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Nashville considers implementing an independent police oversight board, and more

Nashville considers implementing an independent police oversight board, and more


In This Edition of the Political Report

October 25, 2018:

  • Florida: Sheriff candidate pledges to withdraw from ICE partnership

  • Tennessee: Nashville considers implementing an independent police oversight board

  • Texas:  San Antonio DA candidate pledges to put ‘real teeth’ into cite-and-release

  • Texas: Marijuana prosecutions and bail reform at the forefront of Dallas DA race

  • Kansas: Candidate for attorney general centers campaign on criminal justice reform

  • Quick hits: The ACLU airs advertisement in Wake County, DeSantis speaks on platform

You can see previous coverage of the local politics of criminal justice reform and mass incarceration on our website The Appeal: Political Report. The site also features tools with which to explore all completed and upcoming local elections that the Political Report has covered.

Florida: Sheriff candidate pledges to withdraw from ICE partnership

Federal courts have repeatedly ruled against local officials who hold people in jail beyond their scheduled release based on ICE “detainer” requests. In January, ICE and 17 Florida sheriffs launched a new bid to circumvent those rulings; they announced a new sort of agreement, which they claim will enable local officials to legally hold people suspected of being undocumented for 48 extra hours while ICE prepares to detain them. The ACLU disputes that the new mechanism changes the legality of ICE detainers. “The new scheme is simply a change in paperwork, with no relevant legal changes,” says the ACLU.

Among the 17 sheriffs who joined this partnership is Chad Chronister of Hillsborough County, which contains Tampa. A Republican who was appointed to this office by Governor Rick Scott in 2017, Chronister is now seeking a full term.

While Chronister’s cooperation with ICE has drawn protests, local leaders from both parties have rallied around the sheriff. A month after his appointment, in October 2017, Chronister held a campaign kickoff with prominent county politicians, including Democrats like Tampa Mayor Bob Buckhorn and State Attorney Andrew Warren. Chronister then joined ICE’s new program in January; Buckhorn and Warren have since reiterated their endorsements of Chronister.

Gary Pruitt, a former Tampa police corporal and Chronister’s Democratic challenger, told me on Monday that he would “definitely withdraw” from Chronister’s new partnership with ICE if he were elected. He said that the agreement implements a “dragnet approach” as federal authorities can target people on the local jails’ databases even if they didn’t “have somebody that they’re looking at.” “All you’re doing is screwing with people,” Pruitt said, noting that “the stigma of how we participated” makes communities distrust local law enforcement and endangers public safety.

The Appeal’s George Joseph wrote an article that details other issues in the Hillsborough County sheriff’s office, including its “troubling opacity regarding custody jail deaths.”

Tennessee: Nashville considers an independent police oversight board

In the wake of a Nashville police officer shooting and killing Jocques Clemmons, a Black man who was running away, community groups have put a referendum on the November ballot to create an independent board empowered to investigate police misconduct. Clemmons’s mother led the group of activists who submitted the referendum petition to municipal officials.

“The community has been pushing for this for at least 40 years,” Theeda Murphy, an organizer with Community Oversight Nashville, told me. She said Clemmons’s shooting sparked renewed urgency. In July, days before organizers filed their petition, Officer Andrew Delke fatally shot another Black man, Daniel Hambrick, while he was running away. Delke was charged with homicide in September. The officer who shot Clemmons, Joshua Lippert, faced no charges.

The federal Department of Justice investigated Nashville’s broader policing practices in 2017. Its report recommended that the city consider creating an independent oversight board. In 2016, a group of researchers published Driving While Black, a report on police stops in Nashville that documents aggressive tactics and disproportionate targeting of people of color.

The Fraternal Order of Police and the Davidson County Republican Party are mobilized against the proposal; they argue that police officers are already held accountable through internal investigations and external offices like the district attorney. David Briley, Nashville’s Democratic mayor, says that he supports the idea of an oversight board but not this initiative, in part because of insufficient police input. “The current leadership of the police department under Chief Anderson has been extremely resistant to being accountable outside of the police department,” Murphy said.

Oversight boards elsewhere differ greatly in terms of what independent power they possess. Nashville’s proposed board would get to conduct a “full and complete and independent investigation, outside the purview of the police department,” Murphy said, because it would have the power to issue subpoenas and thus compel witnesses. This is a power that some boards lack.

There is also variation about what is done with the investigations. “Who is going to be the final entity who is going to be supportive of them, because they will be challenged?” Liana Perez, the director of operations of the National Association for Civilian Oversight of Law Enforcement, told me. Nashville’s would be an advisory board. It would issue recommendations to the police department and the mayor. But “the police department will have to provide a rationale” if “they choose to not follow recommendations,” Murphy said. In addition, the board would get to research issues beyond individual cases and provide policy suggestions to the mayor.

The initiative also provides that four of the board’s 11 members need to live in “economically distressed neighborhoods.” “We wanted to make sure that we went beyond” people who tend to already be represented, Murphy said, and achieved “significant representation from people who are left out.”

Texas: San Antonio DA candidate pledges to put ‘real teeth’ into cite-and-release program

Bexar County, which contains San Antonio, will soon have a new district attorney. That much has been clear since the Democratic primary, where Joe Gonzales defeated incumbent Nico LaHood. The Appeal described LaHood in March as a “death-penalty championing, Islam-bashing vaccine skeptic.” Gonzales now faces Republican nominee Tylden Shaeffer. Both men used to work in the district attorney’s office and are now defense attorneys.

Gonzales has emphasized his commitment to reforming the criminal justice system. “Part of my whole progressive philosophy about restorative justice is to give people an opportunity to avoid convictions, avoid being straddled with having convictions on their records,” he said in October. At the same forum, Shaeffer equated talk of restorative justice with “soft on crime” policies. He has similarly pitted criminal justice reforms against public safety elsewhere. “We can’t solve every single one of society’s inequities,” he said in March. “The number one goal is to safeguard the community.”

This contrast has sparked more specific disagreements—starting with policies toward marijuana. Marijuana prosecutions have increased in the county in recent years, according to data compiled by the Justice Collaborative. (The Appeal and the Justice Collaborative are a fiscally sponsored project of Tides Advocacy.) In 2018, Bexar County began a cite-and-release program that allows law enforcement officers to issue citations instead of making arrests over possession of small amounts of marijuana. But its effect has been limited because of various restrictions and because defendants need to pay a $250 fee to participate in this diversion program, aggravating the two-track justice system.

Gonzales said in October that he wants to “put some real teeth into the cite-and-release program” so that “people don’t languish in jail while they’re waiting to get their cases resolved.” Shaeffer has been critical of cite-and-release policies.

Gonzales also proposes pursuing bail reform. He says that he would seek personal recognizance bonds, which allow people to be released without posting bail, more frequently; his website also features a vague commitment to seek “reasonable bail.” Shaeffer has voiced skepticism that the county needs to reform its bail system.

The two also disagree on whether local law enforcement should cooperate with federal immigration authorities. Shaeffer backs the 2017 law (Senate Bill 4) that bars sanctuary policies and enables local officers to ask about immigration status, whereas Gonzales has warned that the law would have “chilling effects.”

You can listen to the entire candidate forum held on Texas Public Radio in October here; I found the exchanges on how to define restorative justice (around the half-hour mark) especially enlightening.

Texas: Marijuana prosecutions and bail reform at the forefront of Dallas DA race

Appointed by Governor Greg Abbott in 2016, Faith Johnson is now seeking a full term as district attorney of Dallas County. She is running as the Republican nominee against Democrat John Creuzot, a former state district judge.

The Justice Collaborative recently published a trove of data on the Dallas County criminal justice system; I wish to highlight three areas and how they intersect with the DA race.

First, marijuana possession cases represent a significant share of criminal filings in the county, and they disproportionately target African Americans. Since January 2017, the first full month of Johnson’s tenure, 10 percent of all new criminal filings have been misdemeanor marijuana possession charges, according to the Texas Office of Court Administration data. And more than half of the people charged with misdemeanor marijuana possession have been Black, the Justice Collaborative shows. (Twenty-three percent of Dallas County residents are Black.)

Creuzot says that he would dismiss first-time marijuana possession charges, but Johnson rejects that position. “What happens is that then I become my own god,” she said. “I won’t arbitrarily decide which laws I don’t want to enforce.” (Her stance that she could avoid exercising prosecutorial discretion contrasts with her statement to the Dallas Morning News that she would be “always using [her] wisdom” to decide to use “progressive” or “aggressive” prosecution.)

Second is the county’s bail system, which a federal judge ruled unconstitutional last month for producing “wealth-based detention.” After coming into office, Johnson had announced that she would curb pretrial detention over marijuana possession through cite-and-release policies and more personal recognizance bonds. But the Justice Collaborative has found little change since; the share of people charged with marijuana possession on whom bond has been imposed is the exact same in 2018 as it was in 2016. Being held in jail because one is too poor to pay pressures defendants to plead guilty; in both 2017 and 2018, defendants charged with marijuana possession on whom bail was imposed were twice as likely to plead guilty as those on whom it was not. In answering an ACLU questionnaire, Creuzot wrote that the bail system is unconstitutional and in need of statewide reform; he also indicated that he would support releasing people on personal recognizance for “most low-level offenses.” (Johnson did not answer the questionnaire.)

Third is the prosecution of homelessness, which often occurs through trespassing charges. Since 2017, at least 26 percent of the people charged with trespassing have been homeless. Bonds were imposed on nearly all of them, and more than 80 percent pleaded guilty. Creuzot has said that he would curb trespassing prosecutions, and has specifically committed to not arresting homeless people on trespassing charges alone.

Beyond mentioning a “goal of ending mass incarceration,” Creuzot has been more specific than many DA candidates are willing to be by agreeing to set a quantified target. “My goal is to reduce Dallas County state jail and prison unit admissions by 15-20% within a four-year period,” he writes in his ACLU questionnaire. Beyond the policies described above, Creuzot has said that he would make probation terms less restrictive and only seek to revoke probation for violation that threatened public safety—as opposed to a missed appointment, for instance—and has proposed more services to address issues relating to drugs or mental health.

Kansas: Candidate for attorney general centers campaign on criminal justice reform

Sarah Swain, a defense attorney and the Democratic nominee for attorney general in Kansas, has centered her platform on criminal justice reform. A new profile in the Topeka Capital-Journal focuses on her criticism of the war on drugs and her support for policies and programs that would decrease incarceration over drug offenses. “I believe mass incarceration is a failed experiment,” Swain said.

In answering a questionnaire prepared by the Capital-Journal, Swain writes about her support for legalizing marijuana and abolishing the death penalty. Swain’s Republican opponent, incumbent Attorney General Derek Schmidt, opposes both proposals.

Schmidt was already favored since Kansas typically votes Republican. But Swain’s chances got even tougher in June when Democratic leaders stopped supporting her after a report that she hanged a poster in her office that shows Wonder Woman with a tight lasso around the neck of a police officer. (As of Oct. 23, Swain is not included on the state Democratic Party’s candidates page.) In a statement, Swain said that the poster speaks to the “less-than-honest police officers” she has witnessed in her work as a defense attorney, and that it depicts a “lasso of truth” and “the rigors of cross-examination.”

Quick hits: The ACLU airs advertisement in Wake County, DeSantis speaks on platform

Wake County, North Carolina: The election for Wake County sheriff features a divide on immigration policy—Sheriff Donnie Harrison would continue the county’s 287(g) agreement with ICE, while Democratic challenger Gerald Baker would withdraw from it—but I wrote two weeks ago that the issue has struggled for visibility in English-language media. The ACLU launched an ad this week that aims to draw attention to the county’s cooperation with federal immigration authorities. The ad discusses Harrison’s “anti-immigration agenda” and his “special agreement” to “detain immigrants using local resources.” An ACLU official said the organization is spending $100,000 on airing the advertisement.

Florida: Andrew Gillum, the Democratic nominee for Florida governor, has outlined a far-reaching criminal justice reform agenda, but his opponent Ron DeSantis has largely avoided developing a precise platform, I wrote in August. In a new article by the Florida Times-Union, Andrew Pantazi describes DeSantis’s continued reluctance to provide specifics, but also provides clarity on DeSantis’s broader orientation: DeSantis does not believe that Florida needs to decrease its incarceration rate, and supports mandatory minimum sentencing and the state’s existing restrictions on parole. “To DeSantis, any retreat from the state’s tough-on-crime policies is an offense to police and will reverse the state’s 50-year low crime rates,” Pantazi writes.

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

How Amazon and other tech giants became crucial enablers of Trump’s immigration and law enforcement agenda

How Amazon and other tech giants became crucial enablers of Trump’s immigration and law enforcement agenda


What you’ll read today

  • Spotlight: How Amazon and other tech giants became crucial enablers of Trump’s immigration and law enforcement agenda

  • Program meant to fight terrorism and narcotrafficking is being used to target the undocumented community

  • Advocates say Brooklyn DA’s office is prosecuting transgender people in self-defense cases

  • ICE arrested a man after he testified against his daughter’s attacker

  • Victims of police abuse in Chicago are often themselves arrested

  • NYC transit president calls for arresting homeless people on subways

  • Five-term North Carolina sheriff faces opposition from the left

In the Spotlight

How Amazon and other tech giants became crucial enablers of Trump’s immigration and law enforcement agenda

Amazon, Palantir, and other large tech companies are making billions of dollars by selling services that help President Trump’s deportation agenda, a new report says. A group of nonprofits, including Mijente and the Immigrant Defense Project, concludes in the report, Who’s Behind ICE?, that these companies are equipping ICE with technology that helps it track, detain, and deport immigrants. Far from the tangential aid the companies claim to provide, they in fact are “playing an increasingly central role in facilitating the expansion and acceleration of arrests, detentions and deportations,” the report states. They do so by enabling the government to rely increasingly on tech innovations such as big-data analysis and cloud-based storage; if unchecked, tech companies will continue to develop new systems that ICE uses to target immigrants and that police use to target people of color in their communities. “It is deeply troubling that at the same time these corporations characterize these services and products as business ventures that are free from bias, racism, profiling, and abuse, while being highly profitable.” [Megan Cerullo / Daily News]

The nonprofits argue that “dismantling the lucrative relationship between tech and ICE” is essential to pushing back against the White House’s stance on immigration, claiming that ICE “cannot develop or operate its massive information systems without the technology industry and its products and services.” Amazon, no longer simply a mega online retailer, has become a broker of cloud storage space; it now has the most federal authorizations to maintain government data, and hosts the data-sharing systems that the Department of Homeland Security relies on to “detect and prevent illegal entry.” In that role, Amazon stores biometric data for 230 million unique identities—including fingerprint and face records. McKinsey recently sponsored a “boot camp” where Amazon discussed Rekognition, its facial recognition system. One of the customers interested in learning more about those services? ICE. [Megan Cerullo / Daily News]

Over 450 Amazon employees signed a letter, urging CEO Jeff Bezos and other executives to halt their practice of selling Rekognition to police departments around the country. The letter also demanded employee oversight for ethical decision-making. In a follow-up article, an anonymous employee wrote that “Amazon is designing, marketing, and selling a system for dangerous mass surveillance right now.” The employee warned that law enforcement “has already started using facial recognition with virtually no public oversight or debate or restrictions on use from Amazon.” In Orlando, authorities are testing Rekognition with live video feeds from surveillance cameras around the city. In Oregon, a sheriff’s department is using Rekognition to let officers in the field compare photos to a database of mugshots. Teresa Carlson, vice president of the worldwide public sector of Amazon Web Services, said in July that Amazon “unwaveringly” supports law enforcement, defense, and intelligence customers, even if the company doesn’t “know everything they’re actually utilizing the tool for.” On stage in October, Bezos acknowledged that his company’s products might be exploited, but instead of preventing those abuses, Bezos suggested that Amazon wait for society’s “immune response.” [Anonymous Amazon employee / Medium]

A recent test of Rekognition ran pictures of every member of Congress against a collection of mugshots. Far from being perfect, there were 28 false matches, and the incorrect results were disproportionately higher for people of color. “The product we’re selling is a flawed technology that reinforces existing bias. Studies have shown that facial recognition is more likely to misidentify people with darker skin,” the employee writes. “But even if these inaccuracies were fixed, it would still be irresponsible, dangerous, and unethical to allow government use of this software. The existing biases that produced this bias exist within wider society and our justice system. The use of facial recognition will only reproduce and amplify existing systems of oppression.” The employee concludes: “For Amazon to say that we require our Rekognition customers to follow the law is no guarantee of civil liberties at all—it’s a way to avoid taking responsibility for the negative uses of this technology.” [Anonymous Amazon employee / Medium]

“If you think about the top 40 or top 80 companies you know, almost all of them are thinking about facial recognition, or they’ve all at least looked into it,” said Peter Trepp, CEO of the facial-recognition software company FaceFirst. Trepp said his company has also been marketing to sports stadiums and teams. On Wednesday, New York City Council Member Ritchie Torres, who represents the Bronx, introduced a bill that would require businesses to tell the public if they are using facial recognition, how long they are storing it, and who they are sharing it with. Torres was inspired to push the bill after he learned that Madison Square Garden uses facial recognition. [Nick Tabor / New York] No New York City law requires companies to disclose how they use facial-recognition technology. The NYPD, which is fighting a public-records request regarding its use of the tool, feeds images into a mug-shot database and gets back hundreds of possible matches, from which a group of detectives tries to find a match. [Zolan Kanno-Youngs / Wall Street Journal]

Several states, including Alaska, Connecticut, Montana, New Hampshire, and Washington, have considered similar privacy laws recently, but all except Washington have failed in those efforts. Illinois and Texas also have long-standing privacy laws in place. Much of the opposition comes from high-powered tech companies and trade groups, including Facebook and Google which “have come out in full force.” Facebook has been “especially aggressive, according to a report from the Center for Public Integrity.” [Nick Tabor / New York]

This news all comes as the Transportation Security Administration “released a sweeping plan last week to turn U.S. airports into the first large-scale, comprehensive application of face surveillance technology on the American public,” according to the ACLU. This “would all culminate in the agency seeking to extend ‘biometric solutions to the general flying public.’” [Jay Stanley / ACLU] And to round out this week of dystopia, “RealNetworks released its Best Practices guide for using facial recognition technology to support safer K-12 campuses.” [Stephen Mayhew / RealNetworks]

Stories From The Appeal

Jorge Arroyo and his family in Texas this month. [Debbie Nathan/The Appeal]

Program Meant to Fight Terrorism and Narcotrafficking Is Being Used to Target the Undocumented Community. Opposition to Operation Stonegarden, however, is spreading; one Arizona county just rejected over $1 million of its funds. [Debbie Nathan]

Advocates Say Brooklyn DA’s Office Is Prosecuting Transgender People in Self-Defense Cases. Decision-making by prosecutors in such cases, says one attorney, ‘compounds, entrenches, and ultimately authorizes the initial act of violence by prosecuting the victim.’ [Aviva Stahl]

Stories From Around the Country

ICE arrested a man after he testified against his daughter’s attacker: “An undocumented Anaheim man picked up by immigration officials after appearing in court to seek a restraining order against his daughter’s molester could be deported Tuesday,” reports a news network in California. ICE arrested Marcos Villanueva while he was at breakfast with his family, just two days after he testified in court to help his 12-year-old daughter get a restraining order against her alleged attacker. She had accused her 51-year-old uncle of molesting her, and the family believes the uncle tipped off ICE in retaliation. The 40-year-old father and professional house painter had no criminal record, and he is scheduled to be deported at 5 a.m. Tuesday to Honduras, a country he fled 13 years ago in fear for his life, after witnessing a friend’s murder. “This is probably the most unjust and unfair case I’ve ever seen,” his attorney said. [Kristina Bravo, Elizabeth Espinosa, and Courtney Friel / KTLA]

Victims of police abuse in Chicago are often themselves arrested: The conviction this month of Chicago police officer Jason Van Dyke for killing teenager Laquan McDonald  is exceedingly rare. “Much more often, it’s the person on the other end of police force that ends up arrested, charged and convicted,” according to the Chicago Reporter. An investigation “has found a troubling pattern of Chicago police officers charging people they’ve assaulted with aggravated battery to a police officer, aggravated assault of a police officer, or resisting arrest. Defense attorneys call these ‘cover charges’ and say it’s a way to cover up bad behavior or justify their excessive use of force.” The investigation found that two out of every three times a Chicago officer reported using force since 2004, they arrested the subject on one of these charges. Cover charges comprise nearly one in five of the 1,112 police misconduct lawsuits paid out by the city between 2011 and 2017, costing taxpayers over $33 million. In 1972, a panel on Chicago police abuse “noted that three charges—disorderly conduct, resisting arrest, and battery to a police officer—were so commonly used as cover for misconduct that lawyers referred to them as the ‘holy trinity.’” Nearly half a century later, little has changed. [Jonah Newman / Chicago Reporter]

NYC transit president calls for arresting homeless people on subways: New York City Transit President Andy Byford announced a crackdown on “subway vagrants” Monday, “directing station managers to remove homeless people who take up multiple seats and make a mess,” according to the New York Post. Byford told staffers to call the police if the “vagrants are engaging in ‘antisocial’ behavior.” This policy comes just in time for cold temperatures to drive homeless people off the streets and onto the subways. “They are human beings,” said Metropolitan Transportation Authority board member Charles Moerdler. “They are individuals with individual problems. To deal with them all as one is just wrong, and to deal with them uncaringly and recklessly, in my view, is a disaster.” Giselle Routhier, policy director at Coalition for the Homeless, said, “The approach should be relationship-building and offering people services.” Riders told the Post that they don’t think the MTA should call the cops on homeless people for lying down or carrying all their possessions around. [Danielle Furfaro / New York Post]

Five-term North Carolina sheriff faces opposition from the left: Republican Donnie Harrison, the five-term sheriff of Wake County, is facing a Democratic challenger, Gerald M. Baker. Harrison and Baker agree that unnecessarily high bonds are keeping too many people in jail. Both support body-worn cameras. But Baker has been questioning the sheriff’s management skills and integrity. He “criticized Harrison for not firing a deputy who was charged with assault after unleashing his K-9 on an unarmed man in April,” according to the News & Observer. He also criticizes Harrison’s cooperation with ICE, supports treatment––not jail––for those with mental health or substance use disorders, and more accountability for officers who abuse their power. [Thomasi McDonald / News & Observer]

Thanks for reading. We’ll see you tomorrow.

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

People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs


What you’ll read today

  • Spotlight: People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

  • This Florida county’s sheriff is controversial. But his election won’t be close

  • Lawsuit: Manhattan DA’s office tracks cops with credibility problems, but refuses to release its list

  • USDA quietly funds rural jail construction boom

  • Maryland sheriff, ally of Trump and Fox, faces challenge from the left

  • New hazard of body cameras: explosions

In the Spotlight

People laughed when Kanye called for abolishing the ‘trap door’ in the 13th Amendment; now Coloradans are voting on theirs

After a recent performance on “Saturday Night Live,” rapper Kanye West did more than deliver a pro-Trump rant: He took to Twitter, in Trump fashion, and created controversy by calling for the abolition of the 13th Amendment, which ended slavery in the U.S.

People were outraged.

West later clarified, indicating that he meant the amendment should be amended, not abolished. “The 13th Amendment is slavery in disguise,” he tweeted, “meaning it never ended . . . We are the solution that heals.” Later, during a meeting with the president, West referred to “that trap door called the 13th Amendment.” West seems to have been referring to the amendment’s “exception clause,” the part that allows slavery and involuntary servitude to continue “as a punishment for crime whereof the party shall have been duly convicted.” If that is the case, West may have had something of a point.

When Congress debated the amendment, anti-slavery Republican Senator Charles Sumner of Massachusetts spoke out forcefully against allowing slavery to continue in the penal system, urging the Senate Judiciary Committee to remove that language. During floor debates in 1864, Sumner noted that the exact language of the 13th Amendment can be traced to the Northwest Ordinance of 1787, which outlawed slavery in the Northwest Territory—except as a punishment for a crime, at a time when there were no prisons. Why adopt last century’s code of human decency, he asked. He said that in 1787 “it was the habit in certain parts of the country … to doom [people] as slaves for life as a punishment for crime” but in this context, the words “do no good.” [Meagan Flynn / Washington Post]

“Sumner got his told-you-so moment in the years after the amendment’s passage,” writes Meagan Flynn, citing professor Dennis R. Childs, “when states started using the 13th Amendment to re-enslave people convicted of crimes for a term of years, selling them at auction to the highest bidder.” In the Southern states, “tens of thousands of people, overwhelmingly black, were leased by the state to plantation owners, privately owned railroad yards, coal mines and road-building chain gangs and made to work under the whip from dusk till dawn—often as punishment for petty crimes such as vagrancy or theft.” The Oscar-nominated documentary “13th” analyzed the connection between the amendment and the prison-industrial complex. “The 13th Amendment’s exception clause allowed the convict-leasing system to flourish and grow, and it became the dominant form of imprisonment throughout the South,” said professor Robert Perkinson. “[I]t served as a blueprint for the harsh, retributionist imprisonment that became, tragically, the dominant form of American incarceration.” [Meagan Flynn / Washington Post]

Over the summer, prisoners across the country undertook a three-week prison strike, engaging in boycotts, hunger strikes, work strikes and sit-ins. The strikers’ second demand, after improvements to conditions, was “An immediate end to prison slavery,” which was defined as prisoners being paid “the prevailing wage in their state or territory for their labor.” [Incarcerated Workers Organizing Committee]  

Every day, more than 800,000 prisoners are put to work, doing cleaning, cooking and lawn mowing. In some states, they are forced to work, and the pay can be as low as 4 cents an hour. The exception clause in the 13th Amendment has been used to defend these practices. [Ed Pilkington / The Guardian

In 2016, Colorado voters had a chance to remove similar language from their state constitution, but they rejected the ballot measure. A bill with similar goals failed the same year in Wisconsin and stalled in Tennessee. Many took the Colorado vote as a message that slavery is still acceptable. Others “believe it failed not because a majority of Colorado voters approve of slavery, but because of a poorly written and confusing question that voters were asked to decide through a “yes” or “no” vote,” reports the Washington Post. When people don’t understand a ballot measure, they tend to vote “no.” The state voter guide included arguments against the measure, but there was no organized opposition. [Kristine Phillips / Washington Post]

But Coloradans are getting a second chance this November. “The language [on the 2016 measure] was extremely confusing,” says Kamau Allen of Abolish Slavery Colorado. “This time we wanted to make it absolutely clear that a ‘yes’ vote was a vote to abolish the exception.” The vote would not change the state’s prison labor programs because corrections facilities pay inmates for their work, albeit less than minimum wage. But proponents say the change is necessary. Jumoke Emery from Abolish Slavery said this change was akin to taking down Confederate monuments: “Bringing down these monuments of our past … is incredibly important to moving forward and healing racial divides.” [Candice Norwood / Governing]

The 2018 measure has received bipartisan support from lawmakers, and Abolish Slavery Colorado has not seen any organized opposition. Richard Collins, a constitutional law professor with the University of Colorado, Boulder, says there would be no immediate legal change, but it could empower some prisoners to take legal action: “I don’t doubt that if it were to pass, some prisoners would invoke the change to try to challenge some conditions in prisons,” he said. “What the courts do with that is then another question.” [Candice Norwood / Governing]

Stories From The Appeal

Photo Illustration by Anagraph / Photo via Chad Chronister Twitter

This Florida County’s Sheriff Is Controversial. But His Election Won’t Be Close. The Hillsborough County Sheriff’s Office stands accused of violating immigrants’ rights and dismissing a shocking number of jail deaths. [George Joseph]

Lawsuit: Manhattan DA’s Office Tracks Cops With Credibility Problems, But Refuses to Release Its List. The office has criticized the NYPD for shielding officers’ misconduct histories, but it won’t share its own information on police dishonesty. [George Joseph and Emma Whitford]

Stories From Around the Country

USDA quietly funds rural jail construction boom: “Rural communities are in the midst of a quiet jail boom, financed in part by the U.S. Department of Agriculture (USDA),” according to a report by the Vera Institute of Justice. “Over the last two decades, the USDA has been funding jail construction through a program designed to finance infrastructure like emergency services, hospitals, fire stations, and community centers in agricultural areas. But these funds are now increasingly being directed to helping some rural counties build new, expanded jails, and helping others stay in the business of immigrant detention.” Total overall spending for the Community Facilities program fell by one-third since its peak in 2010, but total funding allocated for jails has increased by more than 200 percent since 2010, especially under the Trump administration. [Jack Norton and Jacob Kang-Brown / Vera Institute of Justice]

Maryland sheriff, ally of Trump and Fox, faces challenge from the left: A Maryland sheriff, who seems to be modeling himself after Joe Arpaio when it comes to immigration, is facing opposition this November from a Democrat who is making the sheriff’s fearmongering and his relationship with ICE into a liability. Sheriff Chuck Jenkins brings in over $4,000 a day by detaining undocumented immigrants in the Frederick County detention center. He takes $83 per detainee per day from the federal government, but spends as little as $17. Even ICE’s office of detention oversight found the facility noncompliant with agency standards on 20 counts in 2013. Democrat Karl Bickel, Jenkins’s challenger, says Jenkins “manages through fear and intimidation” and preys on public concerns about gangs and immigrants that have little impact on real life in the D.C. suburb. Bickel has promised to audit the detention program and the county’s agreement with ICE. [Daniel Moattar / The Guardian]

New hazard of body cameras: explosions: A body-worn camera exploded into flames while a Staten Island officer was wearing it, and the NYPD will remove nearly 3,000 body cameras from use. “The recall of the Vievu-brand LE-5 cameras could delay the department’s plan to outfit all 23,000 patrol officers with body cameras by December, and adds another twist to the complicated history surrounding the mechanisms that have already led to at least one lawsuit over how video from police encounters can be used,” reports Ashley Southall for the New York Times. “The city’s $6.4 million contract for the Vievu cameras set off a contentious debate in 2016 after it surfaced that other police departments had raised concerns about the cameras’ quality, and the city comptroller briefly blocked the deal.” The mayor and police officials defended the selection and moved forward with the plan. The camera that exploded was a Vievu brand LE-5, a model that was introduced a year ago, touting among its features a lithium-ion battery with more than 12 hours of recording time. [Ashley Southall / New York Times]

Thanks for reading. We’ll see you tomorrow.

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

Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration


What you’ll read today

  • Spotlight: Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

  • In Alabama, Black people are 4 times more likely than white people to be arrested for marijuana possession

  • Washington Supreme Court bars life sentences for minors

  • But Illinois Supreme Court upholds life sentence for 18-year-old

  • Dashboard camera footage shows California cops assaulting a man and trying to cover it up

  • Marijuana, legally purchased in Oregon, gets man an 8-year sentence in Mississippi

In the Spotlight

Ohio’s Issue 1 ballot initiative could ‘deal a blow’ to mass incarceration

Next month, Ohio residents will vote on Issue 1, a ballot initiative that could “deal a blow to the war on drugs and mass incarceration,” according to German Lopez of Vox. It would “reduce drug possession offenses to misdemeanors, so they are no longer classified as felonies with harsher penalties” for a person’s first two convictions. It would “then use the money saved (because the state wouldn’t lock up as many people) on addiction treatment and crime victim funds.” [German Lopez / Vox] And it would make the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. If Ohio passes the initiative, it would join five other states that have already reclassified drug possession as a misdemeanor, all since 2014 (California and Oklahoma have done so via referendum). See also, our Political Report 10/18 edition.

It would also allow most prisoners, except for those convicted of murder, rape, or child molestation, to reduce their prison sentences by up to 25 percent by participating in prison rehabilitation programs.

Issue 1 would also bar judges from sending people to prison because of minor probation violations that aren’t themselves a crime. Today, people on probation are subject to long periods of incarceration for what are often called “technical violations,” which can include missing an appointment. Across the country, a significant percentage of prison admissions every year are for technical violations of parole or probation. As a public defender, this Daily Appeal curator saw clients incarcerated for missing probation check-ins, including, once, an appointment that her client was not informed about until after the appointment time had passed.

Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000. The Urban Institute finds that simply by making drug possession a misdemeanor, the initiative would cut it by 3,400. The warnings about the safety risks of reclassifying drug possession as a misdemeanor are not supported by a new Urban Institute study about the impact that doing so has had in five states. “Reducing incarceration for drug offenses can produce significant public safety benefits when paired with investments in drug treatment and crime prevention strategies,” the authors write. See also, our Political Report 10/18 edition.

Many outspoken opponents, most of them Republican, seize on the funding that Issue 1 has received from donors outside the state, including the Chan Zuckerberg Initiative, the Open Society Policy Center, and the Open Philanthropy Project. This argument is difficult to take seriously, however, since in 2010 and 2014, the Koch brothers poured funds into statehouse races, giving Republicans control over 70 percent of state legislatures, the highest number in the party’s history. Former Republican Speaker of the House Newt Gingrich has raised some eyebrows by teaming up with Van Jones to write an op-ed in support of Issue 1.

The Ohio police officers union, prosecutors’ union, and sheriff’s association have come out against the ballot initiative, as law enforcement seems to have adopted a knee-jerk reaction in opposition to most criminal justice reforms. Perhaps somewhat surprisingly, many groups of judges have come out against it, including judges who preside over drug courts, which are meant to give fair and treatment-oriented sanctions to those charged with drug offenses. “It eliminates the single most important factor in rehabilitating people and helping them get off drugs, which is the threat of imposing a prison sentence for violating probation or continued criminal behavior,” Ohio Judge Jeannine Pratt wrote in a recent op-ed.

But this critique does not stand up to scrutiny. Responding to similar arguments from a different drug court judge, David Singleton, a law professor and the executive director of the Ohio Justice and Policy Center pointed out that Issue 1 does not take away a judge’s ability to send a person to jail, only the ability to send that person to prison for long periods of incarceration. “We don’t need the sledgehammer of prison,” said Singleton. “There are other ways to hold people accountable. For instance, graduated responses. If behavior is negative, there’s a consequence that is certain, swift, proportionate to what the violation was, and fair. There’s a range of options that judges have on the table.” A judge could obligate a defendant to come in more often, wear an ankle monitor, or do a stint in jail. [Dan Hurley / Cincinnati Edition]

And research has shown that swift and certain punishments can be effective. A now-famous study of the so-called HOPE program in Hawaii found promising results. The program began with a formal warning, given by a judge in open court, that any violation of probation will result in an immediate, brief jail stay. Probationers were not required to appear before judges regularly, but were subject to random drug tests without advance notice. If they failed, they were sentenced to a jail stay lasting a few days, to be served on the weekend or whenever would not interfere with the person’s work schedule. After repeated missed or positive drug tests, residential or other treatment might be mandated. Compared to probationers in a control group, after one year those in the HOPE program were found to be 55 percent less likely to be arrested for a new crime and 72 percent less likely to use drugs. [National Institute of Justice]

“As a judge, I always consider rehabilitation rather than incarceration,” wrote Judge Pratt. “If Issue 1 passes, judicial discretion will be removed and we as a Judiciary will no longer be able to determine the length of offender’s prison sentence nor will we be able to send multiple repeat drug offenders to prison under most circumstances.” Decreased power seems to be a more sincere reason for judicial opposition, much like the judicial opposition to the initial bail reform bill in California. Another Ohio drug court judge recently hosted a town hall in his own courtroom about Issue 1, inviting only those who already agreed with him. There, he lamented that if Issue 1 passes, “my drug court would shrink drastically.”

Stories From The Appeal

A mural in Selma, Alabama, depicts police violence during the Selma to Montgomery
civil rights march. [Justin Sullivan/Getty Images]

In Alabama, Black People Are 4 Times More Likely Than White People to Be Arrested for Marijuana Possession. A new report details the state’s “War on Marijuana” ahead of a key DA election. [George Joseph]

Stories From Around the Country

Washington Supreme Court bars life sentences for minors: Yesterday, Washington State’s Supreme Court ruled that sentencing people to life in prison without parole for crimes committed when they were under 18 is unconstitutional, joining 20 states and Washington, D.C., who have already outlawed the practice. The 5-4 ruling said that the sentence “constitutes cruel punishment,” and fails to achieve the legal goals of retribution or deterrence because children are different from adults. This ruling comes shortly after a unanimous decision that struck down the death penalty, finding that its current application is unconstitutional. This case addresses “an appeal filed by 39-year-old Brian Bassett, who was convicted of three counts of aggravated first-degree murder for fatally shooting his parents and drowning his 5-year-old brother in a bathtub in 1996, when he was 16,” according to the Seattle Times. [Paige Cornwell and Hannah Rodriguez / Seattle Times]

But Illinois Supreme Court upholds life sentence for 18-year-old: “The Illinois Supreme Court Thursday declined to expand sentencing protections afforded to juveniles to an 18-year-old offender, reversing an Illinois appellate court ruling that held unconstitutional a 76-year sentence without hope of parole to a defendant who committed murder at 18,” reports Injustice Watch. The appellate court in this case had found that the sentence violated the Illinois Constitution’s requirement that sentences consider the goal of rehabilitation: “[I]t shocks the moral sense of the community to send this young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a useful member of society.” But the Illinois Supreme Court disagreed. “New research findings do not necessarily alter that traditional line between adults and juveniles,” it found. “For sentencing purposes, the age of 18 marks the present line between juveniles and adults. As an 18-year-old, defendant falls on the adult side of that line.” [Emily Hoerner / Injustice Watch]

Dashboard camera footage shows California cops assaulting a man and trying to cover it up: Two police dashboard camera videos suggest that an Orange County Sheriff’s Department officer brutally assaulted a man and worked with a supervisor to cover up the incident. In the early hours of Aug. 19, police officers found Orange County resident Mohamed Sayem intoxicated and sleeping in his car in a parking lot. When Sayem tries to get out of the car, one of the officers pins him against the car, and punches him repeatedly and rapidly in the face. “By the third punch, Sayem appears to lose consciousness and begins to collapse,” writes Matt Ferner for HuffPost. The officer continues to deliver blows. The officer later claimed that Sayem had tried to “bear hug” him, that he had grabbed his vest and refused to let go, and that he had used racial slurs, all of which are contradicted by the dashboard camera footage. According to the footage, after a supervisor at the scene checked his body camera, one of the officers, “apparently startled,” said, “You’re recording this now?” Another said, “You’ve been recording this the whole…” and before the sentence was completed, another officer appeared to flip off the supervisor’s recording device. [Matt Ferner / HuffPost]

Marijuana, legally purchased in Oregon, gets man an 8-year sentence in Mississippi: Driving through the Mississippi Delta last year, Patrick Beadle, a Jamaican-born Rastafarian musician from Oregon, was pulled over. “In the car was nearly three pounds of marijuana, which Beadle said he obtained legally in Oregon with his medical marijuana license to help treat the chronic pain in both of his knees after years of playing college basketball,” according to the Washington Post. “In Oregon, he might have faced a civil fine for possessing too much marijuana at one time.” But in Mississippi, he was charged with trafficking in a controlled substance, an offense with a maximum sentence of 40 years in prison. In July, an all-white jury took all of 25 minutes to convict Beadle, who is black.” There was no evidence of trafficking. This week, Beadle was sentenced to eight years without the possibility of parole. [Meagan Flynn / Washington Post]

Thanks for reading. We’ll see you on Wednesday.

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

Four states could legalize marijuana, and other initiatives on the ballot next month

Four states could legalize marijuana, and other initiatives on the ballot next month


In This Edition of the Political Report

October 18, 2018: 14 states hold referendums in which voters will weigh in directly on measures relevant to the criminal justice system and law enforcement practices.

  • Florida: Will voters open the door to retroactively applying criminal justice reforms?

  • Florida: State could overhaul its regime of mass disenfranchisement

  • Louisiana: Amendment 2 would require unanimous jury verdicts, as in 48 other states

  • Michigan, Missouri, North Dakota, Utah: Four states vote on legalizing marijuana

  • Ohio: Reform package would make drug possession a misdemeanor—retroactively

  • Oregon: State’s 30-year-old ‘sanctuary’ law is under threat

  • Quick links: Morgan County, Alabama, debates food funds, and six states vote on ‘Marsy’s Law’

We are excited to introduce The Appeal: Political Report, a website that brings this newsletter’s focus on the local politics of criminal justice reform and mass incarceration to a new medium. It features stories and tools to explore local developments nationwide. It also highlights key elections that will shape criminal justice, law enforcement, and immigration policy.

Florida: Will voters open the door to retroactively applying criminal justice reforms?

Florida’s “Savings Clause” bars the legislature from reducing people’s existing sentences. This provision is an obstacle to meaningful decarceration since it significantly limits the reach of prospective criminal justice or sentencing reforms, as the Florida Times-Union’s Andrew Pantazi has laid out. Florida is the state that goes furthest in barring new legislation from applying retroactively, according to the state’s Constitution Revision Commission.

On Nov. 6, Floridians will weigh in on Amendment 11, a measure to repeal the “Savings Clause” and allow reforms to apply retroactively. It needs 60 percent to pass. It was placed on the ballot by the Constitution Revision Commission, which cites as a motivating inequity the fact that people who committed certain drug offenses before Florida modified its sentencing statutes in 2014 are serving far longer sentences than people convicted of the same offense today.

Some Florida newspapers, including the Miami Herald and the Tampa Bay Times, have endorsed the “no” vote because they worry that the National Rifle Association might push for making the state’s “Stand Your Ground” law retroactive. Melba Pearson, deputy director of the ACLU of Florida, which supports Amendment 11, argues that this concern is “valid” but “outweighed” by the positive changes the measure would enable.

“Amendment 11 would be a great vehicle for reducing mass incarceration,” Pearson told me. As examples of reforms that could be made retroactive, she mentions revising mandatory minimum guidelines, ending the suspension of driver’s licenses and the use of a “career criminal” designation, and legalizing marijuana.

Florida: Voters could overhaul the Sunshine State’s regime of mass disenfranchisement

No state disenfranchises as many of its residents as Florida. A staggering 10 percent of its voting-age population is stripped of the right to vote because of a felony conviction, according to a report the Sentencing Project released in 2016. More than 20 percent of Black adults are affected, an unsurprising racial disparity given the Jim Crow roots of the state’s statutes.

Florida is one of four states that disenfranchise people even after they complete a felony sentence. Floridians must wait for at least five years after the completion of their sentence to even apply for their voting rights to be restored. The application process itself takes many more years, and culminates in a hearing in front of the governor and other statewide officials. The board enjoys full discretion as to what and how to decide, including over what questions to ask applicants, and it only hears a few hundred cases a year. Under Governor Rick Scott’s tenure, which began in 2011, Florida has restored the voting rights of approximately only 3,000 people.

Amendment 4 would overhaul this system. It would enfranchise an estimated 1.5 million people by automatically restoring people’s voting rights once they complete a felony sentence, except for people convicted of murder or a sexual offense. The amendment needs the support of 60 percent of voters, a threshold that polls suggests is realistic. But of course a significant share of Floridians—the very people whose rights are being decided—are barred from participating.

This referendum is the culmination of organizing efforts led by the Florida Rights Restoration Coalition and its president Desmond Meade, who is himself disenfranchised. Mother Jones and the New York Times Magazine recently published in-depth profiles of the coalition’s work.

Louisiana: Amendment 2 would require unanimous jury verdicts, as in 48 other states

The writers of Louisiana’s 1898 Constitution couldn’t outright ban African Americans from serving on a jury, but they circumvented that limitation by enabling juries to convict over the objections of holdouts. Today, Louisianans can be convicted of any felony (including murder) by non-unanimous juries; 10 out of 12 jurors need to convict. This has made trials likelier to end in a guilty verdict in Louisiana than elsewhere, which contributes to the state’s high incarceration rate and may increase the pressure defendants face to accept a plea deal.

Amendment 2, if adopted in November, would revise the Constitution and require unanimous jury verdicts for all felony convictions.

The measure enjoys an unusually broad array of support, including endorsements from both the Democratic and Republican parties. Its most prominent opponent is Attorney General Jeff Landry, who is preparing to challenge Governor John Bel Edwards in 2019. The Louisiana District Attorneys Association is staying neutral, and some of the state’s most prominent DAs have even endorsed it.

Louisiana’s non-unanimous juries have disproportionately harmed African Americans, as the New Orleans Advocate documented in a series of investigations this year. First, Black Louisianans are likelier to have been convicted over at least one holdout’s objections. Of the trials reviewed by the newspaper, 33 percent of those that ended in a white defendant’s conviction were non-unanimous compared to 43 percent that ended in a Black defendant’s conviction. Second, holdout jurors whose opinion is disregarded are likelier to be African Americans—and African Americans are underrepresented on juries to start with. “Maybe my life experience is a little different than some of the white people,” a Black juror told the Advocate after serving in a case in which a Black defendant was convicted of murder over the dissent of two Black holdouts.

Oregon is the only other state that allows non-unanimous verdicts. It would find itself isolated if Louisianans adopt Amendment 2 next month.

Michigan, Missouri, North Dakota, Utah: Four states vote on legalizing marijuana

North Dakota has the nation’s second-highest rate of arrest per marijuana user, and it issues harsher than average punishments, according to a Washington Post analysis. But on Nov. 6, North Dakotans—alongside Michiganders—could legalize the recreational use of marijuana.

There are two significant differences between the states’ initiatives.

First, Michigan’s is more specific and leaves less room for legislative amendment. It would allow people to possess up to 2.5 ounces of marijuana, set up a taxed system of commercial businesses, and enable municipalities to regulate these businesses more harshly within their borders. The legislature would need a supermajority to revise these specifications if voters adopt the measure. North Dakota’s measure is less detailed. Writing in Pot Network, Meg Ellis calls it “vague regarding laying a legal foundation for a recreational pot program.”

“This essentially is a bill asking voters, ‘Do you believe that we should end this failed prohibition of marijuana or not?’” Cole Haymond, an adviser for the Legalize ND campaign, told me. He added that the campaign is open to discussing possible amendments with lawmakers before the measure’s implementation, if it is adopted. “We welcome having a seat at the table to cast aside any concern, if they want to add any taxes, regulation, licensing,” he said.

Second, North Dakota’s initiative (unlike Michigan’s) would expunge the records of people already convicted of many marijuana offenses. However, it would not reduce sentences that people are still serving, even if it’s for an act that is no longer illegal.

Missouri and Utah are also voting on whether to legalize marijuana—but this time for medical use. (Oklahoma just took this step via referendum in June.)

Missouri’s ballot somehow contains three separate referendums to legalize medical marijuana. Each enables patients to acquire marijuana if they suffer from a qualifying condition, but they propose different tax structures and only one allows home-grown marijuana. If more than one passes, the one with the most votes becomes law. The Springfield News-Leader provides a useful overview of these measures’ specifications and differences.

Utahns get to vote on only one measure. According to the Deseret News, Proposition 2 would enable people who meet certain conditions to buy two ounces of marijuana over a two-week period; it would also provide for 15 dispensaries across the state, and enable some people to grow marijuana for personal use at home.

Ohio: Reform package would make drug possession a misdemeanor—retroactively

Issue 1 would overhaul Ohio’s sentencing guidelines and probation system, cutting incarceration through a multipronged approach.

First, it would make possessing any drug a misdemeanor rather than a felony—at least for one’s first two convictions. This would decrease incarceration over new offenses since people arrested for possession would generally no longer face prison terms. Five states have already reclassified drug possession as a misdemeanor, all since 2014 (California and Oklahoma via referendum). Second, it would bar reincarceration over minor probation violations that aren’t themselves a crime. Third, it would enable existing sentences to be reduced. It would do so by increasing the maximum reduction one can obtain for participating in rehabilitation programs to 25 percent from 8 percent, and also by making the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. Of the five states with corresponding reforms, only California allowed retroactive revisions, according to the Urban Institute.

Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000. The Urban Institute finds that the first alone (making drug possession into a misdemeanor) would cut it by 3,400.

“Mass incarceration of drug addicts who should be in treatment is unwise,” Richard Cordray, Democrats’ candidate for governor, has argued. Critics have responded that Issue 1 represents a threat to public health and safety. “We could easily become a magnet for substance abuse activity because there will be, in effect, very little consequence to engaging in such behavior,” Chief Justice Maureen O’Connor, a Republican, wrote in a statement. (Fault lines have been largely partisan, with Democratic politicians generally supportive and GOP ones generally opposed; a prominent exception is Steven Dettelbach, the Democratic nominee for attorney general, who opposes the measure.)

The warnings about the safety risks of reclassifying drug possession as a misdemeanor are not supported by a new Urban Institute study about the impact that doing so has had in five states. “Reducing incarceration for drug offenses can produce significant public safety benefits when paired with investments in drug treatment and crime prevention strategies,” the authors write.

Oregon: State’s 30-year-old ‘sanctuary’ law is under threat

President Trump’s aggressive approach toward immigration enforcement is echoing in Oregon. On November’s ballot is Measure 105, a referendum that would repeal the state’s “sanctuary” law (ORS 181A.820).

Oregon adopted its sanctuary law in 1987 to prohibit local law enforcement from “detecting or apprehending” individuals over their immigration status. An impetus behind the law was to bar deputies from profiling people based on who they suspect might be undocumented. Repealing this law would expand local law enforcement’s ability to help federal immigration authorities arrest undocumented immigrants. Measure 105 is championed by the Federation for American Immigration Reform, a group that favors severe immigration restrictions.

The sheriffs of Oregon’s three largest counties (Multnomah, Washington, Clackamas) all oppose Measure 105; Washington’s sheriff, Pat Garrett, co-wrote an op-ed defending the “sanctuary” law in August. A group of sheriffs representing smaller, more rural counties endorsed repeal in August through a statement that ties illegal immigration to criminality; they write that immigration law-violations are “precursors to other crimes illegal immigrants routinely commit in their efforts to conceal their illegal presence.” Numerous studies contradict such a connection.

What is striking about this repeal push is that Oregon’s sanctuary law does not even affect local law enforcement’s ability to partner with federal authorities when it comes to people already jailed on grounds others than immigration. Oregon’s sheriffs can notify ICE when they detain foreign-born individuals—and Garrett himself engages in this practice daily, The Oregonian reported.

Many of the recent debates about how to restrict local cooperation with ICE (for instance in Minneapolis or Orange County, California) have focused on going an extra step and restricting local officials’ cooperation with ICE even within jails.

Quick hits: Morgan County, Alabama, debates food funds, and six states vote on ‘Marsy’s Law’

Morgan County, Alabama: Alabama sheriffs are allowed to personally pocket money leftover from jail food funds. Governor Kay Ivey curtailed—but did not abolish—this practice in July. Morgan County, which has been a prime example of the abuses to which this rule opens the door, is holding a local referendum on barring it. I wrote about this issue in more detail in July.

Florida, Georgia. Kentucky, North Carolina, Nevada, and Oklahoma: An initiative organized by a California billionaire to enshrine victims’ rights in state constitutions, “Marsy’s Law” has already passed via referendum in six states since 2008 and it is being considered by six more in November. These measures, which are broadly but not entirely similar, strengthen victims’ ability to testify at hearings, mandate that they be notified of certain developments, and often empower them to refuse to speak with defense attorneys; they also broaden who is classified as a victim. Critics argue that these measures promote punitive outcomes and harm defendants’ right and due process, as Meaghan Ybos reported for The Appeal in March and Sophie Quinton for Stateline in October. For instance, they have extended pretrial detentions because of the mandate that victims be notified prior to a release; they have empowered prosecutors to target investigators who seek to get in contact with victims, rendering it more arduous to mount a defense; and they have constrained appeals within time limits. Past Marsy’s Laws have occasioned legal battles, most notably in California over a provision that lengthens the time between parole hearings, and Montana, whose Supreme Court overturned the law in 2017 for doing too many things at once.

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

Why many aren’t cheering for officers who don’t shoot civilians

Why many aren’t cheering for officers who don’t shoot civilians


What you’ll read today

  • Spotlight: Why many aren’t cheering for officers who don’t shoot civilians

  • Man convicted of obstruction for refusing to open his door to police

  • Mother’s lawsuit says Oklahoma prison failed to prevent her daughter’s death

  • New York prosecutors sue to prevent oversight

  • Recent police killing hits close to home for Silicon Valley

  • Unprecedented and possibly unnecessary security’ measures at Pennsylvania prisons

In the Spotlight

Why many aren’t cheering for officers who don’t shoot civilians

This week, various police officers have been celebrated for not shooting civilians. Over the weekend in Columbus, Ohio, Officer Peter Casuccio, who is white, approached two Black boys, 11 and 13, suspected of having a gun. He drew his gun and ordered them to stop, turn around, and show him their hands. One of the boys pulled a gun from his waist and tossed it. When the gun broke into pieces on the sidewalk, Casuccio realized that it was a BB gun. CNN reported that “the officer showed restraint in the encounter” because he didn’t fire his gun. Casuccio, who is a father, said he went into “dad mode” and used the situation to teach the boys a lesson. “This is getting kids killed all over the country,” Casuccio chided them, in body camera footage released by the police department. “You should be sorry, and you should be scared.” He later added, “Regardless of what people say about the dudes wearing this uniform, OK, we care.” [Darran Simon / CNN]

Also this week, two Pittsburgh police officers approached a man they were told might be trying to commit “suicide by cop.” They started talking to him. “He told us that he wanted to die,” said one of the officers. “My partner saw that he had his hand in his pocket. Asked him to remove his hand from his pocket. At that time, he pointed a gun at us.” The officers could tell the gun was not real. When they told him they knew it was fake, he threw it to the ground and the officers took him in for a mental health evaluation. “They rolled into a situation that [was] tense, uncertain, and rapidly evolving,” gushed their commanding officer. “In many cases, we would have seen this play out very differently, but thanks to their training and expertise, they were able to identify the weapon the young man had in his hand was not in fact real and ended the situation peacefully.” Social media is now “blowing up with praise for the two heroes,” according to Pittsburgh’s CBS affiliate. [Julie Grant / KDKA]

But the reaction has not been all cheers. For one thing, the Columbus officer’s body camera footage captured his lecture to the boys, which took a decidedly (and admittedly) paternalistic tone. He asked, “How old are you, boy?” At another moment, he said, “You should be sorry, and you should be scared.” When the 11-year-old began to walk home, the officer chided him for what he considered to be an attempt to evade punishment from his family, or, as the officer put it, his “mama.” The officer recalled telling the child, “You’ve got to go answer for your sins to mama.” And there was no escaping the racialized tone of the entire encounter, beginning with the haunting compliance the boys showed as they immediately dropped to their knees and slowly, carefully put their hands in the air, obeying the officer’s every order. And the officer’s lecture begins with the call he received on the radio describing “two young male blacks.” He chided, “You can’t do that, dude. In today’s world, that thing looks real, bro.” The officer said, “I pride myself on being a pretty bad hombre, because I gotta be. Don’t make me.” He seemed to put the onus on the children, saying they were making him into a killer. [Darran Simon / CNN]

These are not mere quibbles, and this is not a one-off encounter. A systematic analysis of police body camera footage last year by Stanford professors Jennifer Eberhardt and Dan Jurafsky showed that officers consistently use less respectful language with Black community members than with white community members. The study, published last year in Proceedings of the National Academy of Sciences, showed that the racial disparities in respectful speech remained even after the researchers controlled for the race of the officer, the severity of the infraction, and the location and outcome of the stop. For the study, a team from Stanford’s psychology, linguistics, and computer science departments developed an artificial intelligence technique for measuring levels of respect in officers’ language and applied it to the transcripts from 981 traffic stops that the Oakland Police Department made in a single month. They found that white residents were 57 percent more likely than Black residents to hear a police officer say the most respectful utterances, such as apologies and expressions of gratitude like “thank you.” Black community members were 61 percent more likely than white residents to hear an officer say the least respectful utterances, such as informal titles like “dude” and “bro”––as the Columbus officer said to the children. [Alex Shashkevich / Stanford News]

“I’m not an anomaly,” the Columbus officer told CNN. “The overwhelming majority of police officers feel the same way. They do the same thing.” It is pretty hard to believe that officers are being lauded as heroes for not shooting children. That said, it’s a vast improvement from firing or disciplining officers who do not shoot. Last year, when a West Virginia man attempted a “suicide by cop,” the first officer to respond, Stephen Mader, who is white, began to talk Williams down calmly. But when two other officers, also white, showed up and saw a Black man with a gun, one of them shot him in the back of the head within “mere seconds.” Instead of praising Mader’s bravery and arresting the shooter, the police department fired Mader, accused him of freezing up, and one officer called him a “coward.” [Kristine Phillips / Washington Post]

Stories From The Appeal

John Moore/Getty Images

Man Convicted of Obstruction for Refusing to Open His Door to Police. The conviction could criminalize people who refuse to do things like unlock their phones or garages at police request. [Levi Pulkkinen]

Mother’s Lawsuit Says Oklahoma Prison Failed to Prevent Her Daughter’s Death. New development in a high-profile case comes as advocates question the state’s prison conditions and sentencing practices. [Elizabeth Weill-Greenberg]

Stories From Around the Country

New York prosecutors sue to prevent oversight: New York prosecutors yesterday filed a lawsuit to block a new law that made the state the first in the country to install an oversight panel for its district attorneys. Governor Andrew Cuomo ordered the creation of the Commission on Prosecutorial Conduct to investigate the thousands of allegations of prosecutorial misconduct, which is rarely done. “When Governor Cuomo signed the bill into law on Aug. 21, somewhat reluctantly, he included the requirement that the next legislative session will take up amendments to it,” reports Courthouse News Service. “The commission’s findings will be sent to the governor and available to the public, a detail over which Cuomo has expressed concern, saying it could open the door for people to meddle with criminal cases. In its present form, the commission’s opponents contend, the body is ‘riddled with fatal constitutional defects.’” In an open letter to Cuomo that backed the legislation, Human Rights Watch wrote, “New York’s court-run disciplinary system operates in secret and does not appear to be any kind of deterrent to prosecutors who bend and break rules to obtain convictions.” [Amanda Ottaway and Adam Klasfeld / Courthouse News Service]

Recent police killing hits close to home for Silicon Valley: Ebele Okobi, Facebook’s public policy director for Africa, decided to move to London because she couldn’t “raise a Black son in America,” she said. “I don’t have that kind of fortitude.” Two weeks ago, her fears were validated when her brother, Chinedu Valentine Okobi, 36, was killed after a struggle with police in the San Francisco Bay Area. He appears to have been killed after two officers discharged their Tasers at him, twice each. “There was something about that call that felt inevitable, because it was something that I was running away from,” Ms. Okobi said. “In the wake of her brother’s killing, every senior leader at the company, including Mark Zuckerberg, has reached out to her to show support,” according to the New York Times. “[T]he case is drawing attention not only because it is yet another instance of a black man dying at the hands of the police, but also for its proximity to the Silicon Valley tech bubble.” [John Eligon / New York Times]

Unprecedented and possibly unnecessary ‘security’ measures at Pennsylvania prisons: A month ago, Pennsylvania Corrections Secretary John Wetzel implemented stringent security measures with no precedent in a state prison system, and he now says they are working. “The measures were necessary, he said, to protect staff from sicknesses related to exposure to synthetic cannabinoids, or K2,” reports the Philadelphia Inquirer. “But the policies—including barring book donations and providing inmates photocopies of their mail rather than the originals—are unpopular with families and, lawyers argue, may even be unconstitutional.” Experts in medical toxicology doubted that K2 was the cause of officer symptoms and instead blamed “mass psychogenic illness.” The new legal mail procedure, in which a prison staffer opens legal mail in front of the prisoner and photocopies it, setting aside the originals to be destroyed after 45 days—has been called a clear violation of attorney-client privilege. To guard against K2, the department stopped allowing donations from programs like Books Through Bars, or even direct orders from stores like Amazon, which makes little sense. And new ion scanners—meant to detect trace amounts of narcotics––are keeping families separated. Two women married to men in Phoenix state prison are facing six-month bans on visiting their husbands. [Samantha Melamed / Philadelphia Inquirer]

Thanks for reading. We’ll see you tomorrow.

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

Could voting out judges end mass incarceration?

Could voting out judges end mass incarceration?


What you’ll read today

  • Spotlight:  Voting out judges to end mass incarceration

  • Is Orange County DA candidate sending mixed signals on jail phone company’s contract?

  • Charlotte district attorney says he won’t stop prosecuting panhandlers

  • Former probation commissioners call for an end to marijuana testing

  • Michigan police place a 12-year-old in handcuffs

  • Allegation that Virginia prison terminated a woman’s visit because she was wearing a tampon

  • Advocates call for a Queens DA who won’t ignore the risks immigrants face from ICE

In the Spotlight

Could voting out judges end mass incarceration?

This week, the Houston Chronicle’s editorial board took the extraordinary step of recommending that nearly every sitting criminal court judge in Harris County be voted out. The reason was the county’s cash bail system, described as unconstitutional in a 193-page decision by a federal judge last year, and misdemeanor judges’ insistence on defending that system. The decision, the editorial said, “presents an astounding and disturbing vision of aspects of our courthouse run by people who don’t know whether our bail methods work and don’t seem to care.” Yet all but two criminal court judges continue to fight to preserve the bail system. When the editorial board met with each judge in preparing its endorsements, those judges offered various defenses, all deemed unsatisfactory. Hence: “we recommend that every incumbent judge continuing to fight the bail lawsuit be removed from his or her seat.” [Houston Chronicle Editorial Board]

The scourge of cash bail has been a topic in other judicial races. Earlier this year in San Francisco, four public defenders set out to unseat four incumbent judges. In their platform, they targeted the racial bias of the criminal legal system; the problems with sentencing, bail, and police misconduct; and the incumbents’ complicity in the status quo. Reporting on their ultimately unsuccessful challenge, and the questions it raised about judicial elections as a vehicle for criminal justice reform, Lara Bazelon described San Francisco’s “much-criticized money bail system,” with an average felony bail more than five times the national average. [Lara Bazelon / Slate]

The challengers’ effort in San Francisco was also an effort to have the bench better represent the community it serves. The San Francisco bench is regarded as diverse, and the incumbents included two Asian-Americans, but only 10 percent of its judges are Black, compared with 51 percent of the public defender office’s clients. Latinx people are also a high percentage of those represented by the office, but are only 6 percent of those on the bench.  [Lara Bazelon / Slate]

Nationally, state courts bear little resemblance to the population as a whole. In 2015, the American Constitution Society issued a report on what it called “the Gavel Gap”—the underrepresentation of women and people of color in state courts. Women make up roughly a half of the population and a half of those attending law schools yet less than a third of state court judges are women. Also, the report stated: “Not a single state has as many women judges as it does men.” People of color are 40 percent of the population but less than 20 percent of the judges in state courts. In 16 states, people of color accounted for fewer than 1 in 10 state judges. Women of color are represented at only 40 percent of their presence in the general population. [American Constitution Society]

To some degree, judicial elections are the culprit. The Center for American Progress looked at the underrepresentation of people of color and white women in state court in another 2015 report. It found that even when judges of color were appointed to the bench, they had a lower re-election rate than white judges. White judges had a 90 percent re-election rate, compared with 80 percent for Black judges and only a 67 percent re-election rate for Latinx judges. There is concern that this is the inevitable result of increased spending on judicial races post-Citizens United, the 2010 Supreme Court case that struck down limits on campaign contributions. The Center for American Progress report focused on states with contested judicial election. [Azure Gilman / Al Jazeera America] Earlier this year, a federal judge in Texas found that its statewide elections for judges, while diluting the voting power of Latinx voters and resulting in two overwhelmingly white high courts, did not violate the Voting Rights Act. The judge conceded that the “electoral disadvantage” experienced by the Latinx voters could be overcome by switching to single-member elections, but she declined to order that change, reasoning that voters had failed to prove that the obstacles they faced in electing their preferred candidates were “on account of race.” [Alexa Ura and Emma Platoff / Texas Tribune]

Among the concerns about judicial elections—that they compromise independence, diminish faith in the courts, and depress diversity—are also concerns about how they drive harsher punishments and resistance to social change. But advocates for change are trying to bring enough pressure to bear that judges complicit in the worst of the criminal legal system are punished and progressive candidates are voted in. For that they need voters to turn out and to vote in down-ballot races. 

Last week, the Illinois publication Injustice Watch released its 2018 Cook County Judicial Voting Guide. Illinois has a system of retention elections—after winning their seats in partisan elections, judges seek retention six years later in nonpartisan elections. This year, 59 judges are seeking retention. It has been 28 years since a Cook County judge lost retention but the efforts of community groups may mean that disaffection with certain judges could now translate into an impact at the ballot box. There are also elections for open judicial seats, but given the dominance of the Democratic Party in Chicago, the majority of these elections were decided in the primary. [Injustice Watch]

For judges seeking retention, the guide covers multiple areas, including reversal rates, the sentencing practices of criminal division judges, disciplinary records, and courtroom observation. One judge, for instance, is being sued by two exonerated men who allege that when he was a prosecutor, he and a now-disgraced detective worked to frame them for murder 25 years ago. A campaign to unseat him succeeded in making him the only judge the Cook County Democratic Party decided to not recommend for retention. Another judge, Michael Clancy, in bond court, has repeatedly set bail higher than defendants can afford, in violation of a court rule enacted last year. [Injustice Watch]

Stories From The Appeal

Orange County, California, supervisor Todd Spitzer, who is running for district attorney. [Flickr/spitzer4da]

Is Orange County DA Candidate Sending Mixed Signals on Jail Phone Company’s Contract? Todd Spitzer blasted Global Tel Link for recording attorney-client phone calls, but his campaign won’t call on a PAC supporting his candidacy to return the company’s lobbyist’s donation. [George Joseph]

Charlotte District Attorney Says He Won’t Stop Prosecuting Panhandlers. A judge’s decision could end the practice of jailing people for soliciting money along streets and highways, but DA Spencer Merriweather has been slow to embrace the change. [Steven Yoder]

Stories From Around the Country

Former probation commissioners call for an end to marijuana testing: Five former New York City probation commissioners issued a statement calling for New York to stop marijuana testing of people on probation and parole in the state. While the number of people incarcerated in New York has declined in the last two decades, the number of people admitted to prison because of parole violations increased 21 percent from 2015 to 2016 alone. The vast majority of parole revocations results from technical violations, including failed marijuana tests and missing appointments out of fear of failing such tests. Black and Latinx people are disproportionately subject to parole revocations. The commissioners wrote in their statement: “What we want is that people under supervision lead law-abiding lives and meet their obligations as citizens. As long as they do, we should be no more concerned about them using marijuana than we are of them having a glass of wine.” The statement calls on the legislature to “codify” the ban on testing, as part of legislation to legalize marijuana use. [The Crime Report]

Michigan police place a 12-year-old in handcuffs:  Grand Rapids, Michigan, police officers handcuffed a 12-year-old girl in the course of investigating what turned out to be a false report of a shooting at the family’s home. This is the fourth time since March 2017 that officers from the department have handcuffed Black children not accused of a crime. In August, officers handcuffed 11-year-old twins and a 17-year-old while responding to a report of a young person with a gun. The girl’s mother, Deborah Wooten, said officers placed her child in handcuffs while on her knees and then searched her for weapons. She said her daughter is traumatized and having trouble sleeping. The officers removed the handcuffs when they learned her age. The police chief defended the officers’ actions, saying the officers showed “compassion” and “good judgment” and the girl was handcuffed “for a minute and change.” [Associated Press]

Allegation that Virginia prison terminated a woman’s visit because she was wearing a tampon: Days after Virginia prisons said they were lifting a policy barring visitors from wearing tampons or menstrual cups, a woman says her visit with her husband was terminated and she was accused of smuggling drugs in with a tampon. The woman, who has visited her husband every weekend for five years, says that during her visit on Sept. 29, she told a corrections officer that she had her period. She was ultimately cleared for the visit but when she later went to the restroom and returned to the visit room, she was told the visit was terminated. She says a prison official told her they were investigating a package in the bathroom that had blood on it. The Virginia Department of Corrections would not comment on the story. A tweet from Oct. 2 references drugs discovered in a bathroom during visitation. [Lauren Gill / Shadowproof]

Advocates call for a Queens DA who won’t ignore the dangers immigrants face from ICE: Queens has the highest percentage of foreign-born residents of any county in the United States. Yet, unlike prosecutors in other New York City counties, its district attorney, Richard Brown, has not called on ICE to stop making arrests in courthouses. Nor does Brown’s office evaluate its policies and practices in light of the possibility of detention or deportation for immigrants. If Brown runs for re-election, he will face a challenge for the first time since he was elected in 1991, including from City Council Member Rory Lancman. Lancman has said that, if elected, he will look at the immigration consequences of prosecutorial decisions, end the prosecution of low-level offenses that disproportionately sweep up immigrants, clear up open summons warrants, and stop prosecuting people for driving with suspended licenses when the suspensions result from a failure to pay fines.  [David Brand / Documented]

Thanks for reading. We’ll see you tomorrow.

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Missouri’s parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

Missouri’s parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole


What you’ll read today

  • Spotlight: Missouri’s parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

  • Introducing the ‘Appeal: Political Report’ website

  • Secretive campus cops patrol already overpoliced neighborhoods

  • People charged with illegal entry posting bail, but judges find new ways to deny freedom

  • Women in prison punished more often and more harshly than men

  • El Paso cops sued for civil rights violations against children

In the Spotlight

Missouri’s parole board can no longer ignore the rehabilitation of people sentenced to juvenile life without parole

In 2016, the Supreme Court, ruled 6-3 in Montgomery v. Louisiana that its 2012 decision in Miller v. Alabama banning mandatory life without parole sentences must be applied retroactively. Montgomery made clear the Court’s belief that life without parole sentences for crimes committed by youth should be reserved for the rarest of rare cases. States were also presented with options: Instead of resentencing the hundreds of people who were affected by the decisions, they could make them eligible for parole. [Adam Liptak / New York Times]

Soon after Montgomery was decided, Amy E. Breihan of the MacArthur Justice Center’s St. Louis office penned a piece condemning Missouri’s courts and its legislature for their “remarkable reluctance in bringing the state in line with Miller.” Approximately 80 people in the state’s prisons were serving life without parole sentences “imposed under an unconstitutional sentencing scheme in which judges and juries were required to condemn juvenile offenders to spend the remainder of their young lives in prison.” [Amy E. Breihan / St. Louis Post-Dispatch] Missouri’s life without parole sentences also disproportionately affected young people of color: only 20 percent of state residents are people of color, compared to nearly 60 percent of those in prison on juvenile life without parole sentences. [Prison Policy Initiative]

That year, Missouri had enacted a law, Senate Bill 590, that gave people serving juvenile life without parole (JLWOP) sentences the right to petition for parole review of their sentences after they had served 25 years. The law mandated the consideration of 15 factors—five more than in ordinary parole proceedings—in evaluating eligibility for release. [Robert Patrick / St. Louis Post-Dispatch] Parole hearings, as an alternative to resentencing hearings, have the advantage of ruling out the possibility of prosecutors seeking and courts imposing sentences that, while not formal life without parole sentences, still exceed the life expectancy of the person sentenced. [Kate Wheeling / Pacific Standard]

Yet Missouri’s parole review process has, according to an order issued last Friday, failed to provide those up for parole with the “meaningful and realistic opportunity to secure release upon demonstrated maturity and rehabilitation.” The order came in a lawsuit brought by the MacArthur Justice Center and the law firm Husch Blackwell on behalf of four plaintiffs. More than 90 people incarcerated in Missouri are similarly situated and the lawsuit was granted class certification in June.  Nearly 85 percent of those seeking release have been denied since Missouri enacted SB 590. [Robert Patrick / St. Louis Post-Dispatch]

The court found that the parole board limits people’s access to information about the parole review process and gives them little opportunity to show evidence of rehabilitation. A person seeking release can have only one delegate present on their behalf. That delegate cannot speak to anything beyond the person’s “transition to the community.” Judge Nanette K. Laughrey wrote that the “[d]elegates—whether lawyers or not—are foreclosed from advocating for consideration of the Miller factors and other factors that the Board is required to consider.” People seeking release also have no access to the parole files and victim and prosecutor statements. After the hearing, the parole board communicates its decisions in two-page “barebones, boilerplate form,” that allowed for only two reasons for denial: the seriousness of the original offense or person’s “inability to … remain at liberty without again violating the law.” [Order in Brown v. Precythe]

Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland, the plaintiffs in the case, were all sentenced to life without the possibility of parole as teenagers and have all been incarcerated for at least 25 years. Each was denied after petitioning for parole release. Roland “has not had a conduct violation in at least 15 years” and has been in the honor dorm for 13 years. He has also held a job in the factory or workhouse areas of the prison for at least 15 years. Ronald was denied release based solely on the circumstances of his offense. [Order in Brown v. Precythe]

Brown was only 15 when he participated in the homicide for which he was sentenced. A forensic psychological evaluation concluded that Brown’s involvement “was the product of a vulnerable adolescent being manipulated by a powerful adult rather than the product of bad character.” It also found that Brown has “long since outgrown the antisocial behavior of his youth,” that his “psychological risk factors for future violence and criminality are low,” and that “he has developed a skill set that would allow him to be a viable and productive member of society should he be granted parole.” Judge Laughrey wrote that by the parole board’s own standards, Brown has been a model incarcerated person. The only substantive reason provided for his denial was the circumstances of his underlying conviction. [Order in Brown v. Precythe]

The court has given the parole board 60 days to devise a plan “designed to ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation.” [Robert Patrick / St. Louis Post-Dispatch]

Introducing the ‘Appeal: Political Report’ Website

We are excited to announce The Appeal: Political Report, a new website that focuses on the local politics of criminal justice reform and mass incarceration. It features stories, as well as tools with which to explore local developments around the country. In the run-up to the November election, the website highlights and details the key state- and county-level elections that will shape criminal justice, law enforcement, or immigration policy.

Stories From The Appeal

A Temple University police officer. [Photo Illustration by Anagraph /
Video still via Temple University Campus Safety]

Secretive Campus Cops Patrol Already Overpoliced Neighborhoods. Campus police forces have become more professionalized, but critics say they operate behind a veil of secrecy and often exceed their jurisdiction. [Ryan Briggs]

Stories From Around the Country

People charged with illegal entry posting bail, but judges find new ways to deny freedom: In San Diego, the federal government has been forced to change tactics in its “zero tolerance” immigration policy. People being prosecuted for illegal reentry were typically held on bail they could not pay and then, after the government had obtained a conviction, deported. But the Bail Project, a nonprofit, began posting bail for those charged with illegal re-entry a few months ago. Because of immigration detainers, those people for whom bond was posted were then immediately transferred to ICE custody and deported—without the U.S. Attorney’s Office obtaining the misdemeanor convictions it sought. In response, the government has now stopped placing immigration detainers on people so it can criminally prosecute them. The shifting landscape led to an unusual and, according to defense attorneys, unprecedented development last Tuesday when a U.S. magistrate judge in San Diego ordered that each defendant find and be under the responsibility of an approved “third-party custodian” as a condition of their release. As of Friday, none of the 50 defendants in question had been able to meet the condition. [Kristina Davis / San Diego Tribune]

Women in prison punished more often and more harshly than men: A new investigation by NPR and the Medill School of Journalism has found that women in prison in Illinois and around the country face higher rates of discipline than men, mostly for minor, subjective rule violations. Incarcerated women in Vermont were three times more likely than men to be disciplined for “making a derogatory comment” and in Indiana they were almost three times as likely for refusing to obey an order, and nine times as likely for being a “habitual rule violator.” Women also receive harsher punishment for the same rule violations—including solitary confinement, the loss of good time, being placed in physical restraints, and denial of phone privileges. Advocates call for greater trauma-informed practices, instead of punishment, to support rehabilitation and recovery, given the high likelihood that women in prison have experienced physical or sexual abuse—in 2010, an Illinois study found that 98 percent of women in prison had experienced physical abuse before their incarceration and 75 percent had experienced sexual abuse. [Jessica Pupovac and Kari Lydersen / Chicago Reporter]

El Paso cops sued for civil rights violations against children: Four El Paso police officers are being sued over two incidents, from 2016 and this year. The lawsuits were brought by the mothers of eight children, whose civil rights are alleged to have been violated. In 2016, despite being in her own backyard, a 16-year-old girl was violently arrested on suspicion of trespassing and was subjected to a search that included a search of her bra by a female officer. This year, an officer pointed a handgun at a group of children while responding to a call about suspected trespassing. That officer, Jose Rivas, was also involved in the 2016 incident when it was alleged that he, “knocked [the girl’s] cell phone from her hand, kicked her, grabbed her hair and threw her to the ground.” At a news conference announcing the lawsuits, a lawyer for the parents said: “If the internal affairs or his supervisors would’ve taken appropriate action in 2016, perhaps we wouldn’t have an entire group of children who are now going to be traumatized for the rest of their lives having a had a gun pointed at their face because maybe this officer either would have learned from this or no longer been an officer.” [Daniel Borunda / El Paso Times]

Thanks for reading. We’ll see you tomorrow.

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

The community and care that people in prison offer one another

The community and care that people in prison offer one another


What you’ll read today

  • Spotlight: Community behind the prison walls

  • At Angola Prison, ‘People are suffering. People are dying’

  • Cash bail yields a new casualty

  • Nearly 3,000 people were evacuated from Florida prisons

  • Dangerous and illegal drug raids by Little Rock, Arkansas, police

  • Canadian pension fund’s investment in US private prison companies keeps growing

  • Autopsy of man killed by Nashville police shows shots to back and back of head

In the Spotlight

The community and care that people in prison offer one another

Before a temporary reprieve postponed his execution date by a few weeks, Ed Zagorski was scheduled to be put to death in Tennessee last Thursday. In the days leading up to that original execution date, before the reprieve was issued, Zagorski had busied himself sending messages to people who had helped him over the years. Because he cannot write, he dictated notes. He also, through a minister, conveyed a message for his fellow residents of death row. He had decided not to request the customary final meal. The reason, the Nashville Scene reported, was that the weekend before Zagorski was moved to death watch,  “more than a dozen of the men on death row pulled together whatever ingredients they could get their hands on and made pizzas to share in a last supper of sorts with [him].” The minister told the Scene: “That meant the world to him. He said, ‘that was my last meal.’” [Steven Hale / Nashville Scene]

Those of us who live outside prison walls are, almost by definition and certainly by design, cut off from what goes on inside them. Our system of mass arrest, prosecution, and imprisonment depends on the dehumanization of the people subjected to it. Yet this story about Zagorski, about the generosity and fellowship of men who live with death hanging over them, reminds us that death row and prison are, in this respect, like everywhere else—full of people creating community, offering care, and finding meaning under the most difficult of circumstances.

Anthony Graves, who spent 12 years on Texas’s death row, wrote of the fellowship that welcomed him when he got there. “[D]eath row inmates were a hospitable sort, I’d come to find,” he wrote. “They had exclusive knowledge of the terror I’d be facing in those first few weeks [and] would often send bags to newcomers, a collective housewarming gift.” Because they knew that a new arrival would have no money in their commissary account for a while, people would pool their money to buy “pens, paper, soap, stamps, and those damn shower shoes” for someone who had just arrived. In Graves’s case, the brown paper bag he received from the man locked in the cell below his actually contained a book—the autobiography of Angela Davis.  [Anthony Graves / Literary Hub]

On Alabama’s death row, Anthony Ray Hinton, who spent 28 years there, eventually started a book club. As he and six others sat together in a locked room for their first meeting, he wrote, “[w]e weren’t the scum of the earth, the lowest of the low, the forgotten and abandoned men who were sitting in a dark corner of hell waiting for their turn to walk to the electric chair.” A discussion of James Baldwin led to talk of the sins of their fathers and then led to “five black men in the South trying to comfort the white man who would forever be known for doing the last lynching of a black boy.”

Hinton makes a promise to the others that day: “Someday, when I get out of here, you know what I’m going to do?”

“What you going to do, Ray?”

“I’m going to tell the world about how there was men in here that mattered. That cared about each other and the world. That were learning how to look at things differently.”

[Anthony Ray Hinton / Longreads]

In the 1980’s and 90’s, as the AIDS-related death toll mounted, people incarcerated in New York prisons created educational programs to combat the fear and stigma around them. Donna Hylton, who was incarcerated at Bedford Hills Correctional Facility in those years, told Victoria Law: “We let people know that it was okay to take care of a person with AIDS.” Mujahid Farid and David Gilbert received permission from prison officials to visit people who were in solitary confinement because of their HIV status. They “walked the track with others in the prison’s yard, sending the message that these men were protected.”  [The Body / Victoria Law]

Incarcerated people are on staff at the California Medical Unit, the state’s only licensed hospice inside a prison. As the casualties of the mass incarceration epidemic age, the hospice serves an increasingly elderly population. It is, in one patient’s language, another “death row.” The staff earns 15 to 32 cents an hour. Yet one hospice worker “keeps looking for small ways to make patients smile and … spends his wages on ice-cream cones and vending-machine snacks to pass around.” Workers “brush patients’ teeth, massage sore limbs, read books out loud, strip soiled mattresses and assist the medical staff.” And: “When patients are in their final hours, it is the workers who sit bedside, holding round-the-clock vigils. They pride themselves on their policy: No prisoner here dies alone.” [Suleika Jaouad / New York Times Magazine]

This month, Darnell Epps, a student at Cornell University, wrote of the guidance and support he received when he was in prison. He says that he and his brother, who is part of a program at Columbia University, are often treated as exceptional, emerging from prison unscathed. The truth, he writes, is that “[i]n prison, we shined because of, not despite, our circumstances, especially the presence of the ‘old-timers’ who helped guide us to our coming-of-age. We owe them tremendous credit.” But the “50-, 75- and 100-year minimum sentences” many of these men are serving mean that their contributions are confined within the prison walls. “When I hear of all the gun violence on Chicago’s South Side, for instance,” Epps writes, “I can’t help wondering what would happen if Illinois’s many reformed old-timers, who hail from those neighborhoods, were granted parole with a mission of working to reduce the violence.” People in prison who have so much to offer should be out instead, so that “there can be more stories like mine and Darryl’s, and fewer young people making the mistakes that get them sent to prison in the first place.” [Darnell Epps / New York Times]

Stories From The Appeal

msppmoore/Flickr (CC BY-SA 2.0)

At Angola Prison, ‘People Are Suffering. People Are Dying.’ Trial begins in class action suit alleging medical neglect by Louisiana State Penitentiary. [Jessica Pishko]

Cash Bail Yields a New Casualty. A Texas jail suicide involving a woman who couldn’t make bail in a shoplifting case highlights of the plight of pretrial detainees with mental illness. [Lauren Gill]

Stories From Around the Country

Nearly 3,000 people were evacuated from Florida prisons: The Florida Department of Corrections confirmed Sunday that it evacuated nearly 3,000 incarcerated people from Panhandle prisons that suffered damage from Hurricane Michael. In the days before the hurricane hit, the department responded to calls for evacuations by saying that prisons were prepared to weather the storm. But in yesterday’s update it reported that one facility—Gulf Correctional—”sustained a direct hit from the storm,” according to the Miami Herald, and four prisons in total are closed “until further damage assessment can be completed.” The corrections department insists that “all inmates … had access to food and drinking water through the duration of the storm” but families of people in prisons affected by the storm report that the message at those facilities was quite different: Anyone drinking the tap water did so “at their own risk.” [Ben Conarck / Miami Herald]

Dangerous and illegal drug raids by Little Rock, Arkansas, police: One day last summer, 11 heavily armed police officers used explosives to blow off Roderick Talley’s door just before 6:30 a.m. in Little Rock, Arkansas. The officers were executing a warrant based on an informant’s statements that he had bought cocaine from Talley but a search of Talley’s apartment turned up no cocaine, only a small amount of marijuana. Radley Balko of the Washington Post interviewed Talley and nine other people who were the subjects of raids and reviewed 109 search warrants. Balko describes Talley’s case in detail and also concludes that Little Rock Police Department “narcotics cops and SWAT teams are routinely violating the Fourth Amendment rights of Little Rock residents.” The three main areas of concern are that police are requesting, and judges are signing, no-knock warrants without demonstrating the need for no-knock entry; the LRPD is serving warrants by using inappropriate and dangerous explosives on doors, including in two cases when children were reportedly in the home; and there is clear evidence that one informant has lied to police about his drug buys. [Radley Balko / Washington Post]

Canadian pension fund’s investment in US private prison companies keeps growing:  Between August 2017 and August 2018, a Canadian investment fund that manages the pension funds for roughly 20 million Canadian retirees grew its holdings in the two biggest U.S. private prison companies. Canada Pension Plan Investment Board (CPPIB) increased its investment in GEO Group almost thirteen-fold, according to the latest Securities and Exchange Commission filings. The increased investment was despite criticisms from Canadian politicians about the Trump administration’s immigration detention policies. CPPIB has said that the investments in the private prison companies represent only a tiny proportion of their fund and were not direct investments. However, some Canadian lawmakers have expressed concerns since the report came out. One told The Guardian: “Canadian taxpayers should not be inadvertently complicit in feeding the development of privatized for-profit prisons.” CPPIB is state-owned and ultimately answerable to the Canadian parliament. [Max Siegelbaum / Documented and Guardian US]

Autopsy of man killed by Nashville police shows shots to back and back of head: A medical examiner’s autopsy report shows that Daniel Hambrick died from “multiple gunshot wounds to his back and the back of his head,” according to The Tennessean. Metro Nashville Police Officer Andrew Delke shot Hambrick as Hambrick was running away from him. Delke was charged with criminal homicide last month, “an almost unprecedented move in Nashville’s history,” and one that went forward only after a judge reversed a magistrate’s unusual decision not to charge. The police department is now reviewing its foot pursuit policy, and the Nov. 6 ballot includes a referendum on the creation of a community oversight board for the department. [Mariah Timms / The Tennessean]

Thanks for reading. We’ll see you tomorrow.

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

Washington State’s death penalty ruled racially biased, unconstitutional

Washington State’s death penalty ruled racially biased, unconstitutional


What you’ll read today

  • Spotlight: Washington State’s death penalty ruled racially biased, unconstitutional

  • Prisons crack down on an opioid treatment, endangering lives

  • The Appeal Podcast Episode 18: How activists brought down the most powerful man in Chicago

  • Ohio voters have a chance to ‘deal a blow’ to mass incarceration this November

  • Massachusetts court throws out thousands of convictions tainted by corrupt lab chemist

  • New Alabama report recommends eliminating court fines and fees

  • Kansas detective accused of coercing poor women into sex and giving false evidence

In the Spotlight

Washington State’s death penalty ruled racially biased, unconstitutional

Yesterday, the Washington Supreme Court ruled that capital punishment, as applied in Washington, violates the state Constitution. It held that the death penalty has been imposed in an unlawfully “arbitrary and racially biased manner” and “fails to serve any legitimate penological goals.” The court converted all death sentences to life imprisonment. The ruling was unanimous and, because it is based on the state Constitution, it cannot be reversed by the U.S. Supreme Court. [Mark Joseph Stern / Slate]

Washington’s Constitution bars “cruel punishment,” a provision that has been interpreted as more expansive than the Eighth Amendment to the U.S. Constitution. Even so, in 2012, the court upheld the death penalty, noting it had seen “no evidence that racial discrimination pervades the imposition of capital punishment in Washington.” This led a death row prisoner’s attorneys to commission a study by Katherine Beckett, an expert on race and criminal sentencing. Beckett’s study analyzed the imposition of capital punishment in the state from 1981 to 2014 and found that Black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants. Further, prosecutors are more likely to seek the death penalty in counties with larger Black populations. “Most prosecutors in the state have stopped seeking the death penalty, so all current capital sentences arise from just six of Washington’s 39 counties,” writes Mark Joseph Stern for Slate. “The location of your crime may therefore determine whether you live or die. This ‘random’ and ‘capricious’ application of the ultimate punishment, the court ruled, fatally undermines any state interest [in] ‘retribution and deterrence of capital crimes by prospective offenders.’” [Mark Joseph Stern / Slate]

This ruling has called to mind the 1972 U.S. Supreme Court case Furman v. Georgia, which found that the death penalty, as applied, violated the Eighth Amendment. The principal concern of the Court was that the death penalty was being administered arbitrarily. The case put a temporary moratorium on the death penalty. Various states then responded to the ruling by tailoring their laws to satisfy the concerns expressed by the Court, by instituting discretionary devices to help guide juries or by eliminating discretion and imposing mandatory death sentences for certain crimes. (The Court later ruled that the mandatory sentencing system did not sufficiently address the Furman concerns.) Four years later, in Gregg v. Georgia, the Court upheld death sentences, finding that “the punishment of death does not invariably violate the Constitution.” The moratorium was over. [Dawinder S. Sidhu / West Virginia Law Review]

The Washington decision seemed to many like a second chance at McCleskey v. Kemp, a decision that has been called the “Dred Scott decision of our time.” In McCleskey, the Supreme Court refused to hear statistical evidence of race discrimination in the application of the death penalty and, as a result, severely restricted the ability for minority plaintiffs to succeed on equal protection claims. In 1987, the Supreme Court ruled that the Constitution did not allow defendants to challenge a death sentence by showing solid statistical evidence that the system as a whole is biased: “[T]o prevail under the Equal Protection Clause, [a defendant] must prove the decisionmakers in his case acted with discriminatory purpose.” The ruling in McCleskey created a bar that was “impossible to meet,” according to a death-row litigator in Durham, North Carolina. “No one since … has succeeded in a claim of race discrimination,” the lawyer said. In his dissenting opinion, Justice William J. Brennan Jr. characterized the majority’s reluctance to consider the evidence of discrimination as “a fear of too much justice.” Justice Lewis F. Powell Jr., who wrote the majority opinion in the 5-4 decision, was asked by his biographer if there was a vote he would change if he could. His response: “McCleskey v. Kemp.” [Adam Liptak / New York Times]

The Court also rejected the argument that Warren McCleskey’s sentence was cruel and unusual punishment because there is a “constitutionally permissible range of discretion.” Even though sentencing discretion must be limited “so as to minimize the risk of wholly arbitrary and capricious action,” juries must be afforded some discretion, based on the circumstances of the crime and the defendant. The disparities in sentencing shown by the studies, Justice Powell argued, were an “inevitable” cost of jury discretion. “Implicit in this holding is the view that maintaining jury discretion is a more important value than eliminating race discrimination in capital sentencing,” writes professor Phyllis Goldfarb. [Phyllis Goldfarb / New York University Review of Law & Social Change]

In a recent law review paper, professor Reva Siegel commemorated the 30th anniversary of McCleskey, presenting historical evidence showing that the decision “was responsive to conservative claims of the era about race, rights, and courts.” But Siegel points out that a close reading of the decision has prompted some courts to limit the McCleskey restrictions to the particular concerns of that case, which could open the door to admitting statistical evidence of bias in other situations. She concludes, “Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.” [Reva Siegel / Northwestern Law Review] In the Washington State case, however, it seems that judges were enough.

Stories From The Appeal

Photo illustration by Anagraph / Photo by Scott Olson/Getty Images

The Appeal Podcast Episode 18: How Activists Brought Down the Most Powerful Man in Chicago. Two pieces of news have rocked Chicago: Mayor Rahm Emanuel’s announcement that he will not seek a third term and the conviction of a white police officer, Jason Van Dyke, for the killing of a black teenager, Laquan McDonald. Writer Kelly Hayes talks about the lessons Chicago holds for activists throughout the country. [Adam H. Johnson]

Prison Crack Down on an Opioid Treatment, Endangering Lives. Few of the prisons trying to stem the flow of contraband Suboxone offer substantial opioid treatment programs. [Raven Rakia]

Stories From Around the Country

Ohio voters have a chance to ‘deal a blow’ to mass incarceration in November: Next month, Ohio residents will vote on Issue 1, a ballot initiative that could “deal a blow to the war on drugs and mass incarceration,” according to German Lopez of Vox. It would “reduce drug possession offenses to misdemeanors, so they are no longer classified as felonies with harsher penalties” and would “then use the money saved (because the state wouldn’t lock up as many people) on addiction treatment and crime victim funds.” It would also allow most prisoners, except for those convicted of murder, rape, or child molestation, to “reduce their prison sentences by participating in prison rehabilitation programs.” Ohio Issue 1, which has received funding from the Chan Zuckerberg Initiative, the Open Society Policy Center, and the Open Philanthropy Project, is a constitutional amendment and would take precedence over standard legislation. [German Lopez / Vox]

Massachusetts court throws out thousands of convictions tainted by corrupt lab chemist: The highest court in Massachusetts vacated thousands of drug convictions based on drug tests tainted by the misconduct of a rogue state chemist and two former prosecutors. (The prosecutors now work at other state agencies.) The court ordered the dismissal of every case involving methamphetamine during the nine years that former state chemist Sonja Farak worked at the Amherst lab, and every case analyzed at the lab from 2009 until Farak’s arrest in January 2013. Farak pleaded guilty in 2014 to tampering with evidence and received a sentence of 18 months’ incarceration. In April, Massachusetts prosecutors agreed to dismiss all cases Farak had analyzed herself, about 11,000, saying it was unnecessary to vacate any more. But yesterday’s court ruling does just that. Between Farak and another former state chemist who tampered with drug samples, prosecutors have thrown out nearly 40,000 drug convictions. Most of those affected have already served their sentences but face the collateral consequences of a drug conviction. [Shawn Musgrave and John R. Ellement / Boston Globe]

New Alabama report recommends eliminating court fines and fees: A new report on the impact of Alabama court fines and fees says a “disjointed court system and counterproductive punitive measures contribute to an ‘escalating cycle’ disproportionately pressuring poor and black Alabamians while creating more public safety risks,” according to the Montgomery Advertiser. Published by advocacy group Alabama Appleseed and others, “the report found that a statewide aversion to raising revenue through taxes or other mechanisms has placed undue pressure on court systems to collect their own revenues.” And “poverty penalties” impose escalating fines for those who cannot afford the original court fine. “As a practical matter, Alabama should not fund its state government on the backs of poor people,” the report states. “As a matter of conscience, we should not tolerate a system that forces people to choose between paying for basic necessities like food and medicine, and paying their court debt.” Half of the nearly 1,000 Alabamians surveyed had served jail time for failure to pay court debt. [Melissa Brown / Montgomery Advertiser]

Kansas detective accused of coercing poor women into sex and into giving false evidence: “A man deemed wrongfully convicted for a double murder in Kansas City, Kansas, more than two decades ago has filed a lawsuit against the city and police for alleged sexual coercion and fabricated statements that led to his arrest,” according to the Kansas City Star. “For decades, the Kansas City Police Department permitted Detective Roger Golubski to terrorize an entire community—by using his badge to extort sexual favors from poor black women and by coercing and manipulating those women into providing fabricated evidence to close his cases,” the lawsuit said. A spokesperson for the police department said that police were reviewing the lawsuit and would issue a statement this week. [Kaitlyn Schwers / Kansas City Star]

Thanks for reading. Have a great weekend.

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

Local cooperation with ICE is on the ballot in these counties

Local cooperation with ICE is on the ballot in these counties


In This Edition of the Political Report

October 11, 2018: Local officials wield great power over a county’s immigration policies. Many of their decisions escape widespread attention, but the organizing against ICE partnerships broke through in primaries this year, helping topple incumbent sheriffs in Milwaukee and in Charlotte, North Carolina. The scope of local immigration enforcement is now on many counties’ November ballot. I have already profiled sheriff’s elections in Hennepin County, Minnesota, in Doña Ana County, New Mexico and in Ulster County, New York, through this lens. Today, I delve into six other counties:

  • Maryland: 3 counties are in ICE’s 287(g) program. How many after November? A look at Anne Arundel’s county executive, and Frederick, Harford, and Washington’s sheriffs

  • California: Will Orange County continue circumventing the “sanctuary state” law?

  • North Carolina: Wake County sheriff race struggles for media visibility, with 287(g) at stake

As always, you can use this database to revisit the previews of all of November’s elections that this newsletter has already profiled. You can also check out our locality-specific index of past newsletters.

Maryland: 3 counties are in ICE’s 287(g) program. How many after November?

ICE’s 287(g) program deputizes local officers to act as federal immigration agents, research the status of people held at the county jail, and detain people they suspect to be undocumented. Three Maryland counties are part of 287(g): Anne Arundel County (which is home to Annapolis, the state capital), Frederick County, and Harford County.

This partnership has strained the relationship between local government and residents. “It creates a climate of fear, particularly for the Latino community and communities of color,” Jose Perez, the deputy general counsel of LatinoJustice PRLDEF, told me. Immigrants are reluctant to contact law enforcement and broader public services, adds Elizabeth Alex, the senior director of community organizing at CASA of Maryland. “Parents particularly are opting to stay quiet and staying home, and not accessing services” that their children are eligible for, she told me.

Complicating matters, the power to join or terminate 287(g) agreements rests in different offices: in Anne Arundel, ICE’s agreement is with the county executive, while in both Frederick and Harford the responsibility lies with the sheriff.

Each of these three offices is on the November ballot. Each features a GOP incumbent who defends 287(g) against a Democratic challenger, typically by warning that quitting the program would mean releasing “criminals” “back onto the street,” as one sheriff put it—an argument that conflates crime and immigration and undermines due process; it also blurs the line between different grounds of detention since one is not being held on criminal charges if only held based on suspected immigration status. The script is inverted in a fourth county, Washington, where a GOP challenger to the Democratic sheriff is running on a pledge to join the 287(g) program.

Anne Arundel County

Anne Arundel County voted for a Democratic presidential candidate in 2016 for the first time in more than 40 years. But Steve Schuh, Anne Arundel’s Republican county executive, had his county join the 287(g) program soon after. Schuh has also overseen another deal with ICE: an agreement to detain immigrants on ICE’s behalf in exchange for payments.

In June, in the run-up to a protest family separation policies, Schuh’s Democratic challenger Steuart Pittman committed to withdrawing from both ICE deals. Pittman said he would use the freed-up jail space for a drug treatment facility. “Our biggest problem right now is beds for people who want drug treatment,” he told the Capital Gazette.

Schuh charges that Pittman’s positions would weaken public safety. “I am alarmed by my opponent’s plan to release illegal immigrants charged with serious crimes into the community,” reads a Schuh campaign mailer. But the people targeted under 287(g) are often arrested for low-level offenses like drug possession and disorderly conduct, Nick Steiner, an attorney with the ACLU of Maryland, told me. “I think [Schuh] is trying to ride this national bandwagon that the way to unite the right is to use immigrants as scapegoats,” Axel said.

The sheriff’s election features the same divide. Republican Jim Fredericks wrote a Baltimore Sun op-ed calling 287(g) “an extremely important public safety tool,” while Democrat James Williams supports dropping out of both ICE deals. “The bed space could be used for better purposes, such as, for the treatment of those with a mental health crisis,” he told me.

Frederick County

First elected in 2006, Sheriff Chuck Jenkins wasted little time before signing a 287(g) agreement in 2007—and he has been a staunch defender of the program ever since. He has testified about it in Congress or in Attorney General Jeff Sessions’s presence, and he called 287(g) a “real key piece of national security” at a public event last year.

Jenkins claims that the sheriff’s department has faced no racial profiling allegations since joining 287(g). But in 2009, a woman alleged she was profiled and arrested by local deputies while eating lunch. Federal courts later ruled in her favor, finding that she was unlawfully detained based on immigration status; a federal judge ruled in September that Frederick County is liable for damages. Perez told me that another woman has alleged being targeted by profiling in Frederick County earlier this year. “It appears that this is still ongoing,” Perez said, faulting the sheriff for creating a climate conducive to such violations. Jenkins came into office on a “lock them up, ship them back” message and kept up that rhetoric. “What do you expect deputies to do but to follow his lead?,” Perez asks.

In November, Jenkins faces Democrat Karl Bickel in a rematch of the 2014 election. Himself a former employee of the sheriff’s office, Bickel has not said whether he would end the 287(g) program. However, he proposes to conduct an audit. “Questions about the value of the 287g program need to be answered with accurate data,” according to his website. “We have more urgent priorities than immigration,” it says elsewhere on the site, referring  to the opioid crisis.

Harford and Washington counties

Harford County (a traditionally GOP-voting county north of Baltimore) joined 287(g) in 2016 under the guidance of GOP Sheriff Jeffrey Gahler. In November, Gahler faces Christopher Boardman, a Democrat who says he would withdraw from the program. Boardman wrote a Dagger column in 2016 against Gahler’s decision to join 287(g), warning that this would entangle the county in legal battles and financial harm.

The roles are flipped in Washington County, which is not in 287(g). Here it is the challenger (Republican Brian Albert) who proposes joining it and frames undocumented immigrants as a threat to public safety. “We don’t have as bad a problem as some of the more urban areas, but we want to get ahead of it and tackling it before it does become a problem,” he told LocalDVM.com. The incumbent sheriff (Doug Mullendore, a Democrat) opposes joining 287(g), questioning whether it would be financially viable. This is a conservative county that voted for Trump by 30 percentage points, but Mullendore has been sheriff since 2006.

California: Will Orange County continue circumventing the ‘sanctuary state’ law?

In 2017, California adopted Senate Bill 54, a “sanctuary state” bill that limits contact between local law enforcement and federal authorities. The Orange County sheriff’s office has organized against the law ever since. It pushed the county to join the Trump administration’s lawsuit, and it now posts the dates at which people are scheduled to be released from jail online; the idea is to circumvent the new limits on communicating with ICE by making information altogether public. In addition, Sheriff Sandra Hutchens has sought to expand the number of immigrants that the county holds for ICE. Immigrants are detained in terrible conditions in Orange County, according to a 2017 Department of Homeland Security report on the Theo Lacy Facility, which features 24-hour solitary confinement, and unsanitary food and showers.

Hutchens is not seeking re-election this year and immigrant rights’ advocates see the open race as an opening for change. Jonathan Paik, the director of KRC in Action, sees it as an opportunity to elect a sheriff who is not “actively trying to find workarounds to target immigrant communities” and “does not partner with the Trump administration.”

The candidates are Undersheriff Don Barnes and Duke Nguyen. (The ballot does not include party IDs, but Barnes is a Republican and Nguyen a Democrat.) Barnes, who has worked closely with Hutchens, is running as a dam against California’s reform efforts. Asked what changes he would push for as sheriff, he responded that he would “speak out against misguided criminal justice reforms and advocate in Sacramento for their repeal.” He has championed opposition to SB 54 and he says he would continue posting release dates because he views limits on immigration enforcement as threats to public safety. He said during a debate that assisting ICE is a matter of targeting “high-level criminals.” But Orange County has alerted ICE of a broad range of people; a spokeswoman for the sheriff’s office told the Washington Post in March that they would even make public the release dates of people whose charges have been dropped. “They use racially coded language to go after the immigrant community,” Roberto Herrera, the community engagement coordinator at Resilience Orange County, told me of the sheriff’s office. “They paintbrush the immigrant community as criminals as a whole.”

Nguyen, who came to the United States as a refugee in 1981, says that he would end the policy of posting release dates online. He argues that cooperating with ICE can be valuable in targeting “violent folk,” but that it would take a court order for him to honor an ICE “detainer” request. “I have no way to check on the status of a person, and I’m not going to hold that person at will for some sort of federal request,” he said at a public forum. Nguyen has focused his campaign on changing approaches to homelessness by resisting its criminalization and by urging Orange County to spend $700 million on a program to alleviate homelessness.

The sheriff’s office was rocked by numerous scandals, most recently reports of widespread misconduct in how deputies use jail informants, and the discovery that the county’s jail telephone contractor was recording conversations between detainees and their attorneys and allegations that the sheriff knew about this. Barnes supports keeping the same telephone contractor.

Orange County’s politics have been shifting, and local advocates speak of an intense mobilization around issues relating to immigration. “No matter the result of the future elections, there is an awoken giant that is really that is willing to exercise that power,” Herrera said.

North Carolina: Wake County sheriff race struggles for media visibility, with 287(g) at stake

Wake is one of the biggest counties nationwide with a 287(g) agreement. Home to Raleigh, it still leaned Republican when Donnie Harrison was first elected sheriff in 2002. Explosive population growth has upended the county’s politics since then (Hillary Clinton won by 20 percentage points in 2016), but Harrison remains committed to the aggressive enforcement policies he implemented in the 2000s. He has called 287(g) a “deterrent” against crime, he insists that the traffic checkpoints his office conducts do not affect undocumented immigrants, and he rejects efforts to create alternatives to government-issued identification.

Harrison, a Republican, is up for re-election against Democrat Gerald Baker. Despite all the powers of the sheriff’s office, this election is largely invisible in English-language media, as local observers and a search of local publications confirmed. As of Tuesday, articles detailing Baker’s views on immigration and 287(g) can be found only in Spanish-language publications like Qué Pasa Noticias and La ConexiónUSA.com, which have interviewed Baker.

Baker says that he would eliminate the county’s 287(g) agreement, a position he highlights on social media and in campaign literature. “I know that we are all humans who deserve wonderful lives and I want to support that,” Baker told ConexiónUSA. com. Harrison may not want this issue at the forefront, said Felicia Arriaga, a professor of sociology at Appalachian State University and a volunteer at El Pueblo, an advocacy group for North Carolina’s Latinx community. Arriaga notes that Harrison hopes to avoid the fate of the sheriffs of Durham and Mecklenburg counties, whose immigration policies contributed to their defeats in May. “This is the most I have heard him not talk about the program,” she said. But she added that county politicians as a whole have been “very quiet” about 287(g) since its implementation in 2008, and that county-level law enforcement still demands more attention than it receives.

The Wake County jail has been under scrutiny this month since the death of a woman who died by suicide in detention. The News & Observer reports that the state as a whole could “be on pace to easily exceed the highest annual death toll for inmates in county jails.”

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

Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted

Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted


What you’ll read today

  • Spotlight: Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted

  • Will Alabama sheriffs finally stop diverting jail food funds to their own wallets?

  • Baltimore’s gun offender registry is a misfire

  • Police raise money by mocking bailouts (and have been doing so for years)

  • LA parents will no longer be hounded to pay for their children’s incarceration

  • San Diego district attorney bends facts to spread fear about new felony murder law

In the Spotlight

Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted

In what was most likely the second-biggest legal story of last week, a jury in Chicago convicted former officer Jason Van Dyke of second-degree murder, an exceedingly rare conviction for a police officer. Many were not expecting the guilty verdict, despite seemingly clear video evidence that Van Dyke shot Laquan 16 times as Laquan, armed with a 3-inch pocket knife, walked away. He continued shooting after the 17-year-old was lying on the ground, dying. During the trial, “Officer Jason Van Dyke asked 12 jurors to trust his memory, not a widely circulated dashboard camera video, to know what really happened,” writes Mitch Smith for the New York Times. “The jurors chose the video.” [Mitch Smith / New York Times]

The jurors said they relied heavily on the video to reach their verdict, watching it over and over. “They were not swayed by Officer Van Dyke’s testimony that Laquan targeted him with a menacing stare, made a threatening movement with a knife and tried to get up off the ground after being shot. None of those claims were backed by the video.” During his testimony, Van Dyke sought to explain the gaps between the video and his story. “That video may not show it, but that wasn’t from my perspective,” Officer Van Dyke said when pressed by prosecutors about his decision to continue shooting after pausing briefly. “I was coming at it from a completely different angle.” [Mitch Smith / New York Times]

Even though jurors ultimately chose to believe their eyes over Van Dyke’s testimony, similar cases have gone very differently. “It’s worth remembering that the most famous video of police violence, the Rodney King video, recorded in 1991” did not lead to convictions, writes Ethan Zuckerman for the MIT Technology Review. “While the video showed the assault on King, it also showed him charging at officers after being Tased.” The lawyers for the Los Angeles Police Department claimed that this behavior justified the use of extreme force. Video of Eric Garner being choked to death by an NYPD officer, while he shouted “I can’t breathe,” failed to lead to that officer’s indictment. Shootings of Alton Sterling, Philando Castile, and Samuel Dubose, all caught on video, did not bring about criminal convictions. Officers involved in Sterling’s death weren’t even charged. [Ethan Zuckerman / MIT Technology Review]

Perspective matters. Videos that do lead to accountability are often civilian video, not official police video from dashboard cameras or body cameras. In 1981, an MIT grad student named Steve Mann started wearing a computer and a head-mounted camera throughout the day, he was thinking about a world in which cameras would become ubiquitous, where millions of people with connected cameras could collectively hold authorities accountable for abuses. He called this phenomenon “sousveillance,” watching from below. [Ethan Zuckerman / MIT Technology Review]

An interactive feature in the New York Times dramatically demonstrates the difference that perspective can make when watching video: what looks like a chaotic and violent encounter turns out to be a friendly dance. [Timothy Williams, James Thomas, Samuel Jacoby, and Damien Cave / New York Times] (Curator note: This link is worth a click.)

“It’s not the end-all, be-all,” said Milwaukee District Attorney John T. Chisholm, who used body camera video in the case against Dominique Heaggan-Brown, a police officer who fatally shot Sylville K. Smith last year. Chisholm said he would never have brought criminal charges in the first place without the video, but it was not enough for a conviction: Heaggan-Brown was acquitted. In that case, like many others, the same video was used for diametrically opposed purposes. “Slowed-down, frame-by-frame video was used to show that the suspect had no weapon when he was shot a second time,” according to the New York Times. “The same video, played at regular speed, revealed a scene that was swift, confusing and chaotic, a boost to the defense.” And when videos do not fully show critical moments, jurors must fill in the blanks, which many do in favor of police officers. [Julie Bosman, Mitch Smith, and Michael Wines / New York Times]

In many cases, a “calculated, rather than an impulsive, crime can be the difference between ‘lethal injection and a lesser sentence.’” John Lewis was found guilty of murdering a police officer in 2007 during a robbery and was sentenced to death, but his lawyers appealed, arguing that slowing down the video evidence used in the trial made jurors more likely to believe that the killing was premeditated. This argument failed, but research shows that perhaps it should have succeeded. One group of researchers has found that when jurors are shown slowed-down footage, “they are more likely to think the person on screen has acted deliberately,” writes Homa Khaleeli for The Guardian. “While a slow-motion replay may allow jurors to see what is taking place more clearly, it also creates ‘a false impression that the actor had more time to premeditate’ than when the events are viewed in real time.” In a series of experiments, scientists showed participants footage of an attempted armed robbery in which a shop assistant gets shot; those who watched the footage slowed down were three times more likely to convict. [Homa Khaleeli / The Guardian]

Another study asked whether screen size affects jurors’ perceptions of information presented during trials. The researchers manipulated video image size as well as defendant emotion level presented during testimony, the defendant-victim relationship, and the strength of the evidence. Larger screens were found to accentuate what was presented––they made strong evidence seem stronger and weak evidence seem weaker. They conclude that attorneys presenting video images should recognize that jurors “may evaluate videotaped trial evidence differently as a function of how video evidence is presented.” [W.P. Heath and B.D. Grannemann / Behavioral Sciences & the Law]

Stories From The Appeal

Etowah County Sheriff Todd Entrekin infamously pocketed $750,000 in jail food funds and subsequently bought a $740,000 beach house. [Etowah County Sheriff’s Office]

Will Alabama Sheriffs Finally Stop Diverting Jail Food Funds to Their Own Wallets? The governor is making sheriffs sign an oath promising they won’t misuse funds meant to feed jail prisoners. But some sheriffs are already pushing back. [Lauren Gill]

Baltimore’s Gun Offender Registry Is a Misfire. Established to track anyone convicted of a gun-related offense, the registry has proved to be both racist and ineffective in reducing gun violence, former BPD officer Larry Smith writes. [Larry Smith]

Stories From Around the Country

Police raise money by mocking bailouts (and have been doing so for years): Last week, police officers held a “Cops for Cancer Tour de North’s jail and bail fundraiser.” The event at the Houston branch of the Bulkley Valley Credit Union raised over $11,000 for pediatric cancer research. Photos show officers pretending to arrest other cops, putting handcuffs on them and leading them into cages to raise money for pretend bail. A Twitter search showed that events like these from various cities, mocking bail fundraisers, go back to at least 2010. [Houston Today]

LA parents will no longer be hounded to pay for their children’s incarceration: Los Angeles County supervisors voted this week to no longer collect fees once charged to families of incarcerated young people for their incarceration, thereby “ending a practice decried by criminal justice advocates as an unfair tax on minorities and an ineffective means of rehabilitating young people who commit crimes,” according to the Los Angeles Times. The county’s probation department has been directed to “stop accepting payment and cancel nearly $90 million in juvenile detention fees.” A statewide ban on a range of court costs and fees charged to parents and guardians of children in the juvenile justice system was enacted earlier this year. Almost every state allows youth or their families to be charged for costs of the youths’ detention, according to an analysis by the Juvenile Law Center. “It is simply not worth the cost and effort to the county—and more importantly, not worth the cost to families—to continue with these collection payments,” said Hilda Solis, one of the motion’s sponsors. [Nina Agrawal / Los Angeles Times]

San Diego district attorney bends facts to spread fear about new felony murder law: Under a new law, Senate Bill 1437, the felony murder rule in California will be pared back. If a defendant in a crime did not kill, intend to kill, or did not act with reckless indifference to human life, that person cannot be found guilty of murder, even if he or she took part in a crime that resulted in a death. See our 10/2 edition. “This new law goes too far. And I am concerned about public safety,” said San Diego District Attorney Summer Stephan. She pointed to the 2016 stabbing death of Hugh Pettigrew, for which three people were convicted, even though prosecutors could not prove who actually committed the murder. Under the new law, the district attorney’s office will have to show every person had the intent to kill. [Artie Ojeda / NBC San Diego]

But on Twitter, one advocate found fault with the prosecutor’s example.

Thanks for reading. We’ll see you tomorrow.

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

Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted

Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted


What you’ll read today

  • Spotlight: Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted

  • Will Alabama sheriffs finally stop diverting jail food funds to their own wallets?

  • Baltimore’s gun offender registry is a misfire

  • Police raise money by mocking bailouts (and have been doing so for years)

  • LA parents will no longer be hounded to pay for their children’s incarceration

  • San Diego district attorney bends facts to spread fear about new felony murder law

In the Spotlight

Police video helped Laquan McDonald’s killer get convicted, but it could have helped him get acquitted

In what was most likely the second-biggest legal story of last week, a jury in Chicago convicted former officer Jason Van Dyke of second-degree murder, an exceedingly rare conviction for a police officer. Many were not expecting the guilty verdict, despite seemingly clear video evidence that Van Dyke shot Laquan 16 times as Laquan, armed with a 3-inch pocket knife, walked away. He continued shooting after the 17-year-old was lying on the ground, dying. During the trial, “Officer Jason Van Dyke asked 12 jurors to trust his memory, not a widely circulated dashboard camera video, to know what really happened,” writes Mitch Smith for the New York Times. “The jurors chose the video.” [Mitch Smith / New York Times]

The jurors said they relied heavily on the video to reach their verdict, watching it over and over. “They were not swayed by Officer Van Dyke’s testimony that Laquan targeted him with a menacing stare, made a threatening movement with a knife and tried to get up off the ground after being shot. None of those claims were backed by the video.” During his testimony, Van Dyke sought to explain the gaps between the video and his story. “That video may not show it, but that wasn’t from my perspective,” Officer Van Dyke said when pressed by prosecutors about his decision to continue shooting after pausing briefly. “I was coming at it from a completely different angle.” [Mitch Smith / New York Times]

Even though jurors ultimately chose to believe their eyes over Van Dyke’s testimony, similar cases have gone very differently. “It’s worth remembering that the most famous video of police violence, the Rodney King video, recorded in 1991” did not lead to convictions, writes Ethan Zuckerman for the MIT Technology Review. “While the video showed the assault on King, it also showed him charging at officers after being Tased.” The lawyers for the Los Angeles Police Department claimed that this behavior justified the use of extreme force. Video of Eric Garner being choked to death by an NYPD officer, while he shouted “I can’t breathe,” failed to lead to that officer’s indictment. Shootings of Alton Sterling, Philando Castile, and Samuel Dubose, all caught on video, did not bring about criminal convictions. Officers involved in Sterling’s death weren’t even charged. [Ethan Zuckerman / MIT Technology Review]

Perspective matters. Videos that do lead to accountability are often civilian video, not official police video from dashboard cameras or body cameras. In 1981, an MIT grad student named Steve Mann started wearing a computer and a head-mounted camera throughout the day, he was thinking about a world in which cameras would become ubiquitous, where millions of people with connected cameras could collectively hold authorities accountable for abuses. He called this phenomenon “sousveillance,” watching from below. [Ethan Zuckerman / MIT Technology Review]

An interactive feature in the New York Times dramatically demonstrates the difference that perspective can make when watching video: what looks like a chaotic and violent encounter turns out to be a friendly dance. [Timothy Williams, James Thomas, Samuel Jacoby, and Damien Cave / New York Times] (Curator note: This link is worth a click.)

“It’s not the end-all, be-all,” said Milwaukee District Attorney John T. Chisholm, who used body camera video in the case against Dominique Heaggan-Brown, a police officer who fatally shot Sylville K. Smith last year. Chisholm said he would never have brought criminal charges in the first place without the video, but it was not enough for a conviction: Heaggan-Brown was acquitted. In that case, like many others, the same video was used for diametrically opposed purposes. “Slowed-down, frame-by-frame video was used to show that the suspect had no weapon when he was shot a second time,” according to the New York Times. “The same video, played at regular speed, revealed a scene that was swift, confusing and chaotic, a boost to the defense.” And when videos do not fully show critical moments, jurors must fill in the blanks, which many do in favor of police officers. [Julie Bosman, Mitch Smith, and Michael Wines / New York Times]

In many cases, a “calculated, rather than an impulsive, crime can be the difference between ‘lethal injection and a lesser sentence.’” John Lewis was found guilty of murdering a police officer in 2007 during a robbery and was sentenced to death, but his lawyers appealed, arguing that slowing down the video evidence used in the trial made jurors more likely to believe that the killing was premeditated. This argument failed, but research shows that perhaps it should have succeeded. One group of researchers has found that when jurors are shown slowed-down footage, “they are more likely to think the person on screen has acted deliberately,” writes Homa Khaleeli for The Guardian. “While a slow-motion replay may allow jurors to see what is taking place more clearly, it also creates ‘a false impression that the actor had more time to premeditate’ than when the events are viewed in real time.” In a series of experiments, scientists showed participants footage of an attempted armed robbery in which a shop assistant gets shot; those who watched the footage slowed down were three times more likely to convict. [Homa Khaleeli / The Guardian]

Another study asked whether screen size affects jurors’ perceptions of information presented during trials. The researchers manipulated video image size as well as defendant emotion level presented during testimony, the defendant-victim relationship, and the strength of the evidence. Larger screens were found to accentuate what was presented––they made strong evidence seem stronger and weak evidence seem weaker. They conclude that attorneys presenting video images should recognize that jurors “may evaluate videotaped trial evidence differently as a function of how video evidence is presented.” [W.P. Heath and B.D. Grannemann / Behavioral Sciences & the Law]

Stories From The Appeal

Etowah County Sheriff Todd Entrekin infamously pocketed $750,000 in jail food funds and subsequently bought a $740,000 beach house. [Etowah County Sheriff’s Office]

Will Alabama Sheriffs Finally Stop Diverting Jail Food Funds to Their Own Wallets? The governor is making sheriffs sign an oath promising they won’t misuse funds meant to feed jail prisoners. But some sheriffs are already pushing back. [Lauren Gill]

Baltimore’s Gun Offender Registry Is a Misfire. Established to track anyone convicted of a gun-related offense, the registry has proved to be both racist and ineffective in reducing gun violence, former BPD officer Larry Smith writes. [Larry Smith]

Stories From Around the Country

Police raise money by mocking bailouts (and have been doing so for years): Last week, police officers held a “Cops for Cancer Tour de North’s jail and bail fundraiser.” The event at the Houston branch of the Bulkley Valley Credit Union raised over $11,000 for pediatric cancer research. Photos show officers pretending to arrest other cops, putting handcuffs on them and leading them into cages to raise money for pretend bail. A Twitter search showed that events like these from various cities, mocking bail fundraisers, go back to at least 2010. [Houston Today]

LA parents will no longer be hounded to pay for their children’s incarceration: Los Angeles County supervisors voted this week to no longer collect fees once charged to families of incarcerated young people for their incarceration, thereby “ending a practice decried by criminal justice advocates as an unfair tax on minorities and an ineffective means of rehabilitating young people who commit crimes,” according to the Los Angeles Times. The county’s probation department has been directed to “stop accepting payment and cancel nearly $90 million in juvenile detention fees.” A statewide ban on a range of court costs and fees charged to parents and guardians of children in the juvenile justice system was enacted earlier this year. Almost every state allows youth or their families to be charged for costs of the youths’ detention, according to an analysis by the Juvenile Law Center. “It is simply not worth the cost and effort to the county—and more importantly, not worth the cost to families—to continue with these collection payments,” said Hilda Solis, one of the motion’s sponsors. [Nina Agrawal / Los Angeles Times]

San Diego district attorney bends facts to spread fear about new felony murder law: Under a new law, Senate Bill 1437, the felony murder rule in California will be pared back. If a defendant in a crime did not kill, intend to kill, or did not act with reckless indifference to human life, that person cannot be found guilty of murder, even if he or she took part in a crime that resulted in a death. See our 10/2 edition. “This new law goes too far. And I am concerned about public safety,” said San Diego District Attorney Summer Stephan. She pointed to the 2016 stabbing death of Hugh Pettigrew, for which three people were convicted, even though prosecutors could not prove who actually committed the murder. Under the new law, the district attorney’s office will have to show every person had the intent to kill. [Artie Ojeda / NBC San Diego]

But on Twitter, one advocate found fault with the prosecutor’s example.

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Join rapper Common as he bails out a stranger

Join rapper Common as he bails out a stranger


Special Edition

Join rapper Common as he bails out a stranger

It was nearly 1 p.m. last Wednesday, and Common, the 46-year-old rapper, actor, and criminal justice reform advocate, stood on Atlantic Avenue in downtown Brooklyn, smiling nervously. He wore subtly tapered black pants, gray laceless sneakers, and a fashionable auburn T-shirt. Kerry Kennedy, the president of the nonprofit group Robert F. Kennedy Human Rights, had just handed him a less fashionable T-shirt—navy blue, with the words “MASS BAIL OUT” written across the front. Common tried to express enthusiasm for the shirt, but he clearly preferred his chosen color scheme. “Look at all these stylish people,” he said, gesturing to the group of activists accompanying him, some of whom seemed more stylish than others. “And I’m gonna have the blue with black, and the gray?” But Kennedy didn’t let the matter drop. It was, after all, a photo op. There was a film crew trailing him.

Common was on his way to the Brooklyn Detention Complex to post bail for a woman he didn’t know. He was one of hundreds of volunteers participating in an action that RFK Human Rights calls Mass Bail Out. On any given day, over 7,000 people are jailed at Rikers Island who have not been convicted of anything; they have been charged with a crime but are unable to afford bail. And 87 percent of them are Black or Latinx. The goal of the Mass Bail Out was to free about 350 of the people in this predicament—every woman, 16-year-old, and 17-year-old, regardless of the charges they face—to await trial from home. The point is to show that New York City does not need Rikers and does not need cash bail—the city would be just as safe, and these women and young people can be spared the trauma of jail, not to mention the educational, employment, and familial consequences of being taken away from their lives.

The rapper, actor, and criminal justice reform advocate Common was one of the hundreds of volunteers participating last week in an action that the nonprofit group Robert F. Kennedy Human Rights called Mass Bail Out. [Photos by Sarah Lustbader]

“The only reason this woman is in a cage is that she can’t afford bail,” Wade McMullen, the managing attorney of RFK Human Rights, told Common. “And as soon as she’s in that cage, she’s at great risk for sexual assault, discrimination, and abuse. She’ll be separated from her family and taken from her job.” People who were locked up, he went on, were more likely to be coerced into pleading guilty, even for crimes they hadn’t committed. “The system is set up to help prosecutors,” he said.

Common listened with his arms folded, at one point stroking his close-cropped beard. Eventually, he gave in, agreeing to change T-shirts. “I’m gonna give up fashion for freedom!” he declared. He pulled off his shirt on Atlantic Avenue, quickly replacing it with the RFK shirt. The new color scheme looked fine.

Judges often set high bail in order to detain a defendant. This is a perversion of the purpose of bail, which is to allow people charged with a crime to remain free while they fight their cases, with an incentive to return. Advocates argue that bail should provide a meaningful incentive to return, not a jail sentence. Many urge judges to tailor bail to a person’s ability to pay: $20 could be just as meaningful to one person as $20,000 is to another.

Instead of waiting for judges to change their behavior, groups like RFK Human Rights have set out to change the system themselves. Organizers have gathered money for community bail funds across the country to help people who cannot afford their freedom. RFK Human Rights’s bail action has put the city’s district attorneys “on edge,” writes Professor Jocelyn Simonson. Some have warned that freeing these women and teenagers will jeopardize public safety. “The RFK Jr. [sic] Human Rights ‘mass bailout’ project in New York may sound compassionate, but it’s actually a dangerous and irresponsible intrusion into our criminal-justice system,” Queens District Attorney Richard Brown wrote in the New York Post.

According to Simonson, this reaction “exposes how ‘public safety’ has come to embody a very harmful and narrow definition of which ‘public’ matters.” Evidence indicates that the risk posed by people awaiting trial is exceptionally low, while the risk of violence to people detained at Rikers Island, especially women and young people, is quite high.  “The Mass Bail Out,” Simonson argues, “asks us all to reconsider what it means to keep the public safe.”

Common prepared to pay bail for a woman at the Brooklyn Detention Complex as Kerry Kennedy, president of RFK Human Rights, and Wade McMullen, the nonprofit’s managing attorney, looked on.

On the street near the jail, Kerry Kennedy addressed the public-safety question. “If we were truly afraid, then Harvey Weinstein wouldn’t be walking free.” She also noted that, as attorney general, her father, Robert Kennedy, addressed cash bail in the federal system. “Here we are now, having failed to address it at the local level,” she said.

In 2017, Kennedy’s group helped bail out Pedro Hernandez, a Bronx teenager who spent a year at Rikers for a 2015 shooting that he did not commit. Yesterday, the Bronx DA finally dropped the last remaining charges against him. Hernandez, like Kalief Browder, has been called a poster child” for bail reform.

Common, Kennedy, and the film crew began walking toward the jail. In his new outfit, Common attracted even more attention than he did before. As they walked by, two white women sporting librarian haircuts stopped and stared at his shirt. “That’s a rapper,” one explained to the other. “He’s going to bail someone out.” Three teenagers in gym shorts tried to get Common’s attention—“I rap too! Check out my mixtape!” one shouted—but Common didn’t seem to hear them. I told them that Common was about to bail someone out of jail, and their eyes grew wide. “Oh, word?” said one. “Tell him to free my uncle!”

McMullen prepared Common to go inside to the room where bail gets paid. “It’s not the most efficient system,” he said. Once Common gave over the information—the woman’s name, her ID number, his name—the person at the window would fax it to Rikers; then we would wait for a fax back, which could take an hour or two. McMullen assured him that “we’ve arranged to go to a nice window,” where the officer would expedite the process as much as possible. Common was handed a file containing information about the woman he would be bailing out, and he nodded solemnly as he turned the pages.

Sign here, under “advocate,” McMullen said, helping him fill out the surety form. “You’re the advocate. That’s your relationship.”

“Now I’m an artist, activist, and advocate!” Common said.

They walked into the small bail room, and the lofty rhetoric gave way to bureaucracy. Common approached the bail window, one of two. “Hey, how you doing today?” he said with a smile. “I’m here to bail someone out.” The officer behind the window seemed indifferent—not hostile, not friendly, barely making eye contact. “ID?” she said.  Common turned to McMullen: “This is the nice window?” Common handed over the paperwork, then started to wait. He asked if the officer could give him a courtesy call when the fax from Rikers came in, like a restaurant texting a patron when a table becomes available. No luck. He would have to wait in the bail room like everyone else.

At the other window, a woman talked to the officer in loud and frustrated tones. Her bailout attempt did not seem to be going smoothly. Behind us, a man struggled to use a JPay machine.

After about 20 minutes, an officer walked in and told the film crew to stop recording. “Look, Common, we are all very happy for you,” she said, in a tone that seemed to belie her words. “We get it. But you guys just can’t record in here.” The cameras were turned off. Another officer asked for Common’s autograph; a third officer asked Common to pose for a picture.

The bail captain returned with some good news: She’d called the women’s wing of Rikers and they were expediting the paperwork. “That’s where I used to work,” she explained. Even with this VIP treatment, Common would end up waiting nearly an hour. While we waited, he told me how, growing up on the South Side of Chicago, “it became normal to have friends and family members incarcerated. I would visit my uncle in jail. I accepted it as normal.” Then he met Michelle Alexander, the scholar and author of best-selling book The New Jim Crow. (Being Common means having experiences that are not at all common.) Alexander helped him connect the dots between slavery and the prison system, and he realized that mass incarceration was neither “normal” nor inevitable. “I almost felt like I’d been duped,” he said.

When the paperwork was ready, Common stepped up to the window. The officer showed him a photo of the woman, confirming that she was the person he wanted released, and he nodded. “Sign here and press hard,” the officer instructed, handing him some paper with carbon copies underneath. With three swoops of his pen, Common was done. He and the officer wished each other a good day, and he walked back onto the street.

As he headed off to his next engagement, he seemed invigorated by the experience. He even came around on the T-shirt, saying he wouldn’t change back. “I’m gonna rock this today and let people know what I’m about.”

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Time to fight for better judges in criminal court, too

Time to fight for better judges in criminal court, too


What you’ll read today

  • Spotlight: Time to fight for better judges in criminal court, too

  • Suit filed by strip club workers in Columbus sheds light on troubled vice squad

  • One year after Cook County’s bail reform, court watchers say things are getting worse

  • Tennessee man set for execution says he prefers electric chair over lethal injection ‘torture’

  • People in Pennsylvania prisons can now only get black-and-white printouts of their kids’ drawings

  • Police officer who killed Tamir Rice hired again as a cop

  • Sheriff and phone contractor knew about illegal recording of jail calls

In the Spotlight

Time to fight for better judges in criminal court, too

Today, Brett Kavanaugh takes his seat on the Supreme Court after hearings that, for many, demolished what little faith they had left in the legitimacy of the confirmation process or in the idea that government at the highest levels would seriously examine allegations of sexual assault against a powerful man. Kavanaugh now sits for life, or until retirement, on the country’s highest court, and he will play a role in shaping its jurisprudence for decades. Based on his record, we can expect him to vote to uphold death sentences and conditions in solitary confinement and to show broad deference to law enforcement. [Kyle C. Barry / The Appeal]

With the approach of elections in November, this is a good time to think not just about who we want confirming Supreme Court justices but also about who we want as judges in the criminal courtrooms across the country. For the vast majority of criminal defendants, “court” means the trial-level state courts where the daily grind of arraignment, bail decisions, grand jury proceedings, pretrial hearings, guilty pleas, trials, and sentencing happens. The entire federal court system hears only 354,000 trial cases a year, compared to 84 million in the state courts. These courts are far less lofty than the Supreme Court and the settings are less grand than the courtrooms in federal courthouses. On their own, each individual court’s role hardly registers against the enormous impact the Supreme Court has on American life. But these often-dispiriting settings are where the administration of justice happens for most people who are arrested and prosecuted, and for any of their loved ones who have waited in long lines outside courthouses or spent long days on courtroom benches. [Court Statistics Project]

Writing for Vice in 2015, a federal bankruptcy judge described her experience accompanying her public defender daughter to Bronx criminal court to observe arraignment and bail hearings. What she saw appalled her: “The fact that the Bronx criminal courthouse is not fancy is no shocker—no grand marble staircases like those at my courthouse. But little things matter. … Thinking about the amount of time families must spend here, I was struck by how bleak this place was intended to be.” [Hon. Shelley C. Chapman / Vice]

And it was not just the physical facilities that are disappointing. “I was shocked at the casual racism emanating from the bench,” she wrote. The judge explained a ‘stay away’ order to a Hispanic defendant by saying that if the complainant calls and invites you over for ‘rice and beans,’ you cannot go. She lectured some defendants that most young men ‘with names like yours’ have lengthy criminal records by the time they reach a certain age.” [Hon. Shelley C. Chapman / Vice]

To people subjected to those grim realities, of course, nothing the judge wrote was a surprise. In the last several years, groups in multiple cities have started court watch programs that draw wider attention to the proceedings in local courts. In New York, volunteers with the recently launched Court Watch NYC program chronicle the daily denials of justice for poor Black and brown people who appear in court. An update from September 18-24 included this:

“A middle aged black man was brought in on outstanding warrant. He had been attending a court-mandated year-long program but dropped out near it’s [sic] completion to care for his mother with Alzheimers [sic] after she became seriously ill. His mother died shortly thereafter. Judge rules he must redo program in it’s [sic] entirety.” [Court Watch NYC]

As with prosecutor elections, people aware of the injustices of the criminal legal system are waking up to the importance of judicial elections. Unlike the federal system where all judges are appointed, roughly 90 percent of state court judges are elected. There are concerns that judicial elections leave judges “beholden to special interests, campaign financiers, and the manipulations of negative advertising.” Another concern is that in states with partisan judicial elections, judges become part of partisan politics. [Jed Shugerman / Daily Beast] Very often the names that appear on primary or general election ballots are the product of backroom deals orchestrated by party leaders. Even a process where voters are directly involved in selecting judges can be engineered to leave little choice and little information. [Benjamin Mueller / New York Times]

Yet there are still openings for change. In Chicago, community groups recently organized the Coalition to Dump Matt Coghlan in an effort to oust a county circuit judge. Coghlan, like 59 other judges in Cook County, is standing for retention this fall. Injustice Watch’s review of Coghlan’s record showed that he “had a history of harsh sentences, including one-year sentences for Black defendants convicted of marijuana possession,” and had been criticized for lenient sentences for police officers convicted of crimes. He is also a defendant in a civil lawsuit for having allegedly framed two men for murder when he was a prosecutor. The effort to block Coghlan’s retention had a major victory last month when the Cook County Democratic Party refused to recommend Coghlan for retention, ending a 28-year-old tradition of blanket endorsements. This means that the party will not take the usual steps of urging voters to retain all judges in sample ballots and in automated telephone calls to voters. Because Cook County is a Democratic Party stronghold, that support is typically crucial.  [Mari Cohen / Injustice Watch]

Injustice Watch has reviewed the records of all judges up for retention elections in Cook County this fall.

Stories From The Appeal

An activist confronting a Columbus police officer outside the governor’s mansion in Bexley, Ohio, a Columbus suburb, in April 2017. [Katie Forbes]

Suit Filed By Strip Club Workers in Columbus Sheds Light on Troubled Vice Squad. The women, who were arrested alongside Stormy Daniels in July, allege that they were smeared by arresting officers, but they’re just the latest to raise concerns. [Melissa Gira Grant]

One Year After Cook County’s Bail Reform, Court Watchers Say Things Are Getting Worse. Judges are still setting bail at unaffordable levels, and more people are being held without bond. [Bryce Covert]

Stories From Around the Country

Tennessee man set for execution says he prefers electric chair over lethal injection ‘torture’: Edmund Zagorski, scheduled to be executed Thursday, has told Tennessee prison officials that he wants to be executed by electric chair rather than by lethal injection, an option available to those sentenced to death before 1999. His decision came within hours of the Tennessee Supreme Court ruling Monday that the state can continue to use a three-drug lethal injection protocol that includes the sedative midazolam. The Tennessean reported that during the hearing on the constitutionality of Tennessee’s use of midazolam, experts testified that the drug failed to render people unconscious, leaving them able to experience the “burning pain and experience of being buried alive” that the other two drugs create. Zagorski says in his affidavit that while he believes both methods are unconstitutional, “I do not want to be subjected to the torture of the current lethal injection method.” A corrections department spokesperson told The Tennessean that she did not know if the electric chair would be used. Tennessee last used the electric chair in 2007. [Adam Tamburin / The Tennessean] See also Six members of the jury that sentenced Zagorski to death in 1984 say they would have voted for a sentence of life without parole if that had been an option at the time. [Steve Hale / Nashville Scene]

People in Pennsylvania prisons can now only get black-and-white printouts of their kids’ drawings: In September, Pennsylvania became the first state to entirely eliminate “personal mail” for people in prison. This means that people in prison “can no longer receive birthday cards, handwritten notes from Grandma, or drawings from their children.” Instead, every piece of mail is converted into a searchable electronic document and then, after review, delivered as a black-and-white printout. Pennsylvania corrections department uses the MailGuard system from Smart Communications, a company that contracts with prisons to provide technological services, including e-messaging. Smart Communications rolled out Mail Guard in 2016, promoting it “as the first system to fully eliminate postal mail in jails.” According to a copy of the contract obtained by Bloomberg Businessweek, the Pennsylvania Department of Corrections has agreed to pay Smart Communications $376,000 per month for its services through July 2021. [Victoria Law / Bloomberg Businessweek] See also: The Appeal reported on the personal mail restrictions when they were introduced in September.  

Police officer who killed Tamir Rice hired again as a cop: Timothy Loehmann, one of the officers who shot and killed 12-year-old Tamir Rice in Cleveland in 2014, has a part-time job with the Bellaire Police Department. Loehmann was a rookie police officer when Rice was killed. He was  fired from the Cleveland Police Department in 2017 for lying on his job application. No charges were brought against any of the officers involved in Rice’s killing. The president of the Cleveland Police Union told the Wheeling News-Register that Loehmann’s departure from the Cleveland police was unjustified and that he hoped Loehmann would be a full-time officer again soon. [Shelley Hanson / Wheeling News-Register]

Sheriff and phone contractor knew about illegal recording of jail calls: A motion filed by the Orange County Assistant Public Defender Scott Sanders alleges that the Sheriff’s Department and Global Tel Link (GTL), the county’s jail telephone contractor, were aware of the unconstitutional recording of calls between people held at the jail and their lawyers from 2015 to 2018. GTL acknowledged that over a thousand calls were illegally recorded due to “human error,” according to the sheriff and the company. Sheriff’s deputies accessed 58 of the calls. Sanders is arguing that both the company and the sheriff’s department intentionally accessed calls and covered up their actions. Of particular concern is a two-week period in June 2016 when the public defender’s office’s number was taken off the do-not-record list. [Thy Vo / Voice of OC]

Thanks for reading. We’ll see you tomorrow.

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

The blue wall of silence came up for the cop who killed Laquan McDonald

The blue wall of silence came up for the cop who killed Laquan McDonald


What you’ll read today

  • Spotlight: The blue wall of silence came up for the cop who killed Laquan McDonald

  • The Appeal Podcast Episode 17: The cruelty of felony murder laws

  • An Alabama prosecutor locked up four teens for a murder they didn’t commit. Now he’s trying two more.

  • San Francisco police sued over undercover drug arrests that targeted Black people

  • Jail staff videotaped and mocked a man dying of an overdose in a cell

  • Federal juvenile justice agency seems to no longer want children to be healthy or educated

  • What we can learn from how a flawed study hurt the movement for safe consumption sites

In the Spotlight

The blue wall of silence came up for the cop who killed Laquan McDonald

“16 shots and a cover up.” In 2014, Jason Van Dyke, a white Chicago police officer, fatally shot Laquan McDonald, a Black teenager. A police dashboard camera video—released 13 months after Laquan’s death and only after a court order—showed Laquan walking away when Van Dyke fired, contradicting what police had said happened. It also showed the 17-year-old falling to the ground after the first shots and Van Dyke continuing to shoot him. Now, nearly four years after Laquan’s killing, Van Dyke is on trial for first-degree murder. After 10 days of testimony, the jury began deliberating yesterday. [Jason Meisner, Megan Crepeau, and Stacy St. Clair / Chicago Tribune]

The video footage was crucial for arguing Van Dyke’s guilt, with prosecutors returning to it repeatedly in making their case. Their reliance on it underscored the gravity of what Mayor Rahm Emanuel and the police department did in keeping the video from the public, well into 2015. Eventually, 400 days after Laquan died, a judge ordered the city to release it. It contradicted the official narrative of Laquan and Van Dyke’s actions and confirmed the suspicion of many: that a white police officer had killed a Black teenager who posed no threat to him and the city’s response had been to cover it up. What followed was a cascade of events that including the firing of the police superintendent, the election loss of the Cook County district attorney, and, on the eve of opening statements in Van Dyke’s trial, an announcement by Emanuel that he will not seek re-election this fall. [Mitch Smith, Timothy Williams, and Monica Davey / New York Times]

Van Dyke was alone in firing the shots that killed Laquan McDonald, but the machinery of the police department came together to protect him. This included three of his fellow officers allegedly creating false reports about Laquan’s behavior before Van Dyke shot him and coordinating to make sure that witnesses who would have contradicted the police account were not interviewed. The officers were eventually indicted in 2017 on charges of felony conspiracy, official misconduct, and obstruction of justice. [Monica Davey and Mitch Smith / New York Times] Given the long odds on a Chicago police officer actually being convicted at trial for a fatal shooting, some believed the best hope for accountability lay with the conspiracy prosecution. [Alan Pyke / Think Progress]

Yesterday new revelations emerged about the cover up. In response to a lawsuit by media organizations, Cook County Judge Domenica Stephens ordered the release of the prosecution’s outline of its case against Van Dyke’s fellow officers. The outline discusses the actions of several other unnamed officers at the scene and officers involved in the subsequent investigation who allegedly sought to protect Van Dyke. One unnamed sergeant—the supervisor of one of the three officers who have been charged—speaking about Van Dyke, said in an email to a lieutenant involved in the case, “We should be applauding him, not second guessing him.” [Andy Grimm and Sam Charles / Chicago Sun-Times]

Shortly after Laquan was killed, Van Dyke and other officers met at police headquarters and spoke with detectives “all in the same room, just talking [about] what happened,” one of the officers testified before a grand jury. They were not separated and were not interviewed individually. In the unsealed document, the prosecutor describes the meeting as “an attempt to conceal the true facts of the events surrounding the killing of Laquan McDonald.” [Andy Grimm and Sam Charles / Chicago Sun-Times]

The document also shows how statements by officers trying to cover up for Van Dyke were adopted, uncritically, by other investigative agencies. One officer allegedly told an investigator at the medical examiner’s office that Laquan “lunged at the officers with a knife” and the medical examiner’s office let that assertion appear, unchallenged, in its case report. [Andy Grimm and Sam Charles / Chicago Sun-Times]

Last year, soon after charges were announced against the three officers, an article in ThinkProgress looked at how the prosecution of Van Dyke and the prosecution of his fellow officers could be seen as representing two models of accountability. Even if convicted, Van Dyke could be explained as an officer whose actions are not representative of a broader problem. The prosecution of the fellow officers on conspiracy charges, on the other hand, represent a strike at what one researcher described as a “saturation of corruption.” [Alan Pyke / ThinkProgress]

Craig Futterman, a policing expert at the University of Chicago, told Think Progress that, “It’s difficult to weight these things against each other. Both are historic.” But he described the code of silence as “nothing short of criminal, but it’s never been challenged as such.” He continued: “If we care about addressing that code of silence that has allowed so many officers to hurt so many people without fear of punishment, this matters. And it also matters if we care about ending the rash of police killings of young black men in Chicago.” [Alan Pyke / ThinkProgress]

Organizers of courthouse demonstrations at the start of Van Dyke’s trial last month told In These Times why the work of bringing accountability to the police extended beyond the trial: “What makes Chicago the epicenter of the fight against police violence isn’t just the murder of Laquan,” an organizer for the Civilian Police Accountability Council said. “There’s nothing exceptional or extraordinary about police killing black people. What happened in this one case was the exposure of the entire system. We’re not saying that this murder is unique. They were doing what they normally do, but this time they got caught.” [David North / In These Times]

Stories From The Appeal

Illustration by Simone Noronha

The Appeal Podcast Episode 17: The Cruelty of Felony Murder Laws. Appeal contributor Katie Rose Quandt joins Adam to discusses why felony murder laws are unjust and how activists are pushing back against this uniquely American brand of cruel and unusual punishment. [Adam H. Johnson]

An Alabama Prosecutor Locked Up 4 Teens for a Murder They Didn’t Commit. Now He’s Trying 2 More. Two teenagers are facing life without parole sentences for capital murder, though it’s not clear they pulled the trigger. [George Joseph]

Stories From Around the Country

San Francisco police sued over undercover drug arrests that targeted Black people: The ACLU is suing the San Francisco Police Department over a string of undercover police drug buys from 2013 to 2015 that resulted in 37 arrests, all of Black people, in a city where only 6 percent of the population is Black. The lawsuit alleges that the police targeted Black people for arrest and cites a “history of racially discriminatory law enforcement” that “is well documented and still inadequately addressed.” The arrests, in the Tenderloin neighborhood, were part of a joint operation by city plainclothes officers and federal drug agents carried out under a federal law that enhances penalties for drug sales in school zones. Charges for 12 of the 37 people arrested were dropped in 2016 after a federal judge found “substantial evidence of racially selective enforcement” in their arrests. [Bob Egelko / San Francisco Chronicle]

Jail staff videotaped and mocked a man dying of an overdose in a cell: Within hours of being brought to jail in Oregon on a probation violation in 2016, Brian Perry had to be rushed to a hospital, where he ultimately died from an overdose. Before he was taken to the hospital, three sheriff’s deputies recorded him on cell phones as he flailed in his padded jail cell. One deputy was recorded saying, “Look what I got for show-and-tell today.” The sheriff of Clackamas County released the two cell phone videos this week after Perry’s mother and his estate filed a wrongful death lawsuit alleging the county deputies and staff from the jail’s medical contractor violated Perry’s civil rights by failing to properly screen him, get him prompt medical attention, adequately check on him or send him to a hospital. [Maxine Bernstein / The Oregonian]

Federal juvenile justice agency seems to no longer want children to be healthy or educated: The open-information group Sunlight Foundation noticed a number of changes to the website of the federal Office of Juvenile Justice Delinquency and Prevention. A sentence in the vision statement that previously called for children to be “healthy, educated, and free from violence” was changed to “free from crime and violence.” Guidance on the website that urged states to stop putting children into solitary confinement, avoid incarcerating girls, and address the disproportionate impact of courts and prisons on youth of color was all removed. The changes are consistent with more punitive messaging from the agency under the Trump administration. The new head of the agency said in an interview in March that the youth justice system had “drifted a bit to a focus on avoiding arrests at all costs and therapeutic intervention. It went a little too far to the side of providing services without thinking of short-term safety.” [Ed Pilkington / The Guardian]

What we can learn from how a flawed study hurt the movement for safe consumption sites: A policy manager at the Drug Policy Alliance writes about how a recently-retracted study that cast doubt on the health benefits of safe consumption spaces was used to argue against the opening of such sites in California and elsewhere and provided fodder to skeptics and critics. The harm done to the movement for safe consumption spaces in the United States by the study and the coverage it originally received is a reminder that “[w]hen a new study comes out and purports to add to our understanding of a controversial topic…” the policy manager, Sheila P. Vakharia, writes, “it is our responsibility to pause to ask ourselves some vital questions.” These include questions about the study’s methodology and analysis, the author’s expertise and possible conflicts of interest, and the identity of funders. Though “[t]he retraction came, and that matters,” she writes,“ a retraction never receives the same kind of attention as the original study.” [Sheila P. Vakharia / Filter]

Thanks for reading. Have a great weekend.

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New California laws will help thousands have old convictions vacated, expunged, or reduced

New California laws will help thousands have old convictions vacated, expunged, or reduced


In This Edition of the Political Report

October 5, 2018:

  • California: Three new laws provide thousands an opportunity to have old convictions vacated, expunged, or reduced

  • California: (More) new laws limit prosecution of children, increase police transparency

  • Maine: Portland DA candidates at odds on even basic reform steps

  • New Mexico: Doña Ana sheriff race puts spotlight on Operation Stonegarden

  • Quick link: ACLU launches nationwide voter tool

As always, you can use this database to read the previews of all upcoming profiled elections. This second database lists the previews of all past profiled elections.

California: Three new laws provide thousands an opportunity to get old convictions vacated, expunged, or reduced

On Sunday, California significantly restricted the circumstances under which someone can be prosecuted for a murder that they did not commit. Under the old felony murder rule, people could be charged with murder for a death that occurred during a felony in which they participated, even if they themselves did not kill anyone or even know that someone had been killed. But a law signed by Governor Jerry Brown (Senate Bill 1437) narrows this rule to people who commit murder, intend it, or act with “reckless indifference to human life.” “Most people have no idea that you could be charged with murder and convicted with murder without having committed murder or even being present when the murder occurred,” state Senator Nancy Skinner, who introduced the legislation, told me. District attorneys “can no longer threaten everyone with a first-degree life sentence in the same way,” Kate Chatfield, the policy director of Restore Justice, told me.

The law applies retroactively. People can now petition to have a murder conviction vacated and replaced with a new sentence if they would not have been convicted under this law. Chatfield, who drafted SB 1437, estimates that approximately 800 people could be resentenced in this way.

To benefit from this provision, an incarcerated person would need to file a petition documenting eligibility. If the court establishes a prima facie showing of eligibility, prosecutors who wish to stop a conviction from being vacated would need to demonstrate beyond a reasonable doubt that the individual is ineligible. “We anticipate that a lot of these petitions can be dispensed of rather quickly, that it will often not be contested that somebody was just out of the scene,” Chatfield said. “We learned from the past in order to make the process streamlined from the outset.” The San Francisco public defender’s office said on Monday that it will examine all past homicide convictions to identify individuals in a position to demand a new sentence.

Other bills that Brown signed on Sunday also expand opportunities to modify past sentences. Assembly Bill 2942 will enable prosecutors to reopen cases in order to ask a judge to impose a reduced sentence. For instance, sentences decided under the state’s three-strikes law “could be reduced if prosecutors withdraw a prior conviction … from the court’s consideration,” Kyle Barry reported in The Appeal. This change heightens the stakes of electing DAs committed to acting against excessive sentencing.

AB 1793 shifts the burden of review. It instructs state officials to identify individuals eligible to have marijuana-related convictions expunged or reduced. Although Californians’ ability to petition for such relief grew in 2016, few have taken advantage. “It’s safe to say the number of persons eligible to have their offenses reduced from felonies to misdemeanors is in the hundreds of thousands,” Dale Gieringer, director of California NORML, told the Los Angeles Times.