In early February, four longtime public defenders in San Francisco announced their plans to run for Superior Court judge, a position that would allow them to preside over the very same courtrooms where they had been defending indigent clients for years. The public defenders were targeting the seats of four judges who had been appointed by Republican governors, Pete Wilson and Arnold Schwarzenegger, the type of judges who rarely face serious challenges from either party. But instead of being greeted by local Democratic politicians with enthusiasm and encouragement, the public defenders were instead criticized for daring to run.
A week after the announcement, Assemblymember David Chiu, a Democrat from San Francisco, expressed a deep concern about the “politicization of the bench” speaking out with three local Democrats who defended the current judges (who have also described themselves as Democrats).
The blowback took some of the candidates by surprise. “I’m naive, man,” Phoenix Streets, one of the four candidates, told The Appeal. “When I started running, I thought we were going to have a conversation about the criminal justice system. … I did not realize that we were declaring war. But I’m glad we did, because that makes it much more fun.”
The four new candidates, all of whom are either Black or Latinx, hope to address the disproportionate impact of the criminal justice system on people of color in San Francisco, a famously “progressive” city. In 2016, the Department of Justice issued a 400-plus page report describing implicit bias against minorities in the San Francisco Police Department. According to a 2015 study, Black adults in San Francisco were more than seven times more likely than white adults to be arrested.
“The numbers don’t lie,” said Niki Solis, one of the public defenders running for judge. “There are numbers that show implicit bias and you need to address them. We think that San Franciscans would be well-served to go to the poll and elect critical judges. … We need to hold these [four] judges accountable and we need to say to the electorate that these numbers are stark, and they’re troubling.”
Solis, a formerly undocumented immigrant whose family arrived from Belize was she was an infant, explained that the public defenders are trying to transform the justice system wholesale. For starters, they’re focusing on diversion for those arrested and treating incarceration as an option of last resort. She believes new judges who better reflect the population they are serving could remake the justice system in a way that would minimize the worst aspects of biased policing.
California’s power brokers have traditionally refused to run challengers against whoever is appointed by the governor, because they fear an influx of money into normally staid judicial elections and they say judges are meant to be above partisan politics. But those aren’t the only reasons. Often, Solis explained, these appointments are drawn from law firms that have showered sitting judges with campaign donations and parties celebrating them. If no one runs against an appointee when the position is up for election, the judge’s name doesn’t even show up on the ballot. This lets one of the most crucial pieces of the criminal justice system, Solis argues, stay completely out of reach for anyone who isn’t politically connected.
The challengers chose these particular judges solely because they were Republican appointees and up for re-election this year, not because they were any more or less progressive than other members of the judiciary. But, as candidate Maria Evangelista recently argued in a blog post, new judges are needed to disrupt the status quo.
“Judicial elections are mandated by the California Constitution every six years to ensure there are checks and balances on judges who were given political appointments,” she wrote. “True judicial independence will come from electing judges from diverse backgrounds to eliminate implicit bias.”
Chiu disagrees that the sitting judges, two of whom are Asian, don’t represent the diversity of San Francisco. And while he doesn’t believe that incumbent judges are sacrosanct (he says he has supported challengers in the past), he thinks judges should be evaluated based on their records, not on who appointed them.
“The four judges that were selected to be opposed are all incredibly well-respected and well-qualified with long records of progressive achievements. The suggestion that simply because of who had appointed them, they were somehow less qualified to serve on the bench, I just didn’t agree with,” Chiu said in an interview.
Yet, across the country, public defenders are increasingly competing for seats in places where incumbent judges are unaccustomed to being challenged. They’re running with an eye toward transforming the criminal justice system from the most important position in the court, one that decides what evidence can be admitted, what charges can be levied, or whether a sentence truly fits the crime.
Kathryn Maloney Vahey, an assistant public defender who ran for a vacant position on the Cook County Circuit Court in Illinois last winter, explained that the county’s convoluted process for forcing a judicial election makes it so that “99.9 percent” of judges are retained. When vacancies do come up, they’re competitive affairs, and ones in which, she says, public defenders have traditionally not fared well due to their supposedly “soft” approach to punishment.
As progressive prosecutors have swept to power in Chicago, Philadelphia, and Houston, judges (who are often former prosecutors) have acted as barriers to reform. In Philadelphia, for instance, judges have so far thwarted many of District Attorney Larry Krasner’s attempts to reduce sentences for people who were given automatic life without parole as juveniles. In Cook County, Illinois, a judge got into a shouting match with a prosecutor who said the court should have offered bond to a woman who was seven months pregnant. She eventually had to give birth while being held for a probation violation. In Harris County, Texas, several judges named in a federal lawsuit continue to fight a district court ruling declaring the county’s bail system unconstitutional. The Harris County prosecutor, Kim Ogg, supports the ruling and reforming cash bail.
For former Harris County public defender Franklin Bynum, a candidate for criminal court judge, decisions like the ones made by the judges appealing the ruling are what pushed him to run. “This system is an indefensible system. Even a lot of the local politicians who are not seen as fire-throwing radicals say this,” Bynum told The Appeal. “I’m one of a chorus of people saying the criminal justice system in Harris County is fundamentally broken and it’s run by the worst people in the county. It has to stop.”
And, in his case, change is likely. In March, Bynum won his district’s primary unopposed. His opponent in the general election easily defeated the incumbent Republican judge and has support from religious conservatives, but is considered unlikely to win. Bynum, it should be noted, is running as a Democratic Socialist, something he said the local Democratic Party has urged him to tamp down his rhetoric about.
In Cook County, which leans overwhelmingly Democrat, Vahey won her primary against the incumbent, even without the endorsement of the local Democratic Party (which endorsed the incumbent). Vahey ran alongside a slew of other public defenders, many of whom were victorious—representing something of a public defender wave in Cook County. According to Injustice Watch, “Current or former public defenders won seats in 14 of the 23 contested races they ran in,” while just two years ago, “only six current or former public defenders ran in contested races, and only one of them won.”
The candidates aren’t confined to only urban areas that have seen recent progress on criminal justice reforms. Suzanne Hayden is a public defender in Clallam County, Washington, right at the tip of the Olympic Peninsula. She’s running for a district court seat that is being vacated by Rick Porter, a judge who instituted a “pay-or-appear program” in the courts, where defendants had to pay fines, do community service, or be incarcerated, which critics say improperly punished people who were unable to pay. The state recently passed legislation outlawing such practices. “I thought I would live and die as a public defender,” Hayden said, explaining that she hadn’t really considered running for judge before Porter left his seat and set the stage for a November election.
Even though recent successes point toward something of a trend, the fact that states have different rules or gatekeepers for how judges are elected or appointed remains a significant hurdle for many public defenders looking to get on the bench.
Todd Oppenheim, a public defender in Baltimore, experienced those challenges firsthand when he first ran for a circuit court judge seat in Baltimore in 2016, and then tried to get appointed to a judge position a year later. Neither bid worked. Judges often run together as a “slate,” Oppenheim says, pooling resources and making it extremely difficult for an insurgent candidate to make an impact in the polls. As in California, appointments to the bench in Maryland are often handed to lawyers at politically well-connected law firms, who go out of their way to make sure no one else can emerge as a viable candidate.
“The private attorneys … they go to every judge’s fundraiser, they get onto the committees on these bar associations, and one of them pulled me aside,” Oppenheim said, “and he kind of warned me after I announced my candidacy but had not filed with the state: ‘This is going to ruin your career. What are you doing?’”
“As public defenders, we see [the justice system] day in and day out, and we have a unique perspective of what works and what people want done. How to treat people and how to speak to them, and speak to their issues so that they can get out of the criminal justice system,” Solis, one of the San Francisco candidates, said. “Now, more than ever, we need folks like us to stand up and be members of the judiciary.”
Sheriff Darryl Daniels of Clay County, Florida, is positioning himself as a social media celebrity in the ongoing war on opioids. In January, Daniels’s office filmed the aftermath of a SWAT raid that he and masked officers carried out on a so-called narcotics house on a tree-lined suburban street in Orange Park, Florida. The video documenting the raid—in what the sheriff dubbed “Operation: You Were Warned”—went viral, garnering 30,000 shares and 3.4 million views on Facebook.
The raid video opens by panning over a line of young people handcuffed on the curb. The camera then moves to a group of officers, wearing helmets and backed up by two armored cars. The video finds Sheriff Daniels, who announces to the viewer that criminals must leave his county or face the consequences. The camera follows him to the house, briefly focusing on a broken window before Daniels opens the door. Standing in the raided home, Daniels takes a large swig of his morning cup of coffee and declares, “Fifteen going to jail, three big gulps.”
Despite the sheriff’s announcement, the “raid” resulted in only five adult arrests and one juvenile arrest, according to Elaine Brown, a lead records specialist at the sheriff’s office. According to police records reviewed by The Appeal, the drug seizures from this “narcotics house” were fairly small scale and did not include opioids. In an email to The Appeal, Sgt. Keith Smith, an office spokesman, clarified that during the the raid, narcotics deputies found what they believed to be 1.2 grams of heroin and fentanyl after an initial field test, but subsequent tests revealed the seizure was not a controlled substance.
Police actually nabbed most of the suspects for marijuana, of which they found less than two ounces during the raid. Of the five adult arrest reports, four indicated marijuana possession, with three charged for drug equipment. Two of the individuals charged for marijuana had less than 20 grams, according to the documents. The fifth suspect was nabbed for positive field tests of MDMA and a few grams of cocaine. It is not known what substances, if any, were mentioned in the sixth arrest report, which was not released because the subject was a juvenile.
The Clay County Sheriff’s Office did not respond to The Appeal‘s inquiries about whether the department considered issuing public corrections about the initial arrest figures and drug seizures posted on Facebook. The department also did not respond to questions about the decision to film the aftermath of the operation and about their use of armored vehicles.
One former Clay County sheriff’s deputy, who requested anonymity citing concerns over police harassment, told The Appeal in a phone call that he wasn’t surprised that the operation didn’t turn up opioids. “Of course they didn’t, there never was any,” he said. Asked about the errant initial field test, the former deputy pointed out that “false drug findings on site happen all the time.”
“The really good ones cost money, but those take away your probable cause,” he said, referring to arrests and police searches for which error-prone drug test field kits can provide legal pretext. “It’s probably the cheapest ones they could get to do the minimum standards for an investigation.” Clay County Sheriff’s Office spokersperson Keith Smith said that the department recently acquired field kits from a Florida company called MEDTECH Forensics, but did not confirm whether these devices specifically were used during the January 5th drug bust.
The former deputy also argued that the marijuana charges were overkill. According to sheriff’s office documents reviewed by The Appeal, 34.8 grams of marijuana were found in the house, yet two individuals arrested in the house were charged with possession of more than 20 grams of marijuana.
The drug quantities found suggest the raid targeted a house of small-time users, not major traffickers, Joe Frank Martinez, a border sheriff in Val Verde County, Texas, said in a phone interview with The Appeal. “This would probably would be personal use,” said Martinez. “If you’re talking about ounces, that’d be users.”
Martinez added that in his jurisdiction, SWAT teams and armored vehicles would not be used for low-level users, unless police had clear reason to believe there was a threat at hand. The Clay County Sheriff’s Office Facebook post about the raid justified the need for the “safety equipment” citing past reports of shots being fired and fights taking place at the house. In addition to the use of armored vehicles and SWAT team personnel, four flashbang grenades were used during the raid, despite the fact no guns or other weapons were found during the operation, according to police records reviewed by The Appeal.
Individuals swept up in the raid argued that Daniels’s public presentation of their home as a drug house was overblown and complained about what they perceived as intrusions on their privacy. “I don’t understand why they have to take camera footage of my house,” said one young man, who told News4Jax that he was facing charges.
This raid is not Daniels’s first success, at least in terms of social media publicity. Last summer, Daniels shared another video of himself describing the aftermath of what he called another narcotics operation in which he issued his trademark warning to criminals and gulped down a thermos of coffee.
Through such highly publicized operations, Daniels has jumped into the national spotlight as a drug warrior. At a press conference last year, he announced homicide charges were being brought against a drug dealer whose client had overdosed after taking fentanyl, according to the Florida Times Union. Daniels appeared on HLN, a CNN-affiliated national news network, to discuss the case and his department announced that its detectives would investigate all 49 overdose deaths from 2016 as homicides. Since his election in 2016, the office’s drug-related arrests have increased.
These public appearances have attracted significant publicity from local press and media. But some locals express skepticism about the sheriff’s frequent attempts to stay in the spotlight. The former Clay County deputy called the raids “a damn joke.”
“He’s creating a self-aggrandizing mythology,” said the former deputy. “It’s all choreographed—such a chicken shit bust, instead of the MRAPs [military vehicles] and a SWAT team, they could have used two deputies for that.”
On Nov. 10, 2015, Joseph Ponte, then New York City’s Department of Correction (DOC) commissioner, addressed a packed hearing of the Board of Correction to discuss violence on Rikers Island. Soon after Ponte began speaking, three people walked toward the front of the room, unfurled a banner for the Campaign to Shut Down Rikers, and chanted “Hell no to the status quo! These prison walls have got to go!” They kept chanting, even getting louder, as they were kicked out of the meeting. Before they were escorted out, though, two more people in the crowd stood up, and raised a sign bearing the face of Kalief Browder, a Bronx teen who spent three years on Rikers, much of it in solitary confinement, for allegedly stealing a backpack. Browder took his own life soon after his release, a tragedy that helped catalyze the movement to close the jail. The protesters began shouting reasons Rikers Island needed to be shut down: “Rikers is racist!” “Rikers is a torture chamber!”
The activists were part of a group called the Campaign to Shut Down Rikers, a coalition including Akeem Browder, Kalief’s brother; advocates from Millions March NYC, a grassroots collective; and members of Jails Action Coalition, an alliance of incarcerated and formerly incarcerated people and their supporters. The campaign’s mission was to get the notorious Rikers Island jail complex shut down for good. But in addition to closing Rikers, the coalition also had a more radical demand: that the city divest entirely from police and prisons and invest in communities. The campaign demanded that the money being put into incarcerating and policing people be used for education, healthcare, housing, and other basic needs.
Organizers had long targeted Rikers Island for reform. Groups like Resist Rikers had been holding rallies at the jail complex since 2014, calling attention to its use of solitary confinement and the infamous brutality of its guards. Jails Action Coalition had been organizing against the DOC’s solitary confinement practices for the previous two years, and its members were some of the first people to publicly call for Rikers’ closure. For the next year, the Campaign to Shut Down Rikers would organize vigils, marches and rallies, including one in which they dropped off a coffin at City Hall bearing Browder’s name.
But as the movement gained momentum, it also lost its focus. At the beginning, calls to shut down Rikers Island came from grassroots activists with an abolitionist agenda. Prison abolitionists aim to make police and prisons obsolete by addressing the root causes of social ills. By 2017, when Mayor Bill de Blasio announced the city’s “Roadmap to Closing Rikers Island” within 10 years and open four new neighborhood jails, advocates say, the plan to close Rikers had been defanged and distorted.
“The topic of shutting down Rikers has breached and found some permanence in mainstream conversation,” the #ShutDownRikers group wrote in a public statement in 2016. But that wasn’t necessarily a good thing. “A variety of liberal political figures began weighing in, rapidly co-opting the work of the grassroots movement that valued, above all else, community inclusion,” the statement continued. “The conversation [about] closing Rikers has become increasingly synonymous with building new neighborhood jails, which is entirely incompatible with our campaign’s abolitionist perspectives.”
Same goal, different paths
Calls to shut down Rikers started to grow louder in the fall of 2015. City Council member Daniel Dromm began to speak out in favor of closing Rikers, and it became a frequent recommendation from advocates at Board of Correction meetings.
On Nov. 18, 2015, Glenn Martin, then president of JustLeadershipUSA (JLUSA), a group focused on ending mass incarceration, spoke at a conference about whether to reform or shut down Rikers Island. Participants included City Comptroller Scott Stringer, who agreed that Rikers should be closed. It was a precursor to JLUSA’s not-yet-public campaign, #CLOSErikers, which quickly took off. The nonprofit received grants in late 2015 and 2016 from the Open Philanthropy Project, which also helps fund The Appeal, to support its campaign, as well as multiple grants from the Ford Foundation since at least 2014. With this support, JLUSA led a coalition of 50 other organizations and publicly launched its #CLOSErikers campaign on April 14, 2016, with a rally at City Hall.
But the goals of the earliest advocates fell by the wayside. “Unlike us, [JustLeadership] never took a clear stance from the beginning on building more neighborhood jails,” said Nabil Hassein, an organizer who worked on the Shut Down Rikers campaign. “We were always very clear and explicit about [opposing new jails] from the beginning and we didn’t see that from them. And when you have these well-funded nonprofit groups coming in, in a lot of ways, they had more capacity to do things than we did.”
When then-Council Speaker Melissa Mark-Viverito made her State of the City address on Feb. 11, 2016, Kalief Browder’s mother was in the audience. Mark-Viverito dedicated a section of the speech to Kalief, saying, “Kalief entered [Rikers] as a child, but left as a broken man. A few months later, Kalief died by his own hands. It was not one failure which led to his death; it was generations of failures compounded on one another.”
Mark-Viverito announced that she would be forming a commission led by former New York State Chief Judge Jonathan Lippman (later dubbed the Lippman Commission) to identify ways to reduce the population on Rikers Island so that closing the jail complex could become a reality. It consisted of 27 commissioners, including Martin, along with representatives from nonprofits like the Vera Institute for Justice and the Legal Aid Society. The commission also included multiple judges from New York City courts, a former U.S. attorney, the president of the Ford Foundation, and the president of the Citizens Crime Commission.
Meanwhile, the #CLOSErikers campaign had grown into a coalition with more than 170 partner organizations, including some of the city’s biggest nonprofits. JLUSA’s support from foundations also grew, with grants from the Chan Zuckerberg Initiative and Google’s charitable arm, Google.org. Over the next year and a half, the campaign organized rallies outside de Blasio’s fundraisers when he was up for re-election. Its members confronted the mayor at his Brooklyn gym and attempted to confront him at his polling station to persuade him to shut down the jail complex. They also put up billboards in Harlem and Times Square urging de Blasio to close Rikers.
Martin saw closing Rikers as a moral imperative that would involve multiple reforms to New York City’s criminal justice system, like reducing the use of cash bail. He called for increased social services and public investment in healthcare, education and jobs, but saw at least some of those services being delivered through community-based jails. “There is no question that access to job training, healthcare, drug and alcohol and mental health treatment are among the important services that will be easier to provide in community facilities rather than at Rikers Island,” Martin said in a 2016 interview with Grist.
But organizers with the Campaign to Shut Down Rikers say Martin, who had become the leader of #CLOSErikers, was too quick to agree to replacing Rikers with other jails.
“All the problems with Rikers are symptoms of the larger problem of incarceration,” Hassein told The Appeal. “The only reason to build new jails is because the city is actively planning to incarcerate more people rather than actually addressing the issues that lead to incarceration.”
“I’m not saying that people in jail shouldn’t have access to services, but you’re putting human beings in a cage,” he added. “What kind of mental health effects do you expect? If you want to improve their mental health, why are you keeping them in a cage?”
Five Mualimm-ak, a Jails Action Coalition member, echoed those concerns. He told The Appeal that by investing in new jails, the city will end up simply “shipping old problems and old brutal cultures to a new address.”
For JLUSA, a gradual approach seemed more pragmatic. “Glenn and campaign leaders directly impacted by Rikers felt an urgency to get people off of Rikers as a human rights imperative being that the culture of violence and toxic air conditions they experienced are intolerable,” Brandon Holmes, the #CLOSErikers campaign coordinator at JLUSA, told The Appeal. “On the way to creating the conditions and support for complete decarceration of New York, we must demand the least restrictive conditions, and keeping anyone who is detained close to their homes, their families, and their community-based support services.”
In December 2017, Martin resigned from JLUSA after being accused of sexual misconduct. He declined to comment for this story.
But organizers’ critiques of the #CLOSErikers campaign extend beyond Martin or JLUSA’s decision to support community jails; they question the group’s ability to decouple itself from its funders’ interests. “The police and the prisons, at the end of the day, exist to preserve the existing social order, which is one that benefits rich people and harms the people being incarcerated,” Hassein said. “I think there’s an inherent tension in trying to have an organization be against incarceration while also being accountable to wealthy donors as opposed to being accountable to the communities that they’re working in.”
The 27 Lippman commissioners met for over a year—going on jail visits, analyzing data and hosting town halls. When their report came out in April 2017, their recommendation on what should be done with Rikers was clear.
“We have concluded that simply reducing the inmate population, renovating the existing facilities, or increasing resources will not solve the deep, underlying issues on Rikers Island. We are recommending, without hesitation or equivocation, permanently ending the use of Rikers Island as a jail facility in any form or function,” the report said. “The Island is a powerful symbol of a discredited approach to criminal justice—a penal colony that subjects all within its walls to inhumane conditions.”
The report was split into three categories: reducing the jail population in New York by “creating off-ramps” before arrests occur and shortening pretrial detention; building more humane jails; and reimagining Rikers Island as a place for development.
In order for Rikers Island to close, however, the jail population would have to decrease significantly. The Lippman Commission’s suggestions for reducing the jail population included eliminating bail in favor of pretrial supervision, which can mean house arrest, curfews, electronic monitoring, or required drug treatment. “It should become the default option, replacing money bail, for those who are charged with misdemeanors and nonviolent felonies, as well as for some young people charged with more serious offenses,” the report states. (Most people charged with misdemeanors now get released on their own recognizance, depending on the outcome of their risk assessments.)
But even with fewer people detained pretrial, its authors asserted, the city would still need new and renovated neighborhood jails to close Rikers. “The Commission believes that confinement is necessary when individuals are a threat to others, but that its use should be a last resort,” the report stated.
To reduce the jail population, the commission also recommended that the city use risk-assessment tools to determine a defendant’s risk of re-offending, risk of future violence, and risk of future domestic violence. Currently, the criminal court system uses a tool that assesses whether a defendant will show up to court dates. Other recommendations included elimination of all sentences with a jail time of 30 days or less.
Hassein and other advocates from the Shut Down Rikers campaign saw the recommendations as insufficient. “The movement to abolish bail is important and is a step towards abolition,” Hassein said, “but I feel like the expansion of pretrial supervision is just more surveillance and repression of communities.”
The mayor’s plan
By this point, Mayor de Blasio, who had described closing Rikers as a “noble concept” but virtually impossible to achieve, was having City Hall staff research possible jails to replace the complex. For the past four years, de Blasio has been trying to implement reforms on Rikers to address its “culture of violence.” The reforms, some of which were described by advocates as punitive to the people housed there, were generally considered a failure. Just two days before the Lippman report was released publicly, in what observers considered a capitulation to public pressure and an attempt to save face, he came out in favor of closing Rikers but said the process would take 10 years, a timeline that dismayed many activists.
“Ten more years means at least $10 billion of taxpayers’ money wasted on a failed jail system. Ten more years means over 400,000 New Yorkers going to Rikers. He won’t even be in office in 10 years so the 10-year timeline doesn’t make sense,” Darren Mack, an organizer with JLUSA, told The Appeal.
Three months later, on June 22, 2017, Mayor de Blasio officially released his plan to close Rikers, but it wasn’t until February 2018, that the mayor announced that he had reached an agreement with the City Council to build new “community-based facilities.”
De Blasio’s plan to close Rikers consists of a neighborhood jail in every borough except Staten Island. In Brooklyn and Manhattan, this would mean significant renovations on two currently operating jails. In the Bronx, the city would build a new facility and in Queens, the city would reopen and renovate the Queens Detention Center. The Vernon C. Bain Correctional Center, a jail in the Bronx known as “The Barge” would remain open. The result would be five DOC jails with a total capacity of 5,000 people. Council members responsible for the various jail locations reached an agreement with the mayor to conduct a single public review process for all four sites to expedite building the new jail facilities.
Even if it is sped up slightly, however, many organizers are not impressed with de Blasio’s plan. For the people who first called to shut down the island, the idea of “neighborhood” jails sounds absurd.
“There is no such thing as community jails,” Mualimm-ak of Jails Action Coalition told The Appeal. “We live in a city with well over 60,000 homeless people and thousands more living in someone else’s home. There are more vital needs that aren’t being addressed in New York City than investing in properties that will hold people instead of helping people.”
Mack said Mayor de Blasio did not consult with campaign members or the people most directly impacted before releasing his plan. “The #CLOSErikers campaign [doesn’t] support the mayor’s proposal,” he told The Appeal. “We believe in human rights and dignity and that no one should be on Rikers, which is completely inhumane and irredeemable. It’s the Abu Ghraib of New York City. … We don’t want Rikers or the culture of violence to be moved from that toxic wasteland into our communities. We don’t need 21st-century jails. We need 21st-century communities.”
Patrick Gallahue, a spokesman from the mayor’s office, noted that its Implementation Task Force includes nonprofit advocates—some of whom were formerly incarcerated—service providers, and government officials like the city’s five district attorneys and the New York Police Department commissioner. “Before and after the Roadmap’s publication, the City has met with and worked closely with a broad group of leaders,” Gallahue wrote in an email. “This has been carried out both in private meetings as well as public events. We are by no means finished. … That will continue and expand very soon. While the work is firing on all cylinders, we welcome input and there remain many opportunities to be involved.”
In order for de Blasio’s plan to work, the jail population, currently at about 9,000 would have to shrink by around 44 percent, according to the mayor’s office. (Former Correction Commissioner Martin Horn says the city could squeeze in 3,000 more beds, if necessary, under current zoning laws.) This is where the city’s other planned reforms come in. In the Roadmap to Closing Rikers Island, the mayor’s office outlines a number of changes aimed at achieving a 50 percent reduction in the jail population in ten years. The reforms include: making it easy to pay bail, replacing short jail sentences (30 days or less) with programs that reduce reoffending, improving the city’s assessment tool to determine flight risk, reducing case delay, and speeding up the transfer of people who violate their parole to state prisons (thereby reducing their time spent in New York City jails).
The Roadmap also envisions building more humane jails by expanding mental health units in DOC jails, for instance, allocating $100 million to a new correction officer training academy, and bringing all facilities including the eight jails on Rikers Island to a state of good repair as an interim measure before the complex is closed.
But these reforms mainly focus on speeding up the process of putting someone through the system and then improving their experience—not stopping people from getting in contact with the system in the first place.
That doesn’t sit well with the first generation of activists who tried to close down Rikers, or the second generation. While JLUSA stands by the Lippman Commission’s report calling for neighborhood jails, Mack said the report was a compromise that did not include all of JLUSA’s demands. As for Mayor de Blasio’s plan to close Rikers: “Our campaign is committed to justice and systemic change, not just reform. The mayor’s Roadmap lacks serious investment into communities that have been historically under-resourced,” he told The Appeal. “It falls short on ending the mass criminalization of communities of color and poor people in this city.”
A ‘vicious cycle’
All the activist groups contacted by The Appeal expressed disappointment in de Blasio’s plan. Many noted one glaring omission: There was no mention of ending broken windows policing, or other aggressive NYPD policing practices, in the plan to reduce the number of people incarcerated in New York City.
Critical Resistance New York City, a prison-abolitionist group, has demanded that Rikers be shut down and not replaced with new jails and that the NYPD end policies like broken windows policing and community policing which, the group wrote, “only increase police presence in our neighborhoods and broaden their jurisdiction over virtually every aspect of our lives, especially in communities of color.”
Although de Blasio and the city’s police have said they stopped arresting people for possession of small amounts of marijuana, for example, they continue to do so. The NYPD also continues to arrest a large number of people for “fare-beating,” going so far as to pressure Manhattan District Attorney Cy Vance’s office to continue prosecuting fare-beating arrests after the DA announced reforms.
“When you just look at the scale of resources that the city is investing in incarcerating our communities versus the scale of resources that go to things like education, to jobs, to health care including mental health care—or you know, the damn subway,” Hassein of Shut Down Rikers said. “Instead of locking people up and sending them to Rikers Island over $2.75 subway fare, maybe that money could be going to free subway fare.”
In 2017, JLUSA launched the #FREEnewyork campaign to demand statewide bail reform, speedy trial reform, and discovery law reform. “#CLOSErikers is in the process of gathering community input through forums in majorly impacted neighborhoods and we are prioritizing a mapping of needed community resources. We are pushing for decarceration in all ways,” Holmes said. “We are calling for an end to broken windows policing, ensuring diversion before arrest, etc. Building communities includes repairing the harm caused by Rikers Island.”
Despite all that has occurred in the fight to close Rikers, grassroots activists have held tight to the abolitionist goals of the movement. Community groups have voiced their opposition to new jails being built in their communities while also demanding that Rikers Island be closed.
Although the Campaign to Shut Down Rikers officially disbanded in June 2016 after releasing a statement, members of the coalition have continued to organize with other groups. The group now plans to strategize “effective next steps in confronting agendas that promote re-incarceration, such as smaller community jails and other rebranded extensions of the racist police state,” Shut Down Rikers wrote in its statement. “We continue to demand that the City of New York divest from jails and instead, invest funds into communities that are sorely lacking adequate educational, health and mental health, and employment resources and services—all of which would serve to ultimately decarcerate NYC.”
“The problem is not the facilities; this is a vicious cycle and there’s no way to reform a system that isn’t meant to work,” said Reuben, a Critical Resistance comrade incarcerated in New York, who provided only his first name. “Rikers is only a holding place for victims of an unjust system. Closing down a jail is not really addressing our real problem.”
Our criminal justice system is broken. America has the highest incarceration rate in the world with 2.2 million people in its prisons and jails. The quality of justice that a person receives more often than not depends upon his or her income – whether, for example, he or she can post bail or pay for an attorney. Public defenders carry huge caseloads and often don’t have investigators or other resources to provide a zealous defense. Since 1989, 2,218 innocent people have been exonerated after being wrongfully convicted. And the system is fraught with unwarranted racial disparities at every step of the process from arrest to sentencing.
The causes of the many problems in the criminal justice system are varied and complex, but research shows that discretionary decisions by criminal justice officials play a significant role. Legislators pass harsh sentencing laws (with penalties much lengthier than sentencing laws in other Western countries), police officers engage in racial profiling, and judges often care more about efficiency than justice. But the most powerful official in the criminal justice system who makes the most critical decisions that often lead to unjust results is the prosecutor.
The power and discretion of prosecutors cannot be overstated. They essentially control the criminal justice system through their charging and plea bargaining decisions. These decisions are arguably the most important ones by any criminal justice official, and prosecutors make them behind closed doors with no accountability. A police officer may arrest an individual if the officer has probable cause to believe that person has committed a crime, but only prosecutors decide whether an individual will be charged. Prosecutors may accept or reject the recommendation of the arresting officer. Prosecutors may bring more or less serious charges against the individual. But they are not required to charge an individual even if they have probable cause to believe the person has committed a crime. The decision to charge is totally within their discretion.
The charging decision has tremendous consequences for an individual accused of a crime. Because there is a proliferation of criminal laws in both the federal and state criminal justice systems, prosecutors have a wide range of options when making decisions. For example, if a police officer arrests an individual who is in possession of 10 bags of cocaine, the officer may recommend that the prosecutor charge the individual with possession with intent to distribute cocaine — a felony that carries a mandatory minimum penalty of 10 years in prison in some jurisdictions. The prosecutor may accept the officer’s recommendation or may decide to charge the individual with possession of cocaine — a misdemeanor with a maximum penalty of one year. The prosecutor may also decide not to charge the individual at all. The ramifications of this decision are far-reaching and permanent. If the prosecutor brings the felony charge, the defendant not only faces the possibility of at least 10 years in prison, but may also be saddled with a felony conviction and all of its associated collateral consequences upon release. These consequences may include difficulty securing employment, losing the right to vote, and losing eligibility for public housing and benefits, among others. If the defendant is not a citizen, he or she may face deportation.
Despite the importance of the charging decision and its life-changing consequences, prosecutors are not required to explain or justify their decisions to anyone (other than possibly their supervisors), nor are they required to follow rules or guidelines when making these decisions. The charging decision is not made in open court, nor is there any public record of why or how the decision was made. These decisions are made in the prosecutor’s office, without any transparency.
Prosecutors also control the plea bargaining process. Plea bargaining involves prosecutors making deals with defendants that permit them to plead guilty to a less serious charge in exchange for the prosecutor agreeing to dismiss the more serious charge or charges. In theory, plea bargaining may be beneficial to the defendant, the prosecutor, and the entire court system. The defendant is not facing conviction on all of the charges, the prosecutor is guaranteed a conviction, and the court saves the time and resources required for a jury trial. The reality, however, is that plea bargaining is frequently an unfair and one-sided process. Like the charging decision, it is controlled entirely by the prosecutor. Prosecutors are not required to offer a plea bargain, and they are not required to justify the decision to anyone. Judges may not compel prosecutors to offer a deal, and in most jurisdictions judges are not involved with the plea bargaining process at all.
Prosecutors need only meet the very low standard of probable cause to bring charges against the defendant. However, to convict the defendant of those charges at a trial, prosecutors bear the much heavier burden of proving guilt beyond a reasonable doubt. Because they only have to meet the low probable cause standard, prosecutors frequently bring charges they know they may not be able to prove beyond a reasonable doubt. When facing an overwhelming number of charges, each of which may carry a long prison term and/or mandatory minimum sentence, defendants often feel pressured to plead guilty. Going to trial is risky because the defendant doesn’t know what a judge or jury may decide, regardless of the strength or weakness of the evidence. Imagine a defendant charged with five drug offenses, each carrying a mandatory minimum sentence of 10 years. If that defendant goes to trial and is convicted of all five charges, he will go to prison for 50 years. If the prosecutor offers to dismiss four of the charges in exchange for the defendant’s guilty plea to one, it is easy to see how even an innocent person might plead guilty. And most people do. Ninety-five percent of all criminal cases are resolved with a guilty plea.
In addition, the overwhelming majority of criminal defendants are indigent and represented by overworked court-appointed attorneys with few or no resources to investigate their cases. Defendants sometimes plead guilty in cases where they may very well have prevailed at trial, simply because their lawyers do not have the time or resources to mount an investigation that might reveal weaknesses in the government’s case and/or a defense to the crime. Prosecutors often increase the pressure on defendants by placing arbitrary deadlines on plea bargains, requiring the defendant to accept or reject the plea by a certain time or risk losing the deal. This puts defense attorneys in the unethical position of advising their clients about a plea offer before they have had the opportunity to investigate the case to determine whether there is a defense. Under these difficult circumstances, it is not surprising that so many defendants plead guilty. The alternative is just too risky. This is what passes as justice in America every day.
Prosecutors could make a big difference in improving our broken system if they made fairer charging and plea-bargaining decisions. Prosecutors could choose not to bring charges in cases involving minor offenses, instead permitting the defendant to perform community service, do restitution and/or participate in needed treatment programs. They could stop requesting that poor defendants be held in jail for minor offenses simply because they can’t post bail. They could ask for alternatives to incarceration in appropriate cases. So why don’t they? Because we don’t hold them accountable.
Ninety percent of all criminal cases are prosecuted on the state and local level, and prosecutors are elected officials in all but four jurisdictions (New Jersey, Alaska, Connecticut, and the District of Columbia). And yet, as James Forman Jr. noted in his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, most of our attention is focused on federal legislation and executive orders from the Oval Office instead of the many and much more important decisions that take place at the local level. Unfortunately, most people don’t pay attention to local prosecutor elections. Prosecutors frequently run unopposed and some serve for decades without a challenger. On the rare occasion when they are challenged, they have all of the advantages of incumbency and are difficult to unseat.
We must hold prosecutors accountable by becoming more involved in elections. We must become more informed about the duties and responsibilities of prosecutors so that we are equipped with the necessary information to ask questions and demand responses. Because prosecutors have so much power, if we elect people who are committed to fairness and racial justice, they can make substantial progress toward reforming the criminal justice system.
According to the Supreme Court, the prosecutor’s duty “is not that it shall win a case, but that justice shall be done.” In recent years, a number of progressive prosecutors who understand this duty have been elected in jurisdictions across the country. These individuals are committed to using their power to reduce the incarceration rate and the many unwarranted racial disparities in the criminal justice system. Prosecutors like Kim Foxx in Chicago and Larry Krasner in Philadelphia campaigned on themes of racial justice and reducing incarceration and won their elections. Each of them has made important policy decisions that have already begun to make a significant difference. For example, Krasner instructed his prosecutors to make plea offers to defendants that include proposed sentences below “the bottom end” of the sentencing range for each crime. Foxx stopped prosecuting misdemeanor driver’s license offenses and raised the bar for charging felony retail theft offenses to $1,000 from $300, drastically decreasing the number of retail theft cases. Their successes have inspired others who are committed to racial fairness in the criminal justice system to run for office. Many, such as Genevieve Jones-Wright in San Diego, whose platform includes significant reform of the cash bail system, are running this year. If this trend continues, perhaps the democratic process can work to effect change. If those of us who care about fairness and racial justice work to elect progressive prosecutors and hold them accountable, with time and hard work, we can fix this broken criminal justice system.
We were both speeding on the highway’s one-lane exit ramp, but apparently I wasn’t going fast enough.
The driver behind me was furious. He rode my bumper, revved his engine impatiently and, when the road widened, raced next to me to roll down his window and glare.
Then he sped in front of me, only to slam on the brakes. He slowed and when he switched lanes, I grabbed my phone and opened the camera app. When our cars were parallel, he flashed a gun at me. A big gun.
I have clear photos of his black Mustang, his white license plate, and his brown face.
What I didn’t have — and still don’t have — was confidence in the police when it comes to interacting with people of color.
And that’s why I agonized over whether to call police when this young Black man menaced me on a busy Memphis highway in early May. I did not want to set in motion a chain of events that had even the most remote chance of ending in this brother’s death. And that’s what I’d be doing if I filed a police report.
This does not feel rational. I am aware that most police-civilian interactions end peacefully. It doesn’t seem fair that I’d be so concerned about this driver’s future when he had no concern for mine.
Was this some twisted racial solidarity? A meaningless stand against police brutality? A one-woman protest against mass incarceration? A warped and gendered desire to protect Black men, to rush to their defense regardless of whether they rush to Black women’s sides? Was my decision being unduly influenced by disturbing recent events in which white people used law enforcement as a weapon to police spaces intended for other white people?
But my road rage encounter happened before a slew of harrowing incidents involving white people calling the police on people of color. It happened before a white Yale grad student called police on a black grad student who had fallen asleep in a dorm’s common room while studying. And before news broke that a white woman in Oakland called the cops on Black men who were barbecuing in a public park, a Nordstrom Rack employee called the police on three black teens wrongly suspected of shoplifting, and, in my hometown, a white woman phoned the Memphis police about a Black real estate investor inspecting a neighboring home.
Ultimately it was my brother, a former public defender, who convinced me to at least call the police. A guy reckless enough to pull a gun on a busy street in broad daylight is dangerous, my brother reasoned. What if he went on to hurt someone else? In Memphis, where the population is two-thirds black, that victim would likely be African-American too. Should my allegiance lie with a potential victim? The gun-toting driver?
And so, hours after the incident, I called the police — and then immediately worried some more: What if his encounter with the police somehow turned bad?
When two officers — one white, one Black — came to my house, I met them outside. I hoped that if my white neighbors saw my body language, they would know that I was talking to police as a victim, not being interrogated as a suspect. But as I tried to explain to the cops what happened and how I wasn’t sure if I should have called them, my nerves turned into tears.
Whoever this angry motorist was, flashing a gun isn’t a capital offense, I told the officers. I even cautioned the cops that if they spotted the black Mustang I described it might not be the same driver at the wheel.
Rambling, I felt obligated to point out things about how they might carefully conduct the investigation that they surely already knew, as if casting these facts into the air would be insurance against the worst-case scenario. I then mumbled something about Philando Castile — who was shot and killed in 2016 after a Minnesota cop mistook him for a robbery suspect — and the white officer looked puzzled. The Black officer nodded and said he understood.
If I filed a report, the white officer told me, police would look for the car and contact the registered owner. If they found the driver, a warrant would be out for his arrest.
But filing a report meant creating a public record complete with my name and address, the information this hothead might use to find me. I said no, I wouldn’t be filing a report, both because I was concerned for my safety and the collateral consequences for the driver. They said they understood, and if I changed my mind, to call the non-emergency number the next morning.
I don’t know if I did the right thing. I guess it’s better safe than sorry — except I don’t feel safe.
On May 23, 2013, Khari Illidge, a 25-year-old Black man in Lee County, Alabama, was face down and hogtied, with a 385-pound police officer kneeling on his back, when he suddenly went limp and a mixture of white froth and blood seeped from his mouth.
Sheriff’s deputies had confronted Illidge while he was running in the street naked, unarmed, and, the deputies agreed, suffering a mental health crisis. When Illidge did not heed commands to stop, the deputies used the electric shock of their Tasers to subdue him. They tased him 19 times, 13 of which came after he was on the ground with two officers on his back. One officer later testified that tasing Illidge on the ground served no purpose other than to inflict pain and shut down his nervous system.
The officers then handcuffed Illidge and shackled his feet behind his back in the hogtie position because he was “thrashing” and making “unintelligible” utterances. Officers called paramedics when they saw the blood in his mouth, and he was pronounced dead soon after.
Illidge’s estate brought a federal civil rights suit against the officers involved in his death, citing Fourth Amendment precedent that police may use force only to serve a legitimate purpose. But both the trial court and court of appeals granted the officers “qualified immunity,” which shields officers from civil liability unless their conduct clearly violates the Constitution.
Last week, the NAACP Legal Defense and Educational Fund (LDF) filed a petition asking the Supreme Court to review the grant of immunity. The case is the latest test of the Court’s role in the nation’s ongoing struggle to hold police accountable for fatal violence, particularly against young African American men. It also highlights a question that has gained urgency among legal commenters and some members of the Court: Will the Supreme Court use its discretion equally to protect victims of police violence as it does to protect the rights of police?
In recent years, the Supreme Court has quietly carved out a special space on its docket to enforce the civil immunity of police officers, going out of its way to ensure that lower courts strictly apply immunity. Law professor Will Baude has called it the Court’s “immunity-protection program.” With Illidge’s petition, the Court can take the same steps to enforce the rights of someone killed by police, or it can allow the lower court’s grant of immunity to stand, and further entrench its role defending officer immunity and undermining police accountability.
For decades, the Supreme Court has favored a strong version of immunity in civil rights cases against police and other government officials, with any immunity case before the Court a nearly foregone conclusion. By one count, the Court has conclusively denied immunity just twice in over 30 opportunities in the last 36 years. The Court’s robust view of qualified immunity has made it harder to sue police officers for violating constitutional rights than for causing injury through ordinary negligence.
But under Chief Justice John Roberts, the Court has deployed an additional tool to protect officers from liability: summary reversal. Ordinarily, the Court takes cases to resolve clear disagreements among the federal appellate courts, or to decide a pressing legal issue of national significance, and then decides after full briefing and oral argument. Not so with official immunity. Instead, the Court has effectively patrolled the lower courts on the issue, looking for mistaken denials of immunity and then summarily reversing them. The Court has done this six times since 2013, including in April of this year. In one case, an officer ignored superior commands and shot at a fleeing car six times from an overpass, killing the driver, rather than allowing the car to hit spike strips in the road. In the most recent case, an officer shot a woman four times while she stood in her front yard with a kitchen knife; it was unclear whether she even knew officers were there.
Justice Sonia Sotomayor has become a vocal critic in dissent. Last year, she called out the Court’s double standard when it declined to review immunity granted to an officer who shot an unarmed man in the back while he walked away from the officer. It is a “disturbing trend,” she wrote, that the Court has “not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force,” yet “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.”
In April, when the Court summarily granted immunity in another officer shooting, Justice Sotomayor decried the Court’s “unflinching willingness” to intervene on behalf of police in excessive force cases. The “one-sided approach to qualified immunity,” she wrote, “transforms the doctrine into an absolute shield for law enforcement officers” and “tells officers they can shoot first and think later.”
For the most part, the Court’s majority has not concealed and has in fact defended its zeal to shield officers and prioritize immunity over accountability. An opinion last year explained that “in the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases … because qualified immunity is important to society as a whole.” And in 2015, Justice Samuel Alito wrote that “the Court often corrects lower courts when they wrongly subject individual officers to liability.”
But in response to Justice Sotomayor last year, Justice Alito made a curious denial of what appears to be an obvious a double standard. He said the Court “applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct,” and challenged Justice Sotomayor to identify “a single case” where a victim of unconstitutional policing raised the same sort of error that has triggered Supreme Court intervention when claimed by police.
Lawyers for Khari Illidge’s estate argue their client’s claims present just such a case.
Whether the Court applies a uniform standard going forward — correcting errors not just to protect police but also victims of police brutality — is not just an academic matter. The small number of cases the Court decides have far-reaching consequences, affecting the relationship between police and communities across the country. Daniel Harawa, assistant counsel at LDF, said the Court’s failure to review Illidge’s death would not only condone the officers’ conduct in his case, but “could cause the public to wonder when, if ever, police officers will be held accountable for their unnecessary use of deadly force.”
The history of child sex abuse legislation in the United States follows a well-worn pattern: a chilling incident rouses public anger and fear, to which lawmakers respond with expansive, emotionally charged legislative action.
The 1994 Jacob Wetterling Act, the first law to establish federal guidelines requiring states to implement sex offender registries, was named after an 11-year-old Minnesotan who was kidnapped and murdered by a suspected pedophile. Megan’s Law, mandating public notification about registered sex offenders when deemed necessary, was introduced directly in response to the brutal rape and murder in New Jersey of 7-year-old Megan Kanka by a recidivist sex offender neighbor. And the expansion of the sex offenders registry to include juvenile registrants came in part in response to the assault of an 8-year-old Wisconsin girl by a 14-year-old boy.
It’s an understandable pattern, but a dangerous one. Premised on extreme horrors, sex offender laws have constructed an overreaching, excessively punitive registry system, which empirical studies and human rights advocates have found may cause more harm than good. Nonetheless, public support for a wide range of sex offender policy and law is consistently high, and the pattern of reactive legislation is rarely challenged. Such is the case at present in Michigan, where a flurry of legislation has been proposed in response to the case of Larry Nassar, the sports doctor accused of molesting more than 300 children and young people over a two-decade period.
Nassar is already in prison for the rest of his life, serving a 60-year federal sentence for child pornography and related obstruction-of-justice crimes, and two state sentences of up to 175 years for criminal sexual misconduct. Yet, his case has led to calls for reform.
“This package of bills delivers justice, justice for the children who were sexually assaulted,” State Senator Margaret O’Brien (R-Portage), a lead sponsor for some of the bills, said when the legislation passed the Senate in March.
She was joined at a press conference announcing the legislation by some of Nassar’s victims, who expressed a desire for justice beyond his slow death behind bars. “Together we will change our laws and our culture so that every child will be valued, respected and protected,” said Jordyn Wieber, an Olympic gold medalist.
To that end, more than 30 bills are under consideration in the Michigan House of Representatives, and a package of related state Senate bills was passed with overwhelming and speedy bipartisan support in March. Some of the legislation seems sensible, such as bills expanding sex education curriculum for students and requiring public schools to maintain records about why an employee leaves or is fired. But other bills, such as extending the statute of limitations and increasing prison sentences for child pornography possession, risk regressive consequences under the patina of progressive, victim-focused reform.
“The injustice in many of the laws involving sex or sex-related offenses is that they are passed without debate,” said Lawrence A. Dubin, a law professor at the University of Detroit Mercy, “without an examination of the underlying data that would show their ineffectiveness in accomplishing their intended goals and in creating people as monsters who are often not dangerous to anyone.” The Senate Judiciary Committee approved its bills in just one day. House hearings, which are already underway, are planned to go on for a number of weeks but the package is expected to easily pass.
Representative Rose Mary Robinson (D-Detroit) is among those who have criticized the bills. She told Michigan’s Bridge Magazine that most of them were “an overreaction” and “a waste of time.” Robinson did not respond to a request for comment.
Two bills under consideration would increase the number of years people can be imprisoned and the fine levied for charges related to child pornography on the state level. The bills would have limited consequences since most child pornography charges, including the ones filed against Nassar, are already federal (because the material is spread online). Responding to a question about why these bills were necessary, O’Brien told The Appeal they are meant to offer an extra “tool” for state prosecutors.
To Dubin, whose autistic son was placed on the sex offender registry for child pornography possession, legislation like this isn’t necessary. It also poses a risk in failing to offer the possibility of diversion programs instead of criminal prosecution, even if defendants are known to have developmental disabilities. When asked about this concern, O’Brien told me that she believes prosecutors would use their discretion when it comes to bringing charges in such cases. But dozens of cases nationwide speak to the criminal justice system’s shortcomings regarding defendants with developmental disabilities. And, more broadly, the bills reflect a tendency toward carceral and punitive approaches to the exclusion of more rehabilitative and therapeutic ones.
Perhaps the most controversial aspects of the legislative package involve extensions to the state’s criminal and civil statutes of limitations for sexual conduct cases — a recognition that many of Nassar’s victims were reluctant to come forward for many years. There’s already no statute of limitations in Michigan for first-degree criminal sexual conduct, while victims of second- and third-degree criminal sexual conduct have 10 years or until the victim’s 21st birthday to seek criminal charges. Under the proposed legislation, the statute of limitations would be eliminated for prosecution of second-degree criminal sexual conduct if committed on a victim under the age of 18, and extended to 30 years (or longer if DNA evidence is found) in third-degree cases. For civil suits, two new bills would give people who were sexually assaulted as minors the ability to file a civil action against the state of Michigan at any time and would apply retroactively to any sexual assaults that happened after 1996 specifically with Nassar’s victims in mind. (He began working as a team physician for Michigan State University in 1997.)
That troubles groups like the ACLU of Michigan. They say the issue remains that the possibility of a fair trial diminishes considerably over time and the difficulty of mounting a defense grows exponentially. “As a principle, removing the statute of limitations should be done with great caution,” Kimberly Buddin, policy counsel for the ACLU of Michigan wrote in a statement to the state’s Senate Judiciary Committee. “They were enacted to ensure the ripeness of a lawsuit and protect constitutional rights such as due process,” she added, noting that any extension of the statute of limitations should come with attendant reforms to ensure due process protections.
The case for extending or eliminating the statute of limitations in sexual misconduct cases, especially involving children, has been well made: Victims often take years to report incidents and can take many more years to be believed. The fact that many of Bill Cosby’s over 50 accusers are unable to prosecute in criminal court given the statute of limitations has provoked a nationwide conversation about the problem of the temporal constraints, and a swath of state legislative reforms against them. In defense of the Michigan bills, Senator O’Brien told The Appeal that she “feels comfortable” that due process will not be threatened. “Time does not favor a victim,” she added, noting that the burden of proof remains on the state and these cases remain difficult to litigate, especially since physical evidence is usually lost in older cases.
Due process concerns have also been raised about another of the bills, which would make it easier for jurors to hear about prior accusations of sexual assault against a defendant, with a judge’s permission, even if those allegations were never brought to court. Testifying before the House on a very similar bill, Lore Rogers, staff attorney to the Michigan Domestic and Sexual Violence Prevention and Treatment Board said such changes are important in helping victims speak out and be believed. “Allowing evidence of other sexual offenses by a defendant in such a case can provide corroboration of a victim’s report and assist the trier of fact in making these difficult credibility decisions.” While it might seem reasonable that a judicial process consider whether defendants have a history of accusations, as Nassar did, the principle that a trial is limited to litigating only the alleged crimes in question is a central tenet of our justice system.
Critics say these bills, taken together, are not only misguided but represent a squandered opportunity because they distract from the deeper question of why the culture of silence around sexual abuse persists. As Guy Hamilton-Smith, the Sex Offense Litigation and Policy fellow at the Mitchell Hamline School of Law explained, “Instead of addressing the reasons why people are waiting to report or not reporting at all, we’re seeking to fix it on the back end.” He’d rather see more conversations about the lack of victim support services, police functioning as gatekeepers to rape investigations, and the misdirection of prevention policies. “To the extent that these discussions get boiled down to an argument about statutes of limitations,” he said, “I think, we miss the bigger picture.”
And what does justice entail in a criminal case newly enabled under an extended statute of limitation? While these prison sentences may bring satisfaction and relief for victims, they do nothing to address the deep flaws in our criminal justice system. As Kelly Hayes and Mariame Kaba argued here in response to Nassar’s “death warrant”-length prison sentence, “When we see defendants as symbols of what we most fear, and that which we most greatly despise, we are confronted with a true test of our belief that no justice can be done under this system.”
We find ourselves in a political moment when #MeToo, a movement against sexual violence and for survivor justice, is leaning on policing and courts at the very same time that social justice advocates push for decarceration efforts and abolition. The proposed package of bills includes some good, preventative measures. Yet at a time when Michigan’s incarceration rate has dropped to a 20-year low, we should be wary of reactive legislation that conflates justice and societal security through more imprisonment. Those who seek vengeance through incarceration attempt to vindicate themselves by pointing at the few Larry Nassars of the world who get locked away, but vile cases like Nassar should not be used to further bolster an inherently violent system under the guise of obtaining justice.
Houston has come up with a new way to make life harder for people leaving prison on parole: by forcing the programs that provide them with housing, often paired with job placement and other services, to move outside the city limits.
At the end of March, the city council approved an ordinance that imposes new regulations and inspections designed to improve safety conditions in boarding houses and other facilities. But it also requires housing for people on parole — known as “alternative housing” — or correctional facilities to be located at least 1,000 feet from parks, schools, daycares, and other re-entry housing.
Jeff Reichman, a principal with data consulting firm January Advisors, created a map at the request of advocates with public data on Houston parks and schools that drew a red dot for each school or park. There’s virtually nowhere in the city’s center where re-entry housing can now be located. “The only place they’re leaving for expanding or building new housing for these folks is out in the sticks, in the boonies,” said Jay Jenkins, Harris County project attorney at the Texas Criminal Justice Coalition.
While these types of residency restrictions are generally associated with people on the sex offender registry, other cities in Texas have also moved to isolate parolees. Similar laws exist in Dallas and San Antonio.
CrossWalk Center, which offers a number of services to help people released from prison and jail re-enter society, says the new restrictions will make life harder for its clients — and for the organization itself. Last September, it committed to opening five re-entry facilities by the end of August. In October, it secured a lease for the first facility, but it has been waiting for approval from the Texas Department of Criminal Justice (TDCJ) to be added to the official list of housing providers for people leaving prison so it can begin accepting residents.
In that time, of course, the new ordinance was developed and passed. Kathy Vosburg, executive director of CrossWalk Center, didn’t find out about the process until after stakeholder meetings were already over. She was informed in December that the application for her first facility, along with all other pending applications, was put on hold until the city council voted on the ordinance.
“We got caught in between getting our house approved and the ordinance,” Vosburg said. And shortly after the vote in March, TDCJ called to say it was denying CrossWalk’s application because of it. The good news is that she has been told by city officials the newly leased house will be grandfathered in, allowing it to stay in its current location despite failing to meet the 1,000-foot distance requirement. But her organization still has to go through a new and lengthy approval process. The house will have to be inspected by the city, after which it will get an occupancy certificate, which will allow it to eventually get a housing permit. She’ll also have to write a letter to TDCJ in order for the house to be grandfathered in despite the new ordinance.
“Our hope and our prayer is that everything goes well,” Vosburg said. “Because we’ve had it up and running [without residents on parole] and we’re paying for everything.… We’re in the red right now because this set us back.”
Meanwhile, CrossWalk’s other four facilities are going to have be placed elsewhere. “Where we’re going to have to go is outside the city limits into unincorporated areas,” Vosburg said. That presents big challenges. Houston is a sprawling city with little public transportation infrastructure and most parolees don’t have cars. It can easily take an hour and a half one way to get into the city center to, for example, meet with a parole officer — a meeting that itself can take a couple of hours. “What employer is going to hire you if it’s taking five hours weekly to get to parole and back?” she wondered.
So her organization is setting aside additional funds to buy a van and hire a driver to transport residents to the nearest public transportation.
“We won’t give up continuing to look inside the urban center,” she said. “But it was hard [to find space there] before.” Now it could be nearly impossible.
In 2016, about 67,000 people were released from the Texas Department of Criminal Justice, about 35,000 of them are on parole or supervision. Each year, around 14,000 formerly incarcerated people will come back to Harris County, which includes Houston. That’s a lot of people who need somewhere to live, especially given that parole officers often won’t allow them to stay with family and friends and it can be nearly impossible to rent an apartment with a criminal conviction. “We don’t have enough housing to house those folks as it is,” Jenkins said. “So eliminating housing is obviously not very prudent.”
The location of the housing could also impact parolees’ ability to reintegrate into society. “For [re-entry housing] to be successful, it has to be centrally located, has to be located near public transportation, has to be located near health care with access to food,” Jenkins said. “We know that when you put folks who are re-entering away from public transportation and services … they are much more likely to fail.”
Advocates aren’t the only ones concerned about what the ordinance will do. Criminal District Court Judge Kristin M. Guiney wrote a letter to the city council as it debated the ordinance, arguing that the distance requirement will hurt re-entry efforts. “As a matter of public safety, it is imperative that we all support the reintegration of formerly incarcerated individuals,” she wrote. “There are few outcomes more detrimental to public safety than further limiting the housing options for people who already face barriers to housing and employment.”
Several fires in unregulated, multi-resident housing facilities, one of which killed three people, originally spurred the ordinance. The city council at first said it was “about safety and regulations at rundown homes that are putting people in harm’s way,” explained Natalia Cornelio, criminal justice reform director at the Texas Civil Rights Project.
And some of the housing for parolees is, in fact, overcrowded, unsanitary, or dangerous. “We applaud the bad ones going away,” said Vosburg.
But somehow the location requirement got tacked on. “The 1,000-foot [rule] is precluding those of us that are doing this above board and with integrity and with the person at heart and not profit,” Vosburg said. “It’s going to make it really, really hard to replace all the bad ones.” If parolees can’t find anywhere to live, they could be sent to a transitional facility — which is more like a jail than an apartment complex, Vosburg said — or end up homeless and eventually get re-incarcerated for violating parole.
When Councilmember Brenda Stardig was asked for a response to these concerns, given that she was a main sponsor of the ordinance, her chief of staff Amy Peck responded, “Council Member Stardig is extremely concerned with the safety of those living in and around boarding homes/correctional facilities/alternative housing facilities/lodging facilities. The ordinance changes were aimed at identifying these homes and to make sure that they are safe.”
Advocates say they didn’t even find out the ordinance was under consideration until December or January, after the stakeholder meetings were already completed. “None of the providers that we dealt with heard about” the meetings, Jenkins said. Of the providers on the city’s own list of re-entry housing providers, “most don’t even know that the ordinance is a thing,” Cornelio said.
The first chance any of them got to give feedback was at public comments sessions in March just before the council voted. But Vosburg and other providers were relegated to last place in the lineup, despite being the first to sign up, and given just 10 minutes each to speak, with few follow-up questions from the council. “They didn’t really want to hear it,” Vosburg said.
“There were numerous stakeholder meetings, community meetings, and a committee meeting,” Peck said in response.
The city also wasn’t responsive to requests for analysis or evidence to back up the need for the ordinance. “We asked for a public safety rationale,” Jenkins said. None was given. No experts testified in favor of the restriction and no evidence was entered into the record that indicated a need for the distance restrictions, Jenkins said.
“It just seems like it was orchestrated from the start that it was going to pass regardless of what questions were asked and what issues were raised,” Jenkins said. “The quickness with which they were labeling these folks nuisances, it made all of us feel very bad, but also very angry.”
Advocates say this feels part and parcel with the way the city has reacted to other social problems — such as its criminalization of the homeless. “It just seems consistent with the culture of criminalizing something that’s difficult to deal with,” Cornelio said, “instead of providing a solution and investing in it.”
In the spring of 1983, Donald Mairena witnessed a shooting at New Orleans’ Latin American Club. He chased after the shooter and later told law enforcement what he’d seen. Mairena gave them his address in case they needed any more information from him. He heard nothing about the case until almost two years later, when he was arrested and jailed for nearly a month simply because prosecutors at the Orleans Parish district attorney’s office, then led by Harry Connick Sr., felt that he “might be needed as a witness if the case went to trial.”
Upon hearing Mairena’s case seeking damages from the Orleans DA for violations of his civil rights, judges on the Fifth Circuit Court of Appeals panel marveled, “The facts in this case are like a bad dream.”
Yet Mairena was far from the last witness to spend time in the New Orleans jail. More than 30 years later, the Orleans DA still regularly detains witnesses by using material witness warrants. Orleans Parish prosecutors obtain the warrants to force a person to testify in court if they believe that person has knowledge of a crime. They are meant to be used in extraordinary circumstances, such as for when a prosecutor suspects that a critical witness in a case might flee.
But since 2010, Orleans District Attorney Leon Cannizzaro has sought more than 150 such warrants to arrest witnesses, including a significant number of victims, according to a data analysis by the Yale Law School students of the legal scholar James Forman Jr. that was shared with In Justice Today.
A 19-year-old victim of sex trafficking was arrested in November 2014, shortly after giving birth to her daughter. She had failed to appear at a hearing during her pregnancy because she was supposed to be on bed rest and had a doctor’s note to prove it. Even so, she was held in jail for nearly four months until she testified against the father of her child.
Another victim who was shot with a semiautomatic rifle was jailed as a material witness on a $100,000 bond in December 2016. Two victims of assault were arrested and jailed on $250,000 bond after they tried to recant their testimony against their alleged attacker.
Cannizzaro’s office generated national outrage — and a lawsuit — in the fall of 2017 over its practice of creating subpoenalike notices to compel witnesses to meet with prosecutors. These fake subpoenas hold no inherent legal power. But the forged documents were given teeth by the DA’s indiscriminate use of material witness warrants.
These witnesses have no right to counsel because they are not accused of a crime. Some have sat in jail for days or months before trial. They are often held on exceptionally high bond, sometimes even higher than the person they are testifying against.
In theory, material witness warrants are meant to be used in rare cases when prosecutors have a reason to fear a witness won’t show up to testify at trial. But Cannizzaro and prosecutors in other jurisdictions have allegedly used these warrants to intimidate witnesses into private interrogations often without attorneys present and to pressure them to mold their version of events to the state’s theory of the crime. In short: Cooperate with the state or go to jail.
The lawsuit filed by the ACLU and Civil Rights Corps, a nonprofit organization that challenges systemic injustice in the American legal system, alleged that the Orleans DA not only issued fraudulent subpoenas, but also secured material witness warrants under false pretenses to arrest witnesses who refused to cooperate with prosecutors.
In a May 9 hearing on the fake subpoena lawsuit, a federal district judge strongly criticized the Orleans DA’s material witness warrant policy.
“What was particularly troubling to me with the material witness warrants is that people, as I appreciate it, were incarcerated for a period of time with no appearance before a judge,” said Judge Jane Triche Milazzo of the United States District Court for the Eastern District of Louisiana. “It appears to me that people picked up on material witness warrants are being treated differently than people picked up on arrest warrants for crimes. They appear to have fewer rights.”
Indeed, the Yale Law students’ analysis of 159 material witness warrant applications filed by the Orleans DA from 2010 to 2017 offers a window into how this practice often ends up harming the victims and witnesses the Orleans DA office claims it seeks to protect.
They identified at least 25 cases in which witnesses were held on a higher bond amount than the person charged with a crime. In one case, a domestic violence victim was held on a bond of $100,000–20 times higher than that of her alleged abuser, who was given a bond of $5,000. In eight cases, prosecutors sought $500,000 bonds. The records indicate judges almost never denied prosecutors’ requests for high bond amounts.
These high bond amounts meant that when people were detained on material witness warrants, they were likely to stay in jail. Some witnesses with other minor charges against them ended up staying in jail for far longer; at least seven witnesses spent over 100 days in jail. One man was detained for 43 days, about 10 percent of the time the defendant in the case received.
The data analysis by Forman’s law students also suggests that the Orleans DA primarily deploys material witness warrants against black New Orleanians. African Americans made up 78 percent of both arrested and non-arrested material witnesses. Out of 50 people actually arrested on material witness warrants, one was a white man.
In many cases, the Orleans DA requested the warrant based on nothing more than the fact that the witness had refused to meet with prosecutors privately. One warrant was issued for the victim of an attempted murder simply because the office felt he was avoiding meeting with an investigator and victim witness coordinator. According to the motion for a material witness warrant filed by Assistant District Attorney Christopher Cortez, the victim’s father told an investigator with the Orleans DA’s office they did not want to participate in the prosecution.
Another man was held on $100,000 bond to testify against a person accused of unauthorized use of a motor vehicle. The defendant was given a $10,000 bond, while the witness sat in jail for a week. The sole reason given for the warrant was that he had not shown up to private meetings with the prosecutor on the case.
The Orleans DA has continued to request warrants for witnesses even after being sued by the ACLU and the Civil Rights Corps last year. And on May 18, the ACLU issued a statement attacking “Cannizzaro’s “callous treatment of victims” and the “community members who have suffered through years of aggressive, coercive, and retaliatory treatment at the hands of the Orleans Parish District Attorney’s Office.”
Orleans DA spokesperson Ken Daley emphasized to In Justice Today that the judges are ultimately the ones granting these warrants and that the DA has “no power” to jail witnesses without a judge. “Any decision to seek a material witness warrant approval from a judge is made with great care, requiring extensive discussion of possible alternatives and ultimately requiring the personal approval of the DA or First Assistant,” Daley wrote in an email.
But the tide is beginning to turn against the practice.
Prosecutors in other parts of the country have pledged to stop jailing victims of domestic violence or sex crimes. Reform-minded district attorneys, like Distict Attorney Kim Ogg of Harris County, Texas, and candidate Joe Gonzales of Bexar County, Texas, have spoken out against the practice and have sworn never to detain a victim.
The criminal justice accountability group Court Watch NOLA has called onthe Orleans DA’s office to stop incarcerating victims of domestic violence and sexual assault, and at a minimum create a clear policy for when issuing warrants for other victims is necessary.
Louisiana lawmakers could also get involved if the Orleans DA continues detaining witnesses. Other jurisdictions around the country already have safeguards to protect witnesses from indefinite detention. Some states cap the amount of time witnesses may spend in jail, and others give them a right to counsel and a hearing to contest the warrant. New Jersey even requires that witnesses be held in “comfortable quarters and served ordinary food” rather than thrown in jail.
Still, Cannizzaro has resisted all calls for reform. Instead, he has blamed“partisan special interest groups, who strongly oppose my office’s aggressive pursuit of violent criminals” for challenging him on the issue. And his spokesperson Ken Daley argued after the May 9 federal court hearing on fraudulent subpoenas that ending the DA’s policy on material witness warrants would “dislodge the underpinning of our justice system, escalate incidence of witness intimidation, and further endanger our crime-weary community.”
“Asking a judge to detain a victim in any case is a tool of last resort, and is done only when the totality of circumstances show that to proceed otherwise would result in a dangerous defendant walking free to pose a continued threat to the safety of the community we are sworn to serve and protect,” Cannizzaro said in a statement emailed to In Justice Today. “Such occurrences are extremely rare in the nearly 7,000 cases we handle per year between Criminal District and Municipal court. But even as this issue has been grossly overstated, it would be unwise and potentially dangerous to issue any blanket policy that would prevent our ability to assess any criminal case on something other than its own individual merits.”
Several prominent victims’ rights groups disagree. Three victims’ advocacy organizations aligned with the ACLU and Civil Rights Corps against Cannizzaro in a brief filed in federal court in May, detailing how prosecutors are re-traumatizing and manipulating survivors of sexual assault and domestic violence through the use of material witness warrants.
And the groups take aim at the idea that the criminal justice system serves victims, particularly victims of domestic violence, at all. “The goals of victims often are not aligned with those of the criminal justice system,” their brief states.
A 2015 ACLU survey of advocates, lawyers, and service providers cited in the brief found that victims of domestic violence and sexual assault were especially wary of getting mired in the criminal justice system for three main reasons: They wanted “options other than punishment for the abuser, options that were not necessarily focused on separation from the abuser”; they feared “they would lose control of the process” if they continued within the constraints of the criminal justice system; and “they believed that it was complicated, lengthy, and would cause them to suffer more trauma.”
“In essence, power is shifted from the abuser to the state,” one survey respondent explained.
Far from working for them, the criminal justice system can cause even further damage to victims, the report stated. “The criminal justice system is not trauma informed and can re-traumatize a survivor of violence,” another respondent said. “Many survivors I have worked with that did go through the criminal justice system wish they had not after the fact because it negatively impacted their ability to heal from trauma.”
Further punishing traumatized victims simply confirms their worst fears about participating in the system. As the victims rights’ groups wrote in their brief in federal court, “The coercion and retaliatory punishment plaintiffs allege compounds that destabilization, thereby turning on its head the role the criminal justice system should play for crime victims and witnesses.”
Susanna Evarts, Adeel Mohammadi, and Hannah Schoen contributed research to this story.
On Wednesday, May 16, 16-year-old Rosalyn “Bird” Holmes was able to walk out of prison and hug her mother. Though the teenager has yet to be indicted, let alone convicted, of any crime, she nonetheless spent the past 40 days in the Tennessee State Penitentiary, an adult women’s prison in Henning, Tennessee. Had it not been for the advocacy of Just City, a Memphis-based criminal justice organization, and the $60,000 bond posted by the Robert F. Kennedy Human Rights organization, Holmes might still be languishing in an adult prison awaiting her day in court. And she’s not the only teenage girl who has been sent to an adult prison without a trial or conviction.
Four months earlier, on January 27, Holmes was the passenger in a car with three other teenagers — two boys and another girl—who allegedly kidnapped at gunpoint, according to police. The four were arrested and charged with kidnapping and robbery. Holmes and the other girl were sent to the Shelby County Juvenile Detention Center while awaiting their day in juvenile court.
In February, Holmes turned 16. She remained in juvenile detention.
In mid-March, the courts decided that she could be tried as an adult — meaning that her case was transferred to adult court. She remained in juvenile detention until March 29 when the court held a “safekeeping” hearing to decide whether to transfer her to an adult facility.
Safekeeping in Tennessee dates back to an 1858 law allowing sheriffs and jailers to transfer a person to another jail or prison if their jails could not accommodate a person’s medical, mental health, or behavioral problems. The law continues to be used — between January 2011 and 2017, more than 320 people awaiting trial in Tennessee were confined to prisons under safekeeping. In 2017 alone, there were 86 people held as so-called “safekeepers.” Most are adults with medical conditions, including pregnancy, that the jail is not equipped to handle. But others are adults with mental health or behavioral issues or, as in Holmes’s case, teenagers facing adult charges.
That’s what happened to Teriyona Winton, a Memphis teenager awaiting trial in adult court. Winton was 15 years old when she was arrested and charged in the shooting of a 17-year-old boy. She was sent first to the women’s adult jail in Shelby County, then transferred to the Tennessee Prison for Women just outside of Nashville, more than 200 miles from her family in Memphis. But she wasn’t only isolated from her friends and family — she was also physically isolated in solitary confinement as both a safekeeper and because she was a teenager in an adult prison. She spent 23 hours a day in her cell, where she received all of her meals and a few hours of school instruction through a flap in her cell door. For the one hour she was allowed out of her cell — to shower or to exercise alone in the gym — her hands and feet were shackled.
Under the 2003 Prison Rape Elimination Act (PREA), prison and jail officials must separate incarcerated children under age 18 from adults by “sight and sound.” In other words, incarcerated children are not allowed to be in places with their adult counterparts. But because so few girls are sent to adult prisons, this often means that they are kept in isolation until they turn 18. The adult prison system in Ohio, for instance, held one girl under the age of 18 in March 2018. The following months list no girls under the age of 18 in custody, though it is unclear whether the sole girl turned 18 and was moved to the adult section or was released from prison.
But in Shelby County, Tennessee, girls under the age of 18 are placed in prison — often in isolation — even before they are indicted, let alone convicted. Winton spent months in solitary before attorneys with Just City intervened. Even then, Winton wasn’t sent to juvenile detention where she could be around other girls — she was moved back to the women’s jail in Shelby County. When Holmes was declared a safekeeper in March, both girls were transferred to the Tennessee State Penitentiary where they were the sole occupants of a 158-bed unit.
“Every day was the same,” Holmes told The Appeal. The two girls were allowed out of their cells at 6 a.m. each day. A teacher came in and taught them for a few hours, they were allowed to go to rec, and they were able to watch TV. At 8:30 p.m., they were locked in their cells for the night. But, though they were allowed to move around the unit during the day, the monotony wore on them. “You get tired of the same thing everyday,” Holmes said.
Josh Spickler, executive director of Just City and Holmes’s attorney, notes that Shelby County is the only county in Tennessee that sends pretrial teenagers to adult prisons for safekeeping. “It’s the culture in Shelby County of treating Black bodies in a certain way,” said Spickler. “They’re kids on paper, but they’re treated as tiny adults. They’re seen as threats.”
According to Debra L. Fessenden, the chief policy and statutory compliance officer for the Shelby County Sheriff’s Office, juvenile judges determine where young people are housed, and there was nowhere to hold the girls apart from an adult prison. “There were no jails in the entire state which could do that, so there was no choice but to take the extraordinary measure of asking the state for help with their safekeeping.” But, she added, the sheriff and juvenile court judge are working “to obtain a location to house all Shelby County youth in a local facility with plenty of classroom and outdoor space.”
In April, State Senator Mark Norris filed an amendment to a bill that would prohibit sending teenagers to adult prisons as safekeepers. The amendment, which is retroactive, unanimously passed both houses of the state legislature later that month. On May 10, the bill reached the desk of outgoing Governor Bill Haslam, who has previously said that it “doesn’t make sense” to place teenagers who have not been convicted of a crime into an adult prison. He has 10 days to sign it into law or veto it. If he does neither, the bill automatically becomes law.
Holmes is now home, but only because the Robert F. Kennedy Human Rights organization posted bond. She’s not free either — though the judge waived a requirement for electronic monitoring, she is required to do day-reporting, which Spickler described as “like probation or parole but before conviction.” Speaking to The Appeal the day after her release from adult prison, Holmes said, “It’s not a place where teenagers should be. Keep them around other people their age.”
Meanwhile, Winton remains in the Tennessee State Penitentiary — alone. Shortly after Holmes was released, she used the prison’s e-messaging kiosk to write to Spickler. “Bird left. What happens now?”
Todd Entrekin, the sheriff of the small Alabama county of Etowah, recently found himself in the national spotlight when an Alabama newspaper discovered that over the course of three years he pocketed at least $750,000budgeted for feeding the people detained in his county jail. While the inmates in his jail ate meat from a package labeled “not fit for human consumption,” the sheriff bought himself a $740,000 beach house.
And it was all seemingly legal, thanks to a 1911 Alabama law that many sheriffs interpret to mean that whatever funds they don’t spend on their jails they can keep for themselves.
The story is horrific on its own terms, which is why the actions of a small-town sheriff — Etowah County has a population of about 100,000 people — quickly made national news. It is yet one more example of the almost countless ways in which our criminal justice system dehumanizes those it touches.
What happened in Etowah, however, highlights a deeper flaw in our criminal justice system. Much of the harm and destruction the system causes is exacerbated, if not often directly caused, by the complex web of financial obligations that criss-cross the convoluted morass of agencies that we too-simplistically call our “criminal justice system.”
Insufficient attention is given to how obscure contractual terms and budgetary decisions — things that fall fully within the responsibility of the public sector — shape how criminal justice actors behave. To be clear, values and attitudes matter a lot: Many officials inarguably view those who come within their control as undeserving of compassion, if not less than human, and treat them accordingly. But everyone from private prison managers to elected sheriffs to county commissioners also pay very close attention to the fiscal incentives they face.
In some cases, like in Etowah County, the incentive is clearly stated and transparently problematic. And there are examples from other states as well. Take Missouri. One prominent revelation in the wake of the Ferguson protests was the extent to which municipal officials encouraged various police departments across St. Louis County to impose fines in order to fundlocal governments.
Another example from St. Louis County, however, demonstrates how less-obvious contractual provisions encourage punitiveness. Following the Ferguson protests, prosecutors aggressively went after people who had participated in them, or just journalists who covered the protests, even as they dropped charges or kept losing cases. It would be easy to talk about aggressive prosecution or problematic desires to silence the press, but the explanation is far more contractual. Many municipalities in St. Louis County contracted prosecution services to local law firms (something that happens in about 15 percent of U.S. counties), and the contract didn’t include a cap on payments. More prosecutions, more money. Because local officials wrote bad contracts.
Similarly, with only a fewexceptions, the attacks on private prisons generally miss the point, overlooking the significance of bad contract incentives to focus instead on the seeming evil of the “profit motive” — as if the $30 billion in wages and benefits going to public sector correctional officers isn’t a profit motive itself. But that’s a separate issue.
The conventional argument against private prisons runs something like this: States pay private prisons a per-prisoner per diem, and the prisons respond by cutting services and staffing and training and food in order to get their per-prisoner costs below that per diem. The people running the prisons then take their per-prisoner savings and invest them outside the prison, and lobby hard against reforms that would reduce prison populations, since that would cut profits. And the lack of staffing and training provide a second, more insidious benefit — they likely increase recidivism rates, which increases the number of people returning to prison and thus raises profits too.
This is an awful story. And it happened in Louisiana almost entirely without the help of private prisons. The state government paid local (public sector) sheriffs a per-diem to house state (public) prisoners in county (public) jails, and the sheriffs cut jail costs, diverted the savings to fund their (public sector) departments outside the jails, and lobbied against reforms.
Public sector officials behave exactly like private sector ones when given the same incentives. It’s the incentives, not the “profit,” that matter. So if we change the financial incentives people face, we may be able to get better outcomes. Pennsylvania recently introduced new contracts that reward private halfway houses that beat recidivism targets, and cancel the contracts of those who fall short; so far, they seem to be producing good results. Similarly, Australia just opened a private women’s prison with a strong recidivism provision in its contract, and the U.K. has done the same.
Not all of the fiscal incentive problems arise from explicit contract provisions, however. Sometimes they result from the baffling structure of our criminal justice system. In fact, what we call our “criminal justice system” is not a system, but rather a morass of city, county, state, and federal systems, all of which interact with each other in ways that are frequently perplexing at best, and incomprehensibly counterproductive at worst.
I don’t know to what extent the poor design of these overlapping institutions stems from intentional malfeasance, malicious indifference, or just genuine incompetence or inattention. My guess is that in many cases they arose haphazardly and unintentionally over time, and that no one has the interest or incentive now to try to fix them. But whatever their origin, and whatever explains their durability, they create terrible incentives that likely play major, but generally underappreciated, roles in driving the everyday failures and pathologies of punishment we see today.
Just look again at Alabama’s 1911 jail-food law, the product of a time when sheriffs lived in the jails, had their wives cook the prisoners’ food, and received no salary outside of the fees they could collect. It’s not like the state is unaware of the law’s problems; the legislature simply hasn’t been able to amend it. And while you might think the opposition comes from greedy county sheriffs looking to buy summer homes, the real resistance has come from the state’s association of county commissioners. The flip side of Alabama’s law is that while sheriffs get to keep any unspent funds, they are also personally liable for any shortfalls — and the county commissioners don’t want to assume that risk, even as some sheriffs actually push to fix the law.
In other words, the law persists because fiscal responsibility is fractured evenwithin a county, and that creates strong incentives to make sure “someone else” has to take responsibility. Obviously greed and malicious indifference, if not actual malice, matter too, but the impacts of far-more-mundane fiscal obligations are quite significant.
A far more common example of how fractured responsibility encourages harshness and severity is what I call the “prosecutorial moral hazard problem.” Prosecutors, as reformers have started stressing in recent years, are mostly county-elected officials, who are mostly paid from county funds. Jails, too, are paid for by the county, as is often probation. Prisons, however, are paid for by the state.
This creates a powerful incentive to be harsh, since it is actually cheaper for a prosecutor or county-elected judge to charge or impose a felony sentence rather than a misdemeanor. A felony sends the defendant to state prison, and thus off the county books, while a misdemeanor would keep him in county-funded jail or probation.
California is the one state that has confronted this moral hazard problem in any serious way — and, quite tellingly, it alone is responsible for over half of the national decline in prison populations since 2010. One component of its complex realignment reform is that counties must now bear the cost of locking up certain less-serious offenders, even when they are convicted of felonies. Data indicate that this sort of cost-internalization has worked in the past, and it seems to be working now in California (with no real impact on public safety). Unfortunately, few states seem willing to follow in California’s footsteps.
This sort of moral hazard problem likely explains another policy failure, or at least an inefficiency, that we frequently see. The data is clear that policing is far more effective than incarceration at reducing crime, and yet we have over-invested in prisons, compared to policing (and many, many other interventions, including those outside the realm of law enforcement altogether). And at least one reason is surely that local officials have a strong incentive to push for tougher sentencing laws: They get to appear tough on crime for their local constituents while pushing the costs onto a different, and better-funded, level of government. The city would have to pay for more police, but the state picks up the tab for the longer sentences.
Now, there are some efforts to address these misaligned incentives. The Justice Reinvestment Initiative (JRI), for example, is trying to target some of these, by bringing state and local government officials together to work to shift funding away from what works poorly to what works better. But JRI is just a small part of the overall reform effort; in general, inter-governmental fiscal incentives, while quite important, seem to get far too little attention. Most reforms aim to change the basic criminal and sentencing laws, not the deeper sets of financial and political incentives that shape how police and sheriffs and prosecutors and others use the unavoidable discretion they will always wield.
But to end on a quirkily optimistic note, just as our failure to account for financial incentives causes us to miss a lot of problems, it also sometimes causes us to overstate them. Take civil asset forfeiture, which allows the police to seize property they think was involved in a crime (such as a car used to transport drugs) even if no one is convicted of the crime. Asset forfeiture is hated by reformers on the left and right alike, and it is often accused of encouraging police to target drug crimes just for profit.
There is much wrong with civil asset forfeiture, but its impact is likely overstated—again because of jostling, conflicting financial goals and obligations. In this case, the police do not determine their own budgets — those are set by local city and county legislatures and executives, all of which have a lot of funding obligations besides law enforcement. Two economists produced results that suggest these other agencies tend to cut police budgets to offset forfeiture earnings: For every dollar the police seize, subsequent budgets are offset by about 40 or 50 cents, sometimes almost dollar for dollar.
In many ways, I fear that these sorts of powerful financial incentives are distinctly treacherous because they are so technical and mundane. Often what is shocking and emotionally gripping is less important than the tedious stuff chugging away in the background, and so that tedious stuff gets a pass.
I saw this during the 2016 presidential primaries, when Hillary Clinton was attacked for her support for the 1994 Crime Bill whose provisions were provocative but whose impact was slight. Ignored in the debate over the Clinton legacy on crime was the far more significant Clinton-era Prison Litigation Reform Act (PLRA), which restricts prisoners’ ability to challenge terrible prison conditions in federal court by denying them the ability to sue until all “administrative remedies as are available are exhausted.” Bureaucratic issues like the “exhaustion of administrative remedies” is not a gripping topic, but these technical provisions of the PLRA enabled California to under-fund its prison system for years, to the point that the Ninth Circuit held that approximately 60 prisoners died from preventable deaths per year. The PLRA killed people, but the law received almost no attention whatsoever during the 2016 campaign.
The public-sector financial incentives are victims of the same inattention. They aren’t exciting to talk about, but their impact is real and powerful, and reformers need to direct far more energy toward changing them.
M. thought she was doing the right thing. She had become dependent on opioids, but when she learned she was pregnant, she immediately tried to enroll in a medication assisted treatment (MAT) program. MAT is the standard of care for treating people with opioid use disorder — especially pregnant women, as quitting opioids too suddenly during pregnancy can result in complications.
Despite several phone calls to treatment providers in her county and surrounding counties, M. could not find a provider who was willing to accept her. Many substance use treatment services don’t accept pregnant women, or are otherwise inaccessible to them, despite federal and state regulations that require prioritizing them for treatment. In order to to avoid the risk of withdrawal and possibly harming her fetus, M. did what many pregnant women in her situation do — she continued to use illicit opioids.
As her due date approached, M. found a hospital that claimed to specialize in the care of babies who were exposed to opioids in utero and traveled a far distance to give birth there. She told her treating physician about her opioid use during pregnancy, not realizing this could precipitate call to Child Protective Services (CPS). CPS immediately removed her newborn from her care, largely based on evidence of her opioid use. In the subsequent months, M. saw her son once a week at best. When she visited him, she was distressed to find he often had seemingly untreated rashes. She struggled every day with the unimaginable pain and grief of separation from her newborn. As of last year, they were still apart, and M. has since lost touch with her lawyer.
More mothers may soon know M.’s pain. At least two states, Arizona and Kentucky, have just made it easier to terminate the rights of mothers who use controlled substances while pregnant. Arizona’s legislation, which became law in April, permits termination of a mother’s parental rights, either immediately when her newborn is born or within one year of her newborn’s birth, depending on how chronic the illicit drug use appears to the court. Kentucky’s legislation, which also became law last month, permits termination of a mother’s parental rights if her newborn exhibits signs of withdrawal, known as neonatal abstinence syndrome, as the result of illicit opioid use, unless the mother is in substantial compliance with both a drug treatment program and a regimen of postnatal care within 90 days of giving birth.
Terminating a mother’s rights to her newborn is an especially brutal drug war tactic that research and experience show will inflict far more harm than good on the children and families it allegedly aims to protect. Such policies are rooted in stigma and gross indifference to what the best available science tells us about how to compassionately and effectively serve pregnant women struggling with drug use disorders and their families.
“The legislators behind these laws are essentially creating a capital offense for women who give birth despite having used an illegal drug,” said Erin Miles Cloud, a senior attorney at the Bronx Defenders Family Defense Practice, who has represented numerous parents facing termination of parental rights proceedings. “Termination of parental rights is a mechanism by which families are turned into strangers, all contact and personal identity is erased, and families are destroyed forever. In that way, this legislation’s attempt to punish mothers and fathers acts as a civil death penalty for families, for which children will pay the ultimate price.”
Supporters of these laws justify the surveillance, policing, and punishment of drug-using mothers by referencing two assumptions that were touted and then discredited during and after the “crack baby” scare. First, they say the developing fetus and newborn will be harmed by prenatal exposure to illicit substances. Second, they claim that drug use during pregnancy is a reliable indicator of parental unfitness.
While a robust body of literature supports a causal connection between prenatal exposure to alcohol or tobacco (or lead or poverty for that matter) and negative postnatal health outcomes, the scientific literature has not conclusively demonstrated any long-term negative effect of prenatal exposure to opioids. Neonatal abstinence syndrome (NAS) is itself a treatable and transient condition, and a growing body of literature confirms that one of the most effective treatments for NAS is keeping the newborn and mother together in a soothing environment while encouraging skin-to-skin contact and breastfeeding. So the very condition that Kentucky believes should trigger fast-tracked termination of parental rights is in fact often most effectively treated by close, consistent contact between the mother and newborn.
The research is also clear that the results of a drug test alone are not an appropriate proxy for determining parental fitness. Millions of parents who use drugs or have substance use disorders parent their children well. Studies have found that babies exposed to cocaine in utero are not at greater risk of maltreatment as young children than similarly situated babies. Other studies have found that babies exposed to cocaine in utero perform better on several developmental measures when left with their mothers than do those removed to foster care.
The research that does claim to link substance use to maltreatment of children is not authoritative. It often relies on caseworker-confirmed reports of child maltreatment, despite the well-documented propensity of caseworkers and family courts to base findings of child neglect on evidence of drug use alone. And the scientific literature that suggests that substance use produces social cognitive deficits in parenting is in its infancy and rather underwhelming. For example, one study found that parents who use opiates find babies less cute — while conceivably notable, this finding does not meet the legal standard for terminating a parent’s rights.
Medical and public health authorities warn that women who fear losing their babies upon seeking medical care will be deterred from seeking the care they need. Community after community has seen this in the aftermath of local crackdowns on drug-using pregnant women — fewer women seek prenatal care and substance use treatment, even after the local authorities decide to change course. Experts recognize that pregnancy and childbirth present an especially opportune moment to connect a woman with services, including substance use disorder treatment — yet threats of punishment only isolate pregnant women.
Supporters of these laws blame the mothers for the dissolution of their families, arguing that the mothers need only enroll in a drug treatment program to retain custody of their children. This claim disregards the fact that drug addiction is a health issue with biological, behavioral, and genetic dimensions, and similar to other health conditions, it does not respond wellto artificially imposed treatment timelines or mandated treatment. These same legislators would be hard-pressed to take babies away from mothers who were struggling with medical treatment for hypertension or diabetes. This claim also disregards the serious gaps in access to treatment for substance use disorders, especially for poor people, and the absence of a social safety net to even support struggling families in the first place.
“Instead of punishing women for the chronic condition of addiction, something that is unethical, ineffective and inhumane, we should invest instead in the expansion of women- and family-friendly treatment resources,” said Dr. Mishka Terplan, a professor in obstetrics and gynecology and psychiatry and associate director in addiction medicine at Virginia Commonwealth University.
While medication assisted treatment (MAT) is covered under Arizona’s newly expanded Medicaid programs, Arizonans still struggle with access to MAT treatment. As is true across the nation, rural areas have limited, if any, access to MAT. Many substance use treatment centers do not offer MAT due to the stigma associated with it, and those centers that do provide MAT have not necessarily fulfilled their responsibility to prioritize pregnant women. Meanwhile, private insurance companies have found ways to circumvent Obamacare requirements on MAT coverage.
This is all exacerbated by a series of measures Arizona has undertaken to constrict its social safety net, leaving families struggling with inadequate access to cash, food, housing, child care, and transportation. The vast majority of Temporary Assistance for Needy Families (TANF) funding, or federal welfare dollars meant to help the poor, is not spent on assistance to poor families, but rather on placing and keeping children in the foster care system. Arizona also has the strictest TANF timeline in the nation, kicking families off welfare after one year. Not coincidentally, in the aftermath of the 2008 financial crisis, as Arizona’s social safety net shrank, its foster care numbers soared. Arizona now has one of the highest foster care placement rates in the nation.
Kentucky similarly struggles with poverty, poor access to substance use treatment services, and a child protective system that spends more resources on placing children in foster care than keeping them with their families. Kentucky ranks amongst the last in the nation in rates of childhood poverty. The federal Department of Health and Human Services recently released a report reviewing Kentucky’s child welfare system. It found that parents face long wait lists when accessing substance use treatment services and often don’t have the means to pay. The report also found that Kentucky’s child protection agency was not making enough efforts to prevent removal or re-entry to foster care. Indeed, Kentucky has one of the highest rates of child removal in the country.
Such inhumane responses to drug use can only exist because they are almost exclusively reserved for poor people and people of color. The overwhelming majority of parents prosecuted by the child welfare system are poor, and parents of color are overrepresented. Several studiesdocument that hospital staff disproportionately drug test and report to child protective services low-income women and women of color. Indeed, few, if any, middle- or upper-class women who use drugs during pregnancy will ever experience a child abuse and neglect proceeding, let alone a termination of parental rights — though drug use is common among people of all socioeconomic levels. Many advocates I interviewed in the course of my own research on this subject described the surveillance of pregnancies and non-consensual drug testing performed on pregnant women and their newborns as comparable to stop-and-frisks for young men of color.
Despite progress in the criminal legal system, the drug war remains almost unchallenged in the child protection system, and it is wreaking havoc on families. Before losing contact with her lawyer, M. told me her story via email. “In the family court systems, there is no … respect for medicine or science,” she wrote. “This is all done under the cloak of what is in the ‘best interest’ of the child — but that is ironic, because they are hurting my son.”
On December 28, 2017, 28-year-old Andrew Finch of Wichita, Kansas, opened his front door to a horde of shouting police officers. Ten seconds later, he was fatally shot in the head — yet the officer who pulled the trigger isn’t the one being charged with his death.
The events of that tragic late December day were set in motion by three Call of Duty gamers fighting over a $1.50 wager. One gamer, Tyler Barriss, prank-called Wichita 911, saying he was suicidal, had killed his father, and was holding others hostage at the address that one of the other gamers had provided as his own. But the target of the prank didn’t actually live there; Andrew Finch and his family did.
At approximately 5 p.m. that day, 10 Wichita police officers and three deputies surrounded the house. When Finch exited the home to see what the commotion was about, he threw his hands into the air in surrender. But then, after becoming startled, he put one hand down for a second. That’s when a police sniper fired from 50 yards away, killing him.
Immediately after shooting Finch, the officers ordered his family to come out of their home with their hands up, and even forced his young niece to walk over her dying uncle’s body, according to a civil rights lawsuit filed in January in federal court on behalf of Finch’s mother. The family members were then handcuffed and forced to wait outside in below-freezing temperatures for over an hour, interrogated, and released without explanation.
The prank caller, Barriss, was tracked down in Los Angeles less than 24 hours later and charged with involuntary manslaughter, giving false alarm, and interference with a law enforcement officer. He faces 11 years in prison. In the wake of the incident, reporters from national media outlets like the New York Times, CBS News, and NPR wrote stories about “swatting,” a gamer trend where players like Barriss call in fake emergencies to 911 which sends SWAT teams to a rival’s house as a prank.
The headlines, however, obscured the fact that there was no justice for Finch. On April 12, four months after the shooting, Wichita District Attorney Marc Bennett announced that he would not bring charges against the officer who killed Finch. The city has refused to name the officer who fired the fatal shot.
According to the Finch family complaint, his killing at the hands of the Wichita police was unusual only because it stemmed from a prank. Police shootings are disproportionately common for a city its size, the complaint says. Wichita has a ratio of one shooting for every 120 officers, about 11 times higher than the national average. Wichita officers were involved in at least 29 shootings between 2010 and 2015, 15 of which were fatal. Nonetheless, the DA has determined that every one of these shootings was justifiable. And in 95 percent of police shootings there, Wichita officials have also shielded the officers’ names from the public.
“This pattern and practice of concealing misconduct and concealing the identities of officers involved in misconduct encourages officers to believe that their unconstitutional behavior will be protected,” the Finch family said in its complaint, “and that they will suffer no discipline, thereby emboldening them to act with impunity.”
The Finch family argues in its lawsuit that even if the police faced a true hostage situation at Finch’s house, shooting whoever came to the door violated departmental policy. But despite clear Wichita Police Department guidelines regarding how volatile situations involving mentally ill suspects should be handled — including instructions that “in a stressful situation, a police member’s first reaction should be to determine whether the objective can be accomplished without the use of a weapon” — the Wichita DA has only once determined that an officer-involved shooting violated department policy over the past two decades.
Perhaps this is because the city’s police shooting investigations are hampered by strict requirements in its police union contract. According to data compiled by the Black Lives Matter-affiliated Campaign Zero, Wichita allows officers to meet privately with union representatives who can coach them on what to tell investigators before being questioned about a shooting. The city also allows officers to record their own interrogations, tightly restricts what interrogators can say or do in questioning, and erases officer misconduct files. Interviews are conducted by the officer’s co-workers, rather than by independent or state investigators.
“How is it remotely justice when the wrongdoers are investigating themselves?” Finch’s mother, Lisa, asked City Council in March.
The Finch family has continued to fight for justice, even after the DA announced his decision to not charge the officer who fired the fatal shots, with some measure of progress. A newly formed citizens advisory board will review the case, and the department says it is conducting an internal investigation.
“The issue of my innocent son being shot through the screen door is not going away any time soon,” Lisa Finch warned the council.
A widely shared, recent piece in the Philadelphia Inquirer tells the story of a woman’s grief six months after her husband was murdered. Gerry Grandzol was shot at close range by two young Black men while he was unpacking groceries from his SUV with his two young daughters. The family, which is white, lived in a typically sleepy neighborhood where shootings are rare. After losing her husband, Kristin Grandzol said she was moving her family to the suburbs. “Slain Spring Garden activist Gerard Grandzol’s widow: City not safe, we’re leaving,” the headline proclaimed.
In part, the Inquirer implied,that’s because she wasn’t sure Philadelphia’s new, reform-minded district attorney, Larry Krasner, could be trusted to hold her husband’s killers responsible. One of them was under 18 and she worried that given Krasner’s push for more “lenient sentences,” as the story put it, he would be tried as a juvenile. “I know I wouldn’t want to still be on the streets of Philadelphia with them free,” she said. But Krasner’s office had not said it would charge the perpetrator as a juvenile — a point buried in the piece — and later wrote a strongly worded opposition to the defense’s motion to do so. A hearing to decide if he should be tried as a juvenile is scheduled for next month.
Articles like this andothers, featuring the stories of victims who are unhappy with Krasner’s office, make it seem as if crime victims on the whole opposehim, that they want a DA who throws the book at criminals in order to keep them safe. But advocates of fair sentencing say that narrative ignores another set of crime survivors: those who have suffered but who still support a more nuanced approach to punishment and rehabilitation. Many of those people not only support Krasner — they campaigned for him.
“People who are most affected by crime most often have an understanding that people who are committing crime and ending up in prison for it are the same people that have been harmed,” said Yale Law School professor Miriam Gohara.
Take Kim King, age 46, who volunteered for Krasner’s campaign. Twenty years ago, her younger brother Damani was murdered. She said Damani was sitting in a car late at night in North Philadelphia when another young man opened fire. Damani was just 23 years old. It was a “devastating” blow, King said. She comes from a tight-knit family, with a father who was a high school teacher and tried to instill in them the importance of education and good morals. This wasn’t supposed to happen to her family, she thought. Her early days of grief were defined by both sadness and a burning desire for retribution. The night Damani died, her family gathered at the hospital. “There were some males in the family who were talking about going to the area and seeking revenge. I remember wanting that; I wanted him to hurt,” she said of the perpetrator. “I wanted him to be punished.” Luckily, her father talked the younger men down. Otherwise, one tragedy would likely have led to others.
The case was never solved. King said that the police investigator was sure he knew who did it, but could not find witnesses to ID the gunman. About a year after Damani was killed, she heard that the suspect was convicted for an unrelated murder and sent away for life. And in Pennsylvania, life means life. She thought this would help ease her sorrow, knowing that her brother’s killer was behind bars for his remaining days — but found that her grief stung just as sharply. “So what that he got a life sentence? That didn’t give me any resolve for Damani,” she said. “I realized it just didn’t relieve me from the pain.”
She came to believe that in order to move on, she needed to forgive her brother’s killer. This revelation came at a time when she was looking for people to find the same mercy for another of her brothers, Terrell, who had been given a life sentence for his participation in a murder. “I couldn’t ask for forgiveness for one when I wasn’t willing to give it to the other,” she told The Appeal. She describes Terrell as a young man who sought acceptance in the wrong places. He did something immoral, and needed to be punished, she said. But in the years since, he’s grown into a calm, insightful adult, she said, a wholly different person than the young man who got into trouble. She wants him home.
King mourns the loss of both her brothers: one to gun violence and the other to prison. This viewpoint has shaped her views on criminal justice. “If you did something wrong, you deserve to be punished, but don’t take away an entire life,” she said. “We need to deal with each [person] as an individual instead of a one-size-fits-all with these ridiculous sentences.” When she heard about Larry Krasner, a DA candidate who had a “similar mindset” to her when it came to punishment and sentencing, she volunteered for his campaign.
King’s position as a crime victim who supports a less punitive criminal justice system is not uncommon. A 2016 poll of over 800 crime victims by the Alliance for Safety and Justice found respondents overwhelmingly favored rehabilitation over harsh punishment: Seven out of 10 preferred prosecutors who focused on neighborhood-based rehabilitation services over long prison sentences — victims of serious violent crimes, including rape, assault, sexual assault, or murder of a family member, leaned towards rehabilitation at an even slightly higher rate. Fifty-two percent of all respondents believed that prison makes a person more likely to commit another crime.
That’s partly because of where crime happens. It tends to be concentrated in neighborhoods that are less economically stable. The reality is that most people who are perpetrators of violence have also been victims. Studiesshow that incarcerated men have experienced trauma at a rate double that of other men in the community. One study showed that up to 60 percent of male inmates showed signs of PTSD — not from war abroad, but from getting beaten up, and threatened with guns or knives.
Nationally, 95 percent of incarcerated people eventually return home, so high-crime communities have a vested interest in perpetrators’ rehabilitation. “It makes sense that communities would rather have people come back who have received mental health treatment for their trauma or other conditions, for their addictions, rather than having people come out who were more traumatized than when they went in,” Gohara said.
In Philadelphia, King was far from the only crime victim who campaigned for Krasner. At least a dozen others were actively involved, according to Sean Damon, an organizer at the West Philadelphia Amistad Law Project. One of those volunteers was Lorraine Haw, 61, who is fighting for her son to be released from a life sentence, and also for the man who killed her brother to be taken off death row. Like King, Haw understands that when a loved one is hurt or killed, the natural initial reaction is a desire for retribution. “But once your sense comes back, you realize that there is no closure,” she said. “You know how I live better? I’ve forgiven that man that took my brother’s life. Everybody deserves a second chance.”
Krasner hasn’t always won praise from crime victims. During his first few months in office, his lawyers dropped the ball on keeping victims up to date on changes in individual cases. This lapse drew pushback, which was fair, says Victoria Greene, co-founder of EMIR Healing Center, a nonprofit that supports family and friends of murder victims in a relatively high-crime neighborhood. She herself lost a son to gun violence. But in the wake of that criticism, Krasner announced a committee of crime victims to act as policy advisers, something he’d planned since his election. “He definitely is considering victims, talking about them, that’s an issue that he’s strong on,” she said.
To Greene, what’s most important is that victims are given a seat at the table, both at trial and in policy discussions — something she has not seen past DAs prioritize. Many people she works with report feeling like “pawns” at the trial, she said, and then having their cases “swept under the rug.”
The families Greene helps, who are mostly Black or Latinx, “they’re not heard,” she said, unlike white families like the Grandzols, whose cases more often make the headlines. “When someone white is murdered it’s, ‘Oh they could have been successful. Oh, they could have been this or that.’ That’s not what you hear when a Black man is murdered,” she said. She is hopeful that Krasner “will help change the culture and give a semblance of equality,” she added. “Victims need a platform. That’s the problem; we don’t have a platform.”
What I am about to tell you is deeply problematic. And it makes sense that of all states, it’s happening in Louisiana — which, with its sky-high incarceration rate, is the “world’s prison capital.”
According to local reports, a staggering “one in 86 adult Louisianians is doing time, nearly double the national average. Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation.”
Louisiana holds the horrible title of the world’s most incarcerated state in part because it pays local sheriffs a per diem to house inmates, who greatly rely on those payments to fund their departments. So the sheriffs are incentivized to house as many people as they can for as long as they can.
The other part of this story is something I must confess that I did not know until a few months ago. In 48 states, and in federal trials, all 12 jurors agree on the guilty verdict in order for a defendant to be convicted of a crime. In both Louisiana and Oregon, only 10 out of 12 jurors have to agree on a guilty verdict in felony cases. In Louisiana, non-unanimous verdicts are allowed in murder cases — but Oregon still requires a unanimous vote to find defendants guilty of murder. In those two states alone, two people on a jury could be absolutely convinced, deadlocked and unmovable, of a defendant’s innocence, and that defendant could still be sent to prison for the rest of their natural life. In fact, this very thing has happened many times in both states. In late 2016, Cardell Hayes of New Orleans was convicted in what his defense team claimed was a self-defense killing of a former New Orleans Saints football player — even though two of the 12 jurors dissented. In April 2017, Hayes received a 25-year sentence from the judge.
Now, here’s the worst part: The non-unanimous jury law in Louisiana has its roots in post-Reconstruction era white supremacy. Indeed, the non-unanimous jury rule was formally adopted as law during the state’s 1898 constitutional convention. There, lawmakers said that their “mission was … to establish the supremacy of the white race.” Over a century later, non-unanimous verdicts are a tool to perpetuate mass incarceration and racial oppression.
As early as today, however, Louisiana could reverse course and join the rest of the nation by requiring unanimous guilty verdicts in criminal cases. State Senate Bill 243, proposed by State Senator JP Morrell, a Black man from New Orleans, would allow voters to decide if Louisiana’s constitution should be changed to require juries in felony cases to return unanimous verdicts.
But Louisiana’s extremely powerful district attorneys, who no doubt love that non-unanimous jury verdicts help them convict and sentence people to prison, are not going out without a fight. And it’s that fight that I want to show you today. It’s one of the most remarkable examples of how our modern justice system was designed to charge, convict, and sentence African Americans as easily as humanly possible as a means of systemic oppression.
One of the leading proponents of the effort to maintain non-unanimous jury verdicts is Calcasieu Parish District Attorney John F. DeRosier. Let me tell you a little bit about DeRosier and his love of mass incarceration. A local defense attorney told me that DeRosier’s office files a notice of intent to seek life without the possibility of parole for all of the juvenile offenders in his parish who are eligible for re-sentencing under the Supreme Court’s historic decision in Montgomery v. Louisiana, which held that its ban on mandatory life-without-parole sentences for juvenile offenders applies retroactively. Another thing about DeRosier: One of his top prosecutors is Hugo Holland, who has been accused of misconduct so often in capital cases that one defense attorney called him “the face of Louisiana’s broken death penalty.”
So maybe it shouldn’t have surprised me when, in late April, DeRosier, a white man, decided to testify against the legislation to repeal non-unanimous jury verdicts — arguing basically that if it ain’t broke, don’t fix it — saying “the concept has worked” for Louisiana. But what he said next set off a firestorm among Black lawmakers.
DA DeRosier testifies in favor of maintaining non-unanimous juries.
“I’ve heard a lot about this system being adopted as a result of a vestige of slavery,” DeRosier said. “I have no reason to doubt that. I’m not proud of that. That’s the way it started, but it is what it is. However, ladies and gentlemen, that was 138 years ago.”
Before I ever heard how Black lawmakers responded, DeRosier’s open, flippant, and callous admission that the way Louisiana does justice is indeed a vestige of slavery that he’s not proud of, but “it is what it is,” made my own blood boil.
You see, it is what it is not just because lawmakers in Louisiana made it that way to oppress African Americans by any means necessary over a century ago — it is what it is because Louisiana lawmakers have kept the system that way since then.
The very fact that a system was built in the shadows of slavery to oppress African Americans in the harshest, most unfair ways imaginable, is reason enough to completely re-evaluate the whole thing. But until now, over 100 years later, Louisiana has refused to do so.
Seething in righteous indignation, Louisiana House Representative Ted James, a Black attorney from Baton Rouge, struggled to hold himself together when it came time for him to respond to DeRosier. It’s best if you watch the exchange for yourself, but here’s what James said.
Louisiana House Representative Ted James confronts DA DeRosier on SB 243
“Mr. DeRosier — I am so utterly offended for you to start your comments and say ‘I know that this was rooted in slavery, but it is what it is.’ And I needed you to hear that from me. And I wish you would look at me while I’m speaking with you. Because I think I deserve that kind of respect after you just disrespected me on this committee. You are elected to represent everybody and to admit that it started in slavery and say ‘it is what it is’ — I hope the people of your parish are listening. And if they aren’t, I’m going to make sure that they know what you said today. And I am utterly offended and for you to not even look at me in my face — this is a problem.”
It was incredibly brave and necessary for James to call out this casual admission from DeRosier of the fact that the law he wants to maintain is rooted in white backlash to Black folks being freed after slavery, but that he was just fine with it because it worked well for him.
The harsh fact of the matter is that this nation has not remotely come to grips with how many of its laws are rooted in slavery and bigoted oppression. After the Civil War, the United States never said, “Let’s examine every law and policy and system and structure we have to evaluate whether or not they were created as a tools of oppression.” That never happened.
And so here we are, over a century after Louisiana created laws to oppress one group more than all others, and district attorneys, the people who serve as the primary gatekeepers of America’s justice system, are still arguing that they are fine with vestiges from slavery in their system because it works for them.
It’s disgusting and we’ve gotta lot of work to do.
Clarification: In both Louisiana and Oregon, only 10 out of 12 jurors have to agree on a guilty verdict in felony cases. In Louisiana, non-unanimous verdicts are allowed in murder cases — but Oregon still requires a unanimous vote to find defendants guilty of murder.
Immediately after a heated debate last Thursday that focused on police accountability, the criminalization of homelessness, and the use of gang databases, interim San Diego District Attorney Summer Stephan spoke to a handful of reporters in a room not far from the stage at the Chula Vista library. There, she fielded several questions about the impact that campaign contributions have had on the race, amid reports that a PAC funded by George Soros, a billionaire pushing for criminal justice reform nationwide, has spent hundreds of thousands of dollars in support of her opponent, Geneviéve Jones-Wright.
During the contentious campaign, Stephan has been positioned — and often touted herself — as “law enforcement’s choice.” But, she insisted to the reporters that night, her campaign hadn’t received any financial benefits from that support.
“Police unions have not given me campaign donations and I don’t accept campaign donations from my own team,” Stephan said, responding to a question from The Appeal. “Because I want to be very ethical when I promote them or do anything. Nor have I accepted donations from victims’ groups that we have contracts with.”
And while it’s true that Stephan’s campaign itself hasn’t accepted donations from law enforcement unions, The Appeal has found that political action committees associated with local law enforcement groups have already spent at least $313,000 to support Stephan, and almost $5,000 on negative advertisements against her opponent.
The PAC that has given the greatest amount of support to Stephan, San Diegans Against Crime, is associated with her own office. Sponsored by the San Diego Deputy District Attorneys Association, the group is comprised mostly of her own staff members (the La Mesa Police Officers Association PAC recently contributed $5,000 to it as well). The PAC has spent over $277,000 on Stephan’s re-election campaign on signs, television commercials, mailers, and polling. In contrast, Stephan’s own campaign has so far only spent just over $214,000 in 2018, according to its last filing.
Other spending in support of Stephan from law enforcement includes $12,700 from the San Diego Police Officers Association PAC, and the Deputy Sheriffs Association PAC, which has already spent $23,630.
Stephan’s campaign did not respond to a request for comment.
In San Diego County, individual donations to campaigns are capped at $800. Political parties can only contribute $51,850 to campaigns for county-wide offices. But the amount that political action committees can spend on local elections is unlimited, making those PACs, which both campaigns have taken advantage of, an easy way for groups like law enforcement unions or criminal justice reform groups to make a major impact on the race.
Law enforcement unions’ spending on district attorney campaigns has come under scrutiny across California in the lead-up to the June 5 election, especially because prosecutors who accept donations, or have received the support of law enforcement PACs, have repeatedly declined to press charges against officers who shoot unarmed civilians or engage in other forms of misconduct.
In Alameda County, incumbent District Attorney Nancy O’Malley accepted $10,000 from the Fremont police union this past November while her office was investigating three members of the union for their roles in two separate fatal shootings. By February, all three officers were cleared of wrongdoing. In Sacramento, District Attorney Anne Marie Schubert has received $420,000 in campaign contributions over the course of her three campaigns, according to The Intercept, including $13,000 in campaign donations from two local law enforcement unions just days after Stephon Clark, an unarmed Black man, was killed by Sacramento police officers in his grandparents’ backyard.
San Diego has had its own recent spate of police shootings. At an early March press conference, Stephan announced that she had cleared four separate sheriff’s deputies of criminal charges in the killings of four civilians in separate incidents in 2017. Ten days after that, the San Diego Deputy Sheriff’s Association spent over $10,000 in support of Stephan.
Geneviéve Jones-Wright’s campaign, which has focused on ending cash bail and increasing police accountability, has received $600,000 in support so far from a PAC funded by Soros.
Whether campaign donations from law enforcement truly impact the conduct of a district attorney is an open question, explained Carissa Byrne Hessick, a criminal law professor at the University of North Carolina and director of that school’s Prosecutors and Politics Project. But the perception of what that money is trying to achieve cuts both ways when it comes to campaigns.
“In some counties, incumbent DAs are facing criticism for accepting money from law enforcement unions when those incumbent DAs have to make decisions about whether to charge officers involved in use-of-force cases, and some challengers have been criticized for taking money from groups outside of their jurisdiction,” Hessick said. “The controversy in San Diego is playing out in counties across the country.”
The Appeal is an editorially independent project of Tides Advocacy and does not receive funding from any Soros-funded PAC or Soros’s Open Society Foundations. Tides Advocacy sponsors numerous other projects, however, some of which do receive funding from the Open Society Policy Center.
Law enforcement’s power to seize property suspected of being used in criminal activity regardless of whether the owner has been convicted of a crime has generated mounting public scrutiny of the practice, known as civil asset forfeiture. Both Nebraska and New Mexico have abolished civil asset forfeiture in recent years, and the Department of Justice under the Obama administration imposed limits on a federal program that facilitated local seizures, which have since been rolled back by Attorney General Jeff Sessions.
In Rhode Island, two pieces of legislation introduced earlier this year, Senate Bill 2681 and House Bill 7640, would sharply restrict prosecutors’ ability to seize assets, the majority of the proceeds of which are awarded to local police departments. Nearly $15.7 million in property in the state was seized by law enforcement between 2003 and 2013, according to public records obtained by local news station WPRI. In 2013, according to WPRI, 38 percent of seizures in Rhode Island were for $1,000 or less — critically, more than it might cost to hire an attorney to fight to keep the property or cash.
Supporters of the legislation say that civil asset forfeiture violates due process rights — prosecutors can seize property that they claim is related to a crime even, again, if that person is never convicted. The new legislation would limit prosecutors to seizing assets connected to an actual criminal conviction, and also protect people’s homes, vehicles worth less than $10,000 and small amounts of cash. Critically, it would ensure that the state provide a person contesting forfeiture of their property with an attorney if they cannot pay for one themselves. The legislation would also limit participation in the Department of Justice’s Equitable Sharing program, through which the federal government transferred back $23,493,801 in seized asset funds to Rhode Island law enforcement in fiscal year 2017.
Like other criminal justice reform legislation, civil asset forfeiture reform often generates unusual political alliances: The legislation is backed by the Rhode Island ACLU and spearheaded by the Rhode Island Center for Freedom and Prosperity, a conservative organization with a strong libertarian bent that argues that reform would be good for both civil rights and the state’s business climate.
Justin Katz, the center’s research director, points out that the state’s political climate has made enacting such legislation impossible in the past. “Rhode Island has a highly transactional General Assembly,” Katz told The Appeal.“Even fantastic, no-brainer ideas can be tangled up in complications about who is allowed to have a win during the course of a session. In this case, asset forfeiture reform is complicated by the obvious self interest of law enforcement agents to maintain the status quo.”
But the legislation is opposed by law enforcement and by Rhode Island Attorney General Peter F. Kilmartin, who, though a Democrat, has aggressively campaigned against legislation to legalize recreational marijuana. He has also supported a bill to make it easier to charge drug dealers with homicide when drug sales result in a fatal overdose. In an April 26 letter to the chairperson of the state Senate Judiciary Committee, Kilmartin wrote that the proposed civil asset forfeiture legislation “would enable criminal activity and create a sanctuary for criminal behavior.” Furthermore, Kilmartin warned that barring the seizure of residential properties “invites criminal activity, including narcotics activity, into our residential neighborhoods.”
Even though Rhode Island is among the nation’s smallest states, Kilmartin is in effect one of the nation’s most powerful district attorneys because his office prosecutes felonies across a state of one million people.
“Overall, I think eliminating civil asset forfeiture is a huge step forward,” said James Vita, of the National Lawyers Guild of Rhode Island. “The Attorney General’s office should be ashamed that they opposed this bill.”
Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.
Yet Vita also argued that legislation is flawed because it would restrict but not bar law enforcement from profiting from seized assets. It would also require the state to “prove by clear and convincing evidence that the petitioner had actual knowledge of the underlying crime giving rise to the forfeiture” — meaning that it is substantially more likely to be true than not, a lower burden of proof than what prosecutors must meet in criminal cases, guilt beyond a reasonable doubt. What’s more, property owners who even had knowledge of a crime but were not involved in it could still have their property seized.
For the strange-bedfellows alliance committed to criminal justice reform, however, the bill is still a sensible and easy step toward a better system. But the Democratic attorney general in a reliably blue state is actively fighting alongside police to sink it. The Senate and House bills are currently before their respective judiciary committees, and getting the legislation signed into law will be an uphill fight. The movement to reform civil asset forfeiture still lacks the power, for now, to ensure that this is an issue that Democratic politicians are wary to cross the cops on.
Clarification: Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.
State Attorney Andrew Warren of the 13th Judicial Circuit, which is comprised of Hillsborough County, surprised many last year when he narrowly defeated incumbent State Attorney Mark Ober, who had been the chief elected prosecutor in Florida’s fourth largest county for 16 years. A former federal prosecutor, Warren ran as a supporter of criminal justice reform, vowing to lock fewer people up and send more addicts to rehabilitation instead of jail. During his campaign, Warren had also been critical of Ober for the manner in which his office sought the death penalty, remarking that Ober had received a “failing grade in a critical area of criminal justice.”
Nine months into his first year, Warren is choosing to seek the death penalty less frequently than his predecessor, and also choosing to drop the death penalty in some cases where Ober initially sought it.
Warren’s views on the death penalty were explored in a recent Tampa Bay Times article.
According to the profile, Warren has chosen to drop the death penalty in five cases where Ober originally chose to seek it. A sixth person facing capital charges cut a plea deal that allowed him to avoid the death penalty.
There are still 17 cases where Ober initially elected to seek death, and Warren hasn’t yet announced whether he will follow the same path.
“These decisions are the most serious and sobering decisions you make as state attorney,” Warren said. “And it’s different academically than it is when you’re sitting in a chair as the one to make the decision.”
Warren has said the death penalty should be applied “fairly and consistently and rarely.” He has also said he will not use the threat of seeking death as leverage to get someone to plead guilty.
Warren has chosen to seek death in one criminal case that occurred after he took office.
Warren previously pledged to reduce the number of juveniles charged as adults and increase the number of juveniles who receive civil citations, which keeps juveniles out of the criminal justice system.
“We need to do a better job steering juvenile, non-violent offenders away from the downward spiral of the criminal justice system,” Warren said while he was running against Ober. “We should be tough on serious juvenile offenders and always hold people accountable for their actions. But treating kids who commit minor offenses like adult criminals only furthers the revolving door criminal justice system. And it makes our neighborhoods less safe.”