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Capital Punishment in the United States: Explained

Illustration by Hisashi Ohkawa

Capital Punishment in the United States: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In August 2018, the state of Tennessee executed Billy Ray Irick, the first man executed in the state since 2009. He had spent over 30 years on death row. As a child, Irick experienced unimaginable abuse. His mother would tie him up with a rope and beat him.  Neighbors described his father as “an excessive drinker and a brutal man” who beat his wife and kids. [Liliana Segura / The Intercept]  

Irick exhibited signs of mental illness as early as 6, leading some to hypothesize that he had suffered brain damage from his abuse. Around the time of the offense, he reportedly started hallucinating, telling the victim’s family, with whom he lived, that he heard the devil’s commands, who gave him “instructions on what to do.” A neuropsychologist believed Irick was likely schizophrenic or psychotic during this period, and in post-trial proceedings, the state’s own expert called Irick’s competence into question.

But the jury never heard this evidence.  The defense attorneys presented no family history, called no witnesses, and presented no mental health evidence. It was only after a jury sentenced him to death for the rape and murder of a young girl that lawyers on appeal uncovered the trauma and illness that marred Irick’s life, at which point it was too late.

This August, the state executed Irick using a three-drug cocktail that experts predicted would cause sensations of “drowning, suffocating, and being burned alive from the inside out.”  Dissenting from the Supreme Court’s refusal to grant Irick a stay of execution, Justice Sonia Sotomayor warned that we “have stopped being a civilized nation and accepted barbarism.”

Although America’s use of the death penalty is declining rapidly, even with fewer cases, courts are not getting better at ensuring that only the most culpable are sentenced to death, and the system is deeply broken. Below, we explore the state of the death penalty in America today.

1. The death penalty is dying.

There’s ample evidence that the death penalty is on the wane in America. Here’s what we know about why.

New death sentences are down—and prosecutors are seeking it less.

New death sentences have plummeted. In 2016, juries meted out only 30 new death sentences — the lowest number since capital punishment’s resurrection in 1972. [Mark Berman / Washington Post] In 1996, there were 315; in 2006, there were 125. That number increased slightly in 2017, where juries issued 39 new death sentences, but it was still one of the lowest yearly totals. [Death Penalty Information Center]

The data behind the 2017 numbers is telling: Responsibility for new death sentences continued to lie within a handful of outlier jurisdictions, with 31 percent of the sentences coming from three counties: Riverside, California; Clark, Nevada; and Maricopa, Arizona. In 2017, for the first time since 1974, there were no death sentences in Harris County, Texas. [Death Penalty Information Center] Put differently, out of the 3,141 counties in the U.S., only 16 sentenced five or more people to death between 2010 and 2015. Two percent of counties nationwide now account for the majority of prisoners on states’ death rows. [Emily Bazelon / New York Times Magazine

In an interview, Frank Baumgartner, who recently co-authored a book analyzing capital punishment statistics, acknowledges district attorneys’ death penalty choices as the “key driver in the system.” [Keri Blakinger / Houston Chronicle] This makes the elections of progressive prosecutors like Larry Krasner in Philadelphia and the potential elections of Wesley Bell in St. Louis County and Joe Gonzales in San Antonio, Texas, all the more significant—counties that traditionally use the death penalty will cease doing so.

Courtesy of the Death Penalty Information Center

Juries are rejecting it.

But there is another reason for the decline: Juries are rejecting prosecutors’ requests to sentence people to death.

Prosecutors had not sought a death sentence in Dallas, a traditional death penalty stronghold, since 2015. But in 2017, they tried and failed twice. Jurors in the Justin Smith case indicated they were deadlocked on the penalty decision, and Smith reached a plea agreement with the prosecutor sentencing him to life in prison without parole. [Tasha Tsiaperas / Dallas Morning News] A month later, a jury declined to sentence Erbie Bowser to death. A former military veteran and special education teacher, the government accused him of killing his girlfriend, her daughter, his estranged wife, and her daughter. The defense argued that he was seriously mentally ill and suffered from chronic traumatic encephalopathy (CTE). [Jessica Pishko / Slate] After eight hours of deliberations, the jury signaled it was hopelessly deadlocked and he received a life verdict. [Tasha Tsiaperas / Dallas Morning News]

  • In the notorious Aurora, Colorado, movie theater shooting case, Colorado prosecutors sought the death penalty against James Holmes, accusing him of shooting 12 people during a screening of “The Dark Knight Rises.” After a 65-day trial, the jury deliberated for just seven hours, deadlocked and Holmes received a life sentence. The defense had argued Holmes suffered from a severe and debilitating mental illness. [Deborah Hastings / New York Daily News]
  • In Wake County, North Carolina, home to Raleigh, juries have declined to sentence a defendant to death in eight out of eight cases over the last decade. After the last life sentence, the elected prosecutor stated: “At some point, we have to step back and say, ‘Has the community sent us a message on that?’” [Brandon Garrett / Slate] North Carolina overall is rejecting the death penalty: The state sentenced no one to death in 2017, making it the third year since 2012 that it had no death sentences. Only a single person has been sent to the state’s death row in the past three and a half years, and most of the state’s prosecutors are no longer seeking the death penalty. The ones who are, are failing: Juries did not impose death sentences in all four trials where North Carolina prosecutors sought the penalty in 2017. In three of those trials, juries chose LWOP, and in a fourth, they convicted of a lesser crime. [Gretchen M. Engel / Herald-Sun]

This rejection of death sentences is arguably the most revealing metric about society’s current tolerance for the death penalty. When asked to make real life-or-death decisions about a real person in a real case, prosecutors increasingly don’t seek and jurors don’t return death sentences. [Robert Smith / ACS Blog]

Executions are plummeting.

The number of actual executions has also fallen significantly. In 1999, the United States executed 98 people — the most ever executed in this country. With few exceptions, that number has steadily declined, with 35 executions in 2014, 28 in 2015, 20 in 2016, and 23 in 2017. [Death Penalty Information Center] The 23 executions in 2017 were the second fewest since 1991, and as of the end of August 2018, there have been just 16 executions.   [Death Penalty Information Center]

Public support for the death penalty is declining.

Recent polling has mirrored the decline in the death penalty’s use, with support among Americans dropping sharply. According to a Gallup poll, it reached its lowest in 45 years —in 2017, just 55 percent of Americans voiced support for its use. [Jeffrey M. Jones / Gallup]  

In August 2018, Pope Francis declared the death penalty “unacceptable in all cases,” a change from the church’s previous position, holding it acceptable when considered “the only practicable way” to save lives. This could have a ripple effect in the United States, where the majority of Catholics support the death penalty. [Elisabetta Povoledo and Laurie Goodstein / New York Times]

Among Republican politicians, support for the death penalty has significantly decreased over the past seven years. In 2013, Republican lawmakers sponsoring death penalty repeal bills doubled; the figure rose to 40 sponsors by 2016. [Conservatives Concerned]

And while some voters are still in favor, the tide is turning.

  • In Californiavoters narrowly passed Proposition 66 to speed up the state’s use of the death penalty, with 51 percent voting in favor of it. But 47 percent voted to repeal the death penalty altogether (Proposition 62), suggesting that the tide may too be changing in that state. In Los Angeles, the county with the largest number of death row prisoners, 52.3 percent voted for the repeal.
  • In Nebraska, the 2016 referendum in which voters opted to repeal the legislature’s death penalty abolition bill is a source of controversy. Governor Pete Ricketts is being sued by the ACLU of Nebraska, on behalf of the state’s death row prisoners, for overstepping his executive office boundaries by donating $425,000 along with staff members’ time to the organization Nebraskans for the Death Penalty. [Josh Saul / Newsweek] According to the lawsuit, Ricketts provided the majority of total funding for the petition drive to get the referendum on the ballot in its first months. [Taylor Dolven / VICE]

2. The death penalty is broken.

Those who are executed are not the worst of the worst, despite the Supreme Court’s requirement that capital punishment be limited to society’s most culpable. In Roper v. Simmons (2005), the Supreme Court ruled: “Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Capital punishment must be limited to those offenders …  whose extreme culpability makes them ‘the most deserving of execution.’”

The Court has established bright line rules prohibiting the execution of certain groups, finding it cruel and unusual in violation of the Eighth Amendment : the insane [Ford v. Wainwright (1986)], the intellectually disabled [Atkins v. Virginia (2002)], and juveniles under 18 [Roper v. Simmons (2005)].

And yet numerous cases arise where people may be intellectually disabled or insane, but are nevertheless on death row. The vast majority of those executed in 2017 suffered from some form of impairment. Twenty of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect, or abuse. All eight of the men who were under 21 at the time of their capital offenses had experienced serious trauma. [Death Penalty Information Center]  

Many argue — in court pleadings and in the media — that serious mental illness,intellectual disability, or mental decline because of aging should also render people ineligible for the death sentence. Several states, including Ohio, Indiana, South Dakota, Tennessee, Texas, and Virginia, have or are considering legislation proposing such a rule. [Bob Taft and Joseph E. Kernan / Washington Post] A 2014 poll showed that Americans oppose executing the mentally ill by a margin of 2–1. [DPIC]

And yet death row is replete with those suffering from serious mental illness, trauma, and other impairments. A study by Frank R. Baumgartner and Betsy Neil found that those executed between 2000 and 2015 suffered from serious mental illness at a far greater rate than those in the general population. And 39.7 percent experienced childhood abuse, compared to 1 in 10 kids in the U.S. [Frank Baumgartner and Betsy Neil / Washington Post]

  • Arkansas came close to killing Bruce Ward, who suffered from paranoid schizophrenia and believed he would “survive the triple lethal injection and walk out of the prison to fabulous wealth and public acclaim, then go on to found an evangelical ministry that will spread God’s love through the power of his preaching.” [Ed Pilkington / The Guardian] The Arkansas Supreme Court stayed the execution over the state’s objection. [Max Brantley / Arkansas Times]
  • Texas is trying to kill Andre Thomas, a man who gouged out his own eye and ate it after receiving the death penalty. He had a lengthy history of mental illness —he started hearing voices at age 9; had multiple suicide attempts, also starting at 9; and as an adult, started putting duct tape over his mouth because, he said, God told him not to talk. He also claimed he heard voices of God dueling with the voices of demons.  [Michael Hall / Texas Monthly]
  • Ohio plans to execute 23 men over the next four years. Eighty-eight percent of these men have some combination of significant mental impairments, disabilities, brain injuries, trauma resulting from horrific childhood abuse, or potential intellectual disabilities. [Prisoners on Ohio’s Execution List / Fair Punishment Project] David Sneed is one of the men Ohio plans to execute. According to court documents, he has “severe manic bipolar disorder and a schizo-affective disorder involving hallucinations and delusions.” Doctors initially found him incompetent to stand trial until they administered psychotropic drugs, after which he became a model prisoner. As a child, he suffered from physical abuse and repeated sexual abuse by his foster family, by someone at his elementary school, and by his mother’s friend. [Ohio Report / Fair Punishment Project]
  • In Alabama, Vernon Madison was sentenced to death even though parts of his brain are essentially dead due to a stroke. He is incontinent, has slurred speech, impaired vision, and cannot walk without assistance. He has both dementia and amnesia, and does not remember the crime for which he is sentenced to die. In 2018, the Supreme Court issued a last minute stay of execution, over the dissent of three justices [S.M. / The Economist]

Prosecutors also keep putting the innocent on death row. 

As of Oct. 17, 2017, 160 people have been exonerated from the nation’s death rows, and numerous executions have taken place despite strong evidence of innocence. According to one study, 1 out of every 25 people sentenced to death is most likely innocent. [Pema Levy / Newsweek]

  • In California, despite recent attempts to speed up the death penalty, Vincent Benavides Figueroa was recently exonerated after spending 25 years on death row. He had been convicted of raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter, but medical experts who testified at trial recanted their testimony, stating there was zero evidence the girl was “raped to death.” They acknowledged that they reviewed incomplete medical records at the time of trial, records that omitted the fact that many of her injuries actually occurred during initial attempts to save her life at a hospital. As the Los Angeles Times pointed out, had Proposition 66 been in effect at the time of Mr. Benavides’s conviction, he would almost certainly have been executed. [Radley Balko / Washington Post]
  • In Illinois, Gabriel Solache was exonerated in 2017 after a judge overturned his conviction and death sentence for a stabbing-murder during a home robbery. With no physical or eyewitness evidence tying him to the case, the prosecution relied almost entirely on his confession. But the judge found that the disgraced Chicago detective Reynaldo Guevara told “bald-faced lies” about whether he beat a false confession out of Solache during a three-day interrogation where Solache received little sleep, drink, or water until he incriminated himself—a “confession” transcribed entirely in English even though Solache only spoke Spanish. Upon release, ICE immediately seized Solache. [Nereida Moreno / Chicago Tribune]
  • In Louisiana in 2017, prosecutors dismissed charges against Rodricus Crawford, who had been put on death row in 2012 for allegedly killing his 1-year-old son. Autopsy results showed bronchopneumonia in the baby’s lungs and sepsis in the blood, but led by notorious (and now disgraced) prosecutor Dale Cox, the government put on testimony that Crawford suffocated his baby. After his conviction, numerous experts showed the child died of natural causes. [Rachel Aviv / New Yorker]

Race clearly plays a role in the imposition of the death penalty. 

In 1983, David Baldus found that defendants accused of killing white victims were 4.3 times more likely to receive a death sentence than those accused of killing a Black person. [Adam Liptak / New York Times] That trend remains true: Recent reports in Pennsylvania, Florida, and Oklahoma found that death sentences are more common when the victim is white and less common when the victim is Black.

The race of the defendant featured prominently in two capital punishment cases that made headlines in 2017:

  • In Texas, Duane Buck was sentenced to death after an expert witness testified Buck would be dangerous because he is Black. The Supreme Court reduced his sentence. [Alex Arriaga / Texas Tribune]
  • Georgia is fighting hard to execute Keith Tharpe notwithstanding a juror’s admission that he voted for death because Tharpe is Black, stating he “wondered if Black people even have souls.” The 11th Circuit Court of Appeals recently declined to hear the case on procedural grounds.  [Bill Rankin / Atlanta-Journal Constitution]

3. The death penalty is in chaos, largely because of unconstitutional laws.

Many states are struggling after utilizing laws around capital punishment that violate the Constitution.

  • Florida currently has 346 people on its death row, and now it must decide what to do with many of those cases after courts upended its sentencing scheme. In 2016, in Hurst v. Florida, the Supreme Court struck down Florida’s death penalty statute that made a jury’s decision of life or death only a recommendation and allowed a judge to override it. [Harry Lee Anstead / Tallahassee Democrat] In October of the same year, the Florida Supreme Court found that the state’s revamped law, which did not require unanimous jury verdicts, was unconstitutional. [Bill Chappell / NPR] That left prosecutors and courts with the task of deciding what do with about 285 cases — nearly 75 percent of the death row population at the time. [Larry Hannan / Slate] But whether those prisoners get relief depends largely on a date because the unanimity jury requirement is retroactive only to 2002. [Nathalie Baptiste / Mother Jones] As a result, in October 2017, the state executed Mark Lambrix, even though the jury in his first trial voted only 8-4 in favor of death, and then in the second 10-2. [Jason Dearen / Orlando Sentinel]
  • Alabama could be next. Alabama does not require unanimous death verdicts, and some experts predict that soon, the state will be in the same place as Florida. [Op-ed: Scott Martelle / Los Angeles Times] Alabama already took major action to bring its capital punishment scheme into constitutional compliance, passing a bill eliminating judicial override in 2017. [Death Penalty Information Center]
  • Changes are also afoot in Texas. In March 2017, the Supreme Court declared Texas’s scheme for evaluating intellectual disability unconstitutional (Moore v. Texas). That test, which one judge linked to the character Lennie in John Steinbeck’s Of Mice and Men, lacked any basis in science and medical standards. [Robert Barnes / Washington Post] Prosecutors asked the Texas Court of Criminal Appeals, the highest criminal court, to change Moore’s death sentence to a life sentence, and agreed that he is intellectually disabled when evaluated according to current medical standards. [Jolie McCullough / Texas Tribune] Using new, more scientific standards for evaluating intellectual disability, the court found that Moore, who dropped out of school in the ninth grade and still struggled to understand the days of the week at age 13, still did not meet the definition. [Jolie McCullough / Texas Tribune]

4. Lethal injection may be torturing people.

In execution after execution, people are awake as their lungs shut down. Most states use a three-drug cocktail to execute people. The first drug, historically an anesthetic, renders you unconscious; the second drug, pancuronium bromide, stops breath and acts as a paralytic; and the third drug, potassium chloride, stops your heart from beating. [DPIC] But lawyers and experts have argued that this is not fail-safe, and, although the Supreme Court has rejected challenges, evidence shows they are right.

Most states use midazolam for the anesthetic. It is unclear if midazolam reliably causes unconsciousness; once the second drug is administered, “the prisoners will be paralyzed, unable to move a muscle, unable to indicate in any way if they are experiencing the suffocating effects of the paralytic and the searing pain of the potassium chloride.” [Op-ed: Ty Alper / Los Angeles Times]

  • Oklahoma infamously botched Clayton Lockett’s 2014 execution; he died 43 minutes after administration of a cocktail of midazolam, bromide, and potassium chloride. During that time, he raised and jerked his head, repeatedly tried to speak, groaned, and writhed. [Katie Fretland / The Guardian] The state then imposed a moratorium on executions and convened a commission to investigate. In April 2017, the commission recommended extending the moratorium until “significant reforms” are instituted. [Tracy Connor / NBC News]  The state recently announced, however, that it has “finalized” its new three-drug cocktail.  [Michael Cook / BioEdge]
  • In Arkansas in April 2017, Marcel Williams arched his back and breathed heavily during his execution. [Ed Pilkington and Jacob Rosenberg / The Guardian] Later the same week, a reporter witnessing the execution of another prisoner, Kenneth Williams (no relation to Marcel Williams), described him “[c]oughing, convulsing, lurching, and jerking.” The reporter said, “It was clear that he was in trouble. It was clear that he was striving for breath.” [Liliana Segura / The Intercept]

States are also experimenting with new drug combinations — but those are also causing problems.

  • In Ohio, executions had been on hold since Dennis McGuire’s botched 2014 execution, using a two-drug combination that included midazolam. That has ended, and the state is using midazolam, rocuronium bromide, and potassium chloride. [Jackie Borchardt /] But during Gary Otte’s September 2017 execution, according to his lawyer, Otte appeared to be in pain after the administration of midazolam and looked like he was struggling for air. His lawyer also noted that Otte was crying. [Eric Heisig /] Ohio encountered further controversy when it had to call off its November 2017 execution of 69-year-old Alva Campbell after 30 minutes of struggling to find a vein. Campbell’s lawyers had warned that an exam failed to find veins suitable for IV insertion in arguments that Campbell was too ill to execute. [Andrew Welsh-Huggins / Associated Press]
  • In Alabama, officials similarly called off Doyle Lee Hamm’s execution in February 2018 after the team spent several hours probing him and jabbing him in search of a usable vein, and even punctured his bladder, penetrating his femoral artery.  [Roger Cohen / New York Times]
  • Nevada is trying to use a brand new drug combination: the opioid fentanyl; the sedative midazolam and a paralytic, cisatracurium besylate, to execute Scott Dozier. But the state has twice stayed his execution after the judge forbade the state from using the paralytic. Most recently, the execution has been stayed after Alvogen Pharmaceuticals, which manufactures the midazolam, sued because it does not want its drug used in executions. [Maurice Chammah / Marshall Project]
  • In Nebraska, the state used fentanyl as a painkiller, followed by cisatracurium besylate as a paralytic, during Carey Dean Moore’s 2018 execution. This was a totally new and untested procedure.  One expert predicted Moore would be “aware as he develops organ failure and, as a consequence of the paralysis caused by cisatracurium,” would “die by choking to death.” [Kashmira Gander / Newsweek]

A few justices are troubled by these botched executions. Dissenting from the Supreme Court’s refusal to intervene in Alabama’s execution of Thomas Arthur earlier this year, Justice Sonia Sotomayor, joined by Justice Stephen Breyer, called midazolam-centered execution protocols “our most cruel experiment yet.” [Mark Joseph Stern / Slate] So are companies. Drug companies across the world are trying to keep states from using their products in executions; Pfizer is one famous example. [Erik Eckholm / New York Times] Johnson & Johnson is another. [Carolyn Johnson / Washington Post]

Amid this controversy, states are trying to keep their drugs and suppliers secret. In Arkansas in August 2017, the state paid $250 cash for four vials of midazolam from an unknown source, enough for two executions. [Taylor Dolven / VICE] Controversy also brewed after the Arkansas Department of Corrections director revealed that one of the drugs used — potassium chloride — was “donated” to her after she drove her car to pick it up from an unnamed supplier. [Jacob Rosenberg / Arkansas Times]

5. Conditions of confinement on death row are cruel and unusual.

Along with the problems of execution, the lives of prisoners on death row also deserve scrutiny. The majority of death row prisoners are held in solitary confinement. Of the more than 2,700 state prisoners currently condemned to death, 61 percent are isolated for 20 hours or more a day. In Texas, death row prisoners spend up to 23 hours per day alone in an 8-by-12-foot cell with virtually no human contact or exposure to natural light. For 14 years in Arkansas, Bruce Ward, suffering from schizophrenia, was held every day in a 12-by-7.5 cell with a toilet and shower. Guards passed his meals in through a slot. He was permitted one hour per day in another enclosed “exercise” cell, although for a decade he refused to go there. [Ed Pilkington / The Guardian]

These conditions have devastating psychological effects. The isolation and sensory deprivation drives some prisoners to insanity: They suffer from delusions and hallucinations, mutilate themselves, and experience psychotic episodes in which they attempt suicide or smear the walls of their cells with their blood and excretions. The suicide rate in solitary is five to 10 times higher than it is in the general prison population. [Nathaniel Penn / GQ]

Extended time on death row may amount to cruel and unusual punishment. Although the Supreme Court has rejected this claim, which is based on a 1995 case (Lackey v. Texas), Justice Breyer has signaled a commitment to it, lodging a number of dissents from denials of certiorari. Regarding the long delay at issue in Foster v. Florida, he wrote: “[Twenty-seven] years awaiting execution is unusual by any standard, even that of current practice in the United States, where the average executed prisoner spends between 11 and 12 years under sentence of death.” [David Savage / Los Angeles Times]

6. The fallacy of clemency.

Clemency is almost never granted to people on death row. Some believe clemency is the “fail safe” method to make sure we do not execute the innocent, the insane, or those who have not received a fair trial. The late Supreme Court Chief Justice William Rehnquist wrote that clemency was necessary because “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” But in reality, clemency is almost never used, and it is sometimes not even controlled by an elected official accountable to the people.

  • In Texas, for example, the politically appointed Texas Board of Pardons and Paroles must recommend parole before the governor can grant it. The board is not required to hold a hearing on a clemency petition, and during the six years that George W. Bush was governor, none of the 152 people executed received one. Since 2001, the state has executed 314 people while the board has recommended clemency just six times. Idaho, Louisiana, Oklahoma, and Arizona operate similarly. Georgia keeps its clemency proceedings secret, making it impossible to know how they make decisions. [Jess Stoner / The Morning News]
  • In Florida, there has not been a commutation since 1983. The state has put 96 people to death since 1979, and only six were commuted — in four of those, juries had voted to spare their lives but a judge overrode that decision. [Editorial Board / Orlando Sun Sentinel]

7. What’s next for the death penalty?

While thousands of people remain on death row, elected officials are increasingly moving to end it.

Thirty-one states, the District of Columbia, the federal government, and the military have all turned away from executing people. Twenty-three states and D.C. have either abolished the death penalty or seen their governors impose moratoriums. Four more jurisdictions (New Hampshire, Kansas, Wyoming and the military) have executed one or fewer people in the last 50 years, and six other jurisdictions (the federal government, Idaho, Kentucky, Montana, Nebraska, and South Dakota) each executed three people in the past half-century.

Governors in Oregon, Pennsylvania, Washington, and Colorado have vowed not to allow any executions during their terms. [DPIC]

  • In 2013, Colorado Governor John Hickenlooper granted a temporary reprieve to Nathan Dunlap, one of the state’s three death row inmates . Hickenlooper called Colorado’s system of capital punishment “imperfect and inherently inequitable” and called it “highly unlikely” that he would reconsider the death penalty for Dunlap. In a published order, he wrote that “[i]t is a legitimate question whether we as a state should be taking lives.” [Karen Augé / Denver Post] Hickenlooper also noted that, in Dunlap’s case, three jurors later said they might not have supported the death penalty if they had known Dunlap was bipolar. [Kirk Mitchell and John Frank / Denver Post]
  • Oregon Governor Kate Brown announced in 2016 she would continue the death penalty moratorium imposed by her predecessor due to “serious concerns” about the “constitutionality and workability” of Oregon’s death penalty statute. [Tony Hernandez / The Oregonian]

The Supreme Court also plans to take up two death penalty-related cases in fall 2018. In Madison v. Alabama, the Court will consider whether states can execute people who committed murders but, due to cognitive dysfunction, no longer remember their crimes. The second case, Bucklew v. Precythe, deals with whether a prisoner’s medical condition could render execution by lethal injection “cruel and unusual.” [Garrett Epps/The Atlantic]

How Fines and Fees Criminalize Poverty: Explained

Illustration by Hisashi Okawa

How Fines and Fees Criminalize Poverty: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In Georgia, a man stole a can of beer worth $2 from a corner store. The court ordered him to wear an ankle monitor for a year. The company administering it, Sentinel Offender Services, charged him so much money that he eventually owed more than $1,000. Trying to keep up with his payments, he sold plasma, but he fell behind and the judge jailed him for non-payment.

In Amarillo, Texas, Janet Blair-Cato received a “barking ticket” because the abandoned dogs she rescued made too much noise. Police also gave her tickets for failing to obtain the proper vaccinations and buy dog tags. In total, she owed thousands of dollars. She missed an installment on her payment plan, and the judge issued a warrant for her arrest. She spent 52 days in jail. Two days after her release, she received a new barking ticket. She has stopped rescuing dogs.

In Macomb County, Michigan, the sheriff’s department arrested 32-year-old David Stojcevski because he did not pay a $772 traffic ticket for careless driving. He was ordered to spend 30 days in jail, but he died on the 17th day after experiencing seizures and convulsions due to drug withdrawal.

To raise revenue and make up for budget shortfalls, cities, states, courts, and prosecutors levy hefty fines at nearly every stage of the criminal justice system. People leaving prison owe on average $13,607 in fines and fees. For those who are poor, these fees can be catastrophic. An inability to pay can lead to a suspended license, additional fees, and even jail. In this Explainer, we explore all the ways the poor are regressively taxed in the justice system, and what can be done to stop these practices.

1. People receive crushing fines and fees throughout the criminal justice system.

Whether it’s a city imposing the fees or a court system, the effect is the same: an added burden on those who can least afford it.

Cities assess fees for minor infractions.

To increase revenue, many states and municipalities impose hefty fines on those charged with minor offenses like traffic violations, jaywalking, or even leaving a trashcan on the street. Because the offenses are “minor” and because the penalties are, at least superficially, not severe, people often receive these fines without a lawyer to help contest them. [Kendall Taggart and Alex Campbell / Buzzfeed]

Ferguson, Missouri, is probably the city best known for abusing this practice. Rather than raise taxes, the city, home to the Fortune 500 company Emerson Electric, charges hefty fines and fees for offenses as minor as “walking in the roadway,” walking with “saggy pants,” or putting out the trash on the wrong day. Police officers’ evaluations were tied to their ticket-pushing “productivity,” and, in 2013, fees raised through municipal court fines amounted to 20 percent of the city’s budget. [Walter Johnson / The Atlantic]

Qiana Williams, a homeless single mom, was one of many ensnared in Ferguson’s fee trap. At 19, she received a ticket for driving without a license. She missed a court date and the police arrested her. Unable to pay the $250 bond, she stayed in jail. That began her cycle through the system where, in total, she spent over four months in jail because of unpaid tickets and fines. On one occasion, police arrested her after she called them because her ex-boyfriend assaulted her. [Whitney Benns and Blake Strode / The Atlantic]

This is a national problem. In Austin, Texas, Valerie Gonzalez lacked a driver’s license but needed to drive her five kids to school and her husband and herself to work. Over the years, she amassed more than $4,500 in fines for driving without a license. She could never pay them because she was so poor that she often lived out of her car. When police arrested her on traffic warrants, a judge ordered her to pay $1,000 that day or spend 45 days in jail. [Jazmine Ulloa / Austin American-Statesman]

Courts impose fees for arrests, lawyers—and virtually everything else.

Courts impose astronomical fees on those charged with crimes, fees known as legal financial obligations. These include arrest fees, bench warrant fees, lawyer fees, crime lab fees, jury fees, and victim assessments. There are even fees for sleeping in jail. In 1991, just 25 percent of convicted people received court-ordered fines. In 2004, 66 percent did. [Alana Semuels / The Atlantic]

According to a study conducted by National Public Radio, in at least 43 states, defendants must pay a fee for a public defender. In at least 41 states, they are charged “room and board” for prison stays. And, in every place but Washington, D.C., they must pay to wear an electronic home monitoring device. [Joseph Shapiro / NPR]

North Carolina courts charge fines for seemingly everything. Defendants unable to afford a lawyer are assessed $60 before a judge considers whether to appoint one. Once a lawyer is appointed, the defendant must pay an hourly fee. If the defendant is held in jail, unable to make bail before trial, he must pay $10 a day. If he is placed on pretrial release, he must pay $15. There is a $600 fee if the prosecutor decides to test evidence at the state crime lab. Many of these charges cannot be waived by a judge. [Anne Blythe / News & Observer]

Private probation companies often levy their own fines and fees, and they jail people for nonpayment.

In Tennessee, the private probation company, Providence Community Corrections, charged people monthly supervision fees along with fees for nearly every required service, including drug tests and community service. If people couldn’t pay, they were jailed. As in Georgia, some “clients” reported selling plasma to avoid going to jail for nonpayment. [Shaila Dewan / New York Times] In September 2017, the company agreed to pay $14 million to settle a federal lawsuit accusing it of extortion and violating federal racketeering laws. [Adam Tamburin / The Tennessean]

In Montgomery, Alabama, police repeatedly ticketed 49-year-old Harriet Cleveland for driving without insurance and a license. She kept driving because she needed to drop her son off at school and go to work. Unable to pay the fines, she received two years’ probation. Judicial Correction Services then charged her $200 a month, including a $40 “supervision” fee. She couldn’t keep up with the fines, and accrued over $1,000 in private probation fees. After her two-year probation ended, she received a notice from the district attorney demanding nearly $3,000 in payment — far higher than the original fees. The DA had added a 30 percent collection fee. Afraid of arrest, she skipped court. Police later arrested her on a warrant and locked her up for a month, where she slept on the floor. [Sarah Stillman / The New Yorker]

Prosecutors charge fines and fees for their own diversion programs and, in some jurisdictions, for the prosecution itself.

In Atlanta, Marcy Willis used her credit card to pay for a rental car for her friend. He gave her cash, and then disappeared. She eventually recovered the car and returned it, but the state nonetheless charged her with felony theft. It offered the single mother of five a chance at pretrial diversion, where, after three months of classes and community service, her case would be dismissed and her record expunged. But she could not afford the $690 it would cost her to participate. [Shaila Dewan and Andrew W. Lehren / New York Times]

In Charlotte, North Carolina, police arrested Rahman Bethea for embezzling video equipment from the hotel where he worked. Because this was his first offense, he was eligible to participate in the city’s deferred prosecution program. Prosecutors would dismiss his case if he completed certain requirements. He was required to pay $899 to participate, but because he had only $100, he could not get into the program. [Michael Gordon / Charlotte Observer]

In Coachella and Indio, California, courts use a private law firm to prosecute individuals accused of violating city ordinances that carry small fines. Several months after being charged, those accused find a surprise in the mail: a bill for the prosecution. While the fine might only be a few hundred dollars, they are responsible for thousands of dollars for the prosecution. One man accused of doing work on his living room without a permit received a bill for $26,000. [Scott Shackford / Reason]

Most people are too poor to pay these fines — so they pay interest.

Known as the “poverty penalty,” fines and fees are often doubled and tripled when an individual cannot make the initial payment. In Washington State, for example, legal financial obligations average $1,347. Those unable to pay the full sum immediately will end up owing much more. The state charges a 12 percent interest rate and a yearly $100 surcharge. [Alana Semuels / The Atlantic]

2. These fines and fees can wreak havoc on people’s lives.

Being unable to pay can result in a range of penalties, including jail time and a suspended license.

The threat of jail time

In 1983, in Bearden v. Georgia, the Supreme Court ruled that people cannot be jailed or have probation revoked because of an inability to pay fines. In reality, judges rarely check on a person’s economic status, and for the most part, people have no lawyer to assist them in asserting their rights. [Alana Semuels / The Atlantic]

In 44 states, judges can send people back to jail if they “willfully” refuse to make payments — a loose term. Sometimes, judges lock up poor individuals because they don’t have a job, claiming their unemployment is pretext for their refusal to pay. [Alana Semuels / The Atlantic]

In El Paso, Texas, which collected $19 million in fines in 2015, the court requires people to pay 25 percent of their traffic-related debt before considering transferring it to a payment plan. If the person can’t make that high a payment, he or she is jailed. [Bobby Blanchard / Dallas Morning News]

Levi Lane was pulled over by the police on the way home from his night shift for driving eight miles over the speed limit. Police arrested him for unpaid traffic tickets — five of them totaling $3,400. Unable to pay that amount on an $8-an-hour job, the judge locked him up. Lane spent 21 days in jail. The judge never asked about his ability to pay, nor did he believe he had to do so. “I’m not required by law to ask anything,” he stated. [Kendall Taggart and Alex Campbell / BuzzFeed]

Carina Canaan also found herself in El Paso’s jail. She accrued $3,000 for driving without a license. She couldn’t pay it off, and so she spent 10 nights in jail while pregnant. But that stay didn’t wipe out all of her fees. She still owes surcharges, which prevents her from obtaining a license. Because she needs the license for certain jobs, she has repeatedly been turned down for employment. [Kendall Taggart and Alex Campbell / BuzzFeed]

Driver’s license suspensions

In the majority of states, unpaid court debt can result in a driver’s license suspension. Only four of those states require a hearing to determine whether the person is willfully failing to pay. [Beth Schwartzapfel / The Marshall Project] In 2006, almost 40 percent of suspended licenses in the country occurred because people could not pay traffic tickets or child support, or because of drug possession. [Henry Graber / Slate]

In Kansas, over 100,000 people — one in every 20 adults — had their licenses suspended for failing to pay traffic tickets. [Oliver Morrison / Wichita Eagle]

In Lapeer, Michigan, Shane Moon stopped paying his car insurance to cover other expenses when his girlfriend became pregnant. But he had to drive to construction sites to keep his job. He got pulled over and received a ticket, with a “driver responsibility fee” attached. When he couldn’t pay, his license was suspended — which came with another fee. He kept driving to work, and he kept getting pulled over and receiving tickets and fines. As of September 2017, he was homeless and still could not pay his tickets. [Henry Grabar / Slate]

In Duval County, Florida, between 2012 and 2016, 2,004 people received jaywalking tickets. Unable to pay the $65 fine for something thousands of people do every day, 982 had their driver’s licenses suspended. African Americans were disproportionately affected. While representing 29 percent of the overall county population, they comprised 54 percent of those whose licenses were suspended for jaywalking. [Ben Conarck, Topher Sanders, and Kate Rabinowitz / Florida Times-Union and ProPublica]

Losing a license because of an unpaid fee can lead to a loss of job and social services. Most people need to drive to work and some companies require a license as a prerequisite for employment. A 2007 study showed that one third of licenses suspended in New Jersey were the result of unpaid fees. Forty-two percent of people with suspended licenses subsequently lost their jobs, and half failed to find new ones. Nine out of 10 people lost income. [Henry Grabar / Slate]

Other grave losses

In Houston, a single mother earning $9 an hour received a job offer where she would make $14. But she had an outstanding warrant for nonpayment of a fine, and the employer conditioned her job offer on payment. She couldn’t afford it, and she lost the job. [Texas Appleseed / The High Cost of Jailing Texans for Fines & Fees]

A woman in her 60s lost her subsidized housing because she owed $500 from a decades-old conviction for forging a prescription. She ended up homeless. [Joseph Shapiro / NPR]

3. These fines disproportionately affect people of color.

In Ferguson, the Department of Justice determined that all levels of government — from police to city hall — targeted African Americans for hefty tickets and fines. African Americans made up 85 percent of those stopped by police for vehicle infractions carrying large fines from 2012-14, despite making up just 67 percent of the population. [Michael Martinez / CNN]

In a review of the 50 cities with the highest percentage of revenue coming from fines and fees, using 2012 Census data, Priceonomics found a direct relationship between a high African American population and high fees. It discovered that these places have African American populations five times greater than the national average. Jurisdictions with high populations of white people simply did not issue as many fines.

Dan Kopf / Priceonomics

4. It is unclear how much revenue these fines and fees actually provide.

As a report from the Criminal Justice Policy Program at Harvard Law School points out, the financial benefits of fines and fees may be illusory. Most places do not track how much it costs to actually collect criminal justice debt—the cost of jail time, the cost of arrest, the cost of issuing a warrant, not to mention the economic cost to an area when someone loses a job.

5. Despite media attention on this issue, some places are doubling down on these practices.

Some judges in North Carolina have waived the state’s hefty fees, described earlier. But a 2017 state law cripples their ability to do so. Before judges show even the slightest bit of compassion toward indigent defendants, they must notify every agency entitled to the funds, which often includes corrections, police and schools. Those groups then have a right to contest the waiver. Defense lawyers and advocates worry that this could lead to fewer fee waivers—and more people locked up because they can’t pay. [Joseph Neff / The Marshall Project]

6. But the tide has started to turn. Legal challenges are mounting and some states are pushing through reform.

Around the country, lawyers are challenging the constitutionality of both debtors’ prisons and the practice of suspending licenses for inability to pay fines and fees.

In Nashville, Tennessee, lawyers successfully argued the city traps people in a permanent cycle of poverty by suspending licenses for unpaid debt. The district judge agreed, calling the practice unconstitutional. “If a person has no resources to pay a debt,” federal Judge Aleta Trauger wrote, “he cannot be threatened or cajoled into paying it; he may, however, become able to pay it in the future. But taking his driver’s license away sabotages that prospect.” [Dave Boucher / The Tennessean]

A federal judge in New Orleans recently ruled that state judges regularly violate the Constitution by jailing people unable to pay the fines those same judges had assessed. Many of the plaintiffs spent several days in jail with no hearings on their ability to pay. The federal judge described the two conflicts of interest that exist when a judge first sets the fine intended to support the court’s coffers, and then again when the judge sets penalties for the person’s inability to pay that fine. “So long as the judges control and heavily rely on fines and fees revenue … the judges’ adjudication of plaintiffs’ ability to pay those fines and fees offends due process.” [Matt Sledge / The Advocate]

In Sherwood, Arkansas, a Little Rock suburb, lawyers sued because the town locked up people who couldn’t pay fees. The suit targeted Sherwood’s “hot check” court, where officials charged thousands of dollars to people accused of writing checks with insufficient funds, even if they were just $15 short. In November 2017, Sherwood settled the case. People can now do community service to cover the fines. [Jon Herskovitz / Reuters]

7. Legislative bodies are also changing their practices.

In Washington, D.C., the D.C. Council approved legislation preventing the city from suspending licenses for missed court hearings or unpaid traffic tickets. Those with outstanding fines will have the option of paying them off through community service.  This will have a significant effect: Between 2010 and 2017, the city suspended 126,000 licenses. [Reis Thebault / Washington Post]

In Maine, the legislature this year passed a bill to end automatic license suspensions for missed fines.  Although the governor vetoed the bill, the legislature overwhelmingly overrode the veto, and the measure will now become law. [Reis Thebault / Washington Post]

In San Francisco, the Board of Supervisors recently voted to eliminate fees associated with the criminal justice system, including fees for probation, electronic monitoring, and being booked into jail.  While people will still be subject to the state’s mandatory fees, San Francisco will now be the only city to decline to charge discretionary fees. [Joanna Weiss and Lisa Foster / Washington Post]

The California State Legislature passed a law in 2017 outlawing the practice of suspending driver’s licenses because of unpaid traffic fines. The law does not apply retroactively to the 488,000 people who have suspended licenses for unpaid traffic fines or missed court appearances. [Associated Press]

The Nebraska Legislature passed a law requiring those with unpaid fines to appear before a judge rather than automatically receiving jail time. The judge can dismiss the fines or assign community service hours. [Julia Shumway / Associated Press]

The Criminalization of Homelessness: Explained

Illustration by Hisashi Okawa

The Criminalization of Homelessness: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

Most evenings, Aguirre Dick rides his bike about three miles from the streets of Waikiki in Honolulu to the slopes of a volcano, where he sleeps. If he doesn’t make that trek, he could be arrested. A 2014 law made it illegal to sit or lie down on the public sidewalks in Waikiki. As a result of this law, those without homes, like Aguirre, live in constant fear of being pushed into the criminal justice system simply because they are too poor to own or rent lodging.

In San Diego, police arrested a pregnant Alexis Leftridge as she slept in her tent and jailed her for several days. Leftridge became homeless after losing her nursing job in 2014 — without money for rent, she was evicted. To get out of jail, she agreed to an order to stay away from the area, but she now has so many that she does not know where to go. According to pleadings filed in a lawsuit against the city, she is afraid she will be arrested for “walking along the wrong street.” She has subsequently given birth to a baby boy and currently has a room at a shelter. But, because the shelter is within the “stay away” area, she is at risk of re-arrest.

In Houston, Texas, Spencer Stevens became homeless in 2015 after losing his job as a forklift operator. He has congestive heart failure, which prevents him from taking another manual labor job. Living under the highway median, he cooks meals on his griddle. If legal challenges fail, he could be arrested for both living and cooking there. Houston has made it illegal to block a sidewalk, stand on a roadway median, sleep on public property or in a makeshift shelter, or have a heating device in public.

Every day, law enforcement officers across the country issue tickets to those experiencing homelessness as they engage in basic, life-sustaining behaviors, like sleeping on the streets or cooking a meal in public on a griddle. Prosecutors then frequently charge those individuals with crimes. By relying upon law enforcement to address an issue that should more appropriately be considered as falling within the domain of public health, communities are expending a tremendous amount of public money unnecessarily and ineffectively, and exacerbating the underlying causes of homelessness. Below, we discuss the destructive and often devastating human and financial costs of criminalizing homelessness in America.

1. Homelessness is a chronic problem.

Experts believe that as many as two million people in the country experience homelessness at some point in a given year, with about 500,000 living without a home each night. [Alastair Gee, Liz Barney, and Julia O’Malley / The Guardian] About 15 percent of those are chronically homeless, meaning they have been without a home for years. [Alana Semuels / The Atlantic]

Racial minorities comprise a significant percentage of the population experiencing homelessness. While African Americans represent about 12.5 percent of the general population, they represent over 40 percent of the homeless population. [Eddie Kim / The Guardian]

In some communities, there has been a significant increase in the population of Latinos facing homelessness. [Esmeralda Bermudez and Ruben Vives / Los Angeles Times] Many experience acute fear or face unique obstacles as a result of their uncertain legal status. [Leslie Berestein Rojas /] Consider Hector, a homeless man in New York who does not utilize shelter services because he is afraid that he will be identified and then deported. He lives near the train tracks along with several others who have refused to enter shelters since President Trump’s immigration crackdown. [Caroline Spivack / Brooklyn Paper]

Military veterans confront homelessness at an alarming rate. More than 10 percent of the adult homeless population has served in the military. [FAQ / National Coalition for Homeless Veterans]

Survivors of domestic violence also experience high rates of homelessness. A recent study in Minnesota showed that 35 percent of homeless women reported domestic abuse as a cause. [Stephanie Nelson-Dusek / Post Bulletin]

A 2017 nationwide survey revealed that, on a given night, almost 41,000 people experiencing homelessness were 24 years old or younger, 12 percent of whom were below age 18. Many of these young people have suffered significant trauma. Youth who identify as LGBTQ, have special needs or disabilities, or are pregnant or parenting are also more likely to become homeless. [Youth and Young Adults / National Alliance to End Homelessness]

Half of those experiencing homelessness have a physical or mental disability, or both. [Gale Holland / Los Angeles Times]

2. The criminalization of homelessness is growing.

Hundreds of jurisdictions across the U.S. have criminalized homelessness, and the trend shows no signs of abating. Laws criminalizing homelessness have multiplied in the last 10 years in 187 studied cities. [National Law Center on Homelessness and Poverty / Housing Not Handcuffs] The report calls out several jurisdictions in a “Hall of Shame” section, including Honolulu, Denver, and Dallas. [Dennis Oda / Honolulu Star-Advertiser]

In 2016, Honolulu adopted a spate of laws that target homeless people, and police ramped up enforcement of these “quality of life” ordinances. Why? Pressure from the business and tourism industry, which in the past has funded airfare to the mainland for homeless people who came to Hawaii. [Adam Nagourney / The New York Times]

In Denver, the state’s 76 largest cities have, as a group, passed 351 ordinances that target homeless people, including bans on camping and bans on sharing food outside. [Bryce Covert/ The Appeal]

In Dallas, police issued 11,000 “sleeping in public” citations between 2011 and 2015. Police also stopped people for loitering, panhandling, and for sleeping in public spaces in the city — even though the city lacks sufficient shelter beds. [Stephanie Kuo / KERA]

In late 2017 in Portland, Oregon, the Columbia Sportswear CEO called for more policing of the homeless population after moving his company headquarters downtown. [Tim Boyle / Oregon Live] In response, the head of the Business for a Better Portland urged the city to adopt “holistic and collaborative solutions” to systemically address the underlying causes of homelessness. [Ashley Henry / Oregon Live] Activists also fired back by protesting the city’s “no-sit” laws in front of Columbia Sportswear’s downtown store, forcing the company to close for the day. [Abe Brettman / Oregon Live]

3. Criminalizing homelessness does nothing to address its root causes.

The causes of homelessness vary, but experts largely agree that both structural and individual factors play a role. Structural factors include poverty, inadequate affordable housing, inadequate access to meaningful public assistance, decreased availability of mental health care, and discrimination. [Jonathan Hafetz / Fordham Urban Law Journal]

In Detroit, for example, advocates report that an increasing number of families experience homelessness because the city lacks affordable housing and has a high rate of evictions. About 3,000 children experience homelessness each year in Detroit. [Violet Ikonomova / Detroit MetroTimes]

Similarly, in San Diego, skyrocketing rents, low vacancy rates, and a severe shortage of affordable housing have placed the city at a “tipping point.” Over the past year, there has been a 14 percent increase in people living on the streets in San Diego. This situation is likely to grow worse, as California has cut $200 million from the city’s affordable housing programs over the past six years. [Scott Wilson / The Washington Post]

There are also personal factors that can cause homelessness, including traumatic events, family crises, and the onset of mental or physical problems. [Jonathan Hafetz / Fordham Urban Law Journal]

In an interview with NPR, David Pirtle described why, even when temperatures dropped below freezing, he stayed on the streets. Suffering from schizophrenia, he feared large crowds and experienced paranoia, so he avoided shelters: “All I can say is that my fear of the unknown, of what might be waiting for me at that shelter, was worse than my fear of the known risk, you know, of staying out on the street.” [Jay Evensen / Deseret News] [Talk of the Nation / NPR]

Dorothy Edwards spent eight years on the streets of Pasadena, California, where she slept in alleys and ate food out of Dumpsters, smoking meth to ward off depression. During that time, she was repeatedly sexually assaulted. She checked herself into a psychiatric ward on numerous occasions, but kept returning to the streets. It took eight years for counselors to diagnose her with depression and post-traumatic stress disorder. Now receiving adequate treatment, she lives in an apartment with her dog and is actively looking for a job. [Rick Jervis / USAToday]

4. These laws criminalize what for many is life-sustaining behavior.

Instead of addressing the root causes of homelessness, states and cities have adopted hundreds of laws making it harder for homeless people to survive.

Camping, sleeping, or lying down in public

According to a 2014 analysis of 187 American cities by the National Law Center on Homelessness & Poverty, over half prohibited camping, sitting, or lying down in certain areas, and a third banned these activities citywide. [Robert Rosenberger / The Atlantic] Cities often outlaw these practices without providing additional shelter beds. [Emily Badger / Washington Post].

In Houston, a city ordinance, enacted allegedly for “safety,” makes it illegal to sleep in a tent, box, or other makeshift shelter on public property. A federal district judge issued a temporary restraining order against the ban, writing that those individuals targeted by the ordinance are “involuntarily in public, harmlessly attempting to shelter themselves — an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals.” [Gabrielle Banks / Houston Chronicle] But in December, the judge lifted her order. [Michael Graczyk / Boston Globe]

In Dallas, one individual, Sarge, has been ticketed repeatedly for sleeping in public, something he must do to survive. He estimates that he has received around 75 tickets over the years. [Eric Nicholson / Dallas Observer]

In Austin, a man named Ross reports being “herded like cattle” because of the city’s anti-camping law. “They have a law saying you can’t sit down. So if you don’t have anywhere to live and all the homeless shelters are full, then where do you go? Do you walk in a circle 24 hours a day? You have to sleep and if you slow down to sleep you go to jail for it, which I’ve done, that’s pretty much where you get to sleep.” [Kylie McGivern / KXAN]

Begging in public (panhandling)

According to the 2014 National Law Center on Homelessness & Poverty report, there was a 25 percent increase in anti-panhandling laws between 2011 and 2014. [Scott Keyes / Think Progress]

In 2014 in Denver, police arrested 300 people for panhandling. [Scott Keyes / Think Progress] In New York, police arrested a homeless man after he asked a police officer if he had a dollar to spare. [Fernanda Santos / New York Times]

Jason Metts of Fayetteville, North Carolina, reports that he is disabled and can’t work. “To survive,” he told a reporter, he has started panhandling. Police have arrested him seven times. “I’m not stealing, I’m not robbing people, and I’m not approaching anybody. Those that give to me roll down their windows, I’m not scaring them,” Metts stated. [Sheena Elzie / CBS North Carolina]

Encroachment — storing property in public ways

Laws across the country make it illegal for individuals to place property on public ways. For those with no home, there is no other place to store their belongings.

In San Diego, police cited Army veteran Eric Arundel several times after he placed his tarp, bedding, clothing, medication, and toiletries on the sidewalk. He suffers from pneumonia and uses the tarp to stay warm. Also in San Diego, police cited Jeff Hayes for encroachment, even though he had nowhere to store his belongings. Hayes became homeless as a result of suffering from multiple sclerosis, which made it impossible for him to work. He had no criminal record until receiving the encroachment charge. He then missed his court date because he was in the hospital for sepsis. Both Arundel and Hayes are plaintiffs in a federal lawsuit challenging the law. [Lisa Halverstadt / Voice of San Diego]

Living in vehicles

City laws often preclude people from sleeping in their parked cars during certain hours of the night.

Nearly 7,000 people live in their cars in Los Angeles, but the city recently enacted regulations banning parking “for habitation purposes” on residential streets from 9 p.m. to 6 a.m. New ordinances also make it illegal to live in a vehicle parked within a block of schools, daycare facilities, and parks. [Bianca Barragan / Curbed Los Angeles] Santa Monica, Malibu, and Culver City have similar bans in place [Dean Kuiper / LA Mag], as does San Diego. [Mike Madriaga / San Diego Reader]

Food sharing

Controversial city ordinances ban organizations from feeding people in public, claiming that doing so constitutes a public health and safety risk.

Police arrested seven people in Tampa, Florida, for distributing food to homeless people without a permit. Members of the Tampa-based organization Food Not Bombs stated that the arrests prove the city is criminalizing compassion. [Kathryn Varn / Tampa Bay Times]

In response to a hepatitis A outbreak in San Diego, the El Cajon City Council passed an emergency ordinance prohibiting food distribution on any city-owned property. In November, activists handed out 100 bagged lunches, calling the ordinance “a punitive measure to dehumanize and criminalize the homeless.” [Deborah Sullivan Brennan / San Diego Union Tribune] The city finally lifted the ban in late January. [Karen Pearlman / San Diego Union-Tribune]

In Atlanta, on the Sunday before Thanksgiving 2017, two Food Not Bombs activists went to a local park to hand out food to the homeless, as they do every Sunday. But on that day, police ticketed them, citing a rarely enforced law requiring organizations to obtain a permit before distributing food. According to a flier distributed by the Atlanta Department of Public Safety (that cites no actual evidence), enforcement is necessary because “many people become dependent on these activities, leading them to stay on the streets instead of seeking the help and support they truly need.” [Zaid Jilani / The Intercept]

5. Laws criminalizing homelessness make the problem worse.

In addition to being unfair and often inhumane, these laws exacerbate the problems they purport to address.

Individuals who are saddled with criminal records for engaging in survival activities like sleeping on the street face steeper challenges finding jobs, housing, or other benefits like food stamps, thus perpetuating the cycle of homelessness. [Jonathan Hafetz / Fordham Urban Law Journal] Under federal law, people who have spent more than 90 days incarcerated lose their “chronic homelessness” status and are no longer a priority for permanent housing. [International Human Rights Clinic / Yale Law School]

Stay-away orders—often issued alongside tickets for sleeping in public—also keep people from accessing social services that they urgently need. In San Diego, for example, most social service providers are downtown. But police regularly issue stay away orders from these locations to those found sleeping on the street. This means they can’t get food stamps or other assistance without risking arrest. [Lisa Halverstadt / Voice of San Diego]

Similarly, stay-away orders cause people to lose touch with service providers who are helping them find housing. According to one such service provider in Baltimore, when homeless people seeking housing  “are forced out of their (outdoor) home bases and seek refuge in other parts of town, people often lose touch with the points of contact we have for them. Thus, they lose their long-term housing opportunity.” [National Law Center on Homelessness & Poverty / Criminalizing Crisis]

These charges often carry fines that people cannot pay—and unpaid fines eventually lead to jail time. In Dallas, for example, citations for sleeping in public often carry $150-$300 tickets. Most homeless individuals cannot afford these fines, and may, as a result, skip court dates. Many also miss court because they have no address to receive court notices, or because they lack money for transportation. Missing court can lead to arrest warrants, more charges and jail, thus driving them deeper into the criminal justice system. [Stephanie Kao / KERA]

6. Criminalizing homelessness is expensive.

Studies show that it costs more to jail those who are homeless than to provide them with shelter. On average, one day in jail costs $87, whereas a shelter bed costs $28. [International Human Rights Clinic / Yale Law School]

And that, in turn, diverts money from implementing effective solutions. In San Diego, homelessness is a serious problem. But, while officials focus on ticketing and jailing people, they neglect to address the root causes of homelessness, such as an inadequate supply of affordable housing. This negligence was on full display during the hepatitis A outbreak that killed at least 16 people and caused over 400 to get sick. [Parisa Ijadl-Maghsoodl / HuffPost]

7. Criminalizing homelessness may be unconstitutional.

Aside from being counterproductive, there’s ample evidence that criminalizing homelessness violates the Constitution.

The First Amendment

Freedom of Expression: In 2015, in Reed v. Gilbert, the Supreme Court struck down a ban on the public display of signs for religious services, ruling that laws regulating the content of signs are presumptively unconstitutional. Relying on that case, the Seventh Circuit and other federal district courts have struck down panhandling laws in Colorado, Florida, Illinois, and Massachusetts, finding that they impermissibly regulate expressive conduct. [Joe Palazzolo / Wall Street Journal]

Fundamental Right To Travel: In Florida in 1992, a Federal District Court declared Miami’s sit-sleep-lie laws a violation of the right to travel, writing that, “Preventing homeless individuals from performing activities that are ‘necessities of life,’ such as sleeping, in any public place when they have nowhere else to go, effectively penalizes migration.” [Jeff Weinberger / Miami New Times]

The Eighth Amendment

Cruel and Unusual Punishment: In 2006, the Ninth Circuit Court of Appeals struck down Los Angeles’s city ordinance prohibiting sleeping, sitting, or lying on the street at any time of the day. The court ruled that the ordinance unconstitutionally criminalized unavoidable conduct. The city had a major housing shortage and an inadequate supply of shelter beds. Homelessness, the court held, is “a chronic state that may have been acquired ‘innocently or involuntarily.” Thus punishing people for sleeping on the streets—an inevitable consequence—violated the Eighth Amendment. [Theresa Walker / OC Register]

The Fourteenth Amendment

Vagueness: Courts have struck down anti-loitering laws as unconstitutionally vague. For example, in a 1972 Supreme Court decision, the court complained that, because of its unspecific language, an ordinance in Jacksonville, Florida, placed “almost unfettered discretion in the hands of the police.” [Aarian Marshall / City Lab]

Attorneys are challenging San Diego’s encroachment laws, originally enacted to force people to remove trash bins from sidewalks. However, police are using the law to force the homeless to leave public places. Attorneys are arguing that the law is unconstitutionally vague because it provides almost no notice for what is criminal —making it potentially illegal to even place a bag on the sidewalk for just a moment. [Lisa Halverstadt / Voice of San Diego]

Equal Protection: In response to an “emergency” homeless street sweep of encampments, the ACLU of Indiana recently filed a lawsuit against the city of Indianapolis. The lawsuit alleges that the city targets homeless people while exempting others, raising due process and equal protection concerns. [Fatima Hussein & Maureen Gilmer / Indianapolis Star]

8. Prosecutors and state legislators can choose to stop criminalizing homelessness.

Prosecutors can refuse to charge for violations of laws that specifically target the homeless population, like bans on camping and panhandling. [Violeta Chapin / The Appeal] In Spokane, Washington, for example, the city and district attorneys have embraced initiatives to dismiss citations for offenses that homeless people incur when engaging in life-sustaining activities in exchange for commitments to utilize housing and social services. [Rachel Alexander / The Spokesman-Review]

Prosecutors can side with those challenging the constitutionality of laws criminalizing homelessness. In 2015, the Department of Justice filed a “statement of interest” arguing that Idaho’s laws criminalizing sleeping in public were unconstitutional. “It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. … If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.” [Harrison Berry / Boise Weekly]

Prosecutors can also champion homeless courts and diversion programs, which allow people to avoid criminal charges after taking life-skills classes or signing up for social services. In Seattle and Santa Fe, officials have implemented a Law Enforcement Assisted Diversion (LEAD) program that places people in treatment programs pre-arrest. [Carlos Andres Lopez / Seattle Times]

Prosecutors can agree to dismiss outstanding warrants for unpaid fines and quality-of-life offenses. In Los Angeles, in 2015, the city attorney agreed to do just that if people accepted social services, job training, and drug and alcohol treatment. His office put together clinics to help the homeless population participate. [Gale Holland / Los Angeles Times]

The most straightforward path to ending the criminalization of homelessness runs through state legislatures. State and local officials should refrain from passing new laws that target homeless individuals, and they should repeal existing laws that criminalize life-sustaining and necessary behaviors. [Yale Law School Allard K. Lowenstein International Human Rights Clinic / “Forced Into Breaking the Law”]

Bail Reform: Explained

Illustration by Hisashi Okawa

Bail Reform: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In San Francisco, 64-year-old Kenneth Humphrey spent a year in jail, held on a $350,000 bond he could not pay, after being accused of entering a man’s home and stealing $7 and a bottle of cologne. In setting Humphrey’s bail amount, the trial court made no inquiry into his ability to pay or any alternatives to cash bail, but instead relied on California’s preset bail schedules.

In January, he experienced hope after the California Court of Appeals granted him a new bail hearing and ordered the judge must consider Humphrey’s ability to pay. In powerful language, the court wrote: “[T]he problem this case presents does not result from the sudden application of a new and unexpected judicial duty. … [I]t stems instead from the enduring unwillingness of our society, including the courts . . . to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”

The California attorney general promised not to appeal the ruling, but the San Francisco district attorney’s office at first delayed Mr. Humphrey’s bail hearing, arguing that the lower court lacked jurisdiction until the higher court certified the opinion. “Just because the attorney general is not seeking review doesn’t mean that the Supreme Court won’t decide to review on its own.” And in fact, it decided to do just that in Mayjust weeks after a judge finally agreed to Humphrey’s release.

As many as 500,000 people are held around the country in local jails because of their inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge, frequently based on a preset bail schedule, and not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, he or she remains locked up until his or her case resolves through a plea, until trial is over, or until bail is paid. This can range from days to years.

1. What we know about bail

Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]

Often, those being held on bail have simply been accused of low-level offenses. Seventy-five percent of pretrial detainees have been charged with only drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]

Being jailed pretrial has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]

A study out of Kentucky found that people who are held because they cannot afford bail are 40 percent more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]

We also know that people are more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute]

One study suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]

Similarly, a study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]

Meanwhile, there are costs to taxpayers as well. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]

2. The Role of the Bail Industry

In states and cities that want to reform their use of bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.

Money bail has been taken over by private companies that make profits from those who cannot afford it. Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Ella Baker Center / Who Pays?] Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]

There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them to oppose bail reform. Duane Chapman, star of the reality television series “Dog the Bounty Hunter,” has sat in the front row staring down lawmakers contemplating striking down monetary bail. [Jazmine Ullola / L0s Angeles Times]

Bail bond companies regularly give campaign contributions to prosecutors. Eric Gonzalez, the Brooklyn DA often thought of as a progressive, accepted such contributions. After the media found out about it, he gave the money back. [Carimah Townes / The Appeal] Dallas District Attorney Faith Johnson similarly received $5,385 from 13 bail bond companies and the Texas Bail PAC.

3. A Growing Consensus That America’s Bail System is Broken

A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.

The public wants to see change. In Arizona, a poll conducted by the state’s Supreme Court found that two-thirds of those surveyed thought that only those who are a safety risk or unlikely to appear in court should be held for failure to pay bail. [Andrea Kelly / Arizona Public Media]

Eliminating cash bail also has wide support among law enforcement, like Cook County Sheriff Tom Dart and victims’-rights groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]

And it has bipartisan support. Conservative groups are demanding change to the cash bail system. In Ohio, for example, the conservative Buckeye Institute released a report calling the state’s cash bail system an “inefficient, expensive, unfair means of protecting communities that has proven no guarantee to stopping repeat offenders.” [Peter Krouse /]

Judges are also calling for reform to the bail system, including California’s Chief Justice Tani Cantil-Sakauye and former New York Chief Judge Jonathan Lippman. [Jonathan Lippman / Washington Post]

And celebrities are spreading the word. Athletes like Malcolm Jenkins and Anquan Boldin are advocating against money bail. [Malcolm Jenkins & Anquan Boldin / The Appeal]

And so are musicians like Common and Jay Z. [Shawn Carter / Time]

Two video clips, one from John Oliver’s show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system.

[Last Week Tonight With John Oliver]

[Debunking Common Bail Myths / Brave New Films]

4. The Role of Prosecutors

Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early, and establish a presumption of recommending release. [Casey Tolan / Slate]

Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “publicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, executive director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]

In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]

Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] More than 60 prosecutors from around the country, including Kim Foxx, George Gascon, and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]

The California attorney general also wrote a brief supporting the elimination of the cash bail system in California. [Brief]

In February 2018, newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses. [Alec Ward / Reason]

During the primary in Bexar County, Texas,  Democratic candidate Joe Gonzales stressed the need to reform cash bail and “even the scales of justice” “so that people who commit minor offenses don’t stay in jail because they don’t have enough money to post bond.” He handily beat incumbent Nico LaHood in the primary. [Elizabeth Zavala / My San Antonio] Interim Contra Costa District Attorney Diana Becton has also expressed support for bail reform. [Sukey Lewis / KQED]

5. Bail Funds Make a Difference

While not a long-term solution, bail funds provide a short-term are helping to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]

On Mother’s Day 2017 and 2018, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail] Similar bailouts are happening around the country. [Bryce Covert/The Appeal]

The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Bond Fund]

Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [Sept. 20, 2017 Edition / The Appeal Newsletter]

6. Courts are Taking Action

Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states. State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor.

On Jan. 21, 2018, civil rights groups sued Dallas County, alleging state and U.S. constitutional violations in its cash bail system. According to the complaint, Dallas County operates a two-tiered system in which poor defendants are detained indefinitely while wealthy defendants purchase their freedom pretrial. [Jolie McCullough / Texas Tribune] One of the plaintiffs is Shannon Daves, a 47-year-old homeless woman who the county held in solitary confinement because she could not afford the $500 bail set on her misdemeanor case. [C.J. Ciaramella / Reason]

In Dutchess County, New York, one judge became impatient with the protracted bail reform process and issued a scathing opinion attacking the money bail system. Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. A lower court judge ordered his bail set at $5,000, nearly half his annual income. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. After Kunkeli’s release, the New York Civil Liberties Union filed a lawsuit on his behalf, contesting the court’s practice of setting bail without considering a defendant’s ability to pay. On Jan. 31, 2018, Justice Maria Rosa ruled that this system violates the Constitution’s due process and equal protection clauses. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent. [Alan Feuer / New York Times]

In April 2017, a federal judge put a pause on Houston’s use of its bail system, which it considered probably unconstitutional. [ODonnell v. Harris County] Prior to the 2016 filing, Harris County routinely jailed people for failure to pay bail on misdemeanors like driving without a license. [Federal Judge Strikes Down Houston-Area Bail System / Courthouse News Service] [New York Times / Michael Hardy] The Fifth Circuit largely upheld this decision, recognizing the two-tiered system of justice in Houston, although it allowed the county to take up to 48 hours after the arrest to provide the defendants with a hearing. [Jollie McCullough / Texas Tribune]

In June 2017, a Cook County judge issued an order requiring Chicago judges to consider a defendant’s ability to pay before setting bail. [Richard Oppel / New York Times] [Circuit Court of Cook County]

Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia, as unconstitutional. [Jon Schuppe / NBC] The Department of Justice under President Barack Obama filed a brief in the case supporting the elimination of money bail. [Pete Williams / NBC] A similar lawsuit is pending in Alabama. [Amy Yurkanin /] And lawsuits have also been filed in Tennessee, Florida, and New York.

Officials in Nashville are contemplating significant changes after the nonprofit law firm Civil Rights Corps threatened to sue over its bail system. A group of judges, public defenders, and district attorneys is putting together a proposed plan to minimize cash bail, with the aim of starting reforms in March. [Adam Tamburin / The Tennessean]

In Massachusetts last August, the Supreme Judicial Court ruled that judges must consider a defendant’s inability to pay when setting bail. And when the judge sets an unaffordable cash bail that will result in extended pretrial detention, he must issue written or orally recorded findings of fact. [Bob Oaks / WBUR]

7. The Future of Bail Reform

State and federal lawmakers are debating legislation to eliminate or reduce the use of cash bail.

Alaska, a largely Republican “tough on crime” state, drastically curtailed cash bail. The new law, which took effect on Jan. 1, 2018, sought to stave off the rapid increase in the state’s incarcerated population, which grew by 27 percent between 2005 and 2014. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released. The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision. The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release. [Bryce Covert / The Appeal]

With the backing of Atlanta Mayor Keisha Bottoms (who was pushed by civil rights groups and grassroots advocates), the City Council approved an ordinance in February 2018 to eliminate the cash bail requirement in municipal court for nonviolent misdemeanor charges or city ordinance violations. [Rhonda Cook / Atlanta Journal-Constitution]

On Feb. 1, 2018, the Philadelphia City Council unanimously passed a nonbinding resolution urging the DA, the state legislature, and state Supreme Court to reduce their reliance on cash bail. In a city where one-third of all defendants are incarcerated because they cannot afford bail,  these reforms could have far-reaching implications for Philadelphia’s criminal justice system. The city’s DA, Larry Krasner, has already articulated plans to cease requesting cash bail for certain offenses. [Teresa Mathew / CityLab]

In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams] New Jersey ended its cash bail system in 2014. [Reason / Scott Shackford]

Washington, D.C. largely eliminated cash bail in 1992, and now holds only those defendants deemed too dangerous to release. About 90 percent appear for their court dates. The Washington Post’s editorial board explained that although revamping pretrial release systems that rely on cash bail may involve upfront costs, it is a worthwhile and necessary investment. “In the longer term,” the editorial stated, “bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]

In Ohio, two Republican state legislators introduced a bail reform bill in December of 2017. The bill would require judges to use validated risk-assessment tools when setting bail — a practice that occurs already in some but not all parts of the state. The bill is supported by the conservative Buckeye Institute’s Legal Center. [Peter Krouse /] The ACLU has described the bill as an important first step, but has warned that more robust change is necessary to deprioritize cash bail and ensure that defendants have due process protections and the assistance of counsel at bail hearings. [Caitlin Hill /]

Also in 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pretrial detention. [Nick Wing / Huffington Post]

In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / The Appeal]

In August 2017, the policy-making body of the American Bar Association approved a resolution that “urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]

High Schooler Faced 25 Years on the Sex Offender Registry–For Engaging In Oral Sex

At a Pennsylvania school, an 18-year-old female student was arrested for a consensual sexual act with a 16-year-old boy.

High Schooler Faced 25 Years on the Sex Offender Registry–For Engaging In Oral Sex

At a Pennsylvania school, an 18-year-old female student was arrested for a consensual sexual act with a 16-year-old boy.

In February, 18-year-old Mariea Starr, a senior at Waynesboro Area Senior High School in Waynesboro, Pennsylvania, faced a terrifying, life-altering punishment: the possibility of 25 years on the sex offender registry.

But the offense in question was not a sexual assault or the molestation of a child; instead, it stemmed from a Dec. 7 incident in which Starr was caught by another student allegedly performing oral sex on a boy in a school stairwell.

A female student told the school’s assistant principal that she witnessed Starr getting up from her knees in the stairwell while the boy quickly pulled up his pants, according to an affidavit of probable cause filed by Officer Matthew Gordon of the Waynesboro Area School District Police.

Because Starr had turned 18 two months before the incident and the boy she allegedly engaged in oral sex with, while also a high-school student, was a minor, Starr was charged with misdemeanor open lewdness and felony unlawful contact with minors which carries a Tier II sex offender designation.

Tier II sex offenders are considered a moderate risk of reoffending but are nonetheless subject to registration requirements for 25 years, including being photographed by Pennsylvania State Police twice a year.

While statutory sexual assault in Pennsylvania requires the victim to be under 16 years old and that there be more than a four-year age difference between the victim and the defendant, the charge of unlawful contact with minors stipliates only that the defendant be 18 years or older and the victim be under 18.

Gordon brought the case without oversight from the district attorney’s office or school district administration because in Pennsylvania some school police officers can file criminal charges through a magisterial district judge without DA review. The magisterial district judge holds a preliminary arraignment, where bail is set, and a preliminary hearing to determine if there is enough evidence to proceed to the trial court level.

District attorneys prosecute these cases but are not required to take part in them until they reach the trial court level.

The point at which the district attorney gets involved depends on the charges and procedures set up by individual Pennsylvania counties.

Franklin County District Attorney Matthew Fogal told The Appeal that his office did not review Starr’s case until the preliminary hearing in March.

Furthermore, no one in the school district has the duty to review the possible penalties against students like Starr and make the decision to either support the student or approve the charges, according to Waynesboro Area School District Superintendent Todd Kline.

On April 11, however, Fogal reduced the charges against Starr to open lewdness. She was sentenced to 12 months’ probation and will not be placed on the registry.

Nonetheless, Starr will graduate from high school with a criminal record, which will significantly affect her educational and job opportunities. If she applies to college, Starr will have to disclose her conviction on her college application and will compete against students without a conviction. Her criminal conviction may also limit her ability to receive student financial aid. Students with a misdemeanor or felony conviction may be barred from receiving financial aid administered through the Pennsylvania Higher Education Assistance Administration, according to the National Inventory of the Collateral Consequences of Conviction. And when she enters the job market, Starr will be in the running against applicants who do not have a criminal record.

Starr is far from the only student that Gordon, the school police officer, has sent into the criminal justice system.

More than 70 student arrests have been made since Gordon’s tenure began in 2014, according to annual safety reports filed the district with the Pennsylvania Department of Education.

The likelihood that a disciplinary incident would result in an arrest or a referral to law enforcement increased roughly 21 percent in Gordon’s first three years as an officer compared to the three years before he began the job, safety reports show.

In 2016, Gordon, a retired Pennsylvania State Police trooper, filed misdemeanor forgery charges against two students for simply providing fake doctors notes to excuse their absence from school.

In one case, the student confessed to faking the notes before the end of the school year, but Gordon waited until after the student graduated to file charges.

Gordon also charged two students with possessing weapons on school grounds.

In both cases, however, a knife was found secured inside a vehicle on school grounds. There is no court record indicating that the students attempted to bring a weapon into the school, brandished it on school grounds or attempted to assault another student with a weapon.

In the most recent weapons possession case, the student told Gordon that he had been working on his vehicle but forgot to remove the knife before coming to school, according to an affidavit of probable cause filed by Gordon.

The Waynesboro school district created its own police in 2014 in a 5-4 vote, according to school board meeting minutes.

In a petition to form its police department, the district stated it needed a police officer to “protect the students, staff, and property … and maintain an orderly and safe learning environment.”

But annual safety reports, which date back to the 1999-2000 school year, show that there have been only two reported incidents where a firearm was brought on school grounds. And the district has never been involved in a school shooting situation.

One board member who voted against the measure argued it would lead to more criminal charges against students while another said she felt the district was treating students “like criminals,” according to the Herald-Mail.

“There is nothing that shows [police in schools] makes students safer,” Barbara Fedders, assistant professor at the University of North Carolina School of Law, told The Appeal.

Fedders cited research by Jason Nance, a University of Florida Levin College of Law associate professor, that found that when police are present in school, disciplinary issues are much more likely to be referred to law enforcement instead of being handled internally. For example, 19 percent of attacks Nance reviewed in schools without a police officer were referred to law enforcement compared to 50 percent in schools with an officer.

In his paper “Students, Police, and the School-to-Prison Pipeline,” Nance pointed to evidence that police officers in schools can actually lead to more students feeling alienated, which can create distrust and in turn more disorder and violence.

“I worry that putting police in schools is going to seem like the moderate solution as we talk about things like arming teachers” in the wake of school shootings, Fedders said.

Indeed, the rate of student disciplinary incidents has increased since officer Gordon was hired in 2014, according to the annual safety reports. Twenty times as many students were issued citations and five times as many students received a probation sentence for incidents at the school district during the 2016-17 school year compared to the year before Gordon was hired, according to annual reports filed the district with the Pennsylvania Department of Education.

This means that, along with a diploma, dozens of students will carry a criminal record with them as they graduate from high school.

‘Whores Will Rise’

As part of International Whores' Day, hundreds gathered in New York City to protest new anti-sex work laws.

Dominique, part of the sex worker mutual care fund Lysistrata, speaking at International Whores Day, New York
Photo by the author

‘Whores Will Rise’

As part of International Whores' Day, hundreds gathered in New York City to protest new anti-sex work laws.

Hundreds of sex workers and their supporters spilled into the streets around the historic Stonewall Inn on Saturday demanding an end to laws that endanger them. The New York City protest was part of International Whores’ Day (IWD), marking the anniversary of sex workers’ occupation of churches throughout France in 1975 in opposition to anti-prostitution policing. This year, the day took on new urgency with the passage of SESTA/FOSTA, a federal measure targeting online sex work signed into law by President Trump in April that has also galvanized sex workers across the United States. Spirited IWD protests were seen in cities including Chicago, Oakland, Washington, D.C., and Minneapolis.

Since the passage of SESTA/FOSTA this spring, sex workers have reported an increase in encounters with abusive clients and with law enforcement, the result, they say, of the websites on which they advertise their services—like Cityvibe and Craigslist’s personals section— going offline due to fear of prosecution. In addition to losing their advertisements, online forums which sex workers relied on to share information about safer sex work and dangerous clients have explicitly barred sex workers in the United States, or simply disappeared. SESTA/FOSTA has pushed online sex work further to the margins, making it much more dangerous; one sign, hoisted by a demonstrator in a black ski mask and pale pink sunglasses read, “FOSTA has a bodycount.”

The New York protest began with a march from Stonewall and ended with a raucous rally in Washington Square Park, one of the largest sex workers’ rights demonstrations ever held in the United States. Many of the speakers acknowledged those they already lost—long before SESTA/FOSTA—to violence. “I was crying back here because I have buried so many children. I’ve seen so many girls get murdered,” said Ceyenne Doroshow, the founder and director of GLITS, a New York City-based organization led by and supporting transgender sex workers. Earlier this year, Doroshow defended herself from a man she said attacked her, and then she had to fight criminal charges brought against her by the Queens district attorney as a result of the incident. Even after her attorney presented detailed accounts of abuse, as The Appeal reported, the DA refused to dismiss the case outright. To those gathered in Saturday’s searing heat to protest SESTA/FOSTA, Doroshow proclaimed, “Before I did this, I was a ho. I will always be a ho!” There were cheers and applause. “I’m gonna survive. You’re gonna survive.”

The protest was organized in part by sex workers’ rights activists campaigning as Survivors Against SESTA, formed this winter, who helped make the legislation a national issue. One Survivors Against SESTA activist, who did not use a name because she fears for her safety, addressed the rally, at that point around 400 strong. They repeated her words, loudly and in unison, to better amplify them across the protest. “I stand in awe of our resilience,” she said. “Last week, my friend was assaulted by a new client she was unable to screen, after FOSTA. … Legislators know they are killing us. In private conversations they say, we understand. But when it’s time to vote, they conveniently forget.”

Protestors at International Whores Day march from Stonewall to Washington Square Park, International Whores Day, New York
Photo by the author

To directly assist those who are struggling with a loss of income in the wake of SESTA/FOSTA, sex workers have raised funds for and from each other. Dominique, who helps run the sex worker mutual care fund Lysistrata, explained that the funds empower sex workers to refuse risky work. “It is downright nauseating,” said Dominique, “to see our mutual care fund strained and our members facing ever-magnifying physical and financial stress after the passage of SESTA/FOSTA while millions pour into the coffers of anti-prostitution organizations…. Let me make this abundantly clear, sex work is work!… It is an industry not of victims, and not even an industry of necessarily happy hookers—and that is okay.”

One of SESTA/FOSTA’s most vocal supporters in Congress, Representative Carolyn Maloney of New York, now faces a Democratic primary challenge from Suraj Patel, who attended the protest and urges the repeal of SESTA/FOSTA. “I implore our representatives, current and new—potentially,” said Dominique, “to cast off your old tired ethics!” (This was a reference to one of the first U.S. sex workers’ rights organizations, COYOTE, formed in 1973, and whose name was an acronym for those same words.)

Campaigns like Survivors Against SESTA are new, but the demands they made are decades old. Survivors Against SESTA timed its actions with International Whores’ Day, a day of celebration and protest that honors the sex workers who occupied churches in five French cities, beginning with Lyon on June 2, 1975, to protest anti-prostitution policing. When police moved in to remove them, the interior minister—who was also the head of police—claimed their protests were a front for those who profit from the “white-slave trade.”

Such attempts to link sex work to sexual slavery live on: They were central to the passage of SESTA/FOSTA, which was described by supporters as a means to save women and girls from being sold for sex or from being trafficked by threatening legal action against the websites where ads for sex work appeared. Yet some anti-trafficking organizations, including the nation’s largest network of anti-trafficking service providers, joined sex workers in opposition to SESTA/FOSTA, on the grounds that it would increase danger in the sex trade while doing little to protect people from trafficking. One sign seen at Saturday’s protest reflected the unity between sex workers and trafficking survivors on SESTA/FOSTA: “We can all be safe. Let sex workers and sex trafficking survivors live.”

As the rally occupied the space surrounding Washington Square Park’s arch, protestors learned that across the river in Brooklyn, one New York woman working to change anti-sex work laws sat in jail. Tiffaney Grissom said that the previous night she was in the Brooklyn neighborhood of Bushwick, and at about 4 a.m. she was arrested and charged with “loitering for the purposes of prostitution.” Grissom, who is Black and trans, is also a plaintiff on a class action suit challenging this law, charging it is unconstitutional and that the New York Police Department enforce it disproportionately against Black and Latinx women.

Sixteen hours later, Grissom was still waiting for her court appearance. When I met her in 2016, she told me she had engaged in sex work sometimes, but most of the time that she was charged with loitering she was just hanging out. “It’s a way to arrest a lot of people for nothing,” said Cynthia H. Conti-Cook, a staff attorney at The Legal Aid Society, who is involved in bringing the class action suit against the loitering law and who Grissom called after her Saturday arrest.  “It seemed like an easy arrest,” Grissom told The Appeal just outside the Brooklyn court where she was released just before 9 p.m. on Saturday. “I don’t need to have to prove myself as to why I’m outside, or defend myself for being outside.”

Though SESTA/FOSTA is what drove hundreds of sex workers and supporters to Washington Square Park on Saturday, it is just one of many U.S. laws criminalizing sex workers not only for their work, or the right to be in public, but for their survival. Near the rally’s close, the words of Alisha Walker, an incarcerated sex worker, were heard. In 2016, Walker, a Black woman in her 20s, was convicted in Cook County, Illinois, of second-degree murder and sentenced to 15 years in prison for defending herself against a client who demanded unprotected sex and then attacked her and a co-worker. One of the Survivors Against SESTA organizers, Red, is part of the Justice for Alisha Walker defense campaign, and shared Alisha’s statement for International Whores’ Day at the rally. Red asked the crowd again to repeat Alisha’s words so that even those crowding the edges of the rally could make them out.  “Why is everyone scared of whores?” asked Alisha, through Red. “Well, shit. Maybe they should be.” The crowd roared, then repeated along: “Whores. Will. Rise.”

We’ve been fighting the drug war for 50 years. So why aren’t we winning?

A new paper argues that President Johnson’s 1967 Commission on Law Enforcement’s report on the subject was “decades ahead of its time.”

Activists rally during a protest denouncing the city's 'inadequate and wrongheaded response' to the overdose crisis, outside of the New York City Police Department headquarters.
Illustration by Anagraph / Photo: Drew Angerer/Getty

We’ve been fighting the drug war for 50 years. So why aren’t we winning?

A new paper argues that President Johnson’s 1967 Commission on Law Enforcement’s report on the subject was “decades ahead of its time.”

From the ’80s and into the aughts, “drugsandcrime” was one word for politicians. Drugs followed crime, or vice versa, and drug use was rarely discussed as anything other than a menace: “Public Enemy No. 1.” Thanks to an unprecedented uptick in overdose deaths initially affecting white people, that get-tough rhetoric has begun to soften. President Trump has declared the overdose crisis a national public health emergency.

But he isn’t the first president to see it that way. Before Presidents Ronald Reagan and George H.W. Bush turned drugs into a signifier of urban decay, and before Nixon launched his “War on Drugs,” President Lyndon B. Johnson in 1965 assigned James Vorenberg, future assistant to Watergate special prosecutor Archibald Cox, to lead more than a dozen legal experts and scholars to examine “every facet of crime and law enforcement in America.” Far from a cohesive system, little was known about how the fragmented patchwork of “law and order” actually worked. Among other accomplishments, the task force helped establish 911 dispatch services across the United States and a procedure governing the treatment of suspects after arrest.

But there was also a short and obscure chapter in the Commission on Law Enforcement’s 1967 report, titled “Narcotics and Drug Abuse” that addressed both the causes and ramifications of illicit substance use. The commission was “decades ahead of its time” on the topic of drugs, Bryce Pardo and Peter Reuter write in “Narcotics and Drug Abuse: Foreshadowing 50 Years of Change,” their paper in the journal Criminology & Public Policy.

The authors, drug policy researchers at the University of Maryland, analyzed the commission’s chapter on drugs—now over 50 years old—with fresh eyes and new knowledge. The Appeal caught up with Pardo to discuss contemporary drug policy, including the use of harsh criminal penalties, the new difficulties posed by illicit fentanyl, and alternatives to prohibition gaining political momentum. Below is an interview edited for length and clarity.

You write that the Johnson administration’s Commission on Law Enforcement was “decades ahead of its time.” What did they get right about law enforcement’s role in drug control back then?

Bryce Pardo: I was really shocked by how they recognized the limits of drug law enforcement. They said even complete control, complete enforcement, won’t eradicate this problem. But they failed to foresee the negative impacts law enforcement could have in policing urban communities of color, and other harm-enhancing aspects of law enforcement.

They were also fairly forward-thinking when it came to [methadone] maintenance therapy. They discussed how we needed to have more research in maintenance therapy, and how the regulations with regard to the Harrison Act [a 1914 federal law that regulated and taxed opiates and coca products] were confusing and limited options for drug users when it came to treating their drug use.

They saw demand reduction as a useful tool to reduce crime. And I think having a law enforcement agency say that today would be shocking to hear, from say, the DEA or something like that. I was surprised to hear that from the ’67 report, coming from the kind of drug war era of the ’80s that I remember. The show Cops on TV, that’s what I grew up with, and to go from that to a commission 30 years before talking about how we need to expand maintenance therapies—that just really struck me as as very forward-thinking.

What derailed the forward thinking in the 1967 report? If the seeds for medical treatment were sprouting back then, why did the drug warriors eventually win out?

If you think about the drug war in terms of today, where you have GIs in SWAT gear kicking down doors and arresting drug dealers in their houses, that was really part of Reagan’s initiative, starting in the early ’80s. Even though Nixon was the first to declare the War on Drugs, he was more comprehensive in his approach, by advocating for methadone and other treatment modalities, along with supply-side interventions.

Cocaine came on the scene and really took off. And dealing with cocaine is just different than heroin. You don’t have any medication; there is nothing you can give a drug user who is addicted to cocaine. When you have new forms of drug use, like freebasing or smokeable cocaine, which hit you harder through that route of administration, it really scared a lot of people and the response was to crack the whip.

It does seem that the orientation of the policy is that, we’re just going to shift the market out of sheer will. They came from kind of a post-lunar landing American phenomenon where if we can put a man on the moon, we can eradicate drugs. You had this emphasis on creating a “drug-free America.” That brought us “Just Say No!” and these kinds of platitudes. Mothers Against Drunk Driving, which Reagan really latched onto, also promoted looking at drugs as a moral failing.

Despite changes in rhetoric, America’s response to illicit drug use still focuses on arrests for nonviolent drug crimes. And many of these arrests are for simple possession. Do you think that this strategy has value?

Arresting drug users doesn’t make sense unless their drug use has become a problem. Arresting a repeat DUI offender or somebody who has broken into a home to pay for his or her habit—there are programs that we could employ that do use the criminal justice system in a more appropriate fashion.

There’s the Swift, Certain, and Fair sanctions or the HOPE (Hawaii’s Opportunity Probation With Enforcement) model. Those types of programs may work. But ideally we’re not arresting the individual for his or her drug use, it’s the actions related to his or her drug use. Clearly, [in those cases] their use of substances has spilled over into problematic territory. They’re committing crimes to pay for their habit, or they’re not using responsibly and they’re engaging in risky behavior in public and putting other people’s lives at risk. So those are when you might step in and use corrective measures.

But, by and large, you’re going to find very few people in the drug policy community who think arresting people for simple possession is a reasonable approach to our drug problem.

Today, police officers, prosecutors, and politicians often say, “We can’t arrest our way out of the overdose crisis.” But I’ve reported on several cases where a drug user gave a friend a bag and then is charged with manslaughter or murder when that friend overdoses. That’s a very harsh response.

I remember the “we can’t arrest our way out of this problem” taking steam with Obama’s first drug czar. Gil Kerlikowske, former chief of police in Seattle, said this during [President Barack] Obama’s first term. That started to shift the rhetoric at the federal level where people started to realize that we need to do something else.

Evelyn Milan rallies with activists during a protest to denounce the city's 'inadequate and wrongheaded response' to the overdose crisis, outside of the New York City Police Department headquarters.
Illustration by Anagraph / Photo: Drew Angerer/Getty

There’s a signaling effect at the federal level saying we need to do something different. But when it comes to the actual application of the law, most of it happens at the state level. So getting state prosecutors to not charge a user for “social supply” when that individual and his friend or her friend overdoses would be a good step in the right direction. But you’d have to get local prosecutors to buy into that. So they might not hear that message for a while. Now with the new administration kind of shifting the rhetoric back in the other direction, it’s kind of scary because you could have a signaling effect in the other direction.

Do you think the shift in rhetoric, like Trump calling for the death penalty for dealers, is going ramp up harsher enforcement?

Right now, yes. The federal government has a role in terms of kind of framing the debate. After the initiation of the War on Drugs, some say that we had a retreat initiated under Obama. They came out with the Cole Memo, saying we’re not going to crack down on states that are legalizing cannabis for recreational purposes.

The signaling effect has an impact on local jurisdictions and after the Cole Memo came out, you saw more jurisdictions saying we could legalize for recreational purposes. I do think that the shift of the tone away from the criminal justice system for drug users was positive under Obama.

The idea of increasing fentanyl penalties was tossed around prior to Trump—in California and Massachusetts. Some of these include lowering the threshold that trip mandatory minimums for fentanyl. But now some prosecutors are more willing to charge dealers with homicide when an overdose occurs.

DAs and prosecutors, in a lot of cases, are elected. Again, there is this political push to look like you’re doing something about the problem. If there’s a problem with drugs in your community and you’re charging, it looks like you’re doing something versus if you’re not charging them.

What do you think of the recommendations released by President Trump’s commission on opioids?

The recommendations were fine. They were pretty boilerplate. I have commented amongst my colleagues saying that they don’t look at fentanyl very closely. They still see the crisis as a prescription drug problem. It’s true that we need to turn off the tap, and we are doing that with the new prescription guidelines, prescription drug monitoring programs, and with abuse deterrent formulations. But doing that could cause other problems, and it seems to be that it is impacting users’ decisions to move to the illicit market.

However, in this report, they had an opportunity to look at innovative drug policies that focus on synthetic opioids and there’s pretty much zero in there. They do talk about creating new antagonist therapies—stronger naloxone—so that we can save people’s lives who are overdosing on fentanyl. Sure, fine, that’s great. But there’s no innovative approach trying to prevent the overdose from even occurring: looking at supervised consumption sites, heroin-assisted therapy, those types of innovative programs that specifically target the threat from the potency of fentanyl.

They do talk about increased interdiction and detection measures. But, by and large, they missed the mark when it comes to thinking forward about the problem.

Has anything like illicit fentanyl come on the scene before? Have police ever faced a sudden outbreak as big as this?

To this extent? No. Illicit fentanyl and analogs have been around in isolated incidents as far back as 1980. A few analogs would show up in markets, and nobody would know what was going on until they tested the drugs. Transdermal patches were invented in the ’90s, and you’d have diverted transdermal patches where people would suck out the liquid.

Fentanyl had a real big kick in 2006, when a lab in Mexico was producing it and mixing it with heroin. There were a couple of markets in Chicago, Detroit, and a few other places in the Midwest that were hit hard by that. The DEA [Drug Enforcement Administration] and CDC [Centers for Disease Control and Prevention] came on real quick and expanded access to naloxone, and the DEA actually did a very good job of shutting down a lab right away.

We haven’t seen a crisis to this extent, where you have drug users looking for traditional drugs like heroin, or in the case of Prince, who’s looking for Vicodin, and getting something that’s orders of magnitude more potent. I don’t think that that has happened, where the users are buying something that’s more harmful and not wanting it. They want what they’re traditionally used to. And it’s happening on such a wide scale.

What I can say, though, is that usually these markets don’t come back down to where they were before. We used to have a morphine problem and then we had a heroin problem. We’re going to be [stuck] with the fentanyl problem, at least in the short term. And that’s really scary.

A study recently came out of Rhode Island, where they found that treating opioid addiction with medications in jail and prisons made a significant dent in the overdose rate. From your perspective, why doesn’t every single jail or prison offer these medications? What’s the barrier here?

My guess is social attitudes. People look at these medications as though you’re trading one addiction for another. If you want to force people into abstinence, it’s probably not going to work. You need to meet their needs. If they get their quality of life back using Suboxone or methadone, who gives a shit? But I think for a lot of people, that’s a hard pill to swallow.

I was really shocked to find out a couple of months ago that states like Indiana and West Virginia have moratoriums [making it harder to license] new opioid therapy providers, and it’s like, why are you fighting this problem with your hands tied behind your back? It’s crazy. You should be licensing as many providers as you can.

Again, it’s social attitudes. The states that are having the biggest problem will probably continue to have the biggest problem until they change the way they think about drug abuse and drug addiction.

There’s obviously a lot of talk about opioids. Maybe too much. You write in the paper that alcohol was curiously left out of the chapter on drugs in 1967, and specifically the way alcohol is connected to violence. Alcohol today kills way more people than opioids. Are we not focusing enough on that?

Absolutely. We are still having a huge problem with alcohol. Alcohol is a factor in an estimated one-third of violent crime, guns, and alcohol-related arrests or violations. Not an insubstantial number of police service calls are due to alcohol, domestic violence, drunk-and-disorderlies or DUIs.

We still have a problem with alcohol, and we’re probably going to have more of a problem now that we’ve reduced taxes. The tax cut law that was passed last year also cut taxes on alcohol. Phil Cook at Duke has been clamoring for increasing taxes. There are projections that if you double the tax, the number of [drunken driving] deaths would drop by more than a third.

I do think the alcohol problem is often overlooked because it’s licit, and because there is a broad user base. Most alcohol users use responsibly, and most drug users use responsibly, too. But most alcohol users are infrequent, and they don’t see any problem in their own social setting, which is fairly safe. So they don’t see any need to increase taxes, and the industry is very strong and protective about not increasing taxes and regulations.

The War on Drugs has been disproportionately waged in minority communities, even though there’s zero evidence that people of color do more drugs than white people. You write that aggressive law enforcement has contributed to a “deterioration in state-community relationships.” What changes need to happen here?

There’s creative solutions to some of these problems. You have people who say legalize everything, and that would solve that problem. But in some instances, it would create problems elsewhere. If we’re not going to legalize, there’s a middling approach, which would be to improve the way we do policing such that it’s more community-oriented. Instead of looking at policing as an occupation, police need to look at it as more of a service that they’re providing. A lot of the rhetoric has changed and a lot of the training has changed.

There’s a lot of room to go. Police are still very quick to the draw. And I think the drug war and the emphasis on SWAT tactics has had a huge negative effect on the way police look at the policed. They look at [the policed] as a potential threat rather than a client. The opioid problem, in some instances, has changed this. Now, police are requested to administer naloxone to overdoses. I’ve heard stories of police being horrible about it and reluctant to do it.

Students learn to put together a Naloxone spray gun in a class on opioid overdose prevention held by non-profit Positive Health Project in New York City.
Illustration by Anagraph / Photo: Spencer Platt/Getty

You see that some local jurisdictions are starting to change their tune. Vancouver Police Department has very forward thinking when it comes to harm reduction. They now look at Insite [supervised consumption sites] as part of the package. They request politely for drug users to go and use over there, to spare the public from witnessing public consumption. Nobody wants to see people injecting in the street. Vancouver PD has also been very forward-thinking when it comes to offering alternative agonist therapies. They did a report a year or two ago that said outright that we should try heroin-assisted therapy, which was remarkable for a police department in North America to say.

What are some of the most exciting alternatives to drug prohibition that you have your eyes on?

Part of the problem is that there’s a false dichotomy presented to people, which is legalize or prohibit. And there’s a lot of options in between. A few years ago, Rand put out a report about cannabis in Vermont. They proposed 12 different cannabis policies you could choose from. You can increase prohibition and crack down even more [or you can have] a fully unregulated free market. And between that, they have policies like what we have here in D.C., which is “grow and give.” You’re allowed to grow six plants in your home and give away up to an ounce to anyone over 21—no transaction.

It’s clearly created a gray market. But the gray market doesn’t have some of the trappings of commercialization which some people would like to avoid. There’s the Dutch model, where it’s illegal in back but legal in the front, which means you can sell it retail legally, but you can’t sell it for wholesale. And then there’s a bunch of other opportunities or options in between: So like, creating a state monopoly, creating a public benefit corporation, or nonprofit to distribute—there are a bunch of different options.

There are other things we could do that still keep prohibition but reduce the harms. Portugal has done that. They’ve maintained prohibition, but they’ve essentially reduced the harms of the individual drug user, by removing the criminal penalties for his or her possession or drug use. So now if you’re caught with up to a 10-day supply of whatever drug you have that’s prohibited, you’re referred to a commission made up of a lawyer, a clinician, and essentially a social worker. These three individuals determine what type of user they’re dealing with. If you’re a problematic user, you may be referred to treatment, or maybe get a slap on the wrist and pay 70 euros.

Most users are basically let go with nothing other than a warning and those who are problematic users are referred to treatment. It’s a decriminalized model, but they also include ramped-up treatment provisions and harm reduction tools. At the time, they were facing a heroin crisis much like today.

Fast Eddy Aki'a of Hawaii smokes a joint as thousands gathered in Colorado to celebrate the state's medicinal marijuana laws and collectively light up at 4:20 p.m.
Illustration by Anagraph / Photo: Marc Piscotty/Stringer

Several cities are gearing up to open supervised consumption sites, where people can administer their own illicit drugs under medical supervision. Over 100 of these sites are in operation across Canada and Europe. What do you think of that option?

The literature review on supervised consumption is interesting. … There’s been several dozen articles looking at outcomes, several more looking at user utilization, and public opinion. But when you look at the outcomes that we care about, like overdose calls, overdose deaths, crime, improper disposal of injection equipment, that kind of stuff, we see that the majority of the design methodologies are lacking in rigor.

I would say that supervised consumption facilities probably do some good and there’s definitely a moral argument there to be made for allowing individuals to inject without the threat of overdose.

It’s going to take a lot of different solutions and everything on the table is game, I think. The problem is so severe. … There needs to be some sort of discussion in conservative states about health care at-large, you know, just looking at health care more holistically. In addition to that, looking at mental health care and drug addiction care so that we can actually get more opioid treatment providers out there. I think that would be a lifesaver for rural America.

I’ve been trying to get people to consider researching prescription heroin for some users. Especially in today’s market where fentanyl is in the market. I think we better act before it’s too late because eventually there might be a day when the market will completely convert to fentanyl and you will see demand, which is starting to appear in some areas, where people are now saying that they’re hearing drug users looking for fentanyl in the market, they’re not looking for heroin anymore because they’re too tolerant.

We need to start talking about the violence in certain communities in this country. Communities like Baltimore, which has been kind of degraded by drug use for the last 30 years, as well as rural communities, that have more recently been touched by drug overdose as well. We need to try and have this broader discussion without it getting politicized is the hope.

This story was co-published with Vice.

The New Orleans Police Raid That Launched A Dancer Resistance

From local charities, to the editorial pages, to city politicians, New Orleans strip clubs were blamed for human trafficking, leading to abusive police raids – harming the dancers they claimed they were protecting, and pushing the dancers to fight back.

Lyn Archer
Photo: Jason Kerzinski

The New Orleans Police Raid That Launched A Dancer Resistance

From local charities, to the editorial pages, to city politicians, New Orleans strip clubs were blamed for human trafficking, leading to abusive police raids – harming the dancers they claimed they were protecting, and pushing the dancers to fight back.

On a quiet Thursday night in mid-February, just two days after the revelry of Mardi Gras day, the narrow gutters and treacherous potholes lining Bourbon Street are nearly empty. Only days earlier, tangles of gold and purple and silver beads, drifting like sea foam trapped by French Quarter curbs, were swept away just before Ash Wednesday services began.

Cutting easily through the thin Bourbon Street crowd was Lyn Archer, with pale blonde hair and an efficient walk. She turned us right onto Iberville, past the Penthouse Club and its cool blue spotlights, to stop at an adult establishment called Gentleman’s Quarters. It was closed. Next to Gentleman’s Quarters was Dixie Divas, also shuttered. This whole stretch of Iberville, just a block away from the mayhem on Bourbon, heading in the direction of the Mississippi River, was hushed in the dark, and for a few minutes we were all alone.

Archer has worked as a stripper in New Orleans for two years, after growing up in California’s Central Valley and dancing in Portland and in Key West. She had dreams of one day taking over Dixie Divas, imagining it as an establishment run by dancers. Dixie Divas was one of the smaller clubs that wasn’t connected to a larger corporate brand, like Hustler or Penthouse. It shared a wall with the equally modest in size Gentleman’s Quarters. “You could drill a hole through the wall and hit the stripper on the other side,” Archer said.

But Dixie Divas was closed – permanently – after state and local law enforcement raided it and seven other clubs in late January, putting hundreds of dancers out of work just weeks before Carnival season kicked into full swing.

Law enforcement portrayed the clubs as fronts for human trafficking, but their evidence was thin to nonexistent. Prior to the January raids, undercover agents posed as club customers, itemizing conduct – such as a dancer touching their own body – that they said was in violation of the regulations clubs have to follow to maintain their liquor licenses. But these alleged regulatory violations, documented in notices of suspension from the Louisiana Office of Alcohol and Tobacco Control (ATC), were not indicia of trafficking. So why the highly publicized raids and the club closures that followed?

Prior to law enforcement’s undercover club visits, local paper the Times-Picayune ran a three-part investigative series purporting to reveal trafficking on Bourbon Street and French Quarter clubs. Reporters said the head of a local arm of an international charity with ties to the Catholic church, Covenant House, was “integral” to their reporting. While the Times-Picayune stories included two previously reported cases of potential trafficking, they offered no examples of trafficking inside the clubs. The Washington Post’s Radley Balko criticized it as a  “three-part newspaper series in search of a problem” but the Times-Picayune’s editorial board claimed “the French Quarter’s most famous street is a hub for sex trafficking.”

Then came the raids. In eight clubs during one week in late January, ATC agents along with officers from the New Orleans Police Department (NOPD) entered the premises during business hours, corralling and questioning dancers. Officers refused to let them change out of their work attire. They read dancers’ legal identification aloud in front of customers, and photographed them – partially undressed – on their mobile phones. “I witnessed women weeping until they vomited,” one dancer said.

At a Jan. 29 press conference, Louisiana ATC Commissioner Juana-Marine Lombard acknowledged that that no trafficking arrests were made, yet NOPD Superintendent Michael Harrison deemed the undercover investigations and raids a “first step” to “confront human trafficking.” Meanwhile, the New Orleans City Council was prepared to vote on a proposal to cap French Quarter strip clubs, with the goal of limiting them to one per block. That meant more clubs would share the fate of Dixie Divas.

More harm than help

From the charities to the editorial pages to the politicians, backers of the campaign against alleged human trafficking in New Orleans clubs failed to take into account the harms they perpetrated against the dancers they claimed they were protecting. Official explanations of the raids caricatured strippers as, at best, unwitting victims, and, at worst, as willing participants in a “hub” of human trafficking, But most important, and what most city officials failed to acknowledge, was the raids put hundreds of strippers out of work.

Within days of the raids, dancers and other workers in the French Quarter clubs led an “Unemployment March” to protest the club closures. They sold dollar bottles of water labeled “Stripper Tears,” carried signs reading “Twerking class hero” and “Your political agenda shouldn’t cost me my future.” They chanted, “Strippers’ rights are human rights,” “my body, my choice,” and “I am not a victim! I do not want to be saved!” The large and passionate protests brought media coverage that was starkly different from the pre-raid pieces with Covenant House-guided narratives: it actually acknowledged the dancers could speak for themselves.

Photo: Lyn Archer

The Times-Picayune was now covering their protests, somewhat sympathetically, and so was the national media. An energized and powerful protest movement of dancers trained its sights on a Jan. 31 press conference by departing Mayor Mitch Landrieu to announce Bourbon Street’s infrastructure progress. Dancers gathered behind local tourism officials and drowned them out by chanting “Sex work is real work” and “Workers’ rights are women’s rights.” Landrieu himself appeared to be a no-show even though he was scheduled to speak at the event, leading to speculation that he had been scared off by the large and boisterous protest.

Dancers organizing under the name BARE—Bourbon Alliance of Responsible Entertainers—had taken the attention off of Bourbon Street infrastructure and onto club closures. It was an action that tapped into BARE’s roots: some dancers had been organizing back in in 2015, after another series of ATC strip club raids, dubbed “Operation Trick or Treat.” That’s when Lyn Archer began working as a stripper on Bourbon Street. By the January 2018 raids, Archer was BARE’s most visible spokeswoman.

When we met after Mardi Gras, Archer explained a theory that her colleague, Devin Ladner, had about the 2018 raids: If the clubs raided closed for good, then the city would have achieved its one-club-per-block plan. “Let’s just drum up the grounds to raid these clubs anyway, and then we’ll just say it happened through ‘natural attrition,’” Archer said. “They died on their own.”

Ladner was getting ready to return to work at the Penthouse Club on Iberville when we met that same week. The club is on the same street as the now-shuttered Dixie Divas, but on the brighter end nearest Bourbon. Ladner took a seat on her living room floor in her house in Uptown, her long legs in thin over-the-knee socks. Though the Penthouse club was not raided, she said she has to go to work and interact with patrons under the assumption that any one of them could be for undercover with the ATC or NOPD.

Despite ATC Commissioner Juana Marine-Lombard’s claim that “we have no issues with the dancers,” it was the dancers’ conduct that officers monitored, not the conduct of the club owners or management. “It’s been hard to be a fantasy anymore,” Ladner said. “I’m worried that it could incriminate me for a solicitation charge, even if I’m not facilitating.” For example, if customers want her to engage in dirty talk, purely as a fantasy—a common request—she’s concerned that could be misconstrued as facilitating prostitution.

Ladner brought over her makeup kit, spreading out eyeshadows in their lidded black plastic pots on the glass-topped coffee table, next to copies of the books Striptastic! and The Modern Herbal Dispensatory. Her mobile phone, wrapped in a pin-up skin, was at her knee. She hasn’t been stripping for long, she said—almost a year and a half. But the idea of losing her job frightens her, because that would mean a return to the work she used to do.

Before dancing, she had been a bartender and a waitress. “The hours that I was working and the emotional abuse I put up with being in the service industry as a woman,” she explained, “and making shit for pay and not ever being respected and always being something that can be easily replaced … I can’t go back to it. Because I know what something else is like.”

A history of and against vice

Despite its reputation for perpetual, decadent decay, New Orleans—which celebrates its 300th birthday this year—has a history of running vice out of town, especially when political opportunity and sensationalism collide. “This is what they used to shut down Storyville,” Christie Craft, a New Orleans dancer and writer who had been documenting some of the protests on her Instagram account, said as she sipped a lemonade that Mardi Gras week. She sat in a French restaurant on Rampart Street, which separates the French Quarter from the historic African-American neighborhood, Treme.

One hundred years ago, Craft began, the city’s legal red light district, Storyville, was shut down in a swirl of wartime propaganda about venereal disease, bolstered by a national campaign by social reformers attacking “white slavery.” Brothels shuttered and workers scattered. “What’s there now,” Craft explained, “is leveled public housing and dilapidated buildings.” Storyville had been bounded on one side by Iberville, now home to several newly closed strip clubs, and it ran along the legendary Basin Street, parallel to Rampart. Craft notes the irony that Covenant House sits right between Rampart and Basin. Covenant House, of course, is the Catholic-affiliated charity that helped shape the media narrative that the French Quarter was a trafficking “hub.”

The executive director of Covenant House New Orleans, Jim Kelly, has long campaigned against the clubs, claiming that stripping leads young women to become victims of trafficking.

In 2016, Kelly offered to help the New Orleans city government hire an attorney who specializes in creating city ordinances that regulate adult businesses, according to emails obtained by BARE and shared with The Appeal. That attorney, Scott Bergthold, has been working at least as far back as two decades to tightly regulate strip clubs and other adult businesses. Bergthold describes his law practice as “assisting communities in protecting their citizens against the detrimental impacts of the sex industry.” A few months before the raids, the city hired Bergthold.

Covenant House’s anti-club campaign, which helped drive the raids, Craft explained, was an extension of a long, historical arc beginning with the moral panic about “white slavery” that helped take down Storyville a century before. But this time, sex workers would not be so easily disappeared.

Hundreds of dancers, far beyond those directly involved in groups like BARE, organized in resistance. “It was a turning point,” Ladner, the dancer, said, adding that one of her friends who had not been politically active told her, ”I have to say what is going on in my life because I don’t know how else I am going to feed my kids.”

By targeting so many dancers—one owner said they had 1,500 contract workers across two clubs—there was simply no way to ignore attempts to erase them from the French Quarter. On the black gas lamp posts along Bourbon, stickers fast appeared and remained through Carnival: a dancer’s bright red heel crushing an NOPD patrol car, captioned LEAVE US ALONE / NO PIGS IN OUR CLUBS.

And when dancers took to the streets in the days after the raids, they marched under that simple, yet powerful slogan: Leave us alone.

“That’s actually all we want,” Lyn Archer from BARE told me, as she joined Craft at the Rampart Street restaurant. “All you have to do is leave us alone. And it’s not possible for them, for law enforcement and even city officials to comprehend that that could be a possibility.”

If what public officials really want is to prevent trafficking, Archer continued, then they “need to create a space where people can report their crimes. And every human rights group in the world has said that.” Among those groups, who support the rights of sex workers by calling for the decriminalization of sex work, are Amnesty International, Human Rights Watch, and several UN agencies including the World Health Organization.

But with the raids, New Orleans is moving in the opposite direction: Instead of decriminalizing prostitution in order to protect sex workers, law enforcement is trying to link dancers to prostitution. “They are taking the biblical shepherd’s crook,” Archer said, “and pulling you into criminality.”

In the wake of the raids, one club, Dixie Divas, closed permanently; according to the ATC, another club, Lipstixx, surrendered its liquor license, while another, Temptations, lost its permit. The remaining clubs agreed to temporary license suspensions and hefty fines, as well as to hold mandatory human trafficking trainings for workers and some to fire workers “being involve [sic] with prostitution or drugs” on the first offense.

Now, according to Archer, “there’s a bunch of new rules, rules that aren’t going to protect the worker or make them feel better. It’s kind of like TSA.” And club owners and management have just shifted the burden of protecting the club from crackdowns onto the dancers themselves.

A surprise win

About one month after Carnival season concluded, the New Orleans City Council finally voted on a cap on Bourbon Street strip clubs, a variation of the measure  which had been introduced by Councilmember-at-Large Stacy Head last fall, without the one-club-per-block restriction. As written, the proposal would allow existing clubs to remain. But in capping “through attrition,” the proposal meant that if clubs were cited for new violations—like those shuttered in January after the NOPD and ATC raids—they would not be allowed to reopen.

But it was a very different political moment when the City Council convened on March 22: With their disruption of Mayor Landrieu’s press conference in late January, the dancers had scored a significant direct hit on a popular Southern politician, who, with a popular new memoir, was making the rounds on national television and garnering talk of a 2020 presidential run. The dancers’ protests themselves also received surprisingly sympathetic coverage in the mainstream media.  BARE and their supporters packed the meeting, with Lyn Archer the first to speak. “I’m here standing for a group of strippers and nightlife workers that was founded because of these measures,” she said.  “Please take us at our word that it is us–we are the people being hurt by this. … Please don’t look at us and take our jobs away, and just say, ‘Let them eat cake.’”

Photo: Lyn Archer

Proponents of the club cap like Head called it “merely a land use matter”—but no one from the community showed up to speak in its favor.

The hearing then took a stunning turn when Councilmember-at-Large Jason Williams said he could not support the cap because the NOPD and ATC-led raids were carried out “seemingly in conjunction” with the legislative effort at the council. “I do have some deep concerns with why we would have wasted police manpower on those raids,” he began. “I understand that there were a number of what I believe were clear constitutional violations: having people line up against the wall, that are workers, and patrons are just sitting there watching, using their real names, taking photographs of them wearing their dance attire. That’s horrible, it’s offensive, it’s misogynistic.”

Williams’s broadside against January’s club raids, along with Archer’s passionate protest about the harms that would come to sex workers because of the cap, moved other council members to vote against it. “I assumed I was going to walk in here and vote for it, and it was an easy vote,” Councilmember James Gray said. “And I am going to vote against the proposal…. and what convinces me is the statement that a grown person has a right to do what they want to do, with themselves and their bodies and their lives.”

Minutes later, the cap was defeated in a 4-3 vote, the clearest sign yet that the protests had made their mark.

The next fight

It has been nearly four months since the raids, and the NOPD and ATC have yet to to announce any alleged human trafficking in the French Quarter clubs. Meanwhile, despite those saying they have the best interests of dancers at heart—like Councilmember Kristin Palmer, who in a 2016 petition in support of dramatically curbing strip clubs in the city suggested she spoke for women in the clubs “who have no voice and no resources”—more deep-rooted and long-standing challenges faced by New Orleans dancers remain unaddressed. This has only been exacerbated by the raids: The dancers have expended so much energy on simply keeping the clubs open and keeping their jobs that day-to-day struggles have been ignored.

The issues dancers actually face are far less sensational than fears of human trafficking. Some of the clubs in the French Quarter possess beautiful historic architectural details like “medallions on the ceilings,” as Archer told me, and solid wood stages. But their age often means that they are decaying and unsafe to work in. In one Bourbon Street club where Archer worked, rainwater leaking into the building produced “a waterfall coming down into a trash can at the top of the stairwell.”

“I stopped working there,” Archer continued, “because I saw a rat in the dressing room that was literally the size of a cat, and faced it off on the dressing room counter. There’s no respect here.”

And just as before the raids, there’s no incentive for club owners to improve working conditions. “They don’t have to care about their workforce because they are always going to have a work force,” Archer said. “No matter how bad it gets it’s always going to be better than the minimum wage here.” When Archer worked at the rat-infested and problem plumbing plagued Bourbon Street club she could have gotten a job tending bar. But she remained at the club nonetheless. “It was still better,” she said. “Rat world was better.”

City officials clearly grasp the often rough conditions at the clubs but have yet to understand that their crackdowns merely make things worse for dancers. “You want to be treated like other workers,” Councilmember Head told one speaker at the club cap hearing in March. Then she asked why dancers weren’t fighting the clubs when they didn’t respect their rights, like by offering workers’ compensation. “That is something you should be fighting for.”

“We don’t have any time to fight for this,” the speaker responded, “because we are here fighting you.”

In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Public defenders say the problem has disastrous effects on their clients' cases.

Clark County DA Steve Wolfson

In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Public defenders say the problem has disastrous effects on their clients' cases.

Earlier this year, a U.S. district judge threw out criminal charges against Clark County cattle rancher Cliven Bundy, his sons, and a co-defendant, citing “flagrant” and “outrageous” misconduct by Nevada prosecutors. But the allegations against the U.S. Attorney’s office — that key evidence was delayed or withheld — apply to the county’s local prosecutors as well, public defenders tell The Appeal.

Attorneys with the Office of the Clark County Public Defender say the county’s district attorney’s office frequently violates the law that governs the sharing of information, also known as “discovery.” While some oversights are accidental, explained public defender David Westbrook, others appear intentional. Pieces of evidence are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them],” he said.

To address the problem, the public defenders began to document cases involving observed violations and their outcomes. In 2017 alone, they recorded 28 cases in which county prosecutors turned over discovery — including jail calls, surveillance video, police reports and body camera footage, witness details, DNA and forensic test results, medical reports and other forms of evidence — within 30 days of trial. The gravity of these violations varied. In some cases, a late disclosure involved a large document dump on the defense ahead of trial. But four cases allegedly involved the late disclosure of exculpatory evidence, such as police notes about a victim who had previously made false allegations, a report from Child Protective Services, and witness interviews.

Sometimes, the office found, discovery was provided within one business day of a trial’s start date. In six of the 28 cases, evidence was not revealed until the trial had begun.

The state’s criminal statutes require prosecutors to disclose key evidence against a defendant early on in a case. They have to turn over defendant and witness statements in their possession at least five days before a defendant’s preliminary hearing. As a trial nears, prosecutors must continue to turn over additional evidence they have collected and plan to use, and Nevada law establishes deadlines for these disclosures. Both sides, for instance, have until 21 days before trial to disclose the summaries of what expert witness testimonies will be. They also have until 30 days before trial to disclose medical reports, test results, defendant and witness statements, and physical evidence, including relevant documents, if those are formally requested by the opposing side.

Failure to provide discovery before a deadline without the court’s permission — or not providing it at all — is a violation, and judges are authorized to sanction the responsible parties or prohibit them from presenting the evidence at trial.

Another public defender, Robert O’Brien, said his colleagues have lamented systemic discovery violations for years and raised concerns to judges and policy committees. But their grievances have largely fallen on deaf ears. “The response that we’ve encountered consistently is that we need to show that there’s a pattern or more than anecdotal evidence,” O’Brien said. “We usually would bring up the most egregious violations we could find and, generally, our district courts have refused to sanction the district attorney for it.”

The office found that judges responded to these late discovery disclosures in different ways. They allowed prosecutors to admit the evidence in three cases. Four cases were resolved with plea deals. Judges postponed 11 cases and allowed late discovery to be presented in three. Seven cases proceeded as normal.

With approximately 60,000 cases every year, a spokesperson for the district attorney’s office acknowledges that “the flow of discovery in each and every case will not be perfect.” But the office disputes claims that it doesn’t take discovery violations seriously. “We exercise good faith and due diligence in providing discovery in every case,” the spokesperson wrote in an email to The Appeal.

Yet public defenders maintain that discovery violations are ubiquitous and that little has been done to rectify the problem.

“I have never had a trial when there hasn’t been some kind of discovery violation,” Westbrook said. “Whether [defendants are] guilty or innocent, they’re still entitled to a fair trial.”

Clark County v. Mr. J

It’s easy to find examples in which late discovery derailed a case, many of which predate the public defenders’ study of the violations. On Sept. 30, 2013, the Las Vegas Metropolitan Police Department arrested and detained Mr. J (a pseudonym used at Westbrook’s request to protect his client’s identity). He was accused of entering a bar, demanding money from a female victim at knifepoint, forcing her into a separate room, and touching her breasts. The district attorney’s office charged him with robbery with the use of a deadly weapon, attempted sexual assault, and other charges, based on eyewitness identification. Mr. J denied any wrongdoing.

Court motions and hearing transcripts obtained by The Appeal show that, starting in October 2014, Westbrook specifically requested discovery related to how investigators received information from a confidential informant mentioned during an earlier hearing, as well as any potentially exculpatory evidence that could undermine the prosecution’s case. The presiding judge granted both requests during two separate discovery hearings that month, but Westbrook says he never received that discovery ahead of Mr. J’s trial in January 2015. Several transcripts from discovery hearings show that prosecutor Mary Kay Holthus actually pushed back against having to turn over information about the confidential informant’s tip, even going so far as to criticize Westbrook for not procuring the information himself. “I’m not his lackey,” she said in court.

The prosecution didn’t put up a fight when it came to disclosing exculpatory evidence requested by the defense. It confirmed that it would turn over the information — which it is obligated to do under the Nevada and U.S. constitutions — while noting that it wasn’t sure such evidence existed. For good measure, the judge granted Westbrook’s request for that material.

As Mr. J’s trial date approached, however, prosecutors ultimately told Westbrook that they had turned over everything in their possession and that some of the requested discovery did not exist. He took them at their word and prepared his defense with the information he had been given, Westbrook said. It wasn’t until trial was well underway that Westbrook learned the prosecution’s response to his discovery requests was categorically untrue.

During the trial, the lead detective testified that he had talked to the confidential informant himself, contrary to his claims made under oath at the preliminary hearing, when he claimed that he didn’t know who the informant was or who he or she had tipped off. He then dropped a far bigger bomb: There were several other suspects in the case. In revealing this, he made clear that exculpatory information known as Brady evidence was never disclosed — a direct violation of the U.S. Constitution.

If prosecutors had produced that material evidence in the months leading up to trial, Westbrook says he could have prepared a stronger defense for Mr. J. The defense had argued that Mr. J wasn’t the perpetrator, but knowing that there were other suspects could have helped Westbrook make the case that another person was more likely to have committed the crime. Instead, Mr. J’s team was completely blindsided. “It’s one thing [for me] to say somebody else did it,” Westbrook explained. “It’s quite another thing to be able to investigate suspects that the detectives also believed may have committed the crime.”

Though she was court ordered and constitutionally required to dig into it, there is no way to know if Holthus was aware of the conversation between the detective and the confidential informant. She did not respond to requests for comment on the case. But the prosecution is required to learn about anything exculpatory in law enforcement’s case file.

“When this kind of thing happens, you get a lot of finger-pointing and buck-passing. The DA blames the detective for not telling her about the evidence or the defendant for not somehow, magically, getting the information himself,” Westbrook said. “This system of plausible deniability allows both the DA and the police to duck a finding of ‘bad faith,’ which is about the only finding that will get a case dismissed.”

Undermining ‘Fairness and Accuracy’

No matter what the reason is for a particular delay, late discovery disclosures occur nationwide and wreak havoc on defendants’ cases, says Jennifer Laurin, a criminal procedure and civil rights professor at the University of Texas at Austin School of Law. “We depend on the effective assistance of counsel so that a lawyer can scrutinize the other side’s evidence. Discovery in advance of trial is part of what enables that to happen,” Laurin told The Appeal. By the time a trial is getting ready to start, the defense has usually settled on a strategy based on the evidence in its possession. Discovery obtained right before or during trial can render that strategy moot, and gives the attorneys little time to review the evidence and adjust their plans accordingly. It undermines fairness and accuracy, Laurin said.

If defendants are detained pretrial, discovery violations can also cause damage long before a trial begins. The sooner prosecutors produce discovery, the sooner defense teams can scrutinize it and press for a defendant’s release, Laurin said. According to Westbrook, 92 percent of his clients are currently detained in jail pending trial. Defendants can spend extended periods of time behind bars if court proceedings are delayed because of late discovery. Pretrial detention also increases the likelihood that someone will take a plea deal. “The longer the delay, the more their resolve is broken down,” he said.

That is exactly what happened to Mr. J, who was never released after his arrest in September 2013. He went into the trial facing a life sentence, but after the last-minute disclosures about the confidential informant and alternative suspects, prosecutors offered him a deal. Westbrook encouraged him not to take it, and unsuccessfully pushed for the case’s dismissal. But faced with the prospect of spending a lifetime behind bars, a deal was too hard to pass up. In exchange for pleading guilty, Mr. J was sentenced to five to 20 years in a state prison — time he is still serving. Defendants nationwide often do the same, which empowers prosecutors to cheat over and over again. But it is simply impossible to know how many times a defendant could have been spared a conviction if prosecutors and the law enforcement officers they collaborate with were forthcoming about all the evidence they had.

The district attorney’s office says it has taken concrete steps to improve discovery production, such as creating a checklist of best practices. The checklist requires prosecutors to contact the opposing counsel for a file review, but the latter doesn’t have to accept the offer. The office also says public defenders haven’t taken advantage of a special subcommittee created in 2015 to review and refine discovery procedure, which Clark County’s chief public defender, Philip Kohn, chairs. But Kohn told The Appeal that his office hasn’t seen the discovery checklist, and that the subcommittee hasn’t convened because of prosecutors’ refusal to implement suggested reforms.

“Again and again, the DA simply came to the subcommittee unwilling to propose any reform suggestions, unwilling to consider reform suggestions, and unwilling to consider any rule other than one that removes the DA’s constitutional responsibilities to timely disclose evidence,” he said. The DA denies that reforms were proposed.

Meanwhile, public defenders are continuing to document discovery violations, but say there is no way to determine just how many defendants have been impacted. “We can’t see behind the curtain,” O’Brien said. “There’s just a big black void of what’s happening. We either trust that the system just works and we don’t question it at all, or we keep pushing for the idea that it should be transparent.”

Rhode Island Civil Asset Forfeiture Reform Faces an Unusual Foe: A Democratic Attorney General

Rhode Island Attorney General Peter F. Kilmartin
@AGKilmartin / Twitter

Rhode Island Civil Asset Forfeiture Reform Faces an Unusual Foe: A Democratic Attorney General

Law enforcement’s power to seize property suspected of being used in criminal activity regardless of whether the owner has been convicted of a crime has generated mounting public scrutiny of the practice, known as civil asset forfeiture. Both Nebraska and New Mexico have abolished civil asset forfeiture in recent years, and the Department of Justice under the Obama administration imposed limits on a federal program that facilitated local seizures, which have since been rolled back by Attorney General Jeff Sessions.

In Rhode Island, two pieces of legislation introduced earlier this year, Senate Bill 2681 and House Bill 7640, would sharply restrict prosecutors’ ability to seize assets, the majority of the proceeds of which are awarded to local police departments. Nearly $15.7 million in property in the state was seized by law enforcement between 2003 and 2013, according to public records obtained by local news station WPRI. In 2013, according to WPRI, 38 percent of seizures in Rhode Island were for $1,000 or less — critically, more than it might cost to hire an attorney to fight to keep the property or cash.

Supporters of the legislation say that civil asset forfeiture violates due process rights — prosecutors can seize property that they claim is related to a crime even, again, if that person is never convicted. The new legislation would limit prosecutors to seizing assets connected to an actual criminal conviction, and also protect people’s homes, vehicles worth less than $10,000 and small amounts of cash. Critically, it would ensure that the state provide a person contesting forfeiture of their property with an attorney if they cannot pay for one themselves. The legislation would also limit participation in the Department of Justice’s Equitable Sharing program, through which the federal government transferred back $23,493,801 in seized asset funds to Rhode Island law enforcement in fiscal year 2017.

Like other criminal justice reform legislation, civil asset forfeiture reform often generates unusual political alliances: The legislation is backed by the Rhode Island ACLU and spearheaded by the Rhode Island Center for Freedom and Prosperity, a conservative organization with a strong libertarian bent that argues that reform would be good for both civil rights and the state’s business climate.

Justin Katz, the center’s research director, points out that the state’s political climate has made enacting such legislation impossible in the past. “Rhode Island has a highly transactional General Assembly,” Katz told The Appeal.“Even fantastic, no-brainer ideas can be tangled up in complications about who is allowed to have a win during the course of a session. In this case, asset forfeiture reform is complicated by the obvious self interest of law enforcement agents to maintain the status quo.”

But the legislation is opposed by law enforcement and by Rhode Island Attorney General Peter F. Kilmartin, who, though a Democrat, has aggressively campaigned against legislation to legalize recreational marijuana. He has also supported a bill to make it easier to charge drug dealers with homicide when drug sales result in a fatal overdose. In an April 26 letter to the chairperson of the state Senate Judiciary Committee, Kilmartin wrote that the proposed civil asset forfeiture legislation “would enable criminal activity and create a sanctuary for criminal behavior.” Furthermore, Kilmartin warned that barring the seizure of residential properties “invites criminal activity, including narcotics activity, into our residential neighborhoods.”

Even though Rhode Island is among the nation’s smallest states, Kilmartin is in effect one of the nation’s most powerful district attorneys because his office prosecutes felonies across a state of one million people.

“Overall, I think eliminating civil asset forfeiture is a huge step forward,” said James Vita, of the National Lawyers Guild of Rhode Island. “The Attorney General’s office should be ashamed that they opposed this bill.”

Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.

Yet Vita also argued that legislation is flawed because it would restrict but not bar law enforcement from profiting from seized assets. It would also require the state to “prove by clear and convincing evidence that the petitioner had actual knowledge of the underlying crime giving rise to the forfeiture” — meaning that it is substantially more likely to be true than not, a lower burden of proof than what prosecutors must meet in criminal cases, guilt beyond a reasonable doubt. What’s more, property owners who even had knowledge of a crime but were not involved in it could still have their property seized.

For the strange-bedfellows alliance committed to criminal justice reform, however, the bill is still a sensible and easy step toward a better system. But the Democratic attorney general in a reliably blue state is actively fighting alongside police to sink it. The Senate and House bills are currently before their respective judiciary committees, and getting the legislation signed into law will be an uphill fight. The movement to reform civil asset forfeiture still lacks the power, for now, to ensure that this is an issue that Democratic politicians are wary to cross the cops on.

Clarification: Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.

Elections matter: Florida’s 13th Judicial Circuit

AndrewWarrenFL on Facebook

Elections matter: Florida’s 13th Judicial Circuit

State Attorney Andrew Warren of the 13th Judicial Circuit, which is comprised of Hillsborough County, surprised many last year when he narrowly defeated incumbent State Attorney Mark Ober, who had been the chief elected prosecutor in Florida’s fourth largest county for 16 years. A former federal prosecutor, Warren ran as a supporter of criminal justice reform, vowing to lock fewer people up and send more addicts to rehabilitation instead of jail. During his campaign, Warren had also been critical of Ober for the manner in which his office sought the death penalty, remarking that Ober had received a “failing grade in a critical area of criminal justice.”

Nine months into his first year, Warren is choosing to seek the death penalty less frequently than his predecessor, and also choosing to drop the death penalty in some cases where Ober initially sought it.

Warren’s views on the death penalty were explored in a recent Tampa Bay Times article.

According to the profile, Warren has chosen to drop the death penalty in five cases where Ober originally chose to seek it. A sixth person facing capital charges cut a plea deal that allowed him to avoid the death penalty.

There are still 17 cases where Ober initially elected to seek death, and Warren hasn’t yet announced whether he will follow the same path.

“These decisions are the most serious and sobering decisions you make as state attorney,” Warren said. “And it’s different academically than it is when you’re sitting in a chair as the one to make the decision.”

Warren has said the death penalty should be applied “fairly and consistently and rarely.” He has also said he will not use the threat of seeking death as leverage to get someone to plead guilty.

Warren has chosen to seek death in one criminal case that occurred after he took office.

Warren previously pledged to reduce the number of juveniles charged as adults and increase the number of juveniles who receive civil citations, which keeps juveniles out of the criminal justice system.

“We need to do a better job steering juvenile, non-violent offenders away from the downward spiral of the criminal justice system,” Warren said while he was running against Ober. “We should be tough on serious juvenile offenders and always hold people accountable for their actions. But treating kids who commit minor offenses like adult criminals only furthers the revolving door criminal justice system. And it makes our neighborhoods less safe.”

He announced an expansion of the county’s juvenile civil citation program in July.

Law Enforcement Takes Unearned Victory Lap for Capture of One of Their Own — The Golden State Killer

Sacramento DA Anne Marie Schubert announces the arrest of Joseph James DeAngelo.
Justin Sullivan / Getty

Law Enforcement Takes Unearned Victory Lap for Capture of One of Their Own — The Golden State Killer

It has been over a week since California law enforcement announced what many have waited to hear for more than 40 years — that they identified and captured the man they believe to be the Golden State Killer, thought to be responsible for at least 12 murders and nearly 50 rapes between northern and southern California from the mid-1970s to 1986.

On April 24, Joseph James DeAngelo, 72, was arrested at his home in the Sacramento suburb of Citrus Heights, where six of the crimes occurred. He was formally charged with eight counts of first-degree murder in three counties.

“The answer was always in Sacramento,” Sacramento District Attorney Anne Marie Schubert said at a press conference the day after DeAngelo’s capture. But Schubert and her colleagues, including Sacramento Sheriff Scott Jones and Orange County District Attorney Tony Rackauckas offered few answers about the DNA testing methods used to identify DeAngelo. Instead, they used much of their time at the podium to repeatedly praise the “dedication,” “persistence,” “dogged determination,” “visionary and innovative leadership,” and “unrelenting efforts” of police and prosecutors — the very same people who have been stumped by the case for decades.

“At a time when law enforcement is unfortunately under so much criticism, I want the public to know that the work on this case reflects the very best, the very highest standards in the noble and dedicated and courageous police profession,” said Ventura County District Attorney Greg Totten.

It wasn’t until the end of the nearly hour-long press conference, when reporters were permitted to ask questions, that officials acknowledged what many already knew, thanks to social media — that DeAngelo himself was once a law enforcement officer. Employed by the Auburn Police Department from 1976 to 1979, DeAngelo was employed as a police officer during the same time frame when the Golden State Killer, then known as the East Area Rapist, attacked women and couples in their Northern California homes. DeAngelo was fired from the Auburn Police Department in 1979 after he was caught shoplifting dog repellent and a hammer from a drugstore in Citrus Heights.

A few months later, on December 30, DeAngelo allegedly shot to death Robert Offerman, a doctor, and Alexandra Manning, a clinical psychologist, in their home of Goleta, a suburb of Santa Barbara. Offerman and Manning were allegedly the Golden State Killer’s first victims in Southern California.

“Very possibly he was committing the crimes during the time he was employed as a peace officer,” said Sacramento Sheriff Scott Jones, “and obviously we’ll be looking into whether it was actually on the job.” He also noted that from 1973 to 1976, DeAngelo was employed by the Exeter Police Department, just 30 minutes from where a series of break-ins were committed—crimes also believed to be the Golden State Killer’s work. And yet, investigators said, DeAngelo was never on their radar, despite years of speculation that the offender had a police or military background.

But a failure to bring justice in the long unsolved serial murder case did not stop District Attorney Schubert from using DeAngelo’s arrest to promote her re-election campaign. On May 1, Schubert’s campaign debuted a new 30-second spot hailing her as a “groundbreaking DNA expert who led the investigation that solved the Golden State Killer/East Area Rapist case.” The tagline? “She protects us.”

Tell that to the family of Stephon Clark, the unarmed Black man who was shot to death by Sacramento police officers while he was standing in his grandparents’ backyard in March. Clark’s family and activists from around the country have urged Schubert to file charges against the officers, or issue a statement about it, but she has declined to take action. On April 20, Schubert responded to four weeks of protests outside her office by erecting a 10-foot cyclone fence in front of her office and around the employee parking lot.

Schubert had already been criticized for her refusal to pursue criminal charges against the police — since taking office in 2015, according to theSacramento News & Review, she “has declined to file charges in 21 shootings involving police and also in 13 cases of death of people in police custody.” Late last year, Schubert also refused a state auditor’s request that she charge Sheriff Jones with a misdemeanor for “deliberately releasing information that he was specifically told he could not release, despite multiple verbal and written warnings.” A recent investigation by the Intercept revealed that one-third of the funds Schubert has raised for her two campaigns for DA (in 2015 and now, as she runs for re-election) came from law enforcement sources.

Schubert isn’t the only law enforcement official taking victory laps over the apparent resolution of the Golden State Killer case who is facing accusations of protecting the police. Between 2010 and 2015, Orange County DA Rackauckas accepted $23,500 from individual police officers and police PACs, contributions that came against the backdrop of his office’s history of declining to prosecute police killings, including the 2008 shooting death of a 20-year-old man by the Anaheim Police Department which led to a $1.5 million settlement with his widow. And just weeks before Rackauckas appeared on the HLN network to laud law enforcement’s work in the Golden State Killer case, his office was sued by the ACLU over its network of jailhouse informants which was allegedly used to win “countless convictions based on unreliable information.”

As Schubert and Rackauckas ride the tidal wave of positive publicity from the Golden State Killer’s arrest, there is growing criticism of law enforcement exuberance around the case, as if DeAngelo wasn’t one of their own — especially in Sacramento, where the community is already up in arms over a more recent death at the hands of a police officer.

As Schubert noted, the answer to the Golden State Killer case was likely always in Sacramento. But to find what she called “a needle in a haystack,” investigators turned to advanced DNA testing. In the late April presser, law enforcement officers were vague about the methods used to finally identify DeAngelo, even as they ebulliently praised their own work in the case.

“The fact that they didn’t disclose in that press conference their methods I found really disingenuous,” said Erin Murphy, a professor at the New York University School of Law and the author of Inside the Cell: The Dark Side of Forensic DNA. “There was no investigative reason they couldn’t have told everyone. I mean, the press asked them a million different ways. I knew … something smelly was going on. If it was just a familial search, they would have said. I think it’s really telling that they felt they couldn’t share their methods at that time.”

In the weeks since DeAngelo’s arrest, it has been revealed that investigators used a new form of genetic fingerprinting to search for distant relatives of the then-unknown offender in a variety of state, private and public databases, including the genealogy database GEDMatch.

The revelation has raised privacy concerns among the legal community, privacy advocates, and genealogy website users, many of whom were unaware of the ways their own DNA could expose their entire family tree to law enforcement scrutiny. While the terms and conditions of these public sites all vaguely warn of potential privacy risks, the average user is unlikely to be familiar with specific forensic advancements used by police — especially if, like in California, they don’t publicize them.

GEDMatch, however, is where investigator Paul Holes and his fellow investigators got their hit. Using other public records, they assembled a family tree and narrowed down the list of potential suspects within the genetic line. There was at least one near-miss — in March 2017, Holes successfully persuaded a judge to issue a DNA subpoena for a 73-year-old nursing home resident in declining health. He wasn’t a match.

At some point, “DeAngelo kind of bubbled to the surface,” Holes told the San Jose Mercury News.

timeline of DeAngelo’s known history and whereabouts during those 10-plus years of terror makes clear that he was never far from reach. In just a few short weeks, scientific advancements and a crazy amount of luck accomplished what conventional police work failed to do for the last 40 years. As significant as finally solving this case may be, California law enforcement should quit their showboating and instead reflect on why it took so long to apprehend one of their own.

Lawyer for Pedro Hernandez Says Bronx DA’s Office Is Still Withholding Key Evidence

Bronx District Attorney Darcel Clark (at podium)
Bronx District Attorney’s Office / Facebook

Lawyer for Pedro Hernandez Says Bronx DA’s Office Is Still Withholding Key Evidence

When Bronx District Attorney Darcel Clark announced last September that gun possession and assault charges would be dropped against teenager Pedro Hernandez, who had spent 12 months on Rikers Island, she pledged her office would investigate what went wrong, and that the investigation would “go wherever the evidence leads.”

A lot had gone wrong in the case against the then-17-year-old Hernandez, who was held in connection to a 2015 shooting: Detectives had allegedly beaten witnesses until they agreed to sign false affidavits implicating Hernandez, and the prosecution had promised further charges against Hernandez to justify a $250,000 bail. But those promised charges never materialized in later proceedings, and prosecutors’ further claims that Hernandez was an active gang member and involved in a check forgery scheme also went unsubstantiated.

Such instances of police and prosecutorial misconduct rarely see the light of day because defendants overwhelmingly accept plea deals, giving in to pressure from the daily horrors of life in jail and the possibility of longer sentences if they take a case to trial. But Hernandez refused to take a plea — he insisted on his innocence while his family hired a private investigator to look into the case. The investigator, Manuel Gomez, filmed witnesses as they recanted their statements and eventually uncovered widespread witness intimidation in the Bronx’s 42nd Precinct.

While detained on Rikers, Hernandez graduated from high school and received a full scholarship to college. His case drew headlines and high-profile support, in part because it echoed that of Kalief Browder, a teen who spent three years on Rikers on charges that were eventually dropped, and killed himself two years later.

But while supporters celebrated Hernandez’s release, the Bronx DA refused to drop a robbery charge against him relating to a stolen cell phone. Hernandez’s trial on that charge is scheduled to start today.

On the eve of trial, however, Hernandez’s lawyer is claiming that the Bronx district attorney’s office is still withholding potentially exculpatory evidence in the case, and proceeding in precisely the same manner it did before. In a motion filed by Hernandez’s lawyer Alex Spiro in Bronx Supreme Court late last month, Spiro alleges that the Bronx DA is still shirking its Brady responsibilities, which dictate that prosecutors must hand over any and all evidence that might be favorable to the defendant.

“Since the inception of this case, the Bronx District Attorney’s Office has demonstrated a disturbing lack of candor with the Defense and this Court, and has presumed Mr. Hernandez’s guilt regardless of what the evidence shows,” Spiro’s memo reads.

In early November, Hernandez’s lawyers asked the Bronx DA to hand over all remaining Brady materials that could impact the case against Hernandez, including the results of its own internal investigation into both police and prosecutorial misconduct (the prosecutor on the original case, ADA David Slott, has been transferred to the appeals division while the investigation plays out).

In late 2017, according to court filings, Hernandez’s defense attorneys uncovered that witnesses had given conflicting accounts of the robbery to the district attorney, information the DA was required to hand over to the defense but had failed to deliver. In December, a judge again “reminded” the Bronx DA of its obligation to hand over any relevant evidence to the defense. Finally, in late January 2018, the DA informed Hernandez’s lawyers of some potentially exculpatory information: The complainant witness in the case had tried calling his allegedly stolen phone shortly after the robbery, and a female voice had answered it.

Because the voice obviously didn’t match that of Hernandez, his lawyers argued that this evidence should have been turned over to the defense far earlier, and that it strongly suggests the DA is still invested in withholding evidence that might clear Hernandez of the robbery charge. “By the District Attorney’s own calculations,” the motion reads, “the People sat on this information in violation of its Brady obligations for approximately 778 days.” While it was eventually turned over, that means Hernandez’s defense team lost more than two years during which they could have investigated this lead, years in which he might have pleaded guilty, unaware of this information.

The fact that the DA had been sitting on testimony that could have cleared Hernandez of this charge points to systemic problems involving the treatment of exculpatory evidence at the Bronx district attorney’s office, something that even DA Clark has alluded to in recent statements, where she has called on outside law enforcement officials to look into the practices of her own office.

“My Office’s Public Integrity Bureau delved into the allegations surrounding the Pedro Hernandez case,” Clark said in a press release in November. “Because the investigation has broadened, we saw the need for additional law enforcement resources and the Acting U.S. Attorney for the Southern District of New York, Joon H. Kim, has agreed to assist my office in this investigation.”

But none of the results of the investigation into the 42nd Precinct, or the Bronx district attorney’s office, have been made available to Hernandez’s lawyer, even though this information could undercut the integrity of the government’s case. Given the lack of cooperation from the DA’s office, Spiro expects the hearing to be adjourned today (Hernandez also has a pending civil lawsuit against the city).

In a November 22 response to Spiro’s allegations of Brady violations, Assistant District Attorney Burim Namani wrote that any information on alleged misconduct could be found in lawsuits filed by Hernandez and others against the city, and by “googling Shaun King’s name, Pedro Hernandez’s name, Detective David Terrell’s name, Private Investigator Manuel Gomez’s name, Assistant District Attorney David Slott’s name, reporter Sarah Wallace’s name, the 42 Pct., and/or the title of Shaun King’s articles.” At the end of the letter, the ADA wrote,“People are fully aware of their constitutional discovery obligations, including their continuing obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and will continue to faithfully discharge those obligations.”

By refusing to take a plea deal, Pedro Hernandez exposed systemic police and prosecutorial misconduct, where evidence was fabricated to justify the arrests of young men of color. Over the next few weeks, we’ll find out just how seriously this particular district attorney’s office takes its constitutional obligations, and whether Pedro Hernandez will not only have beaten a series of bogus charges, but finally brought some measure of accountability to a system rife with abuses.

The LAPD Has a New Surveillance Formula, Powered by Palantir

LAPD officers line up in front of protestors.
Lucy Nicholson / Pool / Getty Images

The LAPD Has a New Surveillance Formula, Powered by Palantir

Los Angeles Police Department analysts are each tasked with maintaining “a minimum” of a dozen ongoing surveillance targets for future targeting, using Palantir software and an updated “probable offender” formula, according to October 2017 documents, obtained through a public records request lawsuit by the Stop LAPD Spying Coalition and given exclusively to The Appeal.

These surveillance reports identify “probable offenders” in select neighborhoods, based on an LAPD point-based predictive policing formula. Analysts find information for their reports using Palantir software, which culls data from police records, including field interview cards and arrest reports, according to an updated LAPD checklist formula, which uses broader criteria than the past risk formula the department was known to have used. These reports, known as Chronic Offender Bulletins, predate Palantir’s involvement with the LAPD, but since the LAPD began using the company’s data-mining software in September 2011, the department claims that bulletins that would have taken an hour to compile now take “about five minutes.”

Los Angeles police argue that targeting “chronic offenders” in this manner helps lower crime rates while being minimally invasive. But the Stop LAPD Spying Coalition, a community-based alliance that has advocated against increased LAPD surveillance efforts since 2012, paints a different picture of the Chronic Offender Bulletin program. The group calls it a “racist feedback loop” in which police surveil a set number of people based on data that’s generated by their own racially biased policing, creating more monitoring and thereby more arrests.

Field interview cards, for example, which provide information for the predictive checklist, often result from on-the-street racial profiling, argues Jamie Garcia, the lead organizer on the Predictive Policing campaign with the Stop LAPD Spying Coalition. “When we look at LAPD stops, the black population is completely overrepresented,” said Garcia in a phone call. The directives, she says, direct officers “to find these people and to basically harass them…. If you’re constantly being surveilled, constantly being harassed, the chance of something going wrong … The next thing you know, you’re a chalk outline.”

Legal scholars have noted that the institutionalization of risk formulas like the LAPD’s Chronic Offender program checklist can exacerbate existing patterns of discrimination by oversampling those already discriminated against, generating even more biased data that justifies further discrimination.

The LAPD declined The Appeal’s request for interview, and did not provide answers to written queries about the program. In an email to The Appeal, Palantir spokesperson Lisa Gordon confirmed that Palantir is used in the creation of Chronic Offender Bulletins, but stressed that the software does not automatically generate the reports and that the selection and vetting of people on these lists are part of “a human-driven process.”

How Pre-Crime Investigations Begin

The target identification process starts with a LAPD analyst looking for “probable offenders” by surveying police records. According to the LAPD documents, analysts deploy Palantir’s file-organizing software to conduct “work-ups” of these individuals, looking for records that add points to their predictive risk scores, which are based on factors, such as whether they are on parole and their number of police contacts in the last two years. Below is an image of one of these “work-ups,” generated a few months before the department adopted Palantir, which The Appeal found online, completely unredacted, in a May 2013 LAPD presentation.

An example of a research “work up” template created by an LAPD analyst to organize data points for the department’s predictive “chronic offender” formula.

Adding up points based on police stops and other criteria outlined in the formula, an analyst would then create “at a minimum” 12 Chronic Offender Bulletins for high-scoring individuals, and identify five to 10 others as potential “back ups” for the target list. The 12, ranked by highest point values, are then referred to officers to ensure the targets are not already in custody or being tracked. As the documents state explicitly, these targets are, at this point, legally “not suspects but persons of interest.” A “person of interest” has no defined legal meaning, but can simply mean someone who might have knowledge about a crime.

Critics claim that this essentially creates a cycle where anyone who has any history with the criminal justice system can now be subjected to increased surveillance for the foreseeable future, even if they’re not suspected of having any connection to a recent crime. On the redacted work-up above, which the LAPD confirmed as authentic in an email, the individual had been stopped twice in a single day on four separate occasions during a six-week period. All these stops would count as points in the predictive formula, making him a higher priority for the surveillance program.

Though the LAPD claims such reports are “for informational purposes only and for officer safety,” the report information is then fed to an internal LAPD database “for tracking and monitoring purposes,” according to the 2017 documents. Armed with this data, such as where target offenders have been stopped and what tattoos they have, special LAPD units are sent out to “engage” targets with specified tactics, such as checks for outstanding warrants or illegal gun seizures, which may lead to arrests.

Sarah Brayne, a University of Texas at Austin assistant professor of sociology, who conducted field research with the LAPD in 2015, says that officers are keenly aware that the bulletins did not give them reasonable suspicion or probable cause. “The language used when I talked with officers was, “Go talk to them, and you might catch them doing something, but there’s currently no PC [probable cause].”

Though the LAPD documents do not explicitly state that those on the list must be arrested, they suggest that once an individual lands on a Palantir-powered bulletin, police are supposed to continue monitoring the individual until he or she is in custody. According to a released PowerPoint presentation, for example, officers are expected to ask themselves “how many chronic offenders have been arrested” in the previous two weeks and what their strategies are for “outstanding offenders.”

Every week, analysts too are supposed to determine whether the individuals on their target lists “are active or in custody,” and then replace those who have been captured with so-called “back-ups,” other individuals scored as high-risk, creating new targets for police to engage.

Individuals can be removed from the surveillance list if they have not had any police contact for two years, says Brayne, but the program’s underlying logic is to incapacitate those determined to be the main drivers of crime.

Given the amount of scrutiny and routine contact that officers are instructed to pursue for people on the bulletin list, avoiding all police contact is not realistic, says Josmar Trujillo, an anti-gang policing activist in New York. “If you live in a community of color in America, you don’t have the choice of having these contacts,” said Trujillo in a phone call. “Oftentimes, you can be stopped just for being around certain people, whether it be car stops or stops of groups on a street, so this predictive policing idea that you have to earn your right not to be on the list is cruel because to avoid law enforcement for years — that’s not possible.”

Perverse Incentives?

The LAPD’s expectation that analysts have a minimum of a dozen targets on deck is possible thanks, in part, to the departments’ use of the software from Palantir, the controversial tech firm founded by libertarian billionaire Peter Thiel. As Craig Uchida, an LAPD consultant and research partner, told Wired, before Palantir was brought on board, LAPD analysts could not make enough surveillance bulletins to keep up with officer stops. At the time, he recalled, cops were stopping around 100 people daily in the South LA neighborhood the program was first implemented in, bringing in too much data for analysts to efficiently process.

The documents also suggest that LAPD brass have become more committed than in years past to fulfilling the Chronic Offender program’s goals for officer surveillance and “engagement” with those listed. According to the documents, at weekly crime control meetings, specialized units targeting offenders are supposed to give reports on “their progress” to date. Brayne says this is a relatively new development.

“There was definitely tracking of how many arrests, but that was largely to collect data to measure efficacy and make a case for continued funding,” she said.

The expectations, embedded in these predictive policing tactics, worries Garcia, who points out that such incentives could motivate or even force analysts and officers to make unfounded arrests just to check people off their bulletin lists. “So the LAPD is even surveilling itself,” Garcia said.

Brayne, on the other hand, pointed out that during her field work, officers had too many high-point offenders to deal with, not too few.

New Technology, Similar Victims

Activists also argue this predictive policing program could be giving new scientific and legal cover for traditional police practices in poor, non-white communities, viewed by some as racially discriminatory.

“The data is inherently subjective, and it has that implicit bias in it,” Garcia said, claiming that data drawn from raw police interactions necessarily bakes existing biases into the LAPD’s predictive risk models. And Brayne’s ethnographic findings about the culture of the LAPD suggests these concerns may be justified. “They say you shouldn’t create a — you can’t target individuals especially for any race, or I forget how you say that,” said one unnamed officer to Brayne, when asked why the department had shifted to its points-based surveillance system. “But then we didn’t want to make it look like we’re creating a gang depository of just gang affiliates or gang associates… We were just trying to cover and make sure everything is right on the front end.”

The documents also reveal a newer, more expansive version of the LAPD’s points-based Chronic Offender formula than has previously been reported. Older reports have shown that analysts were supposed to count points against individuals for gang membership, being on parole or probation, prior arrests with a handgun, past violent crimes, and “quality” police contacts. This newer version from October 2017 includes most those checkboxes, but expands the gun penalty now counting up five points for “each incident” involving any kind of gun over the last two years. It also counts up five points for each violent crime arrest, whereas the older version just counted five points if an individual had violent crimes on their rap sheet.

The documents were obtained through a public records lawsuit, brought by the Stop LAPD Spying Coalition in March, which sought information on a larger LAPD program in which the Chronic Offender Bulletins are used. Since 2011, that program, known as Operation LASER, has targeted Los Angeles neighborhoods with high densities of gun-related crimes, teaming up analysts and officers to target “chronic” offenders and areas. According to a 2017 LAPD grant extension request to the Department of Justice’s Smart Policing Initiative Grant Program, obtained by the Stop LAPD Spying Coalition, at the time, the department was targeting neighborhoods in South and Central Los Angeles, which are mostly Black and Latino, and planned to expand the operation to more police divisions across the city.

The LAPD has claimed success with the program — between 2011 and 2012, one area where LASER was operating experienced a 56 percent decrease in homicides (according to a 2014 report by the LAPD). But the report was unable to single out whether this was because of the use of Chronic Offender Bulletins or some other unrelated trend. Homicides in Los Angeles had dropped steadily since the early-nineties before leveling out around the middle of this decade.

But residents say these predictives tactics have come with a cost. “I feel like they already know who you are by the time they stop you or give you a citation. They already know your name and who you are hanging out with,” said one member of a focus group convened by the Stop LAPD Spying Coalition for a new report it released today, alongside the public records.

Another focus group member elucidated the dangers of constantly focusing police resources on a very specific population: “Because they over-patrol certain areas. If you’re only looking on Crenshaw and you’re only pulling Black people over then it’s only gonna make it look like, you know, whoever you pulled over or whoever you searched or whoever you criminalized that’s gonna be where you found something,” said the participant.

Activists say these testimonies are only their first step in their push for reforms. On June 5, Los Angeles is having its first hearing on data-driven evidence-based policing, says Garcia, where her group plans to push presenters, many of them with deep ties to the LAPD, on what impact this type of profiling can have on their target communities. Garcia wonders, “Where are the hard questions going to come from if you are working with someone to present this information to the community who has every motivation to make the community agree with these programs? There’s a lot at stake.”

Max Rivlin-Nadler contributed reporting to this article

How Walmart is Helping Prosecutors Pursue 10-Year Sentences for Shoplifting

Mike Mozart
Flickr [CC]

How Walmart is Helping Prosecutors Pursue 10-Year Sentences for Shoplifting

It was late afternoon on Dec. 26, 2016 — the day after Christmas, a day when most stores are busy processing the returns for unwanted gifts — when Curtis Lawson entered a Walmart in Knoxville, Tennessee. He had a receipt for $39.57 in purchases made earlier that month. He needed cash. He walked through the store, picking up the same items he had purchased previously — dishwasher detergent, Oral-B refills, and a pair of girl’s jeggings — and put them in a shopping bag. He brought them to the register, returned the items using his receipt, and received $39.57 in cash. Lawson had committed what is known as “return fraud” — pretending to return items that you didn’t buy.

When Lawson walked into the Walmart empty-handed, Walmart loss prevention officer Robert McAuley decided he looked suspicious and watched him on the security cameras. He watched Lawson pick up the clothes and return them at the Customer Service desk. McAuley immediately detained Lawson, who admitted right away that he had stolen the items, and Lawson was eventually charged with shoplifting and criminal trespass. What came next was a startling encounter with a local criminal justice system heavily influenced by a big box retailer’s desire to reduce shoplifting and a prosecutor’s penchant for punishing those who are more unlucky than dangerous.

Lawson had at least three outstanding warrants, most of which were related to traffic violations, including a DUI. Lawson’s attorneys admitted that Lawson had a drug addiction and sometimes shoplifted to support his habit, but noted that he had never been accused of being a threat to anyone’s safety. Because of the outstanding warrants, his bail was set at $2,500 total, and he was immediately taken to jail. On January 9, a warrant was issued for Lawson that escalated his shoplifting charge to a felony because, according to the arrest affidavit, Lawson was not allowed to be inside Walmart at all. Therefore his return fraud was a burglary — a felony punishable by up to 12 years of prison. His bail was jacked up to $5,000.

In Tennessee, as in many states, shoplifting items under $1,000 is a misdemeanor. But, in the past few years, the Knox County district attorney’s office has been prosecuting people like Lawson under the burglary statute, which under Tennessee law is defined as “unlawfully and knowingly entering a building without the consent of the owner and committing a theft.”

It turned out that Lawson had been arrested for shoplifting a bra over four years earlier from another Walmart location. That time, Lawson was issued what’s called a “Notification of Restriction from Property” by Walmart loss prevention staff. This piece of paper essentially restricts someone’s access to Walmart by officially “evicting” them from the property forever. The notice informs Lawson that he is “no longer allowed on property owned by Walmart Stores Inc. or in any area subject to Walmart Stores Inc.’s control” and it includes “all retail locations or subsidiaries.” Such documents, according to the loss prevention officer at Lawson’s trial, are regularly issued at Walmarts across the U.S.

Lawson’s attorneys argued that charging their client with felony burglary was not appropriate because the store, rather than being a private residence or a warehouse, was open to the public. Assistant District Public Defender Jonathan Harwell, who has worked on similar cases and represents Lawson, believes that Walmart’s notifications are confusing. They are not consistently enforced: Lawson, for example, had entered Walmart locations countless times since receiving his notification. He’d made returns, purchased goods, and even showed his ID to buy food using his EBT card, all without a problem. There aren’t any “no trespassing” signs around Walmart and no other indication that potential shoppers are being checked when they enter the store. And, most likely, they aren’t. The only people who have access to the notices are loss prevention staff.

The law in Tennessee is confusing when it comes to prosecuting shoplifters on felony charges, so the decision is left to local prosecutors. A case in another county similar to Lawson’s, State v. Danielle Chandria Jensen, was dismissed when the judge decided the felony charge wasn’t appropriate. The appellate court that upheld the dismissal wrote scathingly that “the prosecutor had a strong desire to prosecute all individuals for burglary who had been arrested for shoplifting or theft who previously had been banned from the relevant store, a questionable goal when the harshness of a felony conviction and sentence for burglary is compared to the wrong committed, even for a repeat shoplifter.” The case was vacated by a higher court on a different issue, so the law remains unsettled.

Charme Allen, the Knox County district attorney, vowed after the Jensenappellate decision to keep up-charging shoplifters anyway. When I asked her office about the policy, Deputy District Attorney General Kyle Hixson responded via email: “The District Attorney’s Office prosecutes all business burglaries, whether the victim is a sole proprietor or a corporation, according to the provisions of the state burglary statute. Business burglary prosecutions of this type are not permitted for first-time offenders, as the defendant must be placed on the business’ no-trespass list due to prior criminal activity occurring on the victim’s property. These prosecutions have been a valuable tool to protect businesses from repeat offenders and to ensure that Knox County remains a safe place for businesses to operate.”

Walmart’s trespass notifications are part of the extension of private influence over parts of the criminal justice system that benefit third parties, like retailers. Walmart, in particular, has come under fire in the past for hiring too few employees (a cost-cutting measure), and then relying heavily on publicly funded local police to handle their shoplifting problem. I have previously written about Walmart’s “restorative justice” program, a private anti-shoplifting program in California that a Superior Court judge found to amount to illegal extortion. Around 2008, according to testimony from Lawson’s preliminary hearing, Walmart began implementing the trespass system, which allows them to keep records on who has shoplifted before.

Across the country, more state legislatures are increasing the penalties for multiple shoplifting offenses, a move that has been encouraged by the National Retail Federation, a trade group that lobbies on behalf of retail businesses. The Federation represents the interests of both small businesses — mom-and-pop shops — and big megastores like Walmart and Dollar Store. According to the trade publication Loss Prevention Media, “Legislation has become a primary tool used in combating organized retail crime.”

Little reliable information is available about “organized retail crime,” or about shoplifting in general. The only information out there comes from the National Retail Federation itself. In a 2014 study, the NRF said that shoplifting accounted for 38 percent of shrinkage (all lost inventory), or about $44 billion in losses. A valuation by Forbes estimated that, by these numbers, Walmart loses under $2 billion in shoplifting. The latest studies by the NRF have focused on what they call “Organized Retail Theft,” which an NRF studysays affects “9 out of 10 retailers,” creates a loss of “$726,351 per every $1 billion in sales,” and involves people “exhibiting much more aggression.”

In Tennessee, the push to make penalties for shoplifting harsher came from the Tennessee Retailer Association and the state representative from KnoxvilleJason Zachary, whose profile notes that he is a small business owner. Notes from the legislative sessions indicate that the provision, which would punish retail theft, gift-card fraud, and return fraud more harshly would “increase recurring local revenue by an amount exceeding $20,000 per year.” The retailer’s associations argue that shoplifting hurts local government by decreasing the sales taxes collected. The legislation also allows local law enforcement to keep the value of stolen gift cards as forfeiture money.

Other states are considering similar laws under the guise of preventing “organized retail crime.” For example, in California, the state retailer’s association has banded together with prosecutors and sheriffs to support a bill that would increase the penalties for shoplifting. These lobbyists argue that recent changes to California’s laws have made it difficult for law enforcement to detain and prosecute shoplifters, which is hurting their bottom line.

Lawson was convicted of burglary in March. He is still waiting for his sentencing hearing, but because of the burglary charge, his options for parole or alternative sentencing are limited. A representative from the Knox County DA’s office pointed to Lawson’s long list of felony charges, indicating that he is likely to receive the maximum sentence of 12 years in prison. Lawson’s attorneys in the public defender’s office have noted that these felony prosecutions have increased since the 2014 election of current Knoxville District Attorney Charme Allen, who vowed to crack down on crime and has prosecuted a large number of cases under the state’s gang statute, which was recently struck down by the Tennessee Court of Criminal Appeals for being too broad. In the meantime, it appears that the new law is being used not to prosecute dangerous retail gangs, but rather to penalize those who can least afford it, like Lawson.

‘We Can Make Him Disappear’: The Power of County Sheriffs

Mecklenburg County Sheriff Irwin Carmichael and deputies pose in front of an armored vehicle.
MCSO / Facebook

‘We Can Make Him Disappear’: The Power of County Sheriffs

These days, former Sheriff Jim Pendergraph calls himself an “Old School Conservative,” but not so long ago he identified as a Democrat. This is back in early 2006, when Pendergraph was like most sheriffs — an enormously powerful guy who managed to get around unnoticed. He was 35 years into his law enforcement career and 12 years into his tenure as sheriff of Mecklenburg County, North Carolina when he made the decision to enter his agency into an agreement with the Department of Homeland Security (DHS).

Mecklenburg was the first law enforcement official east of Phoenix to enlist in 287(g), a DHS program which allows Immigration and Customs Enforcement (ICE) to delegate federal immigration enforcement to local and state authorities. Essentially, 287(g) deputizes local law enforcement, giving police and correctional officers the power of ICE agents. As so-called 287(g) officers, they“have access to federal immigration databases, may interrogate and arrest noncitizens believed to have violated federal immigration laws, and may lodge ‘detainers’ against alleged non-citizens held in state or local custody.”

This may sound boring or bureaucratic, but the end result is neither — programs like 287(g) make it infinitely easier for undocumented immigrants to be deported. One need only be charged, not convicted, to get referred to ICE and possibly taken away from loved ones. Proponents of 287(g) would have you believe that the only immigrants affected by the program are dangerous criminals. But studies show that, in the past, around 80 percent of people were picked up on misdemeanors.

As a Democratic official, Pendergrass appeared an unlikely participant in the 287(g) program, which had historically been championed by anti-immigration, tough-on-crime conservatives. But Pendergraph was maniacal about his dislike of immigrants, intent on ridding America of them. “We’ve got millions of illegal immigrants that have no business being here … These people are coming to our country without documents, and they won’t even assimilate,” he said in 2006. “Every person we remove from the county is one person you and your family won’t meet on the highway,” he stated that same year. Eventually, Pendergraph dropped the pretense of safety altogether, simply setting up checkpoints in neighborhoods with large immigrant populations and arresting people for violating civil immigration law.

Pendergraph became such an evangelist for 287(g) that, in 2007, the Department of Homeland Security hired him. During his time there, he boasted about how easy it was for local police to ensure deportation of an undocumented resident. “If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.”

Pendergraph hasn’t been sheriff for over a decade, but his successors have been determined to keep their partnership with ICE alive. This includes current Sheriff Irwin Carmichael, who identifies as a Democrat, and yet has refused to end 287(g), a program President Trump supports wholeheartedly.

In Charlotte, the repercussions of this program have been massive. Last year, the sheriff’s department said it had “processed nearly 29,000 foreign-born people in the Mecklenburg jail since the program began. Of those, 15,018 were either deported or “placed in removal proceedings.”

Charlotte’s 287(g) program is just one example of the enormous power sheriffs have over the lives of local residents. The scope of their dominion varies slightly by county, but is almost always wide-reaching. Like other police officers, sheriffs can arrest you, serve you a warrant, write you a traffic ticket. But, depending on the county, they also perform countless other duties, including overseeing discretionary funds, patrolling highways, investigating crimes, and evicting tenants. And, as Charlotte illustrates, it is sheriffs who often decide who gets to call America home.

Perhaps most notably, in most places, sheriffs are also responsible for managing the local jails. This is particularly important because jails have functionally replaced mental health facilities in America and have become “the largest provider of mental health services in the county,” as Alan Greenblatt stated in Governing magazine. Ultimately, the sheriff has a major impact on the lives of those involved in the criminal justice system.

The extent of a sheriff’s power can border on dangerous. In some California counties, the sheriff even moonlights as the county coroner, an example of how sheriffs’ power obliterates any hope of accountability by the public. This is particularly concerning in situations including victims of police misconduct, where “having law enforcement oversee, say, the autopsies of police abuse victims invites abuse and creates an inherent conflict of interest.”

Across most of America, the only thing that could really limit the power of the sheriff is the voter. But that’s not really how it plays out on the ground. “In theory, sheriffs should be highly accountable, since they have to answer directly to voters,” writes Greenblatt in Governing. “But in practice, while a police chief may be lucky to serve three years, it’s not unusual for a sheriff to be around for 20.” As Professor Casey LaFrance told the New Yorker’s Rachel Aviv, “Once you become the sheriff, you’re likely to remain the sheriff until you retire or die.”

This is the main difference between sheriffs and police chiefs. Ultimately, police chiefs are accountable to the body that empowered them, and are subject to shifting political whims. Sheriffs, on the other hand, have no boss outside of the ballot box. They derive their power directly from the state constitution, making it hard to limit the extent of their powers, and they can be removed only by vote or the governor.

That power and independence is concentrated in a startling homogeneous population. According to one study, 95 percent of elected sheriffs are male and 99 percent are white. Nationwide, there are just three Black female sheriffs. Given the narrow demographic, it is perhaps unsurprising, then, that sheriffs tend to be more conservative than the general population, particularly on immigration.

Carmichael fits this mold. In Mecklenberg County, there has long been a tradition of anointed sheriffs who pass the position down to their chosen successor. Pendergraph was succeeded by his chief deputy, Chipp Bailey, also a white man and a Charlotte native who had spent his entire career in law enforcement. Bailey stayed just six years before retiring. Both Bailey and Pendergraph endorsed Carmichael.

Like his predecessors, Carmichael is extremely supportive of 287(g), and relies on limp excuses and nonsensical hypotheticals to justify it. He doesn’t even deny — or seem to care — that most of the people he refers to immigration authorities have committed a low-level crime.

“We’ve got to know who they are, what about if they commit murder in another country?” he said. (Carmichael did not provide any examples of this fear being founded.)

The 287(g) program isn’t the only terrible policy Carmichael has defended. In his first term as Mecklenburg’s sheriff, his record has been essentially barbaric.

In the past, this may not have mattered. But things are shifting now. Sheriff’s races are garnering slightly more attention in a couple places, and dramatically more in a fraction of those. Mecklenburg is part of that fraction.

Carmichael is fighting to win a tough primary on Tuesday, May 8. His opponents, Garry McFadden and Antoine Ensley, are also former law enforcement officers. But on many of the most important key issues, they differ dramatically from Carmichael.

Carmichael has repeatedly defended his decision to put juveniles in solitary confinement. He’s permitted the jail to force children to live in small, windowless jail cells completely alone for 23 hours a day. These kids aren’t permitted visits, library books, or phone access. Many of them haven’t even been convicted of crimes.

In 2016, both President Obama and North Carolina’s state prison system banned solitary confinement for juveniles. But Carmichael wouldn’t budge. That year, more than 110 juveniles in Mecklenburg County’s Jail North were subject to stays in solitary.

“It’s torture,” said retired Mecklenburg County jail official Karen Simon. “It’s abuse. And it’s done at the hands of the government.” Both Ensley and McFadden seem to agree — they have stated clearlythat they are against putting juveniles in solitary.

Carmichael also stopped allowing people to visit their loved ones in jail, instead requiring them to rely on video calls for communication. He called it a safety issue and claimed it was more convenient for inmates.

But critics say that video visits do not compare to the value of in-person visitation. It’s also a significant financial burden. If an inmate wants to make more than two video calls a week, it costs $12.50 — money that goes straight into the hands of GTL, the private corporation that owns the video visitation system.

Ensley and McFadden both say that, if elected, they would allow in-person visits again.

According to the ACLU of North Carolina, Carmichael also refuses to hold law enforcement accountable for wrongdoing, and won’t support“external, independent investigations of misconduct or criminal behavior in the sheriff’s office, such as if a person is killed by law enforcement.” Once again, Ensley and McFadden have both rejected Carimichael’s position and agreed to support such external investigations.

Mecklenburg County Sheriff's Office, Charlotte NC

Mecklenburg County Sheriff's Office, Charlotte NC added a cover video.

A promotional video on the Mecklenburg County Sheriff’s Office Facebook page shows deputies training with high-powered weapons and armored vehicles.

If either challenger is elected tomorrow, it’ll be a major shift — not only in Charlotte, but nationwide. As people become more aware of the power of local elected officials in the criminal justice system, it is increasingly possible that the people in charge may be more aligned with local residents.

Charlotte isn’t the only place with potential. Durham is, overall, even more progressive than Charlotte. But many of the decisions made by Durham County Sheriff Mike Andrews have not reflected local political standards. Like Carmichael, he has also refused to stop detaining people for the immigration authorities. The conditions of the local jailhave also been routinely criticized: during Andrews’s tenure, six people have died in the jail he oversees.

Andrews also made the controversial decision last year to prosecute the protesters who toppled a local confederate statue. (No one was injured during the statue’s removal.) Despite the fact that Andrews’s department knew that the protest was planned, they did nothing to stop the protesters. Afterwards, though, Andrews decided to bring serious charges against twelve defendants, “including felony charges for participating in and inciting a riot.” According to The Atlantic, sheriff’s deputies even searched some of their homes.

These are decisions that Andrews has had to answer for in the primary. His opponent, Clarence Birkhead, ran for the position last election and lost to Andrews. But this time, Birkhead has been endorsed by many of the same groups that endorsed Andrews last time. Birkhead has been clear that he wants to reduce incarceration and law enforcement interaction. “Decriminalizing poverty is a priority. Decriminalizing street-level drug dealing is a priority,” he stated at a candidate forum last month.

It’s not just North Carolina. In other counties across the country, regressive sheriffs are being challenged by forward-thinking candidates.

Republican Sacramento County Sheriff Scott Jones is one of the sheriffs facing opposition. His jurisdiction is decidedly more liberal than he is — almost 59 percent of Sacramento County voted for Hillary Clinton, while less than 34 percent supported Trump. Jones is noticeably out of step with his constituency, and he seems to know it. He’s been smart enough to stay relatively quiet about the intensity of his personal convictions, and until now it seems to have worked — he has largely managed to escape scrutiny and is currently running for a third term.

He often plays the centrist on issues, including immigration. During his failed bid for United States Congress in 2016, he presented a decidedly tempered perspective, declaring that undocumented immigrants “by and large” are “productive members of our community.” “They deserve more than what we are giving them despite the fact that they are here illegally,” he told the Sacramento Bee. “I would advocate for a pathway to legal status for each and every one of them.”

But since Trump’s election, Jones has become increasingly vocal about his real views on immigration. In March, he flew to D.C. to visit the White House, for a roundtable discussion with Attorney General Jeff Sessions, President Donald Trump, and local law enforcement officials. “There are spectacular failures every single day around California, and I’m sure beyond, of folks that ICE wants as part of their priority, criminals, that are going to go out and at a known recidivism rate and victimize other folks that we’re unable to capture, apprehend and keep detained for deportation,” Jones told Trump.

It’s not just immigration. During his tenure, Jones has been criticized for his department’s regular use of excessive force. The county has paid out millions of dollars because of bad behavior in his department, including $6.5 million last year to relatives of a schizophrenic man who was shot by a deputy in his home in front of his parents, and over $500,000 in a case where “an inmate in the downtown jail vomited blood for hours and died while deputies apparently stood around and did nothing.”

Jones has also been accused of sexual harassment and gender discrimination. In 2016, a former employee accused him of “making unwanted sexual advances.” The accusations were made public in the wake of a $3.5 million settlement granted to four of Jones’s female deputies “for harassment and retaliation” by their superiors.

And, if that weren’t enough, Jones has routinely ignored the concerns of the Black community, and has degraded groups that call for increased accountability for law enforcement. Last year, the local Black Lives Matter chapter wrote the sheriff a letter, expressing their concern regarding a “pattern of violence when engaging Black community members.” The letter provided detailed examples of excessive force and noted Jones’s refusal to provide additional information or explanation for those incidents. It also listed demands, including body camera footage and the disciplinary history of the officers who committed the acts.

Jones’s response was obstinate. “In my opinion, there are far more responsible voices for the African American community here in Sacramento than you; in fact, there is nothing local law enforcement can ever do that will earn your approval,” he wrote to Tanya Faison, the BLM chapter’s leader. “I suspect you will continue to try and subvert [my job] with continued mendacious versions of reality.”

In March, Sacramento city police shot and killed Stephon Clark, a 22-year-old unarmed Black man who was trying to visit his grandmother. They supposedly believed he had a weapon. It turned out to be a cell phone. Ten days later, during a protest in downtown Sacramento, one of Jones’s deputies instructed a woman to move. When she didn’t, he struck her with his car, and then drove away without confirming that she was okay.

Jones refused to apologize for the event, and did not express any sympathy for the injured woman. “There’s a high likelihood that he did not even know that he collided with that protestor,” Jones said,despite evidence to the contrary. He also implied the protests weren’t even real. “In many protests that have developed to this scope, there are professional protesters and professional instigators that infiltrate the protests for their own purposes,” he stated.

Despite his repeated failures, Jones has a confidence bordering on hubris. When he announced his intention to run for a third term, Jones seemed to think the election was a mere formality. “Listening to him expound on his succession plan for that office,” wrote the Sacramento Bee Editorial Board, “we wonder whether the lawman-turned-politician remembers that he was elected, not crowned.”

Jones, a burly man in his early 50s, has long fancied himself untouchable, an arrogance that isn’t entirely misplaced. The Sacramento Bee said the race was “shaping up to be little more than a preamble to a coronation.”

But recently, Jones has started to look much more vulnerable. In March, former Chief Deputy Milo Fitch announced that he would challenge Jones in November. “I felt an obligation to run for office because the current leadership of the Sacramento County Sheriff’s Department cannot deliver what our community needs,” he said.

Fitch proudly describes himself as a criminal justice reformer, and has stated that he would not collaborate with ICE if elected. He also wantsto approach public safety in a way that doesn’t simply focus on punishment, by “assisting inmates with education, job training, and life skills.” He’s spoken out against money bail, and has repeatedly emphasized the importance of eradicating bias and discrimination from the sheriff’s department.

Fitch is gaining significant support, and has garnered some critical endorsements, including from the mayor. He could present a serious problem for Jones, who, until recently, seemed to believe he’d cruise straight to re-election. That he is facing real competition is yet another sign that accountability for sheriffs may be increasing.

Traditionally tough-on-crime sheriffs have been a major contributor to mass incarceration, and policies like the ones Carmichael, Andrews, and Jones have implemented are disturbingly commonplace nationwide. Traditionally, they’ve managed to keep their jobs while pursuing policies that many of their constituents would likely find troublesome.

But now, as people begin to understand the extent of their power, things may be changing. In Charlotte, Carmichael is facing serious community opposition for his continuation of the 287(g) program, among other things. “The current sheriff has said that he believes the program is helping the community, keeping it safe, and he’s not willing to end it,” said Oliver Merino, a local organizer about Charlotte’s participation in 287(g). “We feel like the best way to get rid of the program is to get a new sheriff.”

Faulty Forensics: Explained

Illustration by Hisashi Okawa

Faulty Forensics: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In 1992, three homemade bombs exploded in seemingly random locations around Colorado. When police later learned that sometime after the bombs went off, Jimmy Genrich had requested a copy of The Anarchist Cookbook from a bookstore, he became their top suspect. In a search of his house, they found no gunpowder or bomb-making materials, just some common household tools — pliers and wire cutters. They then sent those tools to their lab to see if they made markings or toolmarks similar to those found on the bombs.

At trial, forensic examiner John O’Neil matched the tools to all three bombs and, incredibly, to an earlier bomb from 1989 that analysts believed the same person had made — a bomb Genrich could not have made because he had an ironclad alibi. No research existed showing that tools such as wire cutters or pliers could leave unique markings, nor did studies show that examiners such as O’Neil could accurately match markings left by a known tool to those found in crime scene evidence. And yet O’Neil told the jury it was no problem, and that the marks “matched … to the exclusion of any other tool” in the world. Based on little other evidence, the jury convicted Genrich.

Twenty-five years later, the Innocence Project is challenging Genrich’s conviction and the scientific basis of this type of toolmark testimony, calling it “indefensible.” Meehan Crist and Tim Requarth / The Nation

There are literally hundreds of cases like this, where faulty forensic testimony has led to a wrongful conviction. And yet as scientists have questioned the reliability and validity of “pattern-matching” evidence — such as fingerprints, bite marks, and hair — prosecutors are digging in their heels and continuing to rely on it. In this explainer, we explore the state of pattern-matching evidence in criminal trials.

1. What is pattern-matching evidence?

In a pattern-matching, or “feature-comparison,” field of study, an examiner evaluates characteristics visible on evidence found at the crime scene — e.g., a fingerprint, a marking on a fired bullet (“toolmark”), handwriting on a note — and compares those features to a sample collected from a suspect. If the characteristics, or patterns, look the same, the examiner declares a match. Jennifer Friedman & Jessica Brand / Santa Clara Law Review

Typical pattern-matching fields include the analysis of latent fingerprints, microscopic hair, shoe prints and footwear, bite marks, firearms, and handwriting. “A Path Forward” / National Academy of Sciences”] Examiners in almost every pattern-matching field follow a method of analysis called “ACE-V” (Analyze a sample, Compare, Evaluate — Verify). Jamie Walvisch /

Here are two common types of pattern-matching evidence:

Fingerprints: Fingerprint analysts try to match a print found at the crime scene (a “latent” print) to a suspect’s print. They look at features on the latent print — the way ridges start, stop, and flow, for example — and note those they believe are “significant.” Analysts then compare those features to ones identified on the suspect print and determine whether there is sufficient similarity between the two. (Notably, some analysts will deviate from this method and look at the latent print alongside the suspect’s print before deciding which characteristics are important.) President’s Council of Advisors on Science and Technology

Firearms: Firearm examiners try to determine if shell casings or bullets found at a crime scene are fired from a particular gun. They examine the collected bullets through a microscope, mark down characteristics, and compare these to characteristics on bullets test-fired from a known gun. If there is sufficient similarity, they declare a match. “A Path Forward” / National Academy of Sciences”]

2. What’s wrong with pattern-matching evidence?

There are a number of reasons pattern-matching evidence is deeply flawed, experts have found. Here are just a few:

These conclusions are based on widely held, but unproven, assumptions.

The idea that handwriting, fingerprints, shoeprints, hair, or even markings left by a particular gun, are unique is fundamental to forensic science. The finding of a conclusive match, between two fingerprints for example, is known as “individualization.” Kelly Servick / Science Mag

However, despite this common assumption, examiners actually have no credible evidence or proof that hair, bullet markings, or things like partial fingerprints are unique — in any of these pattern matching fields.

In February 2018, The Nation conducted a comprehensive study of forensic pattern-matching analysis (referenced earlier in this explainer, in relation to Jimmy Genrich). The study revealed “a startling lack of scientific support for forensic pattern-matching techniques.” Disturbingly, the authors also described “a legal system that failed to separate nonsense from science in capital cases; and consensus among prosecutors all the way up to the attorney general that scientifically dubious forensic techniques should not only be protected, but expanded.” Meehan Crist and Tim Requarth / The Nation

Similarly, no studies show that one person’s bite mark is unique and therefore different from everyone else’s bite mark in the world.Radley Balko / Washington Post No studies show that all markings left on bullets by guns are unique. Stephen Cooper / HuffPost And no studies show that one person’s fingerprints — unless perhaps a completely perfect, fully rolled print — are completely different than everyone else’s fingerprints. It’s just assumed. Sarah Knapton / The Telegraph

Examiners often don’t actually know whether certain features they rely upon to declare a “match” are unique or even rare.

On any given Air Jordan sneaker, there are a certain number of shared characteristics: a swoosh mark, a tread put into the soles. That may also be true of handwriting. Many of us were taught to write cursive by tracing over letters, after all, so it stands to reason that some of us may write in similar ways. But examiners do not know how rare certain features are, like a high arch in a cursive “r” or crossing one’s sevens. They therefore can’t tell you how important, or discriminating, it is when they see shared characteristics between handwriting samples. The same may be true of characteristics on fingerprints, marks left by teeth, and the like. Jonathan Jones / Frontline

There are no objective standards to guide how examiners reach their conclusions.

How many characteristics must be shared before an examiner can definitively declare “a match”? It is entirely up to the discretion of the individual examiner, based on what the examiner usually chalks up to “training and experience.” Think Goldilocks. Once she determines the number that is “just right,” she can pick. “In some ways, the process is no more complicated than a child’s picture-matching game,” wrote the authors of one recent article. Liliana Segura & Jordan Smith / The Intercept This is true for every pattern-matching field — it’s almost entirely subjective. “A Path Forward” / National Academy of Sciences”]

Unsurprisingly, this can lead to inconsistent and incompatible conclusions.

In Davenport, Iowa, police searching a murder crime scene found a fingerprint on a blood-soaked cigarette box. That print formed the evidence against 29-year-old Chad Enderle. At trial, prosecutors pointed to seven points of similarity between the crime scene print and Enderle’s print to declare a match. But was that enough? Several experts hired by the newspaper to cover the case said they could not draw any conclusions about whether it matched Enderle. But the defense lawyer didn’t call an expert and the jury convicted Enderle. Susan Du, Stephanie Haines, Gideon Resnick & Tori Simkovic / The Quad-City Times

3. Why faulty forensics persist

Despite countless errors like these, experts continue to use these flawed methods and prosecutors still rely on their results. Here’s why:

Experts are often overconfident in their abilities to declare a match.

These fields have not established an “error rate” — an estimate of how often examiners erroneously declare a “match,” or how often they find something inconclusive or a non-match when the items are from the same source. Even if your hair or fingerprints are “unique,” if experts can’t accurately declare a match, that matters. Brandon L. Garrett / The Baffler

Analysts nonetheless give very confident-sounding conclusions — and juries often believe them wholesale. “To a reasonable degree of scientific certainty” — that’s what analysts usually say when they declare a match, and it sounds good. But it actually has no real meaning. As John Oliver explained on his HBO show: “It’s one of those terms like basic or trill that has no commonly understood definition.” John Oliver / Last Week Tonight Yet, in trial after trial, jurors find these questionable conclusions extremely persuasive. Radley Balko / Washington Post

Why did jurors wrongfully convict Santae Tribble of murdering a Washington, D.C., taxi driver, despite his rock-solid alibi supported by witness testimony? “The main evidence was the hair in the stocking cap,” a juror told reporters. “That’s what the jury based everything on.” Henry Gass / Christian Science Monitor

But it was someone else’s hair. Twenty-eight years later, after Tribble had served his entire sentence, DNA evidence excluded him as the source of the hair. Incredibly, DNA analysis established that one of the crime scene hairs, initially identified by an examiner as a human hair, belonged to a dog. Spencer S. Hsu / Washington Post

Labs are not independent — and that can lead to biased decision-making.

Crime labs are often embedded in police departments, with the head of the lab reporting to the head of the police department. “A Path Forward” / National Academy of Sciences In some places, prosecutors write lab workers’ performance reviews. Radley Balko / HuffPost This gives lab workers an incentive to produce results favorable to the government. Research has also shown that lab technicians can be influenced by details of the case and what they expect to find, a phenomenon known as “cognitive bias.” Sue Russell / Pacific Standard

Lab workers may also have a financial motive. According to a 2013 study, many crime labs across the country received money for each conviction they helped obtain. At the time, statutes in Florida and North Carolina provided remuneration only “upon conviction”; Alabama, Arizona, California, Missouri, Wisconsin, Tennessee, New Mexico, Kentucky, New Jersey, and Virginia had similar fee-based systems. Jordan Michael Smith / Business Insider

In North Carolina, a state-run crime lab produced a training manual that instructed analysts to consider defendants and their attorneys as enemies and warned of “defense whores” — experts hired by defense attorneys. Radley Balko / Reason

Courts are complicit

Despite its flaws, judges regularly allow prosecutors to admit forensic evidence. In place of hearings, many take “judicial notice” of the field’s reliability, accepting as fact that the field is accurate without requiring the government to prove it. As Radley Balko from the Washington Postwrites: “Judges continue to allow practitioners of these other fields to testify even after the scientific community has discredited them, and even after DNA testing has exonerated people who were convicted, because practitioners from those fields told jurors that the defendant and only the defendant could have committed the crime.” Radley Balko / Washington Post

In Blair County, Pennsylvania, in 2017, Judge Jolene G. Kopriva ruled that prosecutors could present bite mark testimony in a murder trial. Kopriva didn’t even hold an evidentiary hearing to examine whether it’s a reliable science, notwithstanding the mounting criticism of the field. Why? Because courts have always admitted it. Kay Stephens / Altoona Mirror

4. Getting it wrong

Not surprisingly, flawed evidence leads to flawed outcomes. According to the Innocence Project, faulty forensic testimony has contributed to 46 percent of all wrongful convictions in cases with subsequent DNA exonerations. Innocence Project Similarly, UVA Law Professor Brandon Garrett examined legal documents and trial transcripts for the first 250 DNA exonerees, and discovered that more than half had cases tainted by “invalid, unreliable, concealed, or erroneous forensic evidence.” Beth Schwartzapfel / Newsweek

Hair analysis

In 2015, the FBI admitted that its own examiners presented flawed microscopic hair comparison testimony in over 95 percent of cases over a two-decade span. Thirty-three people had received the death penalty in those cases, and nine were executed. Pema Levy / Mother Jones Kirk Odom, for example, was wrongfully imprisoned for 22 years because of hair evidence. Convicted of a 1981 rape and robbery, he served his entire term in prison before DNA evidence exonerated him in 2012. Spencer S. Hsu / Washington Post

In 1985, in Springfield, Massachusetts, testimony from a hair matching “expert” put George Perrot in prison — where he stayed for 30 years — for a rape he did not commit. The 78-year-old victim said Perrot was not the assailant, because, unlike the rapist, he had a beard. Nonetheless, the prosecution moved forward on the basis of a single hair found at the scene that the examiner claimed could only match Perrot. Three decades later, a court reversed the conviction after finding no scientific basis for a claim that a specific person is the only possible source of a hair. Prosecutors have dropped the charges. Danny McDonald / Boston Globe

In 1982, police in Nampa, Idaho, charged Charles Fain with the rape and murder of a 9-year-old girl. The government claimed Fain’s hair matched hair discovered at the crime scene. A jury convicted him and sentenced him to death. DNA testing later exonerated him, and, in 2001, after he’d spent two decades in prison, a judge overturned his conviction. Raymond Bonner / New York Times

Bite mark analysis

In 1999, 26 members of the American Board of Forensic Odontology participated in an informal proficiency test regarding their work on bite marks. They were given seven sets of dental molds and asked to match them to four bite marks from real cases. They reached erroneous results 63 percent of the time. 60 Minutes One bite mark study has shown that forensic dentists can’t even determine if a bite mark is caused by human teeth. Pema Levy / Mother Jones

That didn’t keep bite mark “expert” Michael West from testifying in trial after trial. In 1994, West testified that the bite mark pattern found on an 84-year-old victim’s body matched Eddie Lee Howard’s teeth. Based largely on West’s testimony, the jury convicted Howard and sentenced him to death. Experts have since called bite mark testimony “scientifically unreliable.” And sure enough, 14 years later, DNA testing on the knife believed to be the murder weapon excluded Howard as a contributor. Yet the state continues to argue that Howard’s conviction should be upheld on the basis of West’s testimony. Radley Balko / Washington Post

West, who in 1994 was suspended from the American Board of Forensic Odontology and basically forced to resign in 2006, is at least partially responsible for several other wrongful convictions as well. Radley Balko / Washington Post

West himself has even discredited his own testimony, now stating that he “no longer believe[s] in bite mark analysis. I don’t think it should be used in court.” Innocence Project

Fingerprint analysis

The FBI has found that fingerprint examiners could have an error rate, or false match call, as high as 1 in 306 cases, with another study indicating examiners get it wrong as often as 1 in every 18 cases. Jordan Smith / The Intercept A third study of 169 fingerprint examiners found a 7.5 percent false negative rate (where examiners erroneously found prints came from two different people), and a 0.1 percent false positive rate. Kelly Servick / Science Mag

In 2004, police accused American attorney Brandon Mayfield of the notorious Madrid train bombing after experts claimed his fingerprint matched one found on a bag of detonators. Eventually, four experts agreed with this finding. Police arrested him and detained him for two weeks until the police realized their mistake and were forced to release him. Steve Pokin / Springfield News-Leader

In Boston, Stephan Cowans was convicted, in part on fingerprint evidence, in the 1997 shooting of a police officer. But seven years later, DNA evidence exonerated him and an examiner stated that the match was faulty. Innocence Project

A 2012 review of the St. Paul, Minnesota, crime lab found that over 40 percent of fingerprint cases had “seriously deficient work.” And “[d]ue to the complete lack of annotation of actions taken during the original examination process, it is difficult to determine the examination processes, including what work was attempted or accomplished.” Madeleine Baran / MPR News

Firearm analysis

According to one study, firearm examiners may have a false positive rate as high as 2.2 percent, meaning analysts may erroneously declare a match as frequently as 1 in 46 times. This is a far cry from the “near perfect” accuracy that examiners often claim. President’s Council of Advisors on Science and Technology

In 1993, a jury convicted Patrick Pursley of murder on the basis of firearms testimony. The experts declared that casings and bullets found on the scene matched a gun linked to Pursley “to the exclusion of all other firearms.” Years later, an expert for the state agreed that the examiner should never have made such a definitive statement. Instead, he should have stated that Pursley’s gun “couldn’t be eliminated.” In addition, the defense’s experts found that Pursley’s gun was not the source of the crime scene evidence. Digital imaging supported the defense. Waiting for Justice / Northwestern Law Bluhm Legal Clinic In 2017, a court granted Pursley a new trial. Georgette Braun / Rockford Register Star

Rethinking faulty forensics

Scientists from across the country are calling for the justice system to rethink its willingness to admit pattern-matching evidence.

In 2009, the National Research Council of the National Academy of Science released a groundbreaking report concluding that forensic science methods “typically lack mandatory and enforceable standards, founded on rigorous research and testing, certification requirements, and accreditation programs.” Peter Neufeld / New York Times

In 2016, the President’s Council of Advisors on Science and Technology (PCAST), a group of pre-eminent scientists, issued a scathing report on pattern-matching evidence. The report concluded that most of the field lacked “scientific validity” — i.e., research showing examiners could accurately and reliably do their jobs. Jordan Smith / The Intercept Until the field conducted better research proving its accuracy, the Council stated that forensic science had no place in the American courtroom. The study found that, regarding bite mark analysis, the error rate was so high that resources shouldn’t be wasted to attempt to show it can be used accurately. Radley Balko / Washington Post

After the PCAST report came out, then-Attorney General Loretta Lynch, citing no studies, stated emphatically that “when used properly, forensic science evidence helps juries identify the guilty and clear the innocent.” Jordan Smith / The Intercept “We appreciate [PCAST’s] contribution to the field of scientific inquiry,” Lynch said, “[but] the department will not be adopting the recommendations related to the admissibility of forensic science evidence.” Radley Balko / Washington Post

The National District Attorneys Association (NDAA) called the PCAST report “scientifically irresponsible.” Jessica Pishko / The Nation “Adopting any of their recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial,” the association noted. Rebecca McCray / Take Part

The NDAA also wrote that PCAST “clearly and obviously disregard[ed] large bodies of scientific evidence … and rel[ied], at times, on unreliable and discredited research.” But when PCAST sent out a subsequent request for additional studies, neither the NDAA nor the Department of Justice identified any. PCAST Addendum

This problem is getting worse under the current administration. Attorney General Jeff Sessions has disbanded the National Commission on Forensic Science, formed to improve both the study and use of forensic science, and which had issued over 40 consensus recommendation documents to improve forensic science. Suzanne Bell / Slate He then developed a DOJ Task Force on Crime Reduction and Public Safety, tasked with “support[ing] law enforcement” and “restor[ing] public safety.” Pema Levy / Mother Jones

But there are also new attempts to rein in the use of disproven forensic methods. In Texasthe Forensic Science Commission has called for a ban on bite marks. “I think pretty much everybody agrees that there is no scientific basis for a statistical probability associated with a bite mark,” said Dr. Henry Kessler, chair of the subcommittee on bite mark analysis. Meagan Flynn / Houston Press

A bill before the Virginia General Assembly, now carried over until 2019, would provide individuals convicted on now-discredited forensic science a legal avenue to contest their convictions. The bill is modeled after similar legislation enacted in Texas and California. The Virginia Commonwealth’s Attorneys Association opposes the legislation, arguing: “It allows all sorts of opportunities to ‘game’ the system.” Frank Green / Richmond Times-Dispatch

Meanwhile, at least one judge has recognized the danger of forensic expert testimony. In a 2016 concurrence, Judge Catherine Easterly of the D.C. Court of Appeals lambasted expert testimony about toolmark matching: “As matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic: it reflects nothing more than the individual’s foundationless faith in what he believes to be true. This is not evidence on which we can in good conscience rely, particularly in criminal cases … [T]he District of Columbia courts must bar the admission of these certainty statements, whether or not the government has a policy that prohibits their elicitation. We cannot be complicit in their use.” Spencer S. Hsu / Washington Post

Louisiana Held a Man in Jail for Over 8 Years Without Ever Convicting Him of a Crime

Louisiana Held a Man in Jail for Over 8 Years Without Ever Convicting Him of a Crime

In 2010 Democrats controlled the House, Senate, and presidency. Barack Obama was just heading into his second year in office. Social media was basically brand new. Adele had just won the Grammy for Best New Artist the year before. And millions of people in the United States had a naive hopefulness about the future of the country.

That February, over eight years ago, police in the New Orleans neighborhood of Carrollton raided a home where they said a 43-year-old man named Kevin Smith lived. Police claimed that they found small baggies of cocaine in a safe in the home—according to Smith’s attorney, however, Smith did not actually reside at this address. But he was arrested on drug charges nonetheless. Because of a previous conviction, the DA’s office had the ability—even though Smith was just facing a nonviolent drug charge—to prosecute him under a repeat felony statute in the state that would lead to up to 20 years in prison.

That’s ugly and problematic, and it’s normal. Jails and prisons in the United States are full of nonviolent drug offenders who were given harsh sentences, including life in prison, once they were found guilty.

And that’s the rub.

Smith has never been convicted of the crime that he was arrested for.

Smith sat in jail for the rest of 2010 and all of 2011. He was locked up for all of 2012 because his defense requested continuances several times and court was closed due to Hurricane Isaac that fall. He sat in jail for all of 2013, 2014, and 2015. In 2014, after Smith had sat in jail for four years, prosecutors offered him a plea deal. They’d let him go on time served if he would just plead guilty.

But Smith refused. And that matters. He maintained that he did not have any cocaine and was not guilty of the crimes that police and prosecutors were accusing him of. Now, we’re talking about a man who’d just spent four years in jail and could potentially spend about 15 more if convicted.

But the madness continued. Without ever being convicted by a jury of his peers, local authorities kept Kevin Smith in jail anyway. He remained there for the rest of 2015, for all of 2016, then for all of 2017.

Then he finally got a break. On November 13, 2017, the judge in Smith’s case granted a defense motion to quash the indictment against him. Having been held in jail for nearly eight outrageous years without ever being convicted, it looked like Smith was finally going to get justice.

At that point, I forgot about the case. I read stories of his impending release, was disgusted that our justice system even had the power to incarcerate a man for years who had not even been convicted of a crime. I assumed that he had been released in time to get home for Thanksgiving and Christmas.

The case then disappeared from public view, but little did we know that the injustice continued.

Smith was not a free man. I had no idea until several days ago when his family and friends got my attention through comments on my Instagram page telling me that they saw me share his story last November and that he was still in jail. I asked them to email me and immediately got this reply.

Good Morning Mr. King!
Kevin is still incarcerated! He was released from Orleans Parish Prison, however the parole board is holding him until March 04, 2022. The Orleans Parish District Attorney was very sore that he was not convicted so Kevin believes that he has something to do with him being held on the parole end! He had been in jail since Feb 2010. Kevin is currently being held at the River Correctional Facility.

Had his case gone to trial? Had he been found guilty sometime between November and now? I asked his family and friends all of these questions and more, and each time they came back to tell me “no.” Smith had still not been found guilty of a crime.

But he was still being held in jail — this time at a private prison, River Correctional Facility, managed by LaSalle Corrections and a family that has gotten filthy rich off of jailing more people per capita than any state in the country.

How was this even possible? It appears that state officials claimed that Smith violated his parole by not properly changing his mailing address years ago, according to one of his former attorneys. Yes, I’m dead serious.

And his family says that Smith will serve out his parole in a correctional facility until 2022 when, according to the court docket, his parole expires.

“Simply put, the District Attorney was not able to convict him,” Martin Regan, one of Smith’s former attorneys, told me. “They dragged their feet and when they got to the parole board they brought people in who did not know the case. The parole board accepted the testimony of some unsworn witnesses who inaccurately presented the case. It was an injustice.”

Listen to me — I study injustice for a living. I’ve never seen anything so corrupt and outrageous in my life. This man is now going on his ninth year in jail without ever having been convicted for a crime. It appears that his body is being housed and used for profit in jail and for some type of vendetta from local officials.

Whatever the case, it’s an egregious injustice and we must all organize to make sure that Kevin Smith is released and that no such thing happens ever again.

Meet The San Diego DA Who Seized On The Human Trafficking Panic to Become A Law Enforcement Superstar

San Diego County District Attorney Summer Stephan
Summer Stephan for DA / Facebook

Meet The San Diego DA Who Seized On The Human Trafficking Panic to Become A Law Enforcement Superstar

When veteran San Diego District Attorney Bonnie Dumanis announced her resignation during the spring of 2017 to run for a spot on the county’s Board of Supervisors, she was clear about who she wanted to finish her term and ultimately serve as San Diego’s next DA: her Chief Deputy Summer Stephan. Indeed, another former deputy district attorney said in an email obtained by the San Diego Union-Tribune that Dumanis envisioned a “smooth transition,” where Stephan would be gifted incumbency before having to face potential challengers in this June’s election.

In the years leading up to Dumanis’s resignation, Stephan — who was appointed interim DA in June 2017 — was a rising star at the office. Between 2005 and 2008, she was the chief of the San Diego DA’s Sex Crimes and Human Trafficking Division and in 2012 she was designated chief deputy DA. Since then, she has enjoyed support from local anti-trafficking groups and advocates, boosting her as an expert and leader, and formed alliances with national lobby groups like Demand Abolition. These groups are also united in pushing for tougher law enforcement action against trafficking — but with a focus on campaigning against sex work and cracking down on sex workers’ customers.

Stephan’s elevation as an anti-trafficking voice coincided with anti-trafficking groups’ efforts to put their issue in the spotlight. In October 2015 a headline-grabbing University of San Diego study declared that San Diego was home to up to 11,800 victims of human trafficking “per year” which appeared to vindicate Stephan’s trafficking focus. A joint press conference about the study featuring Stephan and the University of San Diego’s School of Peace Studies painted a devastating portrait of thousands of mostly young women whom gangs trafficked for sex. “I didn’t expect the number to be this high myself,” said Ami Carpenter, a co-author on the study, “But I’m fully confident in our methods.”

The study has since been used by anti-trafficking groups, such as the Alabaster Jar Project and even the Church of Scientology of San Diego, to make broad, authoritative claims about trafficking in San Diego County. But by April 2016, the Department of Justice had pushed the researchers to revise it significantly; the number of trafficking victims was pared down from an estimated range of 8,830 to 11,773 victims to an estimated range of 3,417 to 8,108 victims. But even the revised-down figure presents its own problems, said Dr. Anthony Marcus, chair of the anthropology department at John Jay College of the City University of New York, who has also conducted DOJ-funded research into trafficking. “Any time the range for a number is that wide — 3,417 to 8,108, much more than 100%,” Marcus told The Appeal, “it raises questions about how well the research can actually answer its own questions.” These limitations did not prevent groups that had coalesced around the issue of trafficking in San Diego to run with the study’s findings of a vast, hidden “industry” worth $810 million per year.

Jamie Gates speaking at an event on human trafficking organized by the San Diego Union-Tribune. This is a map of phone calls to a trafficking hotline.

Like many of her peers in law enforcement who have focused on fighting trafficking with arrests and prosecutions meant to disrupt sex work, Stephan believes there’s no meaningful difference between sex work and trafficking. “Just from being on the ground doing this work for a long time, even those people that tell you they are choosing this life, they were recruited at an early age,” Stephan told the Voice of San Diego earlier this month. “So in my head, you know, how do you really become free if this is all you know when you don’t have [an] education or any other line of work to sustain yourself?”

This view, that women who sell sex are incapable of making their own choices, also extends to San Diego law enforcement’s view of women in the sex trade as trafficking victims. “Most victims will not identify as a victim until they encounter law enforcement between 7–10 times,” Matt Blumenthal, a sergeant with the San Diego County Sheriff’s Department and a supervisor at the San Diego Human Trafficking Task Force (HTTF), wrote in a blog post for the anti-trafficking nonprofit Thorn. Until a “victim” accepted law enforcement intervention, Blumenthal continued, they would also be uncooperative with prosecutors.

Summer Stephan Trafficking Deck

Source document contributed to DocumentCloud by Matt Henry (In Justice Today).

Slides from a presentation Stephan delivered in June 2016.

These prosecutors include Summer Stephan’s office, also a member of the HTTF, whose investigations of suspected trafficking often result in crackdowns on sex work. In June 2016, Stephan touted an operation targeting an online message board featuring advertisements for sex work as a major success in combating trafficking. Yet no trafficking charges were filed. Similarly, the HTTF runs annual prostitution stings dubbed Operation Reclaim and Rebuild that Stephan described as a “wake up call for men who buy sex,” after a March 2018 sting resulted in 29 arrests of men allegedly attempting to buy sex. Stephan’s office said this operation targeted “the demand side of sex trafficking.”

Operation Reclaim & Rebuild News Release SD Version 1 30 18

Source document contributed to DocumentCloud by Melissa Gira Grant (In Justice Today).

Press release announcing the arrests of 29 men for allegedly buying sex

This “end demand” approach, supported by Stephan and groups in San Diego funded by Demand Abolition, is based on the belief that preventing men from buying sex in the first place is necessary in order to end human trafficking. This is why Stephan supported a program called the Cyber Patrol, first created by a Portland-area pastor that recruited volunteers — including current and former police officers — to create fake sex work ads, then inform the men who called for their services that sex workers are mostly trafficking victims. “Cyber Patrol, they are disrupting the demand,” Stephan toldthe San Diego Union-Tribune, “but actually at its core it’s providing accurate information about the damage and the harm that buying does.”

As for actual human trafficking, a category that also includes labor trafficking, prosecutions at Stephan’s office are down to 19 in total for the fiscal year ending in September 2017 from a high of 32 in 2013. As Cyber Patrol and Operation Reclaim and Rebuild demonstrate, what Stephan’s office has focused on instead is targeting men who attempt to buy sex, as well as lobbying for increased penalties for these men.

Stephan has touted her office’s support of new state laws that she says will help people who have been trafficked. The San Diego district attorney’s support of these laws is relatively new, however. In 2016, the office opposed SB 1322, which decriminalized prostitution for minors, joining with other prosecutors in the state, as well as SB 823, which would have vacated past criminal charges of those who were prosecuted while they were being trafficked. But since SB 823 went into effect, the San Diego public defender’s office and Free to Thrive, a local nonprofit that provides legal services to trafficking survivors, told The Appeal they have only been able to clear the records of six individuals.

In a recent interview with the San Diego Union-Tribune, Stephan acknowledged that her high-profile work on trafficking launched her into the top prosecutor spot once Dumanis announced her resignation. “Victims’ groups, a lot of the human trafficking work that I do, started to say, are you going to be the next DA,” she said. “We now are the gold standard for how you do sex crimes and human trafficking. I get called by other DA offices all the time to try to recreate it.” Prominent Stephan supporters, too, repeatedly tout her trafficking focus. On April 25, San Diego Convention Center Chair Gil Cabrera tweeted that Stephan “has lead [sic] the field” in trafficking.

But in the June 5 election, Stephan faces insurgent candidate Geneviéve Jones-Wright, a longtime public defender who is challenging Stephan’s record on trafficking, requesting cash bail for low-level offenses, advocating for rollbacks of recent criminal justice reforms, and highlighting Stephan’s failures in sexual assault cases. “My opponent’s failed leadership as head of the Sex Crimes Unit created the backlog of thousands of untested rape kits in San Diego County,” Jones-Wright said in March.

In an interview with The Appeal, Jones-Wright was particularly critical of Stephan’s trafficking prosecutions. “I’ll just be very blunt here,” Jones-Wright said, “she’s able to harp on these things because this has been her brand.” Contrary to Stephan’s assertion that sex workers are victims of trafficking, Jones-Wright explained, “there is absolutely the reality of voluntary sex workers, and, to say anything other than that is to be misinformed. So a person who touts herself as a national expert, who sits on all of these commissions couldn’t be more wrong in the field of her expertise. That is dangerous. It’s dangerous for combating human trafficking, it’s dangerous for protecting victims, it is dangerous for actually helping people who are engaged in sex work help law enforcement get the quote-unquote ‘bad guys’ who are abusing people.”

Jones-Wright also blasted Stephan for supporting a new federal law that would make online platforms liable for prostitution-related content, meant to shut down classified ads site but in reality making any website a target. The law’s proponents said it will combat trafficking — Stephan hailed it as ushering in an era when men will no longer “feel the anonymity of just going online and ordering a person like you’re ordering pizza” — but it has already resultedin the closure of websites sex workers rely on for income and safety. Jones-Wright believes that the legislation will make it more difficult to “to actually investigate and know who these people [traffickers] are … I would prefer for them to be on Backpage and Craigslist because we need to know who they are, if they are selling our children.”

Stephan’s representatives did not respond to repeated requests for comment from The Appeal.

Promising tough action against trafficking has helped Stephan garner an image as a progressive leader, even as the “reforms” she supports perpetuate the carceral status quo of criminalizing sex work, while possibly making it more difficult to help the actual victims of trafficking. Even Stephan seems to acknowledge her office’s limits in combating trafficking. “We know we can’t prosecute ourselves out of it,” she said in a 2017 story on San Diego’s “slow but steady progress” in the trafficking fight. Still, she added, “[i]t has to be a war that everyone engages in.”

How Naming a Drug Operation for a Fallen Trooper Endangers His Alleged Killer’s Fair Trial

Cash, weapons, and drugs seized by Louisiana State Police in an operation named after the unit number of a slain trooper.
Louisiana State Police / Facebook

How Naming a Drug Operation for a Fallen Trooper Endangers His Alleged Killer’s Fair Trial

When Kevin Daigle was set to be tried in late April on first-degree murder charges for allegedly killing a Louisiana state trooper in August 2015, he faced the steepest of odds: Prosecutors in the case decided to seek the death penalty, and juries are prone to deliver death verdicts when the life of a law enforcement officer is taken.

But Daigle’s dilemma deepened in mid-April when the Louisiana State Police (LSP) arrested more than 180 people on drugs and weapons charges and named the operation “D-57” after the unit number of the slain trooper, Steven Vincent. Incredibly, the LSP said in a statement that “Trooper Vincent’s son requested we [would] ‘find a lot of drugs’ if we used his father’s LSP unit number as the operation title, and that’s exactly what resulted.” In photographs released to the media, the LSP displayed the drugs and weapons the agency allegedly seized in the operation, accompanied by a Louisiana license plate that read “D-57.”

The LSP’s arrests were not confined to the Southwest Louisiana parish — Calcasieu — where Vincent was murdered. Instead, the nearly 200 people taken into custody on drugs and weapons charges were from across Louisiana, meaning that news of the operation conducted in the murdered trooper’s name reached nearly every corner of the state.

Why does an anti-drug operation and its attendant publicity matter for Daigle? Because his defense team had already argued that the extraordinary attention surrounding the case — which included near-constant local media coverage and even articles in national publications like USA Today and theNew York Times — would prejudice the Calcasieu Parish jury pool. In 2016, Louisiana 14th Judicial Court judge Guy Bradberry agreed and decided that the jury should be selected from Bossier Parish, about 200 miles away, and then brought to Calcasieu to hear the guilt phase of the trial. Naming the statewide effort “Operation D-57,” then, compounded the problem of a fair and impartial jury for Daigle, who faces execution at the hands of the state of Louisiana.

Courts have recognized the outsized influence that the police can exert on a defendant’s right to a fair trial. Such troubling situations often arise when police make public pretrial statements about the case, pack a courtroom with officers in uniform during trial, or, as here, engage in a massive drug operation that reignites a community’s outrage over a police shooting. Such conduct can violate a defendant’s 14th Amendment due process right to a fair trial. It compromises the person’s right, in other words, to a jury that impartially decides his or her fate based only on the evidence, and not on emotions or preconceived impressions.

Unsurprisingly, on April 27, Daigle’s defense team filed yet another motion to seek a change of venue precisely because of “Operation D-57.” Soon afterward, the Louisiana Supreme Court stayed the trial indefinitely, but did so based on a separate defense motion. The defense sought to recuse Judge Bradberry because of numerous alleged conflicts of interest in the case, including the fact that he and Trooper Vincent’s wife are Facebook friends and that Bradberry or his wife may have “liked” a Facebook post offering prayers for the Vincent family.

Louisiana’s Third Circuit Court of Appeal ultimately ruled that Bradberry will remain on the case and for now it’s unclear when — or where — Daigle’s trial will take place. But the extraordinary publicity surrounding a massive drugs and weapons operation conducted by the state police, all in the name of their fallen trooper, suggests that Daigle’s uphill battle for a fair capital trial might have taken a precipitous and perhaps fatal turn.

New Federal Prison Policies May Put Books and Email on Ice

USP Victorville

New Federal Prison Policies May Put Books and Email on Ice

The Federal Bureau of Prisons (BOP) is quietly rolling out a pair of new policies that could restrict access to books and communications for the system’s nearly 200,000 prisoners.

The first of the new policies bans all books from being sent into federal facilities from outside sources including Amazon and Barnes & Noble. These retailers are usually the only means by which prisoners can receive books because most facilities reject reading material sent from individuals or small bookstores due to regulations aimed at eliminating contraband.

Now, prisoners instead will have to submit a request to purchase books — a limit of five per order — through an ordering system in which they must pay exorbitant prices and don’t have the option to buy cheaper used paperbacks. In addition, prisoners must pay a 30 percent tax plus shipping cost, according to prisoners and memos distributed in at least three BOP facilities. Under the new protocol, a book purchased from Amazon for as little as $11.76, with shipping included, could cost more than $26.

The new books policy has yet to be implemented BOP-wide but it has been in effect in the United States Penitentiary in Atwater, California, since October 11, 2017, according to Atwater officials. And it has been in place at the Victorville Federal Correctional Institution (FCI) since February 24, 2018, according to a BOP memo obtained by the CAN-DO Foundation, a nonprofit that advocates for clemency for all nonviolent drug offenders. In the memo, warden David Shinn wrote that the change was a result of “attempts to introduce narcotics … unauthorized positive urinalysis; inmate on inmate assaults; and inmate on staff assaults.” Three prisoners incarcerated at FCI Victorville told The Appeal that the new policy has resulted in a massive price increase for books as well as months of wait time between orders.

“One friend of mine bought two $4.99 books and the price ended up being $42 total,” said one prisoner, who requested not to be named out of fear of retribution from prison officials. “Plus, the books take months to arrive.”

The warden of the Coleman Correctional Complex in Florida sent a similar memo to prisoner in March advising that the policy will go into effect in May.

“Effective Monday, May 14, 2018, books from a publisher, book club, bookstore, or friends and family will no longer be accepted through the mail,” reads the memo from warden R.C. Cheatham which was first obtained by the Families Against Mandatory Minimums organization (FAMM). “Books will be rejected by mailroom staff and returned to sender.”

The BOP’s new policy is likely to be harmful because books are a critical part of the rehabilitation process, allowing prisoners to learn and develop new skills. A 2013 RAND study found that prisoners who received education in prison had 43 percent lower odds of recidivating than those who did not. “Your books are everything,” Amy Povah, a formerly incarcerated person and CAN-DO founder, told The Appeal. “It’s what keeps you going.”

Clarence Remble, a prisoner who is serving a 36-year sentence at Victorville, told The Appeal that steep prices and lengthy wait times have meant that he and other prisoners have stopped ordering books altogether.

“The fox is not worth the chase so I and others no longer order books cause they cost too much,” he said.

When asked about the book policy at Coleman during a BOP house oversight hearing on April 17, BOP Director Mark Inch claimed he hadn’t seen the memo and then stumbled through an unintelligible explanation of it.

“The memo you’re looking at, I’ve not actually seen that memo but the work that we are doing on combating the introduction of contraband into our facilities addresses multiple ways of materials are brought into our facilities as we look and pilot different ways to (inaudible) contraband,” he said.

Inch argued that prisoners can access books through recreational and legal libraries. But CAN-DO’s Povah says that library selections are mostly limited to Harlequin romance novels and fiction by the likes of Stephen King and John Grisham.

BOP told FAMM it is planning to write a “new memo” due to the criticism it received after news of the Coleman memo broke in the Miami New Times in early April, according to FAMM’s president, Kevin Ring. But prisoners in both Coleman and Victorville say they haven’t heard anything about a change in — or reversal of — the memo.

BOP did not return requests for comment from The Appeal.

In the second new directive, BOP is placing new limits on prisoner communications that will greatly affect who they can talk to on the outside. Under this policy, no two prisoners are allowed to have the same person on their contact list in prison email system, known as CorrLinks, according to memos circulated circulated in Coleman, Victorville, and California’s DublinFederal Correctional Institution.

Victorville Memos

Source document contributed to DocumentCloud by Matt Henry (In Justice Today).

“An inmate’s contact list may not possess another inmate’s immediate family member, friend, or contact located on the inmate’s approved list,” reads the March 22 Dublin memo, adding it will make exceptions for “attorneys, clerks of the court, and other contacts approved on a case-by-case basis.”

The new CorrLinks policy is already in effect at Victorville and USP Atwater, and Povah said she has received five notices stating that she had been removed from prisoners’ contact lists. The policy is slated to go into effect in Dublin on April 23 and Coleman on May 14.

Advocates say that the rule will cut off prisoners from communicating with advocates, pen pals, family members, friends, and journalists who are in touch with multiple prisoners in one facility.

“This will prevent us from assisting prisoners or learning about the very abuses we are discussing now,” Povah said. “It’s as if they want to cut prisoners off from the outside world altogether.”

New Documents Reveal How ICE Mines Local Police Databases Across the Country

New Documents Reveal How ICE Mines Local Police Databases Across the Country

In cities across the country, Immigration and Customs Enforcement Homeland Security Investigations agents can mine local police reports using COPLINK, a data program little known outside law enforcement circles. While public records have revealed ICE’s access to this program in the past, new documents, obtained by the ACLU of Massachusetts and shared with The Appeal, offer the first up-close glimpse at how the program allows ICE to access millions of sensitive police records.

The software ingests local police databases, allowing users to map out people’s social networks and browse data that could include their countries of origin, license plate numbers, home addresses, alleged gang membership records, and more.

ICE HSI agents have direct access to the Massachusetts version of the COPLINK system, which receives records from Massachusetts’s Registry of Motor Vehicles, Board of Probation, and at least local 25 police agencies. As NPR has previously reported, ICE also has direct access to COPLINK-powered databases in other jurisdictions across the country, gathering data from dozens of police departments across Los Angeles County and Arizona.

Law enforcement officials and former ICE agents say the sharing of these databases and analytic tools helps ICE Homeland Security Investigations — the agency’s investigative arm — tackle serious crimes, like child pornographyand money laundering. But immigration advocates point out that ICE HSI agents are also involved in questionable immigration enforcement actions nationwide. These include investigations into undocumented residents accused of gang membership, sometimes based on flimsy evidence, and controversial workplace raids, which acting ICE chief Tom Homan recently announced plans to quadruple.

Earlier this month, at a slaughterhouse in Bean Station, Tennessee, ICE HSI agents carried out the largest workplace raid in over a decade, rounding upnearly 100 immigrants. Advocates say this raid signals a return to George W. Bush-era style workplace enforcement actions, which swept up hundreds of immigrants in towns like New Bedford, Massachusetts, over a decade ago.

Department of Homeland Security (DHS) data-sharing agreements obtained by The Appeal through the Freedom of Information Act make clear that ICE agents can access COPLINK “in the same manner” as local law enforcement for immigration enforcement purposes.

The constantly updated police records in COPLINK, arising from day-to-day police encounters, can be indispensable for ICE HSI agents, who often need to find addresses, cars, phone numbers, and associates that are not necessarily housed in federal or private sector databases, according to Massachusetts police and former ICE agents interviewed by The Appeal. They can help ICE officers conduct background research on employees before a workplace enforcement action or when planning logistics for a gang raid.

In a phone call with The Appeal, ICE spokesperson John Mohan declined to discuss ICE’s use of COPLINK. “We don’t talk about the techniques or tools [ICE agents] use,” said Mohan. The Appeal has since filed a Freedom of Information request for data on ICE agents’ querying of COPLINK databases across the country.

Notably, many of the major police departments that feed into COPLINK, and allow ICE direct access to their data, are situated in so-called “sanctuary” jurisdictions that have promised some measure of protection to undocumented immigrants. Los AngelesSan Gabriel, and Pasadena police, for example, feed into a Los Angeles County-wide COPLINK database, and Boston, Somerville, and Cambridge police feed into Massachusetts’s COPLINK regional database.

Kade Crockford, director of the ACLU of Massachusetts’s Technology for Liberty Program, argues that although it’s unclear whether sanctuary cities can legally withhold data from ICE, they should not actively help ICE agents by giving them direct access to local systems like COPLINK.

“By giving ICE and other federal agencies credentialed access to state and local law enforcement databases, communities are perhaps unintentionally endangering immigrants and other groups who may be targeted by the federal government,” Crockford said in a statement to The Appeal. “Data is toxic, and local communities must understand exactly what their police are collecting, how they are retaining it, and under what circumstances outside entities like ICE can access it.”

How the Program Works

COPLINK was initially developed by University of Arizona researchers in collaboration with the Tucson Police Department in 1998, as a way to share information between local police departments regionally. It has since spread to over 5,100 law enforcement jurisdictions throughout the United States and is now owned by the technology firm Forensic Logic.

ICE’s access to local COPLINK police databases has grown as well. In 2008, ICE signed data-sharing agreements with AZLINK, the COPLINK data hub in Arizona, and with IRIS, the COPLINK hub in Los Angeles County. It is unclear when ICE first formally gained access to Massachusetts police data through COPLINK, but a training roster obtained from the Massachusetts State Police listed numerous ICE agents and analysts next to dates, which correspond to COPLINK training sessions in 2015 and 2016.

In Massachusetts’s version of COPLINK, 25 police agencies across the state automatically feed almost all the data from their records management systems — including arrests, complaints, and citation reports — into COPLINK, according to the documents. Databases from another 13 police departments, in addition to the state’s Department of Correction, Parole Board, and sex offender registry, were being integrated into the program as of last year. According to Lieutenant Colonel Dermott Quinn, commander of the Massachusetts State Police’s Division of Investigative Services, the system also intakes accident reports, parking tickets, and field interview notes from local police departments.

ICE HSI agents have virtually unfettered access to COPLINK in Massachusetts. Similarly, ICE’s data-sharing agreements with Arizona’s AZLINK and the Los Angeles Sheriff’s Department’s IRIS, both COPLINK systems, state explicitly that ICE agents are free to mine their data. In 2011, for example, Department of Homeland Security users, including ICE personnel, searched AZLINK, an Arizona regional data system that uses COPLINK software, thousands of times over a six-month period.

Drawing from this body of records, COPLINK allows users to search for individuals, organizations, and vehicles, among other things. These searches can be narrowed down using filters, such as a person’s race, hair color, eye color, complexion, ethnicity, and country of origin. The slide below also shows that users can search for people based on their residence and physical marks on their bodies.

In the slide below, the state police attempted to redact information, concealing their investigative techniques with black boxes. The black boxes on the files, however, can be deleted. The Massachusetts State Police did not respond to The Appeal’s inquiry about the original redactions. The Appeal has chosen to publish select portions of the redacted documents, with some new redactions added to protect people’s identities, to show the tremendous search capabilities the program affords users, whether they be local cops or ICE agents. This document, for example, shows that police officers and ICE agents using COPLINK can also filter through masses of records to find people alleged to be gang members.

Work that would have taken months in the past, and required piecing together disparate data points from agencies across the state, can now be done with a few clicks, says Lieutenant Michael Kmiec of the Lynn Police Department in Massachusetts. “It speeds up the process in looking at information in other departments. Instead of calling the other department, you can pull it directly,” said Lieutenant Kmiec to this reporter, then a freelancer with ProPublica, in a phone call last September. “Regarding the FBI and ICE, if they’re looking to look up a name or vehicle information, it’s a database accessible to them to look up things quickly.”

Clashing Interests: Law Enforcement vs. Immigrants’ Rights

Law enforcement officials interviewed by The Appeal argue the sharing of residents’ data with ICE has clear benefits at both local and federal levels.

Local databases and analytic tools, like Massachusetts’s COPLINK system, are a treasure trove for ICE HSI special agents because they provide granular data that federal agents often lack, says John Sandweg, former acting director of ICE in 2013 and 2014. “Say you have a suspect and you’re working on a federal case, you want to tap into the information, do associate mapping, link analysis — it can be huge for an investigation,” said Sandweg in a phone call. “They’re going to have more information than the feds.”

For ICE’s worksite enforcement operations, analysts rely on this type of local police data to do deeper background checks on undocumented employees. Claude Arnold, a retired ICE special agent who led the agency’s national gang initiative, Operation Community Shield, explained how it works. “Say they’re preparing a worksite case and they’re running all the employees of the company. They’re going to run criminal checks, but the NCIC [National Crime Information Center] and other federal databases wouldn’t have field interview cards [in which police transcribe notes on interactions with or observations of civilians],” he told The Appeal. While NCIC contains some gang information, COPLINK would be more likely to have information on employers, associates, and hangout spots, he explained. “It would sweeten the pot if a bunch of the employees are criminal aliens. When you go to the U.S. Attorney’s Office, you can say not only are they employed illegally, there are two gang bangers and this guy has two illegal entries.”

The help goes both ways. Local law enforcement sometimes calls on ICE HSI to deport alleged gang members when local authorities don’t have enough evidence to lead successful investigations themselves, Sandweg points out“Say you got a guy who’s been deported and he’s back, it may be difficult to find probable cause on him for a criminal investigation, but it’s easy to do civil proceedings for a deportation,” said Sandweg. “Maybe some innocent people have been picked up, but HSI has got a lot of violent felons off the streets.”

Arnold reiterated this point, noting that local police routinely rely on this kind of collaboration with ICE. “Typically, what would happen is the local police would give me a list of the people in that gang, and then we just do a full workup on all of them, and that’s what you’d use COPLINK for,” said Arnold, referring to research done on the targets’ immigration status and their potential criminal and civil immigration violations.

Lieutenant Quinn of the Massachusetts State Police says that people should not be concerned about these search capabilities being shared with ICE Homeland Security Investigations because much of HSI’s work focuses on high-level cases.

“We work with HSI on the criminal side. They do a lot of criminal work and that’s what we help with,” said Quinn to this reporter, then a freelancer with ProPublica. “It’s just plain old criminal work that has been enhanced by these tools,” he added, referring to the fact that ICE HSI carries out a wide range of investigations, from financial and cyber crimes to export enforcement and weapons smuggling.

But those aren’t the only types of investigations handled by ICE HSI, explains Maddie Thomson, an immigration attorney at Boston’s Community Law Office. The example she cites isn’t about a COPLINK case, but does show the breadth of the agents’ work and their reliance on local police records.

In March, one of Thomson’s clients, a young Salvadoran man who was classified as a gang member despite having no criminal record, was deported after having entered the country without inspection, a civil matter, following an ICE HSI investigation.

The evidence cited in immigration court for his alleged membership in MS-13 were all local police documents, school police observations and field interrogation and observation (FIO) records, which ICE in this case pulled from a Boston police gang database. In smaller jurisdictions that do not feed records into a gang database, however, ICE could have just as easily used COPLINK to pull the same records.

In immigration court, Thomson’s client’s familiarity with other alleged gang members helped greenlight his deportation. “The DHS attorney would ask him, ‘Do you know this person? Do you know that person is a gang member?’ and he’d say, ‘No, I just knew him as someone playing pick up soccer in the park,’” recalled Thomson. In February 2018, her client received a final removal order. He was put on a plane to El Salvador last month.

ICE’s willingness to remove undocumented people who could not be prosecuted through domestic criminal courts violates the spirit of due process, argues Sarah Sherman Stokes, a clinical instructor in the Immigrants’ Rights Clinic at Boston University School of Law.

“For them, it’s better if a bunch of innocent people get apprehended than letting one guilty person go free,” said Stokes, who has represented young immigrants put into deportation proceedings due to ICE HSI investigations. “I’m incredibly troubled by the kind of information-sharing happening with local law enforcement and ICE, and am increasingly disturbed by the role of HSI in apprehending immigrants, whom there otherwise wouldn’t be probable cause for law enforcement to apprehend.” ICE declined to comment on HSI’s role in immigration proceedings.

Where and How Local Police Data Is Being Shared

Several of the 25 police departments sharing data with COPLINK are in the greater Boston area, home to many of the state’s largest and densest undocumented communities, even so-called “sanctuary” cities, such as Bostonand Cambridge.

In the interactive map below, viewers can see where local police departments are fully sharing or in the process of sharing data with COPLINK, and, in effect, with ICE. Click on the department dots to see their data-sharing policies and on the census tracts to see the density of foreign-born, non-citizen residents, as estimated by a 2016 U.S. census dataset:

ICE Access to Local Police Data

Map created by georgejosephmapping in CARTO

How an individual is defined as a gang member varies based on local policing practices, but, as advocates point out, these important distinctions are blurred in an aggregated data system and can net the wrong people into COPLINK.

The software ingests police data from local records management databases, but the definition of gang membership, for example, varies across the state, says Captain Harry Hess, a technical services commander at the Fitchburg Police Department. In Fitchburg, Hess said in a phone interview with The Appeal, officers base gang classification on a case-by-case assessment of things like tattoos, interviews with the individual in question, or their known associates.

In Boston, on the other hand, police use a more defined points-based formula, as Crockford recently explained in a piece for The Appeal. This points-classification system is based on adding up questionable “gang” indicators, such as who an individual has been seen speaking to, their clothing colors, and police judgements about their photos on Facebook.

But that means COPLINK users, whether they are cops from neighboring counties or federal immigration agents, have no way of knowing what local police practices culminated in an individual getting labeled as a gang member.

“If you’re looking for a suspect in a car break-in and you knew he was a Latin King in a certain age range, you want to have those labels to search for a suspect that might match,” said Kristi Fritscher, a crime analyst at the Fitchburg Police Department in a phone interview with The Appeal. “But how they came to that conclusion is not in there.”

The varying data-collection practices used by departments feeding into COPLINK could raise a “junk in, junk out” problem for immigrants or anyone added into the system, Crockford argues.

“If someone from ICE HSI searched for gang members in Massachusetts, that person doesn’t necessarily know if someone has been identified as a gang member by a Somerville police official just because they had a hunch or by a Waltham officer because they killed three people,” said Crockford. “There’s a flattening that takes place, where allegations by local police who may have no idea what they’re talking about, suddenly looks the same as allegations of real violence.”

Sanctuary Cities Respond

Regardless of the quality of the information, immigration advocates say, it’s dangerous for cities to share it with ICE and disappointing that sanctuary cities would do so.

“The fact that police are sharing information [with ICE] clearly violates the spirit of the sanctuary idea,” said Thomson, referring to COPLINK. “So it’s very easy for cities to get liberal cred, while also participating in these systems and actively helping to deport people.”

Jonathan Fu, a spokesperson for the city of San Gabriel, California, responded to a request for comment from The Appeal on why his sanctuary city uses COPLINK. “The San Gabriel Police Department has access to COPLINK, which allows us to search for data related to criminal reports. The system does not allow us to list immigration status, nor do we provide such information to COPLINK.” Fu added that the city wants undocumented immigrants to be able to come forward with relevant information about crimes to law enforcement without fear of deportation, but he did not bring up any plans to alter the department’s data-sharing practices.

Denise Taylor, a spokesperson for the city of Somerville, Massachusetts, responded to a similar request from The Appeal. “The safety of all of our residents and the protection of our families regardless of status remains a top priority for the city and undergirds our sanctuary city/safe city policies,” she wrote in an email. “[We] will certainly carefully review this with local law enforcement and other sanctuary cities to determine the best policy going forward.”

The mayors’ offices of the two other Massachusetts’s sanctuary cities that feed into COPLINK — Boston and Cambridge — declined to comment on their cities’ use of the program. Mayors’ offices in two other California sanctuary cities that contribute to a Los Angeles County-wide COPLINK database, Los Angeles and Pasadena, did not comment on the matter.

Other elected officials in those cities interviewed by The Appeal expressed varying degrees of discomfort with this data-sharing.

Lydia Edwards, a Boston city council member and attorney from the heavily immigrant community of East Boston, noted that currently, Boston’s sanctuary policy only shields undocumented immigrants from ICE’s civil detainer requests to hold arrestees in jail for pick-up by ICE agents, not from information-sharing more broadly.

In a statement, Edwards noted that while this detainer component is beneficial, it’s not enough. “As a city, we should be transparent about the data we collect, who we are sharing it with, and what public purpose it serves so that these agreements can be fully vetted,” Edwards said.

Likewise, J.T. Scott, an alderman from Somerville, said in a statement that the Somerville police department’s participation in COPLINK “certainly raises troubling questions about how much information ICE HSI can obtain about residents of our city,” and added that he will be raising the issue through the city’s Board of Aldermen.

On the other hand, Quinton Zondervan, a Cambridge city council member, argued that data-sharing with ICE HSI is necessary for serious criminal investigations, even if it means ICE can use the information for immigration-related purposes. “It’s very hard to prevent that,” said Zondervan in a phone call with The Appeal.

While some local officials are calling for greater transparency regarding their data-sharing with ICE, none have definitively called for their police departments to stop using COPLINK or limit ICE’s access to their residents’ data through, for example, amendments to the agencies’ data-sharing agreements. While legal experts differ on whether or not cities could prevent ICE from accessing local police data altogether, Crockford says amending such agreements would weaken ICE’s ability to mine millions of records at once and instantly piece together people’s connections.

Localities seeking to protect immigrant communities should “conduct comprehensive reviews of their information sharing systems,” said Crockford. “That’s just as important as refusing to honor detainer requests, but because all of these police data systems were built and maintained out of the public view, it hasn’t gotten the same attention.”

Thomson said it’s hard to get lawmakers to take action on this data-sharing issue given undocumented immigrants’ current lack of political power.

“Generally, this is a population whose experiences are not shared by voters,” said Thomson, since most voters do not have families of mixed legal status. “So it is really easy for elected officials to not really address what’s happening.”

The Epidemic of Brady Violations: Explained

Illustration by Hisashi Okawa

The Epidemic of Brady Violations: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In 2003, Brooklyn prosecutors charged John Giuca with killing a 19-year-old college student to earn “street cred” with the Ghetto Mafia gang. A jailhouse informant’s testimony claiming that Giuca confessed to him in prison formed a critical piece of the government’s case. At trial, the government insisted that the jailhouse snitch had no deal with the government. That was a lie. Fifteen years later, a court of appeals tossed out Giuca’s murder conviction, finding that the jury may well have acquitted Giuca if it had known the truth.

In courtrooms across America, prosecutors regularly withhold evidence from the defense that could blow holes in their cases. That’s a violation of the Brady doctrine, based on a 1963 Supreme Court ruling that requires them to disclose any information favorable to the defense.

When prosecutors withhold evidence they are duty-bound to turn over, they undermine the Constitution, the Supreme Court’s case law, and the premise of justice.

What is the Brady doctrine?

Under the Supreme Court’s 1963 case Brady v. Maryland, the prosecution has an ironclad duty to disclose, before trial, evidence that could undercut its case — “Brady material.” If the prosecution doesn’t do that, it violates the Constitution. The case involved John Leo Brady, a man convicted of first-degree murder because prosecutors suppressed evidence that his accomplice confessed to the actual killing. The Supreme Court recognized that “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair,” and that a prosecutor should not be the “architect of a proceeding that does not comport with standards of justice.”

What qualifies as Brady material?

Brady material includes any evidence that is favorable to the defense — and that encompasses a lot of information. That means anything that can help the defense attack the prosecution’s case.

The prosecutor is responsible for disclosing anything known by members of the prosecution team , which includes law enforcement, forensic investigators, and other experts. Under Kyles v. Whitley, a case interpreting the Brady doctrine, the government cannot claim ignorance. It must actually find out what information is in the files of the people on whose work and expertise it relies. This rule is important. Making prosecutors immune from Brady when the material is in the police or analysts’ files would create perverse incentives for prosecutors not to know about information favorable to the defense.

1. Evidence suggesting someone other than the accused committed the crime

In a case that landed before the U.S. Supreme Court during its 2016–17 term, Turner v. United States, for example, prosecutors withheld evidence during a 1985 trial that a witness saw someone other than the defendant lurking around the crime scene, and then fleeing from it, shortly after the murder. That person had a lengthy criminal record, which included committing violent crimes in that part of town. The prosecution never turned over that information, which was clearly Brady material. [Thomas L Dybdahl / The Guardian & Marshall Project]

In a 6–2 opinion, the U.S. Supreme Court later affirmed the conviction, taking comfort in the prosecutor’s claim that they were now carefully guarding their own hen house and had adopted a “generous policy of discovery.” [Jessica Brand / Slate]

2. Evidence of a witness’s prior inconsistent statements (known as Giglio material)

In 1985, police recovered Bridgett Lamon’s body in a dumpster in east Anaheim, California. They also recovered semen from her vagina. Three months later, police found Catherine Tameny dead in her Anaheim apartment, with semen deposited on her underwear in the bathroom and saliva on her chest. Two decades later, after cold hits revealed various suspects, Lynn Johnson went to trial for the Lamon murder — he matched the semen, and Wendell Lemond went to trial for the Tameny murder — he did not match the semen. Both men were convicted.

Forensic analyst Mary Hong gave critical testimony in both cases, but her testimony could not be reconciled. In the Lamon case, she claimed that the low quantity of semen found meant it had been left there within 24 hours of the crime scene, which made Johnson the likely killer. But 15 months later, in the Tameny case, she testified that the low quantity of semen left on the underwear meant it was deposited more than 24 hours prior to the crime, and so the jury should not worry about the lack of a match with Lemond. Tameny could have had sex with someone else but then, over a day later, Lemond could have murdered her.

The government never disclosed Hong’s inconsistent testimony, but years later, a public defender discovered it. “It’s beyond sick. [In] how many other cases has [Hong] adjusted her opinion so it could work for the prosecution?” the public defender asked. Now, a judge has ordered a briefing on whether the government failed to turn over material Brady evidence — evidence of the examiner’s inconsistent analysis, or, put differently, its flip-flopping. [R. Scott Moxley / OC Weekly]

3. Evidence of a witness’s motive to lie (Banks v. Dretke)

Witnesses don’t always testify out of the goodness of their hearts, and any reason they might have to gain favor with the prosecution is Brady material. In a 1992 trial, the state of Texas accused Cameron Todd Willingham of killing his children by arson, eventually putting him to death. Not only did the state use now-discredited arson evidence, but the prosecutor also failed to disclose a deal the prosecutor struck with a jailhouse snitch so the snitch could receive a reduction in charges. This should have been disclosed as Brady material. [Jordan Smith / The Intercept] [Radley Balko / Washington Post] [David Grann / The New Yorker]

4. Information that casts doubt on the credibility of the police

In Baltimore, video uncovered during the summer of 2017 showed what appeared to be police officers planting evidence at a crime scene (they later claimed it was a “reenactment”). That evidence cast serious doubt on the officers’ credibility and on the integrity of their investigation, and therefore qualified as Brady material. [Eric Levenson, Lauren del Valle & Darran Simon / CNN]

5. Information that casts doubt on a crime lab technician

In San Diego, California, a judge recently reversed Florencio Jose Dominguez’s murder conviction. Four days before trial, the San Diego Police Department Crime Lab changed how it interpreted DNA mixtures — biological evidence containing DNA from more than one person. Under the new DNA interpretation protocols, analysts could draw no conclusions about whether Dominguez contributed to the DNA profile. And yet the DNA analyst — who spearheaded the change — took the stand and testified using the old procedures and declared a match between Dominguez’s known profile and that found at the crime scene without telling the defense about the change in protocol. The defense lawyer learned about it by accident after Dominguez spent five years behind bars. In October 2017, a court reversed Dominguez’s conviction, finding a Brady violation. [Greg Moran / San Diego Union-Tribune]

In Massachusetts, for years, state lab chemist Sonja Farak used many of the drugs she was supposed to be testing, and she did so while at work. Did that compromise the integrity of her work and investigation? You bet. That evidence was therefore Brady material in all the cases where she testified as an expert witness. (The prosecution, however, failed to timely disclose it, which a judge later called a “fraud on the court.”) [Jennifer Laurin / In Justice Today] [Jessica Brand / In Justice Today]

As a general rule: If the defense would want to know about it, it’s probably Brady.

The Effects of Brady Violations Are Serious

Brady violations not only send potentially innocent people to prison, but they reinforce a win-at-all costs mentality that undermines the pursuit of justice.

John Thompson spent 18 years in prison, 14 on death row, convicted of a murder and armed robbery. The Orleans Parish (LA) district attorney’s office suppressed blood evidence that exculpated him, discovered by the defense just before Thompson’s execution date. Released in 2003, he died of a heart attack in 2017, his life in the free world cut short. [Radley Balko / Washington Post]

Michael Wearry was also placed on Louisiana’s death row for a 1998 murder because of the prosecution’s failure to play fair. Their case relied on two eyewitness accounts. After a jury convicted Wearry and sentenced him to death, significant Brady evidence emerged. Contrary to the prosecution’s representations at trial, one of the witnesses had twice sought a more lenient sentence in exchange for his testimony, and the police had told him they would “talk to the DA if he told the truth.” Evidence also showed that the other witness gave an account that was impossible. He accused an accomplice of running, bending, lifting, and crawling into a cargo space. But the prosecutor failed to disclose that the guy had just had knee surgery and couldn’t do any of that. The state also kept mum about a prison informant’s attempt to manipulate other witnesses into giving incriminating statements. In 2016, the Supreme Court reversed Wearry’s death sentence and conviction. [Heidi Kinchen / The Advocate]

And there is the aforementioned Cameron Todd Willingham. As has been well documented, he ended up on death row after prosecutors presented shoddy arson evidence as fact and failed to disclose evidence that its star witness made a deal with the government — the most basic of Brady evidence. In February 2004, the state of Texas executed him. [Maurice Possley / Washington Post]

Why do Brady violations persist?

Ask any public defender in the country, and they will tell you that Brady violations occur regularly in the courthouse. The National Registry of Exonerations estimates that over 50 percent of wrongful convictions occur because of official misconduct.

At best, prosecutors commit Brady violations because they are fallible, and they suffer from confirmation bias, which leads them to focus on evidence that validates what they already believe. At worst, they care only about conviction rates, and, as former Ninth Circuit appellate judge Alex Kozinski believes, “they consider [Brady violations] feathers in their caps.” [Thomas Dybdahl / In Justice Today]

Meanwhile, there are surely cases where evidence is never uncovered, never heard by a judge or a jury, and the defendant remains unaware of its existence. Even when it is uncovered, however, the penalties for prosecutors can be virtually meaningless. Here’s why:

6. Because prosecutors claim evidence is not “material”

Prosecutors often argue that they only must turn over exculpatory evidence that is “material” — evidence that creates a reasonable probability of a different outcome. There are several problems with this argument.

First, the government is relying on a post-trial standard. When the defense uncovers suppressed evidence after trial, it must show that there is a reasonable probability of a different outcome to obtain a new trial (discussed more later). But the Supreme Court has made clear that while a failure to disclose may only rise to a constitutional violation if the evidence is material, the government’s pretrial disclosure obligations are broader. (Strickler v. Greene, see also the D.C. Court of Appeals in Boyd v. United States)

This makes sense because prosecutors, convinced they have a strong case and that the defendant is guilty, aren’t very good at assessing what evidence might be “material” to the defense. For this reason, the Supreme Court has urged prosecutors to err on the side of disclosure. (Kyles v. Whitley)

7. Because courts are hesitant to reverse convictions

Courts will only reverse a conviction and send it back for a new trial based on a Brady violation if the suppressed evidence was “material” — if there is a reasonable probability that, had it been disclosed, it could have affected the case’s outcome. There must be a chance, in other words, that confronted with the evidence, at least one juror might have found reasonable doubt. [Lorenzo Johnson / HuffPost]

But courts regularly apply this standard in the strictest way possible. Mario Owens, one of three men on Colorado’s death row, has claimed that prosecutors committed at least 22 Brady violations in his case, including paying witnesses thousands of dollars to testify against him. According to the defense complaint, prosecutors also threatened one of the main witnesses with murder charges if he didn’t testify against Owens. Numerous witnesses received lenient sentences. The prosecutor’s office didn’t dispute this misconduct, but instead argued that evidence of these extensive payments and leniency would not have mattered to the case’s outcome. A judge who heard the claims agreed, and the case will now go up on appeal. [Susan Greene / The Colorado Independent]

8. It is nearly impossible to sue prosecutors in civil court.

Individual prosecutors are shielded by absolute immunity for “prosecutorial actions.” They have qualified immunity for “administrative” or “investigative” acts — still an exceedingly difficult standard to meet that requires showing a violation of a clearly established statutory or constitutional right. [Alexa Van Brunt / The Guardian] [Will Baude / Washington Post]

Notably, a petition for certiorari filed in January asks the Supreme Court to reconsider its qualified immunity doctrine. In that case, police officers choked a woman to death while trying to get drugs out of her mouth as she sat in the back of the police car. Showing how hard it is to sue prosecutors or the police, the Fifth Circuit found immunity: “Previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual’s throat where the individual appears to be concealing something in their mouth.” [Will Baude / Washington Post]

9. State bar associations rarely discipline bad actors.

In New Orleans, there is a long-standing culture of Brady violations. As of 2015, courts had overturned at least 36 convictions due to prosecutors behaving badly in New Orleans — nine of them involved defendants on death row. [Radley Balko / Washington Post] According to Radley Balko’s investigative report, a defense attorney filed eight complaints with the Office of Disciplinary Council in 2011. It took three and a half years for him to receive notice that the office even received them. [Radley Balko / Washington Post]

Other studies confirm that state bars rarely discipline Brady violators. In 2010, for example, the Northern California Innocence Project found that the state bar “publicly disciplined only one percent of the prosecutors in the 600 in cases in which the courts found prosecutorial misconduct.” [Bidish Sarma / American Constitution Society blog]

10. Courts are hesitant to impose disciplinary sanctions.

Recently, the Louisiana Supreme Court gave a Vernon Parish assistant district attorney a pass after he explicitly told a detective to remove exculpatory evidence from a police report before turning it over to the defense, and also instructed the trial prosecutor not to turn the information over to the defense. The real police report only came to light during the defendant’s third trial. The Louisiana Supreme Court cleared the prosecutor of misconduct because the evidence came to light during the third trial, and therefore did not affect the case’s outcome. [John Simerman / The New Orleans Advocate]

11. Prosecutors can avoid admitting misconduct by negotiating deals.

In February 2018, the state of Missouri and the city of St. Louis settled a civil rights lawsuit brought by the family of George Allen Jr., who was wrongfully convicted of killing and raping a woman in 1982. Allen was sentenced to 95 years in prison when he was 26 years old and served nearly 30 years before his conviction was thrown out in 2012 due to Brady violations and new DNA evidence. The state and city defendants would not admit to claims of withholding Brady evidence but agreed to pay nearly $14 million to Allen’s family. [Rachel Lippmann / St. Louis Public Radio]

In New Orleans, the government recently agreed to a reduction in sentence from life without parole to 25 years for Jeremy Burse, accused of shooting a friend during a botched robbery attempt when he was 15. Prosecuting attorney Laura Rodrigue claimed she did this because of the “devastating losses” both families suffered, and that it was part of the office’s “restorative justice program.” But in reality, settling the case helped prevent a finding about whether she threatened to prosecute the state’s key witness if he didn’t testify, and then offered him a new attorney for his pending case in exchange for testimony — evidence not disclosed at trial. The witness later wrote that he had not seen the shooting, but Rodrigue “said that they would charge me for having a role in [the] murder if I did not testify. I was very scared.” [Victoria Law / In Justice Today]

12. And defending bad behavior is not necessarily a hindrance to political advancement.

President Trump nominated Kyle Duncan to the Fifth Circuit Court of Appeals. Duncan defended the prosecutors who sent John Thompson, an innocent man, to Louisiana’s death row by suppressing blood evidence that exculpated him. Before the Supreme Court, Duncan successfully argued that the office should bear no liability for actions that kept Thompson in prison for 18 years. [Laverne Thompson / New York Times]

Some places have rules that protect bad actors — especially when they are police. In Los Angeles, the sheriff’s department has a list of 300 deputies who have a history of lying and misconduct — evidence that could undermine their credibility on the stand. Some of these individuals are accused of lying to cover up their own illegal use of force. But the list is secret. Even prosecutors don’t have access to it. The Supreme Court of California is set to review whether this is constitutional in 2018, which could have ripple effects across the state, where similar police protections apply. [Maya Lau, Ben Poston, & Corina Knoll / Los Angeles Times]

Efforts to curb Brady violations

In several cases, defendants have successfully challenged Brady violations and won their freedom. And occasionally, the prosecutors who failed to disclose information have faced repercussions.

In Virginia in 2011, a U.S. District Court overturned Justin Wolfe’s capital murder conviction after the prosecution’s key witness revealed that police strong-armed him into testifying and fed him information about the case — again, Brady evidence that should have been disclosed. [Dahlia Lithwick / Slate]

In New Orleans, Robert Jones is currently suing the city after he spent 23 years in jail for a rape and murder he did not commit. He alleges that since the 1970s, NOLA prosecutors have buried evidence favorable to the defense in at least 45 prosecutions. That includes his case, where prosecutors withheld evidence strongly indicating that a different man, Lester Jones (no relation), committed the rape and murder. The victim’s description of the attacker matched Lester; the rape took place near Lester’s home; Lester possessed jewelry from the robbery; Lester himself had made a statement implicating Robert Jones but recanted it before trial; and the crime was part of a series of attacks matching two committed by Lester — and a third similar attack occurred after police had already arrested and jailed Robert. Robert Jones served more than 23 years in jail before a judge overturned his conviction. [Michael Wines / New York Times]

Also in New Orleans, the district attorney’s office agreed to the release of Albert Wolfe after an undisclosed police report cast serious doubt on his murder conviction. In the report, the government’s star witness, and the only witness who tied Wolfe to the murder, gave a vastly different account than he did at trial. At the age of 43, Wolfe was released after spending 22 years behind bars. [Matt Sledge / New Orleans Advocate]

In Orange County, California, law enforcement has run an extensive and systematic snitch operation, secretly placing a few informants in jail next to different defendants awaiting trial, hoping to obtain confessions. The informants, accused of murder themselves, hoped for leniency. The prosecution did not disclose what law enforcement had done. As a result, a judge removed the entire Orange County district attorney’s office from a high-profile death penalty prosecution and precluded the government from seeking the death penalty. In December 2016, federal officials placed the office of Orange County District Attorney Tony Rackauckas under investigation. [R. Scott Moxley / OC Weekly]

In Bexar County, Texas, DA Nico LaHood threatened two defense attorneys after they uncovered potential Brady violations during trial and suggested they would ask for a mistrial and a bar to future prosecution. LaHood claimed he would shut down their practices for requesting such a remedy, and at a hearing, the judge said she feared physical violence. One of the lawyers he threatened defeated LaHood in the 2018 Democratic primary. [Brian Chasnoff / San Antonio Express-News] [Larry Hannan / In Justice Today]

The Power of Prosecutors

The Power of Prosecutors

We loathe mass incarceration. We loathe police brutality. But most of us have absolutely no idea how to address the critical flaws in our justice system.

What this brilliant short film called “Prosecutorial Accountability” breaks down is the fact that no single individual has more power and more influence in the criminal justice system than the district attorney.

Prosecutorial Accountability

This 4 minute and 20 second animated video, produced by RogueMark Studios of Berkeley and the Alameda County Public Defender's Office, features a narrator discussing the role of prosecutors in the criminal legal system. The video was entirely funded by a grant from the Vital Projects Fund.

Every year in this country, millions upon millions of cases go through their offices. They make sweeping decisions on who to prosecute and who to protect.

“Prosecutors have more power than most us realize,” says the film’s narrator, Bryonn Bain. “Prosecutors alone decide whether or not to charge a crime. They get to decide who is prosecuted — and who gets a pass.”

Sadly, they don’t look or think or feel like the majority of Americans. They are 95 percent white, 81 percent male, and overwhelmingly conservative. We must do better.

FOSTA Backers to Sex Workers: Your Work Can Never Be Safe

Tweets by Marian Hatcher, Senior Project Manager and Human Trafficking Coordinator at the Cook County Sheriff’s Office

FOSTA Backers to Sex Workers: Your Work Can Never Be Safe

On April 11, President Trump signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), legislation that would make it possible to hold the operators of websites criminally and civilly liable if third parties were found to have posted advertisements for prostitution.

Days before the legislation was enacted, however, federal authorities seized, essentially locking sex workers out of the website. The United States Attorney’s Office for the District of Arizona indicted seven Backpage staffers, including co-founders James Larkin and Michael Lacey, on charges including money laundering and facilitating prostitution. Then, on April 12, the Department of Justice announced that Backpage CEO Carl Ferrer pleaded to federal charges related to money laundering and violating the Travel Act to facilitate prostitution, contingent on pleading to state trafficking charges.

FOSTA and the Backpage indictment have rapidly transformed trafficking into a matter of national politics. On April 19 Trump declared in characteristic overstatement that “human trafficking is worse than it’s ever been in the history of the world.” The very same day, New York Governor Andrew Cuomo, who is thought to be considering a run for president in 2020, announced plans to change the state’s trafficking laws by “eliminating proof of the elements of force, fraud or coercion in cases of children under 18.” Trafficking, Cuomo said, “is nothing short of a modern day slave trade that preys on children and the most vulnerable among us, and it must be shut down once and for all in New York and beyond.”

Prior to FOSTA’s passage, sex workers and survivors of trafficking, as well as advocates for both communities, warned that the legislation and crackdowns on websites that could come in its wake would be dangerous for sex workers and survivors of trafficking alike. They argued that closing low-cost online ad sites like Backpage would drive sex workers out of indoor work spaces that allowed for discreet advertising and client screening and into the streets.

Sex workers also said that low-income sex workers, sex workers of color, and trans sex workers — already facing high levels of arrest and violence — would be disproportionately affected by the loss of sites like Backpage. Indeed, within 48 hours of the feds’ seizure of the website, sex workers reported a drastic loss of income, the threat of homelessness, and the opportunistic return of abusive customers.

Since FOSTA was enacted, the groups that pushed for its passage — among them law enforcement, anti-sex work groups, and religious right groups — have acknowledged the vocal opposition to the legislation from sex workers themselves. Marian Hatcher, the senior project manager and human trafficking coordinator at the Cook County Sheriff’s Office, who lobbied in favor of the legislation, tweeted on April 13, “#SEXWORKERS … SESTA had NOTHING to do with SW.”

Hatcher and other high-profile FOSTA supporters continue to maintain, however, that there are no safe places for sex workers. Republican Senator for Ohio Rob Portman, who drafted the original bill on which FOSTA was based, was asked about sex workers’ safety; a spokesperson responded, “Tell that to the mothers and fathers of daughters who’ve been murdered after being trafficked on Backpage.” Similarly, in an April 5 interview meant to “set the record straight” on a “new anti-trafficking bill in the US [that] has gotten a lot of bad press,” Hatcher said, “screening for potentially violent sex buyers and assurances of safe places do not exist in prostitution.”

But Hatcher and Portman’s rejection of the idea that online ads can be a form of harm reduction is disputed by sex workers and researchers alike. A 2017 University of Leicester study of online sex workers showed that 85 percent of respondents who advertised online said this allowed them to screen customers. When asked about violence they had faced in the previous 12 months, just under eight percent had experienced sexual assault, and five percent had experienced physical assault. Research from University of Baylor suggests that the Craigslist Erotic Services’ section led to a 17 percent drop in female homicide rates.

By denying the existence of “safe places” for sex workers on sites like Backpage, Hatcher maintains that sex work can never be safe. Hatcher has also attacked women’s rights groups, like the Women’s March, for stating that sex workers had relied on Backpage to safely contact customers. “Utter NONSENSE!!! Why does @womensmarch continue to perpetuate lies!!!” she tweeted on April 8. “ITS [sic] NOT SAFE!!”

Hatcher’s stance stems in part from her unusual personal history: After a career in corporate America, she says was trafficked on Chicago’s streets while in her 40s. Her path out of the sex trade began with a 2004 arrest for violating probation on a drug charge. “I never expected that jail would be my saving grace,” she wrote in a first-person essay for Vox in 2017. “Now I hope to make it the same for more victims like me.” She has worked for 14 years now in Illinois’ Cook County Sheriff’s Office, at first joining the same program that she credits with saving her from the sex trade. In 2016, she received a Presidential Lifetime Achievement Award for Volunteer Service from former President Barack Obama.

Since joining the sheriff’s office, Hatcher’s work has turned toward policy, she has said, as well as “efforts to bring down pimps, traffickers, and johns.” With Cook County Sheriff Tom Dart, Hatcher coordinates the National Johns Suppression Initiative, claiming more than 600 arrests since its inception. She is also a paid coordinator for Demand Abolition, which has supported public awareness of Cook County’s efforts to disrupt “sex buying,” which the organization believes is the solution to trafficking. And along with Dart and Demand Abolition, Hatcher has also campaigned against Backpage and for FOSTA.

As a leading FOSTA proponent, Hatcher not only supports continued police crackdowns on sex work, but she also advances a political agenda: that consensual sex work does not actually exist. “Prostitution is ugly,” as she put it in 2015. “Most of it is sex trafficking.” After FOSTA was enacted in April, Hatcher said, “To argue that this bill will harm ‘sex workers’ is to ignore the fact that most women and girls being sold on these websites are not doing so by choice.” When websites serving sex workers began to go offline, Hatcher said, those shutdowns were evidence of “the power SESTA-FOSTA has to hold them [websites] legally responsible for facilitating these criminal activities.”

While celebrating the closure of websites proven to provide sex workers with more safety and power at work, Hatcher also dismisses sex workers’ fears — already borne out — that FOSTA would harm them. Such demands for safety are invalid, Hatcher and other FOSTA proponents argue, because sex work itself is illegitimate. “As a survivor of the sex trade and someone who works closely with other women globally, who are either surviving or who have survived it, I unequivocally maintain that prostitution is an inherently violent industry in both illegal and legal environments,” Hatcher told The Appeal. “Websites will never provide safety in prostitution…. The ability to screen sex buyers online is an illusion that must be debunked.”

What is needed, Hatcher has said, is “robust exit services for those who sell sex.” That’s what Hatcher and the Cook County sheriff’s program provide sex workers — along with a criminal record.

Did Gov. Cuomo Grant New York Parolees the Right to Vote? Not Exactly.

Governor Cuomo at the National Action Network conference on Wednesday.
Gov. Andrew Cuomo / Flickr

Did Gov. Cuomo Grant New York Parolees the Right to Vote? Not Exactly.

When Governor Andrew Cuomo announced Wednesday that he would restore voting rights to New Yorkers on parole, he won instant praise from organizers who had long pushed for criminal justice reform.

“This executive order will mean thousands more will be welcomed back into our democracy and assured that in 21st century America, the right to vote is inviolable,” said Myrna Pérez, deputy director of the Brennan Center for Justice’s democracy program, in a press statement.

People on parole, including those who have long pressed for reform, also lauded the announcement. “It’s about time,” said David Schermerhorn, a community leader with VOCAL-NY (Voices of Community Activists and Leaders-New York), a grassroots organization of low-income people affected by HIV/AIDS and mass incarceration. “Politicians have always ignored people like me on parole because we couldn’t do anything for them. Now we have a voice.”

Cuomo himself used the announcement at the National Action Network conference to bolster his reputation as a criminal justice reformer, which is particularly significant now that Cynthia Nixon is posing a challenge from the left in the Democratic primary. “It is unconscionable to deny voting rights to New Yorkers who have paid their debt and have re-entered society,” Cuomo stated at the conference, noting that 71 percent of the approximately 35,000 people on parole are Black or Latinx. “This reform will reduce disenfranchisement and will help restore justice and fairness to our democratic process.”

His announcement garnered headlines like “Cuomo restores voting rights to all 35,000 parolees in New York” and “New York Gov. Andrew Cuomo signs executive order giving parolees in his state the right to vote.”

But did Cuomo deserve them? A closer read of the executive order shows that it doesn’t actually guarantee people on parole the right to vote. Instead, it requires the commissioner of the Department of Corrections and Community Supervision (DOCCS), the state agency responsible for prisons and parole, to send his office a monthly list of everyone currently under parole supervision for consideration. “Each individual on the eligible list will be reviewed to determine whether he or she will be granted a pardon that will restore voting rights,” states the order. In other words, what looked like a sweeping restoration appears to be more of a case-by-case decision.

The governor’s office did not respond to The Appeal’s query regarding how the executive order was worded and whether Cuomo plans to individually evaluate parolees. The wording could be an attempt to avoid the fate of Governor Terry McAuliffe of Virginia, where state law disenfranchises people with felony convictions. McAuliffe’s executive order restoring their voting rights was overturned by the state Supreme Court, which ruled that he could only restore rights on a case-by-case basis. He did, restoring voting rights to approximately 168,000 people with felonies.

The pardon Cuomo would use is different from the power of the pardon that the governor already has — to set aside a person’s conviction so that it no longer shows up on a background check or subjects them to deportation. (Since 2011, Cuomo has granted over 100 of these pardons to people convicted of misdemeanors or nonviolent felonies when they were 16 or 17 years old and 18 to immigrants whose convictions made them at risk for deportation.)

In New York, people on parole already have a pathway to the ballot box, but it’s cumbersome. Those who have been convicted of misdemeanors, violations, or no more than one felony can apply for a Certificate of Relief from Disabilities. Those with two or more felony convictions can apply for a Certificate of Good Conduct. Both allow a person on parole to vote. If the person successfully completes parole, their ability to vote is permanently restored. People on probation are eligible to vote at any time.

While the media and many advocates, including formerly incarcerated people and people on parole, praised Cuomo’s action, others were skeptical. Some pointed out that similar promises from New York officials — not to prosecute low-level marijuana possession, for instance — haven’t always panned out. And Cuomo’s own bail reform plan was shelved during budget negotiations in Albany last month.

“We need to be clear that no one’s right to vote was restored this week,” pointed out Nick Encalada-Malinowski, VOCAL-NY’s civil rights campaign director. “We still need to see how Cuomo will actually operationalize this executive order … In all likelihood we will still need to pass legislation to secure a clear and permanent right to vote for people on parole.”

Prosecutors Aren’t Just Enforcing the Law — They’re Making It

A homemade coffin placed outside the Rikers Island jail in memory of Kalief Browder.
Felton Davis / Flickr [CC]

Prosecutors Aren’t Just Enforcing the Law — They’re Making It

Just a few months ago, New York Governor Andrew Cuomo seemed sure that criminal justice reform was imminent. During his annual State of the State address in January, he called for a legislative package that would limit civil asset forfeiture, reform discovery, reduce trial delays, and most notably, significantly reduce the use of cash bail. “For far too long, our antiquated criminal justice system has created a two-tier system where outcomes depend purely on economic status — undermining the bedrock principle that one is innocent until proven guilty,” Cuomo said.

To underscore the dysfunction of New York’s criminal justice system, Cuomo told the story of Kalief Browder. Browder was 16 when he was jailed for stealing a backpack. He spent three years imprisoned at Rikers Island because his family could not afford his $3,000 bail. His time in jail was marked by abuse from guards and fellow inmates alike, as well as long stints in solitary confinement. Browder maintained his innocence, and eventually the charges against him were dismissed. But it was too late—Rikers had destroyed him. Two years after his release, Browder committed suicide. As Cuomo vowed to fix the state’s bail system, he addressed Browder’s brother, an invited guest, directly. “Akeem,” he proclaimed to the young man sitting in the audience. “I want you to know that your brother did not die in vain. Sometimes the Lord works in strange ways — but he opened our eyes to the urgent need for real reform.… We will address it and you have my word on that.”

Cuomo’s aides characterized the legislative package as “the most progressive set of reforms in the nation.” But as he tried to corral support from defense lawyers and reform supporters, many of them remained troubled by some of the details. At best, with some wrangling, it would be only the beginning of what is inevitably going to be a long road. But it was something.

Advocates were especially hopeful for bail reform: One poll found that more than 70 percent of people supported pretrial release for those accused of misdemeanors or nonviolent felonies, as long as they weren’t a flight risk. Even more striking, more than 70 percent of crime victims supported release under those conditions. “There’s a real delta between what the public wants and what is currently happening,” Zoe Towns, of, said. “We hope that the finding will really … encourage lawmakers to be bold on this issue.”

Until late March, it looked as if significant change might move forward. But then, suddenly, it was over. The budget, signed earlier this month and primarily negotiated in private by the governor and just three powerful legislators, did not include the criminal justice reforms Cuomo so adamantly supported just weeks ago. Despite what he said to Akeem, the budget doesn’t fund bail reform at all. As journalist Max Rivlin-Nadler wrote in this publication, “For bail reform advocates, including public defenders and advocates for incarcerated people, the plan’s failure serves as a bitter reminder of how difficult it is to eliminate cash bail, despite overwhelming support to do so.”

Whose fault is it that criminal justice reform failed in New York? While there’s plenty of blame to go around — a corrupt legislature, Cuomo’s craven maneuvering, the bail bond lobby — there’s one behind-the-scenes player whose influence gets little attention: the District Attorney’s Association of the State of New York (DAASNY).

DAASNY has been shaping criminal justice legislation in New York for over a century. The association’s membership includes all 62 elected district attorneys in the state, as well as many assistant prosecutors. In many ways DAASNY is like any other professional organization: It holds trainings, hosts conferences, and issues a newsletter. But its enormous leverage in the state legislature makes it uncommonly powerful. DAASNY largely serves as a lobbying group — and a very effective one.

Since its inception, this has been part of the organization’s purpose. The first press piece about the association, published shortly after its formation in 1909, notes the group’s desire for legislative influence. “While the intentions of the legislators are of the best,” it reads, “they oftentimes enact laws … which embarrass the prosecuting attorneys of the state.”

Over 100 years later, that influence persists. In January, DAASNY sounded optimistic about bail reform. “We understand that there is room for improvement in New York State’s bail statute,” said Oneida County District Attorney and current DAASNY President Scott McNamara after Cuomo’s speech. But, in the end, the organization released a statement concluding that the proposed bail legislation, as well as the other legislative initiatives, “go too far.” The statement insisted that supporters of criminal justice reform don’t understand “the realities of human behavior” and “how the criminal mind operates.” It also “strongly advised” against including the reform measures in the budget. It’s unsurprising, then, that legislative reform was unable to get off the ground.

This phenomenon is not New York-specific. Every state has an equivalent organization of prosecutors with strong policy perspectives, which often have enough sway to simply shut down criminal justice reform at the legislative level. The failure of bail reform in New York mirrors countless other legislative reform failures in many other states. As Jessica Pishko wrote in The Nation, “district attorneys’ associations are powerful political actors. They do not just “enforce” the law; in fact, they help to make it.”

Across the country, DA associations are using that power to defeat a wide range of bipartisan reform efforts. Though the criminal justice system has come under increasing scrutiny, these organizations continue to successfully hinder legislative reform. When it comes to criminal justice, associations like DAASNY are largely responsible for the gulf between policy and public opinion.

The stories are endless. Take Alabama. Not much is bipartisan in Alabama anymore, but recent efforts to rehabilitate civil asset forfeiture managed to bridge the impossible gap between parties. Civil asset forfeiture allows law enforcement to seize and keep someone’s property if they allege it is related to a crime — even if that person is never convicted or even charged with anything. Police and prosecutors can take millions of dollars’ worth of cars, cash, real estate, and other property from hundreds of innocent people, and often profits from those seized assets are deposited directly into law enforcement coffers.

Late last year, the Southern Poverty Law Center and the Alabama Policy Institute, a conservative organization, both supported a strong asset forfeiture reform law. “API and SPLC don’t agree on 99 percent of stuff, but we do agree that we need to monitor civil asset forfeiture,” said Leigh Hixon, API’s senior director of policy relations.

In January, Republican State Senator Arthur Orr introduced the Alabama Forfeiture Accountability and Integrity Reform Act, or FAIR, which would have required a criminal conviction before the government could seize a person’s property. Both parties supported the legislation — but the Alabama District Attorneys Association (ADAA) and other law enforcement groups did not. The presidents of the ADAA and the Alabama Sheriffs Association wrote an op-ed espousing the value of civil asset forfeiture, declaring, “Law enforcement uses civil asset forfeiture only to go after criminals.”

A wealth of evidence, of course, says otherwise. Frank Ranelli owned a small computer repair shop in Birmingham. Almost eight years ago, 20 police officers, some with assault rifles, barged into his store and confiscated almost 130 computers that they suspected were illegally purchased. In the end, though, only one laptop was actually even in question — and that charge was dismissed after Ranelli proved that he had followed the law. But, as of October, Ranelli still hadn’t gotten any of the computers back.

The prosecutor and sheriff’s op-ed conveniently fails to mention stories like Ranelli’s. Instead, it was chock full of outlandish predictions, none of which were undergirded by evidence. They insisted that if law enforcement had to share the profits from seized property with other agencies, there’d be “fewer busts of drug and stolen property rings” since there won’t be incentives to seize the assets if law enforcement has to share the spoils. They also claimed that limiting asset forfeiture law would result in “more people going to prison for lesser crimes.”

This is how many prosecutor associations maintain their influence — by trading on paranoia and fear, and convincing voters and lawmakers alike that, without harsh criminal sanctions for even the most minor offenses, crime will run rampant and legislators who vote for reform will be at fault.

Statements like these are easily rebuttable, but in Alabama it didn’t matter. In the end, the only thing that mattered was that prosecutors and cops didn’t like the bill, and legislators weren’t “comfortable” passing the legislation without their validation. So, civil asset forfeiture reform, which had overwhelming bipartisan support, was dead in the water, replaced by a diluted bill that only requires the state to maintain data on seized assets.

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

In California, the District Attorneys Association is pushing legislation that would limit Prop 47 and Prop 57, two criminal justice ballot measures that passed with overwhelming voter support. Last year, the association successfully stalled bail reform legislation. Meanwhile, the Arizona Prosecuting Attorneys’ Advisory Council has pushed for harsher drug penalties while opposing forfeiture and bail reforms. Earlier this month, Nebraska lawmakers failed to pass a bill requiring more transparency around the use of jail informants, after the Nebraska County Attorneys Association fought against it. Similarly, after legislators introduced civil asset forfeiture reform legislation in March, the Minnesota County Attorneys Association and other law enforcement agencies immediately started pushing back. And, in November, the Indiana Prosecuting Attorneys Council delivered a “firm warning” to lawmakers opposing any marijuana legalization, including for medical use, and linking it to welfare dependency.

And then there’s Louisiana.

The Louisiana District Attorneys Association is one of the most powerful DA associations in the country. According to Pishko, “from 2012 to 2015, criminal-justice bills backed by the LDAA had an 85 percent rate of passage in the Louisiana Statehouse, while criminal-justice bills it opposed passed only 38 percent of the time.” Given prosecutorial power in the state, then, it should not surprising that Louisiana is the most carceral state in America, which is the most carceral country in the world.

Last year, Louisiana was poised to pass a series of major criminal justice reform laws — a mighty feat in a state that has historically demonstrated an unshakeable commitment to tough-on-crime policies. But the LDAA reared its head, releasing a public opposition report while pushing legislators to vote against it. In the end, some pieces of last year’s reform legislation still passed. But, as Pishko reported, as a result of the LDAA’s involvement, “many key provisions had been gutted.”

In state after state, this has been the pattern: District attorney associations stand in the way of a popular wave of criminal justice reform.

This year, the LDAA came back to deal a death blow to criminal justice reform in Louisiana. Prosecutors are pushing five new bills that many advocates consider a rollback of the reforms that did pass last year. The bills would allow judges to extend probation past the current limit, and would require that people in the criminal justice system “pay restitution” to the court and their victims, which could add up to hundreds of thousands of dollars. Those who can’t pay would end up back in prison.

Earlier this month, Baton Rouge Representative Denise Marcelle introduced legislation that would “require criminal grand juries to review all officer-involved shootings resulting in injury or death.” She decided to bring the bill after the Louisiana attorney general decided last month not to file charges against the cops that killed Alton Sterling, a Baton Rouge man who was shot in 2016.

But LDAA Executive Director Pete Adams was fiercely opposed, claiming that the bill was “unconstitutional.” Marcelle decided to shelve the legislation.

The way prosecutor associations wield their influence reveals an uncomfortable truth about the current makeup of the profession. Prosecutors are tasked with a sacred duty — the duty to seek justice. But their lobbying efforts often reflect priorities that simply are irreconcilable with justice as a paramount concern.

Time and time again, these organizations throw their weight behind legislation that reflect the tough-on-crime dogma that has long defined criminal justice policy in America. This in itself reflects a troubling misunderstanding of their role — prosecutors are supposed to do what is right, and sometimes what is right is what is lenient.

But that misunderstanding is exacerbated by another pattern — as these organizations lobby for increased sanctions for ordinary citizens, they also fight to limit oversight over law enforcement. In states across the country, prosecutors are supporting more punishment for low-level theft while simultaneously fighting any attempts to limit law enforcement’s ability to seize property without cause. They fight to increase substantive punishments while reducing procedural safeguards.

How can these be reconciled? Only one value connects these otherwise inconsistent priorities: victory. Overwhelmingly, prosecutors throw their weight behind legislation that makes winning easier, even when it pushes them further from justice.

Nowhere is this truer than in Florida, where the Florida Prosecuting Attorneys Association (FPAA) has maintained colossal impact for at least half a century. The organization has repeatedly fought to enact harsher legislation at the state level, and last year, its dedication to barbaric tough-on-crime law enforcement led the group to turn on their very own. When Orlando State’s Attorney Aramis Ayala, a member of the FPAA, announced her decision to refuse to seek the death penalty, the FPAA filed a brief against her, which, according to Pishko, said that “Ayala had violated the separation-of-powers doctrine by effectively setting her own policy.” In a conversation with The Nation, Glenn Hess, another Florida prosecutor, justified the decision to file a brief against Ayala. “At the FPAA, our job as prosecutors is not to make law,” Hess said. “It is to take the law the legislature makes and enforce [it] in the state.”

The separation of powers is supposed to be sacrosanct, a way to ensure balance and prevent the always looming threat of authoritarianism, but the association’s appeal to these values is hypocritical.

Prosecutors are supposed to be squarely within the executive realm — tasked with enforcing the law, not making or interpreting it. As a rule, prosecutors have executed the enforcement mandate fanatically. Yet, Hess’s implication that the prosecutorial role is so narrow is misleading. Prosecutorial power has grown beyond the limits of mere enforcement. In fact, over the past forty years it has ballooned so drastically that prosecutors’ influence has seeped into the other two branches, as well.

The judicial branch is meant to be a relatively neutral force that protects the individual defendant from the power of the state. But, in a criminal system that handles most cases by plea deal, judges have less oversight over the criminal process than ever before, giving prosecutors a leash so long it is functionally non-existent. The presence of a judge has been replaced by the whims of a prosecutor.

This is why the legislative influence of DA Associations is so concerning. It gives prosecutors a stronghold over not only executive and judicial power, but legislative power, as well. More than any other position, prosecutors threaten the traditional balance of powers within the criminal justice system. Ultimately, this more than anything else has shifted tough-on-crime from hypothesis to axiom.

The presence of a judge has been replaced by the whims of a prosecutor.

Last month, Maricopa County Attorney Bill Montgomery was asked about the outsize influence of prosecutors on criminal justice legislation in Arizona. Like Hess, he responded by asserting that they aren’t lawmakers. “Prosecutors don’t have a vote at the Legislature,” he said. “We don’t sit on committees. We don’t sponsor bills. We don’t get to vote on the floor.” This, of course, is technically true. But in many—if not all—state legislatures, they have leverage over those that do.

This level of power is close to impossible to rein in, and DA associations serve as its primary guardian.

Last month, Pishko wrote for this publication about two bills that would implement prosecutorial oversight for elected DAs in Louisiana. “The legislation is intended to fill a gaping void that is especially noticeable in Louisiana,” she wrote. “There are limited ways in which prosecutors can be held accountable.”

Perhaps predictably, this proposal was unpopular with the LDAA. Neither bill made it out of committee.

Public Defender Foils Prosecutor’s Murder Charge in Drug Overdose

Public Defender Foils Prosecutor’s Murder Charge in Drug Overdose

On April 9, a Florida public defender persuaded a judge to drop a first-degree murder case against his client related to a fentanyl overdose last fall.

The case involves Christopher Toro, 30, who is accused of selling illicit fentanyl that resulted in the overdose death of 32-year-old Alfonso Pagan in September 2017. Seminole County prosecutors originally charged Toro with murder “which resulted from the unlawful distribution” of opium and its derivatives.

Seminole County attorney Nick Kramperth’s basis for the motion to dismiss his client’s murder charge was twofold: Fentanyl is a synthetic opioid — it is not made from opium — and the addition of fentanyl to the list of substances covered under Florida’s “unlawful distribution” law did not go into effect until eight days after Pagan’s overdose death.

From 2015 to 2016, Florida saw a 97 percent jump in overdose deaths linked to illicit opioids like fentanyl, and prosecutors have responded to the surge by charging alleged dealers like Toro with first-degree murder which, under the state law, is punishable by death or life in prison without parole.

Prior to October 1 of last year, however, Florida’s murder statute did not apply to the sale of fentanyl. Toro’s dismissal could potentially apply to at least eight similar cases that occurred in Florida before October 1, Jeff Dowdy, chief assistant public defender for the 18th Judicial Circuit in Florida, told In Justice Today.

Toro’s public defender, Kramperth, argued in his motion to dismiss that Florida’s murder statute stating that a death resulting from unlawful distribution of a drug only applied to “opium or any synthetic or natural salt, compound, derivative, or preparation of opium.” Fentanyl, Kramperth wrote, is not a “synthetic of opium,” as specified in the statute. Similarly, Jannet Brown, a crime analyst with the Florida Department of Law Enforcement and expert witness for the state, testified that “fentanyl is a synthetic opioid and not made from opium.” Circuit Judge Debra Nelson ruled in Toro’s favor and called the language in the statute “unambiguous,” that “fentanyl is not made from opium at all and essentially has nothing to do with opium.”

“The state attorney thought they would get creative with the statute,” Dowdy told In Justice Today. “Between the language in the statute and the legislative history, I think we’re on solid legal ground.”

Kramperth told local reporters, “[The judge] really had no choice but to grant the motion” to dismiss. “She followed the law perfectly.”

Further supporting the defense’s position is the fact that the bill signed by Florida Governor Rick Scott adding several analogues of illicit fentanyl to the murder statute didn’t take effect until eight days after Pagan died. “For some unknown reason, the state attorney started indicting people on the new statute before it took effect,” Dowdy told In Justice Today. “Their theory is the statute covered any synthetic of opium. But opium and opioids are two different types of drugs.”

In the context of drug distribution, this isn’t the first time that the wording of Florida’s statute has led to a dismissal. In 2009, William F. McCartney III’s first-degree murder charge was dismissed because he allegedly sold methadone that resulted in a man’s death. Like fentanyl, methadone is a synthetic opioid, not a “synthetic of opium,” as specified in the statute. The statute was updated in 2010 after McCartney’s case to specifically include methadone, but still did not apply to other synthetics like illicit fentanyl.

Toro’s dismissal is already affecting other cases that took place before October 1, such as Jamie Nelson, 35, who is accused of accepting $50 for taking Tracy Skornicka, then 41, to a dealer who sold her a lethal dose of illicit fentanyl on June 15. Nelson was charged by Seminole County state attorney’s office with murder simply for being a “middleman” in the deal.

In light of Toro’s dismissal, Dowdy told In Justice Today that he expects Circuit Judge Melanie Chase to dismiss Nelson’s murder charge. “But the state’s attorney made a surprising announcement in court,” he said. “They plan to get creative and charge her with ‘manslaughter by act’ instead,” a second-degree felony.

Dowdy told In Justice Today that he believes that prosecutors will also try to charge Toro with manslaughter. “It’s them being creative again,” he said, adding that he’s never seen a manslaughter charge applied to a case in which a person died from self-administering drugs and accidentally overdosing.

“Recent dismissals in these Florida cases illustrate the enormity of the stakes, as these defendants would have likely spent most of their lives in prison, if convicted,” Leo Beletsky, a drug policy researcher who has studied the application of “drug-induced homicide” laws for Northeastern University’s Law School, told In Justice Today.

“The stark difference between the rhetoric of ‘going after drug kingpins’ and the reality that these laws are being deployed to go after small-time dealers or other drug users calls for a wholesale re-examination of this approach,” Beletsky said.

Why Public Defenders Matter More Than Ever in a Time of Reform

Clarence Earl Gideon’s handwritten petition for certiorari.

Why Public Defenders Matter More Than Ever in a Time of Reform

In 1963, the Supreme Court handed down Gideon v. Wainwright, which held that the government had to provide a lawyer to any poor defendant facing prison time. While often trumpeted as one of the Court’s greatest modern decisions, it has also been embroiled in controversy from the beginning. Like all Supreme Court opinions that impose new obligations on state governments, Gideon was an unfunded mandate — and, given the political unpopularity of criminal defendants, the states have aggressively gone out of their way to make sure that this constitutional obligation stays unfunded.

Critics of the American criminal justice system have often pointed to Gideon’s failure as a major cause of mass incarceration, and of mass punishment more broadly. And they have proposed myriad ways, including increasing defender funding, to try to fix or repair or improve how we provide legal services to the poor. I count myself among those who have done so, having argued that funding indigent defense nationwide is one of the few steps the federal government could take that would really make a difference (although this is obviously not something that this administration would do).

To many, realizing Gideon’s vision of effective counsel for all is seen as one of the, if not the, most important steps toward real criminal justice reform that we can take. Indeed, one of the more high-profile reform groups is Gideon’s Promise, a nonprofit that partners with public defender offices around the country to implement best practices in public defense and has been the subject of a documentary aired on HBO.

There is no doubt that the work public defenders do is vitally important, and there is no doubt that they are underfunded — both in absolute terms, and compared to far better-funded prosecutor offices. Improved funding for indigent defense should be an important part of criminal justice reform.

But what if an emphasis on Gideon raises serious problems at a more fundamental level? What if pouring money into indigent defense really wouldn’t make the sort of difference for which many hope? What if Gideondistracts us from what really matters — or, worse, what if focusing on Gideonmakes more impactful reforms harder?

Georgetown University law professor Paul Butler made just this argument a few years ago in a provocatively titled Yale Law Journal piece, “Poor People Lose: Gideon and the Critique of Rights” (a not-at-all-stuffy-law-review essay everyone should read). Butler raised several powerful points, but here I want to focus on just one of them: that mass incarceration and mass punishment are not really the product of procedural breakdowns in individual cases — which is the implicit assumption of Gideon-focused reforms — but rather the result of systemic and systematic decisions about who to arrest, to charge, to send to prison.

I think Butler’s critique is spot-on. And, even just a few years ago, it was a powerful argument against directing too much attention and resources toward Gideon. But the politics of criminal justice have changed sharply over the past few years, and so too has, perhaps, the role that Gideon can play in bringing about real change.

For Butler and others, the jumping-off point of Gideon’s limitation is something that often gets overlooked in all the discussions of wrongful convictions, Brady violations, false confessions, bad forensics, and conviction integrity units: most — perhaps almost all — who are arrested, charged, convicted, and sentenced are guilty of a crime. Our criminal laws are sprawling, open-ended codes that punish people for wide swaths of behavior. More often than not, defense work is about triage, about minimizing the harms that come from an almost-guaranteed — and legally sound — conviction.

The core problem with Gideon-focused reform is that mass incarceration is driven by decisions made by police and prosecutors about who to arrest and who to charge, not procedural issues about how the arrest is made or how the trial or plea bargain is conducted. The criminal justice system is a blunt tool, and not everyone who violates the terms of a criminal statute should be arrested, charged, convicted, sentenced.

In fact, Butler suggests that focusing on Gideon might make reforms harder, by effectively white-washing the substantive injustices of our criminal justice system, such as disparities in which groups (such as low-income Black men) face higher risks of arrests, charges, and convictions, for the same conduct.

So while evidence suggests that competent indigent defense makes a difference — what few studies we have suggest that those with better lawyers are less likely to be convicted or serve less prison time — the traditional role of public defenders is individualistic and reactive: They handle the specific cases that the police arrest and the prosecutors charge.

In other words, while improving the often-frightening procedural failings of the criminal process is important work, real reform lies far more in changing the systemic choices made by police and prosecutors. The decisions about where to deploy police, what sort of arrest policies to have, what sort of cases prosecutors get charged vs. dismissed — these are the decisions that really drive mass punishment.

This is why, Butler suggests, focusing on Gideon risks making reform harder. If everyone has a decent lawyer, then we might be less troubled by why some people are more likely to need that lawyer in the first place.

Yet, suddenly, perhaps public defenders are in a position to make these changes. Perhaps today, Gideon can serve a new, substantive function.

Over the past few years, at least in more urban counties, voters have started to push prosecutors to adopt less harsh and more progressive policies. The changes they demand are systemic, not individualistic: to no longer ask for cash bail in entire categories of cases, to stop prosecuting entire types of offenses (such as marijuana and low-level theft), and so on. Prosecutors are facing political pressure to shift from tough-on-crime to something far more “smart-on-crime”-like, and they are increasingly making promises along those lines.

But promises are just words, and sometimes it seems like prosecutors running for election or re-election are quickly learning a set of reformist buzzwords they can trot out to voters — but then struggle to implement in practice. Many observers were deeply disappointed with former Brooklyn District Attorney Ken Thompson’s broken promises on declining to prosecute low-level marijuana cases. Thompson died of cancer in the fall of 2016 and court monitors report that under Brooklyn’s current DA, Eric Gonzalez, they still see marijuana possession cases whenever they’re in court. Manhattan DA Cy Vance, meanwhile, continues to promise to stop charging people with jumping turnstiles, yet seems to keep doing so.

The potential disconnect between promise and practice has become sufficiently concerning that at least in New York City, a group of nonprofits, including a coalition of public defenders, recently created Court Watch NYC, which sends observers to courts across the city to make sure that DAs are living up to their reformist promises.

The role of public defenders is thus clear: They’re in the best position to ensure that progressive-sounding prosecutors fulfill their campaign promises. Unlike court watchers, they are present at every step of the process — not just public hearings, some of which might be held in the middle of the night — but the behind-closed-doors plea bargaining processes that resolve about 95 percent of all cases. They see the charges that prosecutors threaten and then withdraw, the factors that seem to shape prosecutors’ decisions about when they drop charges and when they move forward, and so on.

Real reform requires real data, but prosecutor offices are notoriously stingy with their numbers. About 80 percent of all defendants nationwide qualify for indigent representation, which means that while defender offices do not handle every case, they handle most, and a data-rich annual report from a public defender’s office would inevitably provide a detailed picture of what the prosecutor’s office is up to as well.

As voters, or at least urban voters, increasingly demand a new form of criminal justice, there is increasingly a role for public defenders to ensure that substantivesystemic change happens. All of this, however, takes time — and money. If public defender offices cannot fulfill their basic ethical — and constitutional — obligations to represent their clients, they certainly can’t start generating data or court-watching reports.

In fact, the role of public defender offices could expand even more. When criticized for being excessively harsh, prosecutors often like to say that they are only doing what the legislature has instructed them to do. It’s a doubly disingenuous claim, not just because “prosecutorial discretion” means that prosecutors are not required to be as harsh as the legislature permit, only that they can be — but because many of those tough laws come about from aggressive lobbying by statewide district attorney associations.

As criminal justice reform becomes more politically tenable, however, there is room for public defender offices to take on a lobbying role as well. They are well-positioned to tell legislators the stories about the costs of excessive and counterproductive harshness, to help put a human face on the costs of punitiveness — and, as lawyers, to suggest how to change specific statutes and rules to minimize those harms. But this too requires funding.

It’s worth pointing out that the proposals here would only work in counties or states with centralized public defender offices, as opposed to those that contract indigent defense to otherwise private lawyers. But that could just mean that fulfilling Gideon’s more-meaningful promise also means pushing jurisdictions that don’t have public defender offices to adopt them.

Historically, public defenders have played primarily procedural roles — profoundly important, constitutional roles to be sure, and ones that should be far better funded than they are, even if you ignore all the arguments I’ve made here. But mass incarceration and mass punishment are not really the products of procedural failings at the trial stage. They are far more the result of discretionary choices by police and prosecutors, as well as judges and legislators. Yet in this reformist moment, as voters demand smarter policies from still-opaque prosecutor offices, and as legislators seem more open to less-punitive approaches to social problems, public defenders are well positioned to play a critical role—which makes the role of Gideon all the more important.

Data Shows Police Brutality in America is Getting Worse — 2018 Could Be the Most Deadly in Years

Demonstrators rally in protest of the police killing of Saheed Vassell in Brooklyn
Drew Angerer / Getty

Data Shows Police Brutality in America is Getting Worse — 2018 Could Be the Most Deadly in Years

“Police brutality in the United States is not worse. Phones and social media just make it feel that way.”

I see and hear some version of that thought pretty much every single day.

It’s a lie. It sounds good. I wish that was what we were dealing with right now. But it’s not.

See, some things are hard to measure.

Racism itself is difficult to measure. We can measure hate crimes — which are absolutely an indicator. We can measure reports of discrimination. We can measure the number of times hateful words are being used across the internet. Those things all help us measure racism, but it can sometimes be nebulous. Some of the most destructive forms of racism — like being denied a home loan or being passed on for a job where you are the most qualified candidate — are hard to measure in real time.

Police brutality is not that.

We can measure it. We can track it. In fact, every single day of the week, I study every single case of every single person who was killed by police.

Each case is unique. I know they seem to all blend and blur together sometimes, but each victim, each story, each city, each cop, each police department, each circumstance is unique.

But the one thing I can measure with absolute certainty is whether or not the number of people killed by police in this country is rising or falling. That’s not esoteric. It’s not theoretical.

And when people say things like, “Police brutality is not getting worse, social media and cell phones just show it more,” I know why they think that.

Social media and cell phones have indeed taken what was the secretly lived reality for people in this country — it’s taken that horrible reality and made it mainstream.

Truthfully, until 2014, when police killed Eric Garner and Mike Brown and John Crawford and Tamir Rice, most stories of police brutality lived in the shadows. Most of us would struggle to name a single person killed by police in 2011 or 2012 or 2013. So yes, it’s true, cell phone cameras and social media make police brutality more known, but I am here to report to you the painful fact that the problem is actually getting worse.

According to Killed by Police, a website that has painstakingly tracked police killings since 2013, there have been more police killings thus far this year than in the same timespan in any of the last five years. That means the problem is getting worse. It doesn’t just feel worse. It’s not just the cameras and the hashtags. It’s actually getting worse.

And it’s important for us to acknowledge this reality because I think it actually feels like it’s getting worse. That horrible feeling is backed up by measurable facts.

On the heels of the racist murders of Trayvon Martin and Jordan Davis, we entered 2014 with our nerves already frayed about what was going on in this country. When police in New York, Ohio, and Ferguson then killed Eric Garner, John Crawford, and Mike Brown — three unarmed black men — in a span of three weeks in the summer of 2014, a movement was sparked.

And so it may feel like 2014 was the worst year for police brutality because in that year we became activated to how serious the problem was and we learned more of the names and stories. But this year, despite all our activism around police violence, is likely to be worse.

By April 15 of 2014, at least 293 people had been killed by American police. By the end of the year, the number totaled 1,114.

By April 15 of 2015, the number had increased to 350 people killed by police. By the end of the year, the number rose by a staggering 108 fatalities over the year before to 1,222 people killed by American police.

By April 15 of 2016, the number declined slightly to 348 people. By the end of the year 1,171 people had been killed by police — a drop of 51 people.

Now, we have to remember, those may just be numbers for us, but many of us celebrated when we saw that drop because those are 51 lives — 51 mothers and fathers, sons and daughters, who are still alive.

By April 15 of 2017, the first year of the Trump administration, with 346 people killed by police, it looked like the numbers were going to stay steady. But by the end of the year, with 1,194 people killed, there was an increase of 23 people over 2016.

And this year is worse. We’re up to 378 people killed by April 15, the highest yet. If this trend continues, this could be the first year tracked by the site where we have 1,300 people killed by police in the United States.

It was my long-held belief that police brutality would increase under the Trump administration. While nearly all policing decisions are made at the state or county level, Trump has already signaled to police that he is in their corner and has made remarks suggesting that he didn’t really mind a little police brutality here and there. The Department of Justice meanwhile made clear last year that it wouldn’t be spending its resources to hold corrupt police departments accountable when it ended a DOJ program that scrutinized them. Now a recent decision from the conservative-majority Supreme Court has doubled down on protections for police who use force even in situations where it was not called for.

These actions each have a trickle-down effect and it appears we are now living in that effect. In spite of previous police rhetoric claiming they no longer felt comfortable using force, they clearly do. The “Ferguson effect” was a lie. Police are using lethal force even more than in 2014. It hasn’t slowed down — it has sped up.

In Louisiana, Threatening to File a Complaint Against Police Can Lead to a Five-Year Prison Sentence

Livingston Parish Sheriff’s deputies

In Louisiana, Threatening to File a Complaint Against Police Can Lead to a Five-Year Prison Sentence

On April 30, 2015, William Aubin Jr. was at home with his wife in Livingston Parish, Louisiana when a patrol car from the sheriff’s office pulled onto his street. The deputy, William Durkin, was there to investigate a reckless driving complaint. Aubin wasn’t involved in the incident but he knew about it and went outside of his home to speak with Durkin. During a vulgar and combative conversation, according to Aubin, Durkin repeatedly called Aubin a “pussy.”

“I’m calling your supervisor,” Aubin said. “I’m gonna get you fired.” Aubin took out his cell phone, called the sheriff’s department, and started walking back towards his house. But before he made it inside, Durkin arrested him. The charge: intimidation of a public official — a felony that in Louisiana carries a maximum penalty of five years’ imprisonment.

The 21st Judicial District Attorney’s Office (whose jurisdiction includes Livingston Parish) ultimately declined to prosecute Aubin. But in a lawsuit filed in April 2016 in the U.S. District Court of the Middle District of Louisiana against Durkin and his supervisor, Sheriff Jason Ard, Aubin challenged the constitutionality of the statute that led to his arrest. The statute prohibits “the use of violence, force, or threats … with the intent to influence [an official’s] conduct in relation to his position, employment, or duty.”

The statute’s constitutionality was also called into question in a December 2015 incident in nearby Tangipahoa Parish, when officers pepper sprayed a man named Travis Seals even though he was already in handcuffs. After telling the officers he was going to file a complaint against them, he too was charged with public intimidation. Seals then launched his own lawsuit, also in federal court, challenging the constitutionality of the statute.

Louisiana Attorney General Jeff Landry intervened in both cases to defend it. But in the past year, federal judges in the two cases have called the statute unconstitutional. In a September 2017 ruling, Chief Judge Brian A. Jackson of the United States District Court for the Middle District of Louisiana pilloried the application of the statute in the Aubin case. “The right to criticize the police without risk of arrest distinguishes a democracy from a police state,” he wrote.

In the Seals case, Jane Triche Milazzo, a judge in the United States District Court for the Eastern District Of Louisiana, ruled last July that the statute violates the First Amendment.

“The Attorney General does little in the way of arguing that [the law] is constitutional as written or in overcoming the presumption of unconstitutionality,” Milazzo wrote. She noted that the statute broadly criminalized “threats to engage in lawful conduct such as, criticizing a police officer, writing a letter to the newspaper, filing a lawsuit, voting for an official’s opponent, or filing an ethics complaint.”

Landry has appealed her ruling to the United States Court of Appeals for the Fifth Circuit. His office did not respond to requests for comment.

Kearney Loughlin, the New Orleans-based attorney representing both Aubin and Seals says that the statute has become a “sort of a hammer that the police officers can use” since it was ratified in 1942. “You get a higher bail because it’s a felony,” he said. “It’s a more serious felony than battery on a police officer. You can punch an officer and not face the same ramifications.”

According to Loughlin, higher bail means that often many are jailed simply because they can’t afford to purchase their freedom. Loughlin also says that prosecutors may be using the law against defendants arrested for less serious offenses, such as public intoxication, in order to leverage them into pleading guilty to lesser charges.

In August 2017, the ACLU condemned the statute after it was used in the case of a Northern Louisiana man who raised his middle finger to a state trooper. “Among the freedoms this country provides is the right to criticize the government and public officials, including police officers,” wrote Marjorie Esman, who was then the executive director of the ACLU of Louisiana.

Sheriff Ard, one of the defendants in the Aubin lawsuit, argued in court filings that the statute is necessary to protect public officials from threats and coercion. “The government certainly has a substantial interest in ensuring that such threats are not allowed to influence the behavior of police officers and other officials,” Ard’s office wrote in a memo submitted to court in January 2017.

Not everyone in law enforcement, however, agrees that the statute is necessary to ensure the safety of public officials. Twenty-first Judicial District Attorney Scott Perrilloux recently told the Advocate that there are other laws that his office can use to fulfill the statute’s original aim — protecting public officials from true threats and coercion. Perrilloux did tell the newspaper, however, that he believes that the basis for the statute is sound.

But Seals’ and Aubin’s attorney Loughlin maintains that the statute’s broad reach is a clear violation of constitutional protections. “Ultimately the case is, can you threaten to do something lawful and go to jail for it, or is that protected by the first amendment,” Loughlin said. “That’s what this comes down to.”

The Secret Story of Corruption Behind Meek Mill’s Incarceration

Illustration by Joe Cruz / Photograph: Jason Merritt/Getty

The Secret Story of Corruption Behind Meek Mill’s Incarceration

On Jan. 23, 2007, a pair of officers from the Philadelphia Police Department’s Narcotics Field Unit (NFU) received information from a “reliable source” that drug sales were being conducted in the vicinity of 22nd and Jackson Streets, on the city’s south side. “Numerous B/Ms” — NFU officers Reginald Graham and Sylvia Jones would later write in a Philadelphia Police Department Investigation Report, in cop shorthand for black males — were selling drugs while on bikes and on foot in the area. The supplier for the corner dealers, the police’s confidential informant said, was based at 2204 South Hemberger Street, a brick rowhouse in the same South Philly neighborhood.

The officers then met up with the informant to begin an investigation into suspected drug activity at 2204 South Hemberger. It was a chilly day in Philadelphia, with the temperature hovering around 30 degrees and a light dusting of snow, about a tenth of an inch, covered the streets. At approximately 3:30 that afternoon, Graham and Jones said they observed a 5 feet 8 inches tall black man with a medium complexion wearing a tan coat with patches on its sleeves — who they later claim to have identified as 19-year-old Robert Rihmeek Williams (aka Meek Mill), even though he is 6 feet 2 inches and dark-complexioned — exit the home and then ride his bike to 22nd and Jackson streets. At the intersection, the officers said, they watched as a black female handed Williams “an unk. [unknown] amount of USC [United States Currency]” in exchange for “small objects retrieved from his [Williams’] coat pocket.” Graham and Jones then gave their informant 20 bucks in “buy money” to approach Williams for drugs; moments later, at the same street corner, the informant allegedly obtained what the officers again described as “small objects” from Williams once the buy money exchanged hands. Back at 2204 South Hemberger, Graham and Jones performed a “NIK” test (a narcotics field test) of the substance allegedly sold by Williams which they said tested positive for crack cocaine. It’s unclear if a laboratory test of the drugs was ever conducted — Williams’s current attorneys say that such a test is “noticeably absent” from his trial record — which is troubling given the unreliability of narcotics field tests.

It is not apparent from from either Graham and Jones’s initial arrest report or an investigation report, completed months later, exactly when the officers identified the 5 feet 8 inch black male engaged in a drug deal as Williams. Meek’s attorneys told The Appeal that on January 23 he was not in the vicinity of 2204 South Hemberger but was instead in court with a cousin. Despite the shaky identification of Williams, on January 24, Graham and Jones set up surveillance in the vicinity of 2204 South Hemberger. When Williams exited the home he allegedly “looked at the officers … and began to tug on a dark object in the front of his pants.” Graham and Jones, who were clad in tactical “raid gear,” yelled “police!” and then, they said, Williams pulled a gun from his pants and aimed it directly at them. A foot pursuit ensued and the officers tackled Williams to the ground between two parked vehicles. According to Graham and Jones, they retrieved a loaded SIG Sauer 9mm and a Ziploc bag containing marijuana from Williams. Several police officers then conducted a search of 2204 South Hemberger and reported that they found drugs and about $6,800 in cash.

Williams was handcuffed, arrested, booked on drugs and weapons-related charges, and then hospitalized as a result of injuries he sustained that day, which he claimed came from a severe beating by the police. In a mugshot, Williams’s left eye is swollen shut and there is a large bandage over his right eye. Williams has also said that the police ripped braids from his head, a claim corroborated in a sworn affidavit recently provided to Williams’s attorneys by a former Philly cop. “Every last cop hit me when I got in,” Williams said. “I maybe got knocked out two or three times from getting kicked in my face.” About five months after the arrest, during the summer of 2007, Williams was released on bail.

But Williams wasn’t truly free. The January 2007 arrest by a particularly aggressive unit of the Philadelphia Police Department began his now more than decade-long journey through the city’s criminal justice system. His case has been plagued by a staggering number of allegations of judicial, police, and prosecutorial misconduct; some misconduct dating back to 2007 has only recently been revealed. The case’s unusual complexity is matched by the high-profile nature of the defendant. Then-teenaged Robert Rihmeek Williams, who had been battle rapping on Philadelphia’s streets since he was 14, has since become hip-hop sensation Meek Mill, famous thanks to albums like Dreams Worth More than Money (which debuted at number one on the Billboard 200 upon its 2015 release), constant tabloid interest in his relationship with fellow superstar Nicki Minaj, and backing from Jay-Z’s management company Roc Nation.

The teen with long braids and a baby face who was arrested by NFU cops on a freezing, snowy Philadelphia street in 2007 barely resembles the Meek of today: He is now a 30-year-old father of a 7-year-old son, and has not been convicted of another crime since a judge handed down a guilty verdict in 2008 related to his drugs and weapons arrest the prior year. Nonetheless, like millions of black men in America, he has effectively been trapped in the criminal justice system ever since. Since Nov. 6, 2017, Meek has been incarcerated at the State Correctional Institution in Chester, Pennsylvania for violating probation. Philadelphia County Court of Common Pleas Judge Genece Brinkley handed him a two- to four-year prison sentence after he failed a drug test and allegedly did not comply with a court order limiting his travel. It was the third time since 2011 that Brinkley revoked Meek’s probation, each time due to similar allegations.

Indeed, Meek’s case illustrates the vast and perhaps under-recognized role that probation plays in America’s unmatched carceral state. The number of people on probation rose from 1.1 million in 1980 to nearly 3.8 million in 2015, according to the Bureau of Justice Statistics (BJS). People of color are vastly over-represented in the parole and probation population, per the same BJS study. In 2015, one-third of the 4.65 million Americans who were on some form of probation or parole were African American. Because probation comes with innumerable conditions — from drug tests to meetings with a probation officer to restrictions that require approval from a judge for out-of-state travel — violations are commonplace, creating a punitive cycle of violations followed by even more punishment. “The probation system has never been about helping people move on with their lives after committing a crime,” wrote journalist Michael Thomsen in a 2015 essay for Al-Jazeera America proposing the elimination of criminal probation. “Instead, it has enabled the government to dig deeper into peoples’ private lives in search of punishable flaws.”

This morning, there was a status conference in front of Judge Brinkley regarding a petition by Meek’s attorneys filed under Philadelphia’s Post Conviction Relief Act (PCRA). In the petition, they present two sworn affidavits from former Philadelphia police officers who have been accused of corruption themselves. One officer, present at the arrest, claims that Graham lied at trial, providing strong corroboration for Meek’s entire theory of the defense. The officer claims that Meek never ran, never struggled with the officers during his arrest, and, critically, that Graham belatedly came up with the story about Meek pointing a gun at the officers.

More damningly, the officers allege that Graham, who provided the critical testimony at Meek’s trial, regularly lied and cheated by making up probable cause justifying searches, stealing money during searches and arrests, and beating up suspects, as Meek testified happened when Graham arrested him. And finally, Meek’s attorneys have pointed to a newly released “do-not-call” list from the Philadelphia district attorney, which identifies police officers who prosecutors deemed unworthy of belief, including Graham.

At trial, the government’s case hinged entirely on the credibility of Graham, the sole witness, and Meek’s lawyers believe their new evidence obliterates it. They have asked Brinkley to vacate Meek’s convictions and release him on bond pending resolution of this matter.

At this morning’s status conference, the Philadelphia DA’s office said that because of questions surrounding Graham’s credibility, Meek’s conviction on drug and weapons charges should be vacated and he should be granted a new trial. The DA’s office also reiterated its support for Meek’s release on bail.

It is unclear when — and how — Brinkley will rule on Meek’s PCRA. But this morning, Brinkley refused to even hear arguments that Meek should be released on bail and simply scheduled another hearing for June. So if court today and history are any guide, she’s likely to hand down an adverse decision in the rapper’s case. In her past interactions with Meek, she has harshly punished him for minor violations, sometimes ignoring the advice of prosecutors and Meek’s probation officer; additionally, his attorneys have accused her of everything from inappropriate ex parte communications with Meek to retaliating against a former police detective who performed renovation work that dissatisfied her on her Philadelphia home. (Brinkley did not respond to multiple requests for comment from The Appeal regarding Meek’s case or the allegations of impropriety against her.)

Unsurprisingly, on March 29, Brinkley denied Meek’s motion for bail pending his as-yet-to-be scheduled PCRA hearing. “This court has impartially and without prejudice presided over numerous proceedings in this matter since 2008,” Brinkley wrote, “long before his current counsel became involved one week before the violation of probation hearing. None of the allegations by [the] defendant constitute evidence that this court is unable to act impartially and without personal bias or prejudice with respect to this matter.”

When Meek went to trial in the summer of 2008 on drugs- and weapons-related charges, well-known mob defense attorney Joseph Santaguida represented him. Santaguida’s other clients included “Skinny Joe” Merlino, known as the Philadelphia Mob boss, and many other members of the area’s organized crime scene. A former assistant U.S. Attorney with the Organized Crime Task Force described him as “right out of Central Casting for what you’d expect as the lawyer for mobsters.” Despite his extensive criminal defense experience, Santaguida made a questionable choice at trial: With Meek’s consent, he waived Meek’s right to a trial before a jury.

The jury system is a centerpiece of the American criminal justice system. The right to be judged by 12 peers ensures that 12 people, not one, all must agree that a defendant is guilty beyond a reasonable doubt. If one person has doubt, the government is denied its conviction. Waive that right and present the case to a judge, and the accused’s fate comes down to one person. It is an extraordinary gamble.

In this case, Santaguida’s risky move placed Meek’s fate in the hands of Judge Brinkley, who is well-known for courting controversy in and out of the courtroom. She once jailed a court reporter with mental illness for not completing transcripts, she sued a hotel for $12,000 because she suffered “trauma” and sleeplessness after the hotel employee left a name tag in the hotel bed, and she has allegedly used her role as a judge to threaten multiple tenants for failing to pay rent. She also became the sole decider of Meek’s future.

The case hinged on whether Brinkley should believe the government’s only witness, Officer Graham — who portrayed Meek as a menace to law enforcement and claimed Meek “pointed [a] gun in [the officers’] direction” — or Meek, who testified that when police approached him, he tossed his gun but never pointed it at an officer, and that he never tried to flee and never struggled with the police. The judge chose to trust Graham and on Aug. 19, 2008, found Meek guilty of possession with intent to deliver narcotics, possession of narcotics, simple assault, carrying a firearm without a license, carrying firearms in public, possession of an instrument of a crime, and carrying a loaded weapon. On Jan. 16, 2009, she sentenced Meek to 11–23 months in prison with eight years probation. No lawyer filed an appeal, although Meek had a constitutional right to one. He remained in prison until July 2009, when he was released on parole. Six months later, he started probation, under Brinkley’s careful watch.

A chopper arrives for Meek Mill after he was released from the Pennsylvania State Correctional Facility in 2018.
Illustration by Joe Cruz / Photo: William Thomas Cain/Stringer

Since his trial, Meek and Brinkley have engaged in a long and troubling dance. The judge has exercised enormous control over the details of Meek’s life: She has decided, for example, whether and when Meek can travel to his concerts and when he can perform for pay — a highly unusual and intrusive role for a judge to play. She has repeatedly extended his probation and sentenced him to more jail time and house arrest — and now prison time — for small violations. In 2011, Meek tested positive for opiates, and Brinkley found him in violation of his probation. In 2012 police arrested him, claiming they smelled weed in his car (he was arrested for refusing a search). No criminal charges followed, but Brinkley again found him in violation. She ordered two drug tests, both of which were clean, and also banned him from significant work travel, but she did not revoke his probation or send him to prison.

It was not necessarily Meek’s technical violations, however, that have set Brinkley off the most. Brinkley’s interest in Meek’s life appears to extend well beyond that which is appropriate for a judicial officer, and she has reserved particular umbrage for Meek’s split from Charlie Mack, his manager, and Meek’s decision to sign with Jay-Z’s Roc Nation. She has repeatedly encouraged Meek to return to his old manager.

Mack is the former manager of the R&B group Boyz II Men. Sometime around 2009, Mack claimed he could help Meek with his legal problems and encouraged Meek to sign him. Meek did, and he was released from house arrest not long after. But in 2011, Meek alleged that Mack stole money from him and fired him, signing with Roc Nation. (Mack has his own criminal history.)

Although she later claimed otherwise, this move appeared to incense Brinkley, the probation officer Brinkley had hand-selected in 2012 to oversee Meek’s case, and Assistant District Attorney Noel DeSantis, then-assigned to Meek’s case. In the 2012 hearing, Brinkley complained that Meek had changed managers, blaming any problems Meek had on his new contract with Roc Nation: “He didn’t have no problems with the other manager, so you all let him down this time,” she said, addressing his new manager. In 2013, she complained: “It was when the defendant got new management that apparently there became some miscommunication about travel and I said that before and I’m saying it again.” She again lamented the absence of Mack in Meek’s life in 2014, and in a 2016 hearing both the probation officer — who communicated with Mack nearly 40 times in 2016 — and the ADA did the same. The probation officer also referred to Mack as “phenomenal.”

Of the judge’s relationship with Mack, Meek’s attorney Jordan Siev told The Appeal: “Meek was introduced to Mack by someone, we don’t know who, who told him Mack was someone who knew how to get the judge right on probation. He was told if he hired Mack he would get out sooner.” As the years passed, Meek stayed out of trouble, but Brinkley nonetheless seemed to grow increasingly frustrated with him. In 2012, she denied him permission to travel. In 2013, she ordered him to take etiquette classes from an acquaintance of Mack’s and again denied him the right to travel. And then, in 2014, Brinkley sent Meek back to jail for three to six months, angry that he did not get her permission to travel and that he tested positive for the drug Percocet. But that wasn’t the worst part of his punishment; Brinkley extended his probation for another five years. Siev calls Brinkley’s interest in Meek’s probation “highly unusual, I have talked to defense attorneys everywhere and they said they have never heard of a situation like this.”

As Meek struggled in Brinkley’s courtroom, the credibility of the cop who arrested him in 2007 and testified against him a year later began to unravel. In November 2013, Officer Reginald Graham approached the FBI, unsolicited, regarding what was then a fast-intensifying federal investigation into allegations that the Narcotics Field Unit was stealing large amounts of drugs and cash from Philadelphia residents. During his FBI interview, Graham confessed that he received cash recovered during NFU searches — but he nonetheless failed a polygraph examination administered by the bureau regarding his conduct as a police officer. The Philadelphia Police Department’s Internal Affairs initiated an investigation of Graham, and sustained accusations against him including engaging in criminal conduct, theft, and lying during an investigation (Graham retired from the Philadelphia Police Department in 2017).

Police report excerpt describing the informant’s alleged drug purchase.

Nearly one year later, in October 2014, six NFU officers were indicted in the United States District Court for the Eastern District of Pennsylvania on an array of charges including robbery, extortion, falsification of records, and racketeering conspiracy. Federal prosecutors alleged that the NFU was effectively a criminal enterprise that stole drugs and cash from the homes and vehicles of Philadelphia residents. In a single day — Oct. 16, 2007 — NFU cops Brian Reynolds, Jeffrey Walker, and Thomas Liciardello allegedly stole $30,000 in drug proceeds seized from a car belonging to a man identified in court documents only as “RK” and $80,000 from a safe in RK’s apartment. Federal prosecutors alleged that when the trio of cops documented the seizures they reported that only $13,000 was seized from RK and didn’t mention the $80,000 from his safe.

But when the NFU officers headed to federal court in the early spring of 2015, they were acquitted of the 47 charges containing 26 separate criminal counts in the indictment. The nearly 52 day trial likely ended in acquittals because it was built on the testimony of unsavory witnesses: suspects in drug cases and NFU cop-turned-witness Jeffrey Walker, who pleaded guilty in a separate corruption case in 2014. Despite the not-guilty verdicts — and the NFU officers returning to their jobs with the Philadelphia Police Department — some measure of justice was served to the Philadelphia citizens they had arrested in the past. In the years following the NFU indictment, over 800 criminal convictions related to the unit have been vacated by Philadelphia courts.

NFU misconduct reverberated far beyond the collapsed federal case against them. Officer Walker, a key government witness at the 2015 NFU trial, later testified in civil depositions about misconduct committed by Officer Graham, including alleged acts of perjury. Then-District Attorney Seth Williams — who is now serving a five-year federal prison term in an unrelated bribery case — created a secret “do not call” list of current and former Philadelphia police officers who were not to be used by prosecutors because the DA could not vouch for their credibility. Graham was included in the “do not call” list, a fact not disclosed to Meek’s attorneys. Disclosure is arguably required by law under Giglio v. United States which held that a defendant’s due process rights are violated when the government does not disclose impeachment information regarding its witnesses. Indeed, Meek’s current attorneys contend that no Giglio material concerning Officer Graham was handed over by the Philadelphia DA’s office to his trial or post-conviction counsel. That claim was backed up by the current Philadelphia DA who asserted in a recent filing that, “at some point prior to 2018, the Commonwealth became aware of some issues or conduct bearing on the credibility of Officer Graham, yet there is no indication this material was timely given to the Court or Petitioner.”

Sixx King at a Meek Mill supporters protest on the day of the status hearing at Philadelphia Criminal Justice Center.
Illustration by Joe Cruz / Photo: Brian Stukes/Getty

Meek was released from jail