,” adding, “they are practicing how to make sure poor and working class people stay in line. So when the police kill us in the streets again, like they did to Rayshard Brooks in 2020, they can control our protests and community response to how they continually murder our people.”

Community leaders in Atlanta have also strengthened their demands for corporate divestment from the Atlanta Police Foundation, which, in addition to Cox, counts among its donors such companies as Delta, Bank of America, and Verizon. The aim is to make police funding an issue not just for governments, but for some of America’s biggest corporations.

“[These corporations] came out with their public campaigns, supporting Black Lives Matter, saying they stand with Black people,” said Kamau Franklin of Community Movement Builders, “but at a moment’s notice, these same corporations … decided to side and build out what is potentially the largest training facility in the country for police to be trained in tactics of suppression. We believe [this] is only for the interest of corporate development and protection of private property, but do nothing for issues of safety and concern for the larger community. So we think targeting these corporations is a really important next step.”

On Oct. 7, Color of Change released a report exploring financial ties between police foundations and corporations across America, identifying connections to at least 55 Fortune 500 companies. The study features 23 cities, including Atlanta, where the police foundation’s actions in relation to the killing of Rayshard Brooks spurred Color of Change to launch the wider study.

After the “Cop City” issue became more well-known, Color of Change became allied with local organizers in their efforts to stop the construction of the facility. Since the vote, Color of Change’s senior director of Criminal Justice and Democracy Campaigns Scott Roberts says their intention is to essentially do more of the same.

“We want to continue to mobilize people and … to try and paint an even clearer picture of what’s wrong here and educate more folks on it,” Roberts explained in an interview with Mainline. “We’re still looking to collaborate with local organizers in terms of both supporting what they think will work, but also to be aligned strategically … I’m pretty sure people are going to continue resisting Cop City even up to the moment where it’s going to try and break ground.”

‘Rage Induced Policing’: Hacked Documents Reveal D.C. Police’s Aggressive Robbery Crackdowns

Internal emails and their attachments show that a roving Metropolitan Police Department unit attempted to suppress robberies in 2012 and 2013 by stopping and frisking and surveilling residents of Black neighborhoods.


‘Rage Induced Policing’: Hacked Documents Reveal D.C. Police’s Aggressive Robbery Crackdowns

Internal emails and their attachments show that a roving Metropolitan Police Department unit attempted to suppress robberies in 2012 and 2013 by stopping and frisking and surveilling residents of Black neighborhoods.

On its 28th day in the streets, a Washington, D.C., Metropolitan Police Department unit decided that it needed to launch a “Shock and Awe” campaign. James Black, a sergeant with the MPD’s Criminal Intelligence Branch and the apparent head of the unit, wrote in an October 2012 email that the officers wanted to “rattle the safety” of members of supposed criminal groups in the area they were patrolling — the “do-bads,” as Black called them — “and let them know the game has changed.”

The unit was the Robbery Intervention Program, or RIP, a little-known MPD intelligence branch initiative that operated in 2012 and 2013. The department assembled the unit to gather information about and develop tactics to curb the district’s high rates of robbery. But according to regular narrative updates that Black would email to colleagues and superiors — including then-Chief Cathy Lanier; her successor, Peter Newsham; and current Chief Robert Contee — the RIP spent most of its time roaming the streets of poor and Black neighborhoods, stopping and frisking residents, and arresting them for seemingly any infractions its officers could find.

On its “Shock and Awe” day, for instance, no robberies occured in the area the RIP was patrolling. But the unit still stopped 25 people, according to Black’s email, including one man for “aimlessly” hanging around a Metro station, another for “pausing in dark areas” while walking, and another for a traffic infraction. RIP officers stopped a group for loitering and watching passersby “in an obvious manner,” another group for drinking in public, and another because some were wearing face masks. Black didn’t state a reason for six of the stops. The RIP arrested three people: one man for carrying an open container of alcohol, another on a warrant for a parole violation, and one for having drugs and a gun, according to Black’s narrative. Despite the lack of robbery activity, Alfred Durham, an assistant chief of police, replied to the email congratulating the unit on a “productive day.”

The narratives are part of a trove of over 70,000 emails and their attachments, sent and received by an analyst with the MPD’s intelligence branch between 2009 and 2017, and stolen from the department as part of a hack by a ransomware group known as Babuk. The documents were published in May by Distributed Denial of Secrets, the transparency collective behind BlueLeaks and other recent high-profile document dumps, and made searchable by Lucy Parsons Labs, a Chicago-based collaborative.

Taken together, the RIP emails illustrate the extent to which the MPD officers aggressively surveilled, and often presumed the guilt of, members of the communities they policed. The documents reveal that RIP officers talked about and likely engaged in “jumpouts” — an intimidation tactic during which officers speed up in cars to people and jump out, often with guns drawn — as recently as late 2012, despite MPD assertions as early as 2014 that the tactic is a foregone practice of another era. They also shed light on the extent to which the MPD has focused on schools and youth in its efforts to crack down on poor and Black neighborhoods. And they show how the MPD championed stop-and-frisk, militarization, and tough-on-crime-style policing among its ranks.

“Our neighbors are not community to D.C. police, they are enemies to be subdued,” said Valerie Wexler, an organizer with the Stop Police Terror Project DC, which advocates for alternatives to policing. “Whenever they don’t think their words will be heard or seen, they show what they really think of the people they are supposedly meant to protect.”

The MPD did not respond to The Appeal’s emailed questions.

‘Rage Induced Policing’

The Robbery Intervention Program was assembled from “the best plain clothes officers from across the city,” according to the MPD’s 2012 annual report, one of the few publicly available documents that mention the unit. According to the hacked documents, the unit “deployed” three times — once for 70 shifts, once for 46 shifts, and once for 32 shifts, totaling close to 150 10-to-12-hour shifts between September 2012 and August 2013. Each shift typically involved about 15 officers, according to the documents.

The unit operated about three-quarters of its shifts in D.C.’s largely Black sixth and seventh police districts, which include all of the neighborhoods east of the Anacostia River, working from the early evening to early morning hours roaming the streets, surveilling communities, and making “contact” with people its officers thought could be robbers or who were otherwise acting “suspiciously.” (In D.C., robbery is considered a violent crime and defined as taking anything from someone’s person by virtually any means — an especially broad definition that includes pickpocketing.)

In several of Black’s narratives, he indicated that the unit was able to prevent some robberies from occurring and solve other robberies that had recently taken place. But in order to do that, RIP officers cast a wide net, stopping many bystanders for questionable reasons and arresting people on charges unrelated to robberies, including technical violations and nonviolent crimes.

According to an email from Black and a report from an MPD analyst, the unit made more than 400 arrests and performed over 1,200 stops that didn’t involve an arrest. Of the arrests the RIP made during its first two deployments, only 42 — or 12 percent — were for robbery. Another 15 percent were for weapons possession charges, 18 percent were for drug possession with intent to distribute, and 16 percent took place when an RIP officer encountered someone with an outstanding warrant. The documents do not appear to include a breakdown of arrest data for the third deployment.

Despite focusing on robberies, the RIP appears to have tried to arrest as many supposed troublemakers as possible during its shifts. Some days, Black wrote, the unit went “hunting” for group events, like outdoor dice games, to disrupt. “Deployed to the watering holes and started hunting,” he wrote in February 2013. He referred to one slow day for focus area robberies as a “lock up all the Drug-boys day.” Those whom the RIP couldn’t find a reason to arrest were deemed to be part of the “future arrestee pool,” another of Black’s favored terms. In one email, he passed on an officer’s joke about “today’s criminal” having “their will to resist … RIP’ed from them.”

Black did not respond to The Appeal’s emailed questions.

The RIP’s aggressive approach earned it the admiration of many MPD superiors, who likened the unit to a militarized force. “Your tactics and deployment schemes are aligned with those of a Special Ops group,” Durham, the assistant chief, said in an email congratulating the unit on an arrest-filled day in a new focus area in October 2012. “You all were deployed to a new district and have already sized up enemy and terrain,” he said. He resolved to call the unit “Black Ops” after the sergeant in charge, and said the RIP’s methods “should be passed on to all [crime suppression teams] district wide.”

Three days after Durham’s email, Black recounted that about half of the RIP decided to hit the streets despite it being the unit’s day off because they were “too keyed up” after shooting handguns and shotguns at the firing range. A week and a half later, he joked that RIP officers had come up with another nickname for their unit — a play on its morbid acronym: “Rage Induced Policing.”

Black had his own nickname for the RIP: He called it the “Karma Delivery Unit.” In about two dozen of his RIP emails, he recounted a “karma delivery” moment during which, in his view, a community member found their just deserts by getting arrested in an ironic or amusing way. In one instance, a man had his third run-in with the unit in two weeks. In another, a man unwittingly rolled a joint next to an unmarked RIP car. One time, by coincidence, the unit arrested two half-brothers nearly simultaneously at different locations, Black wrote. Lanier, the chief of police, responded to that email: “As usual, your morning write up kept me entertained as I drank my coffee. Great work Karma Kids.”

Lanier retired from the MPD in 2016 and became the chief security officer for the National Football League. NFL spokespersons did not respond to The Appeal’s emails.

‘Robber Finishing School’

The people stopped by the RIP included children and adolescents. According to a spreadsheet the MPD analyst compiled, at least 17 percent of those the unit stopped or arrested during its first and longest deployment were minors — some as young as 12 — and at least 36 percent were teens.

The RIP would come across many of these minors on the street. But it would also target schools to identify and investigate possible suspects.

In September 2012, Black explained in an email that he had been passed along a tip from a school resource officer — an armed school cop — at Anacostia High School in Southeast D.C.: A parent had told the school administration that their son had been robbed by an Anacostia student near the campus. From the parent’s description, the school came up with a suspect, which it shared with the RIP, according to the email. Then, according to Black, the school shared a list of seven other Anacostia High students “known to associate and be seen regularly” with the suspect, along with “info sheets” that included the eight students’ names, photos, addresses, dates of birth, contact information, guardian information, and demographic information. The suspect and supposed associates were all Black boys between the ages of 16 and 19.

Black also noted that, according to the school, the boys were part of a small crew, which the MPD had labeled as a gang. Ten weeks later, three of the boys were added to the department’s gang database, according to a spreadsheet of the database found within the hacked documents. Previous reporting in the Intercept about the hacked documents revealed that the D.C. gang database is riddled with errors, employs nebulous criteria, and is used to justify aggressive policing of Black communities. It also showed that the MPD has used information from school resource officers to add students to the database; in response to that reporting, the D.C. Council banned the practice.

To a list of questions, Anacostia High School principal William Haith responded that he was not working at the school in September 2012, and referred The Appeal to Deborah Isaac, deputy press secretary for D.C. Public Schools. Isaac did not answer The Appeal’s questions despite repeated emails and phone calls.

The Appeal attempted to contact the former Anacostia students, as well as more than 20 other people who appear in the RIP emails, but received no response or encountered disconnected email addresses and phone numbers.

Four months after the Anacostia High School incident, during the RIP’s second deployment, Black turned his attention to another east-of-the-river school: Friendship Collegiate Academy. He noted that, over the course of the unit’s activities, it had stopped or arrested several children who attended Friendship. He also asserted that kids whom the RIP stopped frequently asked questions about the unit, and that robberies tended to spike in districts after the unit stopped focusing on them. These seemingly disparate trends led him to theorize that Friendship students were planning robberies during school hours.

“What if [the students] communicate with each other at school DAILY and let each other know where they have seen us each day so they now [sic] to focus their robbery efforts in Districts where they know we aren’t working and targeting them,” Black wondered. “A large majority of the juveniles we encounter seem to link together at Friendship,” he asserted, dubbing the academy “Robber Finishing School.”

Black admitted that he had “no concrete proof, just conjecture,” regarding his theory about Friendship, but it still prompted an assistant chief with the MPD’s Homeland Security Bureau to order intelligence officers to rotate through the high school to “see if we can get any info.” It also prompted an intelligence officer to ask D.C.’s Department of Youth Rehabilitation Services to add “school placements” to a weekly list of juvenile “violent offender” whereabouts it was already sending to the MPD so analysts could create maps and “help connect dots related to the info sharing about RIP.”

The RIP’s targeting of Anacostia and Friendship highlight why many advocates and activists have been calling for “police-free schools” in D.C., and why the district will begin phasing out its school resource officer program next year.

“Systems-involved youth need support, not more policing,” said Miya Walker, policy and advocacy manager for Black Swan Academy, a programming and advocacy organization focused on Black youth in D.C. “Especially when the intel that happens with policing just pushes them further into the system.”

“Where police are, arrests will happen,” Walker added, noting that police are particularly present in Black communities.

‘We aren’t just jumpouts’

The RIP emails illustrate how the unit engaged in controversial tactics attributed to more well-known MPD squads, like the notorious Gun Recovery Unit and the department’s so-called crime suppression teams.

One of those tactics is stop-and-frisk, or a police search that needs to be legally justified only by a “reasonable suspicion” of criminal activity. The RIP operated during the height of stop-and-frisk’s use by city police departments across the United States. The practice remains a point of contention between the MPD and many D.C. residents, particularly Black residents, who were the subjects of more than 80 percent of documented stop-and-frisks between 2010 and 2017 despite making up less than half of the district population. In the RIP emails, Black refers to “frisk” or “stop/frisk” only twice, opting to describe most of the non-arrest encounters as simply “stops.” Yet documents “prove how frequently stop-and-frisk is deployed,” said Wexler of the Stop Police Terror Project.

One day in March 2013, RIP officers stopped 20 people that the unit came across while roaming Southeast D.C., according to an email from Black. They stopped one man because he had his arm inside his sleeve, he was holding his waistband, and he was “favoring [his] right side”— the officers presumably suspected that he had a gun. They stopped another man for having an open container of alcohol, a pair for blocking a passageway, another person for holding his waistband, then another for “suspicious behavior,” stuffing something in his waistband, and walking in the opposite direction of officers after spotting them. They then stopped a group for wearing ski masks and loitering, then another group for blocking a stairwell, then one man for wearing a ski mask. They stopped a car for a traffic violation, then another because the driver was wearing a ski mask. And they stopped three separate people for running away when they saw the officers on the street. Of all those stops, one resulted in an arrest — for marijuana possession.

These actions undoubtedly fit into the parameters of stop-and-frisk, according to Scott Michelman, legal director of the American Civil Liberties Union of D.C.

Stop-and-frisk wasn’t the only controversial policing method the RIP engaged in. The MPD is notorious for “jumpouts,” which Newsweek has called “D.C.’s scarier version of stop-and-frisk.” They became commonplace among drug squads in the 1980s, and D.C. residents and activists say they’re used to this day by various MPD units for both arrests and as a way to shock people into submission during stop-and-frisks.

The MPD has denied that it still uses the practice. In October 2014, when the issue came to the fore around the start of the Black Lives Matter movement, Lanier testified to the D.C. Council that “there are no ‘jump out’ units in the MPD,” and what was commonly referred to as jumpouts were likely vice units and crime suppression teams making quick arrests or rapidly conducting time-sensitive investigations. Six weeks later, she told the news website ThinkProgress that talk of jumpout squads was “fantasy,” then denied their existence again to Newsweek a month later, despite both outlets having interviewed several people who had experienced them. Newsham and Contee, Lanier’s successors, have also denied that the MPD conducts jumpouts, despite a continued trickle of firsthand accounts. In 2020 and 2021, MPD whistleblowers claimed the department still took part in the practice.

The RIP emails show that the unit minimized and even weaponized community concerns over jumpouts, and suggest that RIP officers engaged in the tactic. On Oct. 9, 2012, Black wrote that an intelligence branch officer had informed him that people in Southeast D.C. were asking about jumpouts, describing unmarked cars the RIP had recently used — one of which was provided to the unit by Contee, the current chief of police and then-commander of the sixth police district — to arrest a robbery suspect. Seeing an opportunity, the RIP decided to mimic the appearance of a jumpout squad to keep the rumor mill churning as part of the unit’s “Shock and Awe” approach. The goal was to “sow confusion” among nefarious figures, Black wrote in an Oct. 24 narrative. “We used all overt cars to encourage the offenders to talk about a new jump-out unit using obvious police cars today, so we can come back tomorrow in our soft cars and regular subdued approach to hopefully catch them slipping,” he wrote.

And in an Oct. 20 email, Black seemed to confirm that the RIP had conducted jumpouts in earnest: “We aren’t just jumpouts, we have a focus…usually,” he wrote.

Lanier, Newsham, and Contee were among the recipients of the Oct. 9 and 24 emails. Contee did not respond to The Appeal’s emailed questions.

Patrice Sulton, founder and executive director of DC Justice Lab and member of the D.C. Police Reform Commission, has called for the banning of jumpouts. After Lanier’s 2014 denial, Sulton said she remembers thinking “she doesn’t know what’s going on or she’s lying about it — it’s one of the two.”

“There’s a frustration about them continuing to rename and be dishonest about the practice,” she said.

“The MPD can play a little shell game with the names of the units,” said Michelman of the ACLU of D.C. “But the types of tactics in which it engages — the stop-and-frisk, the jumpouts, the detentions on little or no suspicion — remain constant.”

‘Specialized Unit of the Year’

At its annual awards ceremony in February 2013, the MPD honored the RIP as the “Specialized Unit of the Year.” The ceremony program stated that “the most important measure gained by the Program was the sense of camaraderie between the team members and the opportunity it created to share experiences and work together under a unified plan.” But it also touted some short-term, hyperlocal statistics to boost the case for the RIP’s efficacy during its first deployment: “Robbery events” fell 23 percent in the sixth police district and 10 percent in the seventh district when the unit was patrolling them.

However, six months later, after the RIP’s third deployment, Black noted that he was having a hard time finding statistical justifications for the RIP’s work. “Statistically, there is no way to show any marked difference during this deployment of RIP from the 2012 years [sic] Robbery Stats,” he wrote in one email. Then, in a private email to the MPD analyst, he wrote, “I couldn’t make the numbers say anything I wanted this time…every time I tried to push them one way, they would push back…sigh.”

Still, the MPD seems to have used the RIP to inform and justify a new project. In 2016, Mayor Muriel Bowser announced the creation of a Robbery Intervention Task Force, whose strategy, as described in Bowser’s announcement, mirrored the stated strategy of the Robbery Intervention Program: While the RIP said it used “the most up-to-date intelligence from the department’s analytical team,” the task force was to assign “Criminal Research Specialists within MPD’s Crime Information Center to identify robbery patterns in real-time.”

In 2017, Bowser highlighted the robbery task force’s work, noting that the district saw a 27 percent reduction in robberies that year and a 35 percent reduction since the end of 2014. The year prior, however, she also noted a longer-term downward trajectory in robbery cases, which mirrors a national trend.

The reliability of D.C.’s robbery numbers is an open question. In some emails, Black expressed concerns that patrol officers were over-reporting robbery incidents. And FBI data, which excludes pickpocketing and purse snatching, shows smaller reductions in robberies in the district.

According to advocates, the means of units like the RIP do not justify the perceived ends. “It’s a practice and an attitude we see continued to this day,” said Michelman. “Seeing residents of eastern neighborhoods of the city, and in particular people of color, and in particular Black people, as presumptively suspects.”

“These are the tactics,” said Wexler, “of officers and a department interested only in terrorizing and oppressing the neighborhoods they have invaded.”

State Senators Ask Gov. Hochul to Commute Sentence of Man Who Spent Over 800 Days in Rikers

Reginald Randolph is currently serving a two to four year sentence in state prison for stealing cold medicine

Randolph and his family in 1997
Courtesy of Legal Aid Society

State Senators Ask Gov. Hochul to Commute Sentence of Man Who Spent Over 800 Days in Rikers

Reginald Randolph is currently serving a two to four year sentence in state prison for stealing cold medicine

This story was published in partnership with New York Focus.

A group of New York state Senators is urging New York Gov. Kathy Hochul (D) to commute the prison sentence of Reginald Randolph, a 58-year-old visually impaired man who was sentenced to two to four years in state prison for stealing cold medicine. Since his arrest in 2018, Randolph spent a total of more than 800 days incarcerated in the city jail at Rikers Island. Last month, he was transferred to state prison. The Appeal and New York Focus first reported on Randolph’s case in November.

In a letter sent to the governor’s office on Thursday, Senators Jessica Ramos (D-Queens), Gustavo Rivera (D-Bronx), and Julia Salazar (D-Brooklyn) warned that Randolph’s health was rapidly deteriorating, and that he could die if his sentence is not commuted.

“In commuting Mr. Randolph’s sentence and allowing him to avoid the possibility of serious illness, medical decline, and possibly death in our state prison system, you will be acknowledging that Reginald Randolph’s life matters,” the three state senators wrote in the letter, which was exclusively shared with The Appeal and New York Focus.

Last month, a spokesperson for the Manhattan district attorney’s office told New York Focus and The Appeal that they do not oppose Randolph’s clemency petition and have communicated that to Joshua Norkin, the governor’s assistant counsel for housing and civil rights.

“While we cannot comment on pending clemency applications as the process is confidential, Governor Hochul is committed to improving justice, fairness, and safety in the criminal justice system, and we are reviewing applications in that context,” said Hazel Crampton-Hays, the governor’s press secretary, in a statement to New York Focus and The Appeal.
Randolph is blind in one eye and losing his vision in the other. In addition to his vision problems, Randolph has chronic obstructive pulmonary disease, asthma, polysubstance use disorder, and schizoaffective disorder.

If the governor grants Randolph’s clemency petition, he will be able to move into a transitional supportive housing program and then into long-term housing with wraparound services, according to Randolph’s attorney with the Legal Aid Society. Randolph’s legal team has also secured intensive outpatient mental health and substance dependence treatment, as well as medication management services.

The governor can either return Randolph to the “care of his community or she can continue to deny a man with a disability a chance to access healthcare,” Senator Ramos said in a statement to New York Focus and The Appeal. “I hope Governor Hochul makes the right decision and grants him clemency soon.”

‘Extraordinarily Abusive’

Randolph has struggled with mental illness and poverty for much of his life. He left school after the eighth grade, and by 19, he was using cocaine, LSD, and PCP. Since his mother’s death in 2001, Randolph has been suffering from chronic homelessness. He has primarily received mental health care while incarcerated or at emergency rooms.

“Mr. Randolph needs treatment and assistance as he deals with his addiction and medical conditions, which is why I am urging the Governor to strongly consider his request for clemency,” Senator Rivera said in a statement to New York Focus and The Appeal.

By the time Randolph was arrested for stealing cold medicine in 2018, he’d been convicted of more than 50 misdemeanors and a handful of felonies, the most recent in 2005 for attempted robbery and sale of a controlled substance.

“[Shoplifting] was just to support my addiction and to deal with my homelessness, deal with my poverty,” Randolph told New York Focus and The Appeal in October, in a phone call from the Rikers Island jail complex in New York City.

Following his 2018 arrest for taking dozens of bottles of cold medicine from two Duane Reade stores, the DA bumped up his charge from a misdemeanor to a felony — two counts of third-degree burglary — because Randolph had a “no trespass” order that banned him from the convenience store.

In their letter, the legislators called Randolph’s prosecution “extraordinarily abusive,” and noted that “the prosecutor was not required to enhance his charges.”

Randolph spent more than a year on Rikers Island waiting for his case to be resolved. In August 2019, he was finally accepted into Manhattan Drug Court and released from jail. But when he was unable to complete the treatment programs, he was sent back to Rikers. Then, on August 12, 2021, Randolph went before Criminal Court Judge Cori Weston — herself a former public defender — for sentencing.

At the time of sentencing, Randolph was on crutches. His attorney told the court that he had slipped and fallen in the shower at Rikers due to his vision problems, according to a transcript of the proceedings. Randolph spoke briefly; he thanked the judge and his attorneys.

Weston then sentenced him to two to four years in state prison.

“Mr. Randolph, I hope that you feel better, and I hope that you can get some help in prison,” Weston told him. “I know that you have done a substantial amount of time, so I hope that while you are still there, you can get some help for your drug problem, and that when you get out, you can do well.”

Clemency and Rehabilitation

In September, the Legal Aid Society, which represents Randolph, submitted a clemency petition to the Executive Clemency Bureau, which conducts a preliminary review of applications before sending them to the governor.

In its petition, Legal Aid requested that Hochul grant Randolph emergency clemency and a full sentence commutation so he could be immediately released to The Redemption Center, a supportive housing program for formerly incarcerated people. At the time the petition was submitted, Randolph was still on Rikers Island, awaiting a transfer to state prison to begin his sentence.

On Nov. 23, with no word from the governor, Randolph was taken to Downstate Correctional Facility in Fishkill, New York. During the bus ride, his feet and hands were shackled, and a black box kept his hands in the front so he couldn’t move them, according to Jeffrey Berman, staff attorney at the Legal Aid Society and counsel for Randolph. When Randolph arrived at the prison, the “walking device” he had used at Rikers was reportedly confiscated from him.

Randolph feels his vision is getting worse and said he puts his hands out when he’s walking to make sure he doesn’t bump into anything, according to Berman who has remained in communication with Randolph. Randolph was not available for an interview with New York Focus and The Appeal.

Hochul, who took office in August, has never used her clemency powers. (The day after Randolph was sent to state prison, Hochul issued one pardon — for a turkey.) During his more than 10 years in office, Governor Andrew Cuomo granted 41 clemency petitions.

“Further incarcerating Reggie puts him at risk of eventual homelessness and does nothing to further public safety,” Berman said in a statement to New York Focus and The Appeal. “We call on Governor Hochul to grant Reggie clemency so that he can be released to a community that is ready to care for and support him now.”

Read the full letter below:

Meet the California PR Firm Helping Cops Fight Off Bad Press

There’s a growing business crafting law enforcement narratives about police shootings and officer misconduct.

Matt Chesin and Tommaso Teloni | Unsplash; Kindel Media and The Climate Reality | Pexels

Meet the California PR Firm Helping Cops Fight Off Bad Press

There’s a growing business crafting law enforcement narratives about police shootings and officer misconduct.

This story was published in partnership with the Vallejo Sun, an independent news organization based in Solano County, California.

In May 2020, the town of Pacific Grove, California, had a problem with a police officer. Residents noticed a white pickup parked outside the police station with decals including LGBT — for Liberty, Guns, Beer, and Trump — and the Three Percenters, a loose-knit anti-government group connected to terrorist plots nationwide. The officer was placed on paid leave, and the city launched an investigation.

The seaside town of about 15,500 residents, once home to author John Steinbeck, wasn’t used to such controversy. It has one of the lowest crime rates in Monterey County and hasn’t had a homicide in 11 years. Its police department has only 22 officers.

The truck belonged to Officer Michael Gonzalez, who had been named Officer of the Year two years prior. The city issued a statement in September 2020 saying Gonzalez thought the Three Percenter symbol showed support for protection of the Second Amendment and removed the stickers after the complaints. Federal prosecutors have argued that the Three Percenters believe in armed rebellion against the federal government.

As the officer returned to work, pressure from residents continued. In October, the city hired a public relations firm, Cole Pro Media. The company’s website advertises that it helps police and sheriff’s departments add clarity to their social media presence and enhance their crisis communications abilities.

Cole Pro Media is owned by former TV journalist Laura Cole. The company is one of the largest of a small but growing number of firms focused exclusively on providing public relations for local governments and police departments. “We understand the challenges facing public agencies and take great pride in our ability to communicate transparent, easily understood, messages about our clients — WITHOUT SPIN,” Cole Pro Media’s website says.

But a review of contracts, invoices and email records from 21 of Cole Pro Media’s clients that were obtained from local government agencies via public records requests by The Appeal and the Vallejo Sun shows how her company’s advice appears designed to help police agencies evade transparency and accountability and to deflect scrutiny by traditional news media. The emails show that Cole Pro Media’s advice is often to avoid difficult questions or directly confronting problems.

Ahead of a December 2020 Pacific Grove City Council meeting, a Cole Pro Media consultant drafted talking points about the Gonzalez incident for the mayor and council to use. The firm advised elected officials to tell community members that “continuing to bring this up has become counterproductive and does not allow us to move past this as a community” and “an emotional response is not the appropriate response and does not benefit anyone.”

Days later, a Parler account that appeared to be from Gonzalez was publicized by multiple media outlets, where there were memes posted that included “Fuck Black Lives Matter.” Police Chief Cathy Madalone appeared to use at least one of Cole Pro Media’s talking points at a Dec. 2, 2020, city council meeting when she said, “the actions of one are not indicative of our police department’s culture.”

In January, Madalone held a press conference to announce that Gonzalez was no longer with the department. Around the same time, a resident’s public records request revealed Cole Pro Media’s talking points, which fueled further backlash against city officials, who were accused of hiring a firm to help them tell residents to “shut up.” On April 21, Pacific Grove ended the contract with Cole Pro Media five months early, saving the city $14,500.

But despite Pacific Grove’s decision to cut ties with Cole Pro Media due to public criticism, law enforcement agencies continue to hire the firm to help shape police narratives.

The company has grown to contract with more than 30 agencies in California, Cole wrote in an email last year. The contracts typically cost taxpayers $3,000 to $5,000 per month each. Cole’s spinoff company, Critical Incident Videos, produces videos that add police narrative to body worn camera footage at a cost of up to $5,000 per video.

Cole’s two companies help agencies downplay bad news, advise them to remain silent about damaging revelations, and draft scripts and responses excusing police use of force. As law enforcement has increasingly turned to PR firms to bolster their public image, Cole’s companies employ the kind of aggressive social media marketing usually reserved for large corporations, not the transparent communications without spin that the firm advertises.

Laura Cole did not respond to an interview request, a phone message, nor to detailed questions sent via email.

Former Seattle police Chief Norm Stamper said police have hired PR consultants for decades to help shape statements and respond to crises. But he sees something new and troubling in what companies like Cole Pro Media are offering.

“This is more blatantly PR, more conspicuously selling your organization,” he said. “It’s not as much, how do we most effectively, honestly, ethically, accurately tell the story of the relationship with the community.”

Shaping the narrative

Cole, who was a TV news reporter for a decade, started her police consulting business in 2014. Cole Pro Media helps agencies build a robust social media presence, particularly on Facebook and Instagram, encouraging law enforcement officers to post daily by profiling staffers, highlighting government actions and how they benefit residents.

Her firm has also hosted classes titled, “Managing the mainstream media: the street smart class to outsmart reporters.” The all-day course cost $89 and promised to teach police officers “what to do when controversy strikes” and “how to make reporters work for you.”

But Cole Pro Media’s biggest impact is as a crisis consultancy. When police are involved in a controversial incident, the firm anticipates questions from reporters, drafts initial press releases, and shapes scripts for the televised responses and interviews of police and sheriff’s representatives.

In some cases, Cole Pro Media has advised agencies to not respond to damaging revelations unless they are widely shared on social media, despite its website stating that it places an “emphasis on transparency.”

“Working with Cole Pro Media provides you with a transparency engagement advisor who can help you navigate the most sensitive of subjects so that the facts are heard,” the website states.

Cole Pro Media’s earliest clients were in its home base of Vacaville in Solano County, including the Vacaville Police Department and the Solano County Sheriff’s Office.

At the sheriff’s office, Cole Pro Media worked closely with public information officer Daniel “Cully” Pratt, the brother of actor Chris Pratt. With Cole Pro Media’s assistance, Pratt used his brother’s celebrity to promote the sheriff’s office. For example, in 2019, after a photo of their mother that Chris Pratt posted was shared widely, Cully Pratt sent the news coverage to Cole. “Let’s break the Internet!” Pratt wrote. “Using cops and their families!”

Cole wrote back, “OK write us up something and we will work on it!” The resulting post received 1,000 likes and 129 shares. The emails do not show what role Cole had in the finished product, but in other exchanges she would edit and advise on the wording of social media posts.

When this reporter revealed in a February article that Cully Pratt and other sheriff’s deputies displayed Three Percenter symbols on their social media pages, the sheriff’s office wouldn’t answer questions prior to publication. The next morning, a Cole Pro Media transparency engagement advisor sent an email to the sheriff that said they were “on call.” After the story received widespread attention, the sheriff issued a statement nearly a week later, saying he had “personal conversations” with the deputies and that each had sought to show support for the Second Amendment.

When Pittsburg, California, hired Cole Pro Media in 2018, police Chief Brian Addington was enthusiastic. Ahead of the department’s first meeting with Cole, he wrote in an email, “I hope to get an overview of what the consultants will offer, discuss expanding our team, and focus on getting ‘our message’ out to our community, instead of relying on main-stream [sic] media.”

Last year, Pittsburg settled a lawsuit for $7.3 million for the death of Humberto Martinez in 2016, who died when officers used a carotid restraint — similar to a chokehold — and held him face-down while handcuffing him. Cole Pro Media advised the department not to make a public comment about the settlement in response to reporters’ inquiries.

“We’ll watch for a flare-up on your social media, but if it remains mostly quiet I wouldn’t address the settlement,” consultant Ken Pritchett wrote in an email. “It would elevate something that might be gone by tomorrow.”

Addington responded, “I think this is a good strategy. Thank you!”

Michael Haddad, an attorney for Martinez’s family, said he was “concerned about the police chief and the department taking that advice.” He pointed out that the lawsuit revealed structural problems with the way Pittsburg police handle these kinds of restraints. For example, it had no policy to prevent compression asphyxia and the department’s top trainer had never heard of the term. But rather than respond to these issues directly, Haddad said Addington sought to “cover up his personal substandard leadership.”

“This is a huge settlement and a matter of great public importance, a death that was similar to George Floyd’s death here locally,” Haddad told The Appeal and the Vallejo Sun. “What are they doing to prevent something like this from happening again?”

Pittsburg did ban officers from using carotid restraints last year, not because of Martinez’s death, but because of national outrage over Floyd’s.

The approach in Pittsburg is far different from what Cole has advocated for in public statements. “When departments don’t give out information, it brings about secrecy,” she told the Los Angeles Times last year. “If a department did something wrong, or somebody messed up, they must own it.”

Pittsburg police did not respond to requests for comment.

An opportunity in a new transparency law

Hayward, California police shot and killed Agustin Gonsalez in 2018 while he was holding a razor blade and experiencing a mental health crisis. Days after the incident, Cole Pro Media’s Pritchett wrote a press release and scripted answers for a lieutenant’s TV interview.

Even though the investigation was ongoing, Pritchett advised the lieutenant “If the issue of crisis intervention is floated” to say that there was “no opportunity as an armed Mr. Gonsalez immediately approached officers.” (The televised portion of the interview did not include these statements and it is unclear if the lieutenant used them.)

Pritchett then helped compile a video of the shooting to post on the department’s social media accounts.

A few weeks after the video was published, Cole registered a new company: Critical Incident Videos, LLC. A new state law, Assembly Bill 748, would take effect in July 2019 and require police departments to release video of uses of force that result in death or serious injury.

With Critical Incident Videos, Cole substantially increased her client base as departments scrambled to comply with the law. The East Bay Times reported that Critical Incident Videos soon had more than 100 clients in California.

The videos typically open with a police chief stressing the importance of transparency. They then provide a narrative summary of the incident, often coupled with maps or other graphics, and play 911 and dispatch audio from the incident. The videos often pair body camera footage with video from surveillance cameras or other sources.

The structure has been criticized by civil rights advocates for including a narrative that goes beyond what the video depicts, such as in the June 2020 Vallejo police shooting of Sean Monterrosa, where Chief Shawny Williams described Monterrosa’s alleged actions just before police fatally shot him. Those moments aren’t captured on camera.

Some departments say that the heavily produced videos are sufficient to comply with AB 748. In a lawsuit by this reporter to compel the release of public records in Gonsalez’s death, including the unedited body camera footage, the city of Hayward and the police department argued that the city did not need to produce more than the Critical Incident Videos release.

After nine months of litigation, the city released the full videos directly to this reporter, including video from Officer Michael Clark that had never been publicly released because he did not turn on his body camera until after the shooting but captured its aftermath.

David Snyder, executive director of the First Amendment Coalition, said departments must provide the unedited video in response to a public records request.

“The whole purpose of the Public Records Act is to give the public the unvarnished, unredacted documents, not what the departments describe,” he said. “They have to give the public the videos, not their Hollywood take on the videos.”

Working with the Riverside DA

In 2019, Cole Pro Media contracted with the Riverside County Sheriff’s Department, where emails show the firm has worked closely with Sheriff Chad Bianco to help him shape his public communications and to produce critical incident videos to frame shootings in a more favorable light. Bianco gained notoriety recently when hacked records revealed that he once was a member of the extremist Oathkeepers organization, which federal prosecutors have said encouraged members to attack the U.S. Capitol on Jan. 6.

When a Riverside County deputy fired on an unarmed man during a chase in September 2020, Cole Pro Media’s Pritchett suggested emphasizing that the deputy did not hit the suspect. Critiquing a script in the critical incident video, Pritchett wrote in an email, “One thing that I felt was missing was an emphasis on the fact that this dude was not shot.” He added, “Making that clear will diffuse [sic] the power of the incident.”

In another Riverside County case last December, a man named Ernie Serrano died after deputies shot him with a stun gun and hit him with batons in a grocery store. Email records show that three days after the incident, Cole shared communications about the media response between the sheriff’s office and the Riverside County District Attorney’s Office, which was also her client. Although the DA is expected to conduct an independent investigation into officers’ conduct, the early coordination about the public narrative raises questions about how independent the DA really is.

A Twitter post showed cellphone video of deputies hitting Serrano. The DA’s office communication manager Amy McKenzie sent the post to Cole and DA Michael Hestrin. After back-and-forth emails from Hestrin and McKenzie, Cole replied that the sheriff’s office was putting together a critical incident video “that should be released later today.”

Cole then forwarded the exchange to Bianco and wrote, “As you know, the DA’s office is also my client and wanted to make sure I was aware. I’m passing this along to you guys to make sure you are aware.”

Days later, Bianco gave a press conference where he released videos and said that Serrano appeared to have died from a drug overdose. Bianco said the DA’s office would lead the criminal investigation and make an independent review of the deputies’ actions. In California, DAs are typically relied on to conduct such reviews, though police reform advocates have argued they are too close with law enforcement to treat such cases objectively.

In an emailed response to questions about the communications between the sheriff’s office and the DA, McKenzie wrote that they “were about a potential protest for the purposes of security of our personnel working in our downtown office should a protest occur. There was no discussion of a public relations strategy.” She did not respond to follow up questions about why Cole was included in the email exchange. The sheriff’s office did not respond to questions.

Serrano’s autopsy has not been released and the DA’s investigation has not been completed.

Max Szabo, a former assistant district attorney and spokesperson for the San Francisco district attorney’s office, said a firm representing both the DA and sheriff could have a conflict of interest if the DA was involved in prosecuting someone in the sheriff’s office. In Szabo’s view, the communications between the sheriff and DA could be grounds for the DA to recuse himself from evaluating the incident.

“If the DA is coordinating on messaging with the Sheriff just days after an in-custody death, it suggests he’s made his decision on the legality of the use of force long before the investigation is complete,” Szabo said in an email. “This is the kind of thing that erodes public trust because it suggests there’s a two-tiered system of justice, one for law enforcement and one for everyone else.”

Humberto Guizar, a civil rights attorney representing Serrano’s family, said he was “furious” after The Appeal and the Vallejo Sun provided him with the email exchange. He said there should be an investigation into the coordination between the sheriff and the DA.

“The DA’s office is supposed to be investigating them, not working on the narrative,” Guizar said. “Based on what I’m seeing [in the emails], the people who are responsible for evaluating the facts are trying to come up with a narrative that’s consistent with the sheriff’s office. They’re in cahoots.”

Growing influence

Cole Pro Media is just one firm that has been providing PR guidance to police departments seeking to improve their communications and soothe backlash during crises. Media reports suggest that such PR contracts are becoming more common and large departments have expanded the roles of spokespeople.

Cole Pro Media’s role in police communications has also grown. The company has expanded outside California. In Asheville, North Carolina, police Chief David Zack also worked with Cole Pro Media at his previous job in Cheektowaga, New York, and hired them again after he transferred to Asheville in early 2020. The company offered advice and worked on briefing videos after some Asheville police officers were recorded destroying a medic station, including slashing bottles of water, during George Floyd-inspired protests that June.

Cole Pro Media has pitched its services and approach to a national audience. According to its website, Laura Cole has spoken about her “crisis communications philosophy” at events held by the California Police Chiefs Association, the International Association of Chiefs of Police, and the Major Cities Chiefs Association.

Cole is even helping to train the next generation of California police chiefs. She is listed as an instructor for a four-day course offered by the California Police Chiefs Association, “Becoming a Police Chief: Developing a Mindset for Success and Service,” which is certified by the state Commission on Peace Officers Standards and Training.

“With commitment and dedication to strengthening the relationship between district attorneys, law enforcement and the community,” Cole Pro Media’s website states, “Cole continues to lead the charge in steering agencies in the direction of best communication practices.”

How Prison Writers Struggle to Be Heard

Sky-high email and phone costs, fear of retaliation by prison staff, and isolation create roadblocks for incarcerated people to share their experience and join a growing national conversation on reforming the criminal legal system.

Photo: Rodnae Productions | Pexel

How Prison Writers Struggle to Be Heard

Sky-high email and phone costs, fear of retaliation by prison staff, and isolation create roadblocks for incarcerated people to share their experience and join a growing national conversation on reforming the criminal legal system.

This piece is published in collaboration with the Empowerment Avenue Writer’s Cohort, a project of Prison Renaissance that works to support the hiring and payment of incarcerated people for journalism and creative work.

When a person goes to prison, some of their constitutional rights vanish. But their right to free speech remains intact.

Many incarcerated people are eager to exercise that right and contribute to the conversations in our communities around racial inequality, criminal justice reform, conditions of confinement, and numerous other issues. After all, who better to comment on the issues that affect us—and our loved ones—than us?

Like us, a small percentage of the over 2 million incarcerated individuals in the U.S. are finding a voice by publishing national and local articles, writing blogs, and sitting for interviews with other journalists across the country.

But there are tremendous hurdles to being heard. Slowly and reluctantly, the prison system has allowed some forms of technology for those who are incarcerated. But exceedingly high costs, isolation, restrictive working conditions, and fear of censorship render a prisoner’s right to free speech extremely fragile and often impossible to exercise. And any time a citizen’s rights are infringed upon, we as a society become less free.

Having a voice is expensive.

Most people in prison pay for virtually every form of communication they have access to.

For those lucky enough to have email, there is a cost connected to each correspondence. Where we are, in Washington state, people in prison can use the technology service JPay to send monitored emails and transfer money. Qualifying prisoners can purchase a personal JPay tablet at about $139, and prisoners must purchase “e-stamps” to send messages. Stamps cost 17 to 33 cents each, though the price can be higher in other states.

This may not sound like much, but if you consider the fact that most prisoners in Washington state make only 42 cents per hour at prison jobs, sending a message home through JPay can represent nearly 40 percent of an hour’s labor. For a person on the streets making $20 an hour, that would be the equivalent of $8 each time they sent an email or text. The tablet is the equivalent of over 330 hours of prison labor.

Phone calls are even worse. A local 20-minute phone call from a prison in Washington state costs around $2.50 or nearly six hours of prison labor, though excessive call costs are a national issue. Last year, a federal judge in New Jersey approved a $25 million settlement after prisoners in the state sued GTL, a phone service provider, for inflated costs.

For prisoners who are dependent on communicating using paper or a typewriter, costs can get outrageously high. Those confined in Washington are only allowed to purchase from one vendor, Union Supply, when ordering supplies, meaning they have no choice over what they pay. A typewriter from Union Supply costs over $300 and requires a $15 deposit. Supporting supplies such as correctable ribbons are $12.95 each; correction tape is $17.55 for a six-pack, and a packet of 100 sheets of typing paper is $1.71. Getting set up with a typewriter and supplies to write requires a prisoner to spend around $350 or 833 hours of prison labor. If a person in prison used a ribbon, one correction tape, and a packet of paper each month, they would need $17.58 every month. That is a third of a prisoner’s monthly paycheck in Washington state.

The outrageous cost of being heard has a chilling effect. People simply can’t afford to speak. They are silenced through overpriced, unobtainable, outdated technology.

People who speak up can be targeted for retaliation.

Prisoners who speak out publicly about system injustices often place themselves in danger by doing so.

Corrections officials have labeled prisoners who find success as writers and advocates as troublemakers or threat risks. As a result, prison writers may find that their communications are given a higher level of censorship, more often rejected by mailroom staff, and sometimes delayed. Corrections officials have also attempted to pit prisoners against one another, threatening to take away computer privileges for a whole group because of one person’s writings or communications.

If the department isn’t successful in suppressing prisoners’ voices, officials may claim that prisoners’ accounts are false. And too often, outlets—fearing litigation perhaps—will accept and print those claims and comments, regardless of their veracity.

Prison writers have to weigh their personal safety and freedoms against getting their message out. They must brave everything to speak for those who often find themselves without a voice.

Work product can disappear.

All aspects of a prisoner’s personal property, including writings, are subject to search and confiscation at any time. Prison writers work with this awareness, and veterans of the system handwrite backups and painstakingly rework it all if any writing is lost or stolen.

When work is completed, it must clear the gauntlet of prison mailrooms without being denied. If a prisoner’s work is taken or destroyed, they have no way of proving it ever existed. To get it returned, prison writers are at the mercy of the very people they may be writing about.

Prisoners also have extremely limited means to back up their data and work product, and are forbidden from having any type of electronic storage. In August, a JPay update erased large portions of tablet user data, including all drafts and thus hundreds of hours of work. John J. Lennon, a prolific prison journalist incarcerated in a New York state prison, lost everything upon updating his player. Though the files have since been restored, “it was like my life stopped,” he said. Joshua Rodriguez, a prison poet incarcerated in Washington state, initially lost over 400 poems and pieces of spoken word he had been working on. “Everything just vanished. I was devastated, I put my heart into the pieces I write, sharing deep pieces of my trauma from my life and childhood,” he said.

Although JPay eventually restored some content and features weeks later, and insisted that the disruption was inadvertent, it’s unclear what, if anything, would have happened without immense pressure from incarcerated journalists, free-world journalists, and advocates who sounded off about the system issues.

Sadly, this is not an isolated incident, and prison journalists regularly deal with disruptions in their work and threats to their work product.

System-impacted people are isolated from each other.

Prisoners are barred from contact with prisoners in other institutions. Though there are some legitimate arguments for this policy, the effect of this isolation means that prisoners have enormous difficulty participating in discussions that are integral to modern life.

Most incarcerated people cannot access the blogs, forums, and chat rooms available to those on the streets without being at risk of violating corrections policies. This forces prison journalists to be limited to the small bubble they live in for input. Some people may overcome this with help from loved ones or other support networks, acting as surrogates, but it is still a serious hurdle and strain on our networks and makes doing important work vastly more difficult.

Additionally, when a person leaves prison, they are banned for up to two years from contacting prisoners—the people that they built a community with for the last several years, and in some cases decades.

Potential problems with intra-prison communication could still be avoided with much less restrictive measures, ones that allow incarcerated individuals to constructively work together in bettering their conditions.

Already, change is coming to the prison system, and prison journalists and activists are helping to drive the narratives for that change. The public is eager to hear from people who are incarcerated, seeking transparency around solitary confinement, health risks, and other abuses that have occurred for years in the shadows. And legislators and state officials are now looking to us to lead the discussions around prisons and jails, calling on incarcerated people to testify about their experience.

But even then, obstacles remain. In September, Washington State Supreme Court Chief Justice Steven González requested that one of us participate in its Race and Criminal Justice Task Force panel, writing in a letter to the Department of Corrections that it was “critical to include in this discussion someone who is incarcerated.” But the DOC denied the request, citing “the recent rise in COVID-19 cases and the resulting intense impact on prison staffing,” according to a letter sent to the chief justice.

We cannot let the impediments to communication while incarcerated deter us from having a voice and maintaining our First Amendment right. The public arguably knows more today than ever before about the prison system and its conditions, largely because of voices from inside. But those leading the charge and speaking out do so at considerable risk.

America’s Largest Police Department Is Neglecting Rape Cases

America’s Largest Police Department Is Neglecting Rape Cases

The Appeal is back and we’re worker-run.

We’re excited to bring you the fifth edition of our weekly newsletter as we continue to work toward an official relaunch.

Today, we also published our first story in a series of pieces we’ll be publishing in the coming weeks as we continue rebuilding and working toward an official relaunch.

In it, reporter Elizabeth Weill-Greenberg tells the story of Reginald Randolph, a man with a tragic life who has spent over 800 days enduring horrific conditions at the Rikers Island jail complex in NY after stealing cold medicine. Read more here.

Every dollar we raise helps us produce vital journalism. Help us return to publishing full time by donating here.



America’s Largest Police Department Is Neglecting Rape Cases

by Meg O’Connor, The Appeal

“I did not expect that I’d be told that even though I was asleep when the assault began, it wasn’t rape because I didn’t fight back,” Jennifer Welch Demski testified before the New York City Council on Oct. 18. “I did not expect to have a sergeant sit across from me and say he has sex with his wife while she’s asleep, and she’s not reporting him for rape.” New York City Police Department officers ultimately classified Demski’s rape as a “dispute.”

Demski was one of many women who recounted their traumatizing experiences reporting sexual assaults to the NYPD’s Special Victims Division (SVD) during an oversight hearing on the troubled department two weeks ago. Another woman, Christine, who used only her first name, testified that after she was drugged and raped last year, investigators closed her case without her knowledge, failed to collect any video evidence, did not interview witnesses, and tried to make her pay $1,000 to get her hair tested for date-rape drugs. Another woman said the SVD detective assigned to her case tricked her into signing a form that closed her case against her will.

The systemic failure of the nation’s largest police department to investigate sexual assault underscores fundamental flaws endemic to American policing. In New York, politicians and Police Commissioner Dermot Shea seem to have largely shrugged at the documented deficiencies of the SVD. They have allowed the unit to continue neglecting and mistreating victims, despite the fact that the NYPD has more than enough resources—a $5.4 billion annual budget and about 50,000 employees—to fix the problem, if they truly wanted to.

But police won’t invest in things they don’t actually care about. And the actions of police departments across the country have made clear that sexual assault is simply not a priority. Police have refused to collect crucial DNA evidence in hundreds of thousands of sexual assault cases. A 2018 report found that police assigned to investigate sexual assault in Austin, Texas, could not even understand lab reports documenting DNA evidence, and often had such a poor understanding of basic female anatomy that one officer said he had to “Google stuff like ‘labia majora.’” In the 1990’s, police in Philadelphia refered to the department’s sex crimes division as the “lying b**** unit.” On many occasions, police have simply decided not to investigate a reported rape—and in doing so, allowed many more women to be raped.

New York City leaders have shown no interest in improving this broken system or building up alternatives. When the city’s Department of Investigation (DOI) exposed the rampant dysfunction at the SVD in a 2018 report, Mayor Bill de Blasio defended the NYPD (and oversaw a nearly $800 million increase to the department’s budget during his years in office). De Blasio also replaced former Police Commissioner James O’Neill with Shea, who, when he was chief of detectives, ousted longtime SVD Commander Michael Osgood, purportedly in retaliation for cooperating with the DOI inquiry.

While it may seem like a good sign that the City Council held an oversight hearing on the SVD at all, the council held similar hearings in 2019 and 2018 and little has changed. The way advocates and survivors tell it, things have gotten worse.

The DOI report found that NYPD brass had ignored the SVD’s requests for appropriate staffing and resources for years. In 2017, the division had 67 detectives assigned to investigate 5,661 adult sex crimes (about 84 cases per detective per year or between one and two new cases each week). By comparison, the NYPD assigned 101 detectives to investigate 282 homicides that same year (three cases per detective per year). When then-SVD commander Osgood told NYPD leadership that this caseload made it impossible for detectives to investigate all cases they were assigned, an NYPD deputy commissioner responded by saying detectives “did not have to investigate every misdemeanor [sex crime].”

Since the DOI report, the NYPD has changed Special Victims Division leadership twice. The NYPD has said it increased staffing, but in reality it mostly just shuffled people around. Shea notoriously disbanded a handful of important SVD units during a “restructuring” that filled the division with beat cops instead of trained detectives. Victims have subsequently sued the NYPD over its mishandling of sex crimes cases, and have asked the Department of Justice to open a federal investigation into the SVD’s practices.

Testimony from advocates and survivors at the City Council hearing last month makes it clear that the SVD’s problems persist under its latest chief, Michael King. Now advocates want King out. They told the New York Post that he has prioritized filling out paperwork over keeping in touch with victims, and doesn’t interview investigators before they get assigned to the SVD. King’s own commander, Chief of the Department Rodney Harrison, laid into him earlier this month for the SVD’s shoddy paperwork and inadequate training.

So New York City’s SVD is understaffed, poorly trained, and, apparently, full of rude and insensitive detectives. But that’s not because the NYPD doesn’t have the funding or staffing to fix it. Refusing to assign qualified detectives to the Special Victims Division is a policy choice. The NYPD’s $5.4 billion budget is larger than that of some countries. The 255 people currently assigned to the division account for roughly 1 percent of the NYPD’s massive police force. The NYPD has complete and total discretion to assign police officers to investigate crimes with real victims who are asking for help—or to send them out to do nonsense like push subway goers out of stations for telling officers to put on a mask as the subway requires. The choice is the NYPD’s, and by now it’s pretty clear where its priorities lie.


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Security video shows that police lied when they said people on a Pennsylvania commuter train recorded a sexual assault on their cell phones and did nothing to intervene or call 911. Many news outlets ran with the police account of the crime before realizing it wasn’t true. [Rudy Chinchilla / NBC 10 Philadelphia]

Miami’s most infamous cop and former police union boss, Captain Javier Ortiz, just keeps getting his job back. Multiple current and former police officials told Politico they wished Ortiz—who has a history of use-of-force complaints, suspensions, racist statements, and media fiascos—was off the force. But insiders said Ortiz avoids termination due to pro-police state laws and American cops’ culture of lawlessness. [Marc Caputo / Politico]

Another shaken baby syndrome case was tossed out. In 2003, Kim Hoover-Moore was wrongfully convicted in Ohio of shaking to death a baby in her care. This month, she was finally released from prison. [Associated Press] See also: The Appeal’s reporting on SBS.

Alabama executed Willie B. Smith III, who was intellectually disabled, according to his lawyers. During the execution, one of his lawyers raised his fist to the glass that separated Smith from the witnesses. [Kim Chandler / Associated Press]

The Intercept obtained an internal investigation of Efraín Romero de la Rosa’s death in ICE custody that showed staff falsified documents, did not follow their own procedures, and placed him in disciplinary isolation despite his deteriorating mental health. In 2018, Efraín, who had schizophrenia, died by suicide after 21 days in solitary confinement at Georgia’s Stewart Detention Center. [José Olivares / The Intercept]

Florida Governor Ron DeSantis wants to give unvaccinated cops $5,000 bonuses to relocate to Florida and join police departments in the Sunshine State. [Andrea Salcedo / Washington Post]

Christina Nance had been missing for nearly two weeks when police said they found her body inside a police van parked outside the Huntsville, Alabama, public safety complex. Members of Nance’s family find her death suspicious and say they want answers. [Derek Hawkins / Washington Post]

That’s all for this week. Feel free to leave us some feedback, and if you want to support our official relaunch, please donate here. Until next time, the work continues.

A Homeless Man Has Spent 800 Days At Rikers After Stealing Cold Medicine. Now His Prison Sentence May Be Beginning.

Blind in one eye and at risk of losing vision in the other, 58-year-old Reginald Randolph is now on the verge of being sent to state prison to serve out a maximum of four years.

Randolph and his family in 1997.
Courtesy of Legal Aid Society.

A Homeless Man Has Spent 800 Days At Rikers After Stealing Cold Medicine. Now His Prison Sentence May Be Beginning.

Blind in one eye and at risk of losing vision in the other, 58-year-old Reginald Randolph is now on the verge of being sent to state prison to serve out a maximum of four years.

This story was published in partnership with New York Focus.

After failing out of drug court, Reginald Randolph, 58, was sentenced in August to two to four years in state prison for taking dozens of boxes of cold medicine from two Duane Reade stores in 2018.

“[Shoplifting] was just to support my addiction and to deal with my homelessness, deal with my poverty,” Randolph told New York Focus and The Appeal in a phone call from the Rikers Island jail complex in New York City.

Blind in one eye and at risk of losing vision in the other, Randolph is now awaiting a transfer from Rikers to a New York state prison.

“We’re not treated as humans in here,” he said, referring to Rikers.

Randolph says he goes without meals for three or four days and has lost about 40 pounds. At a recent dinner, a mouse was found in a pan of potatoes. For the 50 people in his unit, there are three working toilets, but they occasionally back up while someone is using them. There’s one working shower.

A spokesperson for the New York City Department of Correction told New York Focus and The Appeal in a statement: “We are committed to a safe environment in our jails where every person in custody is fed healthy food and has access to functioning facilities and to services.”

The agency also said Randolph’s housing area was inspected and all showers and toilets are operable; food is provided regularly; and they were not able to substantiate a rodent complaint like the one described. The agency’s denials conflict with widespread reports of inhumane and dangerous conditions at Rikers from elected officials, incarcerated people and their family members, the federal monitor overseeing the city’s jails, and public defenders.

In September, the Legal Aid Society, which represents Randolph, submitted a clemency petition to the Executive Clemency Bureau, which conducts a preliminary review of applications before sending them to the governor. Legal Aid is requesting that Governor Kathy Hochul grant Randolph emergency clemency and a full sentence commutation so he can be immediately released to the supportive housing program that Legal Aid has already obtained for him.

A spokesperson for the Manhattan district attorney’s office told The Appeal that assistant DA Megan Joy, counsel for collateral consequences, sent an email on Oct. 15 to Joshua Norkin, the governor’s assistant counsel for housing and civil rights which says: “Under the conditions presented by defense counsel (that defendant has a place in supportive housing and will go to the supportive housing), we do not oppose a commutation of his sentence.”

The governor’s office told New York Focus and The Appeal that they cannot comment on pending clemencies.

Randolph’s case is one of many examples of New York’s continued criminalization of mental illness, substance use disorders, and poverty. As of Oct. 15, almost half of the more than 5,500 people incarcerated in the city’s jails received mental health services, according to city data.

“Clients like Reggie have been failed by nearly every system they have touched since birth— from health care to education, housing, mental health, courts, and beyond,” Legal Aid attorney Jeffrey Berman, a member of Randolph’s legal team, told New York Focus and The Appeal in a statement. “There is an opportunity to right a wrong here, and to release Reggie from the shackles of this system so he can take a step forward in his journey of healing and recovery.”

Homeless, sick, and trapped in the system

Randolph’s biography is replete with trauma, untreated mental illness, and institutional failures, according to Legal Aid’s filings—details familiar among those trapped in the legal system.

Randolph’s stepfather regularly beat him, his mother, and his siblings. Randolph left school after the eighth grade and was first arrested when he was 16 years old. By 19, he was using cocaine, LSD, and PCP.

He’s been diagnosed with chronic obstructive pulmonary disease (COPD), polysubstance use disorder, schizoaffective disorder, and asthma. Homeless for more than two decades, he has primarily received mental health care when he has been locked up or at emergency rooms.

By the time he was arrested for stealing cold medicine in 2018, he’d been convicted of more than 50 misdemeanors and a handful of felonies, the most recent in 2005 for attempted robbery and sale of a controlled substance.

Although the DA’s office had the discretion to charge Randolph with a misdemeanor (or not pursue charges at all), they chose to bump up the charge to a felony—two counts of third-degree burglary—because Randolph had a “no trespass” order that banned him from Duane Reade. (Manhattan DA nominee Alvin Bragg, who most likely will be elected, wrote in his Day One memo that “ordinary shoplifting cases should not be charged as burglaries.” Bragg, a Democrat, was not available for comment.)

His bail was set at $15,000, although the DA’s office had asked for $20,000. Unable to pay, he stayed on Rikers Island. (The current version of New York’s bail reform law, which went into effect last year , allows judges to set cash bail for nonviolent offenses in limited circumstances.)

More than a year after Randolph’s arrest, he was accepted into Manhattan Drug Court. In August 2019, he was released from Rikers to an inpatient treatment program. If he didn’t complete the program, but was not arrested on a new charge he would be incarcerated for two to four years, according to the plea agreement he signed with the drug court. If he was arrested again, he faced up to 14 years.

Randolph left the treatment program after three days. “It was too much,” he said. “It was too much coming at me.”

Over the next two years, Randolph picked up more shoplifting charges and tried a second court-ordered treatment program. He left that one after almost four weeks.

“​​It was another residential program, it was basically mental health slash drug treatment,” said Randolph. “We only go out for one-hour walk a day. … It was really intense.”

Randolph’s experiences in drug court are not unique. The DA’s office told New York Focus and The Appeal that between Jan. 1, 2019 and Oct. 28, 2021, 404 people in Manhattan’s felony drug court had their cases resolved. Of those, about 47 percent graduated and over 50 percent failed out of drug court.

Court-ordered treatment programs are often highly regimented, emphasizing obedience and entry into the low-wage workforce, according to Kerwin Kaye, an associate professor of sociology at Wesleyan University and the author of the book “Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State.”

“Think of it like boot camp,” said Kaye. “There’s a lot of discipline and there’s a lot of rules to follow.”

Drug court—often hailed as a more compassionate alternative to the ’90s-era war on drugs—too often acts as a speed bump before prison, said Kaye.

For drug court participants in Manhattan, minor infractions can result in a range of punishments. For missed appointments, “rule breaking at program,” or arriving late to drug court two times, a judge can order participants to write essays and letters, or take away “program privileges,” according to the Manhattan Drug Court handbook. Repeated violations of these rules can result in jail time, reads the clip-art illustrated handbook.

“The [drug] court is still using prison as a threat in order to coerce people to do what they want them to do,” said Kaye. “It’s not really ending the war on drugs … It’s modifying the way that the war on drugs is waged.”

“Deterrence and retribution”

After he left the second treatment program, Randolph’s chances with drug court had run out.

In August, he went before Criminal Court Judge Cori Weston—herself a former public defender—to be sentenced on the charges from 2018. Before Weston’s appointment to the bench in 2016, she she was an attorney with Legal Aid for seven years and with the New York County Defender Services for almost 20 years. New York County Defender Services, which represents indigent clients in criminal cases, has publicly criticized the Manhattan DA’s practice of charging people who shoplift with burglary.

When Randolph attended the sentencing hearing, he was on crutches. He had fallen in the shower, he told New York Focus and The Appeal, “due to my vision situation.”

Weston sentenced Randolph to two to four years in prison. For each count there was a mandatory surcharge of $375, which Weston deferred until Randolph is released from prison.

Before he was sentenced, Randolph’s legal team filed a motion asking the court to reduce his charges or dismiss the indictment entirely, citing his deteriorating health and mental illness. The Manhattan DA’s office opposed the motion, and Weston denied it.

“Dismissal of the charges could adversely impact the safety and welfare of the community, and would undermine the public’s confidence in the criminal justice system,” Weston wrote in her ruling.

The purpose of imposing Randolph’s sentence, she wrote, was “deterrence and retribution.”

Continued incarceration will have potentially catastrophic consequences for Randolph, according to two medical experts who reviewed his records. He needs consistent, timely medical care to have any hope of preserving his vision, they wrote in letters attached to his clemency petition. But in prisons and jails, medical care for incarcerated patients is routinely denied, delayed, or inadequate.

In a letter submitted with Randolph’s clemency petition, Dr. Alexander Bardey, a former director of mental health services at Rikers Island, wrote that Randolph’s “best hope of keeping what is left of his remaining vision would be for him to be removed from a carceral setting and reside in a supportive residence.” Bardey warned that Randolph is also at risk of potentially fatal complications if he were to contract COVID-19.
“In an environment like Rikers Island or a DOCCS facility, the risk of a sudden, catastrophic outcome is increasingly likely for Mr. Randolph,” he wrote, referring to the Department of Corrections and Community Supervision.

A life in the governor’s hands

Sentenced more than three months ago, Randolph hasn’t been transferred to state prison; the reason for the delay is unclear, said Berman, the Legal Aid attorney. And although he’s been eligible for parole since July 18, he has not yet gone before the parole board. Since his arrest in 2018, Randolph has spent more than 800 days at Rikers Island.

But Legal Aid and Randolph’s supporters are not requesting an expeditious release on parole.

If Randolph is granted parole, he’d likely be sent to a shelter, according to Legal Aid. In 2019, Legal Aid and other groups sued the Department of Corrections and Community Supervision for holding people with mental illness past their release dates. After the suit was filed, DOCCS started to parole people with mental illness to homeless shelters and psychiatric institutions, instead of housing with supportive services. Legal Aid amended the complaint to challenge this practice as well. Last month, the court denied DOCCS’s request to have the class action suit dismissed.

His team at Legal Aid — Berman, along with co-counsel Yvonne Nix and mitigation specialist Afeisha Julien — wants Randolph immediately released so he can move into The Redemption Center’s transitional supportive housing program. Randolph will stay there until he moves into long-term housing with wraparound services, according to Berman.

If Randolph is released he’ll receive additional support from the Bridge Back to Life Center, which will provide intensive outpatient mental health and substance dependence treatment, as well as medication management services, the organization’s CEO wrote in a letter to the Executive Clemency Bureau. Medical care for his eyes will continue at Bellevue Hospital, according to Berman.

“We have the opportunity to get him in a transitional housing program with supportive services,” said Mark Graham, executive director of The Redemption Center. “We’re going to ensure that he’s fed, has a place to sleep. … Parole is not going to do that.”

If Graham could speak with the governor, he would tell her: “When we hear the term and the concept of travesty of justice, we’re looking at it in Reginald’s case.”

The governor’s decision on Randolph’s clemency petition could determine whether he continues a cycle of homelessness and incarceration, or whether he can finally attain the kind of stability and support that he’s been denied for almost 60 years.

Randolph said that if he is released, he plans to participate in treatment programs, take his medications, and “live a normal productive life.”

“I’ll be able to do that cause I won’t have too much poverty to deal with,” he said. “My attorney has me connected with The Redemption Center. I have living quarters there. … I’ve never had that stability in my life. And I would appreciate the opportunity to be able to have that.”

Editor’s Note: This story has been corrected to reflect the fact that Randolph’s attorneys filed their motion to reduce his charges or dismiss the indictment before Randolph was sentenced, not after, as the story originally stated. We regret the error.

These November Elections Could Dramatically Change Local Police Departments

These November Elections Could Dramatically Change Local Police Departments

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Illustration by The Appeal. Photos courtesy of YES 4 Minneapolis, Cooper Baumgar, Josh Hild, and Munshots at Unsplash.

These November Elections Could Dramatically Change Local Police Departments

by Anna Simonton, The Appeal

On Oct. 16 in Minneapolis, advocates for reforming police and public safety were on a roll. Volunteers gathered in Longfellow Park—just a couple of miles from the spot where police killed George Floyd—and fanned out to knock on hundreds of doors, talking with residents about Question 2, a measure on the November ballot that could bring sweeping change to the city’s police department. Even though 2021 is considered an “off year” for electoral politics, many local elections like this one in the coming weeks may still shift the status quo for criminal justice around the country.

If it passes, Question 2 will create a Department of Public Safety, which would employ a “comprehensive public health approach to safety,” according to the ballot language. It would lift a requirement that the city maintain a certain number of armed officers depending on the population, opening the door for officials to create a model where professionals other than police prevent or respond to emergencies.

“What we have currently in the city of Minneapolis is an armed police response only,” JaNaé Bates told a crowd at a public forum held at Mayflower Church, across town from where volunteers were canvassing. Bates is the communications director for the Yes 4 Minneapolis coalition, which represents more than 50 organizations that support the ballot measure. Voting yes on Question 2, she said, would ensure that people in crisis get help that’s appropriate for their specific situation. “Sometimes it will be a police officer. Sometimes it won’t. Sometimes it will be a mental health professional.”

This election is one of a handful of local races across the country that may be a barometer of how efforts to transform the criminal legal system have fared since George Floyd’s murder last year sparked massive protests calling for change.

  • New Orleans voters will choose whether to re-elect Orleans Parish Sheriff Marlin Gusman, who since 2004 has overseen a jail rife with human rights abuses. Four challengers are running against him in a nonpartisan Nov. 13 primary. Among them is a former police watchdog, Susan Hutson, who opposes jail expansion, wants to make fewer arrests, and plans to end the exorbitant fees incarcerated people have to pay for phone calls.
  • In Seattle, a self-described “abolitionist” candidate for city attorney, Nicole Thomas-Kennedy, is competing against a tough-on-crime opponent after incumbent Pete Holmes, who steered the office in a more progressive direction over the last decade, lost in the August primary. Kennedy, a former public defender, says she will stop prosecuting most misdemeanors and seek alternatives to prosecution where available. But a recent poll shows her falling behind Ann Davison, an attorney who flipped from Democrat to Republican in 2020, has advocated for homeless encampment sweeps, and wants to ramp up misdemeanor prosecutions.
  • Mayoral elections nationwide are a battleground over the future of criminal justice. When community organizer India Walton won the Democratic mayoral primary in June in Buffalo, New York, her vision for reducing the scope of policing seemed likely to become policy. But the defeated incumbent, Byron Brown, has staged an aggressive write-in campaign that could prevail on Nov. 2. And in Boston and Cincinnati, left-leaning candidates want civilian-led teams to respond to some low-level offenses or emergency calls, but their challengers want to maintain, or even expand, the size of each city’s police department. Elsewhere, candidates have fallen prey to reactionary rhetoric about the rise in violent crime; most of the candidates for Atlanta mayor are touting policies, like creating a gang task force, that hearken back to the 1990s tough-on-crime era.
  • Last year, Austin cut its police budget by about a third by moving civilian functions like dispatch and forensics outside the department, and redirected $70 million to programs like supportive housing and substance use treatment. But that could come undone if voters approve Proposition A on Nov. 2. The measure would expand the city’s spending on cops and potentially force cuts in other areas, like firefighters, medics, and librarians. A long list of labor and social justice groups, elected officials, and local residents are fighting Prop A.
  • Gubernatorial elections are taking place in New Jersey and Virginia this year, and the latter is a tight race with high stakes for the criminal legal system. Virginia abolished parole in 1995; now Democratic lawmakers are aiming to reinstate it. The effort would likely have support from former governor Terry McAuliffe, a Democrat who is seeking another term. But Republican contender Gary Youngkin instead wants to take parole options away from those convicted before 1995.

In Minneapolis, activists are cautiously hopeful. Question 2 needs a simple majority to pass, and a September poll suggested that 49 percent of voters supported the measure.

“Coming together across race, across region, across income to say that Black Lives Matter and that we’re ready to put that proclamation into policy was a necessity” after police killed George Floyd, Bates told The Appeal.


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People with disabilities at New York’s Five Points Correctional Facility say they’re denied working wheelchairs, unable to attend meals, and at risk of being disciplined because of their disability. One plaintiff was kept in solitary when he couldn’t push another person in a wheelchair. [Elizabeth Weill-Greenberg / New York Focus and The Nation]

The Consumer Financial Protection Bureau fined JPay $6 million for “engaging in unlawful conduct that targeted people released from the corrections system, siphoning off taxpayer-funded benefits and people’s own hard-earned money in the process,” CFPB director Rohit Chopra said in a statement. [CFPB]

Since 2015, the agency responsible for parking and traffic enforcement has cost the city of Los Angeles $192 million more than it generated in fines. [Cari Spencer / Crosstown]

Los Angeles County sheriff’s deputy Gregory Van Hoesen killed two people in 18 months: 16-year-old AJ Weber and 21-year-old Jamaal Simpson. Van Hoesen was not disciplined for either shooting, faced no criminal charges, and is still working. [Cerise Castle / Knock LA]

Maryland Governor Larry Hogan wants to “re-fund the police” with his $150 million plan to give police across the state even more money. Budgets for state police departments and grants to local police departments have already increased during Hogan’s tenure. [Bryn Stole / Baltimore Sun]

A Black person in New Jersey is more than 12 times more likely than a white person to be incarcerated—the highest Black-white disparity rate in the country, according to a new report by The Sentencing Project. [Ashley Nellis / The Sentencing Project]

A new article in Science, the peer-reviewed academic journal of the American Association for the Advancement of Science, details how public and private actors have turned America’s criminal legal system into a “vast network of revenue-generating operations.” [Joshua Page and Joe Soss / Science]

That’s all for this week. Feel free to leave us some feedback, and if you want to support our official relaunch, please donate here. Until next time, the work continues.

People Are Being Tortured Inside New Jersey’s Prisons

Lydia Thornton embraces another activist while Nafeesah Goldsmith stands in front with raised fist at a rally and vigil outside Edna Mahan.
Photo: Ibrahim Sulaimani

People Are Being Tortured Inside New Jersey’s Prisons

The following text appeared in the third edition of our weekly newsletter. Sign up here.

The workers have taken over The Appeal.

We’re excited to bring you the third edition of our weekly newsletter as we continue to work toward an official relaunch.

Every dollar we raise brings us closer to producing vital journalism that helps communities address the harms of the criminal legal system. Help us return to reporting full time here.

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Lydia Thornton embraces another activist while Nafeesah Goldsmith stands in front with raised fist at a rally and vigil outside Edna Mahan.
Photo: Ibrahim Sulaimani

People Are Being Tortured Inside New Jersey’s Prisons

by Elizabeth Weill-Greenberg, The Appeal

Inside New Jersey’s Bayside State Prison, corrections officer John Makos allegedly tortured incarcerated kitchen workers. In one incident, he approximated a “crucifixion” by handcuffing his victim’s outstretched arms to fences and doors, then beat him, according to a criminal complaint issued by the Department of Justice last month.

Makos’s victims feared that if they spoke out, they might lose their job in the prison’s kitchen, which gave them access to more and better quality food, according to the DOJ complaint and an investigation by NJ Advance Media.

During the course of at least nine months in 2019, the complaint says:

  • Makos ordered a victim to pull down his pants, then repeatedly spanked the man with a ruler with such force that the ruler broke. He later forced the victim to show his bruised buttocks to other incarcerated people.
  • Makos told a victim that if he wanted to keep his job in the kitchen, he’d have to ride “the motorcycle.” He ordered the victim to put his back against the wall and sit, as if on a motorcycle. Makos then kicked him in the chest.
  • To avoid a beating, another victim ate hot peppers that Makos brought to the prison.

Makos’s alleged actions aren’t an isolated incident of depravity. Corrections officers across the country regularly make headlines for egregious acts of cruelty like killing a mentally ill man by locking him in a scalding hot shower or putting a woman in an outdoor cage on a 107-degree day for four hours, killing her. What Makos is accused of doing is a symptom of an entrenched pattern of abuse inside the country’s prisons—abuse that disproportionately impacts people of color and haunts generations of survivors.

Nafeesah Goldsmith was incarcerated for more than a decade at Edna Mahan, New Jersey’s prison for women. She told The Appeal that she wasn’t surprised by the abuse at Bayside or that it occurred so openly for months.

“I’ve been desensitized when it comes down to just what officers of the DOC will do,” said Goldsmith, who is now chairperson of New Jersey Prison Justice Watch. “What is disheartening is the fact that this is something that is accepted—the fact that an individual feels that comfortable and has that kind of freedom at work to perform in such a manner that others are aware of it, your colleagues are aware of it.”

What happened at Bayside “speaks to a culture … that says that we are dispensable,” added Lydia Thornton, who was also imprisoned at Edna Mahan. “Because, after all, we’re criminals.”

Thornton works with New Jersey Prison Justice Watch and founded the advocacy group, The Scarlet F (the F stands for “felon.”)

That culture of dehumanization permeates New Jersey’s prisons. Last year, I wrote about a man incarcerated at Mid-State Correctional Facility who was handcuffed for days while he was hospitalized with COVID-19. In April, Akela Lacy reported for The Intercept that contaminated water at East Jersey State Prison likely caused a Legionnaires’ disease outbreak among the men housed there. And sexual assault has been rampant at Edna Mahan, according to a DOJ investigation. Just this month, a corrections officer was charged with sexually assaulting an incarcerated woman. Earlier this year, the state Department of Corrections entered into a preliminary multi-million dollar settlement with survivors.

Even while the DOJ was investigating Edna Mahan, the abuse continued unabated. On the night of Jan. 10 into the early morning hours of Jan. 11, correctional officers attacked several women; they cut off the victims’ clothes, punched them dozens of times, and pepper sprayed them as the women bled, cried, and pleaded for them to stop. The state attorney general’s office has charged 10 officers in connection with the assaults.

“It took a year and a half for this to even come out,” Thornton said of the abuse at Bayside. “I understand investigations have to happen. … But it seems to me that when it comes to us, the process slows down. We’re not quite as important.”

But survivors of New Jersey’s prisons are fighting back.

Goldsmith, Thornton, and other formerly incarcerated leaders championed a bill to restrict the use of solitary confinement, a common practice in prisons and jails throughout the country that the United Nations Human Rights Council has said can be tantamount to torture. In 2016, Governor Chris Christie vetoed the bill, but current Governor Phil Murphy later signed it in 2019. Last year, loved ones of those inside, along with formerly incarcerated people and their allies, held a funeral procession at the state Capitol to honor the incarcerated victims of COVID-19. Earlier this year, they protested outside Edna Mahan. They’ve demanded the release of thousands of people trapped inside New Jersey’s prisons and jails.

“We put human beings away in cages and behind giant walls and all that for public safety,” said Thornton. “And so that we can forget about them.”

The abuse of people who are incarcerated, whether in blue states like New Jersey or red states like Texas, will continue as long as elected officials—and the people who elect them—act as if a person living on the inside is less human than a person living on the outside.

Disclosure: From 2018 to 2019, Elizabeth Weill-Greenberg worked for New Jersey Campaign for Alternatives to Isolated Confinement, which advocated for the passage of the Isolated Confinement Restriction Act (A314/S3261.)

The New Jersey Department of Corrections has agreed to a preliminary multi-million dollar settlement in the Edna Mahan class action suit. Every person who spent a single day imprisoned at Edna Mahan since January 1, 2014, (through now) is entitled to at least $1,000—(and as much as $250,000). The deadline to file a claim is next week on Oct. 29, 2021. Click here to learn how to file a claim.



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A former Kansas City, Kansas, police detective has been accused of raping women and coercing women into giving false testimony. The detective, Roger Golubski, is now facing a grand jury investigation after the Kansas City Star repeatedly reported on the accusations against Golubski. [Dan Margolies and Steve Vockrodt / Kansas City Star]

Recently released body-camera footage shows police officers in Dayton, Ohio, ripping a paraplegic Black man out of his car by his hair. The city’s police union has since defended the cops filmed brutalizing the man, Clifford Owensby. [Jen Balduf / Dayton Daily News]

The COVID-19 pandemic led to a 500 percent increase in the use of solitary confinement in prisons under the guise of “medical isolation,” a Solitary Watch report warns. “In some ways, the COVID-19 unit was worse than the hole, a term used to describe solitary confinement in prisons and jails and which is used as a form of punishment,” HuffPost wrote. [Jessica Schulberg and Christopher Blackwell / HuffPost]

Arizona Department of Corrections Special Operations training materials are full of offensive imagery, including patches with skulls and shotguns on them. The materials also include a training video showing Special Operations officers pepper-spraying imprisoned people set to Guns N’ Roses’ “Welcome to the Jungle.” [Jimmy Jenkins / Arizona Republic]

The crisis inside New York City’s Rikers Island jail complex is much deeper than previously reported. The COVID-19 pandemic and the rollback of bail reform exacerbated an extant staffing issue—and guards have stopped supervising entire wings of the facility. Although some have noted that detained people have used the crisis to take better care of one another, incarcerated people have also been victims of violence and neglect inside the compound. [Jan Ransom, Jonah E. Bromwich, and Rebecca Davis O’Brien / New York Times]

A group of New York state lawmakers is pushing to make all prison phone calls free. Imprisoned people in New York (and their loved ones) pay among the highest rates for phone calls in the country. [Rachel M. Cohen / New York Focus]

Overtime pay for NYPD officers is costing the city hundreds of millions of dollars per year, even as the practice encourages over-policing, takes resources from other social services, and has no clear effect on public safety. [Fola Akinnibi, Sarah Holder, and Christopher Cannon / Bloomberg]

City of Miami Police Chief Art Acevedo, a former chief of the Houston and Austin police departments in Texas, was fired weeks after writing a memorandum accusing multiple Miami politicians of corruption and misusing the police department for personal gain. (Acevedo further stated that he would be alerting “the proper authorities.”) Acevedo had been on the job for about six months. [Joshua Ceballos / Miami New Times]

The Philadelphia City Council on Thursday became the first big city in America to ban police from pulling people over for low-level, “pretextual” driving offenses—such as broken tail lights or improperly displayed registration stickers. According to the Defender Association of Philadelphia, the new law could eliminate around 300,000 police interactions with civilians each year. [Sean Collins Walsh / Philadelphia Inquirer]

That’s all for this week. Feel free to leave us some feedback, and if you want to support our official relaunch, please donate here. Until next time, the work continues.

Why the Media Won’t Stop Using ‘Officer-Involved Shootings’

Photo: Unsplash / Munshots

Why the Media Won’t Stop Using ‘Officer-Involved Shootings’

The following text appeared in the second edition of our weekly newsletter. Sign up here.

Last week we announced that we’d completed our worker-led takeover of The Appeal. If you haven’t read our full statement, you can find it here.

We’re excited to bring you the second edition of our weekly newsletter as we continue to work toward an official relaunch. We’d love to hear what you want to see us do with this newsletter. Your input will impact what we do going forward. Please share your thoughts here.

We’re so excited to be back, and thanks again for sticking with us!

Photo: Unsplash / Munshots

Why the Media Won’t Stop Using ‘Officer-Involved Shootings’

by Jerry Iannelli, The Appeal

On Oct. 5, officers with the Simi Valley Police Department in California shot and wounded a woman.

That previous sentence may seem simple to write, but many nearby media outlets in Los Angeles were incapable of composing such a straightforward description of that night’s events.

Instead, readers had to weed through garbled, action-obfuscating language crafted to avoid any implication of fault by police. In its initial story on the shooting, the Los Angeles Times reported that a woman was “hospitalized after Simi Valley officer-involved shooting,” and that “at some point the officers engaged the female, and an officer-involved shooting occurred.”

More than a dozen words obscure what the police commissioner plainly told reporters in five: “An officer shot the woman.”

That one of the nation’s premier newspapers still uses such police-centric language more than one year after the international uprising following the murder of George Floyd is a microcosm of the sad state that American media finds itself in at the moment.

Reporters in newsrooms across the country still insist on using the term “officer-involved shooting” despite the fact that the Associated Press updated its stylebook last year to instruct reporters not to use the phrase. On Oct. 7 alone, at least five news outlets across the country used the phrase “officer-involved shooting” to describe police officers shooting—and in two cases killing—people. The headline “Bodycam video captures deadly officer-involved shooting in Mantua Township” completely fails to make clear what actually happened: A New Jersey resident called 911 fearing armed trespassers on his property. Police arrived, then killed the caller.

Many newsrooms continue to hold on to a phrase that absolves police officers and dehumanizes their (disproportionately Black) victims. When it comes to state-sanctioned violence, reporters all too often repeat the language of the powerful, thereby legitimizing it. (Just look at the way police initially described Floyd’s murder.) It’s not torture, it’s “enhanced interrogation techniques.” It’s not a child prison, it’s a “juvenile detention facility.” It’s not murder, it’s an “officer-involved shooting.”

Why continue to publish such a jumbled and outdated phrase then? Money, for one. It seems impossible to imagine that the Times would ever refer to a mayoral embezzlement scandal as a “politician-involved corruption case.” But newspapers don’t symbiotically depend on politicians for scoops in the same way that police beat reporters lazily rely on cops to fill the paper each morning. Major newspapers like the South Florida Sun Sentinel even explicitly state that they want a cops reporter “who posts the news immediately and then hits the streets to find the story behind the police report.” So they want reporters to uncritically publish a police report, then do actual reporting to find out if it’s even true?

The journalist who wrote the LA Times’s original piece on the shooting is a breaking news reporter, whose job overwhelmingly consists of writing short stories based largely on statements from government officials—be they fire chiefs, meteorologists, or the police. I myself worked a virtually identical job for about three years, cranking out a day’s worth of short pieces in an adrenaline-fueled scramble, and it can be easy for some to cut corners by essentially copying and pasting a press release into print. Government statements also have the added benefit of generally being protected against libel lawsuits by default. In major daily newsrooms, the typical breaking news reporter is also rarely asked to actually hold the police (or anyone) accountable—such jobs are often shuttled to the investigative desk or elsewhere.

If the purpose of journalism is to inform, there is almost zero value in a 200-word blurb alerting readers that a cop was perhaps, maybe, just a little bit involved in pushing a bullet out of their gun toward an unknown person that they may have hit. But publishing before competitors is a quick and easy way to game the search and social media algorithms to get as many eyeballs on your story as quickly as possible. (Eyeballs or clicks, of course, generate advertising dollars for the rapacious investment firms or fourth-generation American Hapsburgs that generally own most U.S. for-profit newspapers nowadays.)

Police departments know all this and use it to their advantage—their PR departments notoriously remove critical reporters from their email lists and slow-walk requests from contentious journalists. Departments overwhelmingly send out news alerts to reporters via email, so removal from the hallowed police Listserv means a reporter is at a significant speed disadvantage when it comes to breaking news against their competitors.

There are certainly still a large number of American crime reporters who are either: A) outright conservatives who think cops should be able to kill “bad guys” who somehow deserve whatever brutality the police hand out, or B) at least fine not passing judgment on the issue of state-sanctioned extrajudicial killings in order to uphold the press’s farcical sense of “objectivity” (which in reality is simply the bias of the white men who have traditionally dominated the field). But just as many journalists are simply overworked and willing to do whatever it takes to crank out copy as fast as possible.

Journalists generally get how language works and know “officer-involved shooting” obscures who actually fired a gun. But when reporters have to choose between reporting that tells the whole truth or reporting that doesn’t anger the people that keep their free conveyor-belt of easy stories coming, most of them keep choosing the latter.

But it does not have to continue this way. Collective action works (just ask our old bosses). Newspapers are abandoning the grotesque practice of publishing mugshots. “Incarcerated person” is slowly replacing dehumanizing words like “inmate” or “felon”—something that Malecia Walker, The Appeal’s copy editor, instituted in our style guide back in 2018. And with continued public pressure, “officer-involved shooting” could be scrapped as well.



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For at least six years, a Texas district clerk separated jurors by race and geography before assigning them to panels for criminal, civil, and family law trials. Now, her method is under investigation for possibly violating state law—and thousands of verdicts could be challenged. [Michael Hardy / Texas Monthly]

Police in Tennessee arrested four Black elementary schoolchildren for not breaking up a fight between other kids. Those senseless arrests are just one example of the illegal jailing of children happening in Rutherford County for years. Judge Donna Scott Davenport, the only elected juvenile court judge the county has ever had, has described her work locking up children as a mission from God. [Meribah Knight / Nashville Public Radio & Ken Armstrong / ProPublica]

A newly released batch of body camera videos from protests last summer shows officers with the Minneapolis Police Department driving around in an unmarked van and indiscriminately firing rubber bullets at passersby. None of the involved officers have been disciplined for their conduct. [Deena Winter / Minnesota Reformer]

A Boston Police officer who bragged on camera about running down protesters with his cruiser in footage released to Appeal contributor Eoin Higgins is now back on full duty, showing once again that cops rarely face meaningful consequences for committing violence. [Eoin Higgins / Substack]

And the Kenosha police officer who shot and paralyzed Jacob Blake last year will not face any federal civil rights charges, prosecutors announced on Friday. State prosecutors also declined to charge the officer, Rusten Shesky, and he has since returned to work without facing any discipline from the department. [Alicia Victoria Lozano / The Associated Press]

A new report from Color of Change highlights how large corporations like Coca-Cola and Bank of America bankroll police foundations, which in turn help bloat police budgets, fund police militarization, and expand surveillance. [Color of Change]

Federal investigators last week raided the Manhattan headquarters of the controversial Sergeants Benevolent Association police union, as well as the Long Island home of the organization’s president, Ed Mullins. Mullins has since resigned and been stripped of his gun and badge. He’s also filed for retirement. [New York Daily News]

A recent investigation by CNN found that even when cops are convicted of crimes like rape and murder, they still get to keep their pensions. The reporters identified over 350 police officers convicted of felony crimes who have already received pension payments, or are eligible to receive them in the future. These officers have been paid about $70 million in total so far. [Blake Ellis & Melanie Hicken / CNN]

Texas spent more than $20,000 fighting to keep a prisoner with a wool allergy from getting a cotton blanket. [Keri Blakinger / Twitter]

Arizona’s Department of Corrections has come under fire in recent years for maintaining inhumane conditions and mistreating people in custody. Rather than address those issues, the state appears to be rewarding the department by spending millions in COVID-19 relief funds on renovating its administrative offices. [Katya Schwenk / Phoenix New Times]

“Vicious beatings, fence crucifixions. N.J. corrections officer turned prison kitchen into ‘Fight Club.’” An alarming story from NJ Advance Media details the alleged reign of terror of a now-former corrections officer at Bayside State Prison. [Joe Atmonavage / NJ Advance Media]

A new Bureau of Justice Statistics report draws a particularly grim portrait of the dangers of pretrial incarceration, finding that more than 75 percent of the 6,217 jail suicides between 2001 and 2019 involved people awaiting trial, with nearly half taking place within a week of booking. [Bureau of Justice Statistics]

Source: Bureau of Justice Statistics

In coverage of recently released 2020 homicide data, major outlets like The New York Times and NPR gave police and their allies a platform to blame increased violence on bail reform and protests for racial justice following the murder of George Floyd. This was just the latest example of the “pro-police worldview deeply ingrained in journalism,” wrote public defender Scott Hechinger in a column for The Nation last week. [Scott Hechinger / The Nation]

During oral argument at the Supreme Court last week, justices spent a lot of time debating the meaning of the word “occasion,” all while ignoring more fundamental questions about whether the plaintiff in the case had been correctly sentenced as a “career criminal.” The court’s focus on that single word shows how “ill-equipped the courts are to rectify … the inhumanities that plague the criminal legal system,” writes Appeal advisory board member Josie Duffy Rice. [Josie Duffy Rice / Balls & Strikes]

Correction: This article has been updated to reflect the fact that the Simi Valley Police Department is not in Los Angeles County.

The Recent Rise in Violence Should Be a Rallying Cry for Reform

The Recent Rise in Violence Should Be a Rallying Cry for Reform

The following text appeared in the first edition of our weekly newsletter. Sign up here.

Earlier today, we announced that we’d completed our worker-led takeover of The Appeal. If you haven’t read our full statement, you can find it here.

As we continue to work toward an official relaunch, we decided we couldn’t wait to get back to doing what we love. Today we’re launching the first edition of The Appeal’s weekly newsletter! We’ll provide you with perspectives on the issues currently shaping the criminal legal system, along with a roundup of some of our favorite content from across the justice space. Each week you’ll hear from a different member of our team, or experts in the field.

And since we’re just getting started, we’d love to hear what you want to see us do with this newsletter. Please share your thoughts here.

We’re so excited to be back, and thanks for sticking with us!


Photo: iStockPhoto

The Recent Rise In Violence Should Be A Rallying Cry For Reform

by Nick Wing, The Appeal

Last week, the FBI published its Uniform Crime Reporting data for 2020. The annual dataset offers the most detailed accounting yet of crime during a year defined by a crushing pandemic and nationwide protests for racial justice following the murder of George Floyd. The report tells an incomplete story—mainly because it relies on voluntary reporting by police departments, which submit data slowly and inconsistently (and sometimes inaccurately). But the topline finding confirms what many had already understood to be an unusually violent year: Homicides rose by nearly 30 percent in 2020, the largest year-over-year increase since the U.S. began collecting national data in 1960. All told, more than 20,000 people were murdered in America last year at a rate not seen since the 1990s—though the U.S. murder rate remains substantially lower than the peaks of the 1980s and early 1990s.

Acknowledging this increase in homicides doesn’t mean giving in to the clamor for punitive responses. It doesn’t mean agreeing with the elected officials and law enforcement groups who’ve been given space in major publications to make unfounded claims blaming the violence on efforts to rein in abusive policing and the harms of mass incarceration.

This data is undeniably concerning, and it should serve as a rallying cry for those who believe violence can be better addressed with methods that don’t rely exclusively on police, prosecutors, and prisons. After all, that status quo is exactly what got us here. For all the debate in 2020 over “defunding the police” and other more modest reforms, few if any jurisdictions actually deviated significantly from the narrow framework that has defined public safety for decades.

Before we go on, a few clarifying points about the 2020 UCR report:

FIRST, while homicides increased in 2020, the data also confirms that overall crime—including robbery, rape, and burglaries—decreased nationwide. We can’t let valid concerns about violence give way to disingenuous fear-mongering about crime more broadly.

SECOND, the rise in killings last year was felt in every region of the country, across population size and political affiliation. Any attempt to attribute this to a single cause, or even set of causes, is completely dishonest.

THIRD, 2020 is just one year, and an incredibly abnormal one at that. Two data points do not make a trend. And while some preliminary data suggests that homicides continued to rise in the first half of 2021, albeit at a much slower rate than in 2020, we just don’t have enough data yet to make dire pronouncements—or rosy ones—about the murder rate.

Even if 2020 proves to be a statistical anomaly, that doesn’t mean we can ignore the violence that’s tearing through neighborhoods across the U.S. This bloodshed continues to take a disproportionate toll on Black and brown communities, which have historically felt the brunt of this issue and the failed responses to it. This is a crisis that kills, maims, and traumatizes residents. It drains communities of resources and opportunity, and gives way to an oppressive police presence that does further harm to the individuals they are supposed to be helping.

Despite rhetoric from law enforcement officials—who believe that any criticism of racist, out-of-control policing threatens the supposed “thin blue line” between order and chaos—the spike in homicides last year occurred in a nation where police remain the only well-funded resource for addressing violence. These murders occurred on their watch, at a time when police budgets mostly increased. The 2020 data shows alternatives are not just possible, but necessary. And as some cities have already begun to see, non-police methods of violence prevention can be effective, at a fraction of the cost—both social and monetary—of policing.

There are plenty of tools and strategies that can be used to address violence, without doubling down on the punitive mindset that has done so much harm. We can meet this crisis head on by investing in these alternatives—but only if we’re willing to acknowledge the need for urgency and respond by fighting for solutions that make us all safer.


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Appeal alum Lauren Gill investigated the unprecedented surveillance of mail sent to people incarcerated at federal prisons and the toll it takes on those inside. Instead of a card or handwritten letter, incarcerated people often get scanned, sometimes illegible copies. “It’s just like receiving a fake dollar bill,” one incarcerated person said. [Lauren Gill / The Intercept]

Appeal transition staff members Ethan Corey and Elizabeth Weill-Greenberg reported last month on the case of Anthony Sims, who has served more than 20 years in New York prisons for a murder he says he did not commit. The Brooklyn DA’s conviction review unit declined to review his case in 2016 without even interviewing him. The head of the CRU at the time, Mark Hale, was the prosecutor who put Sims in prison. [Ethan Corey and Elizabeth Weill-Greenberg / New York Focus]

Former Appeal reporter George Joseph and New York Focus editor-in-chief Akash Mehta combed through data to find out exactly who is responsible for driving up the number of people waiting for their trials at Rikers. (Spoiler alert: It’s judges.) [George Joseph and Akash Mehta / Gothamist & New York Focus]

Bonus: A chart showing the NYC judges with the highest rates of setting bail.

After the release of 2020 crime data, media outlets were quick to platform voices suggesting the rising violence was due to backlash over last summer’s protests against police abuse. Former Appeal contributor Jon Ben-Menachem has a new column outlining the dangerous logic of the so-called Ferguson Effect—a debunked criminological theory that claims “de-policing” or “police pullback” cause increases in crime. [Jon Ben-Menachem / Slate]

Congress is moving forward with legislation to eliminate the crack/powder cocaine sentencing disparity. The disparity had been reduced in 2010 from a 100-to-1 ratio to an 18-to-1 ratio. [Sarah N. Lynch / Reuters]

Two narcotics officers with the Columbus, Ohio, police department were arrested for allegedly attempting to distribute nearly 8 kilograms of fentanyl. (And to think cops keep telling us they can OD just from touching fentanyl dust.) [Associated Press]

A tough-on-crime Republican district attorney in Pennsylvania has been charged with rape after allegedly showing up at a professional acquaintance's home uninvited and violently assaulting her. He's not the first DA in the state charged with sexual assault this year: In February, a prosecutor in another county was accused of sexually assaulting at least five women. [Dave Sutor and David Hurst / The Tribune-Democrat]

Alabama is proceeding with plans to use $400 million in COVID relief funds to build new prisons. [Mike Cason /]

A judge in New York tried to send an immunocompromised homeless man to Rikers—for allegedly stealing blankets. [Nick Pinto / The Intercept]

Sean Worsley, a decorated veteran with a Purple Heart, was sentenced to five years in prison in Alabama for bringing his legally prescribed medical marijuana from Arizona to Alabama. He was released on parole last fall, but the conviction has continued to haunt Worsley and his wife, who have since struggled to find work and housing. [NOVA | PBS]

Maryland police reforms started going into effect on Friday. When cops kill someone, “a new team of independent investigators will show up at the scene and sort out what happened,” the Baltimore Sun reported. “And when misconduct complaints are made against officers, they will be public.” [Jessica Anderson and Pamela Wood / Baltimore Sun]

The UCR data we discussed at the beginning provides a lot of numbers to wade through, and there are important caveats and limitations to consider. This new open-source book by Jacob Kaplan, the chief data scientist at Research on Policing Reform and Accountability, has tons of great info to help you avoid pitfalls while analyzing and interpreting the data. [Jacob Kaplan /]

That’s all for this week. Feel free to leave us some feedback, and if you want to support our official relaunch, please donate here. Until next time, the work continues.

The Appeal is back! And we’re worker-run.

We’re back with some big news! Thanks to your generous support and the hard work of our transition team, the workers have officially taken over The Appeal.

The Appeal is back! And we’re worker-run.

We’re back with some big news! Thanks to your generous support and the hard work of our transition team, the workers have officially taken over The Appeal.

In June, the staff resolved to save The Appeal after our bosses decided to shut us down. We are now well on our way to relaunching as a worker-led nonprofit news outlet dedicated to critical reporting on the criminal legal system. We’ve taken ownership of The Appeal’s intellectual property, including our website, social media, and everything else we need to serve our audience.

And we’re on track to publish a special package of stories in November. More on that later.

The Appeal transition team has accomplished all of this by working as volunteers, and we could not have done it without your solidarity. Although we retain The Appeal’s name and rights to our work, we are an entirely new entity. With old management no longer involved, we — the workers — are excited to grow from and improve upon The Appeal of the past. 

There’s more work to be done before our official relaunch — and you can help us return to publishing full time by donating here. In the meantime, we want to get back to serving you, our readers.

Later today, we will be launching our weekly newsletter, which will provide The Appeal’s perspective on issues shaping the criminal legal system, along with a roundup of some of our favorite content from across the justice space. Each week you’ll hear from a different member of our team or one of our allies in the field. (You can sign up here.) 

Thank you all for sticking with us. Please share our donation page with your networks. Every dollar we raise gets us closer to producing vital journalism that helps communities address the harms of the criminal legal system.

Thank you,

Molly Greene
Anna Simonton
Tara Francis Chan
Elizabeth Weill-Greenberg
Malecia Walker
Natalie Pryor
Bilal Baydoun
Meg O’Connor
Nick Wing
Jerry Iannelli
Ethan Corey

Two Mayoral Elections May Shape Policing Next Week

The Appeal: Political Report’s April 2 newsletter

Two Mayoral Elections May Shape Policing Next Week

The Appeal: Political Report’s April 2 newsletter

April 2, 2021: Two mayoral elections with stakes for policing are coming up on Tuesday, and at the state level this past week brought milestones on marijuana and youth justice. Today’s menu:

  • New York legalized marijuana. Virginia and New Mexico may soon follow.

  • Nebraska: Omaha’s GOP mayor faces challengers who want a new path on policing

  • Missouri: St. Louis will turn over a new leaf on policing and jail with Tuesday’s mayoral race

  • Virginia: The state greatly expanded voting rights for people with felony convictions. But the next governor, who will be elected this year, could wipe away those gains.

  • Kentucky: A new law bans the mandatory transfer of children into adult court

  • Louisiana, Maryland, and New York: Prosecutors roll out new declination policies and drop cases

In case you missed it, catch up with last week’s Political Report newsletter, which dives into Virginia abolishing the death penalty and into the continued harms of working with ICE. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

Nebraska: Omaha’s GOP mayor faces challengers who want a new path on policing

Like most of the country, Omaha was rocked by policing protests last year. Its mayoral election is now putting issues tied to criminal justice and policing on the table. Mayor Jean Stothert, a Republican who has been endorsed by the local police union, faces a slate of challengers who are running on charting new paths.

Anoa Changa reports this week in The Appeal: Political Report on the stakes of this election, which is next Tuesday and will likely be resolved in a “top two” runoff in May.

“Local activists are rallying behind two Democratic challengers: criminal justice reform advocate Jasmine Harris and school board member Kimara Snipes,” Changa writes. “The election of either Harris or Snipes would give Omaha its first Black female mayor. Both candidates have spoken about the need for a more holistic approach to public safety that recognizes the root causes of crime that simply increasing policing doesn’t address.”

Activists like those with Omaha Abolition Research are pushing for candidates to embrace major investments in housing and transportation, in part to decrease the involvement of police and criminal justice in socioeconomic issues.

Missouri: St. Louis will turn over a new leaf on policing and jail with Tuesday’s mayoral race

St. Louis will vote for its next mayor on Tuesday. City Treasurer Tishaura Jones and Alderperson Cara Spencer will face off in a runoff after grabbing the first two spots in a primary round last month. 

Jones and Spencer were the two most progressive candidates in the primary field, and both ran on changing the city’s status quo on criminal justice and policing, though differences between them exist as well. In her preview of the election’s stakes for public safety and incarceration in late February, Meg O’Connor reported that Jones ran on decriminalizing sex work and that she has said she supports reducing the police budget; she faced attacks on both fronts during the primary campaign. Jones and Spencer also support closing the infamous Workhouse jail, and O’Connor wrote a follow-up article last week exploring how they would go about doing this.

“We need to close the Workhouse because it’s not only harming the people who are inside every day, it’s really harming the community of St. Louis as a whole,” Madison Orozco, an advocate with ArchCity Defenders, told O’Connor last week. “Millions of dollars are being held hostage. That money could be used to help St. Louis thrive.” ArchCity Defenders and other St. Louis organizations have fought to transform local practices and policies, and the mayoral race is the latest in a string of results that testify to their success.

New York legalized marijuana. Virginia and New Mexico may soon follow

Marijuana possession is now legal in New York. 

Governor Andrew Cuomo signed a law yesterday to legalize marijuana in the state, and the provisions legalizing possession apply immediately. The bill, which was adopted by the legislature on Tuesday, also establishes a system of regulated sales.

The issue has languished for years in Albany, but a confluence of factors—including neighboring New Jersey voting to legalize marijuana in November—considerably increased pressure on New York to follow suit. Legislative leaders and the governor announced a deal just this weekend.

Reform advocates are celebrating the details of the law as a win for social justice. For one, the package includes a provision to expunge past convictions over behavior that will now be legal. It also bars the police from invoking the smell of cannabis to justify vehicle searches, an excuse the police has used aggressively. “The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” a judge wrote in a 2019 opinion.

New York has a long legacy of extremely harsh enforcement of marijuana laws. There were more than 500,000 arrests made between 1996 and 2010 over marijuana possession, according to the Drug Policy Alliance, and 54 percent of those arrested were Black.

New York is the 16th state to pass a bill or a ballot initiative to legalize marijuana. And efforts accelerated elsewhere over the last week: Two other states may soon take that step as well.

In Virginia, the legislature adopted a bill in February to legalize marijuana, but reform advocates criticized its provisions. First, the bill delays legalization until 2024, which would continue the harms of prohibition for years; second, it created an array of new marijuana-related crimes. But yesterday, the governor sent the bill back to the legislature, requesting an amendment that would speed up legalization by three years, to July 2021; he also requested other changes that would speed up expungements. If lawmakers vote to accept this amendment, the bill becomes law immediately without any need for further action by the governor.

And in New Mexico, although the legislative session ended in March without final approval of a long-debated marijuana bill, the governor has now called a special session. Marijuana is one of the few issues lawmakers are expected to address.

Virginia: The state just expanded voting rights for people with felony convictions. But the next governor could wipe away those gains.

When Virginia resident Jacqueline McBride accompanied a family member to the polls last fall, she was elated to see how enthusiastic people were to vote. “That was something special,” she says of the turnout she witnessed. “These young kids are the future.” But she was barred from voting because she was still on probation after her release from prison.

Even under those circumstances, she would have been able to cast a ballot had she lived in 19 other states—but Virginia had harsher rules. “I’ve always voted,” she recounts, “and when I couldn’t vote last time around, it made me feel like I wasn’t part of something anymore.”

McBride regained her right to vote last week, as part of an executive action by Governor Ralph Northam, a Democrat, to restore the voting rights of tens of thousands of Virginians who are on probation and on parole. “I was so ecstatic,” she says, recalling how she grew up around people who were stripped of that right and never regained it.

Now the future of this vastly expanded, though still not universal, electorate hinges on the state’s upcoming elections for the governorship and legislature.

Read my full article on how Virginia’s 2021 elections may impact voting rights for people with felony convictions.

Kentucky: A new law bans the mandatory transfer of children into adult court 

Governor Andy Beshear, a Democrat, has signed into law Senate Bill 32, which Kentucky’s Republican-run legislature adopted in March. Once it goes into effect, the law will end any mandatory transfer of minors into adult court. Transfers will happen through decisions made on each individual case by the court system.

Ever since a wave of “tough on crime” laws in 1996, Kentucky has automatically sent children age 14 and older to adult court when they are charged with offenses involving firearms. And the adult prosecution of children overall has disproportionately harmed Black youth. Fifty-seven percent of the children transferred to adult courts in Kentucky are Black, according to a recent study.

This bill would not bar the adult prosecution of children, though, and racial inequalities are likely to persist. At least the discretion to transfer a child into adult court will not solely rest on the prosecutor, as is the case in many states, nor on any one actor; a prosecutor will have to request to transfer a child, and a judge will have to approve it.

As I reviewed in 2019, when Oregon adopted a bill that took a similar step, the vast majority of states allow mandatory transfers into adult courts. Kentucky is just the 16th state to end this.

In related news: Lawmakers in North Carolina are considering bills to raise the minimum age at which children can be criminally prosecuted to 10, the News and Observer reports. Many stakeholders are pushing for a higher age. 

North Carolina currently allows children as young as 6 to be criminally prosecuted, the lowest minimum age in the nation. (That said, many states do not set any minimum age.) 

The state’s draconian system came to national exposure last month with the explosive story of a 6-year-old boy brought to court for allegedly picking a tulip in someone’s backyard. Nearly half of the children under age of 11 who face criminal complaints in North Carolina are Black.

Louisiana, Maryland, New York: Prosecutors launch declination policies and drop cases

The notion that district attorneys would adopt wholesale policies of declining to prosecute entire categories of charges burst onto the scene in 2018 with the prosecutorial election in Boston. Rachael Rollins’s decision to run on a list of 15 offenses she would not prosecute was heralded by reform advocates for pushing the boundary of what was being debated in DA races.

A new academic study, released this week, measured some of the benefits of avoiding prosecution: In comparing low-level cases over which people were prosecuted to equivalent cases over which others were not prosecuted, the study found that individuals in the latter group were far less likely to come in contact with the criminal legal system in the future. 

“Prosecuting these defendants actually decreases public safety,” said Rutgers University professor Amanda Agan, one of the researchers who conducted the study.

Over the last week, three more prosecutors made news for policies in line with this approach.

  1. Baltimore State’s Attorney Marilyn Mosby announced that her office would not prosecute a list of low-level offenses, including drug and drug paraphernalia possession, attempted distribution, prostitution, trespassing, open container violations, and urinating and defecating in public. “Today, America’s war on drug users is over in the city of Baltimore,” Mosby said. “We leave behind the era of tough-on-crime prosecution and zero tolerance policing and no longer default to the status quo to criminalize mostly people of color for addiction.”
  2. Brooklyn DA Eric Gonzalez announced in January that he was no longer prosecuting sex workers, though he said he would continue prosecuting people who solicit sex work. Last week, Gonzalez announced his office was dismissing 857 outstanding warrants that the Brooklyn DA’s office has issued dating back to the 1970s. 
  3. New Orleans DA Jason Williams, who came into office this year after running on decreasing the footprint of the criminal legal system, announced this week that he was dropping more than 400 cases, many of which were open for years. The majority of those cases were drug-related. 

Other jurisdictions that have made news this year for declination-related actions include Athens, Georgia, and Ann Arbor, Michigan.

Efforts to Abolish the Death Penalty Triumph in the South for the First Time

The Appeal: Political Report’s March 25 newsletter

Efforts to Abolish the Death Penalty Triumph in the South for the First Time

The Appeal: Political Report’s March 25 newsletter

March 25, 2021

  • Virginia abolished the death penalty yesterday, a historic win for the abolition movement

  • The future of immigration enforcement: Biden replaced Trump. Here’s why that does not mean that local law enforcement should cooperate with ICE again.

  • Pennsylvania: As his election nears, The Appeal dives into Larry Krasner’s DA record

  • Legislative roundup: Utah repeals its bail reforms and restricts the public release of mugshots, Kentucky raises the felony theft threshold, and Maryland may end life without parole sentences for children

  • Louisiana: Here’s one illustration of how the 2020 local elections changed New Orleans

  • Longer reads: on prosecutors, probation, voting rights, mayors, and immigration 

In case you missed it, catch up with last week’s Political Report newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

Virginia abolished the death penalty yesterday, a historic win for the abolition movement

This is a historic week for the movement against the death penalty in the United States. Virginia, the state that has executed the most people throughout the nation’s history, has abolished the sentence and vacated its death row. 

This brings abolition into the South for the first time, which could well be remembered as a landmark moment for broadening the scope of abolition. Virginia, which in recent years has adopted other reforms such as ending life without parole sentences for minors, is the fourth state in four years to abolish the death penalty.

Elizabeth Weill-Greenberg reported on this milestone yesterday in The Appeal: Political Report.

The future of immigration enforcement: Biden replaced Trump. Here’s why that does not mean that local law enforcement should cooperate with ICE again.

The Biden administration has shifted from former President Donald Trump’s approach to deportations, instructing ICE to only prioritize some groups for deportation. And Biden has also shed his predecessor’s naked xenophobia. That may in turn lead some local officials—starting with those in charge of law enforcement and prosecution—to say that it is now appropriate for them to resume cooperating with ICE, offsetting the activist successes of recent years.

Felipe De La Hoz lays out in the Political Report this week why local cooperation with ICE will continue to harm immigrant communities regardless of the president’s t guidelines.

Priorities set by the president are often ignored by ICE and turn carve-out balloons into open invitations, de la Hoz explains. Even low-level interactions with the criminal legal system can snowball into deportation proceedings. De La Hoz also talks to local officials including Eli Savit, the new prosecutor in Ann Arbor, Michigan, and Kristin Graziano, the new sheriff in Charleston County, South Carolina, who are doubling down on cutting ties with ICE this year even after Biden took over the White House.

The Appeal dives into Larry Krasner’s DA record

In 2017, civil rights attorney Larry Krasner became one of the nation’s most emblematic district attorneys after running on promises to reduce incarceration. More than three years into his term, and as Krasner prepares to face voters in the May 18 primary, The Appeal’s Joshua Vaughn reports this week on his record as DA and how his promises to reduce incarceration have fared.

“He has prosecuted significantly fewer cases than his predecessors,” Vaughn writes. “He has reduced the use of cash bail and limited parole and probation terms. And he has reinvigorated his office’s conviction integrity unit.” Krasner has also faced criticism, including from people on the left who urge him to be more transformative since “his office still seeks cash bail and asks that people convicted of certain crimes be sentenced to life without the possibility of parole.”

But one of Krasner’s most important legacies, Vaughn writes, may be to have blazed the trail for other progressives to run for the prosecutor’s office around the country, setting in motion broader transformations—the sort we are now seeing in New Orleans, for instance, as chronicled below.

Legislative roundup: Utah repeals its bail reforms and restricts the public release of mugshots, Kentucky raises the felony theft threshold, and Maryland may end life without parole sentences for children

Utah: Utah has repealed the bail reform it adopted in 2020, which may ramp up pretrial detention. Governor Spencer Cox signed a bill this week despite his earlier statements indicating he may veto it. As Rachel Cohen reported last week in The Appeal: Political Report, the 2020 law encouraged judges to opt for the least restrictive mode of detention they deemed adequate, and reduce the reliance on cash bail. Some Republican lawmakers and sheriffs had made the case that the new law is too lax, but many others—including the district attorneys of the state’s three biggest counties—urged the governor to veto the repeal, to no avail.

Last week, Cox signed another bill into law: It will bar the public release of mugshots until there is a criminal conviction, with some carve-outs. Route Fifty reported on the bill in February. “The reality is today, in doing so, we hang a virtual scarlet letter around the one that’s been accused or arrested,” said Representative Keven Stratton, the reform’s Republican sponsor, appealing to the presumption of innocence. But the state’s simultaneous choice to lean into pretrial detention threatens that presumption

Kentucky: Governor Andy Beshear, a Democrat, signed into law this week two bills passed by the state’s Republican-controlled legislature that should reduce the number of people convicted of felonies. One bill increases to $1,000 from $500 the threshold of the value at which theft is prosecuted as a felony rather than a misdemeanor; another bill increases to $2,500 from $1,000 the amount of unpaid child support that can be prosecuted as a felony. A felony-level conviction carries far heavier consequences in terms of sentencing and incarceration, and comes with additional consequences such as a loss of the right to vote. The Lexington Herald Leader provides more context on the legislative session that produced these new laws; other bills are still in limbo.

Maryland: Two bills that address youth justice are moving through the state legislature. The Senate passed a bill this month that concerns how children who are transferred to adult courts are treated. Most notably, it would abolish sentences of life without the possibility of parole for minors. The House, meanwhile, passed a bill that would restrict some punishments imposed in juvenile courts and limit when young children are prosecuted.  


Louisiana: Here’s one illustration of how the 2020 local elections changed New Orleans

New Orleans is offering a powerful display so far this year of the ability of local elections to change people’s lives. And a recent development that illustrates this stands at the nexus of different threads of electoral activism that the Political Report closely covered last fall.

Act I: In the fall, local activists in New Orleans worked to boost public defenders who were running for judge on promises to use judicial discretion to fight mass incarceration. Two of them won in November, Nandi Campbell and Angel Harris. (Harris is a former employee of The Justice Collaborative, of which The Appeal was a project.)

Act II: In December, a runoff decided the city’s hotly contested open prosecutorial race. Leon Cannizzaro, the incumbent prosecutor with an exceptionally carceral politics, had chosen to not seek re-election. The winner, City Council president Jason Williams, ran on a reform platform that promised to reduce sentences, avoid sentencing enhancements, and review past convictions. He began delivering on some of these promises after taking office.

Act III: Yutilo Briley, a 27-year-old who had just spent the past eight years in prison over a wrongful conviction sought and obtained by Cannizzaro, was released from prison this month. Williams agreed to his releaseand the judge who ordered the release was Harris.

Briley … walked out of the Elayn Hunt Correctional Center in St. Gabriel and threw his arms around his mother, thanks to a newly elected district attorney and judge who hold sharply different views from their predecessors,” writes Matt Sledge in the New Orleans Advocate. “Instead of fighting Briley at every step, Orleans Parish District Attorney Jason Williams agreed that Briley’s latest appeal should be granted.” Said Harris: “This was a textbook example of the failings of our criminal court system.”

Longer reads: on prosecutors, probation, voting rights, mayors, and immigration

The Stanford Journal of Civil Rights & Civil Liberties devotes a special issue to progressive prosecution. The issue includes an article by the ACLU’s Taylor Pendergrass and Somil Trivedi on how DAs can move “beyond reform,” and an article by California public defenders Avanindar Singh and Sajid Khan that proposes “a public defender definition of progressive prosecution.”

Vincent Shiraldi explains in The Lab, The Appeal’s policy vertical, how the criminal legal system harshly punishes “technical violations” of parole and probation conditions and drives up incarceration.

Kevin Muhitch and Nazgol Ghandnoosh write in the Sentencing Project about why all citizens should be able to cast a ballot.

Damià Bonmatí, reporting for NBC News from Roma, Texas, talks to children and adolescents with wrenching stories who are coming into the United States to find their parents.

Stephanie Murray writes in Politico about six mayoral elections that are being reshaped by the Black Lives Matter protests over policing. 

Virginia Bridges reports in The Herald-Sun that thousands of children under age 11, disproportionately Black children, face criminal complaints each year in North Carolina. One 6-year-old was taken to court, standing accused of picking up a tulip from a yard. 

Debates Around Criminal Justice Reform Take Center Stage in a Slate of Red States

The Appeal: Political Report’s March 11 newsletter

Debates Around Criminal Justice Reform Take Center Stage in a Slate of Red States

The Appeal: Political Report’s March 11 newsletter

March 11, 2021: 

  • Pennsylvania: Larry Krasner and his reforms face their first test in Philly’s DA primary

  • New York: A candidate in Manhattan’s DA race explains why he would stop seeking life sentences

  • Roundup from GOP-controlled legislatures: Utah may walk back its bail reform; Wyoming mulls ending the death penalty and expanding Medicaid; the North Carolina GOP wants to help ICE; and Kentucky takes a step to restrict the death penalty

  • Oregon: The legislation to enable voting from prison gains new allies

  • The politics of prosecutors: Ann Arbor prosecutor cuts ties with ICE, Westchester DA strengthens conviction review, Houston DA works to keep people in jail, an Iowa prosecutor targets a journalist, and California DAs seek to speed up executions

In case you missed it, catch up with last week’s Political Report newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

Pennsylvania: Larry Krasner and his reforms face a first test in Philly’s DAy primary

The district attorney Democratic primary in Philadelphia is two months away, and it looms large as the biggest test yet for reform-minded prosecutors. On May 18, incumbent DA Larry Krasner faces Carlos Vega, a former prosecutor who was fired when Krasner took office in 2018 and is now running with the support of the local police union.

In the Appeal: Political Report this week, Maura Ewing writes a probing look at the election’s stakes for mass supervision

Pennsylvania has among the nation’s highest rates of people on probation and parole—a situation that is burdensome in itself and also fuels incarceration—but Krasner has cut Philadelphia’s number by a third during his first term. Vega opposes Krasner’s decision to cap probation terms—and Ewing explains why this contrast matters for what this would mean for the city over the next four years.

New York: A candidate in Manhattan’s DA race explains why he would stop seeking life sentences

Governor Andrew Cuomo’s handling of nursing home deaths in New York now threatens to derail his job, but his COVID-19 record had already been under fire in another area. He has defied calls to release incarcerated people and stalled on vaccinating them, compounding the deadly risks they face. And in New York City, where Mayor Bill de Blasio downplayed risks at the Rikers Island jail complex last year as infections were spreading rapidly inside, the jail population has been rising, subjecting thousands to dangerous conditions

Assemblymember Dan Quart, who is running to be Manhattan’s next district attorney, visited a state prison with two other lawmakers in February to assess the crisis that incarcerated people are facing. In an interview with the Political Report, Quart faults the “systemic breakdown” in state and city officials’ response to COVID-19.

It speaks to a “level of indifference” by public authorities toward people detained in prisons and jails, he says.

Last week, I talked to Quart about how he would challenge this culture of indifference. Quart is one of eight candidates in the June Democratic primary to replace the incumbent Cy Vance, who has yet to indicate whether he is running for re-election.

Quart vowed to change the DA’s office’s approach to punishment and rehabilitation by not seeking sentences of life in prison. “That’s capital punishment by a different form,” he explained. He says he would presumptively not seek sentences of more than 20 years, though he would consider longer sentences in “extreme cases, such asmass shootings and domestic terrorism.”

And he expressed support for proposals that would strengthen the rights of people while they are incarcerated, including by halting the use of solitary confinement and enabling them to vote.

Read my interview with Quart here.

Roundup from GOP-controlled legislatures: Utah, Wyoming, North Carolina, and Kentucky

Utah | Pretrial detention

Utah lawmakers adopted a bill last week that mostly repeals the bail reform the state adopted last year, just months after its implementation. The 2020 law encouraged judges to release people pretrial, and to opt for the least restrictive mode of detention they deemed adequate, but some lawmakers have since made the case that the reform is too lax. 

“While lobbyists, sheriffs, and police try to sway legislators, thousands of people in Utah are subjected to the violence of incarceration during a deadly pandemic,” the Salt Lake Community Bail Fund tweeted last week

But all hope is not lost for the 2020 law. The governor has indicated that he may veto it. And a coalition of public defenders and county attorneys, including the chief prosecutors of Utah’s three biggest counties, have been speaking up against the legislation.

Utah’s legislature has also adopted House Bill 193, which would bar the public release of the mugshots of people who are arrested until there is a criminal conviction, with some carve-outs if law enforcement says it is trying to find and re-arrest the individual. Route Fifty reported on the bill in February. Its proponents have explained it is important to promote the presumption of innocence, even though the legislature’s moves on bail rules belie that concern.

Wyoming | Death penalty, marijuana legalization, and Medicaid

A slew of reforms often associated with progressive politics is under consideration in Wyoming’s conservative state legislature. 

First, a legislative committee this week advanced a bill that would expand the Medicaid program as provided under the Affordable Care Act. Wyoming is one of 12 remaining states where GOP politicians have refused to expand Medicaid, but the new federal relief bill that Joe Biden is set to sign into law provides new incentives to push these states over the line. When neighboring Idaho voted in a referendum to expand Medicaid in 2018, the state’s sheriff’s association endorsed the initiative, making the case that it would bolster a public health approach to addiction.)

Second, a committee advanced legislation that would abolish the death penalty. Abolition came very close to passing in 2019 but derailed in Wyoming’s Senate. 

Finally, lawmakers will also consider a measure to legalize marijuana. Its champions are trying to keep expectations low, but the bill has many Republican co-sponsors.

North Carolina | Immigration

North Carolina’s biggest counties elected new Democratic sheriffs in 2018 who ran and won on promises to restrict local cooperation with ICE, including not abiding by so-called ICE detainers, which are warrantless requests that the agency sends to jails asking them to continue detaining people beyond their scheduled release. This infuriated state Republicans, who in 2019 passed a bill that would require that sheriffs help ICE. Governor Roy Cooper, a Democrat, vetoed the bill. North Carolina Republicans introduced a similar though slightly narrowed bill last month, setting up new showdowns. 

One looming question is whether Democratic officials will change their attitudes toward cooperating with ICE now that Joe Biden has replaced Donald Trump. There are early hints of such shifts, even though the Biden administration is still instructing ICE to target some immigrants.

Kentucky | Death penalty

Kentucky’s state House passed a bill to bar the death penalty against people with a documented history of certain mental illnesses. (Ohio adopted a similar law this year.) Daniel Desrochers reports in the Lexington Herald Leader on the advocacy that went into the bill and the predictable opposition of the prosecutors’ association.

Oregon: The legislation to abolish felony disenfranchisement gets new allies

The proposal to enable Oregonians to vote from prison, which Kira Lerner reported on in The Appeal: Political Report in January, has now received two legislative hearings. Prominent public officials have offered testimony in favor of the legislation. In the February hearing, those supporters were Multnomah County (Portland) DA Mike Schmidt and Oregon Secretary of State Shemia Fagan. 

On Tuesday, they were joined by Deschutes County DA John Hummel and Oregon Attorney General Ellen Rosenblum, who became the second statewide official to endorse the measure.

“My constituents who have been convicted of felony crimes have valuable perspectives that are unique to their circumstances in life,” Hummel wrote in a letter he submitted to the committee. “Certainly their lived experiences of being investigated, charged, convicted, and sentenced for crimes offers them insight into the functioning of our criminal justice system. Additionally, … people who have been convicted of crimes care about education, the economy, transportation, parks, and all the public policy issues that contribute to healthy and thriving communities.”

“I believe adults in custody with felony convictions should be able to participate as voters in elections,” Rosenblum wrote in her testimony. “Voting is a fundamental right.”

If the bill passes, Oregon would be the fourth jurisdiction with no felony disenfranchisement, joining Maine, Vermont, and Washington, D.C. Officials from those places testified in favor of Oregon’s legislation, including Maine’s secretary of state at the February hearing, and D.C. Councilmember Robert White (who championed a similar reform in 2020) this week.

The politics of prosecutors: from Michigan, New York, Texas, and California

Washtenaw County, Michigan

Eli Savit, who ran on a progressive platform in 2020 to become prosecutor of Washtenaw County (Ann Arbor), rolled out a flurry of reforms when he took office in January, including no longer seeking cash bail and no longer prosecuting sex work

Two weeks ago, Savit announced new policies meant to protect immigrants. “The Prosecutor’s Office also will not assist in any way with federal immigration enforcement related to noncitizen civilians, crime survivors, witnesses, or defendants,” states a lengthy memo.

Savit instructs his staff to take into account the immigration consequences of plea deals and sentences, with an eye to protecting defendants from deportation when “appropriate” shifts to the length of a sentence, the number of counts, or the language used in charging documents would make a difference: “In every case involving a noncitizen defendant, [assistant prosecuting attorneys] should assess whether a reasonable alternative conviction exists that would help the defendant avoid immigration consequences.” Savit also bars prosecutors from verifying a noncitizen’s record for ICE, or reporting any individual to the agency.

Polk County (Des Moines), Iowa

Andrea Mashouri, a reporter with the Des Moines Register who faced a trial after being arrested last year for disobeying police officers while covering a Black Lives Matter protest, was acquitted on Wednesday. The decision to prosecute Mashouri, which was widely denounced as an attack on the freedom of the press, was made by the office of Polk County Attorney John Sarconne, a Democrat who has routinely run for re-election since 1990 without facing any opposition. 

Westchester County, New York

Westchester County DA Mimi Rocah, who ousted the incumbent prosecutor last year, has hired public defender Anastasia Heeger to lead her office’s Conviction Review Unit. This breaks with her predecessor’s practice of having a prosecutor review past convictions, George Joseph reports.

Harris County (Houston), Texas

Jerry Iannelli reports in The Appeal this week that law enforcement and prosecutors in Harris County are operating as normal even as COVID-19 continues to spread and the local jail is cramped. This includes undercover stings and prosecutorial requests of no-bond detentions. 

“Harris County Sheriff Ed Gonzalez had for months been proposing lists of people his office believed were safe enough to release early from the jail to reduce overcrowding amid the pandemic. But in virtually all cases, [DA Kim] Ogg’s office objected,” Iannelli writes.


Three California prosecutors—San Mateo County DA Steve Wagstaffe, Riverside County DA Michael Hestrin, San Bernardino DA Jason Anderson—are looking to intervene in legal proceedings to speed up executions, the San Francisco Chronicle reports. The state ACLU says the DAs are barred from playing a role in a statewide legal case.

Their positions are in marked contrast with that of Los Angeles County DA George Gascón, who announced in December that his office would no longer seek death sentences and that he would seek to review past sentences to get people off of death row.

Mandatory Minimum Reform Derails in Virginia but Legislature Tackles Other Bills

The Appeal: Political Report’s March 4 newsletter

Mandatory Minimum Reform Derails in Virginia but Legislature Tackles Other Bills

The Appeal: Political Report’s March 4 newsletter

March 4, 2021: 

  • National: The U.S. House votes down a measure to enable voting from prison

  • Missouri: In St. Louis mayoral election, the candidates who vowed to change criminal justice and policing advance to a runoff

  • Virginia and Oregon: Mandatory-minimum reform derailed in Virginia at the 11th hour. Can other states pick up the mantle?

  • Virginia: Legislature also tackles marijuana, trial rules, and voting rights, but legislation to restrict solitary confinement fails

  • New York: Manhattan’s DA election could effectively decriminalize sex work

  • Longer reads: On police, on mayors, on prosecutors, and on ICE

In case you missed it, catch up with last week’s Political Report newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

National: The U.S. House votes down a measure to enable voting from prison

The movement to entirely enable all U.S. citizens to vote, including in prisons, has picked up tremendous momentum. In the wake of the prison strikes of 2018, bills eliminating felony disenfranchisement were introduced in many states, and activists around the country forced an issue that had been largely invisible from mainstream political debates on the table. And in the most recent presidential election, just one presidential candidate embraced that position. 

On Tuesday, that movement reached Congress. The U.S. House voted on an amendment that would provide voting rights to people in prison. 

The House defeated the amendment, with 328 representatives voting against it and 97 approving it. A majority of the Democratic caucus opposed, as did all Republicans.

The bad news for voting rights, of course, is that the measure lost so decisively: It signals how much work is left for the issue to become more of a default among Democrats. Because Democrats say they are the party that will improve voting rights and racial justice, it is striking to see so many of them oppose a measure that would end a practice that was created with racist and dehumanizing intent, and would finally establish universal suffrage in the country.

The better news, though, is that the vote happened at all, testifying to the transformed horizon on the issue. And that 97 members of Congress voted for it is itself a significant improvement to Senator Bernie Sanders’s isolation over the issue during the presidential campaign season. And similar bills have stalled so far in all jurisdictions in which they have been introduced, other than Washington, D.C., which made history by ending disenfranchisement in 2020 (Maine and Vermont never practiced it in the first place), so there was already no question that support for the position is still in the growing stages.

On Tuesday, Jerry Iannelli spoke to Cori Bush and Mondaire Jones, the two U.S. representatives who championed the amendment, on what they think of the vote. “We may not have made the mark we wanted to have made today, but the fact is that we are working to dismantle this unjust, Jim Crow era policy,” said Bush. “That is work we have to continue to do.”

There were also signs last week that the politics of the issue have changed in Oregon, which may be the likeliest state this year to enable people in prison to vote. Prominent officials including Portland’s new district attorney and Oregon’s new secretary of state testified in support of the state bill in a legislative hearing. “This bill stands for the simple proposition that when someone is incarcerated they don’t stop being a citizen,” said Secretary of State Shamia Fagan. On Tuesday, two of the state’s four Democratic members of Congress voted for the federal amendment.

Missouri: In St. Louis mayoral election, the candidates who vowed to change criminal justice and policing advance to a runoff

St. Louis was rocked on Tuesday with yet another election night triumph for candidates who’ve run on upending the local status quo on criminal justice and policing.

In the four-way mayoral election, the two more progressive candidates clinched the top two spots and moved on to a runoff. City Treasurer Tishaura Jones and Alderperson Cara Spencer will now face off for the win on April 6. 

In her preview of the stakes of the race for public safety and incarceration on Friday, Meg O’Connor reported in The Appeal: Political Report that Jones and Spencer split off from their two opponents. They both support closing the infamous Workhouse jail, for one. Jones also ran on decriminalizing sex work and she has said she supports reducing the police budget; she faced attacks on both fronts during the campaign, but came out well ahead on Tuesday.

(See also: O’Connor also reported on the policy debates on housing and evictions in the mayoral election.)  

On one hand, the result is a surprise: City Council President Lewis Reed, who came in third and was eliminated, is a fixture in local politics and was viewed as a front-runner. 

On the other hand, this is but the latest in a string of similar results in the St. Louis area in recent years, testifying to the extraordinary success of local organizers who have fought to transform practices and policies, especially since the Ferguson protests of 2014. 

With Jones and Spencer advancing to the runoff, this mayoral race is at least the fourth local election that has seen wins for candidates in the field who have gone furthest on criminal justice reform. In 2016, Kim Gardner won the prosecutor election in the city of St Louis against the candidate backed by the police union; in 2018, Wesley Bell ousted the prosecutor of St. Louis County, who was a target for activists pressing for police accountability; and in 2020, Cori Bush ousted an incumbent member of Congress in the Democratic primary. 

This year, local activists have responded to the historic uptick in murders by demanding changes that would strengthen other community and public services. “We need to divest from harmful systems like the criminal justice system that has been used to cage, control, and surveil communities, largely Black communities … and put that money into resources that make communities safe,” Jae Shepherd, an organizer with Action STL, told O’Connor. “Obviously arresting and incarcerating people isn’t working.”

Virginia: Mandatory-minimum reform derails at the 11th hour. Can other states pick up the mantle?

A major push to end mandatory minimum sentencing derailed in Virginia last weekend when the two legislative chambers deadlocked on which version of the bill ought to pass the legislature. As a result, the 2021 legislative session ended on Saturday with no action, dooming the reform for the year.

Advocates who back the reforms stressed that mandatory minimums fuel higher incarceration rates, and that they grant prosecutors more leverage to pressure defendants into guilty pleas. And their efforts were in promising shape throughout the legislative session. Still, the Virginia Mercury reported in February that the bills passed by the Senate and the House, which are both run by Democrats, had vastly different levels of ambition. The Senate version would have repealed mandatory minimums attached to nearly all sentences, whereas the House version would end mandatory minimums mainly for drug offenses and some lower-level offenses. The conference between the two chambers did not yield a version that both accepted.

In a commentary in the Washington Post, Bradley Haywood and Kelly Haywood, advocates for Justice Forward Virginia, faulted Delegate Mike Mullin for blocking the stronger version of the reform. Mullin, a Democrat, works as an assistant prosecutor when the legislative is not in session. “Mandatory minimums are a racial justice issue and a human rights issue, and they are an insult to civil liberties, and we will not stop fighting until the General Assembly ceases allowing this injustice to exist,” they write.

Other states may still reform their mandatory minimum statutes this year. Both chambers of the New Jersey legislature adopted a bill in recent weeks that would end mandatory minimum sentences, though only for nonviolent offenses.

And in Oregon, lawmakers have filed at least four bills that would roll back Oregon’s harsh mandatory minimum sentences, which voters approved in a referendum (Measure 11) in 1994. Many DAs and their statewide association are mobilizing against these proposals. But Mike Schmidt, who became the DA of Multnomah County (Portland) in 2020, and two other DAs are speaking up in favor. This is in keeping with Schmidt’s campaign promise. Mandatory minimums, he told me while running last year, give prosecutors too much leverage and too much power: “In an otherwise adversarial system of justice, that doesn’t make sense.”

Virginia: Legislature also tackles marijuana, trial rules, and voting rights, but legislation to restrict solitary confinement fails


Virginia’s state legislature adopted and sent to the governor legislation to legalize marijuana, one year after adopting separate legislation to decriminalize it. 

But criminal justice reform advocates and their legislative allies have harshly criticized these bills for delaying legalization until 2024 (a prolonged timeline compared to recent reforms in other states), for creating new criminal offenses linked to marijuana, and for jettisoning the criminal justice reform outlook that they said was indispensable to addressing the harms of racist law enforcement. “Lawmakers paid lip service to the communities that have suffered decades of harm caused by the racist War on Drugs with legislation that falls short of equitable reform and delays justice,” the ACLU of Virginia said  in a statement.

Trial rules 

Last weekend, Virginia’s legislature adopted House Bill 2047, sending it to the governor’s desk. If signed, the legislation would allow defendants to present evidence of mental illness or autism spectrum disorder in court. They are currently barred from doing this, which can significantly complicate some people’s ability to mount a defense that reflects what happened. 

Elizabeth Weill-Greenberg reported on the legislation in The Appeal last week. She writes that the bill is inspired in part by the case Matthew Rushin, who was sentenced to 50 years in prison over a car crash.

Voting rights

Virginia is on track to adopting a measure this year that would enfranchise anyone who is not presently incarcerated after both chambers of the legislature advanced such legislation in time by the end of the session on Saturday. However, since this provision is a constitutional amendment, it must be adopted again by the legislature next year and then submitted to voters in 2022.

Virginia is one of only three states where, according to the states’ constitutions, anyone convicted of any felony loses the right to vote for life. This exceedingly harsh punishment has been tempered in recent years by executive orders in each of the three states, but advocates want to change the law to entrench voting rights on more solid ground. And there is movement in the other two states as well: In Iowa, a constitutional amendment to restore the right to vote to people who have completed a sentence passed its first legislative hurdles in February. In Kentucky, a new poll found that 68 percent of respondents supported automatically restoring people’s rights at that stage, with only 27 percent opposed. 

Solitary confinement

Virginia will not restrict solitary confinement this year. The House failed to take up a bill that passed the Senate in February and would end long-term solitary confinement. 

Elizabeth Weill-Greenberg reported on this legislative effort in February, writing about the harrowing case of a man who was held for more than 600 days in solitary confinement in a state prison. “During his more than 600 days in isolation—from 2016 to 2018—he lost more than 30 pounds,” she writes. “His food was sometimes covered in maggots, dirt, and insects.”

The bill derailed in part because the Virginia Department of Corrections claimed it would take $23 million to implement the legislation because of its requirement that incarcerated people be evaluated before being placed in solitary confinement, the Richmond Times-Dispatch reported. “They must be confused with the bill that I’m introducing next year to build an Olympic-sized pool in every DOC facility,” said Senator Joe Morrissey, a Democrat who sponsored it. Another senator, Scott Surovell, complained that state agencies use budgetary projections to make criminal justice reform harder.

This bill joins other failed reforms in Virginia’s 2021 session, most notably the proposal to end qualified immunity and the bills to restrict or repeal mandatory minimums (see above).

Death penalty

As I wrote in last week’s newsletter, the legislature has sent to the governor legislation to abolish the death penalty. The governor, who supports abolition, has yet to sign the reform.

New York: Manhattan’s DA election could effectively decriminalize sex work

In 2019, when progressive candidate Tiffany Cabán vowed to not prosecute sex work while running for district attorney in Queens, it was a promise heard around the country. A wave of national publications zeroed in on her promise, and what it meant for debates around decriminalization. At the time, New York organizations had newly coalesced into a statewide coalition that demanded that the legislature decriminalize sex work statewide.

Fast-forward two years: Most of the candidates running for DA in Manhattan this year are vowing to never prosecute cases involving consensual sex work, a newfound consensus that testifies to the changing tide on the issue. 

Sam Mellins reports in the Political Report this week on how the prosecution of sex work is playing out in the Manhattan DA race, and on the remaining fault lines between the contenders.

This is the third installment in our series on the Manhattan DA election, in partnership with the publication New York Focus. The first two concerned the war on drugs and statewide advocacy.

Longer reads: On police, on mayors, on prosecutors, and on ICE

Amelia Thomson-Devaux, Laura Bronner, and Damini Sharma write in The Marshall Project on the opaqueness and the lack of accountability that surround the giant settlements that cities are continually paying out over police misconduct. 

Udi Ofer makes the case in the Hastings Journal of Crime and Punishment that reducing the budget of DA offices is a crucial step against mass incarceration. 

Jacob Kang-Brown and Jack Norton write in the New York Review of Books on the vast system of financial incentives that ICE has created to get local sheriff’s departments to turn their jails into immigration detention centers, and how advocates are adapting.

Ted Alcorn writes on the proposals on policing that New Mexico lawmakers are tackling right now, in a comprehensive piece that offers a window into the political dynamics around the issue in legislatures around the nation.

J. Brian Charles writes in The Trace on the new mayor of Baltimore and the new approach to public safety that he wishes to champion by promoting violence intervention programs.

Cash Bail, Death Penatly, Pot: A 12-hour Span Brings Reform Milestones

The Appeal: Political Report’s February 25 newsletter

Cash Bail, Death Penatly, Pot: A 12-hour Span Brings Reform Milestones

The Appeal: Political Report’s February 25 newsletter

Feb. 25, 2021: Within a span of just a few hours this week, New Jersey legalized marijuana, Illinois adopted a law that will end cash bail, and Virginia lawmakers sent a bill that abolishes the death penalty to the governor. And that was just Monday. Today I review those milestones.

  • Illinois: Governor signs omnibus bill into law, ending cash bail and bringing other changes

  • Illinois: The new law delays the end of prison gerrymandering by a decade

  • New Jersey: Four months after a successful referendum, the state legalizes marijuana

  • New Mexico: House advances bills to expand voting rights and end qualified immunity

  • Virginia: Abolition of the death penalty could come any moment now. Will other states follow suit?

  • Texas: A new federal ruling protests race discrimination in jury selection, yet again

In case you missed it, catch up with last week’s Political Report newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

Illinois: Governor signs omnibus bill into law, ending cash bail and bringing other changes

Governor J.B. Pritker signed into law on Monday an omnibus bill that upends many areas of the criminal legal system. The legislation, championed by the Legislative Black Caucus in the legislature’s lame-duck session in January, was years in the making due to the work of a large coalition of state activists and advocacy groups. 

Here is an overview of some of its main components.

Bail reform: The law’s most emblematic provision is an end to cash bail. This means that Illinois will no longer connect pretrial release to the fulfillment of financial conditions that defendants are often unable to meet. Once the bill goes into effect, Illinois will be the first state to outright end cash bail. But that will not be until 2023. Safia Samee Ali reports for NBC News that reform advocates in the state are optimistic that the bill avoids some of the pitfalls of other states’ reforms, which replaced cash bail with rules that local advocates warned would not shrink pretrial detention. “Dare I say that it’s the most progressive piece of legislation that has been passed,” Sharone Mitchell, director of the Illinois Justice Project, told NBC News. Also, Isaac Scher reports in The Intercept that the Illinois law goes further than other states in limiting the use of algorithmic tools to make decisions about pretrial detentions, and in curtailing electronic monitoring as an alternative.

Driver’s license suspensions: As momentum builds nationally against suspending driver’s licenses for a failure to pay court debt, the Illinois law curtails the practice. People will no longer see their licenses suspended over unpaid red-light and speed camera tickets. The bill is meant to “restore the driving privileges of some 11,000 people by July and eliminate a significant trigger for personal bankruptcies in Chicago,” Melissa Sanchez reported in ProPublica in January. 

Felony murder: The law will narrow the felony murder doctrine, but it will not bring relief to people already incarcerated because it will not apply retroactively. 

Policing: The law makes a set of reforms to policing, such as requiring more thorough records of police misconduct. It also tightens certain rules, including a ban on chokeholds, though such statutes have been insufficient elsewhere given the broader context of impunity.

The law also contains a provision on prison gerrymandering, which I review at more length below.

Illinois: The new law ends prison gerrymandering, but not this decade

For years, State Representative La Shawn Ford, a Democrat who represents parts of Chicago and Cook County, sponsored a bill to end prison gerrymandering in Illinois, and for years it went nowhere.

This practice consists of counting incarcerated people at their prison’s location rather than their last residence for the purpose of redistricting. It skews political representation away from Chicago and Cook County, where incarcerated people disproportionately come from, and toward the whiter downstate areas where all Illinois state prisons are located.

To make matters worse, people incarcerated over felonies cannot vote in Illinois, so their physical presence grows the clout of communities that they cannot influence. With prison gerrymandering, Ford says, “you’re counting bodies but you’re not giving them the care that they need.” Areas where prisons are located “don’t count [prisoners] when it comes to schools, hospitals, resources. They don’t count them as people. They only count them as numbers for the sake of using them for apportionment.”

In January, the state legislature finally passed his bill as part of an omnibus package that contained many other changes to the criminal legal system (see above). Governor J.B. Pritzker, a Democrat, signed it this week.

But a clause inserted into the law significantly delays implementation of the measure concerning prison gerrymandering. The bottom line is that the state’s district maps will not be fixed until 2031.

Read the rest of my article on how prison gerrymandering skews political power in Illinois, on how advocates hope to address it, and on the related issues like felony disenfranchisement that amplify its effect.

New Jersey: Four months after a successful referendum, the state legalizes marijuana

Legal marijuana is coming to New Jersey.

On Monday, Governor Phil Murphy signed into law a package of bills that legalize marijuana and implement the ballot initiative that New Jersey voters overwhelmingly approved in the fall. The new laws will set up a regulated system of marijuana sales; retail may be up and running by the end of this year.

In New Jersey, as elsewhere, the prohibition of marijuana has been enforced through extreme racial disparities.

State advocates emphasize that the new laws contain provisions meant to repair the harms of that racist enforcement. “[They] will advance racial and economic equity—a testament to the hard work of advocates, community organizers, and faith leaders from across New Jersey,” Reverend Dr. Charles Boyer, founding director of Salvation and Social Justice, said in a statement. Areas that have faced more arrests over marijuana will be designated as “impact zones” and receive more of the funding generated by mariuana sales, the Asbury Park Press reports.

The biggest sticking point in legislative negotiations was the rules for people under 21, who are barred from possessing or buying marijuana. The governor wanted the legislature to toughen penalties if they break that law, but Marijuana Moment reports that lawmakers resisted. The final compromise does not include civil penalties and fines, but it makes marijuana possession by someone under 21 subject to a written warning and referral to community service groups.

Will New Jersey’s decision bleed into other northeastern states? Joshua Vaughn reported in The Appeal in January that New York and Pennsylvania are facing more pressure to follow suit now that they stand to lose out on a lot of potential revenue to a neighboring state.

New Mexico House adopts bills to restrict disenfranchisement, end qualified immunity

Voting rights

In 2019, state advocates made a major push against felony disenfranchisement and thought they had momentum, but legislative leaders ended up not bringing a bill that would expand voting rights to the floor. The issue has already gone further this year: New Mexico’s House adopted a bill this month that would enable anyone who is not incarcerated to vote. It now moves to the Senate.

The measure would enfranchise people who are on parole or probation. (People who have completed their sentences are already allowed to vote in New Mexico, unlike in some other states.) More than 10,000 people were barred from voting in New Mexico last year because of restrictions that would be lifted by this bill, according to the Sentencing Project.

However, the House approved a late amendment introduced by a Republican lawmaker that qualifies the right to vote for some citizens who are not incarcerated. It requires that people whose sentence requires them to register as a sex offender have completed that step.

But the bill would continue to disenfranchise people who are incarcerated over a felony. In 2019, a New Mexico lawmaker introduced a bill that would enable people to vote from prison as well. “Prior nationwide reforms have chipped away at the disenfranchisement system rather than eliminating it altogether,” I wrote at the time. “Can New Mexico break that incremental mold and provide a new model for ambitious reform?” That bill subsequently did pass one legislative committee and drew national advocacy before derailing. Since then, the political landscape around prison voting has changed significantly—with an endorsement from U.S. Senator Bernie Sanders of Vermont, similar bills introduced in about 10 states, and historic success in Washington, D.C., last year.

Qualified immunity

New Mexico could become just the third state to adopt a law targeting qualified immunity for police officers in state court. (Qualified immunity is the legal doctrine that often shields police departments from civil lawsuits after misconduct by officers.) Colorado became the first state to do so last year; Connecticut significantly narrowed qualified immunity but left in caveats. 

The state House adopted a bill last week that would lift the qualified immunity defense when people bring lawsuits for wrongdoing against law enforcement. Jacob Sullum reviewed the bill’s details in Reason last week, noting that it goes further than the two other states’ laws in clarifying that individual police officers (as opposed to local governments and police departments) would not be personally liable. “Even without such legal requirements, police officers almost never have to pay a dime for their misconduct, since their employers routinely indemnify them,” Sullum writes. “This issue is therefore mostly a red herring in the debate about qualified immunity.”

Virginia: Abolition of the death penalty could come any moment now. Will other states follow suit?

The finish line is near for the Virginia legislation abolishing the death penalty, which this newsletter has tracked closely throughout the year. This week, both chambers passed the final version of the legislation, as was expected since they each adopted previous versions in early February. The latest votes send the bills to Governor Ralph Northam, a Democrat. 

The governor has indicated he will sign the reform, and he could do so any day now. Our analysis of this death penalty law will appear on this page as soon as the law is signed.

Virginia’s legislative session is now in its final stretch, and lawmakers face other major decisions on issues that include felony disenfranchisement and mandatory minimum sentences. (See last week’s newsletter for more details.)

Will other states follow suit and abolish the death penalty as well in coming months? The Nevada Independent and City Beat report on the possibility in Nevada and Ohio, respectively. But prosecutors’ opposition looms large in both states. In Nevada, Senate Majority Leader Nicole Cannizzaro, who works as a prosecutor when the legislature is not in session, has not indicated whether she would bring such a bill to the floor.

Texas: A new federal ruling protests race discrimination in jury selection, yet again

Prosecutors are barred from excluding Black people from juries because of their race, but in practice they have tremendous leeway to strike them from the jury pool with almost no accountability or recourse. A few states have adopted regulations to constrain racism in jury selection, including California in 2020, but even those regulations will only matter if courts are willing to enforce them.

A ruling handed down by the Fifth Circuit this month serves as a reminder that courts are typically complicit in enabling and justifying racist jury selection processes. A three-judge panel denied relief to a Black man who was sentenced to death after prosecutors tried to strike all people of color from the jury pool using a spreadsheet that highlighted potential jurors who were Black.

Kyle Barry writes in the Political Report on this new ruling and what it reveals about obstacles to fair trials.

Conflicts over Prosecution and Policing Ramp Up in California

The Appeal: Political Report’s February 18 newsletter

Conflicts over Prosecution and Policing Ramp Up in California

The Appeal: Political Report’s February 18 newsletter

Feb. 18, 2021: A flurry of legislative activities this week has advanced major criminal justice reform bills around the nation. In Virginia, the legislative session is already winding down and the time is coming for lawmakers to make their choices. Elsewhere, bills that would restrict punitive statutes enjoyed success in some conservative states.

  • California: Newsom vetoed a bill that would have reduced the police’s footprint. Now the bill is back, but what is next?

  • Massachusetts: A new law opens the door to pushing police out of schools

  • Kentucky and Utah: Lawmakers adopt bills to restrict the adult prosecutions of children and mugshot releases

  • Virginia: On high-profile issues, the legislative chambers must resolve their differences

  • California: George Gascón quits the state’s DA association over its opposition to his reforms

  • Criminal justice and COVID-19: Houston DA and Missouri judge draw attention for harsh decisions linked to the pandemic, and the New Jersey Supreme Court keeps people detained pretrial

In case you missed it, catch up with last week’s Political Report newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

California: Newsom vetoed a bill that would have reduced the police’s footprint. Now the bill is back, but what is next?

Last fall, California Governor Gavin Newsom vetoed legislation that would have set up a pilot program for health professionals to respond to some emergency calls instead of the police. The bill’s chief sponsor, Assemblymember Sydney Kamlager, vowed at the time to keep pressing for its goals. “We will continue to pursue community alternatives to police response that are not controlled by law enforcement,” she said in a statement.

Kamlager has now reintroduced the bill, known as the CRISES Act, in California’s 2021 session. To push it through, she and her allies have to navigate Newsom’s resistance, and also the broader demands that policing reform be run by, and within the purview of, law enforcement agencies. 

Piper French reports in The Appeal: Political Report this week about the  Community Response Initiative to Strengthen Emergency Systems Act, and about the larger battles it encapsulates.

This dispute, French writes, “will give Californians another opportunity to confront the debate around whether alternatives to incarceration should originate within police departments—a compromise that seems to be acceptable to law enforcement itself, but one that activist groups have firmly resisted, maintaining that the institution of policing needs to be transformed rather than merely tweaked.”

Massachusetts: A new law opens the door to pushing police out of schools

Massachusetts adopted a sprawling legislative package on policing in December The law, although it was largely watered down, included an important component that has garnered little attention but may jump-start further activism: It repealed the mandate that there has to be police presence in Massachusetts schools.

Rachel Cohen reports in The Appeal: Political Report that a coalition of advocates formed over the summer to press for this change. The law enables them to take their case against police presence directly to local school superintendents. Some activists are already pressing forward. (State advocates, however, were hoping that the power to decide whether there is police in schools would be placed in the hands of local boards, which are more directly accountable than superintendents.)

With Massachusetts’s reform, Florida and Maryland are the two remaining states that mandate some police presence in schools, and legislative efforts to change that are ongoing.

Kentucky and Utah: Lawmakers adopt bills to restrict the adult prosecutions of children and mugshot releases

New Mexico’s House moves to restrict felony disenfranchisement

In 2019, state advocates made a major push against felony disenfranchisement and thought they had momentum, but legislative leaders ended up not bringing a bill expanding voting rights to the floor. The issue has already gone further this year: New Mexico’s House adopted a bill last week that would enable anyone who is not incarcerated to vote. (The bill now moves to the Senate.)

The measure would enfranchise people who are on parole or probation. (People who have completed their sentences are already allowed to vote in New Mexico, unlike in some other states.) More than 10,000 people were barred from voting in New Mexico last year because of restrictions that would be lifted by this bill, according to the Sentencing Project.

But the bill would continue to disenfranchise people who are incarcerated over a felony. In 2019, a New Mexico lawmaker introduced a bill that would enable people to vote from prison as well. “Prior nationwide reforms have chipped away at the disenfranchisement system rather than eliminating it altogether,” I wrote at the time. “Can New Mexico break that incremental mold and provide a new model for ambitious reform?” That bill subsequently did pass one legislative committee and drew national advocacy before derailing. Since then, the political landscape around prison voting has changed dramatically—with an endorsement from U.S. Senator Bernie Sanders, similar bills introduced in about 10 states, and historic success in Washington, D.C. last year.

Kentucky bill would end the mandatory adult prosecutions of children

Last week, Kentucky’s Senate passed Senate Bill 36, which would end the mandatory transfers of minors into adult court. (The bill now needs to be passed by the state House.) According to WKU, Kentucky currently automatically sends children age 14 and older to adult court when they are charged with offenses involving firearms. 

As I reviewed in 2019, when Oregon adopted a similar bill, the vast majority of states allow mandatory transfers into adult courts.

But this bill would not bar the adult prosecution of children, a practice that disproportionately targets Black youth. Still, it would at least require that judges approve a transfer, as opposed to giving prosecutors sole discretion to order it. 

Utah advances bills that would restrict release of mugshots, but also roll back bail reform

Utah’s House overwhelmingly adopted House Bill 193 last week: The legislation would bar the public release of the mugshots of people who are arrested until there is a criminal conviction, with some carve-outs such as if law enforcement is trying to find and re-arrest the individual.

Route Fifty reported on the bill earlier this month. “The reality is today, in doing so, we hang a virtual scarlet letter around the one that’s been accused or arrested that, indeed, has a constitutional opportunity and right to be presumed as innocent until proven guilty,” said Representative Keven Stratton, the Republican lawmaker who is sponsoring the bill.

But another bill is moving through the Utah legislature that would affect the odds that someone is convicted in the first place: The House adopted legislation this month that would roll back the bail reform that was adopted just last year and implemented in October. The rollback’s chief sponsor is pointing to a specific case in which someone was released pretrial, though that person is not accused of committing offenses while released. Studies show that pretrial detention makes it likelier that people end up pleading guilty.

Virginia: On high-profile issues, the legislative chambers must resolve their differences

The flurry of criminal justice reforms moving through Virginia’s legislative process have been a major topic for this newsletter so far in 2021. This month, many bills—including death penalty abolition, marijuana legalization, restrictions on felony disenfranchisement and mandatory minimums, and many more—were passed by one or both legislative chambers. 

But differences between the two chambers’ versions must now be resolved before the bills are sent to the governor.

On the marijuana legalization front, Marijuana Moment reports on significant policy questions to be resolved. They include whether a local jurisdiction will have the power to ban the retail sale of marijuana within its borders, and whether marijuana possession will be legalized before sales are authorized. 

The chambers are further apart when it comes to mandatory minimum sentences, the Virginia Mercury reports. The Senate version would repeal mandatory minimums attached to all sentences other than capital murder of a police officer (which carries a mandatory life sentence); the House version would end mandatory minimums mainly for drug offenses and some lower-level offenses.

On voting rights, Virginia Democrats are debating the scope of their bill against felony disenfranchisement, DCist reports. Many advocates are pushing for abolishing disenfranchisement altogether, but the measures that lawmakers have passed so far take a more incremental step: They would restore the right to vote to anyone who is not presently incarcerated. (Virginia law currently requires lifetime disenfranchisement over any felony conviction.) The governor’s initial proposal in January was even more restrictive; it would have also kept disenfranchised tens of thousands of people who are not incarcerated.

California: George Gascón quits the state’s DA association over its opposition to his reforms

The ranks of prosecutors are continuing to fissure, weakening one of the strongest forces against criminal justice reforms: prosecutors’ statewide associations.

George Gascón, the new district attorney of Los Angeles County, announced on Tuesday that he is leaving the California District Attorneys Association ( CDAA), which for the last month has been supporting a lawsuit meant to block some of Gascón’s criminal justice reforms. The “CDAA continues to be a member organization solely for those willing to toe the ‘tough on crime’ line,” he wrote in a public letter. “For the rest of us, it is a place that fails to support us, our communities, or the pursuit of justice.”

Jerry Iannelli reports in The Appeal: Political Report this week on Gascón’s decision, how it fits into the changing politics of prosecution nationwide, and how it could change state politics.

Gascón is the second sitting DA in California to quit the CDAA, a powerful organization that lobbies on behalf of the state’s prosecutors, typically in favor of harsher laws and against measures that would reduce sentences and incarceration. His decision comes at a time when the conventional expectation that prosecutors will defend “tough on crime” policies against criminal justice reform proposals is already weakening because of the recent electoral successes of progressives running for this office.

Criminal justice and COVID-19

As the pandemic continues to wreak havoc, many public officials have made ill use of the tools of criminal justice and law enforcement. The Political Report tracked their actions comprehensively over the first three months of the pandemic with our interactive tracker, but of course incarceration and aggressive prosecutions continues to be a source of major concerns. 

Missouri: A judge in St. Charles County granted an eviction against a tenant who was barred from entering the courtroom because she had COVID-19, even though the judge was informed that the tenant had come to the courthouse in time and was denied entry. Local advocates note that the story is illustrative of the vast powers of local judges. (See also: Last year, New Orleans activists used the city’s judicial elections to shine a spotlight on judicial discretion when it comes to evictions, and to demand that courts better tackle the housing crisis.)

New Jersey: Thousands of people are detained pretrial in New Jersey because jury trials have been delayed during the pandemic. State advocates have sought to get them out, making the case that these people are being subjected to “indefinite” detention, but the state Supreme Court refused to order their widespread release in a ruling this week.

Texas: The New York Times shined a national spotlight on the case of Texas doctor Hasan Gokal, who administered vaccine doses to people who were not on the priority list, including his wife; he said the doses would otherwise have gone to waste. The office of Harris County (Houston) DA Kim Ogg has charged him with theft, and Gokal has been fired. In January, local judge Franklin Bynum dismissed the charge and starkly criticized Ogg for filing it, though Ogg still wants to move forward. “Both the Texas Medical Association and the Harris County Medical Society recently issued a statement of support for physicians like Dr. Gokal who find themselves scrambling ‘to avoid wasting the vaccine in a punctured vial,’” the Times reports.

In New York, Local Elections Heat Up, Amid New Moves Against Criminalizing Sex Work

The Appeal: Political Report’s February 11 newsletter

In New York, Local Elections Heat Up, Amid New Moves Against Criminalizing Sex Work

The Appeal: Political Report’s February 11 newsletter

Feb. 11, 2021: Donald Trump’s impeachment trial has begun, which is a reminder that the 2020 cycle is in the rearview mirror. But already local elections that are happening in the spring of 2021 are demanding our attention.

  • New York: BLM activist shakes up the sheriff race in a county known for deadly jails
  • Marijuana: Virginia rolls toward legalizing marijuana, but South Dakota is on the brink of voiding its legalization measure
  • California and Louisiana: The New Orleans DA steps away from longer sentences over repeat offenses, while a judge blocks some of the Los Angeles DA’s reform on this issue
  • New York takes two steps against the criminalization of sex work
  • The politics of prosecutors: New essays interrogate the role of DAs in changing the system
  • New York: Manhattan DA candidate lays out how she would cut the DA’s budget by half and stop prosecuting dozens of charges

You can subscribe to the Political Report newsletter here. In case you missed it, catch up with last week’s newsletter. You can also visit our interactive tracker of legislative developments and our interactive tracker of the latest reforms being implemented by prosecutors nationwide.

New York: BLM activist shakes up the sheriff race in a county known for deadly jails

Many people have died over the last decade in the Erie County jails, but as usual the people who run the jails have faced little if any accountability. Will there be space in this year’s sheriff race for candidates and advocates to push for real change? 

Raina Lipsitz reports in The Appeal: Political Report on the county’s dire situation and why the 2021 elections matter, and also on the shake-up that took place in the election last week: A Black Lives Matter activist who made national news last year when he was tackled by the police during a protest against police brutality has jumped into the sheriff’s race. 

Read Lipsitz’s full story here.

That activist, Myles Carter, is now making a case for reform. “I’ve been exposed to the criminal justice system my entire life,” he told Lipsitz. (If he lived in California, Carter would not be able to run because of the state’s ban on people without law enforcement credentials running for sheriff. A new bill introduced in the legislature would change that, as Katie Fernelius reported in the Political Report last week.)

Marijuana reform: Virginia rolls toward legalizing marijuana, but South Dakota is on the brink of voiding its legalization measure

A South Dakota judge has struck down the 2020 ballot initiative that legalized marijuana, ruling that the initiative was too complex to count as a single measure. Proponents of the measure will appeal to the state Supreme Court. 

South Dakota was one of four states where voters approved legalization referendums last year, a clean sweep that confirmed the issue’s wide popularity with the public. This is not matched among public officials, however: Legalization remains far more controversial in congressional debates.  So far, only two states have legalized marijuana via the legislative route, as opposed to 13 states that have done so via popular initiatives meant to circumvent politicians’ opposition.

Still, Virginia may very soon become the third state to legalize marijuana legislatively. 

The state Senate and House each passed measures to legalize marijuana last week. (In 2020, after Democrats took full control of the state government, the legislature decriminalized marijuana, but the politics of the issue have shifted even since then.)

Virginia’s legislative fight is not done yet, though: The chambers must resolve the differences between their respective bills. Governor Ralph Northam has indicated he supports legalization.

See also: Other states that are considering legalization legislation this year include Connecticut, New Mexico, and New York. In Idaho, though, Republican lawmakers are pushing a constitutional amendment that would preemptively block a ballot initiative on the issue.

California and Louisiana: The New Orleans DA steps away from longer sentences over repeat offenses, while a judge blocks some of the Los Angeles DA’s reform on this issue

An emerging policy staple for reform-minded prosecutors who wish to reduce incarceration is to say they will not charge people under sentencing enhancement statutes that trigger harsher prison terms—often decades long. That’s the subject of two major developments over the last week.

New Orleans DA Jason Williams tackles “multi-bill” prosecutions

This was a major issue on the campaign trail in 2020: Activists demanded that candidates pledge to not use the state’s “multi-bill” statute that leads to long sentences for people with repeat offenses. Jason Williams, who ended up winning the DA race in the fall, said during the campaign that he would never use it.

The Lens, a local publication, reports that he is sticking to that promise so far. This is a big break, The Lens explains, from the more punitive practices of past New Orleans prosecutors.

Separately, this week Williams hired G. Ben Cohen as his chief of appeals. Cohen is an attorney who has fought prosecutors, including by defending Evangelisto Ramos in the case that led the U.S. Supreme Court to strike down the constitutionality of non-unanimous juries. 

Los Angeles judge blocks some of DA George Gascón’s reforms

A California judge issued a ruling this week against the reform rolled out by the Los Angeles district attorney in December that instructed prosecutors in his office to not seek some enhancements for repeat offenses, in particular under the state’s “Three Strikes” system. The judge ruled that prosecutors lack the discretion to dismiss those enhancements. 

“We can no longer afford—morally, socially or economically—to justify tough-on-crime policies in the name of victims when a majority of the survivor community supports rehabilitation over excessive sentences,” DA George Gascón, who won in 2020 on a vow to reduce incarceration and who then rolled out a wave of reforms in December, wrote in response in a Twitter thread

The ruling, which Gascón says he will appeal, came in the context of a lawsuit brought against his reforms by the Association of Deputy District Attorneys (ADDA). Piper French reported on the ADDA and its lawsuit in The Appeal in January, and found a “longstanding pattern of ideologically motivated advocacy and commitment to tough-on-crime policies.” 

New York takes two steps against the criminalization of sex work

New York activists have been pushing for the state government to decriminalize sex work, but they have not been successful at getting lawmakers to push that through. Two new developments represent steps in that direction, however.

First: The state last week repealed a statute that gave police officers broad authority to arrest people for “loitering for the purpose of prostitution,” Bryce Covert reports in The Appeal

Advocates have long said the police have used the statute, often called the “walking while trans” ban, to disproportionately target trans people of color. Beyond ending this authority, Covert writes, the new state law also “automatically seals any previous arrest records under the statute.” But similar statutes exist elsewhere in the country, Covert finds. 

Second: Brooklyn DA Eric Gonzalez, who has pushed some criminal justice reforms in his first term, announced last week that he was dropping hundreds of open cases against sex workers, and that he would decline to prosecute future prostitution cases. Otillia Steadman reports in BuzzFeed that Gonzalez has been “rolling out” this approach over the last year, and some local activists said this is an important step to protect sex workers. 

But Gonzalez is not declining to prosecute all behaviors tied to consensual sex work, and he will continue to prosecute people who buy or promote sex work. Advocates for full decriminalization stress that this partial approach means continuing to expose sex workers to law enforcement and the criminal legal system. (See below for my interview with a Manhattan DA candidate who says she favors full decriminalization, and vows to act accordingly in the office.)

The politics of prosecutors: New essays interrogate the role of DAs in changing the system

“Can prosecutors help end mass incarceration?” Rachel Barkow, a law professor at New York University, asks in an article that is forthcoming in the Michigan Law Review, and which she shared on SSRN.

Barkow lays out why the wider ecosystem of criminal justice is essential. Lasting change will not come from DAs exercising power more wisely, but from long-term statutory and institutional reforms, which prosecutors can help bring about. “For this movement to be truly transformative, these prosecutors will need to do more than seek to exercise the vast discretion of their offices more wisely than their predecessors,” Barkow writes. “They will need spearhead institutional changes, including changes that limit the leverage prosecutors have over defendants.”

The Appeal pays attention to the systemic pushback that some prosecutors’ decarceral reforms have received, and to the calls to slash the footprint and budget of prosecution. We also invite you to check out our interactive tool, “The Politics of Prosecutors,” that tracks new policies some prosecutors are releasing, especially if they go beyond emphasizing prosecutors’ case-by-case discretion.

In addition, Katrina vanden Heuvel wrote a column in the Washington Post this week on recent changes brought about by progressives elected as prosecutor. And Marc Levin published a commentary on Law360 about declination policies, with which prosecutors presumptively say they will not charge entire categories of cases. He notes that this is nothing new: “In about half the states, adultery or fornication remain crimes, but prosecutions are unheard of. Reflecting the consensus that such conduct is not worthy of the criminal sanction, no district attorney has been criticized for ignoring these laws.” Declination policies are also the topic of this newsletter’s final section, below.

New York: Manhattan DA candidate lays out how she would cut the DA’s budget by half and stop prosecuting dozens of charges

As more district attorneys win elections on promises to reform the criminal legal system, demands are mounting for them to not just tinker with its edges but directly downsize it. The goal, for many activists, isn’t only for this system to treat people differently, but to ensure people never encounter it in the first place.

Last week, Tahanie Aboushi, a candidate for DA in Manhattan’s 2021 election, rolled out a list of more than 40 offenses she says her office would not prosecute because they criminalize poverty, mental health issues, and substance use. Her new policy proposal builds on an earlier promise to end the prosecution of a shorter, and more qualified, list of charges.

If she is elected, she would not file criminal charges over drug offenses, sex work, driving without a license, disorderly conduct, some theft charges, fortune telling, and many more, in cases where these would be the top charge. Such cases would be outright dropped when brought to her by the police.

I spoke to Aboushi last week about why she wishes to reduce criminalization. She explained why she extends her declination promise to drug sales and why she is proposing to fully decriminalize sex work.

New York should “stop over-relying on the DA’s office and the police to respond to everything that goes on in society,” Aboushi said. “Interaction with the justice system is destabilizing.”

This would substantially reduce the “footprint” and also the budget of the DA’s office, Aboushi vows. Her memo says she would reduce the budget by half. “When we clean those cases out,” she said, “we’re going to see we don’t need an office of this size, with so many different moving parts, all contributing to the very issues we’re fighting against.” In the course of the Q&A, she also addressed sections of her policy that call for reducing convictions and incarceration over offenses that aren’t in her declination list, including higher-level offenses that involve violence, saying she aims to reduce the footprint of the system in all cases “without exception.”

Aboushi is one of eight candidates in the Democratic primary to replace DA Cy Vance, who has not yet said whether he will seek re-election.

A number of her opponents have also said they would decline to prosecute some offenses that feature on her list, as I detail in my article.

Although the scope of these declination policies varies, the very notion that DA candidates would be competing to see who will most reduce their office’s jurisdiction would have sounded strange as recently as 2018, back when Rachael Rollins released a list of 15 offenses she would not prosecute on her way to winning the DA race in Boston. Her decision to propose a blanket declination policy, as opposed to saying she would treat these charges differently, less harshly, or less frequently, was heralded by reform advocates for pushing the boundaries of what was being debated in DA elections.

You can read my full Q&A with Aboushi here.

Lawmakers Address the Size of Policing, the Death Penalty, Sex Work

The Appeal: Political Report’s Feb. 4 newsletter

Lawmakers Address the Size of Policing, the Death Penalty, Sex Work

The Appeal: Political Report’s Feb. 4 newsletter

If you are keeping one eye glued these days on the congressional drama around the stimulus checks and on Senate maneuvers like reconciliation, you would be well advised to keep the other eye on state legislatures that have been rapidly moving forward important bills. In today’s newsletter:

  • National: Bills to reduce the reliance on policing are popping up around the country
  • Virginia: The Senate votes to abolish the death penalty, and other reforms advance, too
  • New York repeals its “walking while trans” ban
  • California: A new bill would significantly expand the pipeline for reform candidates
  • Legislative round-up: other developments from Arizona, Florida, and Montana

Also today, we will check in on some new prosecutors and DA elections that are on the horizon:

  • Louisiana and Texas: The new DAs in New Orleans and Austin lay out first reforms
  • New York: Some Manhattan candidates vow to break ranks with tough-on-crime DAs

In case you missed it, catch up with last week’s Political Report newsletter, which probed emerging policing reforms and new bills against felony disenfranchisement. You can also visit our interactive tracker of legislative developments and our tracker of the politics of prosecutors.

Legislation to promote alternatives to policing is popping up around the country

Since the Black Lives Matter protests of 2020, most of the interesting initiatives to reduce the footprint of police departments, including the creation of alternatives to policing and reductions in law enforcement budgets, have moved forward at the municipal level. Just last week, Austin’s City Council voted to use money diverted from the police department to buy a hotel to provide housing services for people who experience chronic homelessness; the Political Report also reported last week on a participatory budgeting initiative in Seattle to decide how to spend millions cut from the police department.

Proposals are now also emerging in state legislatures that would facilitate such local initiatives, Meg O’Connor reports this week.

“Lawmakers in at least nine states have introduced legislation to keep cops out of schools, disincentivize arrest quotas, civilianize traffic enforcement, and have health professionals respond to calls about people experiencing health crises instead of police,” O’Connor reports in her comprehensive look at the national landscape as 2021 sessions gets off the ground.

In particular, there is a wave of proposals that are meant to help local governments set up agencies of mental health responders that could respond to emergency calls, though only in Maryland does the legislation actively discourage the dispatching of police officers. Other legislation O’Connor reviewed, including once again in Maryland, would incentivize the use of law enforcement for traffic issues.

Virginia: The state Senate votes to abolish the death penalty, and other reforms are moving forward, too

Virginia took a decisive step on Wednesday toward becoming the first Southern state to abolish the death penalty, when the state Senate passed Senate Bill 1165.

The Senate voted 21-17 on the bill, which was carried by Democrats. Neither of the two Republicans who had supported it in committee ended up voting for it. The state House may vote on the bill later this week, though the legislative process may still take a while longer.

If Virginia were to abolish the death penalty, it would be a significant turnaround given the state’s predilection for capital punishment throughout U.S. history. But it’s also a turnaround from 2020, when the identical state legislature rejected similar legislation (see my Jan. 21 newsletter for more).

In Virginia, all bills face a Friday deadline to pass through at least one of the two chambers of the state legislature, or else they can no longer pass in this year’s legislative session.

Three other bills beat the deadline earlier this week. House Bill 2290 would end the enhanced penalties imposed on people who are repeatedly convicted of misdemeanor theft. HB 1936 would end the state’s draconian practice of punishing all felony robbery by at least five years in prison, though some robbery convictions would retain exceedingly long terms. (Theft of at least $1,000 is a felony in Virginia.) And HB 2038 would restrict incarceration over violations of probation.

Other measures that have passed at least one committee and are still under consideration to beat Friday’s deadline are bills to legalize marijuana, narrow disenfranchisement, and end mandatory minimums. (See last week’s newsletter for more details on the latter two measures.)

A poll released this week by Christopher Newport University found wide support in the state for two emblematic proposals, death penalty abolition (56 to 44 percent) and marijuana legalization (68 to 32 percent).

New York repeals its “walking while trans” ban

In a big win for New York activists who are pushing to both reduce the footprint of policing and to decriminalize sex work, this week the state repealed a statute that is known as the “walking while trans” ban.

The statute gave New York police officers wide discretion to arrest people for “loitering for the purpose of prostitution.” It enabled “police to decide, for instance, that a woman’s skirt is too short, or that she’s been lingering too long on one street corner, and to apprehend her,” Amanda Arnold wrote in an explainer in The Cut last year. Trans women were primary targets for arrests under this statute. “Trans women are often assumed to be sex workers, yet police officers don’t see them as victims worthy of protection,” Emma Whitford wrote in The Cut in 2018. “The stigma surrounding sex work is compounded by the stigma surrounding their gender identity.”

The new reform, signed into law by Governor Andrew Cuomo on Tuesday and sponsored by Democratic lawmakers Brad Holyman and Amy Paulin, comes out of sustained activism and litigation by sex worker advocates and by groups such as the Legal Aid Society, DecrimNY, and the New York Transgender Advocacy Group. There are broader efforts by New York advocates to fully decriminalize sex work.

California: A new bill would significantly expand the pipeline for reform candidates

It’s rare enough for anyone to challenge the local officials who run the criminal legal systems— judges, prosecutors, and sheriffs—let alone for candidates to run on a platform of meaningful change. In California, that dynamic is especially complex in sheriff elections because of a law enacted in the 1980s that requires that candidates have law enforcement backgrounds.

This instantaneously excludes anyone who does not already work within the system. Of course, outsider candidates are no panacea for criminal justice reform, and many may have no interest in change themselves. Still, a pipeline of people who are already focused on challenging mass incarceration and policing practices are barred from running.

State lawmakers have introduced legislation this week that would lift this ban, Katie Fernelius reported in The Appeal: Political Report on Monday, and enable many more Californians to run.

“The bill comes at a pivotal time,” Fernelius writes, “as the Los Angeles County Sheriff’s Department is under state investigation for potential civil rights violations. The department has a history of corruption and in recent years has come under fire for brutality, sexual assault, and gang activity within the ranks.”

Legislative round-up: other developments from Arizona, Florida, and Montana

Arizona: In recent years, Republican lawmakers in Arizona championed proposals to reduce sentencing and enable early release in recent years, but other powerful Republicans blocked those measures during the legislative process. Will that dynamic perdure in 2021? The Arizona Mirror reports that a staunch opponent of criminal justice reform who led a key committee has retired from the legislature; but his replacement is indicating he has little appetite to allow sentencing reforms to move through this year. Still, advocates vow to press ahead.

Florida: State Senator Jeffrey Brandes, a Republican, is proposing to exclude people with felony convictions from the minimum wage increase that Floridians approved in November, Jerry Iannelli reports in The Appeal.

Montana: The legislature is advancing a bill that would compensate people who are exonerated for each year they were wrongfully convicted. Importantly, lawmakers have so far rejected an amendment that would make this compensation conditional on the beneficiary dropping all legal action against the state, the Independent Record reports.

Louisiana and Texas: The new DAs in New Orleans and Austin lay out first reforms

Prosecutors elected on progressive platforms in 2020 have been rolling out reforms since taking office, including in Athens, Georgia, Ann Arbor, Michigan,, and Los Angeles. This week, eyes are on announcements in New Orleans and Austin.

Austin: José Garza, the new DA of Travis County (Austin), released a memo last week that jump-starts some of his reform commitments, including instructing prosecutors to seek no bail or “low” bail in more cases, and expanding diversion programs by removing some restrictions on access. Garza also confirms his campaign promise, which goes further than other progressives who have run for DA, of no longer prosecuting the low-level possession and sale of drugs.

New Orleans: Jason Williams replaced an exceedingly punitive DA in January, and last week he announced two breaks with his predecessor’s record. First, in all cases in which “juvenile lifers” are being resentenced, the DA’s office will no longer seek life without parole. (Many people who received a mandatory sentence of life without parole as minors are entitled to a resentencing hearing because of U.S. Supreme Court rulings from the early 2010s, but courts may still reaffirm the initial sentence.) Second, his office will no longer oppose any incarcerated person’s request for parole; some DAs have a policy of routinely opposing all parole requests. In addition, a 55-year-old man who was serving a life sentence for robbery was released this week after 24 years in prison, The Advocate reports, after Williams’s office agreed to have a court cut his sentence. Williams has appointed Emily Maw, who is the former director of the Innocence Project New Orleans, as the chief of his civil rights division, and who is now reviewing past sentences.

New York: Some DA candidates in Manhattan vow to break ranks with tough-on-crime colleagues

Prosecutors’ statewide associations are some of the staunchest foes of criminal justice reforms. They are ostensibly professional organizations, but they double as powerful political lobbies. These associations have begun to splinter in recent years, most notably in California, Pennsylvania, and Virginia. 

Will that splintering reach New York this year? It may through the DA race in Manhattan, Sam Mellins reports in The Appeal: Political Report and New York State Focus

Three candidates are vowing that if they are elected they would not join the District Attorneys Association of New York (DAASNY), an influential organization that just in recent years has fought bail reform and sued over a law against prosecutorial misconduct. They are civil rights attorney Tahanie Aboushi, public defender Eliza Orlins, and Assemblymember Dan Quart. 

The other five candidates said they would not leave the association, or they are undecided. Most vowed to promote change from the inside, however. But advocates warn it’s not so simple: DA associations often talk in the name of all prosecutors, even when decision-making is in the hands of a smaller group, which can foster a misleading perception that their position is the voice of law enforcement professionals.

2021 Brings Movement Against the Death Penalty and for Voting Rights in States

The Appeal: Political Report’s January 28 newsletter.

2021 Brings Movement Against the Death Penalty and for Voting Rights in States

The Appeal: Political Report’s January 28 newsletter.

The word “decarceration” made it into the Merriam-Webster dictionary this week, a testament to the changing debates around the criminal legal system that have continued to upend local policies this week. On the menu in today’s newsletter: 

  • Oregon: Will this state accelerate the movement against felony disenfranchisement?
  • Virginia: The state legislature is rapidly advancing reforms against mandatory minimums, the death penalty, disenfranchisement, and more
  • Legislative roundup: Other developments from Alabama, Illinois, Missouri, New York, and Pennsylvania
  • The politics of prosecutors: New Austin DA makes changes, Florida and Texas prosecutors who once ran on reform pursue aggressive prosecutions, and Staten Island prosecutor embraces facial recognition
  • Washington: After cutting its police budget, Seattle turns to participatory budgeting

In case you missed it, catch up with last week’s Political Report newsletter, which reviewed a wave of major reforms in Georgia, Michigan, Virginia, and Washington, D.C., that have made 2021 start with a bang.

You can also visit our interactive tracker of legislative developments, our tracker of the politics of prosecutors, and our portal on the 2020 elections.

Will Oregon accelerate the movement against felony disenfranchisement?

Oregon lawmakers have introduced a bill to enable people to vote from prison, Kira Lerner reports in The Appeal: Political Report this week.

If the legislation were to pass, Oregon would join Maine, Vermont, and Washington, D.C., as the only jurisdictions that have no felony disenfranchisement.. But Oregon would be the first state to abolish the practice, since Maine and Vermont have never had it in the first place and D.C. is not a state, and advocates told Lerner they hope this milestone would jumpstart changes elsewhere. 

“Prison is about the loss of liberty, not the loss of citizenship,” Anthony Richardson, who is incarcerated in the state, told Lerner. He added that Oregon first disenfranchised people in prison “over 160 years ago, during a time of forced labor, exclusion laws, lashings, lynching, and policies designed solely to benefit white men and oppress people of color,“ and “continues to forbid Oregonians in prison from being valued as human beings in this state.” Indeed, Oregon has among the nation’s highest racial disparities in incarceration, a reality that the bill’s proponents are stressing to make the case that suffrage cannot stop at the prison doors.

The introduction of Oregon’s bill builds on national efforts to end felony disenfranchisement that the Political Report has closely followed. In 2019, I interviewed Maine’s secretary of state about how voting from prison works there, and about his perspective that suffrage can provide a “sliver of light.”

After the Political Report broke news of the Oregon bill on Monday, some public officials and advocates in other states responded by calling on their leadership to follow suit. Eli Savit, the newly elected prosecutor of Washtenaw County, Michigan, tweeted; “Hey Michigan! We already let returning citizens vote when they come home. How about let’s end prison disenfranchisement altogether?” The ACLU of Virginia tweeted, “@GovernorVA, we can do this in Virginia.”

Virginia: The state legislature is rapidly advancing reforms against mandatory minimums, the death penalty, disenfranchisement, and more

Virginia has long been a bastion of punitive politics. The state’s incarceration rate is higher than the sky-high national average, it all but eliminated parole in the 1990s, and it has among the nation’s harshest felony disenfranchisement statutes. But Democrats gained control of the legislature in the 2019 elections, upending the political landscape. Last year, Virginia eliminated life without parole for minors, decriminalized marijuana possession, and ended prison gerrymandering, among myriad other changes.

Many important reforms are rapidly moving in the 2021 session, but questions remain as to the scope of lawmakers’ ambitions.

Death penalty abolition: Virginia may be the likeliest state to abolish the death penalty this year, I wrote in my newsletter last week after the Senate Judiciary Committee—almost identical in its membership to the committee that sunk legislation abolishing the death penalty last year—voted to advance a new abolition bill. This week, the Senate Finance Committee voted to advance the legislation as well, sending it to the chamber’s floor. Once again, all Democratic senators voted in favor of the bill, as well as one Republican. 

What are the odds of passage in the full Senate? I put together a whip count of the senators’ public positions, combining their votes in committee with their responses to my direct email inquiries, and identified 17 supporters out of 39 lawmakers. The bill also has to pass the House.

Mandatory minimums: The Senate Judiciary Committee advanced a bill this week that “would end mandatory minimum jail and prison terms for more than 200 crimes,” the Associated Press reports. Advocates who testified for the bill stressed that mandatory minimums empower prosecutors to control sentencing with how they decide to charge a case and grant them additional leverage to pressure defendants into guilty pleas. The progressive association of state prosecutors that formed in 2020 to promote criminal justice reform had made repealing mandatory minimums one of its first demands. 

Voting rights: In a dramatic shift this week, Democratic lawmakers significantly expanded the scope of their legislation against felony disenfranchisement, with the governor’s support. I wrote two weeks ago that Governor Ralph Northam had unveiled a push to narrow felony disenfranchisement that was remarkably disappointing compared to l