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The Cops at the Capitol

Law enforcement officers from around the country attended and supported last week’s rally in support of President Trump that sparked a riot.

Trump supporters at the "Stop The Steal" rally on Jan. 6.
(Photo by Jon Cherry/Getty Images)

The Cops at the Capitol

Law enforcement officers from around the country attended and supported last week’s rally in support of President Trump that sparked a riot.

As of today, at least 26 sworn members of U.S. law enforcement agencies from at least 11 states have been identified by law enforcement agencies and local reporting as attendees of the Jan. 6 rally in support of President Trump that sparked a riot at the U.S. Capitol. [Update, Jan. 15, 6:05 p.m., Eastern time: Three more law enforcement officials, including one prosecutor and one volunteer deputy, have been reported as having attended the rally, bringing the total to 32 individuals from 15 states.] Beyond that tally, several former law enforcement agents attended the rally, and still more current law enforcement officials are under investigation for making statements in support of the rally.

A review of police attendance and support appears below and is also available in this spreadsheet,* which will be updated as more information becomes available. These specific law enforcement agents have not been tied to white supremacist movements.

And yet, it would be inaccurate to say that white supremacists have merely “infiltrated” law enforcement, a word used in a recent hearing on white supremacy and policing in the U.S. House Oversight and Reform subcommittee. American policing is rooted in white supremacy: many contemporary police departments originated as patrols dedicated to terrorizing and capturing enslaved people. Other antecedents of modern policing extend farther back in history to the ”oversight” of Native peoples. The main function of policing is to protect the interests of the ruling classes, and in the context of a society built on racial capitalism, that means the crosshairs of police officers focus on non-white communities. With this history in mind, the fact that police flocked from all over the country to attend the Trump rally merely shows how white supremacy is embedded in the very function of policing itself.

David Ellis, the police chief in Troy, New Hampshire, attended the rally, but told a New York Magazine reporter that while he condemned the assault on the Capitol, “there’s a lot of Trump supporters that are awesome people, like me.”

The Bexar County sheriff’s office in Texas is investigating Lieutenant Roxanne Mathai’s attendance. She posted a photo of rioters on the Capitol’s balcony after they’d made it past the police, writing as the caption, “and we are going in… in the crowd at the stairs… not inside the capitol like the others. Not catching a case lol.” Mathai typically has 70 to 80 employees under her command.

The Zelienople Borough Police Department (near Pittsburgh) is investigating Officer Thomas Goldie’s attendance. One photo shows him wearing a hat that appeared to say, “Trump MAGA 2020 f— your feelings.”

Sheriff Chris West of Canadian County, Oklahoma, attended the Trump rally. West denied breaking any laws, but two posts from a deleted Facebook account that appeared to belong to West read, “I’m okay with using whatever means necessary to preserve America and save FREEDOM & LIBERTY… I want several in Congress… in prison, or worse.”

The New York Times reported that a man named Jeff told a reporter that he was an off-duty police officer in York County, Pennsylvania. “There’s a lot of people here willing to take orders,” he said. “If the orders are given, the people will rise up.” The York Dispatch is working to confirm this report with local police departments.

The Seattle Police Department has placed two officers who attended the rally on administrative leave.

The Franklin County sheriff’s office in Kentucky reassigned detective Jeff Farmer after he attended the rally. Farmer has denied participating in the riot or in any violence. Local public defenders wrote a letter to Sheriff Chris Quire alleging that Farmer has made multiple social media posts expressing “disbelief in systemic racism and unconscious bias,” that he “resigned from the Versailles Police Department ‘in exchange for no further pursuit of criminal charges against him,’” and further that he “has been involved in many cases which reflect targeting and racial profiling.” Farmer was named Deputy of the Year in 2019.

Sergeant T.J. Robertson and Officer Jacob Fracker of Rocky Mount, Virginia, have been placed on administrative leave after photos emerged of them inside the Capitol. “There was no fighting with police officers,” Robertson said in reference to the Capitol police on Jan. 6. “The door was wide open and police officers were actually handing bottles of water out to people that came in.” In a Facebook post, however, Robertson wrote: “CNN and the Left are just mad because we actually attacked the government who is the problem and not some random small business … The right IN ONE DAY took the f——— U.S. Capitol. Keep poking us.”

Philadelphia police detective Jennifer Gugger has been reassigned pending an investigation into her attendance. Until last week, she served in the department’s Recruit Background Investigations Unit, and the Philadelphia Inquirer reports that “until recently, [her] Facebook profile photo was a reference to the QAnon conspiracy movement.”

The police force for the Southeastern Pennsylvania Transit Authority, in Philadelphia, is also investigating seven officers who reportedly attended the Trump rally.

The New York Police Department said one police officer who attended is under investigation.

The Anne Arundel County Police Department, in Maryland, has suspended an officer with pay who reportedly attended.

The Charles County sheriff’s department, also in Maryland, is investigating the attendance of a corrections officer, who is presumably employed by the sheriff.

One Kentucky state trooper has been reassigned as the agency investigates his attendance.

Arkansas State Police told the Arkansas Times that two troopers requested leave time to attend the Trump rally.

According to Representative Tim Ryan of Ohio, two Capitol police officers were suspended and at least 10 others are being investigated regarding their behavior during the Trump riot. One of the two suspended officers wore a MAGA hat and “started directing people around the building”; the other posed for a selfie with a member of the mob. A House aide told CNN that “as many as 17 officers” with the Capitol police department are under investigation.

Several former law enforcement officers also attended the rally.

Jurell Snyder, who was a police officer in Oakland, California, gave an interview to CBS affiliate KPIX explaining his participation and his support of the rioters. “What do you think is worse,” he asked KPIX’s Joe Vazquez, “storming the Capitol with a flag or committing treason against your country?” During his tenure as a police officer, Snyder killed one person in 2007 and another in 2013. Several current Oakland police officers expressed support for Snyder’s radical views on Facebook, and the department is investigating its members’ potential support for radical far-right movements.

Butch Conway, former sheriff of Gwinnett County, Georgia, attended the Trump rally but denied participating in any illegal activity.

The watchdog group Documented reported that the Rule of Law Defense Fund—the 501(c)(4) arm of the Republican Attorney Generals Association—issued robocalls encouraging supporters to attend the Trump rally. Many officers who did not attend the rally expressed their support in statements or social media posts.

Notably, John Catanzara, president of the Chicago Fraternal Order of Police, made several comments to NPR affiliate WBEZ echoing Trump’s unsubstantiated claims of voter fraud.  “They’re individuals,” he said. “They get to do what they want. Again, they were voicing frustration. They’re entitled to voice their frustration.”

In Arizona, Pinal County Sheriff Mark Lamb denied Trump’s responsibility for the violent white supremacist attack. At an event outside the state Capitol on Jan. 6, Lamb said, “I don’t know how loud we have to get before they have to listen to us and know we will no longer tolerate them stripping our freedoms away.”

One Secret Service officer is under investigation for making a Facebook post in support of the rally. “Good morning patriots! Yesterday started out beautiful and as usual Antifa soured the mood and attacked police and an Air Force veteran was murdered,” the post read. “It’s OFFENSE time finally!!” There is no evidence that anti-fascist activists were involved in the riot.

In Kansas, a lieutenant with the Sedgwick County sheriff’s office voiced his support on Facebook. “If you are a police officer in Washington, D.C., or a federal officer working in the Capitol, remember that the people in these rallies are on your side,” Jason Gill wrote. “Remember your oath before your orders.”

Sheriff Dallas Baldwin of Franklin County, Ohio, fired a civilian public information officer for writing a Facebook post that criticized Capitol police for failing to stop the Trump riot from breaching the building. “If this was a BLM protest, we’d be seeing tanks and mass casualties,” the PIO wrote. “White privilege at its worst.”

A complete list of law enforcement statements in support of the rally is available on this spreadsheet.

*Editor’s note: The author independently compiled the data herein and created the spreadsheet.

Boston Mayor Marty Walsh’s Legacy of Empty Promises

There may be one reason for local progressives to support Walsh for the U.S. secretary of labor: He’ll leave town.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

Boston Mayor Marty Walsh’s Legacy of Empty Promises

There may be one reason for local progressives to support Walsh for the U.S. secretary of labor: He’ll leave town.

As President-elect Joe Biden’s expected pick for U.S. secretary of labor, Boston Mayor Marty Walsh may not seem like the worst selection. As the former head of the Laborers’ Union Local 223 and the Boston Metropolitan District Building Trades Council, Walsh certainly has old-school union bona fides, and has at least earned the endorsement of many of America’s biggest labor unions, including the United Food and Commercial Workers International Union, the Teamsters, and the AFL-CIO. But Walsh is no one’s idea of a progressive firebrand—left-leaning activists over the last few months pushed for Representative Andy Levin of Michigan, former California Labor Secretary Julie Su, or Senator Bernie Sanders of Vermont, among other candidates.

Walsh, who will deliver his State of the City address today, already has a legacy of, at best, severe missed opportunities in Boston, and, at worst, multiple scandals that should douse cold water on any progressives’ hopes that Walsh would usher in a renaissance of labor rights in America under Biden. And it’s hard to argue that Walsh deserves a promotion to a federal role after his years running the city. But there seems to be at least one reason local advocates might want Walsh, who is nearing the end of his second term as mayor, to take the job: He’ll leave Boston.

As others have repeatedly noted, Boston became a much more difficult place for low-income and working-class people to live under Walsh’s watch. Boston remains a deeply segregated and troublingly unaffordable city, issues Walsh was criticized for failing to address during his tenure in office. Numerous progressives and civil rights groups, including Sanders and the Lawyers for Civil Rights, launched criticism at the city for attempting to build a massive, 163-acre luxury development in historically working-class East Boston.

In 2019, Walsh’s administration decided to simply manhandle the city’s poorest residents. That year, the city launched “Operation Clean Sweep,” in which Boston police cracked down on a homeless encampment in the South End, seemingly in retaliation for what local media has said was an assault on a local correctional officer, though it’s unclear whether the officer himself may have provoked the encounter. At least 34 people were arrested and even more unhoused people were displaced by the raids. One witness tweeted photographs of city workers destroying wheelchairs in a garbage truck.

“They just crushed three wheelchairs!” Cassie Hurd, who leads an advocacy group for unhoused people in Boston,  tweeted on Aug. 6, 2019. “It was heartbreaking to speak with Jarrod, who lost not only his wheelchair, but everything he owns that he keeps in his backpack. He was hit by a car last Tuesday. @CityOfBoston @marty_walsh this is inhumane & cruel.”

On Aug. 5, one day before Hurd tweeted the photos, two top Walsh aides were convicted of conspiring to extort organizers of the Boston Calling music festival in 2014. Then, at the end of the same month, John M. Lynch, a former city employee at the Boston Planning and Development agency, was charged with taking $50,000 in bribes to help a developer build a condo complex.  Lynch later pleaded guilty and federal prosecutors later released a photo of him accepting a $5,000 payoff. Walsh denied any involvement with either plot, but the scandals severely hurt his reputation in the city.

And, perhaps most notably, Walsh has come under severe fire within the last 12 months, after categorically failing to rein in police brutality in Boston during his tenure in office. On May 29, four days after Minneapolis Police Officer Derek Chauvin killed George Floyd, Walsh published a video in which he called the killing an “act of inhumane brutality” and stated that police violence is “something we should all be talking about and working to end.”

Months later, Walsh declined to take action to end police misconduct in his own town. In December, The Appeal obtained footage of Boston Police Department officers bragging about using excessive force on participants in a protest organized by the group Black Boston, pepper-spraying demonstrators, targeting various nonviolent protesters for arrest, and even boasting about using police cars as weapons against demonstrators. In response, Walsh later called the videos “difficult to watch.”

Even when he had an opportunity to support police reforms, Walsh chose another path. On Jan. 5, Walsh announced that he was vetoing a City Council ordinance that would have strictly regulated police use of rubber bullets, tear gas, and other less-lethal weapons.

“In practice, the police commissioner here and the command staff need the authority to make decisions on the ground level that aren’t necessarily feasible based on the parameters that the City Council ordinance was putting forward,” Walsh’s spokesperson, Nick Martin, told The Appeal last week. Various City Council members sharply criticised Walsh’s decision.

If Walsh is ultimately confirmed as Biden’s secretary of labor, City Council President Kim Janey will become acting mayor until the election in November. The two leading candidates to replace Walsh are City Councilors Andrea Campbell and Michelle Wu—who each have governed to Walsh’s left during his tenure as mayor. (Wu, in particular, has significant support from progressive activists in Boston.) Of course, there’s certainly a clear argument to be made that Walsh’s list of scandals as mayor raise significant concerns that he’ll be unable to handle the responsibilities of a cabinet position—or that he may ultimately wind up harming even more people in his new role in the cabinet. But for Boston residents, at least, Walsh’s exit to join the Biden cabinet can be seen as an opportunity to put someone more competent in charge.

What Public Safety Without Police Looks Like

From San Francisco to Philadelphia, cities across the country are creating fully unarmed response teams to address emergencies that used to call for cops.

Robert Gauthier/ Los Angeles Times via Getty.

What Public Safety Without Police Looks Like

From San Francisco to Philadelphia, cities across the country are creating fully unarmed response teams to address emergencies that used to call for cops.

In hindsight, it’s perhaps not surprising that Albuquerque was one of the first major cities last year to announce that it would create an unarmed, civilian team to respond to nonviolent emergencies and mental health crises. The city’s police force has been in disarray for quite some time. In 2014, the U.S. Department of Justice’s Civil Rights Division and the local U.S. attorney’s office found that the city’s cops routinely beat, use stun guns against, and shoot “people who pose a minimal threat,” and that encounters “between Albuquerque Police officers and persons with mental illness and in crisis too frequently result in a use of force or a higher level of force than necessary.” Since then, the city and the federal government have struggled to rein in problem cops and force the department to comply with much-needed reforms.

But, in June, after the police-reform uprising in 2020 that began after Minneapolis Police Officer Derek Chauvin killed George Floyd in May, Albuquerque Mayor Tim Keller announced that his city would create its own, unarmed Community Safety division, which will be responsible for calls related to “inebriation, homelessness, addiction, and mental health.”

“While many cities are only now waking up to these issues, Albuquerque is well into its police reform process and we decided to tackle these tough questions head on when we took office,” Keller, who’s been mayor since 2017, said in a June press release. “For years, we’ve heard the public calling for a better solution for de-escalation and more officers for community policing, and we have been listening.”

Keller’s announcement was one of the first of many major changes that local city governments made after the Floyd uprising, according to a review by The Appeal. While there has been little movement at the federal level to reconceive American policing in any meaningful way, numerous cities have launched significant “civilian responder” pilot programs that will send behavioral health experts and unarmed assistance—rather than cops—to emergencies.

There are few, if any, metrics to show that training armed cops to deal with mentally ill people reduces use-of-force incidents. To the contrary, according to data compiled by The Washington Post, at least 23 percent of fatal shootings by police since 2015 have involved someone with a mental illness. Other sources estimate the proportion is much higher. And, according to a December 2020 study in the peer-reviewed Journal of the American Academy of Psychiatry and the Law, police “crisis intervention team training”—that is, the methods by which armed cops are taught to interact with those with mental illness—aren’t working either. The review found some evidence that crisis intervention team-style training results in more people sent to mental health diversionary courts where they’re available.

“There is little evidence in the peer-reviewed literature,” the study states, “that shows CIT’s benefits on objective measures of arrests, officer injury, citizen injury, or use of force.”

Christy Lopez, Georgetown Law professor and co-lead of the school’s Program on Innovative Policing, told The Appeal, “We’ve come to completely over-rely on police as a response to community needs, public safety and community well-being.”

“We just reflexively send them and they are often not at all the best response to the challenge or problem,” she added.

Before 2020, a few cities had already moved away from using gun-toting cops to handle mental health calls. Most notably, since 1989 the city of Eugene, Oregon, has operated its Crisis Assistance Helping Out On The Streets (CAHOOTS) program, in which thousands of routine emergency calls are diverted away from cops and toward other behavioral health employees or social workers. Of 24,000 calls to the CAHOOTS program in 2019, only 150 required police backup. Following the success in Eugene, other cities, including Portland and Philadelphia, formed similar crisis response teams.

For decades, Eugene’s program was fairly distinct among U.S. cities, but following the anti-police-brutality uprising of 2020 it serves as a model that can be implemented nationwide. In the last half of 2020, city governments in Los Angeles, San Francisco, Denver, Albuquerque, St. Petersburg, Florida, and Minneapolis each moved to create a fully unarmed team of healthcare workers for nonviolent emergencies.

On June 11, San Francisco mayor London Breed announced that the city was developing a “systematic response plan to improve direct connection to community-based or City service providers, such as the CAHOOTS model of crisis response.” In August, her office announced that it would create Street Crisis Response teams, which would respond to nonviolent emergencies and help those in the midst of mental health crises. (According to its own data, San Francisco Police Department officers responded to over 50,000 calls related to mental health and well-being checks in 2019.) On Dec. 1, the city’s police union signed off on the plan.

In June, Denver launched its Support Team Assistance Response (STAR) program, which had been in development before the Floyd protests began. From June through September, the Denver Post reported, the STAR van responded to mental health calls throughout the city without calling police for backup.

In October, the Los Angeles City Council voted 14-0 to begin looking for outside vendors who could work as unarmed first responders for those in crisis across America’s second-largest city.

“By creating a robust non-armed crisis response model, we are investing in the future of our public safety,” council member Bob Blumenfield said during the vote, according to CNN.

And for five days in early December, New York City took a small step toward ensuring public safety without cops. Police officers withdrew from a two-block section of the 73rd Precinct in Brownsville, Brooklyn, allowing community groups to act as violence interrupters and crisis-management groups to patrol the area instead. City agencies also operated booths along the blocks, distributing information on opportunities for housing, jobs, and education.

In 2020, Brownsville recorded 25 murders and 580 felony assaults. But during the Brownsville Safety Alliance experiment, only one call was made to 911—from a bus driver who accidentally activated a distress signal.

“People are just so fearful of crime and the minute you say ‘take the police away,’ their minds just go to those places,” Lopez, of Georgetown Law, said. “We have to be willing to invest in these programs.”

We’re shifting the conversation from police responding to crises to someone else responding in crisis. How about we try to make it that we have far fewer crises?Christy Lopez, Professor, Georgetown University Law Center

Several other cities across the country announced cuts to their police budgets in 2020, with the intention to reallocate portions of those funds to the community and decrease the demand for police.

In August, the Austin City Council voted to cut $150 million from the city’s police department, or roughly one-third of the department’s budget. About $50 million of that reduction will be reinvested in addressing community needs like substance use care, housing, and food access.

Perhaps most notably, Minneapolis, after significant infighting, voted to divert nearly $8 million from the Minneapolis Police Department in order to fund a new team within the city’s Office of Violence Prevention that would respond to mental health crises and small offenses, such as parking infractions.

While activists have demanded that armed cops be excluded from as many encounters as possible, governments in Chicago and Rockford, Illinois, Omaha, Dauphin County, Pennsylvania, and other smaller localities announced plans this year to pair cops with social workers in pilot programs.

Changing who responds to problems is part of the solution to police violence, advocates and organizers say, but many agree that society needs to go further. “We’re shifting the conversation from police responding to crises to someone else responding in crisis,” Lopez said. “How about we try to make it that we have far fewer crises?”

Partners in Crime: The Siege on the Capitol, Police, and White Supremacy

The historical connections were on full display during Wednesday’s violence at the Capitol.

Trump supporters near the U.S Capitol on Wednesday.
Photo by Shay Horse via Getty Images

Partners in Crime: The Siege on the Capitol, Police, and White Supremacy

The historical connections were on full display during Wednesday’s violence at the Capitol.

That a throng of right-wing thugs, neo-Nazis, and insurrectionists were able to barge into the U.S. Capitol building on Wednesday is, to make a severe understatement, troubling. Once again, American cops have expressed support for a right-wing insurrection and, in at least three cases, have taken part in the riot themselves. The obvious contrast between Wednesday’s display and the treatment that Black Lives Matter protesters often face is so easy that it risks obfuscating the long historical connection between law enforcement and white supremacy.

The events on Wednesday didn’t occur without violence and hostilities: U.S. Capitol Police announced on Thursday that one officer, who was injured in a confrontation with protesters, later died; four protesters were killed in the chaos—one of whom was shot by Capitol police. But the links between law enforcement officers and white supremacists groups are appalling—and not surprising.

On Wednesday evening, former Oakland Police Officer Jurell Snyder told Joe Vazquez, a reporter with the Bay Area’s KPIX television station, that he believed it was worthwhile to break the law in order to take a stand against Democrats who, in his mind, had sold out the country.

“What do you think is worse, Joe? Storming the Capitol with a flag, or committing treason against your country?” Snyder asked rhetorically.

Worse yet, on Wednesday, New York magazine reported that David Ellis, the current police chief in Troy, New Hampshire, attended the day’s events, though it’s unclear if he directly took part in the siege on the Capitol. And, late Thursday night, the Bexar County Sheriff’s Office, which oversees San Antonio, Texas, announced that Lt. Roxanne Mathai is under investigation both internally and criminally for posting photographs on Facebook from the riot. Sheriff Javier Salazar told reporters Thursday that his office had forwarded the images to the FBI. San Antonio news station KSAT reported that Mathai has been on administrative leave since October due to allegations that she’d had an inappropriate relationship with an incarcerated person.

Not to be outdone, other cops announced their support for the siege on the internet. On Thursday, Pinal County, Arizona Sheriff Mark Lamb posted a video on Facebook in which he expressed support for the rioters and said he doesn’t “know how loud we have to get before they start to listen to us.” He has since deleted the video.

Likewise, in an interview with Chicago NPR affiliate WBEZ, John Catanzara, head of the city’s Fraternal Order of Police union lodge, expressed support for the mob and spouted debunked conspiracy theories about the 2020 presidential election.

“They’re individuals,” Catanzara said. “They get to do what they want. Again, they were voicing frustration. They’re entitled to voice their frustration. They clearly have been ignored and they’re still being ignored as if they’re lunatics and treasonous now, which is beyond stupid.”

A review by The Appeal shows that police forums are awash in misinformation and right-wing conspiracies about the Capitol riots. On Thee Rant, an anonymous forum for New York Police Department members, one user named “James-Bond007” claimed that “2016 was the last free and fair election that this country has seen.” Another user made the antisemitic remark that someone in the federal government had been paid off with “shekels.” On LEOAffairs, a forum popular with Florida police officers, one anonymous user in the Miami Police Department’s forum wrote that this election was “a push to start an agenda of future communism and dictatorship.”

That an angry mob of armed right-wing insurrectionists was able to so easily push itself into the U.S. Capitol is nightmarish on its face. But it may be a much darker fact to realize that quite so many people vested with the authority to kill others seem so willing to sympathize with those who dream of a violent revolt against the government.

This is, of course, a trend as old as American policing itself. Throughout the 19th and early 20th centuries, police forces—which, in many cases, began as patrols to catch runaway slaves—counted scores of Ku Klux Klan members within their ranks. (In fact, Klansmen across the country routinely bragged about the group’s ties to law-enforcement during the terrorist group’s heyday.) In the 1920s, both Los Angeles County Sheriff William Traeger and Los Angeles Police Chief Louis D. Oaks admitted they’d been members of the so-called Invisible Empire as well. On America’s other coast, the Miami Police Department throughout the 1920s worked openly alongside Klan members to harass Black residents in the city’s segregated areas, Miami historian Paul George wrote in the 1979 journal article “Policing Miami’s Black Community, 1896-1930.”

In the years since the Klan fell from prominence, researchers and even the federal government have warned that white supremacists have continued to work closely with local cops. In 2017, The Intercept obtained documents confirming that the FBI had investigated “active links” between local law-enforcement members, white supremacists, and members of armed militia groups. Some of those “links” aren’t entirely secret: According to the Southern Poverty Law Center, a worryingly large number of American sheriffs have expressed sympathies with the a group called the Constitutional Sheriffs and Peace Officers Association (CSPOA), a militia-adjacent group that pushes cops not to enforce gun-control laws that, in their opinion, violate the U.S. Constitution.

Indeed, CSPOA’s 2012 sheriff of the year—former Grant County, Oregon Sheriff Glenn Palmer—was known for his close ties with local militia groups. According to the SPLC, Palmer had repeatedly met with and expressed sympathies for the armed, right-wing insurrectionists led by Ammon Bundy who, in 2016, occupied the Malheur National Wildlife Refuge in Harney County, Oregon.

Another CSPOA sheriff of the year, Dar Leaf of Barry County, Michigan, made headlines in October, after reporters exposed that he had shared a stage at an anti-coronavirus-lockdown rally with one of the men charged with attempting to kidnap Michigan Governor Gretchen Whitmer last year. Speaking to West Michigan’s Fox affiliate, Leaf defended the men. He said he knew two of the accused plotters, but said he thought they were good people who might have been, in his opinion, trying to perform a citizens’ arrest on the governor.

“It’s just a charge, and they say a ‘plot to kidnap’ and you got to remember that,” Leaf astoundingly said. “Are they trying to kidnap? Because a lot of people are angry with the governor, and they want her arrested. So are they trying to arrest or was it a kidnap attempt? Because you can still in Michigan if it’s a felony, make a felony arrest.” In December, Leaf filed a lawsuit alleging voter fraud in 2020’s presidential election.

That police officers—who count massive numbers of Trump supporters in their ranks—treated a pro-Trump mob with kid gloves should surprise no one. Deeper than a question of policing, the event displayed American law enforcement’s centuries-long links to white supremacy.

Correction: An earlier version of this article stated that the protesters were unarmed. Many of them were.

What Prosecutors Should Learn from 2020’s Pandemic and Protests

In the new year, every prosecutor’s office should commit to protecting victims and workers, holding police accountable, and keeping families together.

A man kneels before a line of police in riot gear on Middle Street in Portland, Oregon, during a protest on June 2, 2020.
Photo by Gregory Rec/Portland Press Herald via Getty Images.

What Prosecutors Should Learn from 2020’s Pandemic and Protests

In the new year, every prosecutor’s office should commit to protecting victims and workers, holding police accountable, and keeping families together.

This commentary is adapted from an article by the author published earlier this year by The Journal of Criminal Law & Criminology at the Northwestern Pritzker School of Law.

Our nation’s collective response to the two defining events of 2020—a deadly health pandemic and a national movement against racism and violence in policing—will have lasting repercussions. The COVID-19 pandemic and the murder of George Floyd have forced many Americans, district attorneys in particular, to question whose safety and wellness our country prioritizes—and why. While this year has been defined by tragedy and loss, 2020 does not have to be a year framed solely by pain: there are also opportunities for transformation and growth, including in the criminal legal system.

As a newly elected prosecutor, I know that there is much work ahead. Reimagining justice and safety starts with taking bold steps to transform the prosecutor’s office to protect victims and workers, hold police accountable, and keep families together. As district attorneys, we must work to create safe and healthy communities by protecting those made vulnerable by crime. Prosecutors have long mistaken justice for convictions and lengthy prison sentences. This must change. To this end, the San Francisco District Attorney’s Office (SFDAO) has committed to supporting all crime victims, especially survivors of domestic violence and those impacted by police violence.

For instance, the isolation of COVID-19 has further endangered domestic-violence survivors, including children, while also posing greater impediments for victims to get help. Through a mix of public and private partnerships, my office secured free housing for survivors and their children. Our initiative has expanded to include hotel rooms for emergency use, housing through Airbnb, and transportation through Lyft. Accessing these resources does not require crime victims to participate in prosecuting a criminal case. We also implemented a policy to provide victims of police violence with victim compensation benefits even when the police do not corroborate their accounts.

COVID-19 has also demonstrated the real danger created by mass incarceration. Not only do jails rip apart families and derail lives, but they also create the ideal conditions for the coronavirus to spread. By looking carefully at each person in our jails and by early and safely releasing people whose release posed minimal safety risks, we reduced San Francisco’s jail population from 1,238 in January to a low of 696 in mid-April. As a result, we have so far avoided a serious outbreak in our jails like those facing other jails and prisons around the nation.

To protect workers, including those put at risk by working during the pandemic, the SFDAO launched a unit to safeguard them from exploitation. We know that this is central to our mission of ensuring the safety of the entire community, because harm to workers has ripple effects on their families. Our new Economic Crimes Against Workers Unit (ECAW) investigates violations by employers such as wage theft or misclassification of essential workers as independent contractors instead of employees, leaving workers without basic protections like paid sick leave.

Promoting justice in the legal system requires us to deeply reckon with the racism permeating throughout our criminal legal system. Today’s system is a chilling reminder of the lasting consequences of the centuries of systemic racism that began with slavery and have extended through Jim Crow, discriminatory housing policies, and the Drug War. To sever ties with this shameful history, the SFDAO has eliminated the use of status enhancements that exacerbate racial inequalities while undermining public safety. We created a diversion program for primary caregivers to keep families together and end the inter-generational cycle of incarceration. And we have led the nation in our refusal to seek money bail, a system that has criminalized poverty and disproportionately hurt people of color.

To rebuild trust with citizens, ensure the integrity of our cases, and value Black lives, we must hold police to account. The badge should not be treated as a shield from prosecution; district attorneys must show that no one who breaks the law is above it. The SFDAO sponsored a ban on the city’s hiring of police officers who have a history of misconduct for excessive use of force, racial bias, or dishonesty. We refuse to charge contraband cases based on racist, pretextual traffic stops by police. To ensure that the SFDAO is not complicit in covering up excessive use of force by police, we require corroborating evidence, such as video surveillance footage, for allegations like resisting arrest or assault against an officer. We have also implemented a new policy against relying solely on reports from officers with a history of serious misconduct. This will prevent future wrongful convictions, deter misconduct by law enforcement, build public trust, and restore integrity to the criminal legal system.

The role of a district attorney is to build public safety and promote justice, and these steps toward implementing the lessons learned from 2020 are just a start. Truly addressing the societal issues that drive crime cannot be accomplished with narrow reforms that ignore broader contexts. Promoting public safety means thinking big: considering public health, education, employment, housing, the environment, and more. After all, healthy, equitable communities are safe communities. For too long, we’ve allowed politicians to create fear based on a selective definition of “law and order”—one that reinforces an unjust system that benefits the privileged and criminalizes the most vulnerable. Prosecutors have a real opportunity to transform our broken criminal legal system and to create a world where we can all feel safe. It’s time we acted.

Spending billions on policing, then millions on police misconduct

Photo by Drew Angerer/Getty Images

Spending billions on policing, then millions on police misconduct

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

In 2017, the coalition Freedom to Thrive looked at the enormous outlay on policing and incarceration across the U.S.—over $180 billion annually—contrasting it with the systemic underinvestment in marginalized communities. The report celebrated the work of invest-divest campaigns which advocate for “investments in supportive services and divestment from punitive institutions.” It pointed to the importance of processes like participatory budgeting, which gives communities a voice in local funding decisions.

Kumar Rao of the Center for Popular Democracy was one of the authors of the report. “As a nation we’re spending over $100 billion a year on policing and the vast bulk of that is actually at the local level,” he told The Appeal in June. “In cities, the single largest allocation of resources is going to the police department. … No place has unlimited resources and there are tradeoffs involved in that kind of expenditure on policing. It means less investment in the things that keep communities safe.”

Nor do policing budgets reflect the entirety of policing-related expenditure. Gothamist reported Tuesday that New York City, with a policing budget over $5 billion, has also already spent nearly $40 million on police misconduct settlements this year. That amount does not include settlements of claims for which no lawsuit was even filed. According to the Chicago Reporter, the city of Chicago spent more over $100 million on lawsuit settlements in 2018. In Los Angeles, the city paid out a total of $880 million in settlements between 2005 and 2018; the police department, at more than 40 percent, was the largest contributor to that total.

These high settlement costs are the result of high levels of police abuse. Cities should be paying people who suffer abuse at the hands of the police and families who lose their loved ones. Payments to the families of Eric Garner or Kalief Browder in New York were necessary though, of course, deeply insufficient.

The issue is not the cost of settlements but the policing that leads to them. Most settlements are in the thousands, rather than the millions. Given the criminal legal system’s unwillingness to hold police accountable, these settlements are often the only form of acknowledgment victims will receive. And people who receive settlements are only a tiny fraction of police misconduct victims. Most lack the resources, wherewithal, and willingness to sue.

The issue is with the continued investment in agencies that seem ill-equipped to deliver safety and continue to inflict violence.

Recently, jurisdictions have been resisting the pressure to add to law enforcement budgets. In St. Paul, Minnesota, last year, Mayor Melvin Carter rejected a request for 50 new police officers. In a statement explaining his decision, he wrote: “The philosophy that more police officers, tougher prosecutors and bigger jails equal a safer city has failed. Our driving goal shouldn’t be to hire as many officers as possible but to reduce the number of times we have to call police in the first place. The City currently spends three times more on police and fire services than on recreation centers and libraries. As long as we focus more on responding to emergencies than on preventing them in the first place, we’ll never have enough police officers.”

In February, commissioners in Harris County, Texas, voted against funding 102 new prosecutors, as requested by District Attorney Kim Ogg.

In June, the City Council in Durham, North Carolina, voted against funding 18 new police officers at an added cost of $1.2 million a year. It voted instead to raise the wage for part-time city workers to just over $15 an hour.

Jillian Johnson, mayor pro tempore, speaking with The Appeal a few days after that vote, explained the City Council’s reasoning. “We’re not interested in increasing policing without some strong evidence that it’s what will make us safer as a community and that evidence doesn’t exist,” she said.

There is also the argument that when police engage in misconduct, the money for settlements should come, if not from individual officers, then at least out of policing budgets. Jonathan Ben-Menachem made this argument with respect to Chicago in The Appeal recently. The city spent $113 million on police misconduct settlements in 2018. The response, Ben-Menachem wrote, in a city struggling with a deficit and looming pension contributions, should be to “reduce the department’s budget by $113 million in 2020 to match the city’s losses because of police misconduct in 2018.”

“Better yet,” he wrote, Mayor Lori Lightfoot “could make that budgetary reduction permanent. At a roughly $1.5 billion annual expenditure—approaching 40 percent of Chicago’s general fund and 18 percent of its total budget—Chicago has one of the best-funded police departments in the country. For every $1 the city spends on policing, it spends just 6 cents on the Department of Family and Support Services and 12 cents on the Department of Planning and Development.”

Ben-Menachem’s argument echoes the recommendations of Campaign Zero, an effort launched in 2015 to end police violence. The campaign’s website says, “Police should be working to keep people safe, not contributing to a system that profits from stopping, searching, ticketing, arresting and incarcerating people.” It recommends two policy proposals to get there: require that misconduct settlements be paid out of the police department budget instead of cities’ general funds and restrict police departments from receiving more money from the general fund when they go over budget on lawsuit payments.

In 2016, Joanna Schwartz, a UCLA law professor and policing expert, took an in-depth look at 100 cities around the country to understand how lawsuits were paid. Schwartz found that even in jurisdictions where police were responsible for settlements, the payments came out of funds specifically allocated for that and could not be used for anything else. When settlement costs ran over what was allocated in police budgets, cities found money from elsewhere. Essentially, police gained no financial reward  for less misconduct, and suffered no financial penalty for more.

Protecting Campus Police

The New Jersey General Assembly unanimously passed a bill to extend qualified immunity to police officers at private colleges and universities.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

Protecting Campus Police

The New Jersey General Assembly unanimously passed a bill to extend qualified immunity to police officers at private colleges and universities.

Presidential candidate Julián Castro called for the end of qualified immunity at Wednesday night’s Democratic presidential debate.

“We need to ensure we have a national use-of-force standard and that we end qualified immunity for police officers so that we can hold them accountable for using excessive force,” Castro said, as he invoked the names of Tamir Rice, Michael Brown, and Eric Garner.

Castro echoed the growing number of critics of qualified immunity who say that the doctrine protects law enforcement at the expense of victims of police violence.

But at a time when the doctrine is drawing fire from progressive and conservative circles, the New Jersey General Assembly unanimously passed a bill in June to extend immunity to police officers at private colleges and universities, and to the institutions themselves. A similar version of the bill has been introduced in the Senate but has not yet been heard in committee.

Rather than extend immunity, New Jersey criminal justice reform advocates say, it’s time to abolish it altogether and instead focus on holding officers accountable. Private colleges and universities should work to protect the civil rights of those who interact with campus police, said Micah Herskind, a student activist who graduated from Princeton University in June. Princeton, along with Monmouth University and Stevens Institute of Technology, publicly support the bill.

“You only need immunity for police violence if you plan on allowing for police violence,” said Herskind. “They’re trying to protect themselves from the fallout of police violence rather than trying to make sure police violence never happens in the first place.”

Under the federal Civil Rights Act of 1871, known as Section 1983, government officials, such as municipal police officers, can be sued for financial damages if they violate a person’s civil rights while acting in their official capacity. However, the U.S. Supreme Court established a doctrine known as qualified immunity that critics say has gutted the statute over recent years. For a civil rights claim to be successful, qualified immunity requires that the injured party show that a clearly established right was violated. This places the onus on victims to find a previous case with a nearly identical fact pattern, according to critics of the doctrine.

Qualified immunity allows officers to escape accountability, said Diane Goldstein, a retired police lieutenant and a board member of the Law Enforcement Action Partnership, an organization that advocates for criminal justice reforms. New Jersey’s bill treads down the same path, she said.

“This bill will further protect law enforcement from being accountable for incompetence, for gross negligence,” said Goldstein. “If we can’t hold the criminal justice system accountable, where can citizens go?”

The bill’s supporters say it would simply grant officers at private educational institutions the same protections as municipal and state officers. “These brave men and women put their lives on the line every time they show up to work, and they deserve the same treatment as other police officers who do the same,” Assemblymember Roy Freiman, the bill’s primary sponsor, told The Appeal in an emailed statement.

Alexander Shalom, senior supervising attorney at the ACLU of New Jersey, however, says immunity for any officers is a problem. “The assumption of the bill is that qualified immunity is good and we’ve granted it to some, therefore we should grant it to all,” he said. “That’s an assumption that needs to be challenged.” Shalom said he can understand the desire for parity among officers, but the larger question is: “Do you level up or level down?”

Already, Shalom said, it is difficult for victims of police violence—who are disproportionately Black—to hold officers accountable. A Black person in New Jersey was more than three times more likely to be the victim of police force than a white person, according to The Force Report, an investigation by NJ Advance Media for that was published in November.

The Force Report is a database of use-of-force incidents by New Jersey municipal and state officers from 2012 to 2016. Campus officers at public or private colleges and universities were not included in the study.

Not only did the report reveal an epidemic of police violence directed at Black residents, but it exposed a system that failed to systematically track use-of-force incidents. “New Jersey’s system for tracking police force is broken, with no statewide collection or analysis of data, little oversight by state officials and no standard practices among local departments,” reads the report.

In the wake of the report’s release, the New Jersey attorney general announced reforms and promised to host “listening sessions.” Civil rights leaders also held a series of forums to hear from victims of police violence. Timothy Adkins-Jones, pastor of Bethany Baptist Church in Newark, hosted the first forum in March.

“This is going in the exact opposite direction that we have been calling for,” Adkins-Jones, speaking with The Appeal, said of the bill before the New Jersey legislature. “We’ve been calling for greater accountability, greater points of oversight.”

Inside Adkins-Jones’s church in the spring, reported, civil rights leaders listened as parents spoke of losing their sons to police violence and a mother recalled being brutalized in front of her children. “There’s such deep hurt and pain and experiences that people have had with the police,” Adkins-Jones told The Appeal. “Any movement toward taking power away from people is going to be throwing salt in a wound that is already quite deep.”

The state’s approximately 70 private campus officers match their public sector peers in terms of training, powers to arrest, accountability to local prosecutors’ offices, and obligations to abide by attorney general directives. Officers at Stevens Institute of Technology “are armed with handguns,” Thania Benios, director of public relations at Stevens, wrote in an email to The Appeal. Monmouth University officers are armed as well, according to John Christopher, vice president and general counsel at Monmouth. Princeton campus officers, however, “are unarmed on a daily basis,” but “have access to a rifle in two limited situations, an active shooter incident or when there is someone brandishing a firearm on campus,” according to the university’s Department of Public Safety website.

According to Stevens’s internal affairs report, there were four complaints against campus police last year: three for “demeanor” and one for “other rule violation.” All use-of-force reports are sent to the county prosecutor and the New Jersey attorney general, according to Benios. At Princeton, police generated use-of-force reports last year for incidents involving two people, according to documents provided by the university.

Princeton student activist Nathan Poland, a 21-year-old rising senior, told The Appeal that the university’s support of the bill shows misplaced priorities. “To focus on mitigating consequences for the officers rather than trying to mitigate civil rights violations in the first place was really concerning to me,” he said.

In June, Paul Ominsky, assistant vice president for public safety at Princeton, testified to the General Assembly’s Law and Public Safety Committee. “Campus police officers serve a public purpose and should be eligible for the same immunity protections as the local officers with whom they work side-by-side,” he said.

While the officers may serve a public purpose, they are employed by private entities with private interests to protect that are not accountable to the public, said Kevin Costello, president of the New Jersey Association for Justice, a group of more than 2,000 attorneys and other legal workers. “They’re giving the institutions themselves a complete pass,” he said.

Public agencies and their officers are subject to accountability measures not required of private institutions, according to Costello. For instance, he said, residents can vote out the mayor, who appoints the police chief. Most concerning, said Costello, is that it is unclear if privately employed officers can be sued under state or federal civil rights statutes, like their public counterparts.

“If Princeton’s police officers violate the civil rights of somebody,” Costello said, “I can’t use the state or federal civil rights law without some danger that those claims might be dismissed, because even though both allow me to sue anyone who is ‘acting under color of law,’ that’s a debate when you’re dealing with a private individual who assumes the mantle of public action. It’s never a debate when it’s a public actor.”

Also, unlike public police departments, private campus police departments may not have to comply with the state’s Open Public Records Act. The Force Report was built from more than 72,000 documents obtained through hundreds of public records requests of municipal police departments and the state police.

Officials with Stevens and Monmouth told The Appeal that as private institutions they are not subject to the Open Public Records Act. Princeton’s Department of Public Safety, however, did comply with The Appeal’s records request. “The University’s Department of Public Safety follows guidance from the local prosecutor’s office and the state attorney general’s office in responding to requests for information under the Open Public Records Act,” a university spokesperson said in an email.

The New Jersey bill, if passed, would bestow already problematic protections on privately employed officers and their employers—entities that are not beholden to the public, said Costello. “When people are not accountable, people tend not to be safe,” he said.

Prison Systems Can Respect the Religious Rights of Muslims. State Government Should Ensure They Do.

Photo by John Moore/Getty Images

Prison Systems Can Respect the Religious Rights of Muslims. State Government Should Ensure They Do.

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

For years, civil rights organizations have litigated cases on prison systems’ failures to respect the rights of Muslim plaintiffs to practice their faith. In a report published last week, the civil rights organization Muslim Advocates examines the treatment of incarcerated Muslims.

The report sets out to answer two broad questions. The first is a numerical one. How many people in state prison identify as Muslim? Previously available figures showed that 12 percent of people in federal prisons are Muslim.

In response to records requests to 49 states and the District of Columbia, Muslim Advocates received data from 34 state prison systems. For those 34 states, Muslims are, on average, overrepresented in the prison population by a factor of eight. In some states, they are overrepresented by a factor of 18. (The figures cannot be extrapolated to the U.S. prison population as a whole, given the lack of data from many states, including California, which has the second-largest prison population among the states behind Texas, whose data is included.) Of the states that responded to the request, Muslims make up more than 20 percent of the prison population in three, as well as in the District of Columbia. Across the U.S., Muslims are around 1 percent of the general population.

The reasons for the overrepresentation are not fully known, as the study’s main author told Vice, but “possible factors are the growth of the Muslim population in the U.S. generally, increased surveillance, harsher sentencing, and enforcement for Muslim communities, as well as conversions in prison.”

Despite the fact that Muslims make up a large, and growing, portion of people who are incarcerated, prisons systems vary greatly in how they respect the rights of incarcerated Muslims. This was the second question Muslim Advocates set out to examine. Through a review of over 163 recently filed federal lawsuits, and a review of policies in place in every state and the District of Columbia, the report identified the most common problems that Muslims experience in practicing their faith while incarcerated, and the large variation in state corrections systems’ policies on how to facilitate their freedom to practice.

In the lawsuits reviewed for the report, the most common complaints were about difficulty obtaining religiously compliant diets and about access to group worship. In more than a third of the cases, plaintiffs described being denied halal food to break fast during the month of Ramadan and other times. In many cases, requests to worship in a group, even occasionally, are subject to scrutiny not applied to group worship by members of other faiths.

The report highlights the fact that people who sue in federal court are inevitably a small fraction of all those who believe their rights have been violated. Yet, “roughly every three days, one Muslim prisoner is sufficiently aggrieved by the lack of accommodation he or she faces to file a federal lawsuit. To file such a lawsuit, a prisoner must pay fees and overcome other serious obstacles to litigating, including the inability to obtain legal representation, fear of retaliation, difficulty conducting legal research, and lack of materials for mailing.”

In comparing policies across states, the researchers found enormous variation. “The level of accommodation of Muslim practices is highly variable across states, even though the same strict legal standard imposed by RLUIPA [the Religious Land Use and Institutionalized Persons Act of 2000] applies to all states.” This variation, the report’s authors argue, suggests that, “in most cases, the non-accommodating policies are unnecessarily burdensome and not connected to any ‘compelling’ prison interest, and hence, are in violation of federal law.”

The report discusses what is perhaps the most well-known example of, at best indifference, and, at worst, hostility to the religious beliefs of Muslims from this year, the execution of Domineque Ray in Alabama. It was routine in Alabama for a Christian chaplain to be present in the execution chamber. Ray, a Muslim, requested the presence of his imam. The state denied the request.

Judges in the 11th Circuit appellate court granted a stay, describing what they saw as a “powerful Establishment Clause claim.” But the Supreme Court, in a 5-4 decision, overturned the stay, saying Ray had waited too long to object. He was executed, while his imam watched from the viewing room.

The 11th Circuit’s decision to issue a stay read: “The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.” As Justice Elena Kagan wrote in her dissent, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

In Slate, Dahlia Lithwick’s appraisal of the majority’s decision was stinging: “This is a court that has staked its moral legitimacy on the proposition that religion, above all, is at the very core of humanity, to be elevated in all instances no matter the competing interests. In so many faiths, there is no more sacred moment than entry and departure from this life. But never mind. For a court that cannot bear the thought of a religious baker forced to frost a cake in violation of his spiritual convictions to be wholly unaffected at the prospect of a man given last rites by a member of another faith borders on staggering.”

Ray’s case illuminates the challenge of even dying in accordance with the tenets of ones faith if one is Muslim in prison. As the new report demonstrates, across the country, people in prison also face challenges over the more quotidian aspects of practicing their faith, including the food they seek to eat and the chance to make daily prayers.

Today, the challenges affect a significant portion of people in state prisons. But the fact that there is a gulf between the best state policies and the worst demonstrate that it is amply possible for corrections systems to devise policies that accommodate the rights of Muslims in prison. The report also makes clear that the struggles of Muslims fighting to observe their religion have had implications for the rights for all imprisoned people.

At a time when anti-Muslim action and rhetoric is a given from the White House, it is important to recognize that this issue is squarely within the purview of state governments. Governors, in particular, who appoint corrections commissioners, should be held accountable for the treatment of Muslims in the prisons they run.

A Night in Jail Over $2.75

In 2017, the Manhattan district attorney pledged not to pursue criminal charges for subway fare evasion. Now the MTA is increasing the system’s police presence.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

A Night in Jail Over $2.75

In 2017, the Manhattan district attorney pledged not to pursue criminal charges for subway fare evasion. Now the MTA is increasing the system’s police presence.

In 2017, Cy Vance, the Manhattan district attorney, pledged not to pursue criminal charges against those accused of not paying to use the subway, known in New York’s penal code as “theft of services.” He included an exception for “those individuals who pose a demonstrated threat to public safety,” according to his original announcement. Shortly after, Brooklyn District Attorney Eric Gonzalez said he would implement a similar policy.

“If someone is carrying a gun and they are evading the fare, that’s someone who should get arrested,” Vance told The Appeal in response to a question about why the exception exists. “There are going to be instances where people are stopped, where police have an indication that there is other criminal activity that is unrelated to the fare evasion that needs to be addressed.”

In effect, advocates say, the exception leaves room for New Yorkers to still be pursued for failing to pay the subway fare. And on July 20, Danny Frost, the director of communications for Vance’s office, tweeted that the policy not to prosecute fare evaders applies only to the city’s subway system, not to its public buses.

“We do not prosecute this very frequently, and when we do, our standard offer for a first or second arrest is an adjournment in contemplation of dismissal or a plea to a non-criminal violation,” Frost said in an email to The Appeal.

Last December, the Metropolitan Transportation Authority, which runs the city’s subways and buses, presented data that it says shows the number of people riding without paying has recently increased, costing the MTA millions of dollars. In June, Governor Andrew Cuomo, who oversees the agency, announced the addition of 500 police officers to the transit system, 200 from the NYPD, to enforce a crackdown. MTA officials have said that the increased presence of officers throughout the system, an action that Vance supported, is about “deterrence,” not making arrests.

But along with the exceptions to the original policy change, advocates worry that the increased police presence will only result in more incarcerated New Yorkers, more residents with criminal records, and more people who are punished for being poor.

“It’s not clear what exactly that enforcement will mean. And … it could mean very different things in different jurisdictions,” said City Councilmember Rory Lancman. “Depending on which borough you’re stopped in, you might find yourself spending the night in jail and having a criminal record for the rest of your life for not paying a $2.75 fare.”

Vance argued that he supports what he calls “effective deterrence”—the presence of officers in subway stations. “Having more individuals stationed around exit gates and physically around subway stations is going to act as a deterrent to individuals who think that they can walk through because no one is around,” he said. “I think their presence is going to enhance public safety and not necessarily result in more arrests.”

But advocates argue that a more effective solution would be to help make sure that people can afford the transportation costs—not to entangle them in the criminal legal system. “If the intention is to ramp up the stopping or summonsing of people who can’t afford to get on the subway but still need to get around the city, then [adding more police] seems to me to be a serious misuse of resources,” Matt Daloisio, an arraignment attorney with the Neighborhood Defender Service of Harlem, told The Appeal. “The money that’s spent hiring and training all of these officers could be put into a pool of money to subsidize transit access to people who can’t afford it.”

The number of arrests for fare evasion has fallen across all of the boroughs over the last few years, with Manhattan seeing the biggest decline. According to its own data, the NYPD has made 992 arrests citywide through the first quarter of this year. In the same period, NYPD officers issued nearly 19,000 summonses. In Manhattan, the NYPD reports making one arrest for every 46 summonses. Brooklyn reports 264 arrests, the second-highest number behind the Bronx.

Since 2017, when Vance and Gonzalez made their pledges, prosecutions in both boroughs have dropped. In Manhattan, 39 fare evasion cases were referred to the DA’s office last month and 15 in the first half of this month. Last year, there were 59 in June and 50 in July, compared with 689 in June 2017 and 507 that July. According to data that Gonzalez’s office shared with The Appeal, it pursued 23 theft-of-services cases last month, compared with 161 in June 2018 and 340 in June 2017.

“We now only put through cases when we believe the defendant poses a potential risk to public safety,” Oren Yaniv, director of communications for the Brooklyn DA’s office, said in an email. “We continuously re-evaluate our policies to ensure they make a meaningful impact and expect to see further decline as we push more cases out of the criminal justice system.”

But even if the increased enforcement results in prioritizing summonses over arrests, there would still be more people getting tangled up in the criminal legal system simply because they can’t afford the fare. “Someone who can’t afford the subway is now being forced to take time out of looking for work or working … to [go] to a court date where they may or may not have a fine imposed on them that they may or may not be able to afford,” Daloisio said. It only gets worse if they can’t, for whatever reason, make it to court. “Now you have a person with an open warrant,” he said. “Any other contacts they have with the police … it now becomes an arrestable offense. People risk ending up with criminal records or adding to criminal records, which have all sorts of collateral consequences.”

Even a situation that would normally result in a summons can escalate and lead to more serious charges. In one recent case Daloisio witnessed in arraignment, a young woman hopped a turnstile and then was pulled off the train by a police officer. She was charged with resisting arrest and spent the night in jail. “She came through the whole system essentially because she didn’t have the $2.75 she needed to get on the subway,” Daloisio said.

The effects from the focus on fare evasion will not fall evenly across city residents, either. In a report that the Community Service Society of New York released at the end of 2017, the organization found that young Black men made up half of all fare evasion arrests in Brooklyn. The report also shows that arrests were most concentrated at stations near poor, Black neighborhoods.

But the overall lack of data makes it difficult to impossible to know how the enforcement of fare evasion has changed across the city. “We don’t have any way to measure what they’ve done to ramp that up,” said Harold Stolper, senior economist at CSSNY. “We just see the enforcement actions that result.” The City Council passed a law in 2018 requiring the NYPD to report quarterly information on fare evasion enforcement across the city, but the NYPD has only been releasing detailed demographic information for some stations. In addition, the department doesn’t clarify which stations it’s referring to in its data—there are several stops along 125th Street, for example. So there’s no way to systematically track arrests and summonses over time. Lancman has filed a lawsuit against the mayor and police commissioner to release the full data.

But even so, people of color still appear to be disproportionately targeted. “Even as arrests have gone down, the racial disparities among those arrested have not changed at all,” Stolper noted. Looking at the limited NYPD data, he found that 90 percent of those arrested were people of color, as were about three-quarters of those who received summonses.

Lancman said: “I would have liked to have seen a very clear statement [from] the MTA that this new enforcement strategy is going to be focused on deterrence and civil consequences rather than criminal consequences. I think that was left ambiguous.”

In December, the MTA released a report showing a big increase in fare evasions last year, which the agency says amounted to a $215 million loss. “The period of reduced overall enforcement actions corresponds with the rise in fare evasion,” the report said. However, the MTA did not release reliable information on the methodology behind its data. A thorough accounting of fare evasion would have required looking at a representative sample of stations and watching what took place at the same time of the day and same time of the year over time. It’s not clear whether the MTA did that; the slides simply say that its staff visited “several assigned subway stations/bus routes each day” consisting of 180 stations and 140 bus routes each quarter. The agency did not respond to a request for more information on its methodology.

“We’re not in a position to either agree or disagree with that claim based on the information that they’ve put out,” Stolper said. Either way, he added, “I don’t think fare evasion is the first factor that’s holding back the MTA from providing better service.”

Ben Fried, communications director for the public transit advocacy foundation TransitCenter, agreed. “I definitely don’t think fare evasion is the top budget issue,” he said. “Not by a long shot.”

Even though advocates acknowledge that the system lost $215 million to fare evasion, they argue that it’s a relatively small sum. The MTA’s operating budget in 2018 was $16.7 billion, of which about $8.8 billion goes to New York City Transit and the Staten Island Railway. “There are deeper pockets we should be looking to than the pockets of the poor when we talk about balancing our transit budget,” said Danny Pearlstein, policy and communications director at Riders Alliance.

“This is a political fix,” Pearlstein argued. “Fix the subway first, fix the MTA first, and then come back and see whether riders occasionally slip through the cracks.”

Last year, the city passed a budget that included funding for half-priced subway cards for low-income residents, a program known as Fair Fares. Advocates had expected that the 800,000 New Yorkers who live below the federal poverty line would be eligible for the porgram, but only 30,000 people were eligible when the program began in January. Mayor Bill de Blasio and City Council Speaker Corey Johnson have since committed to expanding the program to all New Yorkers living below the poverty line by January 2020. So far, it’s off to a slow start: The city has enrolled only about 60,000 people.

“For almost anybody who jumps a turnstile or doesn’t pay a fare, it’s a poverty issue, not a criminal justice issue,” Lancman said. “We should be fully implementing and expanding the Fair Fares program that the council established last year.”

Advocates also contrast the way the city handles those who fail to pay for public transit with how it handles those who fail to pay for parking or for bridge and tunnel tolls. People who don’t pay for street parking in downtown Manhattan, for example, only face a $65 fine; farther north on the island and in the other boroughs, the fine is just $35. People who can’t pay the toll to enter the city through a bridge or tunnel have 15 days to mail in the amount without additional penalty. Beyond that time, the penalty for nonpayment is a fine of $50 to $100.

“If you don’t pay tolls, you’re basically given the benefit of the doubt,” Stolper said. “You’re allowed to pay after the fact and there’s never any criminal consequences.”

Other cities have taken different approaches to fare evasion. Last year, Portland, Oregon’s transit system TriMet announced a new policy that gives riders 90 days to resolve citations directly with the agency before law enforcement can become involved. In those 90 days, riders have the option of paying a fine—$75 for the first offense—doing at least four hours of community service, or simply enrolling in the city’s reduced fare program if they qualify. A rider may also provide evidence that the citation was given in error and have it dismissed.

San Francisco and Seattle also have civilian fare enforcement, rather than relying on the police. Both cities offer nonmonetary options, such as community service, to resolve a citation.

“The move to decriminalize fare evasion is happening across the country,” said Hayley Richardson, senior communications associate with TransitCenter. “We want to be on the cutting edge of things here in New York.”

The Government’s Arguments for Restoring the Death Penalty All Fail

Photo by Chip Somodevilla/Getty Images

The Government’s Arguments for Restoring the Death Penalty All Fail

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Yesterday, Attorney General William Barr announced that the federal government would begin executing people for the first time since 2003. He seemed to justify this decision in four ways: first, the death penalty is what the American people want, second, these people have committed acts so heinous that no one should care if they live or die, third, the system is fair and accurate, and fourth, killing prisoners will bring peace to victims. “Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the president,” Attorney General Barr said.  “Under administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

All of these arguments fail.

The death penalty in the U.S. is dying. New death sentences are plummeting, and the few that do come down are coming from a handful of outlier jurisdictions, with 31 percent of the sentences coming from three counties: Riverside in California, Clark in Nevada, and Maricopa in Arizona. Two percent of counties nationwide now account for the majority of prisoners on states’ death rows.

Even when prosecutors seek the death penalty, juries around the country are often resisting them. In Wake County, North Carolina, home to Raleigh, juries have declined to sentence a defendant to death in eight out of eight cases over the last decade. After the last life sentence, the elected prosecutor stated: “At some point, we have to step back and say, ‘Has the community sent us a message on that?’”

A Gallup poll in October 2018 found that 56 percent of Americans still favor the death penalty for murder. But these numbers have trended downward since the mid-1990s. And, as Matt Ford noted in The New Republic, “While most Americans may favor the death penalty in theory, the actual practice is a remote abstraction for them.” According to Rob Smith, executive director of The Justice Collaborative (publisher of the Daily Appeal), the more revealing metric for public support is that when asked to make real life-or-death decisions about a real person in a real case, prosecutors increasingly don’t seek and jurors don’t return death sentences.

Curiously, only 49 percent of Americans told Gallup they thought the death penalty was applied fairly. This might prompt a person to ask: What’s going on with the 7 percent of people who don’t agree that the death penalty is applied fairly but are still in favor of it? We might wonder why we don’t defer more to experts, who tell us that the death penalty is not only unfairly applied, but it also accomplishes none of its stated goals.

Recently, Philadelphia District Attorney Larry Krasner has asked the Pennsylvania Supreme Court to declare that the death penalty violates the state’s Constitution. “Because of the arbitrary manner in which it has been applied, the death penalty violates our state Constitution’s prohibition against cruel punishments,”  his office argued in a brief. “It really is not about the worst offenders,” Krasner told The Appeal. “It really is about poverty. It really is about race.”

Out of the 45 people on death row from Philadelphia, 37 are Black, and four are from other “minority groups,” according to the brief. Seventy-two percent of Philadelphia’s death cases have been overturned, almost half due to ineffective assistance of counsel. Among those on death row, 62 percent were represented by an attorney found to be ineffective in another capital case. “These were people too poor to afford their attorneys,” Krasner told The Appeal. “These attorneys did a dismal job.”

These patterns are not unique to Philadelphia. Even though the Supreme Court has ruled that capital punishment must be limited to those “whose extreme culpability makes them the most deserving of execution,” and that it is cruel and unusual punishment to execute the insane, the intellectually disabled, and people under 18, people in the first two of those groups continue to be sentenced to death. Of those executed in 2017, 20 of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect, or abuse.

Prosecutors also keep sending innocent people to be killed. “As of Oct. 17, 2017, 160 people have been exonerated from the nation’s death rows, and numerous executions have taken place despite strong evidence of innocence,” according to The Appeal. “According to one study, 1 out of every 25 people sentenced to death is most likely innocent.”

And many victims and their families aren’t on board with the executions. “Yes, he killed my grandma, and he killed a little girl,” said Michael Slim, whose grandmother was killed by Lezmond Mitchell, one of the men that is now slated for execution. At the trial, Navajo officials asked federal officials not to seek death, but federal prosecutors did so anyway. At the time, Slim was pleased with that decision. “Looking back on it, yes, I did believe in it when it first happened,” he told Martin Kaste of NPR. “I felt happy, but that was the wrong kind of happy, because God should make that decision, not me.”

“We know that the death penalty is deeply flawed, with a terrible history of racism in its implementation and an equally terrible history of errors, resulting in many innocents on death row,” death penalty activist Sister Helen Prejean wrote in a statement yesterday. “We also know that it does not offer the healing balm to victims’ families that is promised. And let’s think about the power to take the life of our fellow citizens. What confidence can we have that our governments can be trusted with such power? When a penalty is absolutely final, surely we must seek a flawless system, and what government, what group of people, can deliver that?”

Risk Assessment Tools Are Flawed—Should We Throw Them Away?

Risk Assessment Tools Are Flawed—Should We Throw Them Away?

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

This month, two research scientists and an attorney published an op-ed about risk assessment tools, which are presented as ways to reduce personal bias in the criminal legal system. Chelsea Barabas, Karthik Dinakar, and Colin Doyle argue: “When it comes to predicting violence, risk assessments offer more magical thinking than helpful forecasting.” The simple labels used by risk assessments, high or low risk, for example, “obscure the deep uncertainty of their actual predictions. Largely because pretrial violence is so rare, it is virtually impossible for any statistical model to identify people who are more likely than not to commit a violent crime.”

The authors note that a vast majority of even those deemed highest risk will not commit a violent crime while awaiting trial, so the tools, if they were accurate, should “simply predict that every person is unlikely to commit a violent crime while on pretrial release.” Instead, many risk assessments “sacrifice accuracy for the sake of making questionable distinctions among people who all have a low, indeterminate or incalculable likelihood of violence.” These tools scare judges about a risk for violence without providing them “any sense of the underlying likelihood or uncertainty of this prediction,” which could “easily lead judges to overestimate the risk of pretrial violence and detain far more people than is justified.”

In a statement signed by other experts, the op-ed authors argue that risk assessment tools that include violations such as missed payments in their definition of risk can actually increase pretrial detention. And they point out that using arrest and conviction histories means that people of color are disproportionately labeled as dangerous. These fundamental, technical problems “cannot be resolved,” they conclude. “We strongly recommend turning to other reforms.”

In response, three scholars wrote that we should think twice before throwing away risk assessment tools entirely. Psychology professor Sarah Desmarais, law professor Brandon Garrett, and computer science professor Cynthia Rudin write that the op-ed and statement contain inaccuracies. They note that most risk assessment tools do not rely on arrest records. And many disentangle risk for flight and danger to public safety. “While most validation studies measure pretrial criminal activity by looking at new arrests, this is not a problem inherent in the tools but rather in how the tools are being studied,” the write. “Instead of throwing out the tools, a reasonable solution would be to conduct research on their ability to predict other indicators of pretrial criminal activity.”

They also note that although risk assessments do factor in criminal history, that is the kind of information that judges weigh heavily in the absence of a risk assessment, so getting rid of the tool would not solve that problem.

“While there are technical challenges, it is extreme to claim that no remedy exists, and to insist that we make decisions without using data and statistics,” they conclude. “To call risk assessment fundamentally flawed suggests that we should abandon reforms and keep things the way they are. Instead, we need to give judges better information. No human being is an expert predictor. Relying on empirical data is far superior to going with one’s gut, if it is the right data, carefully analyzed, and presented in such a way as to minimize bias. In fact, statistical tools can be specially designed to help reduce the biases that are—obviously—inherent in the data.”

And this month a new study lent credence to the criticisms of risk assessments, while putting forward possible solutions. In 2016, ProPublica published a blockbuster article examining risk assessments in one Florida county, finding that Black defendants were almost twice as likely as white defendants to be “false positives,” labeled high risk when they did not go on to commit a crime. Meanwhile, white defendants who did go on to commit a crime, by contrast, were more likely than Black defendants to be labeled low risk.

“With the new study, the Center for Court Innovation wanted to determine if they would reach the same conclusions using a different tool in a different place,” writes Beth Schwartzapfel for The Marshall Project. They chose New York City, and a theoretical scenario, but their findings were almost exactly the same as ProPublica’s. “Among those who were not later arrested, almost a quarter of Black defendants were classified as high risk—which would have likely meant awaiting trial in jail—compared with 17 percent of Hispanic defendants, and just 10 percent of white defendants.”

“There’s no way to square the circle there, taking the bias out of the system by using data generated by a system shot through with racial bias,” Matt Watkins, senior writer at the Center for Court Innovation, and one of the authors of the paper, told Schwartzapfel. But it makes no sense to do away with these tools in a country where “business as usual, without the use of risk assessment, results in over-incarceration and racial bias in incarceration,” said Julian Adler, the Center for Court Innovation’s director of policy and research. His group encourages using the algorithm in context—as part of a larger decision-making framework that’s sensitive to issues of racial justice.

“In their study, the Center for Court Innovation researchers applied their risk assessment to various scenarios to see whether they could mitigate its racial bias and still cut back on rates of people sent to jail pretrial,” writes Schwartzapfel. “They found that if judges made decisions based primarily on the seriousness of the charges, then layered risk assessment on top of that, dramatically fewer people would go to jail, and the rate of racially disparate false positives would almost disappear.” In that scenario, anyone charged with a misdemeanor or nonviolent felony would automatically go home. Judges would only use risk assessment tools for the more serious cases. Researchers found this would cut pretrial detention by more than  half and eliminate the racial bias in false-positives.

“That’s why the study is called ‘Beyond the Algorithm,’” Adler said. It’s about using “other tools at our disposal to create a suite of strategies to accomplish what we’re aiming at.”

Miami Officials: Most People Who Owe Fines and Fees Can Vote

Lawyers and advocates in Miami-Dade County will roll out a new plan to counter the disenfranchisement of people with felony convictions.

Photo illustration by Elizabeth Brown. Photo from Getty images.

Miami Officials: Most People Who Owe Fines and Fees Can Vote

Lawyers and advocates in Miami-Dade County will roll out a new plan to counter the disenfranchisement of people with felony convictions.

A coalition of powerful players in Miami-Dade County’s legal system is coming together on Monday to claim that the vast majority of people with a felony conviction in the county are likely to be able to register to vote, even if they still owe court fines and fees. And the group, which includes the county’s top prosecutor and public defender, has a plan to help the potential voters.

The Miami-Dade County state attorney, public defender, and voting advocates will argue that a new state law, which requires Floridians with felony convictions to pay off fines and fees associated with their sentence before they can vote, actually leaves room for most of the affected people to vote without paying the fines and fees. This coalition plans to begin acting upon its interpretation of the law, which would clear a major barrier for people looking to vote.

Florida Republicans passed the fines and fees bill in May in response to the passage of Amendment 4, a voter-approved state constitutional amendment that restored people’s right to vote upon completion of their sentence. When Governor Ron DeSantis signed it into law, many advocates argued that the legislation amounts to a “poll tax” and an attempt to undermine Amendment 4.

One study found that in Miami-Dade County alone, people with felony convictions owe a combined $278 million in court fines and fees. This would be a near-insurmountable barrier for many if they had to pay it off before registering to vote. But officials in Miami-Dade, which includes more than a tenth of the state’s population, are confident they can mitigate the law’s impact.

Multiple officials told The Appeal there is a shared understanding among the public defender’s office, the county’s prosecutors, and the chief judge that only the fines and fees included on an individual’s sentencing document must be paid before he or she is eligible to register to vote. They say most fines and fees are included in separate judgments and court orders, and that those do not need to be paid to regain one’s civil rights.

Carlos Martinez, the elected public defender in Miami-Dade, said he estimates that financial obligations are not listed on the sentencing documents for 90 percent of people with outstanding fines and fees in the county.

“People were looking at the high number and amount of fees, fines, and costs that are assessed in Florida, and they were thinking that every person that wants their rights restored has to pay their fees, fines, and costs,” Martinez said. “And the reality is that if they’re not in the four corners of the sentence document, they don’t have to be paid for completion of the sentence. Individuals are still required to pay fines, fees, and costs because there is a court order, but the requirement of such payment is not part of the completion of sentence definition that the legislature created in the statute.

“The financial obligation is independent from the rights restoration process,” he added.

Ed Griffith, a spokesperson for the state attorney’s office, told The Appeal that his office is working under this interpretation of the law, which is being advocated for by officials in this largely Democratic county to keep the Republican-led disenfranchisement efforts at bay.

“State Attorney Katherine Fernandez Rundle and the involved stakeholders have developed a plan according to which only those outstanding fines specifically articulated by the judge and contained in the sentencing document can stop rights restoration,” Griffith said in an email. “This is in accordance with the … statute enacted by the Florida Legislature.”

In cases where fines or fees do appear in the sentencing document, a judge still has the option to convert those obligations into community service or to declare that they do not stop a person from registering to vote, Martinez said. But Miami-Dade officials remained vague about how they will help people who do have fines and fees listed in their sentencing documents.

The group’s commitment to this interpretation is a result of conversations between the state attorney, public defender, chief judge, and clerk of courts in Miami and the Florida Rights Restoration Coalition (FRRC), the group that pushed for the passage of Amendment 4. They wanted a quick pathway to restoring the voting rights of those who still may owe fines and fees.

“We’ve always stated, even when the governor signed the bill, that when other people see obstacles, we see opportunities,” Desmond Meade, executive director of FRRC, told The Appeal. “We’re going to operate under the letter of the law, and we’re excited about this opportunity.”

But it is not a comprehensive fix. This new process will not apply to people who were convicted of crimes outside Miami-Dade, even if they are current residents of the county. It will also not apply to anyone who owes restitution, money paid to the victim of a crime, as part of their sentence.

In addition, the state attorney’s office and public defender’s office have no current plan to proactively identify people who are eligible to have their rights restored immediately and to process their cases, which will limit the plan’s scope. That work will fall on FRRC. Meade said that FRRC will help identify people who are eligible to vote in Miami-Dade, and that the legislation “gave us an opportunity to engage returning citizens.”

“There is going to be a media campaign, through social media and through other means, to get the word out so that people do know that they can reach out and that we can try to get their process done,” Martinez said, adding that public authorities are cooperating with FRRC to reach out to potential voters.

Still, Miami-Dade’s system could be a model for similarly urban, more progressive counties in Florida. Griffith told The Appeal that the office has “been in consultation with the state attorney in Palm Beach County and in other judicial circuits to attempt to create a multi-jurisdictional process that is uniform.” The offices of the state attorneys in Broward, Hillsborough, and Palm Beach counties confirmed their interest in a process that would get as many people voting as possible. Nearly 10 million Floridians, about 46 percent of the state population, are represented by a Democratic state attorney, according to Daily Kos Elections.

Paula McMahon, spokesperson for the state attorney’s office in Broward County, told The Appeal those conversations are ongoing. “We believe that people should be able to vote and that it is a very important right,” she said. “Court fines should not get in the way of voting. We have been discussing this issue with members of the community for some time and we have been talking with other prosecutors in Florida to come up with a fair and consistent proposal.”

Voting advocates are calling on other counties to follow Miami-Dade’s lead. A number of voting- and civil rights groups, including the American Civil Liberties Union, Southern Poverty Law Center, and Campaign Legal Center, have also challenged Florida’s new law in court, with four separate lawsuits claiming it is unconstitutional and will disenfranchise poor people of color.

Last week, The Intercept and local news outlets reported that Miami was considering a more ambitious, but potentially more burdensome, plan to assist people in clearing their fines and fees. Andrew Warren, state attorney in Hillsborough County, told The Appeal that he is also considering setting up a “rocket docket” where large numbers of people could appear before a judge to have their fines and fees rapidly converted.

Unlike those proposals, Miami-Dade’s new process will not, in most cases, relieve people of the other consequences associated with unpaid fines and fees, including driver’s license suspensions. Florida law requires license revocation for nonpayment, and according to the Fines and Fees Justice Center, the state has issued approximately 1.1 million suspensions for  fines and fees.

“The state’s law exposes a crisis that we face in many communities across the country—the resurgence of debtors’ prisons,” Kristen Clarke, the executive director of the Lawyers’ Committee for Civil Rights Under Law, told The Appeal. “Poor people should not remain trapped in the criminal justice system because of their inability to pay fines and fees, nor should they remain disenfranchised.”

The Power of Peremptory Strikes

As public servants, prosecutors should be willing to put their cases before anyone in the communities they serve.

Photo illustration by Elizabeth Brown.

The Power of Peremptory Strikes

As public servants, prosecutors should be willing to put their cases before anyone in the communities they serve.

The Supreme Court’s recent decision in Flowers v. Mississippi came out the right way, according to our existing case law. Justice Brett Kavanaugh called out the “relentless, determined effort to rid the jury of black individuals” that proved to be a pattern during jury selection in Mr. Flowers’s six trials. But deciding that the state had acted discriminatorily by consistently striking Black jurors over so many trials was easy.

In large part, the Supreme Court’s decision in the Flowers case depends on precedent that began in 1986 with Batson v. Kentucky, in which the Supreme Court determined that a prosecutor’s peremptory challenge in a criminal case—the dismissal of a prospective juror without cause—may not be used to strike potential jurors solely because of their race.

But we cannot look to the Batson precedent on its own as the way to rid the system of race discrimination in jury selection in criminal trials. Unfortunately, Batson set up a framework that catches just a fraction of intentional bias. First, Batson only works when the defense attorney raises the issue of discrimination by the prosecutor with the trial judge. But most defense attorneys are repeat players in the criminal legal system, and for a variety of reasons—not the least of which is their many other clients—they may not want to accuse a prosecutor in a public trial of racism. And many judges are loath to tarnish the reputation of a prosecutor who appears in front of them repeatedly by finding that the prosecutor engaged in intentional racism.

Second, it is impossible to see what is in a prosecutor’s mind. And it is all too easy for a prosecutor to offer a seemingly race-neutral reason as the justification for striking a prospective juror: hairstyle, neighborhood, experience with law enforcement, etc.

Finally, Batson only addresses intentional discrimination in jury selection, not unconscious bias. It is well accepted that all Americans have at least some level of unconscious racial biases. And like others in the legal profession, prosecutors tend to be disproportionately white, increasing the chance for implicit bias against people of color. Does the fact that a prosecutor was acting on his unconscious racism rather than a purposeful goal really matter to the defendant who ends up with an all-white jury?

Prosecutors are meant to be stewards of justice.

So what can be done? The peremptory challenge should be abolished for prosecutors.

Prosecutors are meant to be stewards of justice. And as public servants, prosecutors should be willing to put their cases before anyone in the communities they serve. They should not be engaged in any sort of picking and choosing, whether based on race or not.

Eliminating peremptory strikes for prosecutors will still allow jurors to be struck “for cause” if they indicate they cannot be fair. The jury panel, therefore, would comprise only qualified impartial jurors.

I am not the first to make this argument, but it has to be renewed now. In the last several years, a wave of progressive prosecutors have been winning elections. In Queens, New York, the former public defender Tiffany Cabán has made an impressive run to become the Democratic candidate for district attorney. In Arlington, Virginia, another former public defender, Parisa Dehghani-Tafti, also became the Democratic candidate for that county’s DA race. Philadelphia has Larry Krasner. St. Louis County, Missouri, has Wesley Bell, another former defense attorney, as prosecutor. In Durham, North Carolina, Satana Deberry won her election for DA on a reform campaign. And the list goes on.

This progressive-prosecutor movement is a rejection of the status quo by the communities that have grown weary of the aggressive win-at-all-costs prosecutors who have held office for the last several decades. Voters have shown that they want prosecutors to be accountable to the people they are supposed to represent. One way for these new district attorneys to build the trust of their communities would be to forgo their peremptory challenges in all criminal trials.

Defense attorneys, on the other hand, should retain the power of peremptory strikes. No one should feel confident in a criminal legal system if the accused is uncomfortable with the jury. But prosecutors have a duty to justice and to their communities. Prosecutors should feel comfortable trying their cases in front of any 12 unbiased members of the community they were sworn to serve.

Notwithstanding the Supreme Court’s recent Flowers decision, the Batson framework simply cannot overcome its shortcomings in addressing all forms of racial discrimination by prosecutors. Progressive prosecutors should take matters into their own hands.

Correction: This story has been updated to note that peremptory challenges allow jurors to be struck without cause.

In Pennsylvania, a Kidnapping Law Could Unravel a Life

A Shippensburg man faces 15 years on the sex offense registry for offering a girl a ride.

Photo illustration by Elizabeth Brown.

In Pennsylvania, a Kidnapping Law Could Unravel a Life

A Shippensburg man faces 15 years on the sex offense registry for offering a girl a ride.

Friday, June 21, started like any other day for Michael McCleary. The Shippensburg, Pennsylvania, resident finished his overnight shift at a food-packaging plant and stopped for breakfast around 7 a.m. before making his way home.

While driving through town, McCleary, 22, saw a girl who he thought was a friend of his younger sister. Rain appeared imminent to McCleary and there was a slight drizzle, so he stopped to ask if she needed a ride. When he pulled up beside the girl, he realized that she wasn’t his sister’s friend but asked her if she needed a ride anyway.

“She said, ‘No,’ and I told her to be careful and drove home,” McCleary told The Appeal. He went home to take a nap.

By the end of the day, he became the prime suspect in what police described as an attempted child abduction.

An affidavit filed by Officer Kelsey Hinkle of the Shippensburg Police Department corroborates much of McCleary’s recollection of the incident. In one discrepancy, the 12-year-old girl told police that McCleary said, “Get in the car” and “I’ll take you where need to go.” Both McCleary and the police report stated that there was a truck stopped behind McCleary’s car that was honking its horn, making it difficult to hear. And both accounts end with McCleary making no effort to force the girl into the car, acknowledging that he drove away as soon as the girl declined the ride.

When McCleary woke up at around 5 p.m., he received a message from his girlfriend that included the police department’s press release about the encounter, before the department knew of McCleary’s involvement. Numerous media outlets picked up the press release and ran a story. Those stories were shared more than 1,000 times on Facebook.

McCleary called Shippensburg police to let them know what had happened, that he was not trying to abduct the girl, and that the incident had just been a simple misunderstanding. The police issued an updated release saying they had identified a person in connection to the case and continued to describe the incident as an attempted child abduction.

Two days later, the police asked McCleary if he would come into the station to give an official statement, which he did voluntarily. He again told police that he thought the girl was a friend of his sister when he approached her and that he was only offering her a ride because he thought it was about to rain.

Later that day Hinkle charged McCleary with one count of felony luring a child into a motor vehicle. If convicted, McCleary would most likely face incarceration in the county jail and he would have to register as a sex offender for 15 years. Even if McCleary avoids incarceration, marking him as a sex offender would most likely make him a virtual pariah and make it difficult to maintain employment or keep ties to the community, according to Emily Horowitz, a professor of sociology and criminal justice at St. Francis College and the author of the book “Protecting Our Kids? How Sex Offender Laws Are Failing Us.”

Sex offense registries are “a form of banishment,” Horowitz told The Appeal. “It’s a form of social death. It makes people less safe because it cuts ties from the community.”

Pennsylvania’s law against luring a child into a motor vehicle was enacted in 1990 to address what legislators at the time saw as a loophole in the state’s kidnapping law; kidnapping requires that a person actually move the victim or hold the victim somewhere against their will.

“The purpose of this section is to make it a crime where kidnapping has not totally occurred because something happened to stop the kidnapping,” former Representative Lois Hagarty told the state legislature in June 1989 while introducing the language that became the law. “Luring a child into a motor vehicle terrorizes a family and a child, and when it is without consent, it should be a crime.”

Although the law was enacted to address attempted kidnappings, it does not require that the suspect’s intent to kidnap be proved. The law only requires that an adult attempt to get a child into a motor vehicle without the consent of a parent or guardian, “unless the circumstances reasonably indicate that the child is in need of assistance.”

“A officer even told me ‘I believe you. I don’t believe you had any malicious intent but the law is the law’,” McCleary said. “It stings.”

McCleary turned himself in to police on June 26 and was arraigned by Judge Anthony Adams. He was released on $50,000 unsecured bail, meaning he did not have to pay any money up front to stay out of jail, but could be ordered to pay $50,000 if he fails to appear at future hearings.

It is common for judges in Cumberland County to rely heavily on bail recommendations from police. A bail recommendation form is sometimes provided by police, but one was not attached to McCleary’s case.

The department never issued a press release identifying McCleary as the suspect.

When asked if there was any reason Shippensburg police did not believe McCleary’s recounting of the incident or whether police believed he was a threat, Chief Meredith Dominick declined to comment. Dominick said she would only comment on the case after the case is resolved.

“If you take [McCleary’s] word for it, he didn’t want this girl to walk home in the rain, ” Horowitz said. “That’s what you want adults to do. You want adults to help kids. … The way kids are safe is adults help them if they’re lost or need help.”

According to the Polly Klaas Foundation, only about 100 children nationally are kidnapped in a stereotypical stranger abduction each year. The majority of child abductions are committed by people the child knows, like a family member in the midst of a custody dispute.

Tomorrow, McCleary is scheduled to appear for a preliminary hearing to determine whether there is enough evidence to send his case to trial. He said he was denied loans to pay for an attorney and must wait until the day of the hearing before a public defender is appointed.

“[There is] this assumption that adults are all potential predators and children are all potential prey,” Horowitz said, “but it’s just completely warped, hysterical thinking that has no relationship to real risk children face.”

Boston Globe Accused of ‘Willie Horton’-Style Fearmongering

Nineteen academics published a letter to the newspaper over its coverage of the Suffolk County DA.

Rachael Rollins
Courtesy of the Suffolk County DA's Office

Boston Globe Accused of ‘Willie Horton’-Style Fearmongering

Nineteen academics published a letter to the newspaper over its coverage of the Suffolk County DA.

This morning, 19 Boston-area academics published a letter to the Boston Globe condemning the paper’s recent reporting on Suffolk County District Attorney Rachael Rollins.

Rollins took office in January, becoming the county’s first Black woman to serve as DA. In March, she published a 64-page memo detailing reforms that she hoped would decrease incarceration and reduce racism in the criminal legal system, including a list of low-level offenses her office would no longer prosecute. Incarceration, she wrote, is “a last resort.”

“I don’t believe accountability has to equal incarceration,” Rollins wrote in the memo. “There are many ways that we can hold people accountable without putting them in jail.”

On July 6, the Globe published an article by Andrea Estes and Shelley Murphy about Rollins’s reforms, with a focus on her goal of diverting people from jail and prison. Estes and Murphy quoted Rollins as saying, “If the person presents with mental health issues, substance use disorder, homelessness, or poverty, we’re going to pause just for a moment to see who is this person in front of us.” Also in the article, Estes and Murphy referred to several people who decried Rollins’s commitment to using tools other than incarceration.

“We have a country of laws,” Mike Leary, president of the Boston Police Patrolmen’s Association, said. “You can’t have open drug dealing. It drives cities and towns down. It grinds them into the ground. Crime will go up. Shootings will occur.’’ The reporters provided no contextual data that would either support or contradict Leary’s claims.

The reporters also provided comment from one critic who said Rollins’s reforms don’t go far enough. “We’ve seen a change in degree,” said Atara Rich-Shea, a former public defender who co-founded Court Watch MA. “We want this to happen faster.” But the overall tenor of the article leans toward the conclusion that Rollins is insensitive to victims and lets dangerous people escape incarceration.

The 19 signatories are advocating for the practice of two interrelated standards: the inclusion of fact-based context in all local journalism and a heightened sensitivity to the role that local media plays in the politics of criminal justice policies. They say the Globe practiced neither in its recent article. Rather than scrutinizing the statements made by Leary and other critics of Rollins, the university professors say the paper acted as a bullhorn for them.

“It relies upon a limited narrative structure to convey a clear, yet misleading, message to the reader: Rollins has gone too far, and the city is not safe,” reads the letter. “Largely unchallenged, these kinds of statements by law enforcement and politicians have driven decades of over-investment in criminal justice systems, resulting in serious structural problems reform-minded prosecutors are working to remedy.”

The editor of the Boston Globe, Brian McGrory, has not yet responded to The Appeal’s request for comment. The Appeal also contacted the reporters Estes and Murphy, who are both unavailable, according to their outgoing voicemails.

“It feels like the Globe has been recycling tropes about criminal justice—about ‘soft on crime’ and ‘tough on crime’ and public safety,” said Daniel Medwed, a signatory on the letter and a professor at Northeastern School of Law. “It feels like a little bit of a retreat to some outdated and misguided views of criminal justice, of the criminal as the other, as all of us as in need of being protected from the other.”

Most of the signatories are law professors at Boston-area schools, including Northeastern, Harvard, and Boston College. In their letter, the professors cite a 2016 article from the Washington Post that attempts to explain the connections between crime and punishment, or as the piece says, how “numbers in prison can go up while crime is going down.”

The Boston law professors reiterate the key factor given in the Post: news coverage of local crime. “Now more than ever, we need journalism that exposes rather than stokes baseless fear and irrationality,” the letter reads. “Research has demonstrated that media coverage of criminal justice issues influences public opinion about punishment, which in turn has led to the political decisions behind mass incarceration.”

The signatories to the letter say last week’s article in the Globe “represent[s] exactly the brand of journalism that fosters punitive public attitudes and creates the political conditions that drive up needless incarceration.”

Ronald Sullivan Jr., a professor at Harvard Law School who signed the letter, told The Appeal in an email, “We’ve spent the last 30 years in the shadow of Willie Horton in Massachusetts, and with reporting like this, I worry it will be how we spend the next 30 years, too.”

The full text of the letter is below.

July 12, 2019

Dear Brian McGrory, Editor, and The Boston Globe Editorial Staff:

We are 19 faculty members at universities across the Boston area, including Boston College, Boston University, Harvard University, and Northeastern University. We wish to respond to The Boston Globe’s recent article, “Stopping injustice or putting the public at risk? Suffolk DA Rachael Rollins’s tactics spur pushback,” which contained reporting that appears to us to be, at best, seriously misleading.

Local journalism plays a critical role in guiding public conversation around the issues that affect our sense of safety and justice. It is imperative that when reporting on these issues, journalists provide the factual context that readers need to understand the policy decisions that shape our local criminal justice system—context that enables an objective, informative discussion. Unfortunately, this article does not provide that necessary context. Instead, it relies upon a limited narrative structure to convey a clear, yet misleading, message to the reader: Rollins has gone too far, and the city is not safe.

For example, Boston Police Patrolmen’s Association President Mike Leary is quoted suggesting that District Attorney Rollins’s policies will drive “open drug dealing” and an increase in violent crime. That is an evidence-free statement calculated to incite fear in the reader, and to suggest that the District Attorney’s policies are causing people in Boston to be unsafe. Largely unchallenged, these kinds of statements by law enforcement and politicians have driven decades of over-investment in criminal justice systems, resulting in serious structural problems reform-minded prosecutors are working to remedy. Yet, the Globe’s coverage carries water for this fear-mongering by failing to question the accuracy of Leary’s assertion that “[c]rime will go up. Shootings will occur,” or examining how this conclusion was reached. Indeed, Reporters Estes and Murphy do not even attempt to place that statement in context of the research behind these policies: for instance, the currently low levels of serious crime compared to historic baselines, or the relationship between incarceration rates, crime rates, and levels of addiction and other drug-related harms.

Nor are the handful of cases outlined in the article a fair measure of Rollins’s policies. DA Rollins has presented a specific vision of public safety and a rationale for policy decisions in her office memo. Agree or disagree with those decisions, it is clear they are grounded in academic research and motivated by public safety. Given that the Rollins memo is publicly available, this article should have contained context on why the District Attorney believes the policies at issue in the article will result in more safety, not less. That context would have provided a balance to the unrebutted quotations from “experts” suggesting that these policies are antithetical to public safety. Instead, the absence of that context leaves room for us to wonder whether the reporters used a few isolated incidents and select quotations about those incidents in an effort to get Globe readers to draw particular conclusions about these policies.

This article undermines the appearance of journalistic objectivity and fairness, and it is not the type of rigorous journalism that Globe readers expect and deserve. Now more than ever, we need journalism that exposes rather than stokes baseless fear and irrationality. Research has demonstrated that media coverage of criminal justice issues influences public opinion about punishment, which in turn has led to the political decisions behind mass incarceration. This article represents exactly the brand of journalism that fosters punitive public attitudes and creates the political conditions that drive up needless incarceration. Given what we now understand about the media’s role in contributing to mass incarceration, reputable media organizations like the Globe must demonstrate a more ethical and responsible approach to reporting on crime, punishment, rehabilitation, and safety.

Signed, with institutional affiliation listed for identification purposes only, by the following:

Leo Beletsky

Professor of Law and Health Sciences and Faculty Director, Health in Justice Action Lab

Northeastern University School of Law

Robert M. Bloom

Professor of Law

Boston College Law School

Mark S. Brodin

Professor of Law and Michael and Helen Lee Distinguished Scholar

Boston College Law School

Margaret A. Burnham

University Distinguished Professor of Law and Director, Civil Rights and Restorative Justice Project

Northeastern University School of Law

James Alan Fox 

Lipman Family Professor of Criminology, Law and Public Policy

Northeastern University

Jorie Graham

Boylston Professor of Oratory and Rhetoric

Harvard University

David J. Harris

Managing Director

Charles Hamilton Houston Institute

Harvard Law School

Stephanie R. Hartung 

Teaching Professor

Northeastern University School of Law

Elizabeth Hinton

John L. Loeb Associate Professor of the Social Sciences

Harvard History and African and African American Studies Departments

Kari Hong

Assistant Professor of Law

Boston College Law School

Margo Lindauer

Director, Domestic Violence Clinic

Northeastern University School of Law and Bouvé College of Health Sciences

Gerry Leonard

Professor of Law and Law Alumni Scholar

Boston University School of Law

Daniel S. Medwed

University Distinguished Professor of Law and Criminal Justice

Northeastern University

Michael Meltsner

George J. and Kathleen Waters Matthews Distinguished University Professor of Law

Northeastern University School of Law

Deborah A. Ramirez

Professor of Law

Northeastern University School of Law

Peter M. Sacks

John P. Marquand Professor

Harvard English Department

Ronald S. Sullivan Jr.

Jesse Climenko Clinical Professor of Law and Director, Criminal Justice Institute

Harvard Law School

Laurence H. Tribe

Carl M. Loeb University Professor and Professor of Constitutional Law

Harvard Law School

Dehlia Umunna

Clinical Professor of Law and Faculty Deputy Director, Criminal Justice Institute

Harvard Law School

When Someone Dies in An Orange County Jail, Who’s Culpable?

Advocates say Anthony Aceves’s death conforms with long-standing issues in the second-largest jail system in California.

888bailbond/Flickr Creative Commons

When Someone Dies in An Orange County Jail, Who’s Culpable?

Advocates say Anthony Aceves’s death conforms with long-standing issues in the second-largest jail system in California.

On May 23, Anthony Aceves died while he was incarcerated in Orange County, California. Soon after, the sheriff’s department notified his family. But since then, Aceves’s family has received little information about the circumstances of his death.

“One of the main concerns that the family has is, what do they have to hide?” Daisy Ramirez of ACLU of Southern California told The Appeal last month. “The family will be burying Anthony … and they have no idea what the manner of death was. They have no idea what the cause of death was. And it’s been over a month now.”

Aceves’s mother, Diana Alvarez, has gone to multiple Board of Supervisors meetings to demand more details about her son’s death, with little success. Aceves’s funeral was on June 28, and the family still has many unanswered questions. Alvarez filed a wrongful death claim in June against the county and the sheriff’s department.

Aceves, who had schizophrenia, was detained in April because he missed a meeting with his probation officer. He had been on probation for battery on an officer. People incarcerated on probation violations, many of which are not crimes, make up 24 percent of California’s prison population, according to a study released last month by the Council of State Governments Justice Center.

Advocates say Aceves’s death conforms with long-standing issues in the sheriff’s department and prosecutor’s office in Orange County, including a lack of transparency, a lack of proper care for people with mental illnesses in its jails, and a conflict of interest when the district attorney’s office investigates deaths in the county’s jails.

“The Orange County district attorney’s office has consistently been among the least transparent government agencies in the country,” Brendan Hamme of ACLU of Southern California told The Appeal. “Government agencies can’t operate like a black box.”

The sheriff’s department declined to comment on details regarding Aceves’s incarceration and his death, including any information on the coroner’s report. In a statement sent by email, the office said:  “Anthony Aceves was located unresponsive in his bed in the morning of 5/23 at the Theo Lacy Facility. He was transported to the hospital and pronounced deceased. There were no obvious signs of trauma on his body.”

The district attorney’s office did not respond to specific questions about its involvement in Aceves’s case.

In June 2017, the ACLU published a report on the conditions in the Orange County jails, which constitute the second largest jail system in California. The report found that violence against detainees by jail officials is rampant, as is violence between detainees instigated by guards. In addition, the ACLU reported that Orange County deputies have often ignored calls for medical attention by detainees if they didn’t think it was serious. There is often a delay in getting detainees medical care.

Ramirez, a co-author of the ACLU report, says many of those issues still exist—including a lack of decent care for people with mental illnesses.

“One of the other issues that we’re focused on is lack of access to timely and adequate medical and mental healthcare. We have a lot of individuals with chronic medical needs that are not being treated,” Ramirez told The Appeal. She said that when people are experiencing a mental health crisis, deputies often use excessive force against them. And people with mental illnesses, such as schizophrenia and bipolar disorder, are sometimes held in solitary confinement for 23 hours a day.

Accusations of negligent medical care have plagued the sheriff’s department and its jails for several years. In June 2018, an Orange County grand jury determined that nearly half of the jail’s in-custody deaths may have been preventable. The study found that lack of proper medical care and attention—including not diagnosing serious mental illnesses, not accurately assessing health needs at intake, and not referring someone to medical staff quickly enough—was most likely a factor in the high number of deaths. (In March, Jessica Pishko wrote about the nationwide problem of jail deaths and the responsibilities of sheriffs for the welfare of people in their custody.)

Within 10 days of an in-custody death, the sheriff’s department is required by law to send a report to the state attorney general’s office. The Orange County DA’s office investigates allegations of criminal wrongdoing related to in-custody deaths. But many advocates believe that this process involves an inherent conflict of interest.

“It’s unclear to me that the DA’s office should be running the investigation into in-custody deaths when they work so closely with the sheriff’s office, ” Somil Trivedi of the ACLU’s national office said. The recent informant scandal within the county, Trivedi said, especially casts doubt on the working relationship between the DA’s office and the sheriff’s department.

For three decades, the Orange County sheriff’s department allegedly managed a jailhouse informant operation and some lawyers and advocates accuse the DA’s office of being complicit. Despite significant evidence to the contrary, Orange County denied that such a program existed. Tony Rackauckas, who was DA until January, has denied that he or anyone in his office participated in the informant program. And the current DA, Todd Spitzer, is conducting an investigation into the scandal. The U.S. Department of Justice and the county sheriff’s department are also investigating.

In the context of such turmoil, Trivedi and Ramirez believe that an independent group should be responsible for conducting investigations of in-custody deaths instead of the DA’s office. Between 2010 and 2018, 63 people have died in the county’s jails. And in that time, the DA’s office has yet to find a law enforcement officer culpable for any of them.

With the lack of transparency surrounding Aceves’s death, his family refuses to stop their fight for answers and justice.

“I made [Anthony] a promise when I saw him … at the mortuary that we’re not going to let his death be in vain,” his uncle, Arthur Alvarez, told The Appeal by phone.

“That we’re hopefully going to solve some problems here in the county. Enough is enough. … We’re going to continue to fight for people with mental illness and who were in the wrong place at the wrong time, like Anthony.”

Law Enforcement Is Urged to ‘Think Like a Parent, Not a Prosecutor’

A new DA in Cumberland County, Pennsylvania, is treating the overdose crisis as a criminal matter rather than a community health issue.

Photo illustration by Elizabeth Brown. Photo from the Cumberland County, PA website.

Law Enforcement Is Urged to ‘Think Like a Parent, Not a Prosecutor’

A new DA in Cumberland County, Pennsylvania, is treating the overdose crisis as a criminal matter rather than a community health issue.

Sophia Signor was looking to buy drugs, but she was short on cash. So she reached out to a friend.

“I can’t even come up w ten more dollars this is pathetic I’m about to stop trying,” she wrote to Jacob Rettig in a text message that day, Nov. 12, 2018. “But I’m dying.”

Signor got $20 from Rettig and contacted another friend who drove her about 15 minutes to Harrisburg, Pennsylvania, where Signor purchased what she thought was heroin.

Signor was then driven back across the Susquehanna River to Rettig’s house in East Pennsboro Township, in Cumberland County. During the drive, Signor told Rettig that the drugs looked different than she was used to.

“It’s diff idk what it is yet,” she wrote in a text.

“Is it real?” Rettig asked. “I swear to God with this make up shit.”

This time the drugs were real, but they weren’t heroin.

Around 4 p.m. the next day, Rettig was found dead in his home. An autopsy determined that he died of an overdose of fentanyl and mitragynine, the main chemical found in kratom, a largely unregulated herbal supplement. During an interrogation on Nov. 16, Signor told police she had purchased suboxone and heroin for Rettig but it turned out to be fake. Police identified Signor and the man who gave her a ride to Harrisburg through Rettig’s phone records.

On May 23, East Pennsboro Township Police Sgt. Matthew Roberts charged Signor, 22, with felony drug delivery resulting in death and felony criminal use of a telephone. She was arrested a few days later. Despite qualifying for a public defender, Magisterial District Judge Anthony Adams set her bail at $100,000, which she was unable to pay. She was taken to Cumberland County Prison.

Under the state’s criminal statutes, a person can be sentenced to up to 40 years in prison for intentionally providing drugs to someone who then uses, or otherwise ingests, the drugs. There is no requirement for the state to prove that the person intended to kill the victim. The charge has become popular with prosecutors in response to the overdose crisis, which has been driven in large part to a rise in deaths from prescription opioids, heroin, and fentanyl (what many people call the “opioid epidemic”). In 2017, the latest year for which complete data is available, more than 5,400 people died by overdose in Pennsylvania.

In Pennsylvania, the number of people charged with drug delivery resulting in death increased more than tenfold between 2013 and 2017, with a large surge in 2017. A national study by Health in Justice Action Lab at Northeastern University School of Law found less than half of drug-induced homicide cases between 2000 and 2017 involved a traditional dealer-buyer relationship. “These types of laws were designed to target kingpins and drug dealers, but that’s not how they’re being used,” Devin Reaves, executive director and co-founder of the Pennsylvania Harm Reduction Coalition, told The Appeal. “We’re seeing an abundance of charges being filed against friends and family members.”

David Freed, who was the district attorney of Cumberland County until November 2017, didn’t view the charge as a way to combat the rise in overdose deaths. He acknowledged that charging people with criminal homicides for overdose deaths does little to deter drug use and sharing drugs among friends. President Trump appointed Freed as U.S. attorney for the Middle District of Pennsylvania in 2017, and Judge Skip Ebert was appointed to replace him as DA. Ebert has taken a different approach.

Since taking office in January 2018, Ebert has filed more drug delivery resulting in death cases than Freed did in more than 10 years. In the  first year of his appointment, Ebert filed 13 cases. He has filed another nine so far this year. Many of these cases have been filed against people who either share drugs or who also use drugs. He has even made seeking more of these charges a plank in his bid for election this year. Ebert won the Republican primary in May and is likely to win the general election, in November, against the Democratic challenger Sean Patrick Quinlan. There are nearly 30,000 more registered Republicans than Democrats in Cumberland County.

In 2017, Ebert filed a conspiracy to commit drug delivery resulting in death charge against a woman who helped a man buy groceries, which he then traded for drugs. The conspiracy charge carries the same maximum possible sentence as if she had sold him the drugs herself.

Ebert has touted criminal enforcement as a way to prevent overdose deaths, but he told The Appeal that drug delivery resulting in death prosecutions tend to be more about punishment.

“It’s probably more punishment, because the consequences are so high that someone dies and [dealers are] making money off of it,” Ebert said. “The people that are in this business who are going to say ‘I’m not going to do this anymore because it has a heavy penalty,’ I don’t think they’re thinking about [the penalty].”

Ebert said he does consider whether the person is sharing drugs, as opposed to selling, when filing criminal charges, but he also said the rise in overdose deaths has put pressure on law enforcement to treat overdoses as a criminal matter. A 2011 change to the drug delivery resulting in death statute removed the need for prosecutors to prove the person delivering the drugs intended to kill the victim. That change, coupled with easy access to phone records and text messages, has also made prosecuting these cases easier, Ebert said.

“Before the overdose crisis, there were a lot of times the coroners just wouldn’t call us,” Ebert said. “It wasn’t considered a law enforcement thing.”

In 2018, overdose deaths did drop by about 40 percent in Cumberland County compared to a year earlier. However, according to a review of county death records, overdose deaths peaked in the third quarter of 2017. Such deaths began declining in the fourth quarter of that year, before Ebert took office, and have continued declining.

Reaves of the Pennsylvania Harm Reduction Coalition said the heavy reliance on such a punitive charge, especially when filed against people who share drugs, could result in people being unwilling to call for help during an overdose. The state legislature passed a good Samaritan law in 2014 that provides immunity from certain criminal charges for people who call for assistance during an overdose and for overdose victims. The law doesn’t protect people from being charged with drug delivery resulting in death.

“We passed [the good Samaritan law] as a harm-reduction measure because we knew people weren’t calling 911,” Reaves said. “Now, we’re taking a huge step backward.”

In April, a woman was found dead in her driveway and an investigation determined that she died of an overdose after she shared drugs with two other women. The other women panicked when the victim began overdosing and instead of calling for help, left her to die. Both women are now charged with drug delivery resulting in death and are being held in Cumberland County Prison, like Signor, awaiting trial.

“My guidance to any key decision maker in bringing these charges is: Please think like a parent, not a prosecutor,” Reaves said. “One life and one family has already been destroyed by the loss of a loved one. Do we want to destroy another one, or do we want to invest in that person and help them find recovery?”

Spotlight: The Citizenship Question, the Supreme Court, and Who Deserves a Do-Over

Photo by Mark Wilson/Getty Images

Spotlight: The Citizenship Question, the Supreme Court, and Who Deserves a Do-Over

The Supreme Court decision that came down yesterday, summarized in the tweet above, is the same decision that the New York Times editorial board called “a win for good government.” In the short term, that’s true. The Court yesterday refused to green-light the Trump administration’s plan to add a citizenship question to the 2020 census form. Experts have warned that adding the question would result in a significant undercount of households with at least one noncitizen member, and a shift of power and resources away from communities with high foreign-born populations. But in the majority’s ruling, Chief Justice John Roberts isn’t troubled by that. He called it “reasonable.”

Commerce Secretary Wilbur Ross had sworn before Congress that he decided to add the question “solely” in response to a Justice Department request for data to help it enforce the Voting Rights Act (a law that, incidentally, Roberts gutted in a 2013 majority opinion). But looking at the evidence, Roberts found that “the V.R.A. played an insignificant role in the decision-making process.” It was a pretext for an action that a Republican strategist (who has been described as the “Michelangelo of gerrymandering”)  suggested would “be advantageous to Republicans and non-Hispanic whites.” It is hard to imagine clearer evidence of an effort to deprive people of color of democratic power and equality.

But Roberts didn’t find that deprivation itself was a problem. “We do not hold that the agency decision here was substantively invalid,” Roberts wrote. “But agencies must pursue their goals reasonably,” which, in this case, “calls for an explanation for agency action.” It seemed at times Roberts wished he knew less about the government’s intent: “It is rare to review a record as extensive as the one before us when evaluating informal agency action—and it should be,” Roberts wrote. But “we cannot ignore the disconnect between the decision made and the explanation given.”

Roberts’s predicament in this case echoes his position when evaluating Trump’s travel ban last year, which he and the Court were inclined to uphold as perfectly legitimate, not motivated by religious hostility, if only it could get past Trump’s statements to the contrary, which it did. (The text of the order, Roberts noted, “says nothing about religion.”)

The tradition of allowing the government to discriminate as long as it can think up a good excuse extends to the courtroom. It’s what allows prosecutors to strike people of color from juries so long as they can think of a good enough reason for it. In the rare cases when they can’t, as happened multiple times to the prosecutor in the Curtis Flowers case that the Daily Appeal discussed yesterday, they are simply given a do-over. The prosecutor in Flowers’s case has received several such do-overs, and is running unopposed for an eighth term this year.

What if we handled criminal cases this way? Let’s say a man is accused of killing his wife. Let’s say there’s no question that he killed her, and he has already told police that he did it because she was having an affair. At trial, the judge leans over and tells the defendant, “Look, we’re all fine with this outcome, but killing someone for that reason just isn’t legal. If you could somehow come up with another reason, though, maybe we can work something out.” The defendant, if he’s rational, would come back and say “OK, judge, I acted in self-defense.” Case closed.

Criminal trials never go this way (with the possible exception of cases where police are accused of killing civilians). Ordinary criminal cases are more akin to what happened on the show “Seinfeld” when Jerry tried to return a suit “for spite.” An employee tells him that “spite doesn’t fit into any of our conditions for a refund,” so Jerry chooses a different rationale. But the manager is not persuaded: “No, you said spite. Too late.”

That is because in our system, criminal liability is based on “just deserts” (people “deserve” a penalty because they have committed wrongs) and deterrence (punishing certain behavior can prevent it). By both of those standards, killing in anger is a crime, and killing in self-defense is not.

When the government discriminates in these contexts, its intent is theoretically scrutinized, but the bar is so low that “just deserts” and deterrence are irrelevant. Which is to say, we don’t even try to say that government actors deserve punishment for this kind of wrongdoing, and we certainly create no incentives that would deter similar conduct in the future. (Wilbur Ross is still commerce secretary, after all.)

And even if the scrutiny of governmental intent weren’t entirely toothless, it would still be misguided. This is because, in criminal cases, society is trying to redress past wrongs, but when reviewing government actions, the potential harm is generally in the future. Actual people will suffer if the census question is allowed, regardless of the government’s intent. Maybe, in both contexts, it’s time to consider standards that actually minimize harm, such as disparate impact for the government, and restorative justice in criminal cases.

When reformers argue that our criminal system is cruel and does not create a safer or more equitable society, opponents often respond by saying none of that matters, because those who run afoul of laws deserve what’s coming to them. Wilbur Ross, on the other hand, apparently he should get a do-over.

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

‘Do Not Record’

Phone calls between prisoners in Orange County and their lawyers were recorded and accessed. How wide the eavesdropping was remains an open question.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

‘Do Not Record’

Phone calls between prisoners in Orange County and their lawyers were recorded and accessed. How wide the eavesdropping was remains an open question.

For those embroiled in the criminal legal system, this may come as no surprise: In January 2018, defense attorney Joel Garson discovered that his client’s phone calls from the Orange County jail had been recorded and listened to by law enforcement.

At the time of the recordings, Garson’s client, Joshua Waring, was pro per, or representing himself, and the trial court had ordered that his calls not be monitored. Garson alerted the court and hearings were held, which led to another discovery—recording went far beyond Waring’s case.

“We learned that it wasn’t just pro per calls that were tape recorded,” Garson told The Appeal. “We found out there were thousands of phone calls to attorneys that were also recorded.”

More than a year later, Orange County defense attorneys are still trying to piece together the scope and potential impact of the jailhouse recordings. Prisoners’ phone calls with their attorneys are understood to be protected by attorney-client privilege, and, in California, it is a felony to listen to or record an incarcerated person’s calls with an attorney. Just this month, assistant public defenders Scott Sanders and Sara Ross filed motions in separate cases with hopes of compelling the courts to help illuminate the breadth of the misconduct.

Ross and Sanders are asking the Orange County Superior Court to help determine how many calls were recorded, whose calls were listened to by law enforcement, and what calls were turned over to the district attorney’s office.

“Whether the cover up is worse than the crime is yet to be determined because a complete understanding of what has taken place remains obscured by the persistent nature of the concealment,” wrote Sanders in his motion.

Whether the cover up is worse than the crime is yet to be determined.Scott Sanders, Assistant Public Defender, Orange County

In January 2015, Global Tel Link Corporation (GTL), Orange County jail’s phone provider, switched over to a new platform called Inmate Call Manager (ICMv). GTL maintained a “do not record” list and a “private” list of numbers that were not to be recorded. It’s unclear why two lists existed, according to Ross’s motion.

Three years later, after the scandal broke, GTL explained that when the system was updated from LazerPhone to ICMv, phone numbers from the “do not record” list were not properly uploaded. A total of 1,079 calls were recorded from 2015 to 2018 as a result of this “technical error,” according to a letter from GTL sent last July to the Orange County Sheriff’s Department. Almost 60 of those recordings were “accessed” by sheriff’s department staff and GTL “for investigative or technical purposes,” according to the letter. Ross’s motion defines the calls “accessed” as those that were “downloaded, listened to, copied, or otherwise distributed to law enforcement, or the prosecution.”

But soon after that letter was sent, it appeared that GTL’s own story began to change. In August, at Waring’s hearing, George McNitt, vice president of technical services at GTL and co-creator of ICMv, said human error was to blame. And in October, GTL revised the number of calls that were recorded and accessed. According to a declaration by McNitt, senior director of services at GTL, 4,356 calls were recorded, and 227 calls were “accessed” more than 300 times.

“The vast majority of defense lawyers had absolutely no idea these lists existed or that their calls were being recorded,” Ross wrote in her motion to the court.

In response to a series of questions sent by The Appeal, GTL spokesperson James Lee emailed the following statement: “We are unable to provide any specific response to the motion in question because of the ongoing nature of the special master and court proceedings which we are fully cooperating with. We have previously provided publicly-available testimony and declarations fully addressing questions raised so far during the proceedings and will continue to cooperate. As always we continue our commitment to our customers and to inmates and their friends and families.”

The Orange County Superior Court has appointed special masters to determine whose calls were recorded and to notify the affected attorneys. In her motion, Ross said this process has been, “slow and arduous, with precious few notifications arriving at defense counsel offices.”

The Appeal requested from GTL a list of jurisdictions where ICMv is in use and where the conversion from LazerPhone to ICMv occurred. Lee responded via email that he could not provide that information, noting that it is not part of the public court record, and is “proprietary and competitive.”

The sheriff’s department has placed responsibility for the recordings on GTL and denied any wrongdoing. “The facts show that this is an error by GTL, an error that they are continually unable to fully disclose or explain,” then-Sheriff Sandra Hutchens said in a statement released in November. “We anticipate this will be exploited by some to perpetuate an anti-law enforcement narrative. We are confident that those who look at this situation objectively will recognize an error by a contractor does not constitute a conspiracy by law enforcement. To imply otherwise ignores the truth.”

Hutchens’s statement does not address GTL’s claim that members of her department accessed the recorded calls, and she asserts that the office did not learn that calls had been recorded until June 2018. In an email to The Appeal, Carrie Braun, public information officer for the Orange County Sheriff’s Department, wrote that the department is limiting its comments to the November press release, “as this case is being handled by the Special Master appointed by the court.”

I want to know what the full scope of this misconduct was—how many calls were actually recorded, who accessed those calls, who knew what when, and who was responsible for the lack of action.Brendan Hamme, Staff Attorney, ACLU of Southern California

The potential culpability of the sheriff’s department, the district attorney’s office, and GTL demand further scrutiny, according to advocates. “I want to know what the full scope of this misconduct was—how many calls were actually recorded, who accessed those calls, who knew what when, and who was responsible for the lack of action within both offices in a meaningful way before the scandal broke,” said Brendan Hamme, a staff attorney with the ACLU of Southern California. “The public still has no idea the full scope of this conduct by both agencies.”

GTL has said that numbers on the “private” list were properly uploaded, and that only numbers on the “do not record” list were mistakenly recorded, Ross wrote in her motion. Phone numbers for the Orange County public defender and alternate public defender, for instance, were listed on both the “do not record” and “private” lists, according to Ross. However, according to GTL, Ross wrote in her motion, 11 calls to the public defender’s office and the alternate defender’s office were recorded between 2015 and 2018. Not only does this conflict with GTL’s assurances about the “private” list, but it does not reflect the high volume of calls received by the public defender’s office, according to Ross.

“There should have been thousands or even hundreds of thousands of recordings,” wrote Ross. “The presence of only 7 Public Defender phone calls and 4 Alternate Defender phone calls thus demonstrates that GTL’s information is false and inaccurate.”

The extent of the district attorney’s involvement is also not yet known, according to advocates. Last December, deputy district attorney Denise Hernandez testified during Waring’s case that prosecutors had been in possession of recordings between attorneys and their clients in at least eight criminal cases.

“The duty of the prosecutor is to seek justice, not convictions,” said Somil Trivedi, a senior staff attorney with the ACLU. “They should have gone directly to the chief judge or done whatever they had to do to end the program.”

This duty was taken seriously, according to Orange County senior deputy district attorney Cynthia Nichols. In April of 2016, when Nichols was provided a recording of a defendant’s conversation with his attorney by an investigator with the DA’s office, she sealed the disc, ordered the investigator to generate a report about what had occurred, and notified defense counsel, the public defender’s office, the sheriff’s department, and her supervisor.

In response to a series of questions from The Appeal, Kimberly Edds, public information officer for the district attorney’s office, emailed, “This is an active case. We will respond as part of the official court proceedings.”

“The DA and the sheriff are partners in law enforcement and we know that the DA received some of these calls,” said Trivedi. “There’s no way that they can claim ignorance on this.”

Years before the scandal broke, GTL should have known there was a risk that privileged calls were being recorded. In February 2015—just one month after the Orange County phone system was updated to ICMv—authorities in Charlotte County, Florida, notified GTL that privileged calls had been recorded after the same update from LazerPhone to ICMv.

In response, GTL’s McNitt sent a letter dated March 16, 2015, to the Charlotte County sheriff’s office explaining that during the conversion to ICMv in July 2014, numbers on the “do not record” list were not transferred, leading to the improper recording of 246 calls. McNitt testified at the Waring hearing held last August that the “do not record” list had also not been properly uploaded in Pinellas County, Florida, after its update to ICMv. However, GTL never contacted Orange County or any other jurisdiction to alert them about what had occurred in Florida, according to McNitt’s testimony.

“If law enforcement wished to have access to privileged calls and were willing to keep it to themselves, as they did in Orange County, that was perfectly acceptable to GTL,” wrote Sanders in his motion. “The company was undisturbed by its role in violating the rights of inmates who were oblivious to what was occurring.”

The problem may still exist in other jurisdictions that converted from LazerPhone to GTL’s ICMv platform or use ICMv, warned Sanders in his motion. GTL, along with its primary competitor Securus Technologies, dominate the billion-dollar prison telephone services industry. GTL’s products, which include phone, messaging, and video calls, service 2,400 facilities across all 50 states, Washington, D.C., and Puerto Rico, according to its website. More than 80 percent of U.S. prisoners use their products, GTL says.

Disclosure to clients who use ICMv, Sanders charged, would have threatened GTL’s bottom line. “The price of transparency and accountability was simply too steep—even though the cost was the right of incarcerated defendants to have confidential, unrecorded communications with their counsel,” wrote Sanders. “So instead, GTL buried its problem. But it came back to life in Orange County.”

Advocates fear there are efforts to bury the problem once more. The Orange County Grand Jury published an exonerating report on May 31, finding, “All involved parties handled this situation professionally, with transparency and with good intentions. …To the [Orange County Sheriff’s Department’s] and the County’s credit, they are tackling it head-on and may easily become leaders in the State and the United States in finding the most desirable solution for providing legally privileged communications to inmates.”

The report concedes some wrongdoing. “During evaluation of the problem, it was determined that several of the recorded calls had been accessed and information provided to the Orange County District Attorney.” Despite this finding, the report concluded, “There was no evidence that recorded phone calls were systematically provided to the DA and representatives of the departments involved were forthcoming and responsive.”

The grand jury’s report should be taken with “a grain of salt,” said the ACLU’s Trivedi, who noted that the grand jury has issued questionable conclusions before. In 2017, the grand jury also exculpated the DA’s office and the sheriff’s department in the decades-long program in the Orange County jails that used informants to elicit confessions from “high profile” suspects.

“I think it’s woefully deficient in its scope,” Trivedi said of the grand jury’s report on the jail recordings. “It gives far too much attention to things like professionalism on the part of the Orange County sheriff in addressing the scandal once it came to light as opposed to the real world ramifications for criminal defendants, for defense attorneys, for the justice system as a whole.”

Garson, who was interviewed by the grand jury, also criticized the report, calling it a “whitewash.” “The sheriff’s department knew that these calls were being improperly taped and they didn’t do anything about it,” said Garson. “Time after time, thousands of calls. …That’s what really is to me the most upsetting thing.”

A defense attorney in Orange County for 30 years, Garson said the cynical part of him wasn’t shocked when he learned about the recordings. “They can be listening anyhow, anywhere they want to, but somehow we have to talk to our clients,” he said. “We just hope that the sheriff’s department is following the law.”

Spotlight: The Supreme Court on Curtis Flowers—Right for the Wrong Reasons

Duncan Lock/Wikimedia Commons

Spotlight: The Supreme Court on Curtis Flowers—Right for the Wrong Reasons

Last week, the Supreme Court surprised many liberals when it overturned the conviction of a Black man on death row, Curtis Flowers, for racial bias in jury selection. Justice Brett Kavanaugh wrote for the majority and, as if to tell liberals not to get too excited, he ended the opinion by saying that in reaching their decision, the justices “break no new legal ground. We simply enforce and reinforce [precedent] by applying it to the extraordinary facts of this case.”

The facts are indeed extraordinary. Flowers “has faced trial an astonishing six times for the 1996 murder of four people at a furniture store” in a small Mississippi town, wrote the New York Times editorial board. The question before the Court this time was whether District Attorney Doug Evans, who tried Flowers all six times, unconstitutionally excluded Black people from serving as jurors at the sixth trial in violation of a 1986 decision, Batson v. Kentucky, which held that prosecutors cannot dismiss prospective jurors on the basis of their race.

But it was about more than one prosecutor’s conduct in one particular trial. The Flowers case in fact urges the opposite conclusion.

At Flowers’s first trial, Evans struck all five qualified Black prospective jurors, Flowers was tried in front of an all-white jury, and the jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court reversed the conviction, concluding that Evans had committed “numerous instances of prosecutorial misconduct.” At the second trial, the prosecution again struck all prospective Black jurors. The trial court determined that the reason Evans gave for one of the strikes was a pretext for discrimination, and allowed the Black juror to serve. The jury, consisting of 11 white jurors and one Black juror, convicted Flowers and sentenced him to death. On appeal, the state Supreme Court again reversed, saying that the prosecutor had again engaged in misconduct.

“But Evans didn’t seem to learn his lesson,” wrote the New York Times editorial board. “He kept targeting his peremptory challenges at Black prospective jurors almost exclusively and with near-surgical finesse.” At Flowers’s third trial, Evans exercised 15 peremptory strikes, all against Black prospective jurors. The jury consisted of 11 white jurors and one black juror, who got onto the jury only because Evans ran out of peremptory strikes. The jury convicted Flowers and sentenced him to death. On appeal, the Mississippi Supreme Court yet again reversed, saying that the case “presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge.” At the fourth trial, Evans used all of his strikes against Black people, but ran out of strikes, and five of the jurors were Black. At this trial and the fifth trial, the only two with more than one Black juror, the jury deadlocked along racial lines. At the sixth trial, Evans struck five of the six prospective Black jurors, leaving one on the jury. They convicted.

In all, Evans struck 41 of 42 Black potential jurors, including at least one in the sixth trial who was similarly situated to prospective white jurors that Evans did not even question, let alone strike. At the sixth trial, Evans asked potential Black jurors an average of 29 questions each, but asked the 11 white jurors who were eventually seated an average of one question each. The majority opinion said that the “dramatically disparate questioning” of Black jurors to find a pretext to strike them “strongly suggests that the State was motivated in substantial part by a discriminatory intent.” And as the New York Times mentioned, “There is much more mischief in Flowers’s case that the Supreme Court didn’t examine,” including faulty forensic evidence and a star witness who has since recanted.

This is all troublesome, and most justices, too, were troubled. But over and over, they stressed how unique the case was. The majority opinion states, “we need not and do not decide that any one of [the] facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error.” Considering the broader context essentially narrows the decision.

Justice Samuel Alito’s concurrence puts it plainly: “As the Court takes pains to note, this is a highly unusual case. Indeed, it is likely one of a kind.” Alito and the majority also take pains to note that because of its uniqueness, the ruling will not apply to other cases. “Another prosecutor in another case in a larger jurisdiction” who gave any of Evans’s reasons for striking a juror would probably be successful, and Alito is fine with that outcome. “Were it not for the unique combinations of circumstances present here, I would have no trouble affirming” Flowers’s conviction, he wrote.

In his dissent, Justice Clarence Thomas wonders whether the Court heard the case “because [it] has received a fair amount of media attention.” The media, according to Justice Thomas, “can endanger the ability of a defendant to receive a fair trial” because it “often seeks to titillate rather than to educate and inform.”

Indeed, it’s undeniable that some of this writer’s interest in the case—and perhaps some readers’ interest—is motivated by familiarity with the painstakingly reported second season of the podcast series “In the Dark.” And the show itself admits that the dramatic facts led them to the case: “What got my attention about Curtis Flowers was the fact that Curtis had been tried not once, not twice, but six times for the same crime,” says reporter Madeleine Baran in the first episode. “Trying someone six times is incredibly unusual. It almost never happens. But it happened here.”

Baran may have selected the case because its facts are striking, but unlike the Court, “In the Dark” does not allege that those facts make it an outlier. The show quotes one local man saying what might be its thesis statement: “If you try a man and you go six times for the same crime, well something is wrong about the Constitution, or something is wrong about the law, or something is wrong about the prosecution, or something is wrong about the defense, or something is wrong about the entire system.”

The meticulously detailed reporting of “In the Dark” instead has expansive implications. The series paints a picture of a severely flawed case and a prosecutor so brazen that each time a higher court chastises him for misconduct, he goes back and repeats his behavior. Evans, who is in his seventh term as DA—and is running unopposed this year for an eighth—“has shown no inclination to give up,” and might very well try Flowers a seventh time, according to the Associated Press.

How many times has Doug Evans struck people from juries because they were Black? It seems extremely unlikely that Curtis Flowers was the only defendant whose case was tainted this way. It is far more likely that Evans’s attitude is rational. It’s based on his experience. No one—not Mississippi appellate courts, not the state’s bar association, not the U.S. Supreme Court, not his constituents, and not his family or friends—has forced him to obey the Constitution. And based on what we know about prosecutorial accountability, it equally implausible that Evans is the only prosecutor who operates with this kind of brash impunity. Thomas is right that the media is under pressure to capture eyes and ears, but cases like these, if reported well, shed light on the system as a whole, and should be interpreted as such. The extraordinary nature of this case should not lead the justices to limit their decision: It should be cause to expand it.

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Pennsylvania Police Department Accused of Sexism

Brandi Courtesis lost her job with the Gettysburg force after saying a colleague sexually harassed her. The accused, fired for another reason, may be back in uniform soon.

Photograph by Joe Zlomek/Wikimedia Commons

Pennsylvania Police Department Accused of Sexism

Brandi Courtesis lost her job with the Gettysburg force after saying a colleague sexually harassed her. The accused, fired for another reason, may be back in uniform soon.

When Brandi Courtesis interviewed to become an officer in the Gettysburg, Pennsylvania, police department in 2013, she said she was asked if she planned to have more children and if she could handle inappropriate and sexual comments. At age 29, she was hired in June 2013 and became the only full-time female officer.

Courtesis alleged in a federal lawsuit that fellow officer Michael Carricato began sexually harassing her in September 2015. The two had briefly dated more than a year earlier. Courtesis said Carricato talked about the size of his penis and the number of women he had sex with to other officers, according to the lawsuit filed in February 2017. All of this was done in Courtesis’s presence.

Courtesis complained about Carricato’s behavior to her direct supervisor, Sgt. Larry Weikert, who acknowledged Carricato’s behavior was inappropriate but took no action except to tell Courtesis to speak with the police chief. After she did so, in November 2015, Chief Joe Dougherty issued a discipline memo to both Courtesis and Carricato. This was the only official reprimand Carricato ever received, according to the lawsuit. When Courtesis confronted Weikert to find out why she was being disciplined, he threw the memo and a pen against the wall and said, “I don’t need this shit.”

About two weeks later, Carricato tried to secretly record a conversation he had with Courtesis on a department-issued body camera. But about six minutes into their talk, Courtesis noticed that the red light on the camera was on. When asked, Carricato admitted to recording, and he continued to do so for about 25 more minutes. According to the civil complaint, he threatened her in an effort to get her to retract her complaints against him. Carricato said he would “do everything in his power to make sure [Courtesis was] dragged down with [him].”

In December 2015, Courtesis informed the department about Carricato’s threatening statements and found the footage on department servers. Pennsylvania law requires that all people involved in a recorded conversation give their consent.

No action was taken to remedy the situation or to terminate Carricato. He continued to harass Courtesis for a year and a half. In that time, Courtesis filed complaints against Carricato; department officials told her to thicken her skin and she was passed over for promotions. Carricato, however, was given the opportunity to attend training to be promoted to a field training officer.

In March 2017, the issue of Carricato’s recording was referred to District Attorney Brian Sinnett for possible prosecution and Carricato was placed on administrative leave. In June that year, Courtesis reached a settlement on the allegations of sexual harassment with the borough. Gettysburg paid Courtesis more than $213,000. In exchange, Courtesis agreed to resign from the police department because of “irreconcilable differences.” She also agreed not to make any disparaging comments about the borough, the police department, or Carricato.

When Carricato returned to active duty in October 2017, he was still under criminal investigation for the recording he made of Courtesis two years earlier. Because of the investigation, Sinnett informed Chief Dougherty that he considered Carricato to be an unreliable witness and would not prosecute any cases based on Carricato’s “uncorroborated observations.”

Gettysburg has a small police department of about a dozen full-time officers, most of whom patrol alone. Often an individual officer’s testimony is the only basis for opening a criminal case. In Gettysburg, and in most counties in Pennsylvania, police officers can file criminal charges without conferring with the district attorney first and can even seek plea deals on their own in low-level crimes.

Sinnett’s decision, not the alleged sexual harassment or the possible criminal charges, prompted borough officials to fire Carricato on Nov. 13, 2017. Three days later, Sinnett charged Carricato with a felony wiretap violation and a misdemeanor count of official oppression. If convicted, Carricato would most likely face a probation sentence or a few months in county jail and would no longer be eligible for work as a police officer.

To avoid such a conviction, Carricato entered into the county’s accelerated rehabilitative disposition program in June 2018. For the course of the yearlong program, Carricato was required to remain under supervised probation and pay more than $2,000 in fines and fees. A stipulation of Carricato’s participation in the program was that his record would not be expunged.

Police officers in Pennsylvania can have their certification revoked because of a criminal conviction. Although potential employers can see that Carricato was charged with a felony, his successful completion of the rehabilitation program means he will not carry a criminal conviction. When Carricato’s punishment was announced, Sinnett told reporters that Carricato could still be a police officer but he did not believe Carricato had a desire to do so.

However, Carricato, through his representation in the International Brotherhood of Teamsters Local Union 776, had already filed a grievance seeking his reinstatement. Less than two months after allowing Carricato to enter in the diversionary program, Sinnett was informed he would have to testify in an arbitration hearing as part of the grievance process.

The union argued that the borough did not have just cause to fire Carricato and that it violated the department’s collective bargaining agreement, which allows only for a disciplinary firing. The union argued that the borough did not discipline Carricato for recording his conversation with Courtesis, but fired him as an administrative matter based on Sinnett’s decision, which the union disputed, noting that Sinnett had called Carricato as a witness even after he began the criminal investigation.

The allegations of sexual harassment against Carricato and the contents of the criminal charges filed against him were not brought up during the arbitration hearing. Neither Courtesis’s name nor any mention of sexual harassment allegation filed against Carricato appear in any of the borough’s exhibits during arbitration or in the more than 170-page transcript from Carricato’s arbitration hearing.

The circumstances around Carricato’s harassment of Courtesis were kept so hidden that, in an opinion issued on May 9, arbiter James Darby wrote that Carricato was being disciplined for dishonesty but had never been given notice of what he had done wrong.

“[It] would be akin to an employer telling an employee that he or she is being fired for being a liar, but ‘we can’t tell you why,’” Darby wrote.

Darby ordered the police department to rehire Carricato and pay him back pay and benefits.

The borough is awaiting the outcome of its appeal of that decision and officials did not respond to requests for comment.

Spotlight: Presidential Candidates—Pay Attention to Poverty and All of Its Drivers

Spotlight: Presidential Candidates—Pay Attention to Poverty and All of Its Drivers

The Democratic Party debates begin tonight. Economic justice has been high on the agendas of several candidates and at a recent forum organized by the Poor People’s Campaign, the nine candidates in attendance were pushed to go beyond the concerns of the middle class and look specifically at poverty and its causes, including systemic racism. It will be worth paying attention to whether the causes and consequences of poverty feature in the debates tonight and tomorrow night.

So far there has been little attention given to how systems of policing and punishment penalize poverty and contribute to it. Wanda Bertram of the Prison Policy Initiative drew attention to the issue this month, writing, “it’s mysterious and frustrating that none of these candidates have proposed to end our justice system’s criminalization of poverty—at least beyond the occasional nod to ending money bail.”

This is despite how many people are affected by the issue. “The incomes of people in U.S. prisons and local jails are overwhelmingly low, and one in two American adults has had an incarcerated close relative, meaning that a candidate who understands the criminalization of poverty could propose transformative reforms and speak to a huge number of voters,” Bertram wrote. “In particular, candidates are missing an opportunity to speak to Black voters, who are hit hardest by policies that punish poor people.”

In April, Emily Bazelon wrote in the New York Times: “For the candidates, thematically, a starting point should be that wealth should not determine a person’s fate in court, and profit should not drive the system. Bail bonds, privatized probation and corporate-run prisons are parasitic features of the justice system. Ending cash bail should be at the top of every candidate’s criminal justice agenda. So should getting rid of fines and fees that help fund local governments but trap people in cycles of debt.”

Presidential candidates, Bertram wrote, should pledge to better fund the services and systems that keep people from getting arrested and help stabilize people returning home from jail and prison. And they should urge and incentivize states to end criminal and juvenile legal system fees that function as a regressive form of taxation, hinder rehabilitation, and incentivize harmful practices.

There has been movement on these issues at the state and local level, most recently from Nevada, which this month followed California to become the second state in the country to end fees for young people facing juvenile delinquency charges and their families. Across the country, approximately one million young people face juvenile delinquency charges each year. Fines, fees, restitution, and other costs are imposed in nearly every state.

In an article for the Nevada Independent, Denise Tanata, the executive director of the Children’s Advocacy Alliance, and Steve Yeager, the state representative who leads the committee that sponsored the bill to end fees in the juvenile system, noted that Nevada had more than a dozen laws authorizing the state and counties to charge a variety of fees. It is important to note that fees are distinct from fines, restitution, and other legal financial obligations or monetary sanctions. They are imposed not as punishment but as charges for “using” the legal system. The Nevada law leaves fines and restitution, which can also be crippling, in place, and it does not touch financial obligations imposed by the adult criminal legal system.

But the lifting of fees is an important first step. Those fees fell disproportionately on Black youth, who are three times more likely to be arrested and six times more likely to be placed in state facilities. Families that were unable to pay faced harsh measures ranging from collection actions to driver’s license suspensions and even criminal charges.

As is the case nationally, and in the adult criminal legal system as well, the fees undermine rehabilitation and bring counties little in meaningful revenue. Tanata and Yeager wrote that “some state and local officials in Nevada reported spending more on fee collection efforts than they received in total fees from families in their jurisdictions.”

The Children’s Advocacy Alliance worked with the Policy Advocacy Clinic at the University of California, Berkeley School of Law on research documenting the harms of juvenile administrative fees. The Berkeley clinic also produced a major report on the harms of fees in California before the passage of Senate Bill 190, which abolished all juvenile administrative fees in the state.

Following an analysis by the Policy Advocacy Clinic and the East Bay Community Legal Center, California’s Senate recently passed SB 144. The bill would eliminate nearly all the administrative fees in the adult criminal legal system as well and wipe out billions in debt.

Presidential candidates should pay attention.

Speaking to the New York Times Magazine earlier this year, Mitali Nagrecha of Harvard’s National Criminal Justice Debt Initiative, said: “You think about what we want to define us as Americans: equal opportunity, equal protection under the law. But what we’re seeing in these situations is that not only are the poor in the United States treated differently than people with means, but that the courts are actually aggravating and perpetuating poverty.”

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Spotlight: Marion Wilson’s Execution Is a Grim Milestone

Georgia Department of Corrections

Spotlight: Marion Wilson’s Execution Is a Grim Milestone

Marion Wilson was killed by the State of Georgia last night. His last words were, “I never took a life.” It was the 1,500th execution since 1976, the year they resumed after the Supreme Court’s decision in Gregg v. Georgia.

In The Intercept yesterday, Liliana Segura reflected on Wilson’s execution, and the state of capital punishment in Georgia and nationwide. Regarding Georgia, she wrote, “With some 50 people on death row—and having carried out 73 executions since Gregg—Georgia is neither the largest nor the most active death penalty state in the country. But it has consistently exposed the ugliest truths about who we condemn to die.” In 2015 alone, the state executed “a Vietnam veteran with severe PTSD, a man diagnosed with an IQ of 70, a woman who became a theologian and mentor to scores of incarcerated women, and a man who credibly insisted until his last breath that he was innocent.”

On Twitter, Sister Helen Prejean pointed to some of the many “irreparable flaws” in the death penalty system that manifested themselves in Wilson’s case and made his execution possible. Among them: The prosecutor who tried Wilson said during the trial that he did not know whether it was Wilson or his co-defendant who had pulled the trigger in the shooting of Donovan Parks. Yet at Wilson’s sentencing, he insisted to the jury that it had been Wilson. Years later, the prosecutor admitted under oath that he believed it was Wilson’s co-defendant, Robert Butts, who had killed Parks. Both Wilson and Butts were sentenced to death and Butts was executed last year.

Nationally, Segura describes a death penalty landscape “filled with … contradictions.” Depending on which trends one looks at, it can seem on the verge of extinction or resolutely in place. Death sentences and executions are in decline. There were 60 executions in 2005 and only 25 last year. Nine states have ended capital punishment, through legislation or court rulings, including New Hampshire just this year, and four have moratoriums in place. Yet in some states, executions “are surging.” Tennessee even brought back the electric chair last year, after no executions for years. And in the White House, President Trump calls for executions for drug dealers.

As the race for the Democratic nomination for president is well underway, the candidates have been largely united in opposing the death penalty. In a set of interviews published by the New York Times this week, 20 of 21 candidates, several former prosecutors among them, expressed opposition. The only exception was Montana Governor Steve Bullock, who said he would reserve its use for the most “extreme circumstances, like terrorism.”

Joe Biden did not participate in the interview but even his longtime support for the death penalty may be under strain, at least in public pronouncements. The 1994 crime bill he authored created 60 new death penalty offenses under 41 federal capital statutes and, as Vox’s German Lopez pointed out in an analysis of the crime bill published yesterday, Biden “bragged” immediately after its passage that “the liberal wing of the Democratic Party” was now for “60 new death penalties,” “70 enhanced penalties,” “100,000 cops,” and “125,000 new state prison cells.” Yet this month, in New Hampshire, Biden congratulated the state on passing a law that abolished the death penalty, leading to speculation that he could reverse his position on the issue.

But opposition at the federal level, which accounts for 62 people on death row, compared to over 2,700 in state prisons, can only go so far in ending the death penalty. A look at two counties that are among the country’s largest contributors to death sentences is a reminder of how capital punishment at the local level, while at “generational lows”, is still stubborn.

In California, Governor Gavin Newsom announced a moratorium on executions in March. But this week, the ACLU released a report on death sentences out of Los Angeles County under District Attorney Jackie Lacey. The report looked at the 22 death sentences that have been handed down during Lacey’s tenure, since 2012. In contrast, Harris County, Texas, which once contended for the title of death penalty capital of the country, has had six death sentences imposed since 2013. Yet 59 percent of LA County residents oppose capital punishment, according to a 2019 poll.

Those 22 death sentences represent a toxic brew of what Cassandra Stubbs of the ACLU described as “abysmal defense lawyering, geographic disparities, and racial bias” that “are the legacy of [LA County’s] unfair and discriminatory use of the death penalty.” Of the 22 people sentenced to death in Los Angeles, not one was white. Though only 12 percent of homicide victims in the county between 2000 and 2015 were white, 36 percent of those sentenced to death were convicted of killing at least one white victim, according to the report. Eight of the defendants were represented by lawyers who have been charged with misconduct.

In The Appeal today, Joshua Vaughn talks about Caddo Parish, Louisiana, where James Stewart succeeded District Attorney Charles Scott in 2015 after Scott’s death that year. As Vaughn writes, between 2010 and 2014, Scott, along with two of his assistants, was “principally responsible for making Caddo Parish, Louisiana, the death penalty capital of America.” Between 2006 and 2015, its rate of death sentences for homicides was eight times higher than the rest of Louisiana.

When Stewart ran for DA, it was unclear whether he would be a reformer, but he did run on a message of change. However, his handling of death penalty cases brought during Scott’s tenure has worried observers. In one case, where the jury deliberated for less than two hours before returning a death sentence, Stewart’s office has fought post-conviction motions to compel discovery, and has issued redacted documents to the defense. Prosecutors even went so far as to request financial compensation from defense attorneys for their time.

The attorney in that case told The Appeal in an email, “DA Stewart should look closely at the death sentences sought and secured by [assistant DA] Dale Cox, rather than defend them with Cox’s vigor.” He also said, “James Stewart was elected District Attorney because Caddo Parish voters rejected Dale Cox’s ‘we should kill more people’ view of justice.”

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

In Louisiana, a Messenger of Change Disregards His Message

James Stewart, Caddo Parish’s DA, continues to defend controversial death sentences that originated with his predecessors.

James Stewart.
Photo illustration by Elizabeth Brown. Photo from Facebook.

In Louisiana, a Messenger of Change Disregards His Message

James Stewart, Caddo Parish’s DA, continues to defend controversial death sentences that originated with his predecessors.

Between 2010 and 2014, three people were principally responsible for making Caddo Parish, Louisiana, the death penalty capital of America: District Attorney Charles Scott and two of his assistant DAs, Dale Cox and Hugo Holland.

Holland was forced to resign in 2012 after he and several other employees of the district attorney’s office falsified paperwork in their attempts to qualify for weapons from the federal government’s surplus military gear program meant for police departments. Scott died in 2015 from a heart attack, and Cox chose not to run to be his replacement following the media attention he received after telling the Shreveport Times, “I think we need to kill more people. … I think the death penalty should be used more often.” Nevertheless, the effects of their administration persist.

Caddo Parish accounts for roughly 5 percent of the state’s population, 10 percent of homicides in the state, but nearly half of all death sentences in the past 12 years. The rate of death sentences per homicide was eight times higher than the rest of Louisiana between 2006 and 2015, according to the Death Penalty Information Center. This extreme disparity of death sentences handed down in the parish prompted Supreme Court Justice Stephen Breyer to question the constitutionality of the death penalty.

James Stewart was elected to be Scott’s successor. Electing the former judge, who received financial support from liberal billionaire George Soros, was seen by some as a sign of reform in a system that had become synonymous with corruption and racism. At the same time, there were signs that Stewart would not be the reformer some hoped for. Stewart has said that he believes the death penalty should be reserved for the “worst of the worst.” And in addition to the Soros funding, he was endorsed by Scott’s widow, Alexis Scott.

“The DA has the sole choice to decide which cases to seek the death penalty,” Stewart said during a candidates forum in 2015. “…You have to have somebody who is attuned to the community, who knows which cases are the most serious, [who] undestands which cases should go [to the death penalty] and which cases should not go.”

While it may not have been clear how much of a reformer Stewart would be, he did campaign on a message of change from the prior administration. That’s why it troubles advocates to see him pursue death penalty cases initiated by his predecessors despite evidence that those prosecutors acted in bad faith.

For instance, Stewart continues to seek the death penalty against Grover Cannon, who is accused of killing a Shreveport police officer, Thomas LaValley, in August 2015. If Stewart is successful in securing a death sentence against Cannon, it will the first of his administration and the first in more than four years. But Cannon’s case has been controversial from the start.

In September 2015, Cox opposed the release of an audio recording by Shreveport police that Cannon and his legal team believed would exonerate him. Since then, Cannon’s trial has been delayed multiple times because of problems with the jury selection process. In February, jury selection was moved to East Baton Rouge Parish because the abundance of pretrial media coverage made it impossible to select an impartial jury in Caddo Parish.

The trial was delayed again in March after it was discovered that a computer error excluded all people born after June 2, 1993, from the list of potential jurors. Stewart then attempted to transfer the case back to Caddo Parish, but that decision was overturned on appeal in June.

“James Stewart was elected District Attorney because Caddo Parish voters rejected Dale Cox’s ‘we should kill more people’ view of justice,” Ben Cohen, counsel at the Promise of Justice Initiative and Cannon’s attorney, told The Appeal in an email. “Voters in Caddo Parish, like justices on the United States Supreme Court, recognized that Cox was an outlier, a vestigial mixture of racism and vindictiveness.”

This is not the first time Cohen has squared off against Stewart in a case that originated with the prior administration. Cohen also represented Marcus Reed, who was convicted of first-degree murder and sentenced to death in 2013 for the killing of three brothers outside his home in 2010.

Reed argues the killings were in self-defense. He says at least one of the brothers had broken into his home on Aug. 16, 2010, and returned around 10 p.m. the same day with his brothers to confront Reed.

Witnesses provided conflicting accounts of the confrontation that led to the shooting. One witness said Reed walked out of his home and told the brothers to leave before shots were fired. That witness claimed to have heard a single gunshot, a pause, and then what sounded like multiple shots firing back. Two other witnesses said Reed opened fire as soon as the brothers arrived and the oldest stepped out of the vehicle. A semi-automatic rifle was found under Reed’s porch and a handgun was found near the home.

At trial, prosecutors argued Reed lured the brothers to his home and ambushed them. The jury deliberated for less than two hours before returning a death sentence for Reed. He was denied a new trial and the Capital Post-Conviction Project of Louisiana has filed a number of motions for post-conviction relief and public records requests. Stewart’s office is fighting all of the motions to compel discovery, and it issued redacted documents to the defense team. In response to the motions, Stewart’s office even requested financial compensation from Reed’s attorneys for their time.

Stewart did not respond to multiple requests for comment.

“DA Stewart should look closely at the death sentences sought and secured by Dale Cox, rather than defend them with Cox’s vigor,” Cohen said. “It’s a true disappointment to see old-guard prosecutors defend these death sentences that were so out of bounds of our current standards of decency.”

Spotlight: Kevin Cooper’s Case Exemplifies Decades of Systemic Failures

Protesters outside of California State Prison at San Quentin in 2004.
Photo by Justin Sullivan/Getty Images

Spotlight: Kevin Cooper’s Case Exemplifies Decades of Systemic Failures

Kevin Cooper’s name has been in the papers in recent weeks, as it has been on and off for 35 years. This time, it was because Kim Kardashian visited him in prison, part of her advocacy for those she believes were wrongly convicted.

Cooper was sentenced to death for the hacking murders of Douglas and Peggy Ryen, their 10-year-old daughter and an 11-year-old neighbor. The Ryens’ 8-year-old son, Josh, survived his throat being slashed.

A reality show star is among Cooper’s best hopes for exoneration, and the media is generally focusing not on the case, but on backlash against her. These are only the two most recent examples of how Cooper’s case exemplifies so much that is wrong with our system. Since his 1983 arrest, Cooper’s treatment has exposed one systemic failure after another.

Cooper describes his childhood as abusive and troubled. His first involvement with the system was at age 7, after he ran away from his adoptive family to escape beatings. He turned to shoplifting and marijuana use, ending up in juvenile detention. In his mid-20s, Cooper was sentenced to four years for burglary, but he wasn’t sent to an ordinary prison. He was sent to the California Institution for Men, in Chino, which, despite the conformist name, was founded in 1941 as an experiment in prison reform. It was built to alleviate overcrowding, violence, and oppression in California’s other prisons, which newspapers described as “powder kegs ready to explode.”

The man hired to imagine this new system was Kenyon J. Scudder, a veteran penologist who had ideas for how to improve the prison system he saw as archaic and inhumane. Under Scudder, the institution, nicknamed Chino, was rooted in the idea that “prisoners are people,” and it sought to treat those incarcerated with dignity.

Chino’s first class of 34 prisoners included those with convictions for minor offenses along with those who were convicted for violent crimes. Chino didn’t use terms like “warden” or “guards.” Scudder was the “superintendent,” and his guards were “supervisors,” mostly college-educated people who had never before worked in prisons. This was to avoid any punitive mindsets. Scudder de-emphasized security and weapons, and trained his staff in conflict resolution.  Prisoners chose their own clothing and their own jobs. Their cells were not locked, and instead of a 25-foot wall with gun towers, as was suggested, Scudder built only a five-strand barbed-wire fence. He encouraged loved ones to visit, permitting physical contact, and he refused to segregate on racial lines. Today, this kind of prison would be considered a quixotic dream.

“For a brief period of time, it seemed that other prisons around the world would follow Chino’s lead,” write Emily Nagisa Keehn and Dana Walters of the Human Rights Program at Harvard Law School. “In the early 1950s, prison experts at the International Penal and Penitentiary Congress agreed that open prisons should eventually replace traditional cell-based prisons for nearly all types of [prisoners].” In 1955, a United Nations resolution echoed the sentiment. But Chino eventually morphed into a traditional maximum security prison. Several factors doomed Scudder’s vision, all part of the tough-on-crime movement, but one high-profile escape was particularly damaging to the model: In 1983, Kevin Cooper walked out of the prison a day after arriving, and was soon the lead suspect in four gruesome murders.

It makes no sense––morally, financially, or logically––to ignore the good of any given endeavor because one person abused it. But what happened in Chino is part of a pattern wherein politicians act cowardly and walk away from progressive and promising models, usually at the expense of the least enfranchised.

The system was not done exposing its worst in Cooper’s case. New York Times columnist Nicholas Kristof wrote an exhaustive and devastating column detailing the evidence indicating that Cooper was framed by law enforcement for the murders. “In 1983, four people were murdered in a home in Chino Hills, California,” he begins. “The sole survivor of the attack said three white intruders had committed the murders. Then a woman told the police that her boyfriend, a white convicted murderer, was probably involved, and she gave deputies his bloody coveralls. So here’s what sheriff’s deputies did: They threw away the bloody coveralls and arrested a young black man named Kevin Cooper.

As in so many cases, Cooper’s trial was, to put it mildly, racially charged. One man brought a noose around a stuffed gorilla to a hearing. According to Cooper’s current lawyer, “he didn’t have a half-decent defense.” The crime was high profile and law enforcement was under pressure to punish someone. Kristof dispatches with the evidence against Cooper by exposing law enforcement negligence, such as when the district attorney shut down the on-scene investigation “for fear, he said, of gathering so much evidence that defense experts could spin complicated theories.” Kristof also exposes probable lies, like when a deputy suspected of planting evidence claimed not to have entered the room where the evidence was found, but his fingerprints were found there. Various judges have concluded that Cooper was framed. Kristof notes that the bloody coveralls were not the only evidence pointing to a different culprit, but it was all ignored.

Cooper also faced politicians who cared more about saving face than saving the life of a possibly innocent person. Kamala Harris, as district attorney of California, refused to permit advanced DNA testing that could have exonerated Cooper. It was only after Kristof’s column was widely shared, and Harris was no longer in a position to help, that she reversed her position. Former Governor Jerry Brown waited until the very end of his term to finally order new DNA testing, but, as the Los Angeles Times reported, he “inexplicably stopped short of ordering all the testing needed.” Shortly after Gavin Newsom took office as governor, he ordered additional DNA testing. The results are pending.

Not everyone caught in the criminal legal system prompts backsliding on reform, and not everyone is hit with high-profile murder charges. Not everyone is framed. And very few have Kim Kardashian fighting for them. But plenty of people have been railroaded because of their race, their class, or their education. And plenty of people have been disbelieved because law enforcement says otherwise, regardless of how implausible the police story is. Plenty have faced arbitrary refusals of those in power to get to the truth. And a tremendous number have suffered because politicians rolled back reforms after isolated incidents of abuse. Cooper understands all this.

“I don’t have any confidence,” he told Kristof. “I don’t believe in the system.” Cooper believes that the criminal legal system is unfair to poor people and non-white people. “I’m frameable, because I’m an uneducated black man in America,” he said. “Sometimes it’s race, and sometimes it’s class.” He is writing a memoir. “That’s my motivating factor to get out of here, to tell my story and tell the truth about this rotten-a** system,” he said.

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Jackie Lacey’s Legacy Is ‘Unfair and Discriminatory,’ Advocates Say

A new report charges the Los Angeles DA with seeking the death penalty in unjust and harsh ways.

Jackie Lacey.
Photo by Michael Buckner/Getty Images for The Rape Treatment Center

Jackie Lacey’s Legacy Is ‘Unfair and Discriminatory,’ Advocates Say

A new report charges the Los Angeles DA with seeking the death penalty in unjust and harsh ways.

Leonardo Cisneros’s attorney was accused of sleeping during his death penalty trial. During Rudy Anthony Ruiz’s capital trial, his attorney was facing disbarment.

These cases are not an anomaly, charges a report released yesterday by the American Civil Liberties Union. Rather, the report says, they typify the type of person who has ended up on death row—and the type of legal defense they get—during the tenure of Los Angeles District Attorney Jackie Lacey.

Since Lacey took office in 2012, 22 people have been sentenced to death from Los Angeles County, and the similarities across their cases are striking. All 22 are people of color, according to the report: 13 Latinx, eight Black, and one Asian. And, even though 12 percent of homicide victims in Los Angeles between 2000 and 2015 were white, 36 percent of those sent to death row killed at least one white victim, the report found. Eight of the 22 were represented by counsel who have been charged with misconduct; lawyers involved in five of those cases were disbarred or suspended. “Abysmal lawyering has long been a predictor of who will actually receive the death penalty,” writes the report’s author, Cassandra Stubbs, director of the ACLU Capital Punishment Project.

“The death penalty in America is impossible to separate from America’s legacy of racism, violence, and lynching,” said Jeffery Robinson, ACLU deputy legal director and director of the Trone Center for Justice and Equality. “This system is bankrupt. Completely bankrupt.”

Lacey maintained that race is not a factor in her prosecutors’ deliberations and defended their process in determining who they would ask the state to kill.

“As long as the death penalty remains legal in California, a committee of diverse prosecutors will review these cases using one of the most extensive review processes in the nation and make recommendations based on the facts without regard to the race of a defendant or a victim,” Lacey said in a statement emailed to The Appeal.

However, the data contradicts Lacey’s assertion, said Robinson. “The most important aggravating factor in the case is the race of the victim,” he said. “The second most important aggravating factor is the race of the defendant.”

Since 2012, the year Lacey took office, only Riverside County has sent more people to California’s death row than Los Angeles, according to the ACLU’s report. In fact, as death penalty prosecutions have declined nationwide, Riverside and Los Angeles are two of the only three counties in the country to sentence more than 10 people to death from 2014 to 2018, according to the report. Almost a third of the 723 people on death row in California are from Los Angeles—more than any other county, according to the ACLU’s report.

“Los Angeles County is one of the largest killers in the country when it comes to imposition of the death penalty,” said Robinson.

Within California, the politics of criminal justice and the death penalty seem to be shifting. In March, Governor Gavin Newsom announced a moratorium on executions, stating that he would not oversee any while in office. His executive order, however, stops short of preventing prosecutors from seeking the death penalty or juries and judges from imposing it. According to a report in the Los Angeles Times published in March, after the moratorium was announced, Newsom was considering how to stop prosecutors from pursuing death penalty prosecutions.

But unless further action is taken, the next governor will have the opportunity to reopen the death chamber at San Quentin. The people currently on death row are still serving a death sentence but one that, as long as Newsom is governor, will not be carried out. And yet, Newsom’s moratorium is not a deterrent for Lacey, who has said her office will continue to seek death sentences.

“I will follow the law as prescribed by the citizens of California—whether that is seeking the death penalty for the most heinous crimes or, with the abolition of the death penalty, life without parole,” said Lacey in her emailed statement.

A majority of California district attorneys plan to move forward with death penalty prosecutions, despite the moratorium, according to Michele Hanisee, president of Los Angeles County’s Association of Deputy District Attorneys. Newsom has imposed his will over the will of Californians, said Hanisee, noting that voters have twice rejected ballot initiatives to abolish the death penalty and that, in 2016, they passed a referendum that would expedite executions.

“I think it is confusing to the public, but I think the public is also seeing that the governor is taking a unilateral action in spite of existing law,” she said. “It is not the place of the governor to make decisions about what is and is not the law.”

But even if executions do not occur under Newsom, advocates say as long as the specter of the death penalty looms over prosecutions, it will continue to corrupt the already deeply flawed California legal system.

For instance, to sit on a jury in a capital case, a juror must be willing to impose the death penalty. Stubbs noted that this qualification is particularly troubling in Los Angeles where a majority of voters voted to abolish the death penalty in the 2012 and 2016 ballot referendums. The very process of seeking the death penalty, self-selects jurors who are more likely to support a conviction and a death sentence, she added.

“Every jury is skewed,” Stubbs told The Appeal. “We know in Los Angeles that’s going to be a minority of the jurors [who support the death penalty]. Most of the community is excluded from trial.”

Even before trial, the threat of the death penalty can be used to illicit guilty pleas, according to advocates. “There’s incredible coercion against folks to take pleas even though they may be innocent,” said Stubbs.

Going to trial becomes a “terrible roulette game,” agreed Peter Brooks, a professor at Princeton University. “You get put in the position where you feel you have to plead to some sort of offense, come up with some sort of a confession in order to not be put to death,” Brooks said. “If you don’t go along with the story we’re proposing, we’re going to kill you.”

The death penalty also normalizes extreme sentences, said Stubbs. For instance, the California ballot referendums offered voters the choice between life without parole or the death penalty, even though both sentences condemn people to death, one by incarceration and one by execution. More than 40,000 people—or about 30 percent of the prison population—are serving life or virtual life sentences in California, according to a report by the Sentencing Project released in 2017.

To curtail extreme sentences, the death penalty must be abolished, said Stubbs. “When we talk about the death penalty as an acceptable punishment, it’s fundamentally dehumanizing and sets up this framework of people as being outside redemption,” said Stubbs. “In that kind of excessive punishment system we can understand life without parole as a punishment that is not so bad because it is not as bad as the the death penalty.”

Lacey’s record on the death penalty, Stubbs said, is part of a larger, growing agitation for prosecutor accountability. In 2020, she will be up for election, and two challengers have already announced their intentions to run.

“Unfair and discriminatory,” said Stubbs. “That’s the legacy of District Attorney Lacey’s death penalty in Los Angeles. I think it’s important that LA voters hold her to account for that.”

Orange County’s ‘Standard Operating Procedure’

The California county has a thin blue line that appears to protect not just the police, but also the DA’s office, criminal justice advocates say.

Orange County District Attorney Todd Spitzer
Photo illustration by Elizabeth Brown. Photo from Supervisor Todd Spitzer's Facebook.

Orange County’s ‘Standard Operating Procedure’

The California county has a thin blue line that appears to protect not just the police, but also the DA’s office, criminal justice advocates say.

Handcuffed and lying on the ground, Mohamed Sayem asked Orange County officers Michael Devitt and Eric Ota if they were going to shoot him.

“No,” Devitt said.

“Like to,” Ota replied.

Moments earlier, at about 6 a.m. on Aug. 19, 2018, Devitt had dragged Sayem from his jeep, and punched him several times in the face and stomach. The incident was captured on Devitt’s dashboard camera.

The officers had woken Sayem, who appeared intoxicated and had fallen asleep. They asked him for identification. After trading insults, Sayem placed his foot outside the jeep twice, and that’s when Devitt grabbed him and punched him.

After the altercation, Sgt. Christopher Hibbs, assigned to investigate Devitt’s use of force, arrived on the scene. Devitt reported to Hibbs that Sayem “‘went into this ‘verbal berate’” using a racial slur. He said that Sayem “comes up on me” and “tried to bear hug me.” He then told Hibbs that Sayem had stepped outside the car, and was “basically standing over me.” He had begun painting the picture that he was acting in self defense.

There is no depiction of a bear hug on the video or of Sayem using racist language. Nor does the dashcam video show Sayem stepping out of the car; in it Sayem is holding on to the steering wheel when Devitt dragged him out of the car.

Sayem was taken to the county jail and charged with felony resisting and deterring an executive officer and public intoxication, which together carry a jail sentence of up to three years and six months.

On June 4, Scott Sanders, Sayem’s public defender, filed a motion to compel the Orange County district attorney’s office to provide critical pieces of as yet undisclosed evidence, and to allow him to take testimony from the officers. Sanders believes that this additional information could cast further doubt on the credibility of the officers’ accounts, and help get the charges against Sayem dropped. A ruling on his motion is pending.

The criminal justice system in Orange County is in crisis.Brendan Hamme, staff attorney at the ACLU of Southern California

The Orange County sheriff’s department confirmed that Ota and Devitt are on active duty with the department and referred The Appeal to a videotaped statement that was released in October. “The suspect did not comply with the deputy’s directives. An appropriate use of force was utilized at that time,” Sandra Hutchens, who was then the sheriff, said in the video. “My deputy is not on trial. The suspect is on trial for assaulting a peace officer.”

Sayem’s ongoing legal battle is up against a police department that, according to advocates, works hand-in-hand with the district attorney’s office to routinely violate the rights of community members with almost complete impunity. And despite the recent election of District Attorney Todd Spitzer, who has promised reforms, advocates say that abuse and corruption persist.

“What happened to Sayem absolutely reflects the larger systemic issues with the sheriff’s department and the district attorney’s office,” said Brendan Hamme, staff attorney at the ACLU of Southern California. “The criminal justice system in Orange County is in crisis.”

‘A field of facts’

Sanders said the first offense against Sayem was the assault, and the second was the cover-up—a pattern out of the Orange County playbook. In addition to Devitt’s reports, which contradicted video and audio recordings, further evidence of the incident has been suppressed, according to Sanders’s motion.

Deputy Brant Lewis and Deputy Blake Blaney arrived at the scene shortly after Hibbs, Devitt’s dashcam video shows. Lewis appeared to turn off Hibbs’s audio recording device at 6:28 a.m. while the video continues to roll for 11 more minutes. At 6:39, Devitt entered a written account of the incident, which differed significantly from his initial oral statement and the available dashcam videos, according to Sanders’s motion.

It is not known what the officers discussed during that period. Sanders thinks that additional dashcam recordings will provide crucial audio evidence and is requesting that the sheriff’s department turn it over.

In his written statement, filed at the scene, Devitt said Sayem had “raised his arms towards my face,” and stepped out of the vehicle, according to Sanders’s motion. Sayem then, Devitt claimed, “started grabbing at my vest.” Devitt said he then punched Sayem four times. Hibbs approved this account, according to Sanders’s motion.

In Hutchens’s video response, she said Devitt’s statement is consistent with what is depicted in the video. “I work in a field of facts,” she said. “I stand 100 percent behind my deputy. What he wrote in his report is exactly what occurred in the video and what I personally saw in the video.”

Sanders has asked the court to compel the district attorney’s office to turn over dashcam videos from Ota’s, Lewis’s, and Blaney’s cars. The sheriff’s office says such evidence does not exist.

But Hibbs wrote in a use of force report that he had collected Ota’s video. In a subsequent statement, Hibbs said Ota had not turned on his camera, according to Sanders’s motion. Ota wrote in his own statement that he had failed to turn on his dashcam video and, as a result, Hibbs reprimanded him. The DA’s office originally said the internal use of force report did not exist, according to Sanders’s motion.

Lewis and Blaney said they did not turn on their cameras either when they arrived at the scene. Their declarations include identical paragraphs, including a typo, stating that they did not turn on their dashcam video because they were not required to as they arrived out of “personal concern for Devitt,” not in response to a service call.

“It’s bad enough they lied and made up the story. But why is [Mr. Sayem] facing a felony right now?” Sanders told The Appeal. “It’s just obvious—cop got out of control, blew it, didn’t want to tell the truth so he decided to put the blame on Mr. Sayem.”

Culture of impunity

Sayem’s case illustrates the “culture of impunity” that exists for Orange County’s district attorney and sheriff, according to Laura Fernandez, a lecturer at Yale Law School who specializes in prosecutorial accountability. “The complete and utter lack of accountability we’ve seen in Orange County only serves to reinforce what amounts to a toxic culture,” she wrote in an email to The Appeal.

Scott Sanders is well acquainted with that culture. In 2014, he uncovered a longstanding informant scandal involving the sheriff’s department and the DA’s office. While defending Scott Dekraai, who pleaded guilty to killing eight people in 2011, Sanders discovered that the sheriff’s department and the district attorney’s office had allegedly been operating a secret informant program for more than 30 years.

Sanders uncovered that, for more than three decades, the sheriff’s department operated an elaborate jailhouse informant program executed by members of its Special Handling unit. Informants were promised leniency in exchange for their cooperation, and some would threaten their targets with violence in an effort to get them to confess, according to the ACLU of Southern California. No charges have ever been brought against any prosecutors nor sheriff’s department officials linked to the scandal.

After the program was revealed, the trial court recused the entire Orange County DA’s office from Dekraai’s penalty phase. The decision was appealed by then California Attorney General Kamala Harris’s office, but the appeals court upheld the lower court’s ruling. The lower court judge later found the misconduct so severe that it warranted prohibiting the attorney general’s office from pursuing the death penalty.

The discovery also prompted a suit from the ACLU and the ACLU of Southern California against the DA’s office and the sheriff’s department, as well as an investigation by the state attorney general’s office.

However, in April, it was revealed that the attorney general’s investigation, which began in 2015 under Harris, had ended. The office has not released its findings, issued a report, or announced if any charges or disciplinary measures will be taken. No official announcement was made. Instead, a deputy attorney general made the revelation in court, according to OC Weekly. The attorney general’s office, now led by Xavier Becerra, did not respond to requests for comment from The Appeal.

The attorney general’s investigation further reinforced that the sheriff’s and district attorney’s offices are not held accountable, said Sanders. “These folks have never been taught that the rules are paramount,” he said. “The rule is, ‘Get the guy.’ Worry about the rest later. Ultimately, you’ll never have to worry.”

The U.S. Department of Justice launched an investigation in 2016, which remains open. And DA Spitzer announced this year that his office will also investigate. Sheriff Don Barnes sent a letter to Becerra in January informing him that the sheriff’s department would proceed with an internal investigation. Barnes wrote that his department had sent numerous inquiries to the attorney general’s office about the status of its investigation, but had not received any replies.

In Orange County, criminal prosecutions of officers are virtually nonexistent, according to advocates. One of the few deputies to be prosecuted in recent years was Hibbs, the officer who investigated Devitt’s use of force against Sayem. In 2009, Hibbs was charged with assault after he allegedly used a Taser on a person who was handcuffed. The jury could not reach a verdict and the charges were subsequently dropped.

“That thin blue line exists,” said Sanders. “They rally behind each other and then if folks with more power won’t put an end to it, it just continues.” It appears that the line of protection extends to the DA’s office.

On June 11, Voice of OC reported that in December, his last month in office, District Attorney Tony Rackauckas sent a letter to Hutchens and Sheriff-elect Barnes, informing them of his decision not to tell defense attorneys about the possible misconduct of 10 deputies who were involved in the operation of the informant program. The deputies had been accused of lying and/or concealing evidence. The letter also says that the state attorney general’s office will not be pursuing criminal charges against the sheriff’s or district attorney’s offices—a statement made several months before the public learned the investigation had ended.

Rackauckas’s letter is the latest revelation in what advocates say is an incessant stream of corruption. This month, for instance, Alisha Montoro, a public defender, alleged that Deputy Victor Valdez told a confidential informant in 2015 to inject heroin into Craig Tanber so he would be easier to arrest and more likely to confess, according to local news reports. Tanber was arrested on Sept. 11, 2015, and charged with murder. At a recent hearing, Valdez, who has been granted immunity for his testimony by the DA’s office, denied the allegations, according to the local ABC affiliate.

When officers are not held accountable for abuse and corruption, it sends a “toxic message” to community members, said Carl Takei, a senior staff attorney with the national office of the ACLU. “Having accountability mechanisms in place is important not only for departmental culture but also for public trust in the police,” said Takei. “If the culture of the police department is to sweep complaints under the rug then it sends the opposite message—that the police can violate people’s rights with impunity and there’s nothing to stop them.”

‘Just a different name on the door’

During his 2018 campaign against the incumbent Rackauckas for DA, Spitzer promised to reform the scandal-plagued office. The assurance drew support from Paul Wilson, whose wife, Christy, was one of eight people murdered by Sanders’s client, Dekraai.

After Wilson learned of the informant scandal, he joined defense attorney Sanders as an advocate to help expose police-and-prosecutor corruption and abuse in Orange County. As part of his newfound mission, Wilson lent his support to Spitzer in his bid to unseat Rackauckas, who had been in office since 1999.

“I considered this guy an ally and a friend,” Wilson told The Appeal of Spitzer. In the announcement of a campaign ad in which Wilson appears, Spitzer said, “Orange County is rapidly waking up to Rackauckas’s corruption, as the saga of lies, cheating, and injustice continues to unfold. Tony Rackauckas acts as if he is above the law but as scandal pours out of the District Attorney’s office he is no longer immune to his abuse of power.”

In a memo to his staff, Spitzer detailed several changes that his office planned, including the creation of a senior ethics officer and a new protocol for working with jailhouse informants.

“As the newly elected district attorney, many stakeholders in the Orange County criminal justice community expect that under my leadership the Orange County District Attorney’s Office (OCDA) will set in motion significant policy changes that address the failings of the prior administration,” Spitzer wrote. His proposed informant protocol requires prosecutors to, among other obligations, seek corroboration for informants’ statements and to find out whether the information shared was available from publicly available sources, like news reports.

But there are already signs that Spitzer’s actions may not match his campaign rhetoric, according to Wilson and other advocates. For instance, his informant protocol is nearly identical to the one implemented by his predecessor in 2017. And the use of an ethics officer is also an established practice. In 2017, Rackauckas designated an outside lawyer to hear ethics complaints from members of the district attorney’s office.

Spitzer has also kept in place the “Spit and Acquit” program in which those arrested for misdemeanors can have their charges dismissed if they agree to submit a DNA sample to a database maintained by the district attorney’s office. “District Attorney Todd Spitzer has represented that his office has made significant reforms,” said Hamme, of the ACLU of Southern California. “In reality his office seems to be operating no differently than Tony Rackauckas’s.”

After taking office, Spitzer promoted Dan Wagner, the lead prosecutor in the Dekraai case.** “To me that is the biggest slap in the face,” said Wilson. And although Sayem was charged under the previous administration, Spitzer’s office has not dismissed the case, despite the existing evidence that contradicts police statements.

Wilson has been attending Sayem’s court hearings as part of his work to expose malfeasance.

“The video’s all there,” said Wilson. “It’s just typical of what happens here with those two departments.”

Ultimately, Wilson said, Spitzer could help put a stop to the county’s “prolific” abuse of power. But he’s still waiting for the new district attorney’s campaign promises to come to fruition.

“It’s just a different name on the door,” said Wilson. “There’s no change. It’s standard operating procedure over there.”

**Update (Jun. 20, 2019): After the publication of this article, District Attorney Todd Spitzer’s office sent a statement, denying that Spitzer promoted Wagner. “Just before leaving office, Tony Rackauckas moved Mr. Wagner from an at-will position back to a civil service protected job,” reads the statement. “After District Attorney Spitzer was sworn in, he transferred Mr. Wagner from a civil service protected job back to an at-will position. District Attorney Spitzer removed Mr. Wagner from the Office’s Special Circumstances Committee.”

However, the local ABC affiliate reported what appears to be contradictory comments from Spitzer.

“So, it’s interesting, just before Mr. Rackauckas left office, he demoted Mr. Wagner from Assistant District Attorney, who was ‘at will,’ to a civil service position,” Spitzer said, according to the news report. “He did that to protect him from any future disciplinary action.”

“I put Mr. Wagner back in an ‘at will’ position until the outcome of this investigation,” Spitzer said, according to the ABC affiliate.

Floridians Are Suing a Cop Fired for Planting Drugs in Their Vehicles

Thanks to the diligence of one assistant state attorney, 119 cases were thrown out and the officer is under state investigation.

Photo illustration by Kat Wawrykow. Photo from Getty images.

Floridians Are Suing a Cop Fired for Planting Drugs in Their Vehicles

Thanks to the diligence of one assistant state attorney, 119 cases were thrown out and the officer is under state investigation.

In October 2017, Derek Benefield was driving in the Florida Panhandle’s Jackson County when he was pulled over for allegedly swerving into the opposite lane. Once at the car, sheriff’s deputy Zachary Wester claimed to smell marijuana and conducted a search of the vehicle, which, he reported, turned up methamphetamine and marijuana. Despite insisting the drugs weren’t his, Benefield was arrested, charged $1,100 in fines and court fees, and sentenced to one year in county jail.*

Benefield was seven months into his sentence when, in September 2018, the state attorney’s office dropped his case and those of 118 others. Largely thanks to the diligence of one assistant state attorney, Wester was suspected of routinely planting drugs during traffic stops over his two years in the department.

Last month, Benefield and eight others filed a federal lawsuit accusing Wester and two other deputies of planting drugs and making illegal arrests, and the Jackson County sheriff’s office of negligence. The suit accuses all the defendants of violating the individuals’ civil and constitutional rights through illegal search, seizure, detention, prosecution, and incarceration. The plaintiffs’ attorney, Marie Mattox, told The Appeal the suit represents “only the tip of the iceberg,” and she plans to add another 18 to 20 plaintiffs. At least 37 people have filed lawsuits against Wester at the state level. The sheriff’s office declined to comment on the lawsuit.

A criminal investigation into Wester’s behavior was opened last August by the Florida Department of Law Enforcement, but no charges have been filed. Mattox said that, for the first time, three of her clients were subpoenaed for interviews in connection with that investigation in early June.

It didn’t take Christina Pumphrey long to become familiar with Zachary Wester’s name. When she was hired as an assistant state attorney at the 14th Judicial Circuit in May 2018, her duties included reviewing evidence before filing charges in several categories of arrests, including drug possession. “This is an exaggeration, but it felt like his name was on half the cases,” Pumphrey told The Appeal. “It was seriously disproportionate.”

As she watched the body camera footage from Wester’s arrests, Pumphrey grew concerned: His vehicle searches were not always conducted legally, and his written affidavits didn’t always match what she saw in the videos. People’s reactions to their arrests also seemed unusual. “It wasn’t, ‘OK, crap, I’m busted,’” she said. “It was, ‘What do you mean?’” Pumphrey began looking more closely at Wester’s arrests.

When the internal affairs division of the sheriff’s office heard she was looking into Wester’s arrests and asked for more information, she shared several body camera videos and explained what to look for. Within weeks, the sheriff’s office pulled Wester off the road and asked the law enforcement department to investigate.

More than 100 people who Wester had arrested during his two years on the force were still out on bond or—if their arrest had violated probation—behind bars. Yet the state attorney’s office did not immediately move to drop the cases. At the time, Pumphrey said, she was “getting an explicit instruction to not dismiss the cases.”

“I know these people are sitting in jail. I know that the particular charges they’re in jail on they’re either innocent of, based on the information I see, or there’s no way I could take this in front of a jury. But I’m being told, ‘Just let them sit in jail.’”

Pumphrey continued pulling Wester’s earlier arrest videos for the sheriff’s office, including ones from closed cases that had been assigned to other attorneys in her office.

In August, she flagged a February 2018 video of Wester pulling over Teresa Odom for a faulty brake light, and allegedly finding a baggie of methamphetamine in her truck. Looking closely, Pumphrey had noticed something hidden in Wester’s hand as he initiated the search.

The Odom video could not be ignored. Within weeks of Pumphrey’s discovery, the sheriff’s office fired Wester, and late September, the state attorney’s office dropped 119 cases that relied on his arrests or testimony.

Internally, however, Pumphrey said the chief assistant state attorney, Larry Basford, chastised her for sharing the videos with the sheriff’s office. “He starts yelling over the phone. What was I doing looking through all the videos? Why in the world did I find the Teresa Odom video? Why was I looking for it? And just having an absolute fit.” Basford did not respond to comment on Pumphrey’s characterization of this conversation. Pumphrey turned in her resignation the following day. She filed a whistleblower complaint, but later dropped it because she said she didn’t want it to affect her ability to represent her clients at her new state job in public defense at the Office of Criminal Conflict and Civil Regional Counsel for the First DCA Region of Florida.

The law enforcement department investigation remains open, according to a spokesperson. “Whether or not criminal charges will ever be filed, I don’t know,” said Pumphrey. “I’m not holding my breath.”

The nine plaintiffs in the federal lawsuit, and dozens of others, continue to live with the lingering effects of their arrests, and in some cases, incarceration. “One of the things that, routinely, every one of them has asked me is, ‘What is going to happen to Zach Wester out of all of this?’” said Mattox of her clients. “They’re not calling me, asking me, ‘How much money am I going to get?’ The question is, ‘What are they going to do to Zach Wester because of what he did to us?’ … They want to make sure that he’s not going to be a law enforcement officer so that he can’t do this to somebody else.”

The recently filed federal lawsuit seeks damages in excess of $75,000, as well as prospective injunctive relief, and alleges that Benefield and the others have suffered “grave mental anguish, pain and suffering, loss of capacity for the enjoyment of life, embarrassment, humiliation, loss of reputation, lost employment opportunities, lost wages, and the loss of other emoluments.”

“People still had consequences. It wasn’t like this was just all erased,” Pumphrey said. Dropped charges still remain on a person’s criminal record. And “even though the charges got dropped, there were people sitting in jail for six months on no bond because of this case. Or you’ve got people who have to spend money on supervision fees; they have to spend money paying for their own urine analysis test; they’ve done community service hours; they paid cost of bond—like $1,500. … You’re not getting back six months of your life. Or you’re not getting back the job that you lost because you sat in jail for a week before your girlfriend could get the bond money.”

For instance, Benefield’s co-plaintiff Darrell Watkins was arrested and charged with a felony after Wester claimed to find 26.4 grams of methamphetamine in his car in March 2018. He was released after paying a $5,100 bond but was arrested and searched by another officer named in the lawsuit, Trevor Lee (with Wester as backup), just four days later—which again allegedly turned up meth. Watkins lost six days of work at a tax preparation service during the height of tax season, and his employment was phased out for the year. His name and charges were on the local news, “creating tremendous obstacles for his employment prospects,” according to the suit.

Many of those Wester arrested had prior drug charges, which amplified the consequences of an arrest and likely hurt their chances of being believed over an officer. “It’s a small town, it’s a small community,” Pumphrey said. When she started the job, “I had some names I knew that I was seeing coming up in my caseload. And a lot of them, you see the name, and you know the reputation, and you think, I know he’s guilty.”

She said a culture of wanting to rack up conviction statistics—which are sent out to voters on postcards—incentivizes prosecutors to seek misdemeanor plea deals, instead of dismissing cases when the evidence doesn’t add up.

“The state attorney’s office was just as bad and just as guilty as Zach Wester when we found this out and were not dropping these cases immediately, in my mind,” Pumphrey said. “When it was ignorance it was one thing, but as soon as we know there are innocent people sitting in jail and we don’t drop the charges, we’re as guilty as he is.”

*Correction: An earlier version of this article stated that Derek Benefield was on probation at the time of his Oct. 2017 arrest. He was not under any kind of community supervision in Florida or any other state at the time.

In Pennsylvania, Detention as a First Option

Heavy reliance on pretrial incarceration in Berks County subjects people to poor medical care and unsanitary and unsafe conditions.

Photo illustration by Elizabeth Brown. Photo from the Berks County Jail Facebook.

In Pennsylvania, Detention as a First Option

Heavy reliance on pretrial incarceration in Berks County subjects people to poor medical care and unsanitary and unsafe conditions.

In 2016, more than 2,700 people in Berks County, Pennsylvania, were detained in jail before their trials—nearly half of all the people charged with any crime that year. Of those people, more than 1,200 had only a misdemeanor as their lead charge. Among those cases was Troy Miller’s.

On July 25, 2016, Miller, who was 47 at the time, was provided with a taxi voucher after he was discharged from Reading Hospital. Later that day, Miller returned to the hospital by emergency medical services only to be cleared and told to leave. Homeless at the time, Miller refused to leave.

Police officer Chad Marks was called to the hospital, and when Miller still refused to leave, he arrested him. Miller was charged with misdemeanor defiant trespass and summary disorderly conduct. After he did not post the $2,000 bail set by Judge Phyllis Kowalski, Miller was taken to Berks County Prison, where he spent nearly three months.

Miller was released on $2,000 unsecured bail, which means he did not have to pay for his release but could owe the money if he failed to appear in court. In 2017, Miller was ultimately sentenced to one year of probation. When he did not successfully complete drug treatment, he was sentenced to six to 12 months’ incarceration in Berks County Prison. Since that release, Miller has been in and out of the jail on new criminal charges.

“[Jail] should be a last resort,” Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, told The Appeal. “When we cannot do anything else to protect the public or assure someone’s appearance in court … then and only then would we use the jail.” But in Berks County, incarceration—particularly incarceration before the person is convicted of a crime—is commonplace.

In-custody deaths are also commonplace. And more than 100 lawsuits against the Berks County Prison allege patterns of mistreatment, including violence from corrections officers, being forced to live in cells with black mold, and having to eat meals in cells near toilets that flush on timers and often have build-up with urine and feces.

In April 2008, Alice Neuen, 48, was incarcerated at the prison for theft and forgery; her poor treatment by prison staff resulted in the need for a leg amputation below the knee.

In March 2012, Joby Adams was transferred to the county jail from Reading Hospital, where he was being treated for self-inflicted cuts and suicidal thoughts. Adams had attacked one of the hospital’s psychiatric staff members in a violent outburst. While at the jail, the staff repeatedly ignored his requests for psychiatric help, and he was eventually placed in solitary confinement. Three months later, at age 19, he was found unresponsive in his cell after hanging himself, which left him in a vegatative state.

In June 2014, Eileen Dinino, 55, died of a hypertensive cardiovascular disease and pulmonary edema inside the jail after being incarcerated for only 48 hours for her failure to pay fines. Her family alleges that medical staff at the prison failed to provide aid during a medical emergency.

Berks County Solicitor Christine Sadler told The Appeal that the county has undertaken efforts to provide more safety to people in the prison, like adding 300 cameras, implementing an electronic tracking system for prisoners, and increased training for staff. Sadler declined to comment on the county’s over-reliance on pretrial detention, but said the pretrial population most likely includes people held on bail as well as detainees from other criminal matters.

“We’re only very slow to acknowledge the collateral consequences of pretrial detention,” Burdeen said. “For so long it’s just been part of what we’ve done and since the war on drugs it’s just been a way in which we’ve just helped manage the volume of people being arrested.”

Part of the reason society seems slow to grapple with the harms of incarceration may be the backgrounds of the people being locked up.

The people subjected to incarceration, especially pretrial, tend to have far lower incomes than those who don’t face these penalties. This social and economic concentration, along with the harms caused by incarceration, helps fuel a cycle of poverty in already disadvantaged communities. “There are entire communities that have [the costs of incarceration] always on their mind, but the broader electorate, I think, barely thinks about them,” Fordham University law professor John Pfaff said.

Berks County is a relatively affluent rural area about two hours outside Philadelphia. But the county seat, Reading, is one of the poorest areas within the county. More than 36 percent of people living in the city live in poverty, a rate more than five times higher than the rest of the county. And more than 96 percent of students in the Reading School District are considered economically disadvantaged. The violent crime rate in Reading is more than double that of the rest of the county.

The city accounts for a little more than 20 percent of the county’s population but produces nearly 40 percent of all criminal cases and nearly half of all cases that result in pretrial detention. Cases coming from Reading are more than 35 percent more likely to result in pretrial incarceration than those coming from elsewhere in the county.

“In very segregated and concentrated spaces of poverty where violence is high, opportunities are non-existent and the public school systems are broke, and there are cops in the elementary schools and cops in the high schools, [we] know where that story goes,” Burdeen said. “It just funnels people into the criminal justice system.”

Spotlight: Linda Fairstein is Canceled. Is ‘Law & Order’ Culture Next?

Linda Fairstein.
Photo by Paul Hawthorne/Getty Images

Spotlight: Linda Fairstein is Canceled. Is ‘Law & Order’ Culture Next?

“I had stared at death before. I was way too familiar with the vagaries of murder.”

So begins “Deadfall,” a novel written by celebrity prosecutor Linda Fairstein. She continues: “I had seen it flex its muscles on the cracked pavement of New York City sidewalks and behind grimy stairwells in housing projects. I knew that doormen in the most expensive properties lining Central Park were often as powerless to stop it from entering the dwellings they guarded as the less fortunate who encountered it in random exchanges with strangers on the street.”

Fairstein’s main character, a tough, brassy prosecutor named Alexandra, explains her role in the system as she sees it: “I had comforted many of the shattered lives that murder left in its wake, and tried to do justice for them in a court of law for more than a dozen years.” Fairstein’s other novels include such titles as “Killer Look,” “Killer Heat,” and “The Kills.”

The prose isn’t the only problem here. Fairstein’s writing portrays crime as a dark, seedy invader that even the “doormen in the most expensive properties” cannot keep from harming their pristine, vulnerable inhabitants. It reads like a nightmare inspired by the 1988 Willie Horton attack ad. But Fairstein’s book came out in 2017.

And this isn’t even her most offensive prose. Fairstein has been doing another kind of writing lately.

Long considered a law enforcement hero, Fairstein was one of the first leaders of the Manhattan district attorney’s sex crimes unit, the first of its kind in the country, and later an inspiration for “Law & Order: Special Victims Unit.” She became a celebrity prosecutor, appearing on high-profile panels and boards. But since the premiere of “When They See Us,” Ava DuVernay’s Netflix series about the Central Park jogger case, which Fairstein helped prosecute, Fairstein “has become synonymous with something else: The story of how the justice system wrongly sent five Black and Latino teenagers to prison for a horrific rape,” write Elizabeth A. Harris and Julia Jacobs for the New York Times.

“There was no evidence linking them to crime and their confessions,” now believed to have been false and coerced, “were inconsistent,” write Harris and Jacobs, “but the teens, ages 14-16, were convicted in 1990” and served a combined 40 years in prison. In 2002, a year after Fairstein left the Manhattan district attorney’s office, an incarcerated man named Matias Reyes confessed to the crime, saying he had acted alone. DNA evidence corroborated his guilt. The convictions of the Central Park Five were vacated.

But Fairstein is not contrite. In a defiant Wall Street Journal op-ed published this week, Fairstein defends herself, showing sympathy for no one else: not the wrongly convicted, nor the women who were raped and killed by the actual rapist while her team went after five children. “At about 9 p.m. April 19, 1989, a large group of young men gathered on the corner of 110th Street and Fifth Avenue for the purpose of robbing and beating innocent people in Central Park,” Fairstein begins. Coverage of the case, she says, has consistently “missed the larger picture of that terrible night: a riot in the dark that resulted in the apprehension of more than 15 teenagers who set upon multiple victims.”

“DuVernay would have you believe the only evidence against the suspects was their allegedly forced confessions. That is not true,” Fairstein writes. She goes on to list paper-thin evidence such as “blood stains and dirt on clothing of some of the five.” Fairstein seems to believe the truth of the boys’ innocence is beside the point. Reyes’s confession, corroborated by DNA, she acknowledged, “required that the rape charges against the five be vacated. I agreed with that decision, and still do. But the other charges, for crimes against other victims, should not have been vacated.” Fairstein seems devoted to creating the kind of panic that launched and sustained her career as a purveyor of scary crime narratives in court, on the page, and on television. It is almost as if someone told her not to say “superpredators” so she instead described them.

Fairstein’s piece has not gone over well. Over the past week, public opinion has turned sharply against her, as online petitions and a hashtag, #CancelLindaFairstein, have called for a boycott of her books. She has resigned from several prominent boards, and has taken down her Twitter account. In 1993, Glamour named her one of its women of the year, but this week, its editor published a letter saying, “Unequivocally, Glamour would not bestow this honor on her today.”

Fairstein hasn’t changed; we have. She is a relic from a time when being young, nonwhite, and accused of an ugly crime was enough, in most circles, to lower the standard of proof. Most people now know that confessions can be coerced. We know how outrageous it is to claim that a conviction is justified because even if the accused didn’t commit this crime, they probably did something else wrong.

But culturally, we have not moved on. “Law & Order: SVU” was recently renewed for a 21st season, making it the longest-running live-action show in television history. People—on the left and right—regularly turn to prosecutors and prisons to solve society’s problems.

Even the rhetoric around the backlash—#CancelLindaFairstein—perpetuates the retributive, vengeful brand of “justice” that Fairstein has spent years hawking. It’s easy to attack a person, but cancelling Fairstein does nothing to combat the retributive culture that ruined the lives of the Central Park Five and destroyed low-income communities across the country. If we really want to cancel Fairstein, we will look toward restorative models, even when it comes to people we deeply dislike.

We can start with the actress who plays Fairstein in DuVernay’s series, Felicity Huffman, who was recently arrested in the college admissions scandal. She is accused of paying $15,000 to have her daughter’s SAT scores boosted. Many on the left take the college admissions scandal as emblematic of societal inequity, and have called for Huffman and others to be treated with the same severity with which Fairstein treated her defendants.

There are options other than the ones Fairstein can imagine. When Judge Rosemarie Aquilina sentenced former Olympic gymnastics doctor Larry Nassar was essentially sentenced to die in prison, she gloated. Cheers came from inside the courtroom and out. It doesn’t have to be that way. Soon after, Alex Press wrote for Vox: “While a carceral feminist like Judge Aquilina may not envision justice that doesn’t beget more violence, we can.”

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Spotlight: De Blasio—The Circumstances of Layleen Polanco’s Death Shouldn’t Be So Perplexing

Layleen Polanco

Spotlight: De Blasio—The Circumstances of Layleen Polanco’s Death Shouldn’t Be So Perplexing

When New York City Mayor Bill de Blasio was interviewed this week on a local news network, he was asked about Layleen Polanco, the 27-year-old transgender woman who was recently found dead in her cell at Rikers Island. The specific cause of her death is not known, but why was she held for two months on $500 bail for two misdemeanor charges? “Well, that’s unusual,” he stammered, “I don’t know, I need to get you an answer on why that would be.” He seemed genuinely perplexed. “Obviously, we’ve been moving consistently to having alternatives to incarceration, and our jail population is down over 30 percent.”

That’s all true, and under those circumstances, de Blasio’s confusion is understandable. This edition of The Daily Appeal will explore how the system, even a system that is implementing real reforms, still fails people, especially vulnerable people like Polanco. The Daily Appeal spoke to David Miranda, a longtime public defender in New York City who previously worked as the criminal defense attorney for the Peter Cicchino Youth Project, whose clients are homeless and street-involved young people who overwhelmingly identify as LGBTQ. Unlike the mayor, Miranda was not surprised to hear any of the news. “I wish I could say that I was shocked but I wasn’t.”

In 2017, Polanco was targeted in a sting operation by the NYPD, “which deployed undercover police officers to solicit sex acts in exchange for money,” reports Vice. Polanco allegedly agreed, and she was arrested. The officers said they found a small amount of drugs on her, and charged her with misdemeanor drug possession. Polanco was not taken into custody and instead received a desk appearance ticket. When she went to court, no bail was set. So far so good, right? Not exactly.

Why target her in the first place? Sting operations, especially those that go after people engaged in sex work and drug use, ensnare marginalized people, people who are often causing no harm but are suffering harm. This includes trans women, especially trans women of color. As Raven Rakia reported for The Appeal, “The NYPD recently settled a lawsuit brought by the Legal Aid Society during which a police officer admitted to looking for Adam’s apples when deciding whom to arrest for prostitution.”

Miranda says we need to ask why police arrested Polanco in the first place, but we also need to take another step back. “It starts with the family,” said Miranda, who grew up gay in the South Bronx. “You have an identity as a trans person, you might be coming to grips with. You start expressing that as a child and your family starts to say things about you, call you names, or they start rejecting you. You go to school, and school is basically torture because that’s where you’re called even more names and made to feel different. School authorities aren’t helpful. So you no longer want to go to school, you don’t finish school, you grow up. Let’s say you assert your trans identity. It’s hard to find a job because no one wants to hire you because of their own feelings about trans people. They’re not going to put you doing customer service, so then you’re driven into an underground economy that’s criminalized, and you wind up in the system.”

“The question is, did that person do anything wrong?”

The system continued to process Polanco through what it considered its gentler side. She was sent to a courtroom devoted to human trafficking and was offered an adjournment in contemplation of dismissal, which meant her case would be dismissed if she complied with certain conditions. Those conditions, for her, involved mandatory counseling, and she missed some of the sessions. The judge issued warrants for her arrest.

We don’t know why she missed those sessions, but we do know Polanco struggled with homelessness, and instability makes it much more difficult to comply with court requirements. Miranda notes that this is common. There is a serious nexus between LGBTQ identity and homelessness, especially among young people of color. “We would meet our clients at the gay homeless youth shelter,” he said.

So in April, when Polanco was arrested on misdemeanor charges after what police described as an altercation with a taxi driver, the judge saw the warrants from the previous case and set bail at $500. Rosa Goldensohn has been reporting on the case for The City, and writes that a few days later, “she was ordered released in the assault case. But the $500 bail on the drug and prostitution charges still stood.” Why did the judge set bail? And why would the prosecutor request bail?

Miranda suggests that even when people in Polanco’s position have missed court, it’s hard to put the blame squarely on them. “It’s actually society that almost set this person up, made it impossible to get ahead. And then they walk into a courtroom and God forbid they miss court, we lock them up and throw away the key.” Polanco was unable to pay the $500. She sat in jail.

At Rikers, Polanco was housed in a dedicated unit for transgender people. Again, this unit was a welcome development, but it was not enough. According to the Bureau of Justice Statistics, about 34 percent of transgender people held in prisons and jails report at least one incident of sexual violence, but Miranda thinks this is a severe underestimate. And, as Miranda points out, “Rikers is the worst place in the city to be sick,” no matter who you are. And two people who were incarcerated with Polanco  told Gothamist that she was sent to solitary confinement even though officials knew she had a history of seizures. “A week before, she had a seizure and it took more than 25 minutes for medical to get there,” Alexie Sotomayor said. Solitary “is horrible. They put you there and they just leave you there,” Sotomayor explained. (The Department of Correction says Polanco was placed in restrictive housing, not segregated housing, which is slightly less restrictive.)

“Jail officials put Polanco in solitary as punishment for her part in a fight,” Goldensohn reports. Given that solitary is torture, this is a bad solution under any circumstance, but in this case it seems particularly ill advised, and particularly common. “There is an increased incidence among trans folks of solitary and suicide watch,” says Miranda, which are pretty much the same in practice. “Trans people are going to be targeted for abuse and harassment, so if they fight back and try to defend themselves, they wind up in solitary.” And even when they don’t fight back, they are placed in protective custody, which is also basically solitary confinement. “It’s almost like they’re punished for being who they are in a jail setting,” says Miranda. “Solitary can, as we know, exacerbate or create [physical] health and mental health issues and trauma.”

All of this helps explain why Miranda was not surprised when he heard of Polanco’s death.

Even on the outside, Miranda adds, being trans or gay or gender nonconforming can lead to “a sort of PTSD. You’re walking around and you’re constantly on guard. It’s a sense of hypervigilance.” That kind of constant harassment and vigilance could explain the alleged altercation that led to Polanco’s April arrest, he said. I asked how he would resolve these issues, and he suggested mental health services. “Isn’t that kind of backwards, though?” I asked. He paused. “Yes. It is messed up that we set them up with mental health services when it’s society that needs help. That’s what’s twisted about all of this.”

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Arrested for Shoplifting and Dead 2 Days Later

A lawsuit filed by Kentrell Hurst’s children is the latest against New Orleans Sheriff Marlin Gusman over jail conditions.

Photo illustration by Elizabeth Brown.

Arrested for Shoplifting and Dead 2 Days Later

A lawsuit filed by Kentrell Hurst’s children is the latest against New Orleans Sheriff Marlin Gusman over jail conditions.

On May 25, 2018, Kentrell Hurst allegedly shoplifted $56.63 worth of items from a New Orleans grocery store. After the police arrested her, they ran her name and found she was wanted for two municipal tickets: theft of $37.43 and battery. Her court records show she had failed to pay $125 in fines related to the theft and $125 related to the battery. Hurst, 36, was arrested and brought to the Orleans Parish Prison. She died two days later.

Last month, almost a year after Hurst’s death, four of her children filed a lawsuit against Orleans Parish Sheriff Marlin Gusman, the sheriff’s deputies, and the jail’s medical provider, Correct Care Solutions (now known as Wellpath), and members of its staff.

The family’s attorneys did not respond to requests for comment. Blake Arcuri, general counsel for the Orleans Parish sheriff’s office, told The Appeal in an email that the office would not comment because the case is in litigation. Wellpath spokesperson Judy Lilley said via email, “We have not been served with the attached complaint and as a matter of policy, we do not comment on pending litigation.”

Hurst struggled with an addiction to opioids, according to the suit. Her court records include a history of municipal tickets and traffic violations, which resulted in more than $6,000 in fines over the course of 11 cases—all but one for $15 remained unpaid. About a month before her arrest, she had testified at the trial of a man accused of raping, beating, and choking her in 2016, according to local news reports. He was convicted of kidnapping, but the jury was unable to reach a verdict on the rape charge.

Hurst’s bond for the shoplifting arrest was set at $1,500 and her arraignment was scheduled for May 29, according to court records.

During her brief incarceration, she reported to medical staff and deputies that she was vomiting, nauseous, and suffering from severe abdominal pain, the suit claims. But her vitals were not monitored and she was not taken to the hospital—neglect that led to her death, according to the suit.

“We’re really happy that someone is coming forward with this,” Sade Dumas, executive director of the Orleans Parish Prison Reform Coalition, said of the Hurst family’s suit. “Kentrell Hurst’s story is a picture of what’s happening to a lot of people.”

People don’t go to jail to die. People don’t go to jail and expect they won’t be coming out.Will Snowden, Director of the Vera Institute of Justice in New Orleans

Hurst’s death exposes the many failures of the Orleans Parish legal system, in particular its inadequate medical care, according to advocates. In 2013, U.S. District Judge Lance Africk approved a consent decree with the parish sheriff, which aimed to improve conditions at the jail after finding that there were “stark, sometimes shocking, deficiencies in OPP’s [Orleans Parish Prison] medical and mental health care system.” Many of these problems still exist, including inadequate care for patients who are detoxing.

“These defendants have failed to make appropriate and necessary changes in policies, procedures, staffing, training, and/or facilities to protect inmates from harm, including harm from a failure to provide adequate medical care,” reads the suit.

The jail has been besieged by deaths, suicide attempts, and lawsuits against Sheriff Gusman and its medical care provider. Nevertheless, last September, the city extended its contract with Wellpath, according to the New Orleans Advocate. The mayor’s office did not respond to requests for comment.

Last year, the family of Narada Mealey sued Gusman and Correct Care Solutions (before its merger) after Mealey died while detoxing from heroin. He was admitted to the jail on Oct. 27, 2017, for a misdemeanor probation violation, according to the suit. Like Hurst, Mealey reported to jail staff that he had been vomiting and experiencing abdominal pain but did not receive medical help, the suit alleges. He died on Nov. 2 of complications from a perforated gastric ulcer, according to his family’s complaint.

“People don’t go to jail to die,” said Will Snowden, director of the Vera Institute of Justice in New Orleans. “People don’t go to jail and expect they won’t be coming out.”

Hurst’s case and the thousands of dollars of fines she incurred illustrate the city courts’ economic exploitation of Black residents, according to Snowden. As of June 10, the jail has 1,200 residents; about 80 percent of those are Black men, and about 7 percent are Black women.

In 2017, 8 out of 10 people in New Orleans charged with a felony who were incarcerated for more than two days because they couldn’t pay bail were Black, according to a report Vera released today on the need to abolish money bail and conviction fees. Eliminating money bail would reduce the city’s jail population by 304 to 687 people, according to the report.

“The criminal legal system is designed in New Orleans to really be focused on the extraction of wealth from poor Black and brown people,” said Snowden.

Last August, in response to a class action lawsuit, federal judge Sarah Vance declared that it was unconstitutional for New Orleans criminal court judges to jail people for failing to pay fines without inquiring about their ability to pay. She also found that judges had an inherent conflict of interest in making this determination because the money collected from defendants can go into the judicial expense fund, which covers courthouse related costs.

“The people who unfortunately have contact with the system are often the individuals who are bearing the responsibility of paying for the system as well,” said Snowden.

Like many others in the New Orleans jail, Hurst needed treatment, not fines and incarceration, said Snowden. In the first two months of this year, almost 30 people at the jail attempted suicide, according to the New Orleans Advocate.

“When you pop the hood and see all of these things that are going on in the local jail,” Snowden said, “they’re so divorced from how justice should be administered in our city.”

Spotlight: ‘A New Wave of Prosecutorial Transparency’

San Francisco District Attorney George Gascón
Photo illustration by Anagraph. Photo by Justin Sullivan/Getty Images

Spotlight: ‘A New Wave of Prosecutorial Transparency’

It should be news to no one that prosecutors are supremely powerful and have played an outsize role in mass incarceration, but what can be done? Until the public knows what prosecutors are doing, not much. The most powerful players in the criminal legal system are the least transparent.

“Prosecutors’ offices are notorious for their lack of transparency. Across the country, we see them obfuscating information about their policies and practices—even though they are elected officials and some of the most powerful people in the criminal legal system,” says Nicole Zayas Fortier, advocacy and policy counsel at the ACLU’s Campaign for Smart Justice. Fortier and others call this the prosecutorial black box.

But that is starting to change.

Connecticut is poised to “become the first state to begin collecting prosecutorial data statewide, under legislation that received rare unanimous votes in both the state Senate and House of Representatives within the past week,” according to the Associated Press. “It is part of an effort to try to understand what disparities may or may not exist,” said state Senator Gary Winfield, a Democrat. “If we’re going to take away people’s liberty, we have to make sure there’s nothing untoward in what we’re doing.” The Connecticut bill, which Governor Ned Lamont is expected to sign, will require prosecutors to compile a variety of data, including how many defendants received prison time, plea bargains, or diversionary programs. That data will be broken down by race, ethnicity, sex, and age. “These new requirements will be an important step toward increasing the confidence that communities have in the criminal justice system by helping to ensure that justice is attained in the fairest ways possible,” Lamont said.

“Connecticut is in a better position than most states to collect statewide data, because it is one of only three states—along with Alaska and New Jersey—that have unified statewide prosecution systems,” according to the AP. In addition, Connecticut prosecutors are appointed. In most other states, top prosecutors are elected and make their own decisions on what data to collect and report.

In 2014, the Vera Institute of Justice reviewed more than 200,000 cases from Manhattan and found that Black people were 13 percent more likely than whites to receive plea bargain offers that included jail time.

And last month, San Francisco District Attorney George Gascón released DA Stat, a reporting tool. Fortier said it was “the boldest voluntary step towards transparency yet—publicly publishing decades of data from his office, including charging decisions and trial outcomes, in an online dashboard that will be updated monthly. Now, his community has full access to truly understand how their elected official uses his vast discretion, and whether he exacerbates or combats mass incarceration and racial disparities in the system.” She adds, however, that “it could certainly be improved by including information on demographics, plea deals, and incarceration recommendations to judges.” According to Taylor Walker of WitnessLA, “The data is offered up in graph form and can be broken down by case type, crime type, and date range. … The dashboards will receive fresh data every month, according to the DA’s office.”

“Last March, Cook County District Attorney Kim Foxx released a massive pile of six years worth of prosecutorial data, including case-specific details about demographics—race, age, gender—the judge’s name, whether the case was resolved via plea bargain or verdict, sentence type and length, and more,” writes Walker. “While the DA Stat portal is not as comprehensive as Cook County’s spreadsheets, Gascón’s office told WLA that additional datasets are on the way.” Some demographic data may take more time. The race and ethnicity data comes from the San Francisco Superior Court, which uses a 45-year-old system that contains “a lot of dirty and unreliable data,” and “requires extensive cleaning to get meaningful and accurate results.” For example, the system also “has no category for Latinx” people, according to the prosecutor’s office. Because of this, the court’s mainframe system (CMS) mislabels “persons of Latinx heritage as only white or black.” The DA’s office is working on the issue.

“We should not prosecute a case because we can, we should prosecute a case because we should; because it is for the greater good; because it makes sense,” Gascón said. “Using data often will give us the ability to determine whether we should prosecute a case or not.”

“The past couple of weeks have been monumental in the movement to hold prosecutors accountable for fueling mass incarceration,” Udi Ofer, director of the ACLU’s Campaign for Smart Justice, told The Daily Appeal. In addition to changes in San Francisco and Connecticut, he said, there is pending legislation in Oregon.

“Until recently, civil rights organizations have not demanded that prosecutors operate with the same kind of transparency expected of police,” Ofer said. “Prosecutors have not been subjected to external or political pressures. But all of that is beginning to change.”

The surprising thing about prosecutorial transparency is not that it is beginning to happen, but rather that we went so long with so little of it. It’s excruciatingly necessary. And politically, it isn’t a heavy lift: Polls show it’s very popular.

“We cannot end mass incarceration until we transform the practices of prosecutors, and for that we need a far more complete picture of how prosecutors make their decisions as well as how those decisions impact individuals and communities,” said Ofer. “I believe that this is the beginning of a new wave of prosecutorial transparency legislation, which will then pave the way for transformational changes of prosecutorial practices that have fueled mass incarceration.”

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Spotlight: Incarcerated Women Helped Draft New York Law to Free Domestic Violence Survivors

Courtesy of New York State Senator Roxanne J. Persaud's Office

Spotlight: Incarcerated Women Helped Draft New York Law to Free Domestic Violence Survivors

A law called the Domestic Violence Survivors Justice Act (DVSJA) does not, at first blush, sound like reform. In this context, one could be forgiven for guessing that “justice” is interpreted in a decidedly regressive way: harsher penalties that don’t make anyone safer. This describes many laws named for sympathetic or vulnerable groups.

But that is not the case for the DVSJA, a bill that became law in New York last month. The content of the law, and its decade-long path to existence, represent a new kind of lawmaking—a process that originates with the people who have the most at stake and is shepherded by a diverse coalition. It resulted in a law that chips away at the misleading offender-victim distinction, and ultimately seeks not to inflict harm, but to mitigate it.

The law allows—but does not require—a sentencing judge to consider whether abuse was directly related to a person’s crime and, if so, gives judges the flexibility to sentence the “survivor-defendant” to shorter sentences or to alternative-to-incarceration programs. This extends not only to acts of self-defense but also to scenarios where an abuser coerced a person into committing a crime. The law also gives those sentenced prior to its enactment the chance to apply for resentencing.

The Daily Appeal spoke to Andrea Williams, Strategic Learning Director at STEPS To End Family Violence (a division of Rising Ground), which works directly with survivors and their families to overcome histories of abuse, while also advocating for them in schools, courts, legislatures, and the community at large. Williams was part of the coalition that brought the law into being, along with defense attorneys, judges, women’s rights advocates, prisoners’ rights advocates, legislators, and many survivor-defendants.

Williams and her cohort have been developing and advocating for the law for over a decade. For years, Williams and her colleagues, including celebrated advocate and therapist Sister Mary Nerney, would visit women in New York prisons to offer treatment and programs, and also to listen to them. Again and again, they heard the same thing: “When we met women who were serving long prison sentences and learned more about their stories, we found that a number of women were survivors of violence,” said Williams. But “that violence was not considered by the courts.”

In 1999, the Department of Justice released a report that found that approximately half of incarcerated women had experienced past physical or sexual abuse, wrote Victoria Law for The Atlantic. In New York, the Department of Correctional Services found that in 2005, “two-thirds of women incarcerated for killing someone close to them had been abused by that person. (Black women experience domestic violence at a higher rate than white women, and are imprisoned at nearly twice the rate.)” Advocates began raising awareness that courts “often excluded evidence of abuse or expert testimony that would enable jurors to understand the circumstances of the survivor’s crime.”

The group of New York survivor-defendants studied how to talk about their experiences with reporters and how to make the case for the bill. Several times a year, wrote Law, they woke before dawn to go meet with members of the state legislature.

Advocates in other states, meanwhile, particularly those where Democrats controlled the legislature, were finding success. In 2012, California passed two laws: One addressed prior exclusion of expert testimony about abuse, and the other required parole boards to accept and seriously consider evidence of abuse during parole hearings. In 2016, Illinois passed a law directing judges to consider the role of abuse during sentencing, and allowing currently incarcerated survivors to petition for resentencing if evidence of abuse was not initially presented. Law adds, “More recently, the #MeToo movement appears to have increased public understanding about not only abuse, but the criminalization of abuse survivors.”

New York’s District Attorneys Association was the only significant opponent of the bill. Prosecutors argued that it didn’t consider the rights of crime victims who had not abused the defendant and raised the issue of costs associated with resentencing. The Republican-controlled state Senate killed the bill year after year until this year, when Democrats took control of both  legislative houses.

One of the most striking things about the law is that it chips away at the entrenched notion that some people in society do harm and others suffer harm. In reality, many people who harm others have themselves been harmed. Prosecutors would do well to internalize that the complainants they present in court as pure victims are often people that their own office has prosecuted in the past, or will prosecute in the future. Put a different way, crime is almost never as simple as a person waking up one morning and, out of the blue, choosing to hurt another.

“The survivor-defendant is at that nexus [of victim and offender],” said Williams. “One of the things that the DVSJA does is to help to point out to people that they are both.” This is because “somewhere along the line, someone didn’t see or take into consideration what was happening to them. We needed a DVSJA because the systems failed these women, when they were calling police or showing up at the hospital, somehow they were not protected. The interventions that were supposed to work didn’t work and they ended up being involved in the criminal legal system. And then the criminal legal system didn’t really see them. It’s these multiple systemic failures along the way.”

“Now our work is implementation,” Williams said, “educating people about how to use this law.” There are abuse survivors who are in prisons across the country who she says need this exact same consideration. Moving forward, the law elevates “the need to move toward more restorative and transformative forms of justice and to recognize that there are structural things that fail and end up doing more harm.” One part of that would be to explore front-end changes so that we don’t need post-conviction remedies. “If you look at Survived and Punished, one of the things they’re doing is pressuring district attorneys not to charge in the first place. It’s challenging the way we all look at and approach these kinds of situations. That’s the moment we’re in, and it seems to me that that’s a good thing.”

This Spotlight originally appeared in The Daily Appeal newsletter. Subscribe here.

Pleading Guilty to Get Out of Jail

The criminalization of poverty in Franklin County, Pennsylvania, has led to a staggering increase in incarcerated people, all at a huge cost for defendants and taxpayers alike.

Photo illustration by Kat Wawrykow. Photo from Getty.

Pleading Guilty to Get Out of Jail

The criminalization of poverty in Franklin County, Pennsylvania, has led to a staggering increase in incarcerated people, all at a huge cost for defendants and taxpayers alike.

Tiana Lescalleet was camping near Washington Township, Pennsylvania, on April 25, 2016, when probation and parole officers arrived to arrest a man she was with. He was wanted on a parole warrant, but the interaction also resulted in Lescalleet being taken into custody.

While her friend was being arrested, officers found numerous pieces of jewelry in his pants pockets that Officer Stephen Shannon determined were stolen a few days earlier from Lescalleet’s mother’s home in Maryland, according to an affidavit that Shannon signed. Drug paraphernalia, including a “glass smoking device,” a spoon with “burnt residue,” and syringes were found inside the tent along with two cellophane packets that contained drugs, Shannon wrote. He then arrested and charged Lescalleet and her friend Travis Kint Jr. with misdemeanor counts of receiving stolen property, possession of drug paraphernalia, and drug possession.

Though Lescalleet, 28, had no criminal record, Magisterial District Judge Glenn Manns set her bail at $75,000, and she was remanded to Franklin County Jail. Because she was unable to purchase her freedom, Lescalleet had two options: plead guilty and hopefully get released because she was facing low-level offenses, or remain in jail and fight the charges. She spent the next month in jail before pleading guilty to possession of drug paraphernalia. On May 25, 2016, Lescalleet was released and sentenced to six months’ probation.

Her probation ended more than two years ago, but she still owes more than $670 in fines and fees. In 2018, her case was turned over to a debt collection agency, which will affect Lescalleet’s creditworthiness for years to come.

On any given day, approximately 500,000 people sit in county jails pretrial across the United States, most because they are unable to pay bail.

In 2016, Lescalleet was one of more than 100 people held in Franklin County Jail who were found not guilty, had their cases dismissed, or entered a guilty plea and got released on a non-incarceration sentence. The Appeal collected and reviewed more than 2,200 criminal dockets filed in the county by scraping dockets filed in the Unified Judicial System of Pennsylvania. The review includes all of the criminal cases filed in the county that were not expunged before the review.

In more than 75 percent of the cases, the person charged faced no more than a misdemeanor as the lead charge. The average case lasted 30 days before the defendant was released. What’s more, those cases in which the individual did not pay bail have cost the county the equivalent of more than 8,000 bed days at the jail, or an average of roughly $71 per person, per day.

“We’ve created a machinery that churns out low-level convictions based not on individual guilt or culpability, but on an individual’s ability to pay,” Alexandra Natapoff, professor of law at the University of California, Irvine and author of “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” told The Appeal.

Natapoff described the combination of prosecution of misdemeanor level offenses and unreasonably high bail amounts as the “criminalization of poverty,” lamenting “a now-infamous phenomenon of people pleading guilty merely to get out of jail.”

On any given day, approximately 500,000 people sit in county jails pretrial across the United States, most because they are unable to pay bail. A 2018 study of defendants in Philadelphia and Miami-Dade counties by researchers at Princeton, Stanford, and Harvard universities reports that people being held for an inability to pay bail earned roughly $4,500 a year on average.

The researchers found that less than half of the people who were required to pay bail were able to do so within three days—yielding negative impacts on their cases, such as a higher likelihood of guilty pleas, and on their post-release lives, such as a loss of employment and a greater likelihood of committing a new crime. The authors also found that, compared to defendants who were held for three days or more pretrial, people who were able to post bail within three days were nearly 25 percent less likely to be found guilty or plead guilty. People who were able to post bail were also nearly 25 percent more likely to find gainful employment afterward.

In Franklin County, the criminalization of poor people also costs taxpayers. Between 2009 and 2019, the county jail’s operations budget increased more than 40 percent to nearly $13 million per year, which is paid almost exclusively through tax revenue. In that time, the jail’s population has also swelled. In 2009, an average of 297 people per day were held there, according to data compiled by the Vera Institute. About 94 of those people were being held pretrial. By 2015, those numbers rose to 394 and 175. In April, roughly 500 people were being held, and 200 of those were awaiting a trial or sentencing each day.

And yet, the number of reported crimes, criminal case filings, and people receiving a jail sentence—all of which are factors that could cause a rise in incarceration—have remained largely flat. The jail incarceration rate in Franklin County is now more than double that of neighboring Cumberland County and higher than the state average.

Franklin is a rural county in south-central Pennsylvania, on the border with Maryland, that has about 150,000 residents with a median household income of roughly $58,000. More than a quarter of all households earn less than $35,000 and a little more than 10 percent of the population lives at or below the federal poverty line.

The county jail has a rated capacity of a little more than 300 people, which this year forced officials to send an average of 24 people each month to other jails to reduce overcrowding. As a result, the county must pay a daily rate of $55 to $65 per person to use other county jails, costing more than $170,000 through the first four months of this year alone.

Dave Keller, chairperson of the County Commissioners, acknowledges that bail amounts are higher than other counties, but he said he did not believe bail was the driving factor in the increase in the jail population. Keller said the average length of a jail stay has risen substantially while the use of a day reporting center, which allows people to be released before completing their minimum sentence, has decreased.

However, those factors are most likely to affect people who are sentenced to jail and would not account for the more than doubling of the number of people in jail awaiting trial or sentencing.

Keller said the county is in the process of implementing new software that will help better evaluate the role of bail and pretrial incarceration on the jail population.

“The heart of the reform, the heart of the change, would require the misdemeanor system to stop criminalizing poverty,” Natapoff said. “To stop conditioning incarceration and punishment on an individual’s ability to pay.”

Video Hearings: The Choice ‘Between Efficiency and Rights’

Many jurisdictions across the country use video instead of holding bail hearings in person, a practice that often leads to dire consequences.

Photo illustration by Elizabeth Brown. Photo from Getty.

Video Hearings: The Choice ‘Between Efficiency and Rights’

Many jurisdictions across the country use video instead of holding bail hearings in person, a practice that often leads to dire consequences.

After someone is arrested but not yet convicted of a crime, the next step is to appear before a judge, magistrate, or bail commissioner, who decides whether to release the person or require that they post bail in order to go free until the court date. But in Philadelphia, those arrested don’t physically appear in a courtroom during that crucial first hearing. Instead, they stay in the police booking center and their images and voices are sent to the judge, prosecutor, and public defender by video.

For Dante, a Philadelphia resident who requested that  his last name be withheld, that meant he was brought to a room full of other people and put in front of a screen after being arrested on Sept. 14 and charged with drug possession with intent to distribute. Because he hadn’t talked with his lawyer before the hearing, he didn’t speak in his own defense. He described his experience of watching the hearing this way: “They just relate to you what the police officer said and … you don’t have a chance to defend yourself, you really don’t have anyone there to help you defend yourself.”

The whole process took just minutes. “Without even looking at the evidence, [the judge] just came up with a number,” Dante recalled, speaking of the $10,000 he would have to come up with to go free. “You don’t have any say. It’s more like a judgment than it is a chance to participate in your own defense.”

In theory, defendants “should be able to see all of those court actors and in theory be able to hear them,” explained Zoe Goldberg, a coordinator with the Philadelphia Bail Fund. “But that obviously relies on consistent use of the microphones.” And in her experiences watching these proceedings, neither the prosecutor nor the public defender consistently uses them. It’s also clear that the quality of the video is low. Cal Barnett-Mayotte, another bail fund coordinator, has heard defendants misgender the judges, incorrectly calling them “sir” or “ma’am.” “That illustrates how hard it is” for them to follow what’s going on, he noted. Sometimes defendants will actually say they can’t hear what’s happening during the proceedings.

On top of that, although audio from defendants in Philadelphia reaches the judge, district attorney, and public defender via a microphone, “it’s pretty low quality,” Barnett-Mayotte said. There’s lots of static, and because defendants are in an open space without any partition from everyone else being arraigned, there’s a lot of background noise. Often the view that the audience has—and therefore, almost certainly, the judge has—is of a defendant’s forehead. “Sometimes they ask them to sit up and improve that, and other times it just goes and that’s the way it is,” Goldberg said. “It’s pretty impersonal.” The screen is about 15 to 20 feet away from the judge. Sometimes a defendant will start to ask questions and the judge will cut the feed and switch to another. Video “makes it very easy for the [judges] to just be done with it,” Goldberg said.

Anyone who needs a language interpreter has it even worse. Philadelphia bail courts use remote interpreters, so the magistrates end up calling an interpretation service on their cellphones and holding them up to the microphone, creating another layer of bad audio quality.

There used to be a phone line available for defendants to speak directly to the public defender, but that no longer exists. “The system is not set up for people to be able to have any sort of private interaction with their counsel … and no interaction with counsel before being arraigned,” Goldberg said. That means defendants haven’t had a conversation with anyone who has legal training before the hearing begins.

The Constitution’s Sixth Amendment guarantees the right to counsel in criminal prosecutions. But “what does it mean to have access to representation when you’re interacting with your lawyer over video, neither of you can really hear, see?” noted Rachel Foran, tactical organizing director at Community Justice Exchange. Goldberg and Barnett-Mayotte argue that the video system makes the whole process far too impersonal for such a significant step, which can result in dire consequences. Those who sit in jail, rather than get released until their court dates, are more likely to be convicted and to receive harsher sentences. Not to mention the potential loss of income from missing work or being overdue on rent payments, and the distress of being separated from loved ones while sitting in jail.

It was just jaw-dropping the way the video … made the person on the video screen seem like not a real person.Locke E. Bowman, Law Professor, Northwestern University

The first use of video in hearings was in Illinois in 1972, but since then it has been adopted by courts across the country. By 2002, over half of states allowed video in some type of criminal proceeding, and by 2009, 57 percent of pretrial services programs used it for initial appearances like the ones in Philadelphia.

Chicago instituted the use of video bail hearings in 1999. Over concerns of unfair disparities due to a lack of a centralized hearing system, the chief judge set up a central bond court for all people arrested in the city. Defendants were all transported to a holding area in the basement of the courthouse and then appeared before the judge via a video feed. “In the interests of speed and efficiency,” said Locke E. Bowman, a law professor at Northwestern University, “rather than bringing these people up one by one to come into the courtroom … they would be shown to this podium where they would see an image of the judge and would learn what is in effect the most important fact of their case: namely whether they were going to be able to go home or whether they were facing weeks, more likely months, in jail.” Their images were sent into a room upstairs where the judge, prosecutor, public defender, and the public sat.

The video feed of the defendants was black-and-white, shaky, and difficult to see. If a defendant wanted to address anyone in the room upstairs there was a phone he could pick up, but given the speed with which the cases moved that “didn’t remotely happen,” Bowman said. “It was just jaw-dropping the way the video … made the person on the video screen seem like not a real person.”

And it had a significant impact on outcomes. In a 2010 study, Bowman and three co-authors found that when they compared the eight years before the use of video to the eight years after, the average bail amount increased by 51 percent, or nearly $21,000. For charges that continued to have regular in-person hearings, however, there was no change in bail amounts.

Bowman eventually brought a lawsuit arguing that the process violated defendants’ constitutional right to due process and to counsel by impeding their ability to speak to public defenders and appear in person to be adequately judged. But in 2008, before the chief judge had to give a deposition in the case, he ended the process. Now people have an opportunity to speak to their counsel before a hearing and appear in person in open court. “It [feels] materially different to have the person actually present,” Bowman said. “It did not fundamentally change the character of the hearings but it eliminated a feature that was discordant, dehumanizing, and repulsive.”

In many places, though, using video for initial bail hearings is still a common practice. Beyond separating defendants from court actors, video also cuts them off from the family and friends who may show up at their hearings in support. In Philadelphia, the public defender typically finds out who in the audience is a family member, but the defendants themselves often have no idea who is there. Goldberg said she recently observed a public defender telling a client, “Your family’s here. You can’t see them but I just talked to them.”

“We know that the two things that are most vital in a bail hearing to ensuring that someone …  has the best chance of not being detained is representation, number one, and, two, showing family support and showing community ties,” Foran noted. “Video prevents that from happening.”

The use of video also separates the public from court actors. In Maricopa County, Arizona’s most populous, defendants are in a room with the judge and other court actors, but family members and the rest of the public have to sit in a waiting room and follow the proceedings on a video screen. They are unable to address the court in any way to provide reasons their loved ones should be released or simply to show that they have community support.

“The most important person to be there with defendants would be an attorney. … Second to that would be family and friends,” noted Jared Keenan, a criminal justice staff attorney with the ACLU of Arizona. “This system in general is very dehumanizing. Not allowing loved ones to be in the same room with somebody is particularly dehumanizing.”

Video hearings also present huge hurdles for outside advocates who want to hold the prosecutors and judges accountable. In Dallas—where in the wake of a 2018 lawsuit over the county’s bail practices, the county commissioners agreed to air hearings over video and placed a monitor in the county jail’s the reception area—the camera is trained just on the defendant, and the audio quality is poor. Because the public’s video screen is in a reception area with people passing in and out, “It’s very difficult to hear the audio,” said Joe Estelle, an organizer at the Texas Organizing Project. And there have been several times when the audio just wasn’t working at all. The schedule for bail hearings isn’t published, so court watchers never know when to show up.

It “does very little to let us know what’s actually going on inside the courtroom,” Estelle said. “If there’s nothing to hide, I don’t see the harm in making public what’s actually going on.” It’s so difficult that the Texas Organizing Project has postponed all court-watching efforts. “There’s hardly any evidence we can gather from there,” he said.

The same problem is true in Philadelphia, where court watchers view the proceedings over video behind a glass partition. If court actors don’t use the microphone, then people with the bail fund can’t hear. Not to mention that judges can keep some of the information, such as a high bail amount, from being public simply by not speaking about it into the microphone.

“You can’t have accountability without transparency,” Foran of the Community Justice Exchange noted. “Video in some ways can prevent transparency from being possible because of basic structural questions. … It alters the scope of what you can record.”

But transparency and technology can also go too far. In Broward County, Florida, the video feed of all bail hearings is streamed on the Sun Sentinel newspaper’s website. “People at first appearances are often [in] particularly vulnerable or aggravated states. They’ve just had their freedom stripped away from them,” noted Scott Greenberg, executive director of the Freedom Fund, a bail fund focused on LGBTQ people. During the proceedings, judges have to make sure that pleas are offered voluntarily, which means they will often ask if a defendant has been diagnosed with a mental illness or are on any medications that would prevent knowingly offering a plea. “All this really private stuff gets thrown right out on the internet,” Greenberg said.

There are some small ways that video hearings could be changed to better protect defendants’ rights. In Philadelphia, the bail fund has proposed the ability for them to speak with their legal representation privately and confidentially before the hearing, as well as simply having defendants show up in person for hearings.

But those are incremental steps, and ultimately criminal justice reform advocates’ goals are larger. “The system just needs to shrink overall. There just needs to be fewer arrests and fewer prosecutions,” Barnett-Mayotte said. “If the number of cases that it’s processing decreases, then you don’t need to make that choice anymore between efficiency and rights.”

An Alabama Woman Got Pregnant While In Jail. She Has No Memory of Having Sex.

Since 2017, LaToni Daniel has been incarcerated pretrial in a capital murder case. During that time, Daniel became pregnant, and she just delivered a baby boy. But as she brings in new life, she also faces the death penalty.

Photo illustration by Elizabeth Brown. Photo from the Coosa County Sheriff's Department.

An Alabama Woman Got Pregnant While In Jail. She Has No Memory of Having Sex.

Since 2017, LaToni Daniel has been incarcerated pretrial in a capital murder case. During that time, Daniel became pregnant, and she just delivered a baby boy. But as she brings in new life, she also faces the death penalty.

A year after arriving at the Coosa County jail in Alabama, LaToni Daniel found out that she was pregnant. It was December 2018, and the 26-year-old had been held at the rural jail without bail, facing a capital murder charge.

But Daniel told her attorneys she didn’t remember having sex while she was incarcerated. Her lawyers say she did recall that she had been taking prescribed sedatives for a disorder that causes seizures and that the side effects from the medication prolonged her sleep. This week, she gave birth to a baby boy. His father remains unknown.

“She claims she has no memory of having sex at all, so what we’re assuming based on the information we have is that with some of the medication, she was knocked out and someone raped her,” Mickey McDermott, an attorney preparing a possible civil suit for Daniel, told The Appeal.

Based on her May 25 due date, Daniel’s baby would have been conceived in August. In December, when she was four months along, she was abruptly transferred to the nearby Talladega County jail, where she was given a pregnancy test. According to Jon Taylor, Daniel’s attorney in her criminal case, Coosa County Sheriff Terry Wilson (who retired in January) advised officials at Talladega to administer the test. Chief Deputy Joshua Tubbs of the Talladega County Sheriff’s Department told The Appeal that Daniel was moved because of an ongoing investigation, whose details were unknown to him.

McDermott said Daniel had not been taking the sedative before her incarceration. She had been prescribed the medication once jailed at Coosa County.

In March, when Daniel was seven months pregnant, her attorneys asked that a judge set bail so she could give birth outside the jail and care for the child while she awaited trial. According to Taylor, she was transported to the hospital on Tuesday afternoon, where she gave birth. The judge has yet to make a bail determination.

Daniel and her former boyfriend Ladaniel Tuck are facing capital murder charges for the December 2017 killing of 87-year-old Thomas Virgil Chandler. Prosecutors allege that Daniel shot and robbed Chandler, a retired businessman and beloved resident of Coosa County, when he was on his way to the grocery store. According to Taylor, a police investigator testified during a preliminary hearing that Daniel told him she was in the car when Tuck shot Chandler and had no knowledge that a murder was about to occur. In an interview with The Appeal, Coosa County District Attorney Jeff Willis said, “You may have read somewhere that she was a getaway driver. That is not a correct statement.” He declined to comment further, citing the pending trial.

Shortly after Chandler was killed, Daniel was arrested and remanded to the county jail without bail; in April 2018, a grand jury indicted her for capital murder. In Alabama, people can be sentenced to death if they are found to be an accomplice to a murder that also involves robbery, kidnapping, rape, or burglary.

Willis confirmed that there is an investigation into Daniel’s pregnancy, but he declined to say what it entailed. McDermott said he has not been contacted regarding that investigation. The current sheriff, Michael Howell, declined to comment on the allegations that Daniel was drugged and raped by a jail employee. Alabama law prohibits jail employees from having sexual contact with a prisoner, even if it’s consensual.

In an April 2019 letter to the Talladega County jail, McDermott said Daniel had faced several challenges since becoming aware of her pregnancy, including “lack of medical treatment, missed doctors’ appointments and abusive behavior at the hands of a Nurse.” McDermott also said Daniel regularly had to plead with jail staff to take her to appointments and that she was underweight.

Tubbs, the Talladega County chief deputy, said this was not the case. He told The Appeal that Daniel received medical care from a registered nurse at the jail and was taken to medical appointments by the Coosa County Sheriff’s Department.

In his request for bond, Taylor wrote that Daniel “would be in a far better position not only to have her child and recover therefrom if released on a reasonable bond but further [she] would be in a position to make any custodial arrangements for her child should she be convicted and required to serve time.” Taylor also argues that being free on bond would allow his client to better assist with preparation for her trial, which has been stayed since she found out she was pregnant. Taylor says it will take about six weeks after Daniel gives birth to start the psychological and intellectual evaluations needed to assess her competency and build a possible defense.

But because Daniel is facing a capital murder charge, the likelihood that she will be released on bond is much lower than if she had been charged with a lesser offense. In Alabama, once a defendant is indicted for a capital crime, that person is presumed guilty for the purpose of setting bail and must overcome that enormous burden. If a judge does rule in a defendant’s favor, state law says bail must be set at a minimum of $50,000 for capital cases.

If Daniel is found guilty at trial, the state’s sentencing guidelines stipulate that the jury will vote to either sentence her to death or to life without the possibility of parole. Willis has announced that he intends to pursue the death penalty for Daniel and Tuck.

As Coosa County’s district attorney, Willis has nearly unlimited discretion in deciding to seek the death penalty. With respect to Daniel’s alleged role in the crime, he had the option to pursue lesser charges such as manslaughter, first-degree murder, or second-degree murder. Aside from Daniel and Tuck, Willis has sought the death penalty one other time in the last five years, according to the county’s Circuit Court clerk.

In Alabama, new death sentences have dropped sharply—there were just three in 2018 and two in 2017—though there is no available data on how often prosecutors in the state unsuccessfully seek death. Death penalty cases are extraordinarily costly to the public as the county is usually responsible for funding defense attorneys, experts, and the prosecution because many death penalty defendants, like Daniel, are poor.

Nationally, support for the death penalty has waned; a 2018 Gallup study found that a record number of Americans believe it is applied unfairly. With no evidence that capital punishment deters crime, its use has declined and executions have fallen to record low numbers in the modern death penalty era. Twenty-one states and the District of Columbia have abolished or overturned the practice.

“I guess it’s somewhat surprising that it came out of the grand jury as capital murder and even more surprising they’re going after the death penalty,” Taylor told The Appeal. “There’s nothing in my mind that [says] she should qualify for the death penalty. … I believe it was unknowing conduct and I believe she was acting under duress.”

Family of Orlando Prisoner Who Died After Police Dog Bites Gets Legal Breakthrough

A new court order allows the family’s lawsuit to proceed, and may lead to holding jail staff accountable.

Alexander Koerner/Getty Images

Family of Orlando Prisoner Who Died After Police Dog Bites Gets Legal Breakthrough

A new court order allows the family’s lawsuit to proceed, and may lead to holding jail staff accountable.

On Aug. 6, 2015, according to Orlando police, 22-year-old Max Gracia was hiding in a lake to avoid being arrested after he used a gun to rob a convenience store. Police then sent in a dog after Gracia who tried to fight it off, according to local news reports. During the struggle, Gracia was bitten on his hands and legs, and was admitted to a public hospital before being taken to the infirmary at the county jail. On top of his robbery charge, he was also charged with “interfering with a police dog.”

Over the course of his imprisonment, Gracia’s health rapidly deteriorated. On the night of Aug. 9, he writhed in bed, moaning, and fell to the floor of his cell, according to legal filings. A member of the jail’s medical staff allegedly accused him of “faking or exaggerating” an illness, and recorded in their notes that he refused treatment.

Hours later, at 5:15 a.m., Gracia was found in his cell not breathing. At 6:09 a.m., he was pronounced dead at the Orlando Regional Medical Center. His autopsy showed that the bites on his left leg led to an E. coli infection and ultimately a blood infection that turned fatal. Gracia died of septic shock with HIV as a likely contributing factor.

In 2017, Gracia’s parents filed suit against jail medical director Robert Buck, Orange County, and four nurses at the jail, alleging that a “culture of neglect” permeated the facility and that medical staff ignored Gracia’s worsening condition. The county and three of the nurses were later removed from the lawsuit.

This year, in April, U.S. District Judge Gregory Presnell ruled that the lawsuit against Buck and nurse Karen Clairmont may proceed to trial; his court order declares that the family has a worthy claim that Buck had demonstrated “deliberate indifference” in his capacity as Gracia’s physician and as the medical director. Buck and Clairmont have filed a notice to appeal. In their legal filings, they deny all wrongdoing.

“No one knew there was a medical emergency,” reads the motion to dismiss filed in 2017 on behalf of Buck, two of the nurses, and Orange County. “There therefore was no serious medical need anyone could have possibly deliberately ignored.”

In an email response to The Appeal, Tracy Zampaglione, spokesperson for the Orange County Corrections Department wrote, “Orange County is no longer involved.” When asked about the allegations against Buck and Clairmont, Zampaglione wrote, “We do not comment on litigation.” Zampaglione confirmed that Buck is still employed by the county but is no longer medical director of the jail. Clairmont resigned in September 2015 while under investigation, according to Zampaglione.

Although the court order is not a full victory, and the Gracia family’s suit is still in court, they have already overcome what can be an insurmountable challenge. Too often, obstacles enshrined in case law and statute prevent claims of prisoner abuse from ever being heard in court, advocates say. That the case can proceed to trial is an acknowledgment that those who abuse prisoners, either by policy or practice, can be held financially liable, according to advocates.

“Prisons and jails are brutal places and there are tens of thousands of inmates in Florida who have legal claims that call out for redress,” said Daniel Tilley, legal director of the ACLU of Florida. “This ruling is an appropriate recognition that pleading ignorance doesn’t get you off the hook. That people who are charged with providing medical care to individuals in government custody do in fact have to provide care.”

On the day Gracia was admitted to the infirmary, after first being seen at the Orlando Regional Medical Center, Buck was the attending medical official. To treat Gracia’s dog bite wounds, Buck prescribed antibiotics, ibuprofen, and Tylenol with codeine. (He also put Gracia back on his seizure medication.) But then he never followed up or saw Gracia again, according to the court’s order.

“Buck examined an HIV-positive patient with a severe dog-bite wound and deliberately declined to play any active role in his subsequent treatment,” wrote Judge Presnell. “Viewing the facts in the light most favorable to the Plaintiffs, that behavior is the very essence of deliberate indifference.”

Normally, Buck would not initially examine people when they are admitted to the infirmary, but the nurse on staff was out sick the day Gracia came in, so Buck filled in, according to legal filings. In fact, understaffing appears to have been a consistent problem, Judge Presnell wrote.

According to jail policy, which Buck approved, one nurse could be assigned 40 patients, the judge wrote. He also noted that Clairmont, the nurse on duty the night of Gracia’s death, claimed she had not been instructed to call in a physician when necessary to treat patients during her shifts. “While understaffing alone may not be sufficient to show a custom or policy resulting in deliberate indifference, a jury could conclude that persistent, extreme understaffing, when coupled with the failure to involve doctors, would be,” he wrote.

On the afternoon of Aug. 8, 2015, Gracia vomited twice, according to the judge’s order. Elsa Galloza-Gonzalez, another nurse at the jail, wrote in her notes that he showed “no signs or symptoms of infection,” according to the court.

The next evening, at 7:48 p.m., Clairmont recommended that Gracia be moved out of the infirmary and into general population, according to a report by Dr. Thomas Fowlkes, the medical expert for Gracia’s family. At about 9 p.m., when Gracia was asked to sit up for his medication, he writhed in bed, said, “I can’t do it,” and then slid to the floor, according to Fowlkes’s report. His report also refers to a note recorded at 9:54 p.m. by Lynn Marie Harter, another nurse at the jail, in which she wrote that Gracia “refused to get up and take his PM medications as ordered.”

When officers arrived about an hour later to transfer him to another cell, Gracia was “unresponsive, groaning lethargically, and laying on the floor,” Judge Presnell wrote. Clairmont allegedly told the officers that Gracia was malingering, a charge that she denies. Two prisoners and an officer moved him to another cell. The judge’s order writes that at no point after Gracia was transferred did Clairmont enter the cell to examine him; she claims that she was monitoring him by live video.

Clairmont recorded in her notes that Gracia had refused treatment and refused to follow orders for the transfer, according to Judge Presnell’s order. A disciplinary report was filed against Gracia for failing to follow orders and for feigning an illness, according to the medical expert’s report.

At about 3 a.m., on Aug. 10, four days after his arrest, a corrections investigator allegedly interrogated Gracia about the disciplinary report, but he was unable to respond, according to the family’s complaint. At approximately 3:30 a.m. Clairmont wrote that Gracia was lying on the floor of his cell, refusing all treatment, according to Dr. Fowlkes’s report.

At about 5:15 a.m. another jail official told Clairmont that Gracia was not breathing. What appeared to be coffee grounds were found on Gracia’s towels and sheets, indicating that his esophagus was disintegrating and that he had vomited blood, according to the judge’s order. Gracia was taken to the hospital and pronounced dead less than an hour later.

They called him willfully noncompliant when what he was doing was dying.Margo Schlanger, University of Michigan Law School

Prisoners and their families can face multiple hurdles to having their civil cases heard in court. Once a claim for damages is filed, the plaintiffs must overcome the qualified immunity doctrine. Under Section 1983 of the federal Civil Rights Act, first enacted in 1871, government officials can be held financially liable for violating a person’s rights. However, the doctrine of qualified immunity, the modern version of which was articulated by the U.S. Supreme Court in the 1980s, requires that plaintiffs seeking damages show that the statutory or constitutional right alleged to have been violated was clearly established by law.

The purpose of qualified immunity is to shield government workers from liability for civil damages for unknowingly violating the law. But according to Tilley, of the ACLU of Florida, this requirement has “traditionally only served to permit brutal, gruesome misconduct.” The doctrine, he said, adds yet another barrier for prisoners seeking financial redress and impedes systemic reform.

Critics of qualified immunity span the ideological spectrum—from Supreme Court Justice Clarence Thomas to Justice Sonia Sotomayor. In fact, the ACLU and the Cato Institute, along with several other organizations, filed amicus briefs last year in support of a claim brought by Almighty Supreme Born Allah. “It’s been a very effective doctrine at keeping meritorious lawsuits from going forward,” said Jay Schweikert, a policy analyst with the Cato Institute’s Project on Criminal Justice.

Allah was placed in solitary confinement for nearly a year while awaiting trial at the Northern Correctional Institution in Connecticut. For about seven months of that time, he was confined to his cell for 23 hours a day, and when he was permitted to shower, he had to do so in shackles and underwear. In 2011, he sued Department of Correction officials.

A federal court found that although his rights had been violated, the defendants were protected by qualified immunity. (The case was ultimately settled out of court.) “Defendants were following an established DOC practice,” Circuit Judge Gerard E. Lynch wrote in his opinion. “No prior decision of the Supreme Court or of this Court (or, so far as we are aware, of any other court) has assessed the constitutionality of that particular practice.”

In cases like Gracia’s, proving deliberate indifference is a prerequisite to establishing that a constitutional right was violated, explained Tilley. Overcoming qualified immunity then requires showing that the unlawfulness of the violation was clearly established. In 1976, the U.S. Supreme Court ruled in Estelle v. Gamble that deliberate indifference to a prisoner’s serious medical needs violates the constitutional prohibition against cruel and unusual punishment.

“Deliberate indifference is a mountain to overcome in these types of cases,” said the Gracia family’s lawyer Jason Recksiedler. “Many times that standard can’t be reached and the case never reaches the jury.”

Demonstrating deliberate indifference can be exceedingly difficult, agreed Margo Schlanger, a law professor at the University of Michigan. For Gracia’s case, it would require showing that officials or staff knew about the problem and responded unreasonably, she said.

In their legal filings, Buck and Clairmont argued that they did not act with deliberate indifference and were protected by qualified immunity. Judge Presnell disagreed, and Buck and Clairmont filed an appeal this month of the decision. Schlanger thinks that the Gracia family’s suit is “a classic deliberate indifference case.”

“They disciplined the guy for dying,” she said. “They called him willfully noncompliant when what he was doing was dying.”

New Data Reveals the Racial Disparities in Pennsylvania’s Money Bail Industry

Despite accounting for less than 12 percent of the state’s adult population, roughly 40 percent of all bail bonds were issued in cases involving a Black defendant.

Photo illustration by Elizabeth Brown. Photo by Jimmy Rooney/Shutterstock.

New Data Reveals the Racial Disparities in Pennsylvania’s Money Bail Industry

Despite accounting for less than 12 percent of the state’s adult population, roughly 40 percent of all bail bonds were issued in cases involving a Black defendant.

In November 2013, two men were driving through Cumberland County, Pennsylvania, when State Trooper David Long pulled them over. Long wrote in an affidavit that he stopped Byron Bright and Edward Jarvis at around 11 a.m. because they were traveling too close to the vehicle in front of them. (Bright, the driver, was ultimately not cited for a traffic violation.) At some point during the traffic stop, Long asked Jarvis if he would allow him to search the car. Jarvis did not consent to the search and said he just wanted to be on his way.

Long then detained the men and called for a K-9 unit, which detected the presence of a controlled substance, according to the trooper’s affidavit and other court documents. The vehicle was towed away and searched.

When investigators searched the car, at around 2:35 that afternoon, they didn’t discover any illicit drugs. However, they did find more than 3,000 cartons of cigarettes that bore Georgia tax stamps. Long charged the men with felony possession of unstamped cigarettes.

At 8 a.m. the next day, Magisterial District Judge Mark Martin set their bail at $50,000 each. At the time, Pennsylvania capped bail premiums at 10 percent on the first $100 of the bail bond plus 5 percent on every additional $100. Bright and Jarvis, who didn’t have legal representation until weeks later, faced a choice: pay the bail or remain incarcerated while the case worked its way through the court. The men spent three days in jail before posting bail and paying the bail agent, Adam Groff, a fee of about $2,500 each.

Two years later, Judge Skip Ebert of Cumberland County’s Court of Common Pleas determined that Long conducted an illegal search of Bright and Jarvis’s vehicle. In July 2015, the charges against them were dismissed. Nevertheless, the men were not entitled to a refund of the bail fee. “It’s really predatory lending,” Nyssa Taylor, criminal justice policy counsel for the ACLU of Pennsylvania, told The Appeal. “Regardless of what happens to your case, you still owe the bond company the full amount.”

The case of Bright and Jarvis, who are Black, is emblematic of a money-bail industry in Pennsylvania that has yielded millions in fees for bail agents who disproportionately profit from people of color. In 2018, Philadelphia District Attorney Larry Krasner’s office stopped seeking money bail for certain low-level offenses, a policy change that has resulted in a 23 percent increase in defendants being released without monetary conditions and no detectable change in rates of recidivism or failure to appear in court. Yet, criminal defendants in Pennsylvania are still often at the mercy of an industry that advocates describe as exploitative and potentially unconstitutional.

The Appeal reviewed more than 18,000 criminal dockets filed in Pennsylvania in 2017, the most recent data available, which amounts to all of the cases involving surety bonds that were not expunged before this report. The state makes only some of its aggregate data freely available to the public. The Administrative Office of Pennsylvania Courts’s website is searchable only by individual case numbers. The Appeal gathered this information on Pennsylvania’s criminal legal system to provide insight and context that are not immediately discernible.

The data shows that in 2017, bail agents issued more than $359 million in surety and earned between $17 million and $53 million in fees. More than 230 agents provided surety that year, but nearly half of all bonds were issued by just 25 agents. And despite accounting for less than 12 percent of the state’s adult population, roughly 40 percent of all bail bonds were issued in cases involving a Black defendant. In 2017, more than $140 million out of the total of $359 million in surety was issued to cases with Black defendants; the industry collected somewhere between $7 million and $21 million in fees in these cases. There is no statewide collection or disclosure of bail bond contracts or fees, so greater precision is nearly impossible.

Pennsylvania rules require judges, who are elected, to take into account a defendant’s ability to pay when setting bail such that all bail amounts are to be reasonably affordable. But there is no oversight for this aspect of judicial discretion. The state’s Department of Insurance is in charge of regulating the bail bond industry to make sure fees are not excessive, but it doesn’t collect data on how much bail agents charge. The cash-bail disparity is a symptom of larger racial disparities in policing, criminal charging, setting bail, and prosecution. But such huge fees are also possible because Pennsylvania has a history of hands-off treatment for the bail bond industry.

In 2015, the industry—with assistance from former Lt. Gov. Mike Stack and former state Senator Richard Alloway—successfully lobbied to amend the state’s regulations. The new law, Act 16, was presented as a tool to “provide accountability, professionalism and transparency for the practice of providing bail for those awaiting trial.” But instead it made three major changes that were advantageous to the industry it purported to regulate.

Foremost among those changes, Act 16 eliminated the cap on the maximum fee a bail agent can charge. The limit amounted to a little more than 5 percent. The typical fee now is somewhere between 5 and 15 percent of the face value of the bond, which can easily equal thousands of dollars.

Beyond removing the limit on fees, Act 16 also made it more difficult for courts to collect money from bail agents by allowing for forfeiture only when a defendant misses a court hearing and by imposing limits on how courts can collect forfeited bail bonds. But these changes benefit the bail bond industry by delaying when forfeiture proceedings can begin, providing bail agents time to recoup losses from the courts if bail is forfeited and limiting what can trigger a forfeiture.

The bail bond industry in Pennsylvania stands in stark contrast to the successful efforts elsewhere in the country to reform and even eliminate money bail. Washington, D.C., largely eliminated money bail in 1992 and crime rates have fallen precipitously. New Jersey changed its bail system in 2017 to effectively eliminate money bail and has since experienced a drop in pretrial incarceration without an increase in crime or failures to appear for court. Alaska reformed its bail system in 2018, and the percentage of people jailed pretrial jail was cut in half without any effect on court appearances. These state efforts show that money bail can successfully be eliminated without an increase in crime or people failing to appear for court.

Advocates in Pennsylvania are working to push the state toward reform. Hayden Nelson-Major, Independence Foundation fellow at  the ACLU of Pennsylvania, argues that the due process and equal protection clauses in the U.S. Constitution are supposed to also prevent people from being held in detention on unaffordable money bail. And the ACLU of Pennsylvania is suing several Municipal Court judges in Philadelphia for allegedly consistently violating state rules. “If judges were actually following the rules and Constitution, there wouldn’t be unaffordable bail set,” Nelson-Major told The Appeal. “This industry only exists because the judges aren’t following the rules or the Constitution.”

Instagram Photos Offer Glimpse Inside Notorious Georgia Jail

The DeKalb County Jail, now at the center of protests, has a long history of problems and a legacy of housing people for unpaid fines.

One of the photos uploaded by Malaya Abdullah-Tucker

Instagram Photos Offer Glimpse Inside Notorious Georgia Jail

The DeKalb County Jail, now at the center of protests, has a long history of problems and a legacy of housing people for unpaid fines.

It started with a photo on social media. During a video visitation last month at the DeKalb County Jail in Decatur, Georgia, people detained at the jail tried to show some of its conditions to their loved ones.

Malaya Abdullah-Tucker, who said her son is in the jail, took screenshots and posted them on Instagram. In one photo, a detainee holds up a sign that reads “DeKalb Jail is mistreating us!” Another shows what appears to be a meal served at the jail. A third shows a man holding up a sign that says “We sleep and breathe mold.”

“STAND FOR THESE YOUNG MEN!” Abdullah-Tucker wrote in her caption. “They are caged away with no voice! No matter what they are incarcerated for, they do not deserve to live in such treacherous conditions!”

The Instagram photos have helped spark recent protests, including one last Wednesday during which four protesters were arrested.

Yet some of the issues the prisoners raised have dogged the jail for more than a year. According to the Atlanta Journal-Constitution, DeKalb County Sheriff Jeffrey Mann has requested more funding over the past two years to address mold and other issues at the jail. Last year, he announced a $1.5 million effort to address mold and improve plumbing at the facility.

Mann disputed the protesters’ allegations that the jail is unsanitary and said they should call with complaints instead. “[They’re] just out there creating a disruption rather than being productive and rather than calling, emailing, or going on the website,” he told reporters. “It’s not fruitful.”

But critics say their concerns about the jail go beyond its conditions. It has long been known as a so-called debtors’ prison because of the county’s willingness to jail people for unpaid fines and fees. In January 2015, the ACLU sued DeKalb County on behalf of Kevin Thompson, a teenager who was arrested for not being able to pay $838 in fines and fees related to a traffic violation. According to the suit, he was not offered counsel or an indigency hearing.

“Across the county, the freedom of too many people is resting on their ability to pay,” Nusrat Choudhury, an ACLU attorney who represents Thompson, said in a statement at the time. “We seek to dismantle that two-tiered system of justice, which disproportionately punishes people of color.”

When the plaintiffs and defendants settled the lawsuit two months later, DeKalb County agreed to have its judges use a “bench card” that reminds them of the legal alternatives to jail and the procedure to figure out if a defendant is able to pay a fine. In reforms that followed the settlement, the county granted residents six weeks to pay off fines, and the option of working them off with community service (at $8/hour).

But according to the ACLU of Georgia, some of the problems persist. At the time of the lawsuit, traffic violations were usually handled in the DeKalb County Recorders Court, where the county charged a $25 court fee on top of the fine for each traffic citation. The Recorders Court was ultimately shut down and replaced with the traffic division of DeKalb County State Court, but that court reinstated the fee.

People who can’t pay court fees or traffic citations right away are often put on probation for as long as a year, until they can pay them off, according to the ACLU of Georgia. When the cases are handled by municipal courts rather than state court, defendants are more likely be jailed for nonpayment, ACLU staff attorney Kosha Tucker told The Appeal. Often, defendants appear in court without a public defender to help them negotiate a better outcome, she added.

“The absence of counsel, coupled with the monetary consequences of a misdemeanor conviction, raise serious concerns about the creation of debtors’ prisons and the criminalization of poverty in municipal courts,” Tucker wrote in an email.

Last year, the Institute of Justice filed a lawsuit against the DeKalb County town Doraville, alleging that its ticketing practices (handled through its municipal court) that generate revenue for the town are unconstitutional.

The town’s mayor and city manager could not be reached for comment by press time. District Attorney Sherry Boston declined to comment on her county’s use of jail time for overdue fines and fees and referred questions to the solicitor-general’s office, which declined to comment. The DeKalb County Probation office did not respond to a request for comment.

DeKalb County Jail has also been accused of medical neglect. Over the last decade, the jail had the second-highest number of jail deaths in the state, according to an analysis by the Journal-Constitution. In 2015, Ricky Figueroa died by suicide after repeatedly asking for mental health treatment, including filing four grievances with that request. Shantell Johnson was admitted to the jail in 2013 for driving with a suspended license and was found dead in her cell less than 48 hours later. Although an internal investigation found no violation of policy in the leadup to her death, her family is now suing the sheriff’s office.

The office of Sheriff Mann, who took office in 2014, did not return calls or emails seeking comment on the deaths.

Meg Dudukovich of the Atlanta Incarcerated Workers Organizing Committee, which is helping to organize the protests at the jail, told The Appeal she sees the deaths as part of pattern of neglect, both by the jail and the public. “I think that America dehumanizes prisoners so much that a lot of people just assume, ‘Oh, if they’re in jail then they deserve these conditions,’” she said.

“DeKalb has had these issues for decades,” Dudukovich added. “It’s been a well-known secret for a long time.”

More in Explainers

Prosecutors become unlikely line of defense against abortion bans

Prosecutors become unlikely line of defense against abortion bans

What you’ll read today

  • Spotlight: Prosecutors become unlikely line of defense against abortion bans

  • Wisconsin’s ‘constitutional crisis’ is forcing people to sit in jail without a lawyer

  • State trooper said man took bag from a Fentanyl supplier, but video showed that deal never happened

  • Border patrol agent accused of running a migrant down with his truck called migrants ‘subhuman’

  • New York public advocate openly discusses selling marijuana as teen

  • New report finds ICE puts thousands of immigration detainees in solitary confinement

In the Spotlight

Prosecutors become unlikely line of defense against abortion bans

Missouri passed a bill on Friday to ban abortions after a fetal heartbeat is detected, making it the eighth state this year to severely restrict abortion. Alabama’s new law bans abortions in nearly all cases. Georgia, Kentucky, Missouri, Mississippi and Ohio have passed “heartbeat bills,” which effectively prohibit abortions after approximately six weeks of pregnancy, when many women are not yet aware they are pregnant. In Alabama, doctors who perform abortions could face up to 99 years in prison, which is decades longer than the maximum penalty for second-degree rape.

These laws are seen by many as unjust, and people have taken to the streets in protest. Color of Change chose another tactic: The group circulated a petition calling on local prosecutors not to enforce these laws. “As a prosecutor, you have the power and responsibility to enact policies and infrastructure that would discourage police officers from making arrests,” the group wrote. “We are calling on you to take a proactive stand.”

Some prosecutors have already taken such stances. Salt Lake County Attorney Sim Gill said he will not enforce Utah’s measure banning abortions after 18 weeks. “I think that’s the only legal and ethical thing for me to do, which is not use the power of my office to violate the constitutional rights of my citizens when there is well-established precedent that says it is unconstitutional,” he said. “We cannot put people in jail for this.”

Georgia’s new statute prohibits abortion after six weeks, with a longer time frame in cases of rape and incest. “But district attorneys in the state’s four most populous counties—all in or around the Atlanta area—have pledged not to prosecute women under the statute, which is ambiguous about the criminal liability of those who undergo the procedure,” according to the Washington Post. “Two prosecutors said they would not bring charges of any kind under the new law.” DeKalb County District Attorney Sherry Boston said, “As district attorney with charging discretion, I will not prosecute individuals pursuant to HB 481 given its ambiguity and constitutional concerns. As a woman and mother, I am concerned about the passage and attempted passage of laws such as this one.”

Every day, prosecutors make enforcement decisions according to their discretion. It’s part of the job. But recently, as the horrors of mass incarceration have become better understood, prosecutors have begun to use their discretion to stop enforcing laws they consider unjust. In January, Marilyn Mosby, the Baltimore state’s attorney, announced that her office would no longer prosecute marijuana possession no matter the quantity. “She also said that she would act to vacate thousands of old convictions,” writes Daniel Nichanian for The Appeal: Political Report. “In a 14-page white paper, her office laid out her rationale, detailing the ‘crisis of disparate treatment of Black people for marijuana possession and other offenses without any seeming regard for the possible adverse public health effects resulting from such enforcement.’” Rachael Rollins was elected to be district attorney in Boston in part on a promise to decline to prosecute various low-level charges, such as trespassing, drug possession, and petty theft.

“The private beliefs of the prosecutor doesn’t matter,” Sam Gill, the Utah prosecutor, said. “Every prosecutor who is being asked to violate the constitutional rights of citizens … has the responsibility to say no.” It is clear, however, that the private beliefs of prosecutors do matter. In defending her decision not to enforce the abortion ban, Boston referred to Roe v. Wade, but she also invoked her role “as a woman and mother.” In explaining her decision not to enforce marijuana possession, Mosby discussed the disparate treatment of Black people in the system. These are principled stances that do not derive directly from written laws or constitutions, but rather from morality.

In the context of a clearly unjust law, such as the Fugitive Slave Act––which, in the years leading up to the Civil War, required officials and residents of free states to help return escaped slaves to their masters––refusal to comply is celebrated as an unalloyed good. But when the law is more ambiguous, or when it actually advances equality and inclusion, such principled resistance takes a different tone, such as when Kentucky clerk Kim Davis refused to issue any marriage licenses to same-sex couples because of her personal, religious opposition to same-sex marriage.

State attorneys general, too, over the last decade have begun refusing to defend divisive laws, especially laws championed by opposition party actors. “Until 2008, nondefense was almost unheard of,” write Neal Devins and Saikrishna Prakash for the Los Angeles Times. “That year then-California Atty. Gen. Jerry Brown refused to defend Proposition 8, which banned same-sex marriage in the state. Since then, 16 other attorneys general have refused to defend state laws. Democrats refuse to defend gun rights legislation and anti-same-sex-marriage laws. Republicans refuse to defend campaign finance restrictions, gun control laws and protections for gays and lesbians.”

In a perfect world, prosecutors would put aside politics and instead listen to experts, who would tell them that enforcing draconian criminal laws is counterproductive. They would also listen to directly impacted families, who will tell them that this kind of enforcement is cruel. Enforcement decisions could begin there.

And there are other opportunities for moral standards to help shape which laws get enforced. Prosecutors who enforce unpopular laws too severely may lose their jobs if voters educate themselves. And if they do enforce the new abortion bans, juries will be empowered to nullify. As the Washington Post notes, “A century ago, when abortion was a crime, juries regularly refused to convict.”

Stories From The Appeal

Illustration by Ariel Davis

Wisconsin’s ‘Constitutional Crisis’ Is Forcing People to Sit in Jail Without a Lawyer. At least two people have killed themselves in jail after waiting for more than a week to be appointed a lawyer. [Mario Koran]

State Trooper Said Man Took Bag From a Fentanyl Supplier, But Video Showed That Deal Never Happened. Trooper testimonies and misconduct among state and local law enforcement in New Hampshire and Massachusetts have caused at least 15 drug cases to unravel. [Zachary A. Siegel]

Stories From Around the Country

Border patrol agent accused of running a migrant down with his truck called migrants ‘subhuman’: According to court documents, Border Patrol agent Matthew Bowen sent text messages calling the people he apprehends “disgusting subhuman s— unworthy of being kindling for a fire” and asked the president to “PLEASE let us take the gloves off.” Bowen, a 10-year Border Patrol veteran, is accused of ramming his Border Patrol truck into a Guatemalan man in 2017, and then lying in a report about the incident. If a jury were to see the texts, his defense lawyer said he would argue that certain terms are “commonplace throughout the Border Patrol’s Tucson Sector, that it is part of the agency’s culture.” Bowen has also texted, “Guats are best made crispy with an olive oil from their native pais.” A federal grand jury indicted him on charges of depriving the Guatemalan man of his civil rights and falsifying records. [Curt Prendergast / Arizona Daily Star]

New York public advocate openly discusses selling marijuana as teen: In an op-ed yesterday, New York’s public advocate, Jumaane Williams, wrote that he sold marijuana as a teenager. “For a short time in high school, I’d sell a nick or a dime bag to teenagers with money and paper to burn. I wasn’t in poverty. I wasn’t desperate. I was just a kid looking for a way to make a little money to buy comic books or pizza or whatever.” Williams, unlike many who sold drugs, was not caught, and because of that, he has gone on to have a successful career in politics. “Over the years everyone, from family to advisers, has cautioned against discussing my story openly, saying that it could potentially stunt my career. We’ve moved from Bill Clinton being unable to admit ‘inhaling’ to Mike Bloomberg saying he smoked and ‘enjoyed it.’… But somehow usage is the only part of the process that it’s been okay to talk about.” [Jumaane Williams / New York Daily News]

New report finds ICE puts thousands of immigration detainees in solitary confinement: “ICE’s own directives say that isolating detainees—who under federal law aren’t considered prisoners and aren’t held for punitive reasons—is ‘a serious step that requires careful consideration of alternatives,’” reports The Intercept. Nevertheless, an investigation by The Intercept and the International Consortium of Investigative Journalists found that ICE uses isolation “as a go-to tool, rather than a last resort, to manage and punish even the most vulnerable detainees for weeks and months at a time.” The review of more than 8,400 reports of isolation found that ICE has used isolation cells to “punish immigrants for offenses as minor as consensual kissing, and to segregate hunger strikers, LGBTQ detainees, and people with disabilities.” In nearly a third of the cases, detainees were described as having a mental illness. “People were being brutalized,” said Ellen Gallagher, a supervisor in the U.S. Department of Homeland Security. For years, she has tried to sound the alarm about solitary confinement-related abuses. [Spencer Woodman, Maryam Saleh, Hannah Rappleye, Karrie Kehoe / The Intercept]

Thanks for reading. We’ll see you tomorrow.

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