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Denver City Council Members Propose a Way to Keep Tenants in Their Homes

A new proposal would make Denver the latest major city to provide legal defense for residents facing evictions.

Denver City Council Members Propose a Way to Keep Tenants in Their Homes

A new proposal would make Denver the latest major city to provide legal defense for residents facing evictions.

For months, two Denver City Council members—Amanda Sawyer and Candi CdeBaca—have been working on a plan to stem the coming glut of eviction filings. When Colorado’s COVID-19 eviction moratoriums finally end, thousands of households may face evictions across the state. In March, the Colorado Sun reported that more than 20,000 people were still waiting for rental assistance from the state Department of Local Affairs. According to the U.S. Census Bureau’s Household Pulse Survey, roughly 100,000 Coloradans were behind on rent in February.

Sawyer and CdeBaca are proposing a bill that would essentially make Denver’s 2018 pilot eviction defense program a permanent right. According to a draft of the bill that CdeBaca posted last Friday onTwitter, their proposal would provide a city-funded attorney to any tenant who earns 80 percent or less of the Denver’s area median income, putting the proposed threshold at around $55,000 for a single person and around $71,000 for a family of three.

“The purpose is not necessarily to stop people from getting evicted if it’s a rightful eviction, but to level the playing field,” Sawyer told The Appeal. “We want to make sure people getting evicted have access to information, or to help with issues like language barriers, things like that.” Sawyer said  she and CdeBaca are speaking to various stakeholders around the city—including local activist organizations and landlords—and trying to figure out the best way to fund the program. Sawyer said she hopes the bill will be ready for a vote by the summer.

Indigent people facing any type of civil lawsuit must often defend themselves without any training or knowledge of the law. Studies have repeatedly shown that those with counsel in eviction proceedings obtain dramatically better results and are more likely to stay in their homes. Nationally, studies suggest landlords have counsel in 80 to 90 percent of eviction cases, while those facing eviction obtain counsel in only 10 percent of cases.

According to a 2017 study by the Colorado Coalition for the Homeless, every single landlord who filed an eviction case citywide from 2014 to 2016 did so through an attorney. Meanwhile, those being evicted obtained an attorney in just 1 to 3 percent of cases reviewed.

Denver currently contracts with an outside nonprofit organization to provide eviction defense services during the pandemic. But last Friday during a town hall meeting to discuss expanding eviction-counsel rights, CdeBaca and Sawyer said that, since there is no citywide rule stating that tenants must be notified of their rights during eviction proceedings, few Denverites are aware of the program or have utilized it.

“A lot of times tenants don’t know how to negotiate an agreement that would allow for something to happen—even if that is a move-out—without a judgment on their record,” CdeBaca said. She added that evictions also put stress on other city resources, including homeless services.

“That’s one of our major issues in the city right now when we’re trying to get people out of homelessness, and an eviction makes it exponentially harder for someone to ever climb out of the hole of homelessness,” CdeBaca said.

Those who are evicted, however, often face horrifying consequences. If Denver adopts the right-to-counsel proposal, it would follow several other major cities, including Newark, New Jersey and Boulder, Colorado, as well as Baltimore, Cleveland, New York, Philadelphia, San Francisco, and Seattle. Those measures have been significantly successful so far: In New York City, for example, 86 percent of households with counsel were allowed to stay in their homes in the year from July 1, 2019, to June 30, 2020.

Philadelphia Police Aren’t Solving Crimes. It’s Time to Divert Their Funding

This budget season, Philadelphia must hold our law enforcement accountable for their failures by redirecting resources to strategies that can help us.

Photo by Cory Clark/Getty Images

Philadelphia Police Aren’t Solving Crimes. It’s Time to Divert Their Funding

This budget season, Philadelphia must hold our law enforcement accountable for their failures by redirecting resources to strategies that can help us.

Philadelphia has a gun violence crisis that is rightfully generating a lot of concern. But some of the responses we traditionally resort to—increasing police budgets, calling for crackdowns in the neighborhoods that are most affected, and insisting on more punitive responses from the criminal legal system—are misguided and will only perpetuate further harm.

Gun violence is driven by generations of inequality, oppression, disinvestment, and neglect. It is the result of policies like the 10-year tax abatement and billions of dollars in property tax exemptions that starve our public schools of resources and leave our young people without the supports they desperately need. It is the result of a dire shortage of affordable housing paired with one of the lowest minimum wages in the country. And it is the result of a lack of action by the GOP-controlled state legislature to enact common-sense gun laws and fairly fund our city’s public goods. In order to make our communities safer, we must acknowledge our public safety failures and invest in strategies that address the root causes of violence.

One great starting place for Philadelphia would be to cut our police department’s enormous budget in light of its abysmal rate of unsolved homicides so that we can invest that money in solutions that actually work.

As a recent article in The Appeal soberly illustrated, the rate at which Philadelphia police clear homicide cases—one of the best measures of a police department’s success in solving homicides—has dropped precipitously over the last few decades. (Although it’s widely used to tout success, declaring that a crime has been cleared does not mean that the crime has been solved; for instance, some departments clear crimes when a suspect has been identified.) Philadelphia has gone from a homicide clearance rate of nearly 80 percent in the 1980s to less than 50 percent in 2016. Last year, it dropped even further, from around 52 percent in 2019 to 42 percent in 2020. As The Appeal also reported, the stats are even worse for assaults committed with firearms—last year, that clearance rate was less than 20 percent, an at least 66 percent drop since 1969.

Yet for too long we have continued to invest more money into an approach that clearly isn’t working. Across the country, police departments are among the most well-funded city agencies, and Philadelphia’s is no exception. This year, the Philadelphia Police Department will receive $727 million, or 15 percent of our city’s operating budget—all while, during a post-pandemic budget shortfall, over 450 government employees are slated for layoffs, previous cuts in public pools and arts funding won’t be reversed, and public libraries are shuttered. And between 2015 and 2020, Philly’s police budget increased by $115 million, while during the same period, according to an investigation by the Philadelphia Inquirer, the city experienced nearly 8,500 shootings. Of those shootings, only 1 in 5 resulted in an arrest, and only 9 percent resulted in a conviction.

Those numbers show that despite being well-funded, police aren’t doing their job when it matters the most. The Philadelphia Police Department doesn’t use the funds we’ve given it to address our real public safety needs and focus on solutions for serious, violent crime. Instead, it spends the vast majority of its time on noncriminal calls, traffic infractions, and property or other nonviolent crimes, deploying law enforcement to nonwhite communities to over-patrol, surveil, and, quite frankly, harass people. According to reporting by WHYY, between October 2018 and September 2019, the department conducted a total of 309,533 motor vehicle stops, 90 percent of which were for minor traffic violations. The vast majority of these stops, nearly three-quarters, targeted Black drivers, but only 1 percent resulted in the confiscation of contraband such as illegal drugs or guns.  Stop-and-frisks are also a pervasive problem in Philadelphia, even though 1 in every 3 is legally unfounded, according to a report by the ACLU. Black communities bear the brunt of this harrassment, with Black individuals being 50 percent more likely to be stopped without reasonable suspicion than white people.

The way Philadelphia allocates its public safety resources has utterly fractured trust in law enforcement, which is critical to solving violent crimes. A recent survey found that in neighborhoods where a shooting occurred within the last year, 62 percent of people found the police somewhat or very unhelpful. Eighty-three percent of people from those neighborhoods found police to be somewhat or very bad at preventing violence. An in-depth 2019 Washington Post investigation into unsolved murders reviewed a decade’s worth of data and found that “Black victims, who accounted for the majority of homicides, were the least likely of any racial group to have their killings result in an arrest.”

I live these realities regularly. Young people, around the same ages of my daughters are buried every single week. But Philadelphia police are not solving these crimes, and, in our community, police presence does not equate to feeling safe. We need to be surrounded by people who are clearly invested in the fate of our community, not just those who show up when we’re in crisis. We need Philadelphia to invest in far more violence prevention strategies and to build services and provide resources that create health, stability, and opportunities for growth. And we need Philadelphia’s law enforcement to take our tragedies seriously. To be clear, I’m not looking for the city to double down on aggressive policing or to dole out ever harsher criminal penalties. Rather, I want law enforcement to make good on its claims to prioritize violent crime by focusing its attention on gun violence and homicides instead of spending the majority of its time on issues that are better handled by others—medical professionals and counselors for mental health and substance use.

Scaling back the responsibilities and scope of law enforcement and investing instead in violence intervention programs and other alternatives to policing will do a lot more good for our communities and allow law enforcement to focus their efforts on solving the truly serious crimes. For example, by investing in Parks and Recreation and in our public schools—especially the 25 schools that half of all students impacted by gun violence attend—we can ensure our young people have access to the trauma-informed care and after-school programming needed to curtail and de-escalate conflicts. By prioritizing permanent, green, affordable housing in the city, we can stabilize families forced into precarity by the housing crisis. And by making significant investments in grassroots violence prevention work done by groups like YEAH Philly, the Youth Art & Self-Empowerment Project, Men of Courage, NOMO Foundation, CeasefirePA, and others, we can expand the scope of these programs and begin to treat gun violence like the public health crisis that it is.

This budget season, Philadelphia must begin to hold our law enforcement accountable for their failures by redirecting resources to other agencies and strategies that can help us. It is our responsibility as elected officials to listen to the vast majority of our constituents—nearly 96 percent of Philadlephians—who support diverting funds from police to community services, according to the 2020 Safety We Can Feel survey. It’s time we treat public safety as more than a political fundraising slogan and treat solutions to violent crime as more than a talking point. We need our public safety budgets to reflect real public safety solutions.

Kendra Brooks is an at-large councilmember in Philadelphia. She is the first Working Families Party member elected to the Philadelphia City Council.

In Florida, Cops Who Kill Civilians Can Now Remain Anonymous

Democratic prosecutors in Tampa and Miami campaigned for the 2018 initiative that paved the way for this new ruling.

Photo by CHANDAN KHANNA/Getty Images

In Florida, Cops Who Kill Civilians Can Now Remain Anonymous

Democratic prosecutors in Tampa and Miami campaigned for the 2018 initiative that paved the way for this new ruling.

In 2018, more than 61 percent of Florida voters elected to pass a ballot measure that created a new set of “victim’s rights,” including giving victims of crimes the ability to speak at their assailant’s trials,  to speak at their assailant’s parole or clemency hearings, to refuse interview requests from people who have harmed them, and to be notified before an incarcerated person transfers locations or is released. The measure, known as Marsy’s Law, also allows the victims of crimes to withhold their names from the press and public, ostensibly in order to prevent people from finding, stalking, or harassing victims.

On Tuesday, a Florida appellate court ruled that police officers who say they are attacked on the job can claim protections under Marsy’s Law and hide their identities, even if they injure or kill civilians. The ruling will make it difficult for the public—including victims of police abuse—to find out the names or career histories of cops who commit acts of violence on the job.

The original lawsuit, filed in June, concerned the 2020 police killing of Tony McDade in Tallahassee. McDade, 38, had allegedly been acting violently and erratically leading up to the shooting. On May 25, he allegedly stormed into the apartment of Jennifer Jackson, a woman he had been seeing, and pistol-whipped her. He claimed on a Facebook livestream that he’d been jumped by a group of men tied to Jackson’s son, Malik, and vowed revenge. Police had been called to McDade’s home twice the night of May 26, but did not arrest McDade either time. On May 27, Jackson’s family says McDade snuck up behind Malik as Malik sat parked in his Hyundai SUV and stabbed him to death while Jackson’s friends fought McDade off. McDade then fled and someone called the police. When Tallahassee PD arrived at McDade’s home, police claim, McDade pointed a gun at them. Police then fatally shot McDade.

After the shooting, the City of Tallahassee moved to release the names of the cops who’d killed McDade, but the Florida Police Benevolent Association—TPD’s police union—intervened and sued the city. In July, a local judge ruled that Marsy’s Law did not apply to officers while they’re on duty. This week, the appellate court disagreed, ruling that, since McDade had allegedly pointed “deadly weapons” at the officers, the cops involved were, in fact, crime victims.

“Because article I, section 16 [the Marsy’s Law amendment] does not exclude from its protections law enforcement officers or other public employees when they become victims of crime, Appellants had a right to seek confidential treatment for public records that could be used to locate or harass them,” the court stated.

Marsy’s Law provisions are now on the books in at least 12 states, increasing the likelihood that any judicial outcome in Florida may establish a wider precedent. Despite significant warnings from justice-reform groups in other states where similar laws had already been enacted, some of Florida’s most prominent Democrats, including State Senator Lauren Book, State Attorney Andrew Warren, and Miami-Dade County State Attorney Katherine Fernandez Rundle, campaigned to help pass the 2018 ballot measure.

“Marsy’s Law for Florida has really done a tremendous amount to make sure that survivors of violent crimes have a voice and have a stake,” Book said in a May 2020 video posted to the official Marsy’s Law for All YouTube channel.

“Crime-victims in Florida deserve equal rights,” Rundle said to voters in a 2018 ad urging residents to approve the measure. In a different spot, Warren, who has cultivated a reputation as a “progressive” prosecutor, claimed that Marsy’s Law was “working” in other states. Rod Smith, the former chair of the Florida Democratic Party and  former prosecutor, said the bill would ensure that “the most vulnerable in our community aren’t forgotten.”

Spokespeople for Book did not immediately respond to requests for comment. Rundle’s spokesperson, Ed Griffith, said the Miami-Dade County State Attorney’s Office is “presently reviewing the opinion.”

Warren said that he was disappointed in the ruling. “I don’t believe that withholding an officer’s name after they’ve used force on behalf of the state—on behalf of all of us—keeps with the spirit of Marsy’s Law,” he told The Appeal. “At a certain point, an officer goes from being a victim to being a sworn officer of the state, acting on behalf of the community, and if we want to rebuild trust with the community, that officer’s name should not be withheld.”

Grassroots activists in Florida were not exactly clamoring to pass a victims-rights amendment in 2018. Florida already had protections for victim’s rights; more than 30 years ago, it was the first state to enshrine the rights of victims in its constitution. Marsy’s Law is largely the brainchild of a single California billionaire—tech mogul Henry Nicholas, who co-founded the company Broadcom and is now using his immense fortune to push victims-rights laws in state houses around the nation. In 1983, Nicholas’s sister, Marsalee “Marsy” Nicholas, was murdered by an ex-boyfriend—and, since then, he has spent tens of millions of dollars campaigning for the rights of crime-victims nationwide.

But Nicholas’s crusade has brought out many critics, who say his “reforms” in many cases have been misguided, draconian, or outright harmful to criminal justice reform efforts.

An investigation by USA Today and ProPublica found that, since 2018, cops across Florida were already invoking Marsy’s Law to hide their names in a variety of situations, including claiming they were “victims” of crimes after scraping their knees, twisting their wrists, or bruising their fingers. The report also found that at least seven Florida agencies have used Marsy’s Law to avoid divulging the names of officers who’ve killed civilians.

In some states where Marsy’s Law is in effect, the provisions allowing victims to refuse interviews from their alleged assailants means that defense attorneys have been unable to obtain basic information about their cases, including where or when the crimes may have occurred. And provisions requiring victims to be notified before an incarcerated person is transferred or released from prison have slowed down jail and prison releases. Prominent justice-reform and civil-rights groups, including the American Civil Liberties Union, have stated that they believe Marsy’s Law appears to do more harm than good.

The Major Real Estate Donors Influencing the St. Louis Mayoral Race

Days before the election, campaign finance reports show that real-estate and construction industries favor Cara Spencer over Tishaura Jones.

Cara Spencer and Tishaura Jones.
Photo illustration by Elizabeth Brown. Photos from and

The Major Real Estate Donors Influencing the St. Louis Mayoral Race

Days before the election, campaign finance reports show that real-estate and construction industries favor Cara Spencer over Tishaura Jones.

Just ahead of the April 6 mayoral election in St. Louis, campaign finance filings show that the city’s real-estate and construction industries may have a favorite candidate. Of the more than $630,000 that Alderwoman Cara Spencer and her affiliated political action committee have raised in this campaign, at least $78,000 has come from real-estate and construction interests.

“Where her money is coming from shows her hand, really, and shows she’s willing to take money from development companies and property management companies that also finance a lot of really terrible things,” Kennard Williams, a lead organizer with Action St. Louis and a member of the St. Louis Housing Defense Collective, told The Appeal.

But the industry interests haven’t put all of their support behind one candidate. According to publicly available campaign finance reports analyzed by The Appeal, the other candidate, city Treasurer Tishaura Jones, has reported around $56,000 from the same industries.

Both Jones and Spencer released their final campaign-finance reports on March 29. Since the March 2 primary, Spencer and her affiliated political-action committee reported at least $40,175 in donations from real-estate and construction employees and executives, and another $13,086 from construction unions.

In the same period, Jones and her affiliated PAC reported at least $24,550 from developers and real-estate agents (including $5,600 from an affordable-housing developer), $10,050 from construction companies, and another $11,086 from construction-related unions.

This discrepancy between the two campaigns was evident before the primary: Prior to March 2, Spencer reported at least $23,150 as having come from the real estate industry, and Jones reported $12,950.

Despite this difference, Jones has raised more money overall. Between the primary and March 29, Spencer reported receiving $277,686; in total, her campaign has received at least $634,235 in donations. Her PAC has raised $162,617.38 overall.  Jones’s campaign received $333,155 between the primary and the filing deadline and $666,814 during the entire election cycle. Her PAC has brought in $204,334.41. Neither candidate responded to requests for comment.

Spencer and Jones have both fundraised heavily from small-dollar and individual donors. (Attorneys made up a significant portion of donations to both candidates.) And both have shied away from some other controversial donors, such as police unions. Both candidates have accepted small amounts of money from energy-related donors as well: During the primary race, SpirePAC, the political-action committee for St. Louis natural-gas producer Spire, Inc., gave each campaign $1,000. Spire is considering a plan to raise rates on customers after the company incurred extra costs during the February midwestern cold-snap.

This year’s mayoral race is a particularly pivotal one in St. Louis. The next mayor will have a strong say in allocating the $500 million of federal aid from the COVID-19 stimulus package passed earlier this year—an opportunity to address the emergencies of the pandemic, many of which often also have long-standing precedent.

For instance, housing rights have been at the forefront of the campaign. In January, The St. Louis Post-Dispatch warned that the glut of thousands of pending evictions could create a “tidal wave of homelessness” once the local eviction moratorium ends on April 5. Prior to the pandemic, though, local developers have exploited local property tax-abatement schemes, and, in some cases, have been able to avoid paying property taxes on expensive, luxury developments. At the same time, the St. Louis city government has struggled to fund schools and social services.

The campaign finance filings show that Spencer has taken donations from a handful of powerful St. Louis developers. She accepted $2,600 from major developer Pete Rothschild on February 24; $2,000 from downtown developer Amos Harris on March 3; $2,600 from builder (and local TV scion) Sam Koplar on March 17; and $2,500 from Victor Alston, the CEO of a development firm called LuxLiving.

In May 2020, city officials expressed concern after LuxLiving built a $30 million property in the city’s Central West End neighborhood, received a full tax abatement for 20 years from the city, and then sold the property to a San Francisco investment firm for $44 million. For years, St. Louis residents have complained that tax-abatements awarded to developers have been choking local city funds—especially when it comes to public schools. According to the Post-Dispatch, tax-breaks for developers cost city schools at least $35 million in 2020 alone. Earlier this year, the school board announced plans to close as many as nine public schools due to drops in enrollment and funding.

Spencer also received $2,000 from major property manager Kirk Mills, whose company, Mills Properties, has been criticized for filing numerous evictions during the pandemic. In January, the Post-Dispatch spoke to a 29-year-old father of two, who lived in one of Mills’s buildings and was facing eviction after losing two jobs during the pandemic. Since March 15, 2020, one eviction attorney who has worked on behalf of Mills Properties has filed at least 1,400 eviction claims for various clients. Mills himself has also donated to prominent conservatives, including Missouri Sen. Josh Hawley and former President Donald Trump.

Jones accepted at least $5,600 in donations from executives at the development firm McCormack, Baron, Salazar, which specializes in affordable and mixed-income housing projects, $2,600 from real-estate magnate and political insider Steven Stogel, and $7,600 in combined PAC and campaign donations from Michael Staenberg, who co-founded the development firm THF Realty with billionaire sports owner Stan Kroenke. (Kroenke is arguably the single most-hated person in St. Louis after moving the St. Louis Rams NFL franchise to Los Angeles in 2016.)

On nearly every policy matter, Jones has consistently run to Spencer’s left. Spencer, for example, says she will push the city to find alternatives to policing and close the Workhouse, the city’s most notorious jail, by ending a contract to hold federal detainees there. Jones has committed to much of the same, but has also committed to ending cash bail and to decriminalizing sex work.

Similarly, advocates say Jones’s housing policy proposals also go a step further than Spencer’s. In interviews with the Post-Dispatch editorial board, the two candidates laid out differing visions for how the city ought to handle housing insecurity. Jones largely focused on ways to help renters. She stated the city’s biggest issue is “a lack of affordable, safe, and quality housing” citywide and said she would push the city to create more affordable-housing units.

“We need a Tenant’s Bill of Rights to make sure that landlords are held accountable when they are not providing quality units or making repairs, or also that there are rules in play when they decide to increase rent to a place where people can’t afford them,” she said.

Spencer said that she believes the city’s biggest housing issue is the number of vacant properties, which drive down real-estate prices and discourage investment in neighborhoods, including historically Black areas of the city. Spencer also said she would “go after” absentee landlords and land speculators while addressing crime in the city.

“We have got to get serious about addressing vacancy within our neighborhoods,” she said.

Both candidates have committed to ending the current mayor’s policy of dismantling homeless encampments during the pandemic. But Jones is the only candidate to say she would commit to extending the city’s eviction moratorium. Jones has also committed to increasing the city’s Affordable Housing Trust Fund.

The two candidates also have proposed different ways to spend the $500 million in federal stimulus funds: Jones has proposed using much of that money to provide affordable housing, rental assistance, and a targeted basic-income program; Spencer has proposed using some of that money for a “home-ownership down-payment program,” which will provide 1,000 renters up to $15,000 to put toward a down-payment on a home. Spencer would also give $15,000 to as many as 2,000 properties for home repairs, and up to $50,000 to 1,000 homes for “gut rehabs.” And she is calling for the city to spend $25,000 per property to rehabilitate half of the buildings owned by the city Land Reutilization Authority, which maintains thousands of vacant and blighted properties around the city. Critics have suggested Spencer’s plans focus too heavily on the needs of wealthier residents and existing homeowners and not enough on renters.

“I think the money tells us where priorities lie more than anything else,” Kennard Williams, of Action St. Louis, told The Appeal. “And in this time, when we’re in a crisis facing massive numbers of evictions in areas all across the city, which are affecting disproportionately Black and brown families—and more particularly a lot of Black women get affected the most by this—it’s very telling to see where somebody’s political priorities are.”

Seattle’s City Council Gives Poor Residents Right to Eviction Attorneys

The city joins the national trend of guaranteeing counsel in eviction court, which data shows can save people’s homes.

Councilmember Kshama Sawant

Seattle’s City Council Gives Poor Residents Right to Eviction Attorneys

The city joins the national trend of guaranteeing counsel in eviction court, which data shows can save people’s homes.

Today, the Seattle City Council voted unanimously to guarantee all indigent city residents the right to an attorney during eviction proceedings—a move that could drastically help keep people in their homes.

“Every eviction is an act of violence,” Councilmember Kshama Sawant, the bill’s sponsor, said during the meeting today. She added: “Every eviction adds to our community’s suffering.”

While Americans have the Constitutional right to counsel in criminal cases, the U.S. Supreme Court has repeatedly ruled—in both 1981 and 2011—that Americans do not have the same rights in civil court. This means that, in a significant number of cases around the country, tenants who can neither afford to pay rent nor an attorney often don’t know how to properly exercise their rights or fight against potentially unlawful evictions in court.

“The cases are not simple,” John Pollock, the coordinator of the National Coalition for a Civil Right to Counsel, told The Appeal last month. “The tenant may have paid the rent and the landlord may be saying they didn’t. … If the tenant didn’t pay the rent, they may have defenses as to why they didn’t pay.”

Seattle is already experiencing a high level of homelessness. A recent report by the Department of Housing and Urban Development ranks Seattle as having the third highest homeless population among major cities. But according to Eviction Lab, evictions can have severe consequences for people besides removing them from their homes. Those who are evicted often lose their belongings and their jobs, are subsequently forced into even worse housing situations, and are more likely to develop depression or other mental illness as a result.

“The evidence strongly indicates that eviction is not just a condition of poverty, it is a cause of it,” Eviction Lab writes.

Seattle follows New York City; Newark, New Jersey; Boulder, Colorado; Baltimore, Cleveland, Philadelphia, and San Francisco in making such a move. Data already shows that some of those programs have had a significant positive impact for people facing eviction. New York City Mayor Bill de Blasio, for example, signed his city’s right-to-counsel bill in 2017, and from July 1, 2019, through June 30, 2020, 86 percent of households with attorneys facing eviction were allowed to stay in their homes. (New York City’s legislation is currently being phased in over time.) San Francisco’s right-to-counsel bill passed in 2018; the following year, new eviction filings dropped by 10 percent and 67 percent of households with attorneys successfully fought off their evictions.

Seattle currently contracts with The Housing Justice Project to provide legal representation for tenants facing eviction. The bill that passed today says that “To make the right to counsel effective long-term, the City will need to commit ongoing funding to attorneys equipped to represent tenants.” Earlier this month, the Seattle Times reported that, in 2019, 52 percent of people with attorneys in Seattle eviction court did not lose their homes—but only 8 percent of people without attorneys successfully fought their evictions. During the meeting, Sawant said that more than 1,200 evictions had been filed in Seattle before the pandemic began, and more than 300 have been filed during the pandemic despite the ongoing moratorium.

The measure was originally written to award the right to counsel to all people facing an eviction, regardless of their income levels. But council members voted 8-1 today to amend the bill to guarantee attorneys only to people deemed indigent. Some members worried that guaranteeing the right to all residents would cost the city too much money.

The bill, however, does not state what income level qualifies someone as “indigent.” Councilmember Lisa Herbold claimed that if “just one person” who can afford an attorney uses a free city attorney instead, it could somehow “bring down” the entire program. Sawant, the only councilmember to vote against the amendment, disagreed.

The amendment, Sawant said, amounts to “asking people to jump through some sort of hoop to qualify.” She added, “People should have universal rights.”

New York City Considers A Bold Idea To Keep People From Being Pushed Out Of Their Homes

Activists are calling for a number of new policies to expand the reach of community land trusts.

Photo by Andrew Lichtenstein/Corbis via Getty Images

New York City Considers A Bold Idea To Keep People From Being Pushed Out Of Their Homes

Activists are calling for a number of new policies to expand the reach of community land trusts.

Across New York State, millions of tenants are at risk of eviction and property values are falling. A recent analysis found that New York City renters in neighborhoods hit hardest  by COVID-19—largely Black and Latinx communities—face nearly four times the number of eviction cases as less hard-hit areas. Local housing justice advocates fear a repeat of the 2008 housing crisis, when properties fell into distress and investors bought up 100,000 rental units across New York City, which, advocates say, led to displacement and worsened living conditions for many tenants.

Against this backdrop, advocates and some New York City councilmembers are calling for a bold possible solution: supporting efforts to turn the land that buildings sit on over to residents, and create more social housing—housing as a social good instead of as an investment vehicle.

“The pandemic is likely to exacerbate the predatory real estate activity as private financial actors look to take advantage of the real estate down cycle and residents’ increased economic vulnerability,” Debra Ack, a board member of Brooklyn’s new East New York Community Land Trust, said at a City Council hearing in January. “We need the City Council to take bold action to create this real social housing in New York City, and that means prioritizing [community land trusts] when it comes to land disposition.”

Typically, a property owner owns both the land and the buildings that sit on it; a community land trust (CLT) separates the two. The CLT, a nonprofit organization, maintains permanent ownership of the land and enters into long-term ground leases with building owners. Many CLTs are governed by a board that includes residents of the buildings, people who live in the surrounding neighborhood, and other stakeholders such as elected officials, funders, or non-profit leaders. This arrangement gives the CLT, not developers, the power to ensure permanent affordability and to say what the land is used for, and ensures local control while also balancing the interests of multiple stakeholders. CLTs typically obtain property with government funds, foundation grants, or private donations, or by forming agreements with local governments to take over vacant land or distressed buildings.

In recent years, community groups in New York City have formed over a dozen new CLTs, but most of these have yet to acquire land. Advocates are calling for a range of government policies that would more rapidly steer properties owned by the city and private entities into CLT control.

CLTs have been around since the 1960s, but the model has been growing in popularity in recent years: Between 2005 and 2020, the number of community land trusts in the country grew from 112 to 277, though many new ones remain small because of limited funding. As reported by Jacobin, an increasing number of progressive lawmakers across the nation are questioning the country’s prevailing method of building housing for poor and middle class families, which entails giving tax incentives to for-profit developers. Polls show that, just as the majority of Americans favor a “public option” for health insurance, they also favor a “public option” for housing.

“We feel like there’s a moment where there’s more recognition than ever of the need to pursue really bold strategies like community land trusts that get at the root causes of neighborhood inequality and housing insecurity,” says Deyanira Del Rio, co-director of New Economy Project and a board member of the New York City Community Land Initiative, an alliance of groups committed to advancing CLTs and housing justice.

The City Council has already taken steps to support the city’s growing CLT movement, including allocating funds  for the past two years for CLT capacity building, community organizing, and legal and technical assistance.

Mayor Bill de Blasio’s administration has funneled grant funds to a CLT capacity building initiative,   appointed a director of CLT initiatives to the city’s housing agency, and released a call for information about different types of  shared equity models,  among other efforts. In February 2020, the administration also committed to “include enough City owned land to gain over 3,000 units of community owned or shared equity housing.” According to city officials, projects including roughly 1,000 units have closed or are in a predevelopment stage, and more projects are set to close in coming years. (One advocate who met with the city’s Department of Housing Preservation told me that the city’s numbers include the existing CLT units that the city is helping to preserve.)

“New York City is deeply invested in creating pathways for nonprofits, MWBEs [minority and women-owned businesses] and various mission-driven groups, like CLTs, to acquire and build affordable housing. Their partnerships are an ever-expanding part of the City’s affordable housing pipeline,” Jeremy House, a representative for the city’s Department of Housing Preservation and Development, wrote in an email.

It remains unclear, however, exactly how quickly the city will complete these potential projects, and advocates say they will continue to pressure the city to meet and exceed the 3,000 unit target, to prioritize CLTs for subsidy that reaches the lowest incomes, for funds to support land acquisition, and to transfer public land to CLTs for both housing and non-housing purposes.

A number of mayoral candidates are already making CLTs a part of their campaign platforms, and advocates hope that the new City Council members, who will be elected in November, will make CLTs a significant part of a pandemic recovery plan. Alongside this, advocates are pushing for a range of bills they believe will facilitate community control of land.

First, advocates want a revamp of the city’s municipal tax debt collection system. Under current policy, the city sells property owners’ municipal tax debts to investors, who then tax indebted owners at interest rates of up to 18 percent. Advocates say the policy exacerbates gentrification and the racial wealth gap by pushing low-income Black and Latinx homeowners into foreclosure or into selling to house flippers.

Under a possible reform outlined by the New York City Community Land Initiative, the city would waive those debts if a homeowner sells their land to a CLT. Homeowners would have to abide by the CLT’s affordability rules, but they would remain homeowners and would not be displaced. After significant advocacy, the City Council passed a bill in January that will renew the existing policy for only one year and also launch a task force to consider future reforms, including the possibility of transferring delinquent properties to community land trusts.

Councilmember Brad Lander of Brooklyn has also proposed a bill to create a land bank—an entity that would acquire, hold, and transfer property to facilitate the development and preservation of affordable housing. Lander, who is running for city comptroller, says on his campaign website that the land bank could help facilitate the transfer of tax-delinquent buildings to CLTs, and it could also allow the city to acquire other distressed properties, like hotels shuttering as a result of the pandemic, and transfer them to CLTs and other nonprofits before predatory investors scoop them up.

Another related bill would require the city to give priority to reputable nonprofits that are dedicated to permanent affordability when it seeks to develop its own land with affordable housing. Advocates are generally supportive of these two bills and hope these efforts can be expanded to include the transfer of property to CLTs for non-housing purposes.

The CLT movement is also calling for the passage of the Community Opportunity to Purchase Act (COPA), which would require landlords to inform the city, as well as a list of nonprofits, CLTs, and other qualified mission-driven groups, when they are selling residential buildings. Those groups would have about four months to offer a buying price, and although the landlord would still be able to refuse the offer and seek a higher bid, the nonprofits would be given the opportunity to match new offers. Advocates are also pushing for the passage of the statewide legislation Tenant Opportunity to Purchase Act (TOPA), which would give building tenants a similar right to make a first offer. Similar legislation is already in effect in San Francisco and in Washington, D.C., and several cities are considering adopting TOPA-like bills. New York City advocates are also calling for boosted funding to help nonprofits purchase and rehabilitate buildings, as well as for $1.51 million from the City Council discretionary fund this year to help CLTs organize, educate community members, and obtain legal and technical support.

Advocates say these efforts are part of a larger movement for “housing justice, economic democracy and racial equity,” which they hope to be adopted in tandem with cuts to the NYPD budget, rent and mortgage cancellation for the duration of the pandemic, relief funds for nonprofit housing and small landlords, and more. Yet for-profit real estate actors have criticized some of the bills that give priority to community land trusts and nonprofits.

“Private developers are better equipped to navigate the myriad of complexities that arise in renovating tenanted properties, and we fail to see why New York City would want to limit the pool of qualified developers who are able to assist in preserving and increasing affordable housing throughout New York City,” the Real Estate Board of New York wrote in a recent testimony against the land bank bill. The board also called COPA “an over reach into private property transactions,” among other criticisms.

Photo illustration by Elizabeth Brown. Credit: East New York Community Land Trust.

While CLTs are often primarily focused on creating permanently affordable homeownership opportunities, they are also used to fulfill other local needs, including rental housing, green space, or community and commercial facilities.

When Raymond Figueroa Reyes, an organizer in the South Bronx, learned that his borough had the highest COVID-19 morbidity rate in New York State, he knew this didn’t happen by accident. It was, he said, the result of “a cumulative history of land-use decision-making over decades that has resulted in generational, disproportionate environmental health disparities.” Prior to the pandemic, the Melrose, Mott Haven and Port Morris sections of the South Bronx, which are 97 percent Black and Latinx, had some of New York City’s worst health outcomes. The rate of diabetes here is almost twice that of the city at large; emergency hospital visits related to childhood asthma are nearly three times as common.

Organizers have long strived to address the hazardous environment of the South Bronx—the industrial facilities and the tangled maze of transportation arteries. They’ve fought against policy decisions that they argued would worsen pollution and block access to the waterfront, and they’ve organized many community gardens. In recent years, with rents rising and real estate developers flocking to the area, many organizers have also been concerned about gentrification, which threatens to displace residents, including those who have worked hard to improve the neighborhood.

“For us, community land trusts are a very visceral response to something that is a function of structural racism playing itself out as we speak,” says Reyes, who is a board member of the South Bronx’s Mott Haven-Port Morris Community Land Stewards, which is seeking to convert an abandoned hospital facility into a center for health, education, and the arts. “If we controlled this land, if we owned this land, we could begin to chart a new way by which the community is developed, the built environment is configured. We could chart a new destiny for our community.”

Now the question, in New York and elsewhere, is whether this growing call for community-controlled development can overcome the still widespread belief that the private sector does things best.

After the economic downturn of the 1970s and 1980s, when the city grappled with widespread property abandonment, activists in Lower Manhattan took hold of foreclosed properties and later established Cooper Square CLT, the city’s most established community land trust, which today still stewards more than 320 permanently affordable homes as well as storefronts for local small businesses. These days, however, much of the city’s land has been privatized. In addition, nonprofit development organizations say they’ve been sidelined by recent mayoral administrations in favor of partnerships with for-profit affordable housing development companies.

“There’s going to be resistance to these ideas—I don’t think there’s really any question to that,” says Barika Williams, executive director of the Association for Neighborhood and Housing Development. “But I also think that we cannot let it stop us from working to transform what it means for communities of color to own, and to be in the driver’s seat of our community’s development and destiny.”

Houston’s Drug Busts Have a Clear Target: People of Color

Two years’ worth of data shows how disproportionately the city’s police and prosecutors target certain neighborhoods.

Photo by Andrew Caballero-Reynolds/Getty Images

Houston’s Drug Busts Have a Clear Target: People of Color

Two years’ worth of data shows how disproportionately the city’s police and prosecutors target certain neighborhoods.

On Feb. 8, the Houston Police Department (HPD) arrested a homeless man, 57-year-old Israel Iglesias, for allegedly handing an undercover cop 0.6 grams of methamphetamine. Iglesias died the next day in the county jail. Results of his autopsy remain pending.

Iglesias’s death has raised obvious questions about what priorities the police  and the Harris County prosecutor’s office have when it comes to solving or preventing crimes: Why, critics have asked, did police find it necessary to execute an undercover drug sting in the middle of the COVID-19 pandemic? Why did they choose to target homeless residents? And why did District Attorney Kim Ogg’s office believe this was a case worth charging?

Data from the Texas Criminal Justice Coalition, a civil rights nonprofit, helps shed some light. According to the organization’s record of criminal case dispositions between Jan. 29, 2019, and Jan. 28, 2021, the Harris County district attorney’s office charged at least 270 people with “manufacture or delivery of less than one gram” of a “Penalty Group 1” drug—which in Texas includes cocaine, heroin, methamphetamine, and ketamine. Of that number, 218, or more than 80 percent, were Black people. Only 20 percent of residents in Harris County identify as Black. (The data set doesn’t include cases that are pending in the court or those that may have been sent to pre-filing diversion programs. Nor does the data categorize race beyond Black or white, suggesting the percentage of non-Hispanic white defendants is even lower than the data states.) Of the 270 people charged, 44 were listed as either homeless or having no set address.

The data shows that Ogg’s office did temporarily stop filing Penalty Group 1 charges between April 30 and Oct. 15, 2020. Those charges have since resumed. Between January 2019 and 2021, Ogg’s office charged thousands of people for simple possession of less than 1 gram of a Group 1 controlled substance.

Of the 270 cases filed, 245 stemmed from Houston Police Department arrests. The other cases originate with the Harris County Sheriff’s Office, the Texas Department of Public Safety, and other offices. Charges for other, more serious tiers of drug delivery were also racially skewed, according to the Texas Criminal Justice Coalition’s data. Neither Ogg’s office nor the police department immediately responded to requests for comment.

A visualization of the available home addresses of those charged for alleged delivery of Group 1 drugs in Houston shows that they were heavily concentrated in Black and Hispanic neighborhoods—especially downtown.

Jay Jenkins, the Harris County project attorney for the Texas Criminal Justice Coalition, told The Appeal that the data shows Houston Police and Harris County prosecutors need to take a serious look at the communities they choose to target.

“In an overwhelming majority of cases, manufacturers or dealers of drugs are arrested based on possessing a large quantity of that drug—but the manufacture or delivery of small amounts of drugs requires either police surveillance or an actual police operation of an undercover buy,” Jenkins said. “So when you look at how the patterns shake out for these charges, you see they are overwhelmingly African American and they are overwhelmingly coming from African American ZIP codes, which tells us a lot about how the city of Houston is being policed and where officers are being sent.”

Low-level drug stings are sometimes referred to as “police created” crimes. In September, Katie Tinto, a professor at University of California, Irvine, wrote in USA Today that American police often “create elaborate schemes using significant public resources to tempt individuals who posed no public safety threat prior to the operation. And these examples reveal another tactic in the undercover sting playbook: targeting the most vulnerable and ‘temptable’ people, like students with special needs, individuals experiencing homelessness, and those who are in desperate need of money.”

The data recorded by the Texas Criminal Justice Coalition begins on the day of a 2019 raid. On Jan. 29, Houston police raided a home at 7815 Harding St. after officers  Gerald Goines and Steven Bryant alleged that an informant had bought heroin from the couple who lived there—Dennis Tuttle, 59, and Rhogena Nicholas, 58. During the raid, officers killed Tuttle, Nicholas, and their dog, but did not recover any heroin. The families of the victims maintain that neither person ever sold drugs.

Goines, who signed the warrant for the raid later admitted that he’d lied and that there was no informant. Goines, Bryant, and four other officers were charged with crimes related to the raid.

Harris County prosecutors have since reviewed thousands of Goines and Bryant’s cases. In July, Houston police released an audit of the cases, revealing that there were errors and inconsistencies in many of Goines and Bryant’s cases. The report also issued recommendations for a revised standard operating procedure and more oversight for the narcotics division.

This month, Chief Art Acevedo announced that, after about five years, he will be leaving to lead the Miami Police Department. Miami Mayor Francis Suarez called him the “Tom Brady or Michael Jordan of police chiefs.” However, Acevedo’s record in Houston does not match the rhetoric. During a news conference the day after Acevedo announced his departure, he issued a dark prediction for Houston: “Get ready for 500 murders.”

Federal Funding Charts the Path for Local Eviction Right-To-Counsel Efforts

To all of the state lawmakers wondering how to fund legal representation for tenants facing evictions: follow the federal COVID-19 relief packages.

Federal Funding Charts the Path for Local Eviction Right-To-Counsel Efforts

To all of the state lawmakers wondering how to fund legal representation for tenants facing evictions: follow the federal COVID-19 relief packages.

Our country has been mired in a housing crisis for many years. In an ordinary year, there are at least 3.6 million eviction cases. Countless more tenants are illegally evicted through utility shutoffs, lockouts, and physical threats. And still more self-evict after receiving a landlord’s notice to vacate.

COVID-19 has exploded the crisis into a catastrophe, with as many as 40 million renters at risk of eviction at the peak of the pandemic. Even though the pandemic has begun to ease, 40 percent of the lowest income renters are currently reporting no or slight confidence in ability to pay rent. The Government Accountability Office has reported that the loopholes and enforcement issues with the Centers for Disease Control and Prevention’s eviction moratorium have allowed many evictions to continue. Emergency rental assistance provided by Congress, while urgently needed, has still not reached many tenants at risk of eviction.

This crisis is not experienced equally by all Americans. The Eviction Lab has found that Black tenants in an average year face eviction twice as often as white tenants, and a Consumer Financial Protection Bureau report revealed that Black renters have been twice as likely as white tenants to report being behind on rent during the pandemic.

Tenants facing eviction stand to lose virtually everything that matters. Evicted tenants who become homeless often find themselves arrested or in an emergency room. Whether homeless or not, evicted tenants who do not quickly find another home may lose their belongings, their children (due to not having a stable residence), and their jobs or access to their children’s schools (if forced to relocate out of town). And an eviction is often called a “scarlet E” because it makes finding new housing, especially safe and habitable housing, incredibly difficult.

There is a solution: the overwhelming evidence demonstrates that legal representation for tenants addresses this crisis by significantly improving eviction outcomes even where the majority of cases involve nonpayment of rent. The data is especially stark in cities that have enacted a right to counsel for tenants. In New York City, 86 percent of tenants with counsel remain in their homes; in San Francisco it is 67 percent. In Cleveland, 93 percent of represented tenants who sought to avoid an eviction or involuntary move succeeded. Yet, despite the dizzying array of consequences for tenants, fewer than 10 percent of tenants on average have access to counsel, compared to 90 percent of landlords.

Now, after years of advocacy by tenant organizers and attorneys, state and local lawmakers are increasingly providing a right to counsel for tenants facing evictions. Seven cities have already enacted such a right and eight states are considering legislation this year.

But some lawmakers still get stuck on cost. Given the need to protect the array of basic human needs at stake, ensure fundamental fairness, and advance race equity, cost considerations should not be paramount. Numerous studies have found that a right to counsel will save city and state governments far more than it costs them. Still, questions persist about how to pay for legal representation at the outset.

To date, the answer from cities that have enacted a right to counsel has mostly been general revenue, although some jurisdictions have looked to generate new funding streams: Boulder, Colorado, added a $75 landlord excise tax on rental units, while pending bills in several states would raise their unusually low eviction filing fees closer to national standards.

The federal response to COVID-19 provides states and localities with a broad array of new federal funding that can contribute to right-to-counsel laws for multiple years, long enough for the right to become institutionalized and easier to support financially in the future.

First, the CARES Act, signed into law on March 27, 2020, established three relevant funding pots: the $150 billion Coronavirus Relief Fund; $5 billion in Community Development Block Grants, which must be spent within a six-year “period of performance”; and $4 billion in Emergency Solutions Grants, which are allocated to cities to help people experiencing or at risk of experiencing homelessness and must be spent by September 2022. To date, over two dozen cities and states have funded tenant representation or right-to-counsel efforts using one or more of these CARES Act pots, with amounts ranging from $50,000 to over $8 million. And many jurisdictions still have unspent CARES Act dollars.

Second, the 2021 Consolidated Appropriations Act, which became effective on Dec. 27, 2020, provided $25 billion in Emergency Rental Assistance Program (ERAP) funds for households impacted by COVID-19, giving authority to the Treasury Department to disburse the funds to state and local governments. This first tranche of ERAP money originally had a spending deadline of December 2021, but it was extended to Sept. 30, 2022. The American Rescue Plan Act added another $21.5 billion to the ERAP pot, which can be spent at least until Sept. 30, 2025. Both bills allow up to 10 percent of the funds to be spent on “housing stability services,” and Treasury Department guidance defines this to include services that “enable eligible households to maintain or obtain housing … [such as] attorney’s fees related to eviction proceedings.” No state received less than $200 million in the first round or less than $154 million in the second round. And in many states, the amount provided far exceeds the state’s projected rent debt. But even in states that received a proportionate amount, legal representation can help tenants apply for rent assistance and delay any evictions that landlords may seek in the interim.

Finally, the American Rescue Plan created a $350 billion Fiscal Recovery Fund (FRF) to help state and local governments redress economic harms caused by COVID-19 through Dec. 31, 2024. The House Committee on Oversight and Reform has already posted approximate funding estimates for states, cities, counties, and tribal governments. The allowable uses of these funds are intentionally broad, and authorize jurisdictions to respond to COVID-19 and address its economic effects by transferring funds to nonprofit organizations, which could include legal aid organizations. Some jurisdictions are already planning to use this FRF money for right to counsel.

Lawmakers in many jurisdictions support providing a right to counsel but hesitate to introduce legislation without knowing how to fund it. The federal government has provided some viable answers, and the time is now to enact such a right in order to protect families, address the disproportionate impact on communities of color, and bring housing stability to millions in the future.

John Pollock is a staff attorney for the Public Justice Center who has served since 2009 as the coordinator of the National Coalition for a Civil Right to Counsel.

Anchorage’s Anti-Homeless Movement May Elect the City’s Next Mayor

One of the leading candidates for Anchorage’s mayoral race is backed by a far-right Facebook group tied to the U.S. Capitol riot.

Photo illustration by Elizabeth Brown. Photo by Mikhail Siskoff/

Anchorage’s Anti-Homeless Movement May Elect the City’s Next Mayor

One of the leading candidates for Anchorage’s mayoral race is backed by a far-right Facebook group tied to the U.S. Capitol riot.

At the same time that Anchorage’s fringe right-wing groups have been organizing, the city’s Democratic Party has been falling apart.

From 2015 until 2020, Democrat Ethan Berkowitz served as the city’s mayor. When the COVID-19 pandemic hit, Berkowitz’s office issued a number of emergency orders, including mask mandates and business closures, which had become standard across the country. And as with many other cities, the pandemic presented a significant challenge for Anchorage’s relatively large population of unhoused people. In response, Berkowitz and the city assembly laid out plans to help.

On March 21, 2020, the city began using its sports arena and other large venues as temporary shelters. Over the summer, the city proposed using $22.5 million in federal CARES Act funds to buy four properties to house homeless people. Public health advocates and progressives applauded the decisions, but for a set of right-wing Anchorage residents, the decisions amounted to a rallying cry.

In response, a Facebook group called Save Anchorage was created to oppose the COVID-19 related business shutdowns, mask mandates, and homeless shelter expansions. The group held a large protest outside the city assembly on Aug. 25; some protesters arrived carrying firearms. Numerous posts in the group compared Berkowitz to Hitler and threatened violence against city officials. According to the FBI, one Save Anchorage member named Aaron James Mileur stormed the U.S Capitol on Jan. 6 and posted videos from inside the building in the Facebook group. At least 8,000 people have joined the group, which has since been made private. But one person has ensured that its message stays in the public discourse.

During the Aug. 25 event, group member Dave Bronson announced his candidacy for mayor. He was introduced at the protest by Assemblymember Jamie Allard, who herself got in trouble in January after defending people photographed driving through Anchorage with the license plates “FUHRER” and “3REICH” by saying the plates had no offensive connotation. During the protest, Bronson complained that the Ben Boeke arena, a downtown ice skating rink, had been converted to a temporary homeless shelter. He held a sign that said, “Give us back our rinks!”

“I promise you this, as hard as Mayor Berkowitz has worked to buy those four properties, I will work twice as hard to sell them,” Bronson said during the protest.

Bronson’s platform is based on removing the city’s COVID-19 related restrictions, heavily policing the city’s homeless community, and even ratcheting up drug arrests across Anchorage to crack down on people who sleep on city streets. He has made disparaging comments about Muslims, expressed support for anti-LGBTQ pastors and organizations, and posted images of homeless encampments while promising to clear “vagrants” away from Anchorage’s shopping districts.

“Those who choose to live a homeless lifestyle will not be allowed to ruin our businesses and neighborhoods,” Bronson’s website states. “They will be removed from our parks, public streets, and our business and residential areas.”

Bronson’s campaign did not respond to requests for comment. But his fringe candidacy represents a trend in both Anchorage and local politics in general: He’s raised at least $224,000—enough to make him the third-highest funded candidate in the April 6 election. He trails only Democrat Forrest Dunbar and fellow Republican Mike Robbins, who supported former President Donald Trump. (Robbins, a local radio and advertising businessperson who has donated heavily to his own campaign, previously oversaw both a beauty pageant and a dating website in Romania called Romanian American Matrimonial Introduction Services. Critics have pointed out that Robbins has a history of lawsuits filed against his company and that, during financial troubles he experienced during the Great Recession, the IRS filed at least 14 liens against him.)

In a Sept. 28 video posted on Facebook, Bronson called for an end to COVID-19 related emergency orders throughout the city.

Mayor Berkowitz “is spending money, CARES Act money, COVID relief funds, to do things such as buying homeless shelters when he should be using that money to help the small businesses,” Bronson said. “He is using these emergency orders to attack. This needs to end. These emergency orders need to end, and end now.”

Bronson, a 62-year-old former commercial and Air Force pilot, has become a top candidate for mayor. In a year that upended many lives and defied many  conventional beliefs, his political rise wasn’t the only surprise in Anchorage.

In October, when he was still mayor, Berkowitz received a voicemail from Maria Athens, a local TV anchor. In the message, she said she’d found out that he had been posting nude photographs on a website frequented by underage children. Berkowitz denies ever doing so, and the person said to be the source for the allegations later told the Anchorage Daily News that Athens had “completely fabricated” her claims.

“You either turn yourself in, kill yourself, or do what you need to do,” Athens stated in the voicemail. “I will personally kill you and [Berkowitz’s wife] Mara Kimmel my goddamn self, you Jewish piece of living fucking shit.” She continued to hurl insults at him.

“I can’t believe I am such a good person and thought I loved you,” Athens continued. “I fucking hate—I don’t even hate you. I will pray for your Zionist fucking ass, you piece of shit loser. And I’m putting this on the news tonight. Bye! Have a great Friday, you motherfucker!”

Athens then recorded a teaser for the news story she was preparing to run on Berkowitz and posted the clip on Facebook. In response, the mayor sent a denial to the TV station, called the allegations defamatory, and suggested that Athens was mentally unwell. Athens then posted a photo that she alleged was of Berkowitz’s nude backside. But the news package never ran. According to charging paperwork later posted online, Athens was arrested that day after allegedly assaulting her significant other, who was also the station manager at her TV station. She has pleaded not guilty to charges that include assault, criminal mischief, and disorderly conduct. Her case remains open.

The FBI and Anchorage Police Department ultimately found no evidence that Berkowitz had been communicating inappropriately with children. But Berkowitz, who is married, resigned anyway after admitting that years ago he’d engaged in what he called a “consensual inappropriate messaging relationship” with Athens.

City Assemblymember Austin Quinn-Davidson, a political independent and self-described progressive, was named Anchorage’s acting mayor. (She’s the city’s first female and first LGBTQ mayor.) In November, she signed an emergency order mandating mask-wearing in public, a move that has further enraged Anchorage’s militant fringe elements. Quinn-Davidson is not running for re-election as mayor. So far, her fellow assemblymember, Dunbar, is the leading candidate.

In an interview with The Appeal, Dunbar said he believes that the best way to fight homelessness is to invest in behavioral, drug, and mental health counseling while also ensuring that the city has enough shelter beds to house people who need help. Dunbar said he tends to favor issuing vouchers for homeless residents to find rooms to stay in, rather than buying entire properties to house them. During his tenure on the assembly, Dunbar has helped the city hire 100 more police officers. But he noted that he also co-sponsored the city’s pilot mental health first-responder program, which will dispatch trained mental health professionals to help people in crisis, rather than police officers. Dunbar told The Appeal he’d like to expand the program as mayor.

“This takes 7,000 calls out of the APD [Anchorage Police Department] stack, so they can focus on things like domestic violence or sexual violence, which unforunately occur at very high rates in Anchorage,” he said.

All the while, Save Anchorage members have helped turn Bronson into a viable candidate, and Dunbar said he’s worried the group is loud enough to potentially push Bronson into a runoff race. There is at least one sign that may be true: In September, after Bronson and Save Anchorage disrupted city assembly meetings, the city caved and reopened the Ben Boeke arena for skating.

Why Crime Victims Joined the Fight for Parole Justice in New York

Survivors’ needs and opinions vary—and many have not found justice when they turn to the criminal legal system.

Photo by Erik McGregor/Getty Images

Why Crime Victims Joined the Fight for Parole Justice in New York

Survivors’ needs and opinions vary—and many have not found justice when they turn to the criminal legal system.

On Feb. 22, the New York Senate Committee on Crime Victims, Crime and Correction passed the Fair and Timely Parole Act, which would require that the parole board grant release to an applicant unless there is a “a current and unreasonable risk” that the person will violate the law if released. It’s the first time since its introduction in May 2017 that the bill has gotten this far in the legislative process—and that happened in part because crime victims and incarcerated people joined forces to push for it.

The next day, Stanley Bellamy heard the news at Green Haven Correctional Facility, in Beekman, New York. “I felt ecstatic,” he told The Appeal. Other men at the prison asked what it meant, so Bellamy spent the day explaining the bill and the legislative process to his peers.

A couple weeks later, on March 9, the Assembly’s corrections committee passed its version of the bill, sending it to the codes committee. The Senate version is awaiting a full Senate vote.

Although there isn’t yet a date for either vote, the progress that the bill has made is the first success of the People’s Campaign for Parole Justice, an advocacy group that launched in January. The People’s Campaign emerged from a year of coalition building among criminal justice advocates, current and formerly incarcerated people, crime victims, and victim advocacy groups. Its goals include the passage of the Fair and Timely Parole Act as well as the Elder Parole Act, which would require a parole interview for people 55 and older who have served at least 15 years of their sentences. Bellamy, who has been in prison since 1987, is a core member of the People’s Campaign, and at age 58, he also fits the category of “elder” prisoners.

The People’s Campaign is both a response to the status quo of a faulty, racially biased parole process and to the emergency of the COVID-19 pandemic. In New York, over 6,000 state prisoners have tested positive for the disease and 34 have died. Governor Andrew Cuomo recently announced plans to close three prisons this year; the men within will be transferred to other prisons, which will make social distancing even less possible. In 2020, New York’s parole board held 2,000 fewer parole hearings than the prior year, though the proportion of releases granted remained at around 46 percent of applicants. So far during the pandemic, Cuomo has granted only 12 commutations.

To many, crime victims and people incarcerated for violent crimes may seem like unlikely partners. But Luz Marquez, an advocate who works with abuse survivors and a member of the People’s Campaign, argues that these groups are precisely who ought to be involved in crafting policies. “We’re actually in the nucleus,” Marquez said. “What people don’t understand about crime is that things like child sexual abuse and sexual assault can lead someone into violence.”

For example, Marquez, who is also a survivor of childhood sexual abuse, noted that the mainstream movement to end violence against women is often used to justify denying people parole or other forms of release because of the violence they committed decades earlier. “What happened to me should not be used as an excuse for continuing to increase incarceration in the state of New York and across the country,” Marquez said.

What happened to me should not be used as an excuse for continuing to increase incarceration in the state of New York and across the country.Luz Marquez, Advocate, The People's Campaign

In 1987, Bellamy was sentenced to 62 and a half years to life after shooting two men, one fatally. In 1991, four years into his sentence, Bellamy was finally able to acknowledge what he’d done, recognize the devastation he caused for his victim’s family, and say the victim’s name. Facing a long sentence, Bellamy also vowed to use his time in prison to help other incarcerated people reflect on and take responsibility for the harms that they caused.

Jose Saldana, who was sentenced to 25 years to life in 1980, was also dedicated to this end. Saldana and Bellamy met in Sullivan Correctional Facility and worked together to develop and facilitate programs that challenged men to change both their values and behaviors, such as the Community Restorative Project and A Challenge to Change.

After Saldana was released on parole in 2018, he joined the Release Aging People in Prison (RAPP) campaign, first as a community organizer and then as its executive director, advocating for those he left behind. RAPP has been one of the main advocates for the Fair and Timely Parole bill and the Elder Parole Act, bringing together formerly and currently incarcerated people as well as their family members to lobby their legislators. Saldana invited Bellamy to join RAPP’s efforts, and he quickly became one of the group’s incarcerated leaders, relaying information about legislative and advocacy efforts to the men inside.

RAPP spent much of 2019 advocating for both bills. That year, the Fair and Timely Parole Act passed the Assembly’s corrections committee and the elder parole bill was passed by both Senate and Assembly committees. But both bills stalled in the next committees; legislators, reeling from the blowback from the 2019 bail reform law, chose not to consider them.

Saldana and other RAPP organizers realized that, as a small organization, they needed to build people power to pass these bills. They reached out to other organizations and advocates—including victim and survivor advocacy groups—to build a larger coalition to support parole justice. Saldana’s experience with developing programs to help incarcerated men recognize, take responsibility, and try to make amends for the harm they’ve caused others has prepared him for the task of working with survivors of violent crimes and advocacy groups for victims’ rights. The organizing efforts behind the People’s Campaign represent a striking example of disparate interest groups coming together for a common cause.

One of those organizations that joined the People’s Campaign is the Crime Victims’ Treatment Center, which works with New Yorkers who have survived violence, including violence that occurred in prison. Rachel Herzog is the coordinator of the center’s Prison Rape Elimination Act program, which provides services for sexual abuse victims in the state’s prisons. “There’s a narrative propagated that criminal justice reform is always in opposition to the needs of survivors of violence,” Herzog said.  But in her work, she has found that survivors’ needs and opinions vary—and that many have not had their needs met when they turn to the criminal legal system.

Luz Marquez’s experience shows that crime victims are not a monolithic group only interested in revenge. As a child, Marquez felt hurt and betrayed when her older brother began sexually abusing her. But, not wanting him arrested or imprisoned, she did not report his actions to either her family or the legal system. “I never regretted not going to the criminal justice system,” she told The Appeal. It was the same system that she saw devastating the people in her Harlem community.

As an adult, Marquez became involved in organizing to end violence against women and, from years of organizing, knows that she’s not the only survivor who did not turn to the legal system to protect her from abuse. But, in a movement dominated by white women from more affluent communities, she has seen firsthand that voices like hers are often marginalized in mainstream anti-violence discussions. Women of color are rarely the faces of the anti-rape and anti-abuse movements; many become targets themselves of the criminal legal system.

“I want to use my voice to end further harm and abuse,” she said.  She also identifies nearly lifelong sentences, such as Bellamy’s, as another form of violence and harm and wants to end the perception that survivors’ safety hinges on imprisoning people until they die.

Herzog and the Crime Victims’ Treatment Center also see parole as a potential accountability tool. The adversarial nature of the court process dissuades defendants from admitting, let alone taking responsibility for, the violence they inflicted. “Parole is one of the few places in our criminal justice system where that happens,” she said.

It is also an opportunity to shift funding from lifelong incarceration, which becomes more expensive as people age. During campaign meetings, Herzog and others from the treatment center share their experiences with victim advocacy—and victims’ needs, including financial and healing needs, that remain unmet by the criminal legal process, leading to discussions about how money could be diverted from incarceration to creating more services and resources for survivors.

“Many people advocating against criminal justice reform are claiming to speak for survivors,” said Herzog. The treatment center never claims to speak for all survivors, but in representing and raising the issues encountered through decades of work, the center’s advocates are “trying to complicate the narrative” that normally pits the two groups against each other.

That effort was evident during the People’s Campaign’s virtual rally in January, when Marquez spoke about being a survivor of child sexual abuse. Commenting in the Zoom chat box, others disclosed that they too had survived sexual violence and they supported parole justice because they did not believe that lifelong sentences equated safety. That chorus has led Marquez to organize a virtual Survivors’ Town Hall to examine survivors’ roles in parole justice efforts.

In prison, Stanley Bellamy is encouraged that the Fair and Timely Act has come this far. And he’s still actively working toward policy changes and to help his peers. Through weekly calls with advocates, he learns the latest news and then shares that information with the men around him, urging them to get their families involved. “I’m the kiosk,” he explained. “I get off the phone and they come plug into me for information.”

Even if the Fair and Timely Act is signed into law, Bellamy won’t be eligible for parole for another 27 years unless the Elder Parole Act also passes. “In four months and 17 days, I will turn 59,” he reflected in late February. “We have to believe people can change.”

Virtually No One is Dangerous Enough to Justify Jail

A common sense cost-benefit analysis of pretrial detention.

Virtually No One is Dangerous Enough to Justify Jail

A common sense cost-benefit analysis of pretrial detention.

Every day, jails in the U.S. hold close to half a million people who are legally presumed innocent. When people who have been arrested can’t afford or are denied bail, they are locked in concrete cages that are sometimes littered with excrement, often subject to extreme heat or cold, always rife with disease and violence, and always steeped in humiliation, distress, and fear. In recent years, one-fifth of the incarcerated population hasn’t even been convicted of a crime.

The stated rationale for most pretrial detention is public safety. Current law authorizes detention (or unaffordable money bail) if the accused person presents a threat. Supreme Court doctrine suggests that the threat must be grave enough to outweigh the defendant’s right to liberty. Yet there has been no serious attempt to figure out how “risky” a person must be for detention to be justified on these grounds.

We conducted a survey study to help answer that question. And we learned that, if you ask people to consider the harms that both crime and jail inflict as if they themselves could experience either one, their answer is clear: Jail is rarely justified as a means of harm prevention.

To explain the study, let’s return to the legal justification for pretrial detention (or unaffordable bail). Once upon a time, flight risk was the principal concern in the pretrial phase. In today’s interconnected world, however, few people pose a true risk of flight. Nowadays, the primary justification for keeping accused people in jail is to prevent a future crime. Remember, though, that we are talking about people who have not been convicted. The government has no right to impose punishment before a conviction. It does not claim that pretrial detention is deserved. The legal rationale for detention is simply that its safety benefits outweigh the harm that it inflicts. The public good outweighs the individual cost.

So how dangerous must someone be for the benefit of detention to outweigh its costs? If we detain people who pose a 10 percent risk of committing a serious crime during the pretrial phase, we expect to avoid one serious crime for every 10 people we detain. Is it worth it? This question is extremely uncomfortable, but there is no getting around it.

The benefit of 10 detentions, in economics terms, is the “averted cost” of the crime that doesn’t happen. The primary cost of a crime is the harm it inflicts on the victim. On the other side of the balance, the primary cost of detention is the harm it inflicts on detainees. To figure out whether the averted cost of one serious crime outweighs the cost of 10 detentions, you have to compare the harms of crime victimization and incarceration.

If pretrial detention is justified when it produces a net social benefit, it should be exceedingly uncommon. Instead, the opposite is true.

The standard approach to this kind of cost-benefit problem is to quantify the relevant harms in monetary terms. But quantifying things in dollars can be distorting, because the meaning of a dollar depends on your financial status.

We took a different approach. We conducted a survey asking people to compare the harms of crime and incarceration directly, imagining themselves as both crime victim and jail detainee. We asked questions like, “If you had to choose between spending a month in jail or being the victim of a robbery, which would you choose?”

The results showed that people are incredibly averse to being incarcerated. Respondents deemed a single day in jail to be as bad as being the victim of a burglary; three days in jail to be as bad as a robbery; and a month in jail to be as bad as experiencing a serious (nonsexual) assault. These responses were not just uninformed speculation. Nearly a third of our sample reported that they or a loved one had been incarcerated. Another third reported that they or a loved one had been the victim of a crime. The median responses in each of those groups, as well as in the group that reported experience with both incarceration and being the victim of crime, were almost identical to the median responses overall.

If jail is as harmful as our respondents judged it to be, only a very high probability of averting serious crime can justify pretrial detention. On average, we would have to avert crimes as grave as burglary in order to justify jailing someone for a single day, avert crimes as grave as robbery in order to justify jailing them for three days, and avert crimes as grave as serious assault in order to justify jailing them for a month. It might be justified to jail people with a 50 percent likelihood of committing a serious assault within two weeks if we limited the pretrial detention to two weeks, because we would expect to prevent one serious assault for every two detentions—that is, for every month of detention.

The problem is that it is extremely hard to predict serious crime. Even our best predictive tools are nowhere near accurate enough to identify individuals who pose a 50 percent chance of committing a serious crime within two weeks. Validation data for one common risk assessment tool, for instance, shows that, among those classified as high-risk for violence, the expected rate of violent offending within one month is 2.5 percent. If we detain all members of this group, we expect to avert five violent crimes for every 200 monthlong detentions. According to our median survey respondent, that would impose harm 40 times greater than the averted harm of five assaults.

What the survey suggests is that pretrial detention is almost never justified on the cost-benefit rationale that current law and policy proclaim. Because incarceration inflicts profound harm and our powers of prediction are limited, the cost of detention generally outweighs its expected benefits. If pretrial detention is justified when it produces a net social benefit, it should be exceedingly uncommon. Instead, the opposite is true.

So far, the dialogue around bail reform has centered on process: Should we get rid of cash bail? Should we replace it with actuarial risk assessment? These debates are secondary; they focus on methods rather than standards. Eliminating monetary bail does not necessarily wind down detention rates if judges can simply order detention instead. Nor do risk assessment tools.

In the 1987 case United States v. Salerno, the Supreme Court wrote that preventive pretrial detention must be a “carefully limited exception” to the norm of liberty. To make it so, we will need laws that set a clear standard for detention (or bail that results in detention). The laws should stipulate when a person is dangerous enough to detain: What probability of what kind of harm over what timespan is sufficient to justify locking a person up for the public good? Even if a person does present a threat that justifies some restraint, detention is not justified in cost-benefit terms unless no less-restrictive intervention can adequately reduce the risk. In almost all cases, there should be methods of harm prevention that do not require total confinement—and that are more likely to have enduring positive effects than throwing people in jail. In addition to standards for detention, we will need accountability measures to ensure that the standards govern in practice.

For too long, we have allowed the pretrial system to inflict tremendous harm in the name of the public good. As is true throughout the criminal justice system, that harm has disproportionately befallen people who are Black, brown, and poor. There may be some cases—cases of acute danger—where pretrial detention is necessary and justified. But given the damage that jail itself inflicts, those cases should be few and far between.

Sandra Mayson is a visiting assistant professor of law at the University of Pennsylvania Carey School of Law and an assistant professor of law at the University of Georgia School of Law.

Megan Stevenson is an associate professor of law at University of Virginia School of Law.

During the Pandemic, Houston Cops Went Undercover and Arrested a Homeless Man Over 0.6 Grams of Meth

As Texas lifts its COVID-19 restrictions, the city’s jail remains overcrowded and its police and prosecutors continue to operate as normal.

Photo by Timothy A. Clary/AFP via Getty Images

During the Pandemic, Houston Cops Went Undercover and Arrested a Homeless Man Over 0.6 Grams of Meth

As Texas lifts its COVID-19 restrictions, the city’s jail remains overcrowded and its police and prosecutors continue to operate as normal.

Last year, according to documents obtained by The Appeal, the Houston Police Department received a tip that drugs were being traded in an encampment for unhoused people at the 700 block of Booth Street, near Moody Park. On Oct. 20, as COVID-19 cases were just beginning to surge around the nation to previously unseen levels, at least two officers took an undercover stroll through the encampment.

In charging paperwork, the officers said they observed a man, later identified as 57-year-old Israel Iglesias, sitting inside his own dwelling. They asked him where they might be able to find some methamphetamine. Iglesias said he could grab some from someone else in the encampment—so the cops gave him some money, and Iglesias walked off. He returned and, allegedly, handed the officers a baggie of 0.6 grams of methamphetamine.

“I then gave defendant Iglesias a tip (City of Houston buy money) for his services,” Officer S. Wakefield later wrote in a sworn statement. “We then left the location.”

It took more than three months for Houston law enforcement agents to charge Iglesias with a crime—felony delivery of a controlled substance. Iglesias was arrested on Feb. 8. Public defenders asked the judge to offer him a $1,500 bond. But, as Harris County District Attorney Kim Ogg’s office wrote, because of Iglesias’s previous arrest record, prosecutors demanded he be held without bond indefinitely. (A local judge ultimately disagreed with that request and granted Iglesias a $1,500 cash bail amount.)

Iglesias’s time in custody did not last long: He died the following day after suffering a “medical episode” in the jail’s intake unit. Documents state that Iglesias likely lived with a mental illness. (The Houston Chronicle first reported on Iglesias’s death.)

A spokesperson for the Harris County Sheriff’s Office told The Appeal that no further information about Iglesias’s death is available and that his autopsy is not complete. Representatives for the Houston Police Department and Ogg did not respond to requests for comment.

As The Appeal reported on Jan. 25—one week before Iglesias was charged—the Harris County Jail population had already reached dangerous levels, in part because of physical damage that courtrooms sustained during 2017’s Hurricane Harvey, COVID-19 related slowdowns, and an outright refusal by Houston law enforcement leaders to change their arresting or charging habits during the pandemic.

Harris County Sheriff Ed Gonzalez had for months been proposing lists of people his office believed were safe enough to release early from the jail to reduce overcrowding amid the pandemic. But in virtually all cases, Ogg’s office objected.

“Rather than mitigate the public health catastrophe that inevitably results from holding thousands of people in cages in close quarters every night, the police and the District Attorney’s office have continued business as usual, filing enormous amounts of low-level charges that ultimately put individuals and the community (including law enforcement) at risk,” Jay Jenkins, Harris County project attorney for the Texas Criminal Justice Coalition, a nonprofit justice reform group, told The Appeal via email in January.

On March 2, Governor Greg Abbott issued an executive order to rescind the state’s mandates about wearing a mask and social distancing. The executive order also allows for large gatherings such as concerts and sporting events to resume. But the state never restricted incarceration. As of Monday, Houston’s main jail held 8,923 people—no different than when the pandemic began, and more than when media outlets began highlighting the jail’s overcrowding in January. (The population dropped to a low point of 7,363 in April 2020.) Of the people currently held in the Harris County Jail, 87.4 percent are being held pretrial and 56.9 percent were arrested by Houston police.

As of last Wednesday, 2,819 people held in the jail had tested positive for the coronavirus, and eight people had died. Although new jail bookings are down by 25 percent during the pandemic, advocates argue that Iglesias’s death shows that Houston police officers and prosecutors have not sufficiently revamped their practices in response to  the pandemic. As of Monday, 855 people in the Harris County Jail were incarcerated on drug-related charges—of that number, 457 had been arrested by Houston police.

(The police department’s narcotics squad, in particular, has faced severe criticism ever since officers executed a January 2019 no-knock raid and killed a married couple and their dog. Investigators subsequently revealed significant alleged corruption within the narcotics division.)

In a letter to Harris County officials last week, 13 civil rights and justice organizations in Houston—including the Texas Organizing Project, Texas Fair Defense Project, Texas Criminal Justice Coalition, and Mutual Aid Houston—demanded action to reduce the jail population by 4,000 people. The advocates wrote that conditions in the jail were particularly horrific during the winter storm that swept through Texas in February and caused major power outages.

“One veteran caged pretrial reported that people in the jail were selling water as a ‘commodity,’” the letter stated. “Others reported unflushable and overflowing toilets: ‘People are crapping on top of more crap. It’s horrendous.’ While the winter freeze brought increased attention to the conditions in the jail, advocates have been sounding the alarm for months about the mounting crisis.”

As a result, the local civil rights groups are demanding that the county offer bond to all people charged with theft or drug offenses, and hold emergency bail hearings for anyone still stuck inside the jail. For some, like Israel Iglesias, it’s already too late.

California Prosecutors’ Association Reveals More Public Money May Have Been Misspent

New evidence suggests more accounting troubles for the CDAA.

California Prosecutors’ Association Reveals More Public Money May Have Been Misspent

New evidence suggests more accounting troubles for the CDAA.

California’s largest and most influential lobbying organization for prosecutors—the California District Attorneys Association (CDAA)—is currently embroiled in a scandal after a self-commissioned audit released in January found that the organization spent public funds meant for environmental prosecutions on lobbying state officials instead.

Today, in a letter obtained by The Appeal, the CDAA’s Chief Executive Officer, Gregory Totten, alerted California Attorney General Xavier Becerra’s office that the agency may have also improperly spent even more state funds. Totten asked the attorney general to investigate the CDAA staff members involved in the transactions.

“I write on behalf of the Board of Directors for the California District Attorneys Association (CDAA) to formally request an investigation by your office into the unauthorized transfer and expenditure of asset forfeiture and high-tech funds by former staff members at the Association,” Totten wrote.

The letter states that, since 1994, the CDAA has received a portion of the money state law enforcement agents seized using civil asset forfeiture, a deeply controversial practice by which police and prosecutors can take a person’s property if they are suspected of using it to commit a crime. According to the letter, that money is supposed to be used to fund a training program on how to conduct asset forfeitures properly and ethically.

Instead, Totten wrote, CDAA officials funneled $1.2 million of that money to the organization’s general fund instead. Of that money, $1.1 million was transferred between 2015 and 2020, before Totten himself became CEO. However, between 2016 and 2020, the CDAA deposited forfeited money directly into its general fund account and not into a separate ledger.

Additionally, Totten wrote that the CDAA receives funding for “high-tech training” from the Marion County District Attorney’s Office, but that $406,984 of that money also appears to have been put directly into the group’s general fund.

“It is very troubling that former staff members appear to have prepared and submitted reports to the Association’s independent, annual auditor and the Board of Directors that did not disclose these accounting practices,” Totten wrote. “The Board and I ordered these practices to immediately cease and implemented appropriate safeguards to prevent any similar future actions. No one is more angry and disappointed than the Board and myself that these actions occurred. A satisfactory resolution is our highest priority, and we are committed to restoring these funds.”

Spokespeople for CDAA did not immediately respond to a request for comment. In an earlier conversation with The Appeal, current CDAA president and El Dorado County DA Vern Pierson said that “nobody is more upset than we are to have found out that people who worked for us accounted for money in a way they should not have.”

Totten’s letter comes as the CDAA’s reputation and power over the California legislature are starting to wane. The organization has long been one of the loudest voices in Sacramento lobbying for “tough-on-crime” laws and has in the past opposed marijuana legalization and the lessening of some criminal sentences, for example. But in 2020 and 2021 two prosecutors—San Joaquin County District Attorney Tori Salazar and Los Angeles County DA George Gascón—quit the group and said they believe the organization is standing in the way of justice reform. The organization’s current secretary-treasurer, Sacramento County DA Anne Marie Schubert, has been rumored to be mulling a run for state attorney general.

Last year, Gascôn, Salazar, San Francisco DA Chesa Boudin, and Contra Costa County DA Diana Becton created their own organization, called the Prosecutors’ Alliance of California, to lobby in favor of criminal-legal system reform. (The CDAA recently signed an amicus brief supporting a lawsuit against Gascón’s proposed justice reforms in Los Angeles County.)

When Gascón announced that he would be leaving the CDAA, he cited the group’s financial troubles as one reason for his opposition to their operations. In January, the San Francisco Chronicle obtained a 2020 audit of its own finances that the CDAA commissioned. That audit stated that roughly $3 million in public money had instead been spent on lobbying and other expenses. The state currently sends money to the CDAA so the organization can help local DAs, especially in rural areas, prosecute entities who commit environmental crimes. Last month, 10 environmental groups, including the Environmental Working Group and Sierra Club California, urged the state legislature to demand repayment, independently audit the CDAA, and stop sending the group public funds.

On March 4, Acting Chief Assistant Attorney General Edward Ochoa told the CDAA that his office would not send any more environmental settlement funds to the agency until the CDAA shows the state it has changed its ways.

“These actions by CDAA, an organization composed of prosecutors, and which has served a critical role in providing training to the law-enforcement community, only serve to undermine the public’s trust in our governmental officials and institutions,” Ochoa wrote, according to a copy of the letter he sent obtained by The Appeal.

And, in a third letter obtained today, a group of 25 civil rights and justice advocacy organizations—including the American Civil Liberties Union and San Francisco Public Defender’s Office—asked the state legislature to independently audit CDAA’s finances and force the agency to repay any money it may have wrongly used.

“The pursuit of justice cannot be selective,” the groups wrote. “When a group like CDAA is tasked with enforcing the law and does not hold itself to the standards it espouses, people lose trust in the system. To repair this trust, CDAA must be held accountable and its operations must be examined.”

State and Local Leaders Want More COVID-19 Relief

It’s time for congressional Republicans to listen.

Photo by Tom Brenner/Getty Images

State and Local Leaders Want More COVID-19 Relief

It’s time for congressional Republicans to listen.

Last week, President Biden held a town hall in Wisconsin to advocate for the American Rescue Plan Act. This legislation, which has been passed in the U.S. House of Representatives, would give $350 billion to state and local governments to keep essential workers on the job, get Americans vaccinated against COVID-19, and support local economies.

This vision is incredibly popular with Americans; in a national poll last month, 72 percent of respondents voiced support for the American Rescue Plan.

It’s also supported by state and local officials of both parties who are desperate to prevent more economic hardships and unemployment. As Wisconsin state treasurer, I routinely work with county treasurers of both parties. Whether preserving EMS services in Waushara, covering Health Department costs in Kenosha, or maintaining basic core functions in Adams, county leaders throughout the state have spent the last year fighting the pandemic and working to absorb increasing expenses while maintaining essential services.

This bipartisan call from state and local officials for federal help isn’t just limited to my home state. Republican mayors in Miami, Oklahoma City, and Fort Worth, Texas, are calling for help, as are Republican governors like Larry Hogan in Maryland and Jim Justice in West Virginia.

The reason is simple. Budget shortfalls have already forced cuts of more than 1.4 million critical public service workers. The prospect of fewer firefighters, fewer teachers, and fewer police officers in our cities, counties, and towns is real. That’s why I signed a letter with 17 other state treasurers urging our congressional delegations to support President Biden’s plan. Like I have in Wisconsin, many of these treasurers have been working since July in their states to urge our federal representatives to provide more help.

That Republicans in Washington refuse to acknowledge this reality is as perplexing as it is counterproductive. Instead of uniting to defeat the coronavirus and reboot our economy, congressional Republicans are launching bad faith attacks on the American Rescue Plan.

The truth is that state and local governments have made agonizing cuts and dipped into rainy day funds to keep basic essential services running—but it’s not enough. For instance, Chippewa Falls, not far from where I grew up, is preparing for potential school district layoffs as it scrambles to stabilize education financing. Despite these deep emergency actions, state governments still face budget shortfalls that could exceed $500 billion over the next two years.

A year ago, the CARES Act was instrumental in preventing an even greater disaster. Despite misleading claims, 90 percent of that funding for state and local governments has now been spent or allocated for future use. Now, with hope on the horizon, more help is needed to vaccinate our people and help local economies recover from this emergency. The American Rescue Plan would provide more help and more flexibility to ensure relief funds can be deployed quickly and effectively.

The math is simple: The pandemic has dramatically increased costs while depleting the revenue base. Unlike at the federal level, state and local governments can’t just print money. A significant federal investment is the only way to shore up our local economies in the face of a once-in-a-generation pandemic and economic crisis.

We have sadly seen this movie before. When partisan fights in Congress kept essential funding from state and local governments in 2009, state economies took years longer to recover from the recession than they should have. We can’t make that same mistake again.

Failure to invest in local communities will hurt public health, hinder vaccination efforts, and hurt state economies for years to come. The country has already united behind the American Rescue Plan. It’s time for Republicans in the Senate to put partisanship aside, and give their state and local governments the funding needed to serve the people and recover from this crisis.

30 Years of Power Outages and Campaign Donations in Texas

State officials funded by power companies have been warned, since at least 1989, that the power grid was at risk of failure in cold weather. They have consistently failed to act.

Photo by Roberto Schmidt/AFP via Getty Images

30 Years of Power Outages and Campaign Donations in Texas

State officials funded by power companies have been warned, since at least 1989, that the power grid was at risk of failure in cold weather. They have consistently failed to act.

In a rare televised address Wednesday evening, Texas Governor Greg Abbott stared directly into a camera and did his best to reassure his constituents that things are under control after last week’s blackouts that left millions of Texans without power or clean water.

“No words—no wordscan fix what happened or ease the pain that you have endured,” Abbott said. “But I assure you of this: This legislative session will not end until we fix these problems. And we will ensure that the tragic events of the past week are never repeated. Your safety is my top concern. And I pray that God continues to bless you all.”

After initially—and erroneously—blaming providers of wind and other renewable energy for the blackouts, Abbott ultimately acknowledged that all forms of energy generation failed last week during a historic spate of freezing weather. The cold and power failures killed at least 80 people, including an 11-year-old boy. (Officials have said it could take months to determine the full death toll.) That Texas’s most powerful state official—a politician who has received millions of dollars in donations from utilities, power companies, and oil and gas companies throughout his career—has committed to doing anything to address the crisis is something of a miracle for the staunchly anti-government Texas Republican Party.

But had safety been Abbott’s “top concern” since taking office in 2015, the state simply would not have gone through this crisis at all. Texas officials have been warned, since at least 1989, that the state’s power grid was at risk of failure in cold weather.

Texas’s energy grid—the only U.S. electric grid not regulated by the federal government—also failed during similar weather conditions in 1989 and 2011. After the 2011 freeze, the Federal Energy Regulatory Commission (FERC) issued a more than 350-page report outlining simple steps the state could take to make sure the grid, run by a nonprofit called the Electric Reliability Council of Texas (ERCOT), would be more resilient against extreme cold weather. Instead, the grid once again failed and was, according to news reports, just four minutes and 37 seconds away from a potential total meltdown that could have left Texans without power for weeks.

But, since ERCOT’s grid doesn’t cross state lines, FERC has no authority to mandate that Texas officials actually do anything. That responsibility, instead, falls to state leaders and regulatory bodies—especially the Public Utility Commission of Texas (PUCT), whose commissioners are selected by the governor. Critics have now pointed out that Abbott, his predecessor Rick Perry, and the state’s Republican Party itself  have longstanding ties to the same power companies that caused the decades-long problem. According to the National Institute on Money in Politics, donors tied to energy and natural resources have given Abbott at least $26.3 million dollars over his career—more than individuals in any other industry. And in last year’s federal campaign cycle, several Texas Republicans were among the top recipients of campaign funding from oil and gas companies.

Abbott has appointed all three current PUCT commissioners. One commissioner previously worked as the governor’s assistant general counsel. Another was formerly employed by Houston’s CenterPoint Energy. Two of the three commissioners also worked for ERCOT itself.

“Ultimately, Governor Abbott owns this PUC,” Adrian Shelley, Texas office director for the nonprofit consumer rights group Public Citizen, told The Appeal. “The PUC is not going to be any stronger or more progressive than the charge given to it by the legislature.”

The power failures now have activists asking: Will this finally be enough to push the Texas government to regulate the state’s electrical grid?

“I think there will be hearings, some blame might get passed around to some sacrificial lambs in places like ERCOT, but within a couple of months, things will heat up in the state, and this mostly will be forgotten,” Shelley said. “To try to do something different, it starts with the voters, who need to start to demand some accountability from their lawmakers.”

To try to do something different, it starts with the voters, who need to start to demand some accountability from their lawmakers.Adrian Shelley, Director, Public Citizen

In the years since the 2011 blackout, Texas did little more than mandate that ERCOT file a series of nonbinding reports about its weather preparedness. The GOP-dominated state legislatures under both Abbott and Perry did not give regulatory bodies like the PUCT more power to mandate reforms. These represent a pattern of behavior for Texas officials.

“The experiences of 1989 are instructive, particularly on the electric side,” FERC wrote in its report. “In that year, as in 2011, cold weather caused many generators to trip, derate, or fail to start. The PUCT investigated the occurrence and issued a number of recommendations aimed at improving winterization on the part of the generators. These recommendations were not mandatory, and over the course of time implementation lapsed. Many of the generators that experienced outages in 1989 failed again in 2011.”

The report also noted that power outages could compound on one another: In recent years, FERC noted, the state grid increased its reliance on natural gas. Compressors used in the gas industry, however, are often powered by electricity, so statewide outages could also lead to a shortage of natural gas in different parts of the state.

During the same time that various organizations issued reports that had no mandate power, Texas officials pushed to further deregulate the state power companies. As the Austin American-Statesman recently recounted, Ken Lay, the former CEO of the infamous Houston-based energy company Enron, pushed Governor George W. Bush to strip away rules governing state utilities in the 1990s. As a result, state legislators eventually allowed the “market to replace the regulator,” in the words of one PUCT commissioner appointed by Bush.

“Despite the recommendations issued by the PUCT in its report on the 1989 event, the majority of the problems generators experienced in 2011 resulted from failures of the very same type of equipment that failed in the earlier event,” FERC wrote. In 1989, the PUCT even wrote that it would take another freeze to deduce whether the state had learned anything from the ’89 freeze—but after mass outages in 2011, the state once again took virtually no action.

FERC noted that, no matter what utilities may say, the costs to prepare the electric grid for occasional cold-weather events “would not be unduly expensive,” and noted that, by the time the agency finished its report, some companies had taken steps to voluntarily weatherize their equipment. But the agency also warned that voluntary changes alone have not brought about the reforms needed to keep Texans safe in the cold.

“Texas has now had that second event,” FERC wrote in 2011, “and the answer is clearly that the corrective actions were not adequate, or were not maintained. Generators were not required to institute cold weather preparedness, and efforts in that regard lapsed with the passage of time.”

Now that Texas has had a third event, the question of what it will take for lawmakers to act has become more urgent.

“There are water pipes that are busted all over the state,” Joshua D. Rhodes, a research associate at the University of Texas at Austin who also consults on energy industry projects, told The Appeal. “This is going to cost real people real money to fix roofs, ceiling, flooring, all kinds of stuff like that. I think this one’s stickier.”

But, so far, the most visible and vocal responses to the crisis by Texas officials have ranged from U.S. Senator Ted Cruz’s departure to Cancún to U.S. Representative Chip Roy’s defense of Texas’s resistance to federal oversight. Roy said he would oppose any attempt by the federal government to regulate ERCOT or Texas state utilities.

According to San Antonio’s NBC affiliate, Roy “says he feels the state has  a strong grid that delivers abundant energy, most of the time.”

California’s D.A. Association Misspent $3 million. Environmental Groups Want it Repaid

A coalition of environmental groups urges the legislature to force the repayment and dissociate from the CDAA.

Activists in Los Angeles protest the Dakota Access Pipeline, 2016.
Photo by Ronen Tivony/Getty Images

California’s D.A. Association Misspent $3 million. Environmental Groups Want it Repaid

A coalition of environmental groups urges the legislature to force the repayment and dissociate from the CDAA.

In order to fund prosecutions against major environmental polluters, California has for years sent public money to the California District Attorneys Association, a private lobbying group made up of many of the state’s major prosecutors. The CDAA was supposed to use that money—about $2.9 million—to support litigation against entities that pollute or otherwise damage the state’s natural environment.

Instead, according to an audit obtained last month by the San Francisco Chronicle, the CDAA spent that money on training its own employees and to lobby elected officials against reforms of the state’s criminal legal system.

A coalition of environmental groups will urge senate president Toni Atkins and assembly speaker Anthony Rendon to force CDAA to repay the misspent funds. In a letter obtained by The Appeal and dated February 24, the groups also demand that the legislature terminate any further agreements the state has with CDAA regarding environmental litigation and allow the state to contract with different groups for such work. The coalition of 10 groups includes the California Coastkeeper Alliance, the Coalition for Clean Air, the Environmental Working Group, the California League of Conservation Voters, and Sierra Club California.

“As representatives of organizations dedicated to the protection of our environment, we are devastated by this dereliction of CDAA’s public duties,” the letter states. “We call on our government to not only demand redress for what is, for all intents and purposes, a theft of funds from the people of California, but to take all necessary steps to terminate the partnership between CDAA, CalEPA, and the legislature … We cannot overstate the importance of quick and decisive action to respond to CDAA’s malfeasance.”

The CDAA’s president and El Dorado County DA Vern Pierson blamed the issue on former employees and accountants who did not flag the spending issues when they should have. He said the agency contracted an outside auditor at the advice of the California Attorney General’s Office and immediately committed to rectifying any wrongdoing.

“I mean, I was shocked when I heard about it,” Pierson said in reference to the misspent funds. “Nobody is more upset than we are to have found out that people who worked for us accounted for money in a way they should not have.”

“The CDAA has enjoyed a very cushy and close relationship with the California legislature for decades,” Anne Irwin, who heads the reform group Smart Justice California, told The Appeal last week, adding that the group was “able to influence a tremendous amount of legislation over the decades and able to shape criminalization in California.”

But a new wave of prosecutors who lean to the left, compared to their predecessors at least, has begun to chip away at the CDAA’s power. In January, San Joaquin County DA Tori Salazar, a Republican, quit the group and said the organization was fighting to maintain “tough-on-crime” policies she no longer supports. And, last week, newly elected Los Angeles County DA George Gascón quit the group as well.

Gascón’s exit was perhaps less of a surprise: last year, he ran as a progressive against incumbent DA Jackie Lacey. And, since taking office, Gascón has fought bitterly with local police unions, conservative politicians, the CDAA, and even his own assistant prosecutors. After the agency representing Gascón’s deputies—the Los Angeles Association of Deputy District Attorneys (ADDA)—sued Gascón in December to prevent him from rolling back harsh sentencing rules, the CDAA filed an amicus brief supporting the ADDA’s fight against its own boss.

So, last week, Gascón said Los Angeles County would no longer support the group, robbing it of its largest financial and organizational backer. In his letter, Gascón also blasted the agency for misspending the environmental prosecution funds.

“The fact that CDAA diverted millions of dollars from environmental prosecutions to lobby against criminal justice reform is repugnant and emblematic of the organization’s increasingly fringe values,” Gascón wrote.

Gascón, Salazar, San Francisco DA Chesa Boudin, and Contra Costa County DA Diana Becton are members of a recently formed progressive advocacy organization called the Prosecutors’ Alliance of California. Speaking to The Appeal, the group’s executive director, Cristine Soto DeBerry, said that it was “incumbent on the legislature” and state to hold the CDAA accountable for the misspent money.

In addition to auditing CDAA and demanding the group pay back the money it misspent, DeBerry said the state should reconsider all of the  money it sends the CDAA. “We should be asking, ‘Should an inherently political organization such as theirs be recipients of public funds?’” she said.

San Antonio Bulldozed a Homeless Encampment. Then the Winter Storms Started.

Now, advocacy groups are struggling to keep unhoused people safe.

Photo by Joe Raedle/Getty Images

San Antonio Bulldozed a Homeless Encampment. Then the Winter Storms Started.

Now, advocacy groups are struggling to keep unhoused people safe.

In late January, Hector Rodriguez joined a team of volunteers in San Antonio to collect tents, blankets, coats, and other winter-weather gear to distribute to the city’s homeless population. Rodriguez, who works with the organization Defund Police SA, said they distributed the items to a large encampment of 75 to 100 unhoused people living under a downtown interstate overpass.

On Feb. 3, Rodriguez watched in horror as the city bulldozed the encampment, took an infant from a 23-year-old mother sleeping at the camp, and threw out many of the tents and coats that he and his team had collected to help keep people warm.

“We were pissed,” Rodriguez told The Appeal. “We raised so much money to buy tents, carts, and jackets, we passed it all out to everybody that needed it, and a week and a half later, we see those brand new tents being thrown in the trash.”

This week, following two storms that brought snow, ice, and life-threatening low temperatures, Texas residents—especially the unhoused and incarcerated—continue to struggle to find warmth and safety. In San Antonio, the population of unhoused residents has boomed during the COVID-19 pandemic. “I didn’t think I’d wake up alive,” Angel Rodriguez Medina, 86, told the Washington Post on Tuesday after spending Monday night’s sub-freezing temperatures with nothing but a sleeping bag. “It was the worst night of my life.” Advocates for the homeless have spent the week looking for unhoused residents and doing all they can to help them get into shelters or hotel rooms to avoid the cold.

In addition to the destruction of the downtown encampment, local advocates accuse Mayor Ron Nirenberg and City Manager Erik Walsh of failing to properly warn residents of the coming storms and slow-walking plans to open warming centers around town. (On May 1, San Antonio voters will decide whether to re-elect Nirenberg for a third term.) Spokespeople for the mayor’s office, city manager, and police department and have not responded to messages from The Appeal.

According to the San Antonio Express-News, the city has spent more than $1.7 million since 2017 to clear at least 500 encampments across the city. In 2018, news crews arrived after the city drove bulldozers over one encampment on the city’s west side and found nothing left but some garbage and tire tracks. Advocates say the city’s random approach to clearing encampments has made outreach during the storm season difficult.

Denise Hernandez, a local advocate for the unhoused who is also an event services coordinator for City Councilmember Roberto Treviño, told The Appeal that  she and other advocates had been trying for months to connect people in the city’s homeless encampments with services or housing. She also said that even during this week San Antonio cops have insisted on running background checks on unhoused residents attempting to shelter during the freeze and that local mutual aid organizations, rather than city officials, have done the bulk of protecting people forced to sleep on the streets.

“Where are those folks gonna go?” Hernandez said, referring to those who lived under the overpass downtown. “If they had stayed there, it would have been much easier for outreach this week. We could just get a bus and take them where they need to go to stay warm.”

Less than two hours to the northeast, another Texas city is rethinking how it can help its homeless residents. The Austin City Council recently voted to purchase two hotels, whose operating costs will be paid for with money diverted from the police budget, in order to provide permanent supportive housing for residents experiencing homelessness. In contrast, Governor Greg Abbott, a staunch conservative, has vowed to ban outdoor camping and has pushed legislators to withhold public funding from any city that cuts its police budget.

Despite Abbott’s efforts, the Austin model is spreading to other cities—even San Antonio. The city is leasing a 300-room hotel for unhoused people as a part of its response to COVID-19. And in recent weeks, city officials have also suggested buying a hotel to serve as transitional housing for people like those who’d been sleeping under the Interstate 37 overpass.

The City Council began debating the idea on Feb. 4—one day after police bulldozed the camp.

How the Killing of Breonna Taylor Is Reshaping Louisville Politics

The political paradigm emerging in Louisville is being formed by newcomers to local politics.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

How the Killing of Breonna Taylor Is Reshaping Louisville Politics

The political paradigm emerging in Louisville is being formed by newcomers to local politics.

Nearly a year ago, officers of the Louisville Metro Police Department in Kentucky killed Breonna Taylor, and the fallout from her death is still reshaping local politics.

A citywide ban on “no-knock” search warrants, the kind that was used to justify entering Taylor’s home, was instituted on June 12. There is also a movement to extend the ban statewide. Louisville police officers are now required to intervene if they witness another officer committing some sort of misconduct on the job. Steve Conrad, the chief of police, was fired on June 1 when a beloved restaurant owner was shot and killed by National Guard officers. Louisville police officers who were involved in the incident failed to turn on their body cameras.

But the new political paradigm that is emerging in Louisville is perhaps best illustrated by the year that Mayor Greg Fischer has had since Taylor’s death.

Fischer had been a rising star in Democratic politics. In a 2016 Politico survey of America’s mayors, he ranked fourth (tied with Kevin Johnson, Tim Kaine, and Mitch Landrieu) among mayors most likely to be elected president in 2020 or 2024, behind Los Angeles Mayor Eric Garcetti, former Newark, New Jersey, Mayor Cory Booker, and former New York Mayor Michael Bloomberg.

In 2019, Fischer was voted to be president of the United States Conference of Mayors, a prominent political organization, for the following year. By July, when his tenure as president began, his cops had already broken into Taylor’s home and shot her in her own bed, and activists in Louisville had already been demanding his resignation for months.

Fischer addressed the nationwide marches for racial justice in his first speech to fellow mayors. “These protests are demands that our society offer justice and equity to people who’ve experienced centuries of cruelty and injustice, who’ve never known institutions dedicated to helping their human potential flourish,” he said. “Our job as mayors is to create the conditions so they can finally flourish and power an American Breakthrough that can address all in America that has broken down.”

But the damage to Fischer’s reputation was done.

On Sept. 17, the Louisville Metro Council voted 22-4 to declare it had “no confidence” in Fischer’s ability to lead the city through its ongoing crisis.

On Jan. 5, local activist Shameka Parrish-Wright responded to the rumors that Fischer, who is barred by term limits from running for mayor again, would appoint former Atlanta Police Chief Erika Shields to run Louisville’s department, and to the general frustrations among Louisville residents, with a heartfelt and hopeful social media post.

“Millions and millions of dollars [were] raised on #BreonnaTaylor’s name worldwide and people in the city she lived & worked to save are still struggling to survive, sick, homeless, and hungry,” she wrote. In response, Parrish-Wright announced that she’s forming an exploratory committee to run for mayor in Louisville’s 2022 race.

Weeks later, Parrish-Wright discussed her emergent campaign on local news anchor Doug Proffitt’s local politics podcast. She said she’s running on a platform that will prioritize public health, cleaning up the city’s park space, and, of course, revamping the police department.

“What I hear a lot of the police saying is ‘We’re not social workers, we’re not counselors, we’re not teachers, we’re not therapists,’” she said. “Well OK—then you’re telling us that’s what you need to do community policing the right way. We’re not telling you you’re not needed in that way, we’re saying that community policing means we get officers paired with social workers.”

During the interview, Proffitt issued the prediction that the upcoming mayoral race “will be the most interesting race I’ve covered in my 33 years” covering city politics. It’s not hard to see why: If elected, Parrish-Wright would be the first Black mayor in the city’s history and would join a new class of politicians who rose to prominence in the wake of 2020’s international protest movement for civil rights.

So far, only one other major candidate has announced a run for the open mayoral seat: Metro Council President and former LMPD narcotics officer David James. Like Fischer, James faced serious pushback from activists during the latter half of 2020. Late last year, local business owner and activist Kris Smith directly confronted James and his record as a council member in a livestreamed interview. “I think you’re arrogant as hell and I don’t respect you, not even a little bit, because I feel like you’re full of shit,” Smith said to James. Smith added that he felt James had done “nothing significant” for his district since taking office, and that he was going to put all his energy into “getting you out so you can just live on your pension.”

On Dec.11, Smith was shot to death in what police say was a drive-by shooting by unidentified gunmen in a black truck. Smith was the second Black Lives Matter protester killed in Louisville last year, and one of multiple Black Lives Matter protesters to die under strange circumstances since the Ferguson, Missouri, protests of 2014. James, who did not immediately respond to a request for comment, announced his run for mayor on Jan. 21.

The next week, an outside firm hired by Fischer released its 155-page audit of the police department’s conduct. 

The audit laid out a series of damning findings about the department. Nearly every finding showed that the department is “in crisis.”  According to the report, the department is whiter than the city it patrols; “strong evidence exists indicating that Black individuals are treated disproportionately in every category—electronic stop data, paper stop data, field contacts, arrests, and citations”; the department was wholly unprepared to handle last summer’s protests; Louisville officers “disproportionally police certain groups, particularly Black residents”; and the reforms to the department’s search warrant regulations—instituted after the killing of Breonna Taylor—are not being followed.

Taylor’s killing and its aftermath instigated a chaotic year in Louisville. The presence of local activists on the stages that were once solely occupied by career politicians has  shrunk the distance between government and those who are most affected by its action or inaction. A significant shift in the distribution of power could end the chaos.

COVID-19 is Spreading Faster Than Ever. Jail Populations are Surging, Too

In many of America’s major cities, the early efforts to reduce incarceration during the pandemic have been reversed.

Photo illustration by Kat Wawrykow. Photo from Getty Images.

COVID-19 is Spreading Faster Than Ever. Jail Populations are Surging, Too

In many of America’s major cities, the early efforts to reduce incarceration during the pandemic have been reversed.

Gordon Weekes, the chief public defender in Broward County, Florida, believed that March 2020 could have compelled the start of something different for the criminal legal system. The COVID-19 pandemic had just hit the U.S. Officials all over the nation needed to decide whether they would risk letting thousands of people contract a potentially fatal disease simply because they were incarcerated in overcrowded and unsanitary jails and prisons.

At first, he was hopeful. Local cops, prosecutors, and judges worked with defense attorneys to lower the jail population of Broward County, a region of nearly 2 million people that includes the cities of Fort Lauderdale and Hollywood. By last April, the jail population was less than 3,000 people for the first time in decades. But now, nearly one year later, COVID-19 is spreading at a higher rate, and the county jail population has instead risen once again. Weekes confirmed to The Appeal that, as of mid-January, nearly 3,500 people were being held.

“I was hoping that the pandemic would give people some real-life data to show the justice system, and the ways we’ve been doing things in the past, was inherently flawed,” Weekes told The Appeal. But, he added, “it seems like no one has learned anything from the last year when we’ve been addressing this issue. That is the great frustration you have with the system.”

That frustration is shared in cities around the nation. According to numerous news reports, as well as data obtained by The Appeal, the number of people held pretrial in many of America’s major cities rose during the latter half of 2020. In some cities, jail populations have now risen back to their pre-pandemic populations.

According to a review by The Appeal, jail populations in New York City, Chicago, Houston, Philadelphia, Dallas, Miami, Broward County, Orlando, and Tampa declined briefly in early 2020 and have since returned to pre-pandemic levels. Other major cities that released some incarcerated people in early 2020, including Los Angeles, San Diego, Columbus, Ohio, San Francisco, Washington, D.C., Seattle, Boston, Indianapolis, Oakland, Denver, and Austin, Texas, have seen their jail populations swell over the latter half of 2020, but they remain somewhat lower than their pre-pandemic levels.

As of Tuesday, more than 452,000 incarcerated people and prison staff nationwide have been infected by the coronavirus, and nearly 2,400 have died.

“I thought everyone would take this as a lesson learned, but it seems old habits are hard to break,” Weekes said.

In March and April 2020, many cities reduced their large jail populations as part of their strategies to contain the spread of COVID-19. This effort focused particularly on the thousands of people who were detained pretrial, many of whom were charged with nonviolent offenses and couldn’t afford to post bail. But those releases, where they happened, did not amount to a meaningful and widespread shift in how American localities police and punish communities. Where releases did occur in large numbers, local jail populations almost all rebounded.

For instance, in San Diego County, which endured a massive COVID-19 outbreak in 2020, the jail population dropped from around 5,200 in March to around 3,500 last summer after the state instituted mandatory bail reductions to combat the coronavirus. However, according to a letter the American Civil Liberties Union sent San Diego County last year, officials allowed the jail population to increase to around 4,000 by November. As of last Friday, 1,141 people had contracted the coronavirus in the county’s  jail facilities.

“A significant cause of the outbreak appears to be the [San Diego County Sheriff’s] Department’s refusal to release sufficient people to permit social distancing or consistently enforce reasonable prevention policies,” the ACLU wrote on Dec. 21.

And in Texas, Governor Greg Abbott, a staunch conservative, announced in March that he was banning cities and counties from releasing any person held pretrial with a history of arrest for so-called violent crimes unless those people pay their bail amounts. Jail populations in some Texas cities barely budged at all. In Dallas, the average daily jail population dropped to a low of 4,869 by May but was 5,787 in March. By September, an average of 5,762 people were incarcerated in county jails daily, according to the Dallas County government’s jail population dashboard. The population has since tapered off slightly but is still higher than its lows in May.

In Austin, the Travis County jail population dropped  to around 1,600 in April from roughly 2,100 people in March. This month, the jail’s daily average population is around 1,800.

And, as The Appeal reported last week, Houston’s jails have been packed back up to crisis levels in the last few months. After going from a population of roughly 8,800 in early 2020 to a low of 7,300 by April, the Harris County Jail now holds nearly 8,900 individuals. The county is virtually out of jail beds. Much of the blame can be placed on Harris County District Attorney Kim Ogg’s office, which has declined requests made by Sheriff Ed Gonzalez to release thousands of people detained pretrial who, according to the sheriff, pose no immediate danger to society.

I thought everyone would take this as a lesson learned, but it seems old habits are hard to break.Gordon Weekes, Broward County Public Defender

The situation in Miami-Dade County embodies two issues playing out nationally. For one, jury trial suspensions and other court slowdowns during the pandemic limited at least one way that people can exit the jail system. Secondly, the vast majority of people in the jail are being held on unsentenced felony charges, which prosecutors around the country have, by and large, declined to consider releasing pretrial in most major cities.

Miami-Dade County State Attorney Katherine Fernandez Rundle has said she will not consider releasing any people detained on violent charges, so even though jail bookings in the county have plummeted, the jail population rose during most of  2020. Spokespersons for Fernandez Rundle did not respond to requests for comment from The Appeal. On March 9, 3,897 people were detained in the Miami-Dade County jail system. By May, those numbers had dropped to about 3,200 people daily, but as of Tuesday, the county’s jails held 3,953 people.

Elsewhere in Florida, Hillsborough County, which includes Tampa, held about 2,700 people in its jail facilities on March 19 when Sheriff Chad Chronister released 164 people to combat the spread of the coronavirus. A sheriff’s department spokesperson confirmed to The Appeal this week that the jail system’s population as of Tuesday was 2,969.

Even so-called progressive prosecutors have failed to keep jail populations from ballooning. In Philadelphia, where District Attorney Larry Krasner has held office since 2018, the jail population went from 4,454 people in March to a low of 3,935 people by April. Even though Krasner’s office has declined to request bail for people on low-level drug or misdemeanor charges since 2018, the city’s jail population rose to 4,374 people in December due, in part, to the number of people still held pretrial in the jail system. 

These same trends have played out in America’s three largest cities, which have also been epicenters for COVID-19 outbreaks. In Chicago, the jail’s population rose from its low of around 4,000 in May back up to pre-pandemic levels of around 5,500 people in November. The jail has been cited as one of the nation’s worst COVID-19 hotspots over the last year. In November, the Chicago Council of Lawyers castigated local officials for filling the Cook County Jail back up with people held on non-dangerous charges, including DUIs, narcotics possession, and retail theft.

“As the pandemic rages on and the jail population continues to grow, so too does our level of concern that some of the lessons we learned early-on have been lost somewhere along the way,” the Chicago Council of Lawyers wrote. “When the pandemic began, people in Cook County Jail were made to sleep in beds that were only two or three feet apart, with dozens sharing a single room until the population was finally reduced—we are now back to square one.”

According to the Vera Institute of Justice’s New York City jail population tracker, jail numbers there reached lows of 3,800 in April. That same month, the New York State legislature rolled back the state’s bail reform laws and made many low-level charges bail eligible once again, which has had the effect of extending the detentions of thousands of people. As of Tuesday, 5,336people were being held in New York City jails.

And, in Los Angeles—where the most recent COVID-19 outbreak has been so severe that the city has had to relax air-quality laws in order to cremate bodies at faster rates—the county’s jails are filling up once more, in part because of a severe judicial backlog and Sheriff Alex Villanueva’s failures to take preventive measures to limit the spread of the disease within the jail system. By the end of April, LA County had reduced its jail population to 12,000 people from 17,000. But, as of Tuesday, that number had ticked back up to around 15,000 detainees.

Ricardo García, the chief public defender in Los Angeles County, told The Appeal that court slowdowns and former District Attorney Jackie Lacey’s unwillingness to release more people were to blame for the rising jail population.

García said court slowdowns have significantly affected the legal system.  LA County used to have around 688 people awaiting transfer to state prisons, but that number has swollen to around 3,500 due to bans on state prison transfers during the pandemic. He also stated that, of the 1,800 people currently serving prison time within the county jail system, he believes at least 500 could safely be released back into society immediately. “It’s still a high number, but when we hit 12,000 [people being held] in LA, we didn’t see a correlated rise in crime,” García said. (Last month, The Appeal also reported that the average length of stay in LA County jails has risen during the pandemic.)

García is hopeful that new DA George Gascón, who ran to Lacey’s left, will shrink the jail population—with a particular focus on pretrial detainees.  When the jail population hit its low point, García said that he, like Weekes in Florida, was “excited and hopeful the pandemic would show we don’t need to go back in time to more carceral thinking.”

Compton Joins the Growing Number of U.S. Cities to Launch a Guaranteed Income Program

The California city began distributing out up to $600 monthly to low-income residents.

Compton, Calif. Mayor Aja Brown.
Photo by Brittany Murray via Getty Images

Compton Joins the Growing Number of U.S. Cities to Launch a Guaranteed Income Program

The California city began distributing out up to $600 monthly to low-income residents.

The term “government assistance,” at least in the U.S., tends to conjure up images of long lines outside municipal buildings, byzantine tax-rebate systems impossible for the average person to navigate, or Bill Clinton talking about “welfare reform.”

Last week, Compton, California, made government assistance less complicated. On Jan. 21, the city distributed the first payments of the Compton Pledge program—officials simply sent money to some of the city’s residents.

An initiative of Mayor Aja Brown, the program is expected to hand out between $300 and $600 per month to a maximum of 800 Compton residents using prepaid debit cards or through Venmo for at least the next two years. (Compton Pledge is funded by a pool of anonymous donors, not tax dollars.) Unlike unemployment insurance or food assistance programs, residents don’t need to report how they spend the money or comply with any standards to stay enrolled in the program.

Once the Compton Pledge is fully running, it will be one of America’s largest experiments with guaranteed income—the economic tool whereby the government provides money to its citizens regardless of their income, age, or employment status. Though there is certainly debate over whether guaranteed income works better than other forms of government assistance, the idea has been endorsed by all sorts of public figures, from Martin Luther King Jr. to Elon Musk. Now, at least 25 U.S. cities are experimenting with basic-income programs.

“Compton is systematically under-resourced, but at the same time it has visionary leadership, young leadership, and the determination to set a model for what reinvesting in communities can really look like,” Nika Soon-Shiong, a Compton Pledge co-director, told The Appeal.

Los Angeles County, where Compton is located,  is currently suffering through the worst COVID-19 outbreak of any major American urban center. Nearly 1.1 million residents have contracted the disease and almost 16,000 have died. Earlier this month, emergency medical professionals were told to stop sending patients to hospitals if they had little chance of survival, because intensive care units were full and resources were scarce. As of Jan. 15, more than 2,700 corpses were being kept in storage, and county officials decided to relax air quality rules to allow crematoriums to burn bodies more quickly.

Despite the horrific outbreak, Governor Gavin Newsome rescinded the state’s stay-at-home order on Monday. Outdoor dining is set to reopen in Los Angeles County soon and malls remain open.

The pandemic has hit Compton especially hard, wreaking havoc on an already economically fragile community where, as of 2019, one in five residents lived below the poverty line. Black residents—who’d historically been forced into the neighborhood because of racist housing laws over the last half-century—have been pushed out in recent years. As of December, Latinx residents were contracting COVID-19 at double the rate of white residents throughout the county.

But even before LA County reached this dire point, Brown joined a coalition called the Mayors for Guaranteed Income, which is sponsored by Twitter CEO Jack Dorsey and led by Michael Tubbs, a former Stockton, California, mayor who ran  a guaranteed-income pilot program in his city in 2019. In October, Brown announced that she’d raised funds from a group of anonymous donors and would begin sending checks to a “pre-verified” pool of low-income Compton residents. (Brown did not respond to requests for comment from The Appeal.)

“I recognized that there’s a need for additional income, especially with the pandemic resulting in record high numbers of unemployment throughout the entire country,” Brown told the Los Angeles Times in October. “This is a great opportunity to address inequalities for Black and brown people and also additional opportunities for upward mobility.”

Soon-Shiong told The Appeal she has yet to hear any complaints or reports of residents missing their payments, which she considered a win.

“I think in some ways, success is not having any feedback,” she said on the first day of the program. “Everything worked smoothly.”

‘No Beds Left’: Houston’s Jail is a COVID-19 Superspreader

On Tuesday, Harris County Commissioners will decide if the D.A. and Sheriff will get more money to continue their neglect in the face of a public-health crisis.

District Attorney Kim Ogg of Harris County, Texas.
Harris County DA website

‘No Beds Left’: Houston’s Jail is a COVID-19 Superspreader

On Tuesday, Harris County Commissioners will decide if the D.A. and Sheriff will get more money to continue their neglect in the face of a public-health crisis.

As of Sunday, there were 8,889 people incarcerated inside Houston’s Harris County Jail, the largest facility of its kind in Texas. Of that number, 7,772—more than 87 percent—are being held pretrial. Nearly half of the people held in the jail, according to the county’s online jail population database, have been arrested on nonviolent charges.

For about a month, beginning last March, there was a sharp, but brief, decline in the jail’s population. Since mid-April, when the population hit its low of around 7,300, the number of people held at the Harris County Jail has steadily swelled. Over that same period of time,  COVID-19 infection rates have traced a similar, unrelenting trajectory. More than 2,600 people incarcerated at the jail and around 1,200 workers tested positive for the disease as of Jan. 15. Six incarcerated people and two employees have died.

Rather than addressing this crisis, Houston-area politicians and law enforcement leaders have, for weeks, passed blame between one another for the number of people held in close quarters at the jail. According to multiple interviews and emails obtained by The Appeal, justice reform advocates have placed blame on three institutions: the Houston Police Department, which has continued to arrest people at a nonstop clip; local judges, who have failed to expedite the cases of those nearly 7,800 people being detained pretrial; and the office of Harris County District Attorney Kim Ogg, which has repeatedly rejected pleas from Harris County Sheriff Ed Gonzalez to release thousands of pretrial detainees during the pandemic.

“Rather than mitigate the public health catastrophe that inevitably results from holding thousands of people in cages in close quarters every night, the police and the District Attorney’s office have continued business as usual, filing enormous amounts of low-level charges that ultimately put individuals and the community (including law enforcement) at risk,” Jay Jenkins, Harris County project attorney for the Texas Criminal Justice Coalition, a nonprofit justice-reform group, told The Appeal via email.

Tomorrow, the Harris County Commissioner’s Court—the county’s highest governing body—will meet to debate funding increases for Ogg’s office and the county’s sheriff’s department. The vote will determine whether Houston’s law enforcement apparatus will have more resources to continue its neglect in the face of a public health crisis.

According to emails obtained by The Appeal, both Gonzalez and members of the Harris County Justice Administration Department have recently asked county judges and the DA to either decrease bonds for pretrial detainees or to release those people from jail. Gonzalez supplemented his requests with the names of the thousands of detainees he considers eligible for bond reductions or release, but Ogg’s office has so far taken no action on virtually all of the cases. Her office did not respond to a request for comment from The Appeal.

“As a result of the pandemic and the holidays, the jail has practically no beds left,” Gonzalez stated in a Jan. 11 email to numerous county officials. “With outsourcing not being a viable option, it would be extremely helpful if Judges could prioritize jail cases on their dockets.”

In a separate email sent the same day, a county employee complained of the inaction from Ogg’s office. The employee, who requested anonymity because of their close relationship with Ogg’s office, wrote that the sheriff’s office “recommended 1,619 releases” to Ogg, but “the DAO agreed to 16.”

In a Jan. 21 court advisory—filed as part of the Russell v. Harris County lawsuit regarding bail practices in the county—Ogg’s office stated that, of the 1,543 people recommended by the Harris County sheriff for release, it would agree to reduce bail for just 60. (The Houston Chronicle first reported on the filing on Thursday evening.)

“Of the 1543 defendants on the list sent to the District Attorney by the Harris County Sheriff, 1148 defendants have an external hold or their pending case is violent,” Ogg’s office wrote. “The District Attorney objects to lowering the bail for any of these individuals’ cases.”

In the time between Gonzalez’s email and Ogg’s statement, more than 27,000 people in Harris County tested positive for COVID-19. As of Sunday, nearly 300,000 people have tested positive for COVID-19 countywide. At least 2,855 have died.

In March 2020, the Harris County court system was briefly shut down to prevent the spread of COVID-19. In-person courts reopened in June, albeit on staggered schedules, with limited in-person meetings and using teleconferences whenever possible. (In mid-2020, the county resumed jury selection proceedings by holding them at the 8,000-seat NRG Arena to abide by social distancing rules.)  Jury trials resumed on Oct. 1, with a few exceptions.

According to Jay Jenkins of the Texas Criminal Justice Coalition, the slower pace has turned “pretrial incarceration into an indefinite sentence.”

But the county’s court system had already been dealing with a backlog of cases before the pandemic, due in part to damage sustained to the court’s buildings in 2017 because of Hurricane Harvey. In June, the Justice Management Institute, a Virginia nonprofit that works closely with the county,  issued a report warning that, even under perfect operating conditions, the court system would take years to get through its backlog of cases and that the situation had become “too great to overcome” using traditional methods. The organization urged the county to dismiss or release all people held pretrial on nonviolent felony charges older than nine months, create a specific court of judges to deal solely with the backlog, process new cases using strict timetables, and expand the number of charges eligible for police or prosecutorial diversion.

“This situation isn’t effective justice, this isn’t a fair way to treat victims, and this isn’t fair to the individuals whose lives are on hold or who are sitting in jail waiting for the court system to adjudicate their case,” Elaine Borakove, president of the Justice Management Institute, wrote to the Commissioner’s Court on June 1. “Given the gravity of the circumstances, every entity in the criminal justice system must make uncomfortable, but necessary changes.”

But the county and its judicial system have largely opposed such measures.

Houston’s jail overcrowding during the pandemic exposes a moral test that faces virtually every jail system in America. Some lawmakers, prosecutors, and other law enforcement officials have authorized the release of nonviolent detainees during the pandemic. But, so far, nearly all have not  released allegedly “violent” offenders who are also held in jail pretrial and who are also at risk for contracting and spreading the coronavirus.

“The power exists among the various stakeholders—sheriff, judges, prosecutors, defense attorneys and county officials—to safely and significantly reduce the jail population,” said Amanda Woog, executive director of the Texas Fair Defense Project. “They need to work collaboratively to plan for thousands of dismissals and releases so no person is caged in these unsafe conditions during a deadly pandemic.”

Austin’s Unreliable Crime Lab Could Lead to Another Wrongful Execution

Dubious DNA evidence—and a potential coverup by the Travis County DA’s office—are at the heart of a judge’s recommendation that Areli Escobar gets a new trial.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

Austin’s Unreliable Crime Lab Could Lead to Another Wrongful Execution

Dubious DNA evidence—and a potential coverup by the Travis County DA’s office—are at the heart of a judge’s recommendation that Areli Escobar gets a new trial.

At around 3 a.m. on May 31, 2009, Jacqueline Hernandez left her 17-year-old daughter Bianca Maldonado and Bianca’s infant son Cesar to go to work delivering newspapers. Hernandez returned to the Austin, Texas, home roughly four hours later and found it in disarray. Couch cushions were strewn everywhere. The walls were covered in blood. Her daughter was lying facedown on the floor, mostly nude, and covered in lacerations. Cesar survived his injuries; emergency medical personnel pronounced Bianca dead at the scene.

Three days later, Austin police arrested Bianca’s neighbor Areli Escobar, now 41, on charges of sexual assault and capital murder. Escobar’s then-girlfriend told police that she’d called him that night, and when the line connected, she heard the sounds of two people having sex. (In a testimony, years later, she altered her story and claimed she’d heard “a woman screaming and screaming and screaming and screaming and just screaming.”) Prosecutors alleged that Escobar returned home covered in blood and lacerations, told his sister that he’d had sex with a woman that night, and that a partial fingerprint, cell phone tower data, and numerous pieces of DNA evidence—including blood found on his shoes and shirt—tied Escobar to the scene of the crime. He was convicted in 2011 and sentenced to death.

But the case against Escobar was neither as clear nor as settled as it seemed. On Dec. 31, 2020, after nearly a decade of appeals, Judge David Wahlberg issued a recommendation to the Texas Court of Criminal Appeals that Escobar be granted a new trial.

“Having found that the relevant scientific community, law enforcement, the judiciary and the governmental entities responsible for funding and oversight of the APD [Austin Police Department] DNA lab reached the conclusion that the testing done by the lab was unreliable, the Court concludes it would be shocking to the conscience to uphold the conviction of Mr. Escobar,” Wahlberg wrote. “Mr. Escobar’s trial was fundamentally unfair.”

Escobar’s attorneys told The Appeal they can now only wait to see if the court grants Escobar another chance to prove his innocence. Spokespeople for the Travis County district attorney’s office did not respond to a request for comment.

“If Mr. Escobar’s conviction and death sentence are upheld, it would raise the specter of whether any lessons have been learned since the tragic execution of Cameron Todd Willingham, an innocent man killed by the state of Texas based on junk science,” Carlotta Lepingwell, one of Escobar’s attorneys, told The Appeal.

The grounds for Judge Wahlberg’s decision fit into two categories of misconduct: scientific and legal.

The case’s DNA evidence—previously considered the most rock-solid proof that Escobar was the assailant—has since fallen apart. Escobar’s trial is the latest in a long series of convictions from across the nation that have unraveled as criminologists admit that DNA evidence is not nearly as reliable as it was once made out to be. Unlike bite mark or blood spatter analysis, DNA analysis does involve verifiable science, but it is often misused by laboratory technicians, police, and prosecutors. Although DNA evidence is very useful for excluding suspects from having committed potential crimes, it is far less reliable when it comes to proving that a specific person committed a crime.

In June 2016, Austin Police Chief Art Acevedo temporarily shut the department’s crime lab down, a closure that had been a long time coming. For years, the lab had resisted updating its standards to the most recent scientific methods suggested by the Scientific Working Group on DNA Analysis Methods. Despite that, the agency’s accrediting bureau, the American Society of Crime Laboratory Directors, continued to give the lab passing grades.

Outside investigators began looking into the lab in 2016, after DNA analyst and serologist Diana Morales provided inconsistent testimony in the case of 26-year-old William McGee, who’d been charged with sexual assault. Auditors with the Texas Forensic Science Commission had also alleged that Morales had used faulty math to reach conclusions about DNA samples in the case. This hadn’t been Morales’s first scandal. Earlier that year, a freezer in the crime lab had malfunctioned, and compromised numerous DNA samples. But Morales failed to alert prosecutors, police, defense attorneys, or judges of the malfunction.

After a scathing state audit found that Austin’s crime lab was using scientifically unsound techniques in virtually all of its cases, Acevedo closed the lab in December 2016. (The lab reopened under state supervision.) That same month, the city of Austin said it had lost confidence in most of the staffers who’d been employed there, and that it was not cost-effective to attempt to retrain them. One of those staffers was Morales. She no longer works at the lab.

The court finds the use of that evidence violated Escobar’s right to due process.David Wahlberg, Former Judge, 167th Criminal District Court

Years before these audits and closures, Morales’s testimony was a critical part of the Austin DA’s case against Escobar.

“The court finds that newly available scientific evidence demonstrates that the DNA evidence relied upon for this conviction was scientifically unreliable,” Judge Wahlberg wrote last month. “The court finds the use of that evidence violated Escobar’s right to due process.”

Furthermore, Wahlberg stated in a September hearing that he suspected Travis County DA’s office  employees may have worked to cover up Morales’s failures. Since Escobar’s 2011 conviction, his attorneys have filed multiple requests for information from the DA’s office—including requests regarding the DA office’s relationship with Morales. Escobar’s attorneys say that the DA’s office said, in 2017, that it would no longer work with Morales due to her poor record. However, in 2018, the office, which was then under Margaret Moore, stated in court that it would work with Morales again in certain circumstances. Escobar’s attorneys then filed a series of discovery requests  to find out what prompted the change. In response, the Travis County DA’s office turned over a series of emails to Wahlberg. Upon reading them, the judge called a hearing in September 2020 and stated he was worried about the emails’ contents.

During the hearing, Wahlberg said the emails raised questions about whether former DA Moore’s office had changed its policy in order to avoid disclosing potentially damning evidence. Had the office not changed its policy, it would have been forced to turn over information to Escobar’s legal team that showed the crime lab analyst who testified in his case had been found to be unreliable. (Wahlberg did not turn that evidence over to Escobar’s attorneys because he suspected Moore’s office would appeal that decision and he did not want to further delay the case.) Both Wahlberg and Escobar’s lawyers say that the prosecutors’ decisions potentially violated the U.S. Supreme Court’s 1963 ruling in Brady v. Maryland, which requires that prosecutors disclose all “exculpatory evidence” that could possibly prove a defendant’s innocence.

“The emails I believe provide a basis for a reasonable suspicion—and I use that term reasonable suspicion advisably—for a reasonable suspicion that the District Attorney’s Office may have sought to change that policy with regard to that witness for the specific purpose of avoiding Brady disclosure,” Wahlberg said at the Sept. 30 hearing. “And I tell you I’m saying that not because I have found that to be the truth, not because I believe it beyond a reasonable doubt, but because I think those emails justify a suspicion that that happened.”

On Dec. 31, Wahlberg issued a written recommendation in which he assailed multiple aspects of the crime lab’s policies over the last decade, as well as specific issues with the DNA evidence in Escobar’s case. Multiple pieces of DNA evidence that the prosecution relied on at trial, Wahlberg wrote, would now be considered “inconclusive” using contemporary DNA analysis techniques. Without the questionable DNA, Wahlberg wrote, the rest of the prosecution’s evidence was not particularly strong.

Wahlberg wrote that the fingerprint found at the scene was inconclusive, a shoe print found at the scene was “a tread design shared by thousands of other shoes in the Austin area,” that cell tower data was not capable of determining Escobar’s exact location, and that the testimony of Escobar’s ex-girlfriend “changed dramatically” between interviews. Furthermore, Escobar says he was injured and bleeding because he was mugged twice the night of the murder—and Escobar’s sister’s boyfriend testified that he witnessed and broke up one of the fights.

“The Court finds that without the DNA evidence, the remaining evidence relied on by the State was circumstantial and weak and would not have supported a conviction for capital murder,” Wahlberg wrote. Under Texas state law, Wahlberg can only request that the Texas Court of Criminal Appeals grant Escobar a new trial. The decision is now in the appellate court’s hands.

“Mr. Escobar has maintained his innocence from the beginning,” Lepingwell, the defense attorney, told The Appeal. “Areli Escobar is a father, a son, a brother, and a recent grandfather. His life matters. And truth and reliable forensic evidence in the criminal justice system should matter, too.”

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. 25, 10:00 a.m., Eastern time: One more law enforcement officials has been reported as having attended the rally, bringing the total to 39 individuals from 17 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 Justice Collaborative helped in the production of the letter. The Appeal and the Justice Collaborative are a fiscally sponsored project of Tides Advocacy.

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