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Coronavirus: Voting And Abortion Rights Imperiled

Coronavirus: Voting And Abortion Rights Imperiled


People in nearly every state are under some form of a stay-at-home order because of the COVID-19 pandemic. But today in Wisconsin, residents must decide whether they want to protect their health or participate in democracy. The state’s Democratic governor tried to postpone in-person voting in the presidential primary and local elections, but Republican legislators and a solid conservative majority on the state’s Supreme Court have blocked those attempts.

The New York Times called the decision “only the first round of an expected national fight over voting rights in the year of Covid-19.” The Republicans’ success “rattled democracy in a key battleground state” and in a decision late Monday, the U.S. Supreme Court’s conservative majority ruled against Wisconsin Democrats’ attempt to extend the deadline for absentee voting in the elections, saying such a change “fundamentally alters the nature of the election.” (In another part of the decision, the justices said, inexplicably, that moving the date of the elections might not.)

The Court’s four liberal members dissented, with Justice Ruth Bader Ginsburg writing that “the court’s order, I fear, will result in massive disenfranchisement.” The Court ruled that voters had to cast absentee ballots by April 7, but, Ginsburg wrote in dissent, “tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7.”

On Twitter, liberal political advocate Leah Greenberg noted the irony in the Court’s decision being issued remotely: “The Supreme Court has started issuing decisions remotely in order to protect their own safety. One of their first remote decisions was that Wisconsin voters will have to show up in person and risk their lives if they want their votes counted.”

The reasons behind the decision seem nakedly partisan and race-based. “Trump, whose false claims about voter fraud have gone far beyond anything ever alleged by his Republican predecessors, appeared to openly say as much last week when he complained about Democratic vote-by-mail proposals in Congress,” reports the New York Times. “They had levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again,” he said on “Fox and Friends.”

As Kyle Barry wrote last week for The Appeal: Political Report, a spot on the state’s Supreme Court is also at issue in today’s election. “Jill Karofsky, a trial court judge and former prosecutor, is challenging incumbent Daniel Kelly, who was appointed by Republican Governor Scott Walker in 2016” and was personally endorsed by President Trump. “If Karofsky wins, liberals will narrow conservatives’ majority to a 4-3 edge, and will then have a chance to regain control of the court” in 2023.

Criminal justice has played a major role in the judicial race, and the winner could play a pivotal role in deciding the partisan fight over a Republican-supported move to purge more than 200,000 names from voter registration rolls, which could significantly alter the November election results.

It would seem that Trump, and his ideological allies on the U.S. Supreme Court and the Wisconsin Supreme Court, are joining authoritarians in other countries who have exploited the coronavirus to scrap civil liberties. In Hungary, “Viktor Orban used the pandemic to institute rule by decree,” writes Michelle Goldberg in a New York Times opinion column. “In Jordan and Thailand, leaders have used the pandemic as an excuse for cracking down on the press. Prime Minister Benjamin Netanyahu of Israel and his allies have frozen the Knesset and shut down most courts, postponing Netanyahu’s own arraignment on corruption charges.”

“American autocrats are no less opportunist,” Goldberg writes, in their attempts to use the pandemic to further erode the right to an abortion. In so doing, they are sacrificing public health goals by forcing people to travel often long distances to get an abortion. Abortion providers in New Mexico, for example, are seeing an influx of patients from Texas, where Governor Greg Abbott declared abortion a nonessential procedure that could not be performed during the coronavirus pandemic. This prompted one woman to drive 780 miles to Denver for a medication abortion. “Obviously, had this pregnancy not been a factor, I wouldn’t be traveling during a pandemic,” she said in a lawsuit she filed against Abbott.

Abbott’s reasoning, that disallowing abortions saves personal protective equipment needed by doctors and nurses, is specious. The alternative to abortion, for a pregnant person, is carrying a fetus to term and giving birth, which requires far more prenatal (and postnatal) appointments, and a longer and more involved hospital stay during birth.

And then there are the additional hospitalizations that are not uncommon during pregnancy. This writer, for example, who is pregnant, just this week had complications that required her to spend 24 hours in a hospital. During that time, nearly a dozen doctors, nurses, and other staff members came into the room, and each time had to use masks, gloves, and gowns. The Republican position in this case is not a logical argument; it’s a political one.

Republicans in several states are trying to ban abortion during the coronavirus crisis, and they have made similar arguments. “Federal courts have blocked such orders in Ohio and Alabama,” reports NPR. “Officials in Iowa agreed to allow doctors to determine when an abortion is needed. A federal court briefly blocked a ban in Texas, before that decision was overturned on appeal. Litigation is ongoing.”

One woman, M, arrived at her appointment at a clinic in Oklahoma City, only to find the doors locked after the facility had to shut down because of an order from Governor Kevin Stitt banning most abortions. “And immediately I just, like, broke down,” she told NPR. “I just lost my job because of the coronavirus. I already have a 10-month-old daughter. I don’t know what I’m gonna do, you know?”

M found a friend to drive her to a clinic in Kansas that would take her.  “There were so many people there from so many different states, and I only think about how many couldn’t make it,” she said.

Considering the people who didn’t make it to the clinic is crucial, but it is also worthwhile to consider all the people who did. They were all brought together from different states into a single waiting room. During a pandemic. Because of politics.

Are We Really All ‘In This Together’?

Are We Really All ‘In This Together’?


Everyone, it seems, is telling us that we are all “in this together”: The World Health Organization, the First Minister of ScotlandLL Cool J, and Gayle King among them. This seems to mean, for most, that people should think of others when deciding whether to cancel events, whether to go to the beach, and exactly how much toilet paper to buy. It means that our actions affect others, but it also means that ultimately our own fates are tied with others’. If we each do our part to “flatten the curve,” then we can minimize damage to institutions that bear on our well-being, like schools, hospitals, and the stock market. It’s basically appealing to a sort of enlightened self-interest in all of us.

Usually prisoners are not included in statements like these. Prisoners are more of a “them” than an “us,” generally speaking. Most people favor voting rights across the board, except for those in prisons. Lots of people favor common sense safety measures, except those that happen to involve alternatives to incarceration, like drug treatment and therapy. Even enlightened self-interest loses out to punitive impulses when it comes to people convicted of crimes.

COVID-19 seems to be changing that a little. The threat of a serious outbreak within penal institutions is real, experts say. Some jails are beginning to release people, a few judges are cutting sentences short, some prisons are refusing new prisoners, prosecutors are refusing to take certain cases, and police have cut back on low-level arrests. Why now? Maybe it’s the potential for rapid and devastating infection in cramped, unsanitary conditions. Or the vocal protests of prison staff, complaining that their health and safety is being compromised.

But if people were acting rationally, they would have made these adjustments long ago. COVID-19 is not the first infectious disease that has been allowed to fester inside prisons and jails, and then attack outside communities. In a 2016 article in The Atlantic, public health scholar James Hamblin wrote, “The penal system remains a source of diseases that spread among prisoners at rates far exceeding those in the communities from which they came. Of more than 10 million incarcerated people in the U.S. alone, 4 percent have HIV, 15 percent have hepatitis C, and 3 percent have active tuberculosis.” These diseases are “sanctioned implicitly by the state.”

“The penal system is also a primary reason that these diseases can’t be eliminated globally,” he writes, including not only the lack of condoms or medications in prisons, but also the effect of releasing people into the community with no access to treatment. “As black men are disproportionately incarcerated, infectious disease spreads disproportionally in black communities. Among transgender women of color in the U.S., the rate of HIV infection is 27 percent, inextricably linked to the incarceration rate, and some 35 percent of transgender prisoners in the U.S. report sexual victimization while incarcerated.”

Perhaps, then, the sudden consideration of the incarcerated when it comes to the current pandemic has to do with the fact that a COVID-19 outbreak in prisons threatens the broader community, not simply low-income people of color.

Or perhaps it’s a fear that the dire threat would create other risks, risks that could potentially affect more affluent communities. In Brazil, after minimum-security prisoners were told they would not be able to leave for Easter break because of the coronavirus, hundreds escapedIn Colombia, at least 23 prisoners died in clashes with prison authorities over the weekend after what prisoners said were protests against officials for not doing enough to control the spread of coronavirus. Authorities say that the prisoners were trying to escape. The country’s justice minister, Margarita Cabello, called the riots part of a “massive and criminal escape attempt” but then undermined her own statement by saying that there was “no sanitation problem” in the prison.

It may be, then, that the rapid spread of coronavirus really does make the well-being of prisoners directly relevant to the relatively empowered. Our fates have always been interconnected, but this may be the first time that it has been so starkly apparent that, yes, we are all “in this together.”

Want To Drive Voter Turnout In 2020? Stop Arresting People.

Want To Drive Voter Turnout In 2020? Stop Arresting People.


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.

Democrats who hope to retake the White House in November are seeking to turn out voters—a lot of them. According to one information systems professor who worked for President Barack Obama’s presidential campaigns, “Black neighborhoods in key swing states hold enormous power to reshape politics in November and beyond.”

But there are various hurdles, including the fact that Black people are targeted by law enforcement at vastly disproportionate rates. This turns out to be a significant determinant of whether a person will vote, or otherwise participate in politics. If Democrats are serious about increasing political participation in the Black community, they will stop locking them up in such large numbers.

Much attention is paid to the effects of disenfranchisement among people who have criminal convictions, but even among those who are allowed to vote, people who have had convictions vote at very low rates. In an article published in Chicago University Press’s Journal of Politics, several academics explained how they used data on voting and interactions with the criminal system from Pennsylvania to assess whether the association between incarceration and reduced voting is causal. They found that serving time in prison makes the likelihood of voting fall sharply, and, in some tests, makes it vanish entirely.

University of Kansas researcher Brandon Davis published a study late last year detailing not only the fact that contact with the criminal system drives down political participation but also what types of contact influence participation. “There’s a lot of existing research that will tell you carceral contact has effects on political participation, but they don’t tell you how it happens,” Davis told KU News Service. “This paper is about understanding how it happens, and that understanding can help inform how to address problems of citizens who aren’t engaged.”

“Among the findings that stand out to me was that having a network contact was more powerful than personal contact,” Davis said. “If a person has a family member or someone they know in jail, it had a greater effect than, say, being pulled over.” He found that network contacts had a negative influence on feelings of civic duty and trust in government, and increased distrust of government, in turn, led to lower political participation.

“In a society founded on petitioning government and participation, the study of the political consequences of carceral expansion has major implications for what it means to be an American citizen,” Davis wrote. “My results demonstrate that carceral contact is negatively impacting citizen engagement, not just for those directly contacted but also for their family members and communities. Individuals who simply live in areas with high levels of carceral contact are likewise experiencing demobilization effects, amplifying the total effect. It is time scholars took notice of the ramifications of predacious institutional interactions.”

Vermont and Maine are the only two states that do not take away a person’s right to vote, which means those imprisoned there can fill out ballots and participate. But, as the Marshall Project has reported, very few do. Corrections officials in both states encourage prisoners to vote but rely on volunteers to register people. Incarcerated people are restricted from using the internet and often cut off from news sources. They cannot campaign for candidates or show signs of political partisanship. According to John Sughrue, the law librarian at Southern State Correctional Facility in Vermont, the biggest issue is the high illiteracy rate among the state’s prisoners. Even those who can read struggle to write, which makes registering to vote and filling out a ballot practically impossible without help. Some studies estimate that nationwide, nearly 60 percent of people in prison are illiterate. And, as Davis found, many are distrustful of government and feel there is no point in voting.

In Florida, fierce battles over felon enfranchisement have left potential voters confused about their right to vote, reports Kira Lerner for The Appeal. Voting rights advocates celebrated in 2018 when Amendment 4 passed overwhelmingly, which restored the voting rights of Floridians with felony convictions after they complete their sentences, including parole or probation.

But last June, Governor Ron DeSantis signed a bill which requires people to pay off all court fines and fees associated with their sentences in order to be eligible to vote. One study estimated that roughly 80 percent of people with felony convictions in Florida still owe fines and fees and were affected by the legislation. Most owe between $500 and $5,000, and Black voters are more likely to have outstanding court debt. “After the law was signed, several voting rights organizations filed suit, and that litigation continues,” writes Lerner. “In February, a federal appeals court upheld a lower court’s preliminary injunction, finding that the state cannot prevent people from voting because of their inability to pay off their legal financial obligations, but the ruling only applied to the 17 named plaintiffs in the lawsuit. For the hundreds of thousands of others in a similar position across Florida, their status remains unclear.”

“It is a setup that the state has deliberately designed to cause confusion,” Daniel Tilley, legal director of the ACLU of Florida, told Lerner. “State officials are taking actions that they know will cause confusion and they intend those actions to cause people not to register.”

People unsure of their voting rights could understandably fear criminal prosecution if they vote. “Prosecutors have gone after other voters across the country, particularly African Americans, for voting when they were not eligible but were not aware of their crime,” writes Lerner. Tilley said he thinks that prosecution fear is “something that certain state officials want to capitalize on.”

“These are people who have, by definition, past experience with the criminal justice system,” he said. “I don’t think any of them are particularly eager to risk another felony conviction when the state is refusing to give the public guidance on who is eligible and who isn’t.”

Sentenced To COVID-19

Sentenced To COVID-19


Special Edition

Coronavirus: Sentenced to COVID-19

These days, I spend a lot of energy thinking about how to keep my child and my parents safe from the coronavirus. But if my child, or one of my parents, were incarcerated, I couldn’t do this. I would have no control. Corrections officers, sheriffs, and wardens decide whether to stock up on soap, whether to allow access to sinks, whether to clean common areas or even allow prisoners to scrub their own areas with disinfectant. And, judging from the past, the answer would almost always be no.

Prison officials over the years have shown staggering indifference to human life, and the quality of life, depriving prisoners of books, greeting cards, chalk, and, as has recently been reported, hand sanitizer, in the name of “security.” There would be no reason to believe that anyone would be looking out for the health and safety of my family member, because that is not how life works in prisons and jails.

“The danger of infection is high in these crowded, unsanitary facilities—and the risk for people inside and outside of them is exacerbated by the ‘churn’ of people being admitted and released at high rates,” writes Premal Dharia in Slate. “In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.”

In 2018, five cases of mumps in immigration detention centers ballooned to nearly 900 cases among staff and detainees.

Normally, crowded jails overlook prisoners’ medical problems and find it difficult merely to separate people based on their security classification, Homer Venters, the former chief medical officer of the New York City jail system told Mother Jones. Adding quarantines and sequestration of high-risk prisoners to the task will make managing a COVID-19 outbreak “almost impossible,” he said. “For jails and prisons that are already filthy, and have, generally speaking, a low standard of clinical care, and are trained to take care of one person at a time … this will be a very, very difficult process.”

Even if a person is not incarcerated at all but has pending charges and is making regular appearances in court, the outcome might not be different. Courts are crowded, dirty, and similarly indifferent to the well-being of defendants. All of this means that a sentence of a day, a year, or even just an arrest can really mean a sentence to infection.

In other systems, criminal punishments are explicitly confined to the loss of liberty itself. The Finnish Sentences Enforcement Act of 2002, for example, states: “Punishment is a mere loss of liberty. The enforcement of the sentence must be organised so that the sentence is [only the] loss of liberty. Other restrictions can be used to the extent that the security of custody and the prison order require.” Finland, Norway, Sweden, and Germany try to make the prison experience as close as possible to the outside environment. In the law review article “Progressive Alternatives to Imprisonment in an Increasingly Punitive (and Self-Defeating) Society,” law professors Sandeep Gopalan and Mirko Bagaric argue that this approach “is achieving outstanding results, with recidivism levels of prisoners after they are released as low as 20 percent.” That’s a fraction of the recidivism rate in the U.S.

When it comes to all the punishment inflicted on those in the criminal system in the U.S., the loss of liberty is the tip of the iceberg. There are plenty of corrections officers, police officers, prosecutors, and even judges who miss no opportunity for punishment and degradation. When we draw people into the system, we sentence them to malnutrition. To senseless violence. To neglect. To isolation. To boredom. To labor. We sentence their children to grow up without parents.

During my years as a public defender in New York City, not a week went by that I did not talk to a panicked parent, promising to do everything I could to help ensure their child’s safety at Rikers Island. But I couldn’t do much. These clients were all being held in on bail, having not been convicted of anything, but they were enduring punishment that was just as real as anything post-conviction. I spent countless hours on the phone with jail staff, begging them to care.

One of my young clients, because of the block where he grew up, was repeatedly attacked by people from a rival neighborhood. Some of the attacks were serious. Once, his throat was slashed. His mother called me every day, and I called the jail every day, trying to get him to safety. If he were out, she said, she could keep him home when he wasn’t working. But with him at Rikers, she could only pray. “I’m not even religious,” she told me, “but what else do I have?”

Another client, a transgender woman, was being abused by guards, sometimes sexually. She was having suicidal thoughts. I asked for her to be placed in protective custody—which at Rikers is essentially solitary confinement—and placed on suicide watch. She was isolated and miserable, but the abuse did not stop. Another client, whose girlfriend was going to give birth any day, had a breakdown because he couldn’t be present for the birth of his first child, and couldn’t support his partner. He called me saying he had swallowed a handful of pills he’d found. I spent seven hours trying to convince someone to check on him, but all I got was the same line: “Counsel, we’re on lockdown. There’s nothing we can do.” Another client, who was incarcerated at age 16, quickly developed an ulcer.

The judges who were responsible for these people’s incarceration would never have said that they sentenced my clients to slashings, sexual abuse, a breakdown, or an ulcer, but they certainly didn’t order their release when I told them what was happening. These outcomes were not mandated, or intended, but they were certainly permissible. It comes with the territory.

There is no reason that we need to accept these outcomes as inevitable. We do not need to shrug our shoulders when told that an outbreak of COVID-19 is probable in jails and prisons. In Denver, for example, and in jails across the country, officials could make an exception to the arbitrary rule that hand sanitizer is contraband and give people a chance to protect themselves inside. We can also just lower our incarcerated population, as Iran did. Yesterday, Brooklyn District Attorney Eric Gonzalez, along with criminal justice advocates and public health experts, asked New York Governor Andrew Cuomo to grant emergency clemencies to elderly and sick prisoners.

In Santa Clara County, California, which has had 45 confirmed cases of COVID-19, Sheriff Laurie Smith told the county’s board of supervisors this week that the possibility of an outbreak in local jails was a “huge concern.” Her department is considering “paroling inmates considered ‘criminally low-risk,’ releasing them with ankle monitors, or placing them in alternative custody arrangements such as private residences or residential drug-treatment programs,” reports Mother Jones. And Smith is looking at ways to slow the flow of people into custody in the first place. She said she is planning to ask the probation department to limit probation violations and is encouraging officers to only book suspects for felonies, not misdemeanors.

There isn’t much of a silver lining to the COVID-19 pandemic, but it would certainly be an improvement if, in the future, law enforcement and judges consider what a sentence actually entails.

Sentenced to COVID-19

Sentenced to COVID-19


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.

These days, I spend a lot of energy thinking about how to keep my child and my parents safe from the coronavirus. But if my child, or one of my parents, were incarcerated, I couldn’t do this. I would have no control. Corrections officers, sheriffs, and wardens decide whether to stock up on soap, whether to allow access to sinks, whether to clean common areas or even allow prisoners to scrub their own areas with disinfectant. And, judging from the past, the answer would almost always be no.

Prison officials over the years have shown staggering indifference to human life, and the quality of life, depriving prisoners of books, greeting cards, chalk, and, as has recently been reported, hand sanitizer, in the name of “security.” There would be no reason to believe that anyone would be looking out for the health and safety of my family member, because that is not how life works in prisons and jails.

“The danger of infection is high in these crowded, unsanitary facilities—and the risk for people inside and outside of them is exacerbated by the ‘churn’ of people being admitted and released at high rates,” writes Premal Dharia in Slate. “In Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.”

In 2018, five cases of mumps in immigration detention centers ballooned to nearly 900 cases among staff and detainees.

Normally, crowded jails overlook prisoners’ medical problems and find it difficult merely to separate people based on their security classification, Homer Venters, the former chief medical officer of the New York City jail system told Mother Jones. Adding quarantines and sequestration of high-risk prisoners to the task will make managing a COVID-19 outbreak “almost impossible,” he said. “For jails and prisons that are already filthy, and have, generally speaking, a low standard of clinical care, and are trained to take care of one person at a time … this will be a very, very difficult process.”

Even if a person is not incarcerated at all but has pending charges and is making regular appearances in court, the outcome might not be different. Courts are crowded, dirty, and similarly indifferent to the well-being of defendants. All of this means that a sentence of a day, a year, or even just an arrest can really mean a sentence to infection.

In other systems, criminal punishments are explicitly confined to the loss of liberty itself. The Finnish Sentences Enforcement Act of 2002, for example, states: “Punishment is a mere loss of liberty. The enforcement of the sentence must be organised so that the sentence is [only the] loss of liberty. Other restrictions can be used to the extent that the security of custody and the prison order require.” Finland, Norway, Sweden, and Germany try to make the prison experience as close as possible to the outside environment. In the law review article “Progressive Alternatives to Imprisonment in an Increasingly Punitive (and Self-Defeating) Society,” law professors Sandeep Gopalan and Mirko Bagaric argue that this approach “is achieving outstanding results, with recidivism levels of prisoners after they are released as low as 20 percent.” That’s a fraction of the recidivism rate in the U.S.

When it comes to all the punishment inflicted on those in the criminal system in the U.S., the loss of liberty is the tip of the iceberg. There are plenty of corrections officers, police officers, prosecutors, and even judges who miss no opportunity for punishment and degradation. When we draw people into the system, we sentence them to malnutrition. To senseless violence. To neglect. To isolation. To boredom. To labor. We sentence their children to grow up without parents.

During my years as a public defender in New York City, not a week went by that I did not talk to a panicked parent, promising to do everything I could to help ensure their child’s safety at Rikers Island. But I couldn’t do much. These clients were all being held in on bail, having not been convicted of anything, but they were enduring punishment that was just as real as anything post-conviction. I spent countless hours on the phone with jail staff, begging them to care.

One of my young clients, because of the block where he grew up, was repeatedly attacked by people from a rival neighborhood. Some of the attacks were serious. Once, his throat was slashed. His mother called me every day, and I called the jail every day, trying to get him to safety. If he were out, she said, she could keep him home when he wasn’t working. But with him at Rikers, she could only pray. “I’m not even religious,” she told me, “but what else do I have?”

Another client, a transgender woman, was being abused by guards, sometimes sexually. She was having suicidal thoughts. I asked for her to be placed in protective custody—which at Rikers is essentially solitary confinement—and placed on suicide watch. She was isolated and miserable, but the abuse did not stop. Another client, whose girlfriend was going to give birth any day, had a breakdown because he couldn’t be present for the birth of his first child, and couldn’t support his partner. He called me saying he had swallowed a handful of pills he’d found. I spent seven hours trying to convince someone to check on him, but all I got was the same line: “Counsel, we’re on lockdown. There’s nothing we can do.” Another client, who was incarcerated at age 16, quickly developed an ulcer.

The judges who were responsible for these people’s incarceration would never have said that they sentenced my clients to slashings, sexual abuse, a breakdown, or an ulcer, but they certainly didn’t order their release when I told them what was happening. These outcomes were not mandated, or intended, but they were certainly permissible. It comes with the territory.

There is no reason that we need to accept these outcomes as inevitable. We do not need to shrug our shoulders when told that an outbreak of COVID-19 is probable in jails and prisons. In Denver, for example, and in jails across the country, officials could make an exception to the arbitrary rule that hand sanitizer is contraband and give people a chance to protect themselves inside. We can also just lower our incarcerated population, as Iran did. Yesterday, Brooklyn District Attorney Eric Gonzalez, along with criminal justice advocates and public health experts, asked New York Governor Andrew Cuomo to grant emergency clemencies to elderly and sick prisoners.

In Santa Clara County, California, which has had 45 confirmed cases of COVID-19, Sheriff Laurie Smith told the county’s board of supervisors this week that the possibility of an outbreak in local jails was a “huge concern.” Her department is considering “paroling inmates considered ‘criminally low-risk,’ releasing them with ankle monitors, or placing them in alternative custody arrangements such as private residences or residential drug-treatment programs,” reports Mother Jones. And Smith is looking at ways to slow the flow of people into custody in the first place. She said she is planning to ask the probation department to limit probation violations and is encouraging officers to only book suspects for felonies, not misdemeanors.

There isn’t much of a silver lining to the COVID-19 pandemic, but it would certainly be an improvement if, in the future, law enforcement and judges consider what a sentence actually entails.

Coronavirus: Prosecuting Our Way Out Of A Pandemic

Coronavirus: Prosecuting Our Way Out Of A Pandemic


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 late January, the Public Security Department of China’s Hubei province, whose capital is Wuhan, announced that carriers of the novel coronavirus may face criminal charges if they intentionally spread the pathogen to other people by spitting at them. Officials also announced that people believed to have the virus who refuse to be screened, quarantined, or treated could also face charges if they transmit the disease to others. In Italy, prosecutors opened an investigation into hospitals amid reports that doctors initially delayed testing an Italian “super-spreader,” possibly allowing the disease to proliferate.

Where there is fear and panic, criminal charges are never far behind. No matter how unproductive or even counterproductive prosecutions may be, people continually call for them to solve society’s gravest problems.

In mid-February, the Philippine National Police announced that a person had been arrested after he was identified as the author of a Facebook post stating falsely that a person believed to have coronavirus had died at a Philippine hospital. On discovering that the information was false, the person was charged with violating a law which criminalizes publishing inaccurate information that may endanger the public order. Police have warned others not to post unverified information related to the virus that may create panic and confusion, saying that they will take legal action as they deem necessary. The Philippine minister of justice had earlier ordered an investigation of various cases of alleged dissemination of misinformation about the coronavirus, and ordered criminal charges against those believed responsible. Meanwhile, police in the Philippine city of Legazpi filed criminal charges against an individual who pretended to be sick with coronavirus by lying down in front of a shopping mall, which reportedly caused “unnecessary panic.”

The government of Seoul, in South Korea, recently filed a complaint asking prosecutors to charge Lee Man-hee, the founder of the Shincheonji Church of Jesus, and 11 other church leaders, with homicide, causing harm, and violating the Infectious Disease and Control Act. They are accused of hiding the names of some members as officials tried to track patients before the virus spread. A 61-year-old member of the church was among the first to be infected in the country, and she initially refused to be taken to a hospital to be tested and attended several church gatherings before testing positive. As of late February, 9,000 members of the church had reported symptoms. Of the country’s reported 3,730 cases, more than half of all infections involved members of the Shincheonji Church. One senior member, Kim Shin-chang, told the BBC that some church members had initially been afraid to reveal their identities. “We were worried about releasing this kind of information because of the safety of our members.”

Of course, bringing criminal charges after the fact does nothing to promote trust and transparency between authorities and community members; it does the opposite. But it is often what ordinary people call for. In the U.S., an employee at the Dartmouth-Hitchcock Medical Center in New Hampshire recently showed signs of possible coronavirus and was told to self-quarantine, but instead he went to a mixer at a crowded music venue. Three days later, he was confirmed as the state’s first coronavirus case and later a close contact of his became the second. The man was subsequently officially ordered by New Hampshire’s health commissioner to isolate himself at home, but questions remained on how to enforce directives to self-quarantine, as thousands of people across the country have been ordered to do. On Facebook, some people called for the coronavirus patient to be jailed, according to the New York Times.

Under New Hampshire law, a person who refuses to comply with a formal isolation order issued by the health commissioner is guilty of a misdemeanor. In other states, refusing to comply is a felony. But at the time of the mixer, the patient had not been diagnosed, and had merely been advised by a healthcare worker to stay home, so he was acting irresponsibly, not violating any laws. “You can’t bring criminal charges for being a bonehead or just not doing what you were told was advisable to do,” Wendy Parmet, faculty director of the Center for Health Policy and Law at Northeastern University, told the New York Times. “It’s not illegal to ignore the advice of your health care provider, or even the health department, until officials follow the particular procedures to issue a formal health order, and those procedures vary by state.” And it’s also bad policy. “We certainly don’t want people to think that they shouldn’t get tested because if they do, they’ll open themselves up to criminal liability, or a policeman at the door enforcing quarantine,” she said. “Those are consequences that deter testing, treatment and compliance.”

When a St. Louis-area father and daughter attended a school dance while another member of their family was being tested for the virus, people made similar calls for them to be jailed. “Disparaging remarks made against the family on social media prompted police to patrol the family’s home,” reports the Washington Post. “Community members on Facebook expressed outrage at the possibility that the patient’s father ignored officials’ direction to self-quarantine, and some suggested the man should face legal consequences.”

“A person theoretically could be held civilly or criminally liable for transmitting the virus after disregarding a self-quarantine request, but Parmet said those consequences are unlikely,” reports the Post. “A lawsuit would have to show the infected person caused someone else’s illness and failed to take reasonable care.” In the strictest scenario, Parmet said, police can enforce legally binding quarantine orders, but an in-between scenario also exists in which government officials threaten to file a legally binding quarantine order but do not do so. Parmet added that criminal prosecution would be a bad way to make public health policy.

According to the Centers for Disease Control and Prevention, “the Commerce Clause of the U.S. Constitution grants the federal government isolation and quarantine authority,” reports USA Today. “The Secretary of Health and Human Services can take actions to prevent the spread of communicable disease from foreign countries into the United States and between states,” and “within states’ borders, state and local health officials have quarantine and isolation enforcement power.” The CDC notes, though, that these laws can vary from state to state. In most states, breaking a quarantine order is a criminal misdemeanor. Fines and imprisonment are possible punishments for breaking a federal quarantine, but federal quarantines are rare.

There is one use of criminal law that might be somewhat less destructive and possibly even productive: Yesterday, the Justice Department threatened to prosecute any individual or company seeking to profit off fear by gouging the prices of items people are buying to combat the virus. In a statement, the DOJ said that any individual or company that violates U.S. antitrust laws relating to producing or selling public health products such as face masks, respirators, and diagnostics will be held accountable. “In particular,” reports the National Review, “entities that ‘fix prices’ or ‘rig bids’ for personal health protection equipment like sterile gloves or face masks could face criminal prosecution.” The Justice Department also threatened to prosecute competitors who divide up consumers of public health products among themselves. Also yesterday, the Food and Drug Administration and the Federal Trade Commission sent a letter to seven companies about accusations that they were selling fraudulent health products.

There is some logic in threatening companies that might otherwise seek to take advantage of a fearful populace to make money. But given that most antitrust enforcement options available to the government could be pursued with civil charges, the threat of criminal enforcement seems unnecessary. Civil charges are preferable to criminal charges in a variety of contexts, but especially so in these cases. What sense could it possibly make to place possibly infected people in close quarters with others who cannot leave? What purpose could it serve, other than feeding a desire for revenge?

Prosecutors’ ‘O.J. Simpson Question’ And The Case Against Peremptory Strikes

Prosecutors’ ‘O.J. Simpson Question’ And The Case Against Peremptory Strikes


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 all of the nearly 150 years that the U.S. Supreme Court has recognized that the Constitution prohibits excluding people from juries because of race, prosecutors have found new and creative ways to get away with discrimination. That held true even after the Court’s 1986 decision in Batson v. Kentucky, which held that prosecutors cannot use their peremptory strikes—strikes that allow prosecutors and the defense to remove jurors at their discretion for almost any reason—to exclude Black people on the basis of race.

Some of these tactics have been insidious. In 1995, for example, the Conference of District Attorneys in North Carolina called a meeting and provided prosecutors with a cheat sheet of pat, “race neutral” explanations for striking Black jurors—things like “inappropriate dress,” “physical appearance,” “age,” “body language,” and “attitude,” that could be deployed whenever the defense alleged unlawful racial discrimination. (In over 100 cases raising a Batson violation, North Carolina’s appellate courts have never reversed a conviction because of discrimination against a nonwhite juror.)

By comparison, another scheme that emerged around the same time seems a rather obvious ruse. Known as the “O.J. Simpson question,” it works like this: Prosecutors ask potential jurors for their reaction to the jury’s verdict in O.J. Simpson’s trial, and then strike Black jurors who are untroubled by Simpson’s acquittal, citing that response as a “race-neutral” reason for using a peremptory strike.

Prosecutors in at least three California counties used some variant of the O.J. Simpson question in the 1990s, as did prosecutors elsewhere, including in Colorado and Texas. And although Simpson’s 1995 verdict may not have the same resonance today, contemporary analogs have surfaced: In 2016, a prosecutor in Nevada asked members of the jury pool whether they had any strong opinions about the Black Lives Matter movement, a question that “had, at best, minimal relevance to the circumstances of th[e] case,” according to the Nevada Supreme Court.

Now this practice is up for review before the California Supreme Court. On Tuesday, the court heard argument in a capital case that for the first time puts the O.J. Simpson question—and the practice of striking Black jurors based on their answers to it—squarely at issue.

In 1999, Johnny Duane Miles was convicted and sentenced to death for a string of serious crimes including the rape and murder of a white woman. Before his trial, each prospective juror completed a questionnaire that asked: Were “you upset with the jury’s verdict in the O.J. Simpson case?” After the defense challenged strikes used against two Black prospective jurors who answered “no,” the prosecutor pointed to their answers on the O.J. Simpson question as “the common denominator” justifying removal, and suggested that both people were poorly suited to serve as jurors in a trial that, like Simpson’s, rested on DNA and circumstantial evidence.

In an amicus brief, the NAACP Legal Defense & Educational Fund (LDF) argued that the O.J. Simpson question cannot be considered “race neutral” and that striking Black jurors because they are not “upset” with the verdict amounts to unlawful racial discrimination. Deploying the question is “discrimination by proxy,” LDF said, “a ruse for targeting and then striking Black venirepersons.” (Disclosure: I worked at LDF.)

LDF’s argument is grounded in the reality—plain to anyone who was paying attention to the trial and the unrest that followed, or who has seen “O.J.: Made in America,” and certainly plain to California prosecutors trying capital cases in the late ’90s—that the reaction to Simpson’s verdict broke largely along racial lines. At the time, Simpson was a singularly famous Black athlete and movie star charged with killing his ex-wife and her friend. His trial started in Los Angeles just a few years after four Los Angeles police officers were acquitted in the vicious beating of a Black man, Rodney King, that was captured on video. And Simpson’s defense focused on racism in law enforcement, particularly as to Detective Mark Fuhrman, who had a long history of racist comments. “Studies have shown,” LDF’s brief points out, “that for many Black people, the trial of O.J. Simpson was about the centrality of police brutality to black Americans very sense of self, and was a symbol of endemic racism in the justice system.”

A 1995 CBS poll found that 79 percent of whites believed that Simpson was guilty compared to just 22 percent of African Americans. In the Los Angeles Times, journalist Sheryl Stolberg called Simpson’s acquittal “a moment of sweet triumph for all the anonymous black men in America who didn’t have money to buy a dream team of attorneys to fight a system that produces a racist cop like Mark Fuhrman—and does nothing to weed him out.”

Given this context, it’s unsurprising that responses to the O.J. Simpson question, while not an airtight proxy, would correlate closely with race, and could serve as an effective tool for excluding Black people from juries. The question now is whether the California Supreme Court will ignore that reality, elevating form over substance to say that the question is “race neutral,” or recognize that the question and others like it function as impermissible surrogates for racial bias.

When the O.J. Simpson question reached a Texas Court of Appeals in 2001, one dissenting justice put the issue this way: “We should not sanction skirting around Batson by condoning the peremptory strike of a member of a particular minority based solely on one answer to one question about which a vast majority of that minority have been demonstrated to agree.” Another dissenting justice lamented how “the State found a convenient way to strike African Americans,” and offered another reason the question is so problematic: “It is unfortunate,” he said, “that we ask African Americans to accept our system of justice as a fair and unbiased application of legal principles, then refuse them the opportunity to serve on a jury because they claim, in their minds, the system worked.”

But no matter how the court decides Miles’s case, it can only go so far toward eradicating racial discrimination from jury selection. Batson simply leaves too much room for prosecutors to come up with ostensibly race-neutral reasons for peremptory strikes that conceal unlawful bias. If it isn’t the O.J. Simpson question—or the Black Lives Matter question—it will be something else, something less obvious. Additional reforms are essential.

One option is to fashion new rules that further constrain the use of peremptories. In 2018, the Washington Supreme Court adopted a new rule designed to ban peremptory strikes based on “implicit, institutional, and unconscious” racial and ethnic bias in addition to intentional discrimination. Under the rule, reasons for excluding jurors that are historically tied to racial bias and stereotypes—for example, the prospective juror lives in a high-crime neighborhood, or believes that police officers racially profile, or has close relationships with people who have been arrested—are presumed invalid. The California Supreme Court may explore a similar option with its California Jury Selection Work Group, announced in January, that will “study whether modifications or additional measures are needed to guard against impermissible discrimination in jury selection.”

These reforms are well intentioned, but the more elegant and effective solution might be what Justice Thurgood Marshall called for over 30 years ago in his Batson concurrence: eliminate peremptory strikes altogether. Marshall correctly predicted that Batson “will not end the racial discrimination that peremptories inject into the jury-selection process.” The “inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds,” he wrote, “should ideally lead the Court to ban them entirely from the criminal justice system.”

How Super Tuesday Has Been Shaped By Criminal Justice Issues

How Super Tuesday Has Been Shaped By Criminal Justice Issues


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.

Today, voters in 14 states and one territory will have the option of selecting a candidate to be the Democratic presidential nominee. They will choose among four major candidates: two moderates and two leftists. Among the more remarkable aspects of how the race has developed is the extent to which it has been shaped by criminal justice issues.

As Jelani Cobb wrote for The New Yorker, before Pete Buttigieg and Amy Klobuchar dropped out of the race: “A crude way of summarizing the remaining viable contenders in the Democratic field is to note that voters have a choice of: a former mayor who championed stop-and-frisk practices that targeted African-American and Latino men; another former mayor, who fired a black police chief after he recorded phone calls in which senior white officers made racist comments; a former prosecutor who may have helped send a wrongfully accused black teen-ager to prison; a former Vice-President who co-wrote the 1994 crime bill; a democratic socialist who voted for and defended that bill; or Senator Elizabeth Warren, who has held office only since 2013, and has no comparable stain on her record.”

“Individual politicians often face liabilities with particular segments of the electorate,” he continued. “It’s unusual, though, for so many in one field to be susceptible on such a similar theme; a now entirely white Democratic slate is being asked to explain past positions on criminal-justice issues, and, specifically, the effects of those positions on people of color.”

And just as remarkable as who is on the ballot is who is not. Kamala Harris, an early favorite among many pundits, became an early dropout, in part because of her past as a prosecutor, which led to the meme, “Kamala is a cop.” Harris’s past was troubling not merely because she chose to rise to prominence by contributing to mass incarceration, but because, as I wrote last year for the Daily Appeal, she was a “tough-on-crime prosecutor in a Black Lives Matter era.” “Black communities, in particular Black women … radically re-evaluat[ed] Harris’ record and rhetoric on criminal justice,” wrote Camille Squires for Mother Jones. “On Black Twitter, calling out aspects of Harris’s record as a prosecutor wasn’t just about getting one over on a candidate. It was about holding her accountable for her past actions, which include an anti-truancy law that threatened the parents of students who skipped school with criminal charges, and various failures to hold police and prosecutors accountable for misconduct.”

Harris also opposed a motion for DNA testing that could exonerate a possibly innocent man, changing her stance only after she was shamed for it in the New York Times. In The Atlantic, Conor Friedersdorf wrote that Harris’s “record casts significant doubts about whether she can be trusted to oversee federal law enforcement, the military, intelligence agencies, the detention of foreign prisoners, and more.” Doubt about whether she could win over progressives given this record may have contributed to her downfall.

The more recent dropouts were also dogged by failures in the criminal system. Policing problems in South Bend, Indiana, came to national attention last summer, when a white sergeant fatally shot a 54-year-old Black resident named Eric Logan. The officer’s body camera was not turned on, and Buttigieg had to leave the campaign trail to fly back and face the fury of many residents, especially the Black community. And his decision to fire the city’s first Black police chief “shadowed his presidential campaign, giving rise to complaints he has a blind spot on race and raising questions about whether he can attract the support of African Americans who are crucial to earning the Democratic nomination,” according to the Associated Press.

During the campaign, Amy Klobuchar took some criticism for her role in ramping up mass incarceration, especially for property crimes and quality-of-life violations, as top prosecutor in Hennepin County, Minnesota. But during the last few weeks, she has been slammed for overseeing a deeply flawed prosecution in a high-profile case that sent a possibly innocent teenager, Myon Burell, to prison for life. The vitriol culminated when Klobuchar canceled a rally she had planned in her home state on Sunday night after protesters took the stage and chanted “Klobuchar has got to go” and “Free Myon.” She dropped out of the race yesterday.

Of the remaining candidates, former Vice President Joe Biden has been taken to task repeatedly for his role in crafting the infamous 1994 crime bill, which he used to take credit for and now tries to disavow. And of all the many, many problems that progressives, and even moderates, have with latecomer Michael Bloomberg, the one that has dogged him the most is his role in enthusiastically ramping up the NYPD’s stop-and-frisk program, which he defended even after a federal judge ruled that it violated the constitutional rights of people of color. Not only was it discriminatory, but its effects are still being felt today, in higher school dropout rates and lower trust of police among those who were stopped. Bloomberg clearly embraced the tactic at the time, but he apologized for it just as he joined the presidential race. The apology was rejected by many who found it opportunistic and disingenuous.

All of this ironically leaves President Trump with an opening to run to the left of the Democratic nominee on criminal justice. He has already started. During the Super Bowl this year, it was no secret that Trump was planning to run an ad; the question was only what the particular message would be. Would it peddle lies about the strength of the economy? Would it fearmonger about the dangers of immigrants? Would it just show his favorite image, the map of his 2016 win in the Electoral College? Many were surprised when the ad highlighted a different achievement: criminal justice reform. The ad featured Alice Johnson, who was serving a life sentence on drug charges until Trump granted her clemency at the request of Kim Kardashian West. It said that although other politicians “talk about criminal justice reform, President Trump got it done,” and it said “thousands of families are being reunited.”

“Freeing Black women from unjust prison sentences has never been a focal point of Trump’s agenda before, so the ad was jarring,” Nathan J. Robinson wrote for Current Affairs. “With Trump’s history of calling for black teens to be executed and encouraging police to rough people up during arrests, why was he suddenly sounding like [Equal Justice Initiative founder] Bryan Stevenson?” Because he is “unprincipled,” Robinson posits, “he’s happy to try to steal issues from Democrats and show that he’s actually the one who cares about them. In 2016 he ran as an anti-war, anti-Wall Street candidate. In May of 2019, he used the injustice of American criminal punishment to attack Joe Biden as too harsh!”

It is clear that Trump does not care about “reuniting families,” not after he separated thousands of children from their parents at the U.S.-Mexico border. He certainly does not care about treating people fairly in the criminal system: Trump pardoned Joe Arpaio, the Arizona sheriff responsible for widespread abuse of power and the deaths of inmates. He has also enacted a federal policy allowing civil asset forfeiture, and threatened to “destroy” a legislator who opposed it. He cut federal support for halfway houses, thus keeping people incarcerated for longer, rescinded a rule that discouraged debtor’s prison practices among states, ended federal oversight of abusive police forces, and helped substantially grow the private prison industry.

“Welcome to 2020,” wrote Maggie Astor for the New York Times yesterday, “featuring an entire Democratic field that wants to reduce or eliminate mandatory minimum sentences, divert low-level offenders from jail, end or at least modify the cash bail system, change drug laws and remove an array of legal barriers that restrict people’s lives after they have served their time.” This was unimaginable even four years ago.

And while it is undoubtedly a good thing to see criminal justice issues get long-overdue attention, it’s important to keep in mind that candidates’ plans for the future are as important as their actions in the past, and there is no Democrat––not even Bloomberg––who would be worse than Trump.

Police Exploit Coronavirus Fears To Make Easy Arrests

Police Exploit Coronavirus Fears To Make Easy Arrests


What you’ll read today

  • Spotlight: Police exploit coronavirus fears to make easy arrests

  • High cost of prison diversion programs leave ‘too many people’ imprisoned in Alabama

  • Florida’s HIV criminalization laws target sex workers. A reform bill offers little relief.

  • San Francisco DA plans sweeping changes in sentencing and police stops

  • Political Report: Progressives see Super Tuesday as a chance to transform Los Angeles

  • Pennsylvania county fires top public defenders for speaking out about cash bail

  • Supreme Court to hear case deciding whether asylum seekers can appeal denials

In the Spotlight

Police exploit coronavirus fears to make easy arrests

As the country braces itself for the “all but certain” global pandemic of the coronavirus, some people are stocking up on food and surgical masks, many are Googling how to wash their hands properly, and some are asking how best to keep their children safe. Meanwhile, police are taking advantage of the fearful climate to arrest vulnerable people with drug dependencies. Or, at the very least, they are joking about it in a way that has seemed real enough to fool some people.

“WARNING: If you have recently purchased Meth, it may be contaminated with the Corona Virus,” wrote the Merrill Police Department of Wisconsin, in a Facebook post about the disease last week. “If you’re not comfortable going into an office setting, please request any officer and they’ll test your Meth in the privacy of your home. Please spread the word! We are here for you!”

“It was one of several police departments nationwide to push out the hoax,” reported Meagan Flynn for the Washington Post, and it “generated mixed reactions, some seeing it as funny, others as deplorable, fueling coronavirus fears through fake public service announcements on official channels.”

“I would rather not see police departments making ‘jokes’ like this online or posting false information about a pandemic that is already being treated cavalierly by the executive branch,” one woman said in a comment on the Merrill Police Department’s post. Another person replied, “shut up snowflake.”

It’s hard for the police to even claim that the post was a joke, because they made clear that they had every intention of arresting anyone who came in with drugs. “We will take those easy grabs at removing poison from our community whenever we can,” the department wrote in a follow-up the next day. “That is our role which we un-apologetically must fulfill. It is our hope that an arrest would be the positive catalyst someone may need to start recovery. It is our hope that every drug arrest both works to hold offenders accountable for their deeds and provides them with a path toward treatment options.”

Departments in St. Francis County, Arkansas; Johnson City, Texas; Tavares, Florida; and Decatur County, Kansas, have put out similar messages, and some have gotten local news outlets to run the story like a police news release without a hint of skepticism. “Texas police say local meth is contaminated with coronavirus, offer to test it,” read one headline.

People have also taken the announcements seriously, leading to confusion that public health experts say is dangerous, counterproductive, and inexcusable. “That’s pretty extraordinary,” Stefano M. Bertozzi, a professor at the University of California at Berkeley’s School of Public Health, told the Washington Post. “This is a time when people need to be taking public health authorities very seriously,” he added. “They’re undermining their credibility that will be very much needed if and when an epidemic comes to their community.”

During the Ebola outbreak in 2016, the police department in Granite Shoals, Texas, conducted a similar hoax. “If you have recently purchased meth or heroin in Central Texas, please take it to the local police or sheriff department so it can be screened with a special device,” the since-deleted post said, according to the San Antonio Express-News. “DO NOT use it until it has been properly checked for Ebola contamination!” Police also did this during the Zika virus outbreak in 2018.

One woman showed up at the police station to have drugs tested for Ebola. She was arrested and charged with possession of less than one gram of a controlled substance, the Express-News reported. “That was another joke for the police, who called the defendant the ‘winner’ of the contest,” writes Flynn for the Washington Post.

“Giving mythological information and being tongue-in-cheek about something that’s really serious, where there’s been a lot of loss and a lot of deaths seems just problematic coming from a state agency,” Jon Zibbell, a former Centers for Disease Control and Prevention epidemiologist, told BuzzFeed News.

It isn’t the first time that police have exploited fear and vulnerability to make easy arrests. When I was working as a public defender, some of the arrests I found especially cruel were bait operations, whereby police would leave goods lying outside to see who was desperate enough to take them, and then arresting that person. One scheme that seemed to be a favorite among NYPD officers in the Bronx involved having a female police officer go undercover and try to sell an iPad to a local store owner, saying she had taken it from her abusive boyfriend and badly needed to sell it in order to escape him. If the person behind the counter took her up on the offer, he or she would be arrested for attempted possession of stolen property.

In Seattle, which has a problem with homelessnes and poverty, police place bicycles in poor neighborhoods, hoping to catch those who might take an interest. The Seattle Times reports that in the summer of 2018, 41-year-old Jolene Paris was near a Goodwill outlet store, a liquidation center where they offer goods in bulk that didn’t sell at a regular Goodwill. It is a regular gathering spot for the homeless and the near-homeless. Paris noticed a silver road bicycle in the dirt near some shrubs. She says she started wheeling it around the Goodwill parking lot, asking if it belonged to anyone. But it was a bait bike, and Paris was arrested and charged with theft.

“The defendant, through her own free will, saw and took the bicycle. Seattle Police did not induce or lure the defendant into taking the bike,” prosecutors argued in a brief. “This was a sting operation that targeted homeless people,” defense attorney Brandon Davis argued in a pretrial brief. “It is one of the poorest areas in the city. [Police] placed this bicycle near a Goodwill, a store that serves people with low incomes, and left the bike unlocked. Prosecution of such a person is befitting of Dickensian London, not 21st-century Seattle.” Prosecutors said Paris’s financial condition was irrelevant.

It took the jury half an hour to acquit.

“There are certain charges that are just plain wrong to prosecute,” Davis, the defense attorney, summed up to the court. “This is thousands of dollars to create, and prosecute, a theft charge. [The Seattle Police Department] states they are concerned about property crimes in Sodo, and presumably this is because they are concerned with victims of property crime. The city failed those victims by directing their resources to this case.”

In Chicago in 2018, police filled a truck with designer shoes and left it partially open in an operation reportedly nicknamed Operation Trailer Trap. It led to multiple arrests, and vitriolic protests by community groups who said the truck was parked in low-income, predominantly Black areas of the city and risked worsening the relationship between residents and the police. “Police in Chicago must focus on building trust and better relationships within the communities they serve, not engage in stunts like bait trucks,” Karen Sheley of the American Civil Liberties Union said in a statement. “[The police department] admits that it can’t solve murders and violent crimes because communities of color don’t trust the Chicago Police. These stunts won’t help.” Roderick Sawyer, chairperson of the City Council’s Black Caucus, slammed the operation as an attempt to “create crime.”

The lesson, so far, is clear: Where there is fear and vulnerability, police will find a way to cash in on arrests.

Stories From The Appeal

A guard escorts a prisoner at a maximum security prison in Alabama. [Getty Images]

High Cost of Prison Diversion Programs Leave ‘Too Many People’ Imprisoned in Alabama. A survey of roughly 1,000 people found that 1 in 5 had been turned down for a diversion program because they couldn’t afford the costs of drug tests and monitoring devices. [Lauren Gill]

Florida’s HIV Criminalization Laws Target Sex Workers. A Reform Bill Offers Little Relief. 67% of people arrested under state laws that criminalize HIV exposure and transmission are sex workers. But new legislation meant to modernize these laws would retain harsh penalties against them. [Molly Minta]

San Francisco DA Plans Sweeping Changes In Sentencing and Police Stops. As a candidate, Chesa Boudin condemned gang enhancements as racist. Now as DA he plans to significantly limit, if not eliminate, their use. [Elizabeth Weill-Greenberg]

Political Report: Progressives See Super Tuesday as a Chance to Transform Los Angeles. “We’re at a watershed moment for criminal justice reform,” Patrisse Cullors, a co-founder of Black Lives Matter, says about Measure R and LA’s upcoming DA election. [Daniel Nichanian]

Stories From Around the Country

Pennsylvania county fires top public defenders for speaking out about cash bail: Last week, Montgomery County, Pennsylvania, officials fired Dean Beer, the county’s chief public defender, and Keisha Hudson, the second-ranking attorney. “Under Beer and Hudson, the Philadelphia suburb was thought to have one of the most effective public defense offices in the state,” writes Radley Balko for the Washington Post. “Beer appears to have been fired primarily because he filed an amicus brief with the Pennsylvania State Supreme Court in a case about how the state implements cash bail. That brief details how indigent defendants in Montgomery County are often given irrationally high bail, that judges don’t consider a defendant’s ability to pay or the hardship that incarceration before trial will have on their lives, and that bail amounts appear to be more about keeping defendants behind bars than ensuring their appearance at trial. The brief also points out that defendants aren’t provided with counsel before bail is set, and that those who can’t pay are incarcerated for long periods before trial.” But public advocacy is crucial for a chief public defender, Balko writes, “because there are also strong incentives that keep individual defense attorneys from reporting the systemic problems they experience day to day,” like fear of retaliation against clients for reporting prosecutorial or judicial misconduct. [Radley Balko / Washington Post]

Supreme Court to hear case deciding whether asylum seekers can appeal denials: Today the Supreme Court hears arguments in a case that will decide whether asylum seekers may challenge mistakes made during the expedited removal process, established by Congress in 1996, that allows a single immigration official to issue a removal order for certain people who are presumed noncitizens. The process involves no witnesses, testimony, neutral arbiters, or appeals. “In this case, the Supreme Court will weigh in on what rights, if any, a person has to challenge the substantive procedures and errors that may arise in the expedited removal process,” reports SCOTUSblog. Vijayakumar Thuraissigiam, a member of the ethnic minority Tamil population in Sri Lanka, fled Sri Lanka after being attacked. He was apprehended in California, where an asylum officer conducted a credible-fear interview and believed his story, but denied him because he did not identify the names and motives of his attackers. Thuraissigiam, from immigration detention, filed a habeas corpus petition enumerating multiple and significant things that went wrong during his expedited removal process. “Immigration advocates fear that if the court finds the existing procedures adequate, this case could produce a ‘papers please’ world, in which immigration enforcement officers can stop any of us, and make an on-the-spot decision to detain, deport or leave us alone.” [Kari Hong / SCOTUSblog]

Police Exploit Coronavirus Fears To Make Easy Arrests

Police Exploit Coronavirus Fears To Make Easy Arrests


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.

As the country braces itself for the “all but certain” global pandemic of the coronavirus, some people are stocking up on food and surgical masks, many are Googling how to wash their hands properly, and some are asking how best to keep their children safe. Meanwhile, police are taking advantage of the fearful climate to arrest vulnerable people with drug dependencies. Or, at the very least, they are joking about it in a way that has seemed real enough to fool some people.

“WARNING: If you have recently purchased Meth, it may be contaminated with the Corona Virus,” wrote the Merrill Police Department of Wisconsin, in a Facebook post about the disease last week. “If you’re not comfortable going into an office setting, please request any officer and they’ll test your Meth in the privacy of your home. Please spread the word! We are here for you!”

“It was one of several police departments nationwide to push out the hoax,” reported Meagan Flynn for the Washington Post, and it “generated mixed reactions, some seeing it as funny, others as deplorable, fueling coronavirus fears through fake public service announcements on official channels.”

“I would rather not see police departments making ‘jokes’ like this online or posting false information about a pandemic that is already being treated cavalierly by the executive branch,” one woman said in a comment on the Merrill Police Department’s post. Another person replied, “shut up snowflake.”

It’s hard for the police to even claim that the post was a joke, because they made clear that they had every intention of arresting anyone who came in with drugs. “We will take those easy grabs at removing poison from our community whenever we can,” the department wrote in a follow-up the next day. “That is our role which we un-apologetically must fulfill. It is our hope that an arrest would be the positive catalyst someone may need to start recovery. It is our hope that every drug arrest both works to hold offenders accountable for their deeds and provides them with a path toward treatment options.”

Departments in St. Francis County, Arkansas; Johnson City, Texas; Tavares, Florida; and Decatur County, Kansas, have put out similar messages, and some have gotten local news outlets to run the story like a police news release without a hint of skepticism. “Texas police say local meth is contaminated with coronavirus, offer to test it,” read one headline.

People have also taken the announcements seriously, leading to confusion that public health experts say is dangerous, counterproductive, and inexcusable. “That’s pretty extraordinary,” Stefano M. Bertozzi, a professor at the University of California at Berkeley’s School of Public Health, told the Washington Post. “This is a time when people need to be taking public health authorities very seriously,” he added. “They’re undermining their credibility that will be very much needed if and when an epidemic comes to their community.”

During the Ebola outbreak in 2016, the police department in Granite Shoals, Texas, conducted a similar hoax. “If you have recently purchased meth or heroin in Central Texas, please take it to the local police or sheriff department so it can be screened with a special device,” the since-deleted post said, according to the San Antonio Express-News. “DO NOT use it until it has been properly checked for Ebola contamination!” Police also did this during the Zika virus outbreak in 2018.

One woman showed up at the police station to have drugs tested for Ebola. She was arrested and charged with possession of less than one gram of a controlled substance, the Express-News reported. “That was another joke for the police, who called the defendant the ‘winner’ of the contest,” writes Flynn for the Washington Post.

“Giving mythological information and being tongue-in-cheek about something that’s really serious, where there’s been a lot of loss and a lot of deaths seems just problematic coming from a state agency,” Jon Zibbell, a former Centers for Disease Control and Prevention epidemiologist, told BuzzFeed News.

It isn’t the first time that police have exploited fear and vulnerability to make easy arrests. When I was working as a public defender, some of the arrests I found especially cruel were bait operations, whereby police would leave goods lying outside to see who was desperate enough to take them, and then arresting that person. One scheme that seemed to be a favorite among NYPD officers in the Bronx involved having a female police officer go undercover and try to sell an iPad to a local store owner, saying she had taken it from her abusive boyfriend and badly needed to sell it in order to escape him. If the person behind the counter took her up on the offer, he or she would be arrested for attempted possession of stolen property.

In Seattle, which has a problem with homelessnes and poverty, police place bicycles in poor neighborhoods, hoping to catch those who might take an interest. The Seattle Times reports that in the summer of 2018, 41-year-old Jolene Paris was near a Goodwill outlet store, a liquidation center where they offer goods in bulk that didn’t sell at a regular Goodwill. It is a regular gathering spot for the homeless and the near-homeless. Paris noticed a silver road bicycle in the dirt near some shrubs. She says she started wheeling it around the Goodwill parking lot, asking if it belonged to anyone. But it was a bait bike, and Paris was arrested and charged with theft.

“The defendant, through her own free will, saw and took the bicycle. Seattle Police did not induce or lure the defendant into taking the bike,” prosecutors argued in a brief. “This was a sting operation that targeted homeless people,” defense attorney Brandon Davis argued in a pretrial brief. “It is one of the poorest areas in the city. [Police] placed this bicycle near a Goodwill, a store that serves people with low incomes, and left the bike unlocked. Prosecution of such a person is befitting of Dickensian London, not 21st-century Seattle.” Prosecutors said Paris’s financial condition was irrelevant.

It took the jury half an hour to acquit.

“There are certain charges that are just plain wrong to prosecute,” Davis, the defense attorney, summed up to the court. “This is thousands of dollars to create, and prosecute, a theft charge. [The Seattle Police Department] states they are concerned about property crimes in Sodo, and presumably this is because they are concerned with victims of property crime. The city failed those victims by directing their resources to this case.”

In Chicago in 2018, police filled a truck with designer shoes and left it partially open in an operation reportedly nicknamed Operation Trailer Trap. It led to multiple arrests, and vitriolic protests by community groups who said the truck was parked in low-income, predominantly Black areas of the city and risked worsening the relationship between residents and the police. “Police in Chicago must focus on building trust and better relationships within the communities they serve, not engage in stunts like bait trucks,” Karen Sheley of the American Civil Liberties Union said in a statement. “[The police department] admits that it can’t solve murders and violent crimes because communities of color don’t trust the Chicago Police. These stunts won’t help.” Roderick Sawyer, chairperson of the City Council’s Black Caucus, slammed the operation as an attempt to “create crime.”

The lesson, so far, is clear: Where there is fear and vulnerability, police will find a way to cash in on arrests.

In Texas, Prosecutions Get Privatized

In Texas, Prosecutions Get Privatized


What you’ll read today

  • Spotlight: In Texas, prosecution gets privatized

  • In a Florida courtroom, people charged with probation violations face humiliation from judge

  • Justice in America: police accountability

  • Commentary: Missouri attorney general’s lack of courage in Lamar Johnson case is a miscarriage of justice

  • Commentary: My friend spent many of his formative years in prison. He didn’t have to die there

  • Federal judge rules Philadelphia must record bail hearings

  • NYPD helps more homeless people when it brings nurses

In the Spotlight

In Texas, prosecution gets privatized

Yesterday, criminal justice advocates protested the Harris County district attorney’s office for using pro bono law firm attorneys to help prosecute misdemeanor cases in the Justice of the Peace courts. District Attorney Kim Ogg, who calls herself progressive but has repeatedly disappointed progressives, announced the program on Monday, “applauding its ability to give new law school graduates trial experience while lightening workloads for hired prosecutors on her staff,” reports the Houston Chronicle. “Advocates pounced, questioning the ethics of outsourcing public work to private company employees, and fearing that more people prosecuting cases would lead to more prosecutions of indigent people.”

According to Ogg’s office, the Class C misdemeanors tried in justice of the peace courts generally can incur a fine between $1 and $500, and do not carry the possibility of jail time. Protesters from the Texas Organizing Project (TOP) wrote a letter to Ogg stating that even though these cases cannot lead to incarceration, they affect everyday people the most. Indeed, far from trivial, low-level charges can often make people who have managed to avoid the criminal system start thinking of themselves as criminals. And from a societal perspective, it is a line that we draw separating the criminal from the noncriminal.

The attorneys in Ogg’s program have recently graduated from law school and all work at civil litigation firms. They attended a three-day training and are working as prosecutors once a week for six months under the supervision of a prosecutor.

The most immediately offensive part of this plan is the idea of giving people straight out of law school, working in civil litigation, with three days’ training, the opportunity to gain experience on the backs of indigent people, as if their lives are a game. It is bad enough when it happens on the defense side.

Ogg claims that law firm help is necessary to prosecute the cases pending in her office. Her announcement came several weeks after she requested and was denied $12.5 million for 58 new prosecutors. “She has said she is unashamed to admit that she wants more attorneys to work in her office, arguing that they are drowning in massive caseloads that slow down the prosecution of cases,” reports the Chronicle. Last year, a court rejected her request for 102 new prosecutors. Because this program seems politically motivated, Ogg is unlikely to solve her own problem the easy way: by prosecuting fewer cases. If they are so minor, so inconsequential, as to justify having non-prosecutors manage them, why not just drop them altogether?

And then there is the government accountability issue. “Kim Ogg works for us,” TOP organizer Gracie Armijo said. “We’re here to tell her that we do not approve of her privatizing a function that should only be performed by people who are paid by us.”

As petty and irresponsible as Ogg’s actions seem, there is precedent for privatizing various law enforcement functions, including prosecution. It has not gone well. “From the troubling IRS privatizing collections of past-due taxes, to the more sinister ‘alternatives to incarceration’ industry, or the terrifying ‘ex-parte guardianship’ scam, exploitative public/private partnerships abound,” writes Edward Ring for California Local Elected Officials’ website. “Often the potential for corruption and abuse is huge, as a supposedly impartial government service is farmed out to a private entity motivated by profit.”

“In an era of scarce public resources, many jurisdictions are being forced to take drastic measures to address severe budgetary constraints on the administration of criminal justice,” writes law professor Roger A. Fairfax Jr. in an academic article. “Prosecution outsourcing currently is utilized in surprising measure by jurisdictions in the United States,” but Fairfax argues “that the outsourcing trend in criminal justice––seen most prominently in the area of private prisons and policing––should not extend to criminal prosecution because such outsourcing is in tension with the constitution” and legal norms. “Furthermore, concerns about ethics, fairness, transparency, accountability, performance, and the important values advanced by the public prosecution norm all militate against the outsourcing of the criminal prosecution function to private lawyers.”

Law professor John D. King worries that shifts to privatization often come with shifts in costs from taxpayers to the defendants themselves in the form of “user fees.” Arguing against such shifts, he writes in a law review article: “This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades our conception of those rights.”

This is indeed what happened when two cities in Southern California began using a private law firm to prosecute property owners for minor code violations. “Empowered by the city councils in Coachella and Indio, the law firm Silver & Wright has repeatedly filed criminal charges against residents and businesses for public nuisance crimes—like overgrown weeds, a junk-filled yard or selling popsicles without a business license—then billed them thousands of dollars to recoup expenses,” reports Brett Kelman for the Palm Springs Desert Sun. If a property owner does not respond to one or more citations, a prosecutor can file a criminal complaint, and often the property owner pleads guilty because often—like half of Texas’s misdemeanor defendants—they have no lawyer, and because the charge seems so minor. A few months later, the property owner receives a bill from Silver & Wright, granting them 15 days to appeal or 45 days to write a check.

Cesar Garcia, who was charged with expanding his living room without first getting the proper permits, paid a $900 fine to the court, but was then billed $26,000 by the law firm to recoup “prosecution expenses.” When he protested, the price jumped to $31,000. Reporters have not been able to prove that the law firm even shares the proceeds with the cities that hired them.

Texas itself has recently heard many of the arguments against privatization of law enforcement. After a series of reports about tragic failures of child protective services agencies, the state passed a bill that “called for drastic moves into privatizing Texas’s child welfare system,” according to the Chronicle of Social Change. “Dubbed ‘community-based care,’ the model … puts a single nonprofit contractor in charge of foster care placements in each of 11 foster care regions around Texas,” and calls for “foster care case management shift from the state, via the Department of Family and Protective Services, to these private contractors.”

F. Scott McCown, a former district judge and former head of a nonprofit policy institute focused on low-income children and families, has been vocal about his reservations about the move.  “Almost anything in the human service area that’s been privatized has ultimately given you a worse system than you already had—private prisons, private mental health hospitals instead of public systems. You don’t have the accountability, you don’t have the transparency, and you don’t get the results,” McCown told the Chronicle of Social Change. Testifying before state legislators against the bill, McCown said: “In the name of the state—beyond the state’s control—the general contractor would be in charge of prosecuting this civil court case and making decisions as to whether a child goes with Aunt Sally or stays in their foster care. And this is a managed care organization that will be making money or losing money based on decisions it makes. And that is a serious conflict of interest.”

Kansas, whose child welfare system is mostly privatized, has been sued for “churning” children through a huge number of placements—the suit alleges that some have had up to 100 placements, many for a single night. A federal review found that Florida, which has the most privatized state system, was underperforming in 11 of 14 categories. In one region in Texas, a Kansas-based nonprofit won the contract to handle placement services under the new law. “It’s not community-based care, it’s privatization,” McCown told the Chronicle of Social Change. “It’s Orwellian to call it community-based care when the community you’re talking about is Topeka, Kansas.”

Stories From The Appeal

Illustration by Anthony Russo

In a Florida Courtroom, People Charged With Probation Violations Face Humiliation From Judge. Probation officers in the state’s 13th Judicial Circuit file thousands of violations, and they’re heard by a judge known for his harsh, punitive style. [Samantha Schuyler]

Justice in America: Police Accountability. Our podcast with Appeal president Josie Duffy Rice returns with Darnell Moore, the first in a rotation of co-hosts. The duo explains why it’s so hard for the criminal legal system to hold police accountable.

Commentary: Missouri Attorney General’s Lack of Courage in Lamar Johnson Case Is a Miscarriage of Justice. Eric Schmitt should follow the lead of a Pennsylvania prosecutor who acknowledged that a man deserved a new trial, even when it meant reversing a murder conviction. [Ben Miller]

Commentary: My Friend Spent Many of His Formative Years in Prison. He Didn’t Have to Die There. Josh Norman was one of the 17 people to die in Mississippi prisons so far this year. His death raises important questions about the state’s failures. [Justin Brooks]

Stories From Around the Country

Federal judge rules Philadelphia must record bail hearings: The Philadelphia Bail Fund has won a victory in federal court, one that will require courts in Philadelphia’s  First Judicial District to begin transcribing or recording bail hearings, known as preliminary arraignments, or else allow the public to make their own audio recordings. Judge Harvey Bartle III, of the Eastern District of Pennsylvania, granted summary judgment to the fund, agreeing with them that current practices are “unconstitutional under the First Amendment insofar as they prohibit the public to audio-record bail hearings.” Malik Neal, the  bail fund’s interim director, said that the group has tried to document the practices of arraignment court magistrates, and access to recordings will allow them to make their research more accurate and complete. Such access will also let them ensure that promises of reform are being fulfilled, he said. [Samantha Melamed / Philadelphia Inquirer] The Daily Appeal reported on this lawsuit in its July 23, 2019, edition.

NYPD helps more homeless people when it brings nurses: The NYPD is touting its recent hiring of 10 nurses to help police contacts with the city’s street homeless population. “Nurses are going out with police officers,” Police Commissioner Dermot Shea said during a Citizens Crime Commission breakfast this week, adding that the move is “not from a law enforcement perspective, but from a medical perspective, too, interacting with those [homeless] individuals.” According to the New York Post, “the Citywide Mobile Crisis Outreach program launched in early 2019 with two teams consisting of a pair of cops and one nurse. It was expanded over the past six weeks to 12 teams.” Last year, the police had 125,000 encounters with the city’s homeless, but in 122,000 of those encounters, officials reported that the people refused help. The nurse-aided teams, on the other hand, helped 223 people into hospitals or shelters in 2019, and although the overall number of contacts is not known, their success rate was said to be better than the police alone. [Tina Moore and Natalie Musumeci / New York Post]

 

In Texas, Prosecution Gets Privatized

In Texas, Prosecution Gets Privatized


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, criminal justice advocates protested the Harris County district attorney’s office for using pro bono law firm attorneys to help prosecute misdemeanor cases in the Justice of the Peace courts. District Attorney Kim Ogg, who calls herself progressive but has repeatedly disappointed progressives, announced the program on Monday, “applauding its ability to give new law school graduates trial experience while lightening workloads for hired prosecutors on her staff,” reports the Houston Chronicle. “Advocates pounced, questioning the ethics of outsourcing public work to private company employees, and fearing that more people prosecuting cases would lead to more prosecutions of indigent people.”

According to Ogg’s office, the Class C misdemeanors tried in justice of the peace courts generally can incur a fine between $1 and $500, and do not carry the possibility of jail time. Protesters from the Texas Organizing Project (TOP) wrote a letter to Ogg stating that even though these cases cannot lead to incarceration, they affect everyday people the most. Indeed, far from trivial, low-level charges can often make people who have managed to avoid the criminal system start thinking of themselves as criminals. And from a societal perspective, it is a line that we draw separating the criminal from the noncriminal.

The attorneys in Ogg’s program have recently graduated from law school and all work at civil litigation firms. They attended a three-day training and are working as prosecutors once a week for six months under the supervision of a prosecutor.

The most immediately offensive part of this plan is the idea of giving people straight out of law school, working in civil litigation, with three days’ training, the opportunity to gain experience on the backs of indigent people, as if their lives are a game. It is bad enough when it happens on the defense side.

Ogg claims that law firm help is necessary to prosecute the cases pending in her office. Her announcement came several weeks after she requested and was denied $12.5 million for 58 new prosecutors. “She has said she is unashamed to admit that she wants more attorneys to work in her office, arguing that they are drowning in massive caseloads that slow down the prosecution of cases,” reports the Chronicle. Last year, a court rejected her request for 102 new prosecutors. Because this program seems politically motivated, Ogg is unlikely to solve her own problem the easy way: by prosecuting fewer cases. If they are so minor, so inconsequential, as to justify having non-prosecutors manage them, why not just drop them altogether?

And then there is the government accountability issue. “Kim Ogg works for us,” TOP organizer Gracie Armijo said. “We’re here to tell her that we do not approve of her privatizing a function that should only be performed by people who are paid by us.”

As petty and irresponsible as Ogg’s actions seem, there is precedent for privatizing various law enforcement functions, including prosecution. It has not gone well. “From the troubling IRS privatizing collections of past-due taxes, to the more sinister ‘alternatives to incarceration’ industry, or the terrifying ‘ex-parte guardianship’ scam, exploitative public/private partnerships abound,” writes Edward Ring for California Local Elected Officials’ website. “Often the potential for corruption and abuse is huge, as a supposedly impartial government service is farmed out to a private entity motivated by profit.”

“In an era of scarce public resources, many jurisdictions are being forced to take drastic measures to address severe budgetary constraints on the administration of criminal justice,” writes law professor Roger A. Fairfax Jr. in an academic article. “Prosecution outsourcing currently is utilized in surprising measure by jurisdictions in the United States,” but Fairfax argues “that the outsourcing trend in criminal justice––seen most prominently in the area of private prisons and policing––should not extend to criminal prosecution because such outsourcing is in tension with the constitution” and legal norms. “Furthermore, concerns about ethics, fairness, transparency, accountability, performance, and the important values advanced by the public prosecution norm all militate against the outsourcing of the criminal prosecution function to private lawyers.”

Law professor John D. King worries that shifts to privatization often come with shifts in costs from taxpayers to the defendants themselves in the form of “user fees.” Arguing against such shifts, he writes in a law review article: “This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades our conception of those rights.”

This is indeed what happened when two cities in Southern California began using a private law firm to prosecute property owners for minor code violations. “Empowered by the city councils in Coachella and Indio, the law firm Silver & Wright has repeatedly filed criminal charges against residents and businesses for public nuisance crimes—like overgrown weeds, a junk-filled yard or selling popsicles without a business license—then billed them thousands of dollars to recoup expenses,” reports Brett Kelman for the Palm Springs Desert Sun. If a property owner does not respond to one or more citations, a prosecutor can file a criminal complaint, and often the property owner pleads guilty because often—like half of Texas’s misdemeanor defendants—they have no lawyer, and because the charge seems so minor. A few months later, the property owner receives a bill from Silver & Wright, granting them 15 days to appeal or 45 days to write a check.

Cesar Garcia, who was charged with expanding his living room without first getting the proper permits, paid a $900 fine to the court, but was then billed $26,000 by the law firm to recoup “prosecution expenses.” When he protested, the price jumped to $31,000. Reporters have not been able to prove that the law firm even shares the proceeds with the cities that hired them.

Texas itself has recently heard many of the arguments against privatization of law enforcement. After a series of reports about tragic failures of child protective services agencies, the state passed a bill that “called for drastic moves into privatizing Texas’s child welfare system,” according to the Chronicle of Social Change. “Dubbed ‘community-based care,’ the model … puts a single nonprofit contractor in charge of foster care placements in each of 11 foster care regions around Texas,” and calls for “foster care case management shift from the state, via the Department of Family and Protective Services, to these private contractors.”

F. Scott McCown, a former district judge and former head of a nonprofit policy institute focused on low-income children and families, has been vocal about his reservations about the move.  “Almost anything in the human service area that’s been privatized has ultimately given you a worse system than you already had—private prisons, private mental health hospitals instead of public systems. You don’t have the accountability, you don’t have the transparency, and you don’t get the results,” McCown told the Chronicle of Social Change. Testifying before state legislators against the bill, McCown said: “In the name of the state—beyond the state’s control—the general contractor would be in charge of prosecuting this civil court case and making decisions as to whether a child goes with Aunt Sally or stays in their foster care. And this is a managed care organization that will be making money or losing money based on decisions it makes. And that is a serious conflict of interest.”

Kansas, whose child welfare system is mostly privatized, has been sued for “churning” children through a huge number of placements—the suit alleges that some have had up to 100 placements, many for a single night. A federal review found that Florida, which has the most privatized state system, was underperforming in 11 of 14 categories. In one region in Texas, a Kansas-based nonprofit won the contract to handle placement services under the new law. “It’s not community-based care, it’s privatization,” McCown told the Chronicle of Social Change. “It’s Orwellian to call it community-based care when the community you’re talking about is Topeka, Kansas.”

A Precarious Time For The Insanity Defense

A Precarious Time For The Insanity Defense


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 week, Rolling Stone published a harrowing portrait of how one state’s enlightened approach to mental health and criminal behavior came to be threatened by one case that went tragically wrong. Rob Fischer tells the story of Anthony Montwheeler, who, at 49 years old, kidnapped and killed his ex-wife while witnesses watched and tried to stop the stabbing. Montwheeler was not unknown to authorities: Two decades earlier he had kidnapped, but did not kill, a previous wife and their toddler. He was found “guilty except for insanity,” so he was not sent to prison, but placed under state jurisdiction for 70 years. “Here we are 20 years later,” says Les Zaitz, the publisher of the Malheur Enterprise, which has covered Montwheeler’s story. “Very quickly the question becomes, ‘What’s this guy doing loose in Malheur County?’” A lot of people have been asking this question.

The answer can either be that something went wrong in this case, or something is wrong with the way the state treats mental illness. For the fearmongering set, the answer is the latter. Many wanted to know why all these patients weren’t simply in prison. But Fischer’s painstaking reporting and research indicates that the former is a far more reasonable response.

In the 1960s, after the nation was alerted to inhumane conditions in many psychiatric hospitals, President John F. Kennedy did what politicians tend to do best: He tore down one system but failed to replace it with another. Deinstitutionalization decreased the population of people in state psychiatric hospitals from 559,000 in 1955 to 154,000 in 1980. There are now fewer than 43,000. Kennedy vowed that the “cold mercy of custodial isolation,” would be “supplanted by the open warmth of community concern and capability,” but the second part of that vision never materialized. Under President Ronald Reagan, federal funding for community mental health care was slashed. “Police officers became the nation’s front-line mental health workers,” Fischer writes. “In most jurisdictions, an arrest is the quickest way for an individual to receive mandatory care.”

“Oregon, in its own small way, attempted something different,” Fischer continues. In 1977, it created the Psychiatric Security Review Board (PSRB), a group outside the prison system that provides regular case-manager check-ins, drug and alcohol screenings, subsidized housing, mental health care, and work placement for people acquitted by reason of insanity. Less than half of the people under the PSRB’s jurisdiction are in the state hospital. This means that many suffering from mental illness who have not been accused of a crime are receiving far less care.

Even though most of the people under PSRB oversight have been charged with serious crimes, including kidnapping, rape, and murder, they rarely commit another act of violence once under state supervision. The board estimates that the recidivism rate for those on conditional release is around a half percent. A recent evaluation of post-conviction mental health care in the U.S. gave Oregon, along with three other states, the highest ranking. “But if Oregon’s PSRB had been something of a bright spot in an otherwise dismal picture of mental health care in the U.S., the case of Anthony Montwheeler underscored everything the public typically distrusts about insanity acquittals.”

Montwheeler seems to have exploited a loophole in the system by claiming, after being placed in a state hospital following an arrest for theft, that he was not mentally ill and never had been. Plenty of people undergoing psychiatric care make such claims, but in this case, the claim was backed up by some clinicians’ assessments as well. Oregon’s jurisdiction over psychiatric patients in criminal and noncriminal cases, is allowed as long as a person continues to suffer from certain severe mental illnesses and he or she is a danger to the public. Although some evaluations concluded that he could be a danger, the review board ultimately decided that he should be discharged because the first prong was not met.

Does the subsequent murder mean that Monwheeler was, in fact, mentally ill all along, or that he had gamed the system and committed more crimes? If it’s the latter, why wait three years to commit the crime, and do so in front of so many witnesses? Should the system be upended, or tweaked, or should it remain the same, with the understanding that its track record is still stellar, despite this aberration?

The Malheur Enterprise earned a grant from ProPublica and ran a series called “A Sick System: Repeat Attacks After Pleading Insanity,” suggesting, falsely, that the PSRB was endangering the public. One piece, citing statistics, claimed to show that “people freed by Oregon officials after being found criminally insane are charged with new felonies more often than convicted criminals released from state prison.” But last January, after a reader prompted a review of the reporting, ProPublica posted a devastating series-wide retraction. The review found that the coverage had, in Fischer’s words, “dramatically overestimated the frequency with which people discharged by the PSRB committed new felonies—in fact, the recidivism rates of offenders released from prison were much higher.”

Even if Oregon’s system remains in place, however, it will still be true that the vast majority of people who suffer from mental illness are treated by the criminal system as if they are in perfect control of their actions. I have represented clients who were clearly having psychotic breaks during certain illegal actions, and I have been met with the same meaningless line from prosecutors: “He needs to be held accountable for his actions.” But what can accountability even mean when a person has no recollection of ever violating the law, and, after treatment, returns to his calm, law-abiding self? What can putting that person in prison possibly do? It will, of course, increase the chances that corrections officers, trained to get prisoners to submit to authority rather than treat mental illness, will beat my client, throw him into solitary confinement, or worse. But will it engender accountability? Safety? Justice?

Regardless of whether Montwheeler suffered from a qualifying mental illness, he was 6 years old when his father murdered his mother. This fact alone would never qualify him as insane, but surely it had an impact on his development, and most likely played a role in his subsequent behavior toward intimate partners. Instead of broadening their definitions of what qualifies as diminished capacity or insanity, or interrogating how we respond to such people before and after they harm others, many states have gone in the other direction, eliminating the already near-impossible standard of insanity.

In the first argument of this term, the U.S. Supreme Court considered whether states may abolish the insanity defense, examining the case of James Kahler, who was sentenced to death in 2011 for killing four family members. His lawyers said he had such severe depression that it was  impossible for him to understand reality or to distinguish right from wrong. But because Kansas eliminated the insanity defense about two decades ago, Kahler was barred from raising this defense. According to the New York Times, Sarah Schrup, a lawyer for Kahler, said that was a radical departure from American legal traditions. “For centuries,” she said, “criminal culpability has hinged on the capacity for moral judgment, to discern and to choose between right and wrong. The insane lack that capacity.” Kansas, Idaho, Montana, and Utah have all abolished the insanity defense, although defendants in those states may still argue that they lacked the required intent to commit the crime with which they were charged.

Justice Stephen G. Breyer pointed out that this means that people are not culpable if they truly did not know what they were doing (if, for instance, they killed a human being under the delusion that they are killing a dog). But they are culpable if they do not know that their actions are wrong (if, for instance, they knew they were killing a human but believed a dog told them to kill a that human).

“What’s the difference?” he asked. “It’s quite deep, this question.”

Justice Samuel A. Alito Jr. showed a lack of understanding about mental illness, one that is shared by many Americans. He said that Kahler’s actions did not appear to be those of an insane person. “This is an intelligent man,” Justice Alito said, as if intelligence were impossible for a mentally ill person. “He sneaked up on the house, where his wife and her mother and his children were staying. He killed his ex-wife. He killed her mother. He executed his two teenage daughters. One of them is heard on the tape crying. He, nevertheless, shot her to death.” This is evidence of extreme cruelty for a sane person, but what does it mean for an insane person?

“All acts of extreme violence, on some level, seem insane,” writes Fischer. “But under the law, there is a sharp distinction between mental illness” and personality disorders, such as psychopathy, “which manifest in traits like a lack of empathy, a transactional nature, [and] emotional volatility.” “What we don’t want is the insanity defense to be redefined where there’s this influx of new diagnoses,” one mental health official told Fischer. Personality disorders are excluded, she added, without explanation, “because those folks—that’s who the prison system is for.”

One crucial distinction between a condition like schizophrenia and a personality disorder like psychopathy is that more effective treatments exist for the former group of people. But the existence of such disorders, the fact that they influence people’s behavior, does not depend on our ability to cure them, nor does it depend on whether we as a society decide to condemn the people afflicted by them as criminals or treat them as patients. This is what the American Psychiatric Association argued in its amicus brief in the Kahler case. “Amici take no issue with the view that the question presented is a legal and moral issue,” they write. “At the same time, a scientific understanding of mental illness and its effects lends weight to the arguments in favor of recognition of the insanity defense as constitutionally required.”

One of the first things law students learn in criminal law class is that a person whose body is used as a projectile by another person to cause harm cannot be criminally prosecuted. This seems intuitive to most students. But somehow, if a person’s body is controlled by a mentally ill brain, not another person, it no longer makes sense. A scientific understanding, not panicked moralizing, would indeed be a good place to start.

One Thing Barr Gets right: The Sentencing Guidelines Are Indeed Too Harsh

One Thing Barr Gets right: The Sentencing Guidelines Are Indeed Too Harsh


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

When the Justice Department rescinded its recommendation this week that Trump ally Roger Stone be sentenced to seven to nine years, it seemed to lose whatever remaining shred of independence from the White House it possessed. The original recommendation had been in accordance with the Federal Sentencing Guidelines, as are almost all sentencing recommendations. The DOJ’s amended sentencing memorandum, on the other hand, takes the exceedingly unusual position that the guidelines sentence “could be considered excessive and unwarranted” and suggests that a sentence “far less” than the guidelines would be reasonable. The government urges the court to “consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence.”

In another context, this letter would be a reasonable, welcome, and humane surprise from prosecutors. The sentencing guidelines are, indeed, often “excessive and unwarranted.” A defendant’s personal circumstances should be considered when deciding how much time to give. These are the kinds of sentencing positions the government ought to take in every case. But according to David Patton, executive director of the Federal Defenders of New York, prosecutors “routinely oppose” them when the lawyers in his office advocate for them on behalf of their indigent clients.

“As a federal defender, what’s so troubling to me is not that … Justice overruled local prosecutors who were advocating for a severe sentence,” Patton told me. “It’s that they did it—and to my knowledge have only done it—for the friend of a president. It’s a double standard of the most troubling sort.” The DOJ’s concern about any particular defendant’s “personal circumstances” seems even less genuine when one considers that, on the same day that the amended memo was filed, Attorney General William P. Barr gave a speech to a group of sheriffs, in which he slammed progressive, “so-called ‘reform DAs,’” claiming falsely that they are “putting everyone in danger.”

It would be hard to overstate just how much damage to the rule of law is done when the White House interferes with the administration of justice for political reasons. This is why, in response to Barr’s actions, more than 1,100 former federal prosecutors and Justice Department officials called on him to step down this week. They also asked current government employees to report any signs of unethical behavior at the Justice Department. “Each of us strongly condemns President Trump’s and Attorney General Barr’s interference in the fair administration of justice,” reads an open letter signed by the former employees. Those actions, they said, “require Mr. Barr to resign.”

But, those political implications aside, Trump and Stone are not the first privileged people to expect preferential treatment from the justice system, and they won’t be the last.

Last year, billionaire Henry T. Nicholas III, co-founder of the semiconductor firm Broadcom, was arrested in Las Vegas for narcotics trafficking after police found heroin, cocaine, methamphetamine, and Ecstasy in his hotel suite. Despite the fact that he was facing a maximum life sentence and had the means to travel at a moment’s notice, he was released without having to post any bail. The district attorney, Steve Wolfson, offered Nicholas a plea deal that would allow him to avoid prison in exchange for an Alford plea—meaning that he could maintain his innocence but acknowledge that there was sufficient evidence to convict him—on a single count of possession of a controlled substance. The deal called for Nicholas to participate in two drug counseling sessions a month, perform 250 hours of community service, and pay $500,000 to a drug treatment facility. This sum amounted to 0.01 percent of his net worth. Even if he failed to comply, he would face only probation. By contrast, an ordinary, nonbillionaire facing the same charges most likely would have been offered a plea deal of about three to 21 years in prison.

This kind of disparity is exactly what the Federal Sentencing Guidelines were designed to avoid. Congress adopted them, along with various mandatory minimums, under the Sentencing Reform Act of 1984 as a direct response to judicial discrimination and excesses in doling out sentences. The law had lofty goals, aspiring to address the worst effects of indeterminate sentencing and increase consistency, fairness, accountability, and transparency. It did initially succeed in reducing some sentencing disparities among judges, but was soon rightly criticized for rigidity, and for taking power away from judges and bestowing it on prosecutors.

About two decades later, in the case of United States v. Booker, the Supreme Court made the guidelines advisory, not mandatory. This decision increased judicial discretion somewhat, although mandatory minimums remain mandatory. Did this change bring about equality and fairness for criminal defendants? No. Harvard Law School Professor Crystal Yang conducted an analysis of people sentenced between 1994 and 2009 and concluded that racial disparities increased significantly after the Booker decision. Yang found that the Black-white sentencing gap increased by almost two months in the post-Booker period. Black defendants were “more likely to be sentenced above the Guidelines recommended range, and less likely to be sentenced below the Guidelines recommended range, compared to similar white offenders,” according to the analysis.

In the latest effort to rid the system of bias, many states are turning to predictive algorithms and risk assessment tools to help determine sentences, an effort that critics warn could exacerbate and enshrine race-based disparities, as The Daily Appeal reported last week. The American legal system has a history of fluctuating between discretion and constraint in pursuit of equality, and both seem to yield discrimination.

Given that disparities between rich and poor still run rampant in the criminal system, it is tempting for those of us in the social justice community to take the DOJ at its word in its amended sentencing memo when it urges a tailored, nuanced, and lenient outcome. The government even included in the memo a reminder that “the Supreme Court has stated that a sentencing court ‘may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.’” One civil rights attorney suggested on Twitter that federal defense lawyers file memos in all of their cases, stating that the DOJ believes that guidelines sentences are not presumptively reasonable.

But, of course, in an administration as corrupt as this one, it would be naive to try to shame the DOJ into the same kind of lenience for less privileged defendants. In other contexts, however, there might be hope. In response to Nicholas’s sweetheart deal, some public defenders in Las Vegas decided to ask prosecutors to grant their indigent clients terms similar to those offered to the billionaire: a reduction in sentence, release without bail and, as a sentence, a contribution of 0.0128 percent of their net worth. The draft motion, which was filed in similar cases, states: “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts. The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

“Within my world, the motions were not well received,” said Christy Craig, chief deputy public defender of the Clark County public defender’s office, though she noted that they have yielded “some wins.” Craig was one of the attorneys who drafted the motion. However, “one thing it did do was it opened up a dialogue in the legal community,” she added. “It really shined a light on those inequities and made everyone more aware of them, which made it much easier to argue in those cases for some fairness and equity.”

Among the ironies of the Stone case is that, in the amended sentencing memo, the prosecutors cite Berger v. United States, a 1935 case in which the Supreme Court famously held that a prosecutor’s interest “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” In an adversarial role, the goal of seeking justice can, and often does, get lost. Discretion or constraint alone will not get us the fairness we seek in criminal sentencing, but highlighting systemic disparities, as Craig did in Las Vegas, can help. Attorney General Barr might be a lost cause, but plenty of prosecutors initially joined the profession hoping to do what the court in Berger commanded: seek justice. Reminders of just how unfairly prosecutions often play out might bring some prosecutors back to that mission.

Editor’s note: A version of this article ran in The Washington Post on Friday. 

New York Democrats Are Caving On Bail

New York Democrats Are Caving On Bail


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

“Under pressure from law enforcement, state lawmakers say they are now willing to make significant changes to the bail reform laws that have been in effect for less than two months,” Christopher Robbins wrote for Gothamist yesterday. “Currently, judges are prevented from setting bail on almost all misdemeanors and non-violent felonies, but violent crimes and some lower level charges that involve domestic violence are still bail eligible. Judges are required to only consider a defendant’s risk of not returning to court, not their past criminal record. The proposed changes would erase cash bail from the system, but would instead allow judges to indefinitely jail suspects charged with felonies and some misdemeanors before trial based on their prior criminal records or their risk of not returning to court.”

“We believe that this gets to the heart of the issues and that it is still progressive,” Senate Majority Leader Andrea Stewart-Cousins told Newsday, when she announced the proposed changes.

Stewart-Cousins’s proposals contradict the “recommendations of the New York State Justice Task Force, a group of judges, district attorneys, and police commanders tapped to advise state lawmakers while they were crafting the reforms,” Robbins writes. “The task force explicitly told lawmakers to leave the dangerousness standard out of the law that eventually passed.”

Tina Luongo, the attorney-in-charge at the Legal Aid Society, said the proposal was “a cave to fearmongering of law enforcement and DAs.” It would also be “a response to criticism from judges, prosecutors and police that the current bail law — which is just six weeks old — had taken away their power and discretion to detain dangerous suspects,” writes Yancey Roy for Newsday.

“Judicial discretion — meaning the harsh and improvident exercise of judicial discretion — is what led to the crying need for bail reform in the first place,” Law professor Steve Zeidman, who directs the CUNY Law Criminal Defense Clinic, told Gothamist. “The notion that reforming bail reform means giving judges greater discretion would be funny if it weren’t so tragic.”

Criminal defense attorney Ron Kuby recently noted in a Daily News Op-Ed, “Judges afraid of winding up on the front pages like “Turn ‘Em Loose Bruce” would lock people up before trial if they had a hunch that they might re-offend. And most of New York City just went along with it.” He added, “The bail reform laws enacted last year eliminated judicial discretion for many cases in order to prevent exactly these types of injustices from recurring. Judges proved, over decades, that they could not be trusted.”

Anxiety about judicial discretion was one of the main reasons for progressive opposition to California’s attempt to overhaul its bail system in 2018.

Over the past 40 years, give or take, the American criminal system has experimented with granting judges more discretion and constraining them, in efforts to curb excesses and discrimination. The results have consistently yielded more excesses and discrimination. Mandatory minimum sentences have been on the books in various states since the 1950s and Congress adopted the Federal Sentencing Guidelines and many mandatory minimums under the Sentencing Reform Act of 1984. These were a direct response to sentencing disparities and came with lofty goals, like increasing consistency, fairness, accountability, and transparency. And they did initially succeed in reducing some sentencing disparities among judges, but were soon rightly criticized for rigidity, excess, and for taking power away from judges and bestowing it on prosecutors.

Almost two decades later, in the case United States v. Booker, the Supreme Court made the guidelines advisory, although mandatory minimums remain mandatory. But Harvard Law School Professor Crystal Yang conducted an analysis of people sentenced between 1994 and 2009 and concluded that racial disparities increased significantly after the Booker decision. Black defendants were “more likely to be sentenced above the Guidelines recommended range, and less likely to be sentenced below the Guidelines recommended range, compared to similar white offenders.”

In the latest effort to rid the system of bias and decrease judicial discretion, many states and the federal government are turning to predictive algorithms and risk assessment tools to help determine pretrial detention decisions and sentences, an endeavor that critics warn could also exacerbate and enshrine racial disparities.

“Nearly every state in America has turned to this new sort of governance algorithm, according to the Electronic Privacy Information Center, a nonprofit dedicated to digital rights,” Cade Metz and Adam Satariano reported for the New York Times recently. “As the practice spreads into new places and new parts of government, United Nations investigators, civil rights lawyers, labor unions, and community organizers have been pushing back.” They worry that biases, including the race and class of the people who create the algorithms, are being baked into these systems, as ProPublica has reported. Critics note that Black and Latinx defendants have been found to be more likely to be flagged as “high risk” than white people because the tools rely on factors that are shaped by racial disparities in policing, like arrest history or ZIP code. But activists are often kept in the dark about those inputs because some algorithm-makers will not disclose their formulas.

“In San Jose, California, where an algorithm is used during arraignment hearings, an organization called Silicon Valley De-Bug interviews the family of each defendant, takes this personal information to each hearing and shares it with defenders as a kind of counterbalance to algorithms,” Metz and Satariano write.

Nyssa Taylor, criminal justice policy counsel with the ACLU-Pennsylvania, told the Times that she is concerned that algorithms will exacerbate rather than reduce racial bias. Even if the algorithms are not kept secret, the math is sometimes too complex for most people. “All machine-learning algorithms are black boxes, but the human brain is also a black box,” countered Richard Berk, the University of Pennsylvania professor who has designed various algorithms used by the local criminal system. “If a judge decides they are going to put you away for 20 years, that is a black box.”

Ethan Corey recently reported for The Appeal that a comprehensive report documenting the use of risk assessment tools “shows little evidence that the tools are leading to reductions in pretrial incarceration rates or eliminating racial disparities in pretrial release decisions.” Two organizations, Media Mobilizing Project and MediaJustice, put out the database Mapping Pretrial Injustice, accompanied by a report documenting in-depth interviews with officials, which revealed that although use of risk assessment tools is widespread, few jurisdictions are monitoring whether the tools serve their intended goals.

In a surprising reversal, the Pretrial Justice Institute, an organization that advocates for pretrial reforms, announced last week that it no longer supported the use of risk assessments. “We now see that pretrial risk assessment tools, designed to predict an individual’s appearance in court without a new arrest, can no longer be a part of our solution for building equitable pretrial justice systems,” the group wrote in a statement. “Regardless of their science, brand, or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices. Use of that data then deepens the inequity.”

Prosecutors Blame Discovery Reform Law For Overtime, Tax Hikes, And a Murder

Prosecutors Blame Discovery Reform Law For Overtime, Tax Hikes, And a Murder


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.

When I was working as a public defender, I was once preparing a trial with another attorney in my office. Our client was facing felony charges, and had been incarcerated at Rikers Island for months on bail he could not afford. He had a wife and young children, and spoke to them often by phone. The day before we were set to begin the hearings and trial, prosecutors handed us a stack of about half a dozen CDs, recordings of every phone call our client had made from Rikers over the course of his months inside. We would need to review those calls before starting trial, but there were dozens of hours of tape and less than 24 hours before the hearing was to begin. It was impossible. The prosecutor wouldn’t point us to any particularly pertinent part, and the judge refused to give us any extra time. 

On another occasion, I was in the middle of a hearing where I was trying to prove that officers had stopped and searched my client illegally. The officer testified, but I had no idea if what he said was consistent with what he had testified to in the grand jury (which is secret). After he finished his direct examination, the prosecutor handed me the transcript of the officer’s grand jury testimony. I told the judge I would need a recess to read it and prepare a cross examination. “I’ll give you five minutes,” the judge said.

Another time, a young client of mine, who insisted, quite plausibly, that he was innocent, was so desperate to get out of Rikers immediately that he took a plea deal instead of waiting for the prosecutor to turn over video surveillance that could have exonerated him. The prosecutor could have turned over the video, but told me she didn’t want to, and so my client pleaded guilty to a crime he said he did not commit. 

This was all legal under New York’s antiquated discovery law, which didn’t require prosecutors to give the defense the evidence against their client until the very last minute. This resulted in many people pleading guilty without ever knowing the strength of the case against them. To many it was known as the “blindfold law,” because it forced people to take pleas while blindfolded. Prosecutors would even sometimes bluff, making their cases seem stronger than they were, in order to extract pleas. Defendants, if they pled, would never find out the truth. In its discovery practices, New York lagged behind the vast majority of states. This finally changed last month, when a new law took effect, requiring prosecutors to give defense teams discovery 15 days after a person is arraigned. 

Consider for a moment what it’s like to be charged with a crime without the right to see the evidence against you. You’ll have to decide if it is worth waiting months or years –– maybe on Rikers Island –– to reach trial in order to find out how strong the case is against you. Imagine what it’s like to be the defense attorney, trying for months to counsel your client about whether to take a plea deal without knowing the odds of winning, and then, if the client remains committed to trial, scrambling at the last minute to digest reams of discovery and reformulate trial strategy while also selecting a jury and beginning proceedings. It’s called “trial by ambush” for a reason. Compare that to the new obligations imposed on prosecutors in New York: Hand over discovery within 15 days of arraignment. 

In the few weeks since the law has taken effect, prosecutors have managed to blame this new requirement for rising taxes, unbearable workloads, missing filing deadlines, and at least one murder. All of these claims have been false. 

The first thing prosecutors say when you suggest that they hand over discovery is that this will endanger witnesses. But somehow, Texas, which has had a far more progressive discovery regime than New York for years, faces no scourge of witness intimidation. And Rebecca Brown, the director of policy for the Innocence Project, told CBS that when it comes to the new law, this is not a legitimate complaint: “There are a ton of protections written into the discovery law that just passed, and in fact, the law that preceded it was a little narrower when it came to victim and witness protections.”

Recently, a few days after a confidential witness in a case against the MS-13 gang was murdered on Long Island, the local police commissioner blamed the new discovery law. Patrick Ryder of Nassau County said that because of the new law, the witness’s information had been shared “too early” with defense teams and suggested that the release of information led to the murder. “We’re asking Albany to go back, rethink it, come back then with changes to that law,” Commissioner Ryder said. “But it needs to happen quickly, before we have another victim, as in this case.”

Reporters quoted him, amplifying his message, many without checking its veracity. But, as the New York Times reported, an examination of court records indicated that the witness information was “never disclosed to the defendants in the case — and that the new criminal justice policies had nothing to do with the murder.” After being “excoriated by criminal justice advocates, Commissioner Ryder walked back his comments,” saying there was “no direct link” between the death “and criminal justice reform.”

Some have also blamed the discovery reforms for rising taxes. The New York State Conference of Mayors recently launched a petition drive calling the new law a “tax hike.” Specifically, they call it, “Governor Cuomo’s criminal discovery reform tax.” The claim is that law enforcement and courts will have to hire more staff and provide overtime in order to turn over the evidence to comply with the law, reports the New York Post. “Freeport raised property taxes by 5.7 percent — the first substantial increase in seven years,” according to the petition, and Freeport Mayor Robert Kennedy blamed Cuomo and state lawmakers for the hike. “We pierced the 2 percent property tax cap solely because of the discovery portion of the new bail law,” Kennedy said. “It’s really unfair.” Cuomo’s budget division spokesperson responded, “the discovery reforms simply ensure defendants are receiving information that has always been provided on the charges against them in a timely fashion, and there’s no reason for this to raise costs for the village unless they were previously not providing basic evidence.” He added that Kennedy “should be presenting his constituents a full accounting of how they arrived at their proposed $2.7 million property tax increase because what he’s claiming doesn’t make sense.”

Prosecutors, meanwhile, are complaining bitterly, saying they are now working 11-hour and 12-hour days. Some are threatening to quit. A public defender who practices in the Bronx and asked for his name to be withheld told me that the “entire Bronx DA’s office took the position that the discovery law didn’t kick in until 1/15 and then gave themselves 30 extra days on every case for ‘voluminous’ discovery.” He added, “They filed a protective order [to limit the amount they need to disclose] in every single case with grand jury minutes,” which amounts to every indicted felony.

Another public defender who practices in New York City who also asked for her name to be withheld told me that prosecutors seem to “feel so persecuted for having to make copies.” One prosecutor, she said, threatened to rescind a plea offer if he had to serve discovery. Even some judges, many of whom are former prosecutors, have decided to weigh in. Recently, in Queens Criminal Court, she saw a prosecutor try to come up with an excuse for failing to respond to a defense motion. The prosecutor told the judge she didn’t know why she didn’t respond. “I just didn’t.” The defense attorney expected the judge to reprimand the prosecutor, but instead, “he asked, with a wink and a nod, if it was because of workload,” apparently referring to the new discovery law. “She caught on to what he was asking and said, ‘Yeah, that’s it. Too much to do with the new laws and all.’” But this made no sense. The prosecutor’s motion was due well before the new laws went into effect. 

But, to the governor’s spokesperson’s point, the only way that the new law would impose any new obligations is if prosecutors relied on people taking pleas without ever seeing the evidence against them, obviating the need to hand it over, in a significant number of cases. By claiming that there is any additional obligation, they are essentially admitting that they rely on coercing pleas from people who are blindfolded.

There is one solution that could alleviate prosecutorial caseloads and also honor the new law: Prosecutors can bring fewer cases. If prosecutors only charge and litigate the cases they have the capacity to handle, they won’t have to worry about working long shifts and spending hours over a xerox machine. Prosecutorial discretion is, at least in theory, an integral part of our system. It’s well within their capacity. And despite a drop, low-level prosecutions for such crimes as trespass, driving on a suspended license, and marijuana possession persist (and still target people of color). There is plenty of fat to trim. And if prosecutors simply cannot give up on those low-level marijuana prosecutions, they can simply do what public defenders have been doing for decades: Work late.

What If Ordinary Juries Were More Like Impeachment Juries?

Drew Angerer/Getty Images

What If Ordinary Juries Were More Like Impeachment Juries?


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.

“Today, the sham impeachment attempt concocted by Democrats ended in the full vindication and exoneration of President Donald J. Trump,” said Stephanie Grisham, the White House press secretary. “As we have said all along, he is not guilty.”

Indeed, the Senate fell far short of the two-thirds margin needed to convict the president and remove him from office, with all senators except for Republican Mitt Romney voting along party lines. But several Republican senators who voted to acquit did not say that he was not guilty of the two charges against him. Many thought he had indeed abused his power and obstructed Congress, but did not want to vote to remove him from office.

“Determining which outcome is in the best interests requires a political judgment—one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation,” wrote Senator Marco Rubio in a statement on Medium. Long before the Senate trial began, Rubio said that “the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.”

“This statement by a Senate juror seems to be arguing that, even if President Trump is factually guilty, the mandatory minimum punishment in an impeachment trial of removal is not in the best interest of the country,” wrote Douglas Berman on his blog, Sentencing Law and Policy. “Similarly, Senator Lamar Alexander’s statement about why he was voting against witnesses seemed to call President Trump’s actions inappropriate while suggesting the sanction of removal was not justified for this kind of inappropriate behavior.”

When Alexander explained that he would vote not to hear from witnesses in the trial, he told NPR, “I don’t need to hear any more evidence to decide that the president did what he’s charged with doing.” Still, he wouldn’t be voting to convict.

Some have slammed Republicans for this stance, calling them cowardly for their cynical, politically calculated hypocrisy. In the New York Times, Senator Sherrod Brown, an Ohio Democrat, wrote, “In private, many of my colleagues agree that the president is reckless and unfit. They admit his lies. And they acknowledge what he did was wrong.” For them, Brown writes, “fear is the motivator.” They are afraid that Trump “might come to their state to campaign against them in the Republican primary,” and they might lose their seat.

This is undoubtedly true. The entire process is political in a way that an ordinary criminal trial is not. And yet there is another criticism floating around, one that is not specific to the impeachment process, and it is more troubling:

The stance that Alberta, the chief political correspondent for Politico, and others have taken, seems to call into question the idea of jury nullification. Another way to see Alexander and Rubio is, as Berman writes, as “two fully informed jurors with a concern for proportionate punishment and the broader public interest.” He continues: “Put another way for sentencing fans, we should be ever mindful of how mandatory minimum sentencing schemes (even one in the US Constitution) will necessarily impact the work of all decision-makers in the administration of justice. Also, if jury nullification makes sense in the trial of a President, why not for everyone else?”

Rubio and Alexander are probably trying to hold on to their jobs; it’s hard to believe that they are taking a principled stance about mandatory minimums and sentencing. And yet, there may be a valuable insight to be taken from the politicized nature of the impeachment process. Ordinary juries are told over and over just how limited their role is in the larger criminal legal process. They are told that they simply decide whether the prosecution has proved its case beyond a reasonable doubt, and they must give no thought as to the potential consequences of that decision. In most jurisdictions, the jury is not told the potential sentence if they choose to convict and are forbidden from researching the question. Once, after losing a trial, I spoke to a few of the jurors who told me in no uncertain terms that if they had known the severity of the sentence awaiting my client, they never would have voted to convict.

Often, jurors report feeling like “cogs” in a “machine” whose sole aim is to punish people as frictionlessly as possible. Paul St. Louis, a Virginia resident, was on a federal jury that found a man, Frederick Turner, guilty of drug offenses. “It wasn’t easy to arrive at this verdict, and the result of our deliberations gave us no pleasure,” he later wrote in the Washington Post. “A few months later, I found out the result of our verdict was worse than I expected: Turner, a meth addict with no prior criminal convictions, received a mandatory minimum sentence of 40 years on two counts of having a firearm while dealing drugs. I was astonished; we had no idea that we were sending someone to prison for four decades.” Less than a year into that sentence, Turner killed himself in prison. “Today,” St. Louis wrote, “I feel like a pawn used to send a man down a path that led to his unjustified death.” If he could go back in time, St. Louis says he would nullify because the “sentence he received was simply unjust.”

Seth Stevenson, writing in Slate, recounts his deep regret at reaching a guilty verdict in a 1998 case. “It was the language of the law that hemmed me in. It seemed strict and unyielding.” Stevenson also noticed that cabining people’s roles throughout the system helped make the conviction more likely, and seemed to relieve each player of moral responsibility. “None of these professionals felt they’d had much control over the case’s outcome. The prosecutor who tried a minor as an adult, the judge who sentenced that teenager to decades in prison even though she felt he wasn’t maximally ‘culpable’ in the crime, and the defense attorney who didn’t second-guess any tactical choices on behalf of a losing client—they all felt they’d done what the system required of them.” Both the defense attorney and the judge “reminded me that the onus of the verdict is on the jury. I saw them as the machine’s operators and myself as one of the gears they were turning. They told me I’d been the one in control the whole time.”

At the very least, an impeachment trial forces its jurors to take responsibility for their decision. This is actually closer to the way juries functioned in the U.S. in the 19th century. “Between 1880 and 1930, states and municipalities used law to increase governmental controls over the full range of nineteenth-century avenues for democratic participation,” law professor Tabatha Abu El-Haj writes in a 2011 law review article. “Prior to that, the practice of democratic politics in the United States was less structured by law.” Juries, she writes, “were widely understood to have a legitimate political function and were insulated from judicial second-guessing.” But at the end of the 19th century, “long-standing efforts to limit the criminal jury to the status of a mere fact finder succeeded … putting an end to the republican political conception of the jury.”

It is clear, though, that this goal is still floating around somewhere in the notion of jury service. As Justice Anthony Kennedy wrote for the Supreme Court in the 1991 case Powers v. Ohio, by providing an “opportunity for ordinary citizens to participate in the administration of justice,” the jury trial “preserves the democratic element of the law” and “places the real direction of society in the hands of the governed.”

Kyle Barry, senior legal counsel at The Justice Collaborative, contributed research to this edition.

About That Trump Super Bowl Ad

About That Trump Super Bowl Ad


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.

It was no secret that President Trump was planning to run an ad during the Super Bowl this year; the question was only what the particular message of the advertisement would be. Would it peddle lies about the strength of the economy? Would it fearmonger about the dangers of immigrants? Would it just show his favorite image, the map of his 2016 win in the Electoral College? Many were surprised when the ad highlighted a different achievement: criminal justice reform.

Over some sparse, melancholy musical chords, the 30-second black-and-white advertisement shows footage of Alice Marie Johnson, whose sentence was commuted by Trump, hugging her family and praising Trump after her release from prison. Words flash on the screen: “Politicians talk about criminal justice reform. President Trump got it done.”

For some on the left, especially those involved in the work of reforming the criminal system, it was confusing. It is hard to object to anyone celebrating an early release from prison, but it is even harder to celebrate the most socially regressive president of our lifetimes. The discomfort was expressed by law professor Rachel Barkow:

It is hard not to view Trump’s self-celebration as disingenuous, seeing as he is responsible for setting back the struggle against mass incarceration and civil rights by years, if not decades. The day after the Super Bowl, the Washington Post ran an article detailing how Trump has granted clemency not to those most deserving, but to those who happen to have a personal connection to him. “All but five of the 24 people who have received clemency from Trump had a line into the White House or currency with his political base,” Beth Reinhard and Anne Gearan wrote. “As the administration takes its cues from celebrities, political allies and Fox News, thousands of other offenders who followed Justice Department rules are waiting, passed over as cases that were brought directly to Trump leaped to the front of the line.”

Johnson was championed by Kim Kardashian West. Trump’s very first pardon went to disgraced Arizona Sheriff Joe Arpaio, who had been convicted of disobeying a federal judge’s order to stop a racially discriminatory practice of detaining people “suspected” of being in the U.S. illegally. It seemed to many like carte blanche for vocal supporters of the president to trample on the rights of the vulnerable.

“In the most recent end-runs around the pardon office and over the objections of Pentagon officials,” Reinhard and Gearan write, “Trump in November pardoned two former Army officers: Maj. Mathew L. Golsteyn, facing trial for premeditated murder, and 1st Lt. Clint Lorance, convicted of murder after ordering soldiers to fire at unarmed men in Afghanistan. The White House cited endorsements from several Republican congressmen and a Fox News host.”

The ad seems to allude to the First Step Act, a significant but timid piece of legislation passed in 2018 that aims to reduce the population of people serving time in federal prisons for low-level offenses. David Patton, executive director of the Federal Defenders of New York, believes the First Step Act should have been called the “baby step act,” because, as he told The Daily Appeal at the time it was passed, “it’s limited.” This is true for a number of reasons, but in our conversation, Patton focused on the legislation’s heavy reliance on risk assessment tools in determining who is eligible to earn time credits for early release. People forget that it should be a risk “and needs” assessment, he says, and the needs side gets neglected. In addition, risk assessment tools have been shown to perpetuate and magnify racial disparities. These automated systems, often built on incomplete and biased data, are part of what Michelle Alexander has called “newest Jim Crow” and Virginia Eubanks has called the “digital poorhouse.”

Trump’s ad also boasts that “thousands of families are being reunited,” a statement so tone-deaf for an administration that has separated thousands of families that it reads almost as a troll. In fact, during the halftime show of the Super Bowl itself, Latinx children were featured singing from small, individual cages, which was seen as a rebuke to Trump’s immigration policies.

And in his choices of attorney general, Trump has actively dismantled years of reform work. Very soon after being appointed attorney general, Jeff Sessions ordered federal prosecutors to crack down on drug offenders, telling them to “charge and pursue the most serious, readily provable offense” in drug cases, even when that would trigger harsh mandatory minimum sentencing. This came even as many on both sides of the aisle had come to oppose mandatory minimum sentences, especially for drug crimes. The policy canceled the Obama administration’s attempts to pull back on draconian sentencing strategies and restored some language from a 2003 memo written by Attorney General John Ashcroft. Sessions said, without evidence, that the crackdown was “a key part of President Trump’s promise to keep America safe.” Former Attorney General Eric Holder called the move “dumb on crime.”

The current attorney general, William Barr, embraces views that, if anything, are even more extreme. In a 1995 symposium, Barr attributed the root cause of violent crime not to poverty but immorality. “Violent crime is caused not by physical factors, such as not enough food stamps in the stamp program, but ultimately by moral factors,” he said, according to a recent article in the New Yorker. “Spending more money on these material social programs is not going to have an impact on crime, and, if anything, it will exacerbate the problem.” Barr also seems to doubt the very existence of wrongful convictions. “The notion that there are sympathetic people out there who become hapless victims of the criminal-justice system and are locked away in federal prison beyond the time they deserve is simply a myth,” he has written. “The people who have been given mandatory minimums generally deserve them—richly.”

Should we celebrate Alice Marie Johnson’s release? Yes. Is it good for Trump to take pride in that work? Absolutely. But it seems disingenuous at best, and like a cynical ploy to pander to Black voters at worst. Certainly, it does not mean that those who fight for meaningful, systemic reform shouldn’t feel uncomfortable; given Trump’s track record, it’s the most natural response.

A Prosecutor’s Misguided Attempt To Get More Sexual Assault Convictions

A Prosecutor’s Misguided Attempt To Get More Sexual Assault Convictions


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.

Case workers at the Sexual Assault Support Services of Midcoast Maine report that they counseled 503 people who said they were survivors of sex crimes last year. Only 76 filed a police report. This is a troubling statistic, but the response from a local prosecutor is far more troubling. District Attorney Natasha Irving says prosecutors should no longer decline to prosecute a case just because they “think it’s too hard to prove.” That response, she believes, “is very damaging to a survivor,” she said. According to the Bangor Daily News, “Irving has simplified the criteria for how her office will prosecute sexual assault allegations to a two-step process.” First, “Is there a credible allegation?” and second, “is the victim willing to move forward with prosecution knowing they might have to testify publicly?”

One attorney who defended a student accused of sexual assault in a case against Irving last month says that lowering the standard for prosecuting these types of crimes can be harmful and dangerous to defendants. Irving holds that this should not be a primary concern. But she failed to get a conviction in that case after the judge ruled the state had not met the burden of proof beyond a reasonable doubt. “It didn’t feel good for any of us to lose that case. But I do think personally, I would rather show a victim that we will fight for them, than [rejecting a case] because it’s too hard to prove beyond a reasonable doubt,” Irving said. Since “rapes aren’t [typically] occurring in front of an audience,” Irving said prosecutors need to think outside of the box in terms of proving that an assault occurred.

It is difficult for many prosecutors to prove sexual assault beyond a reasonable doubt. But for a prosecutor to say, as Irving does, that she will not allow her obligation to meet her burden to interfere with her notion of justice, is to misunderstand the system we have. It isn’t a question of “how bad are these allegations in theory?” or “how much do we as a society condemn this type of crime?” Our criminal system is premised on the idea that prosecutors, to obtain a conviction, must prove their case beyond a reasonable doubt. That’s the metric we have for determining guilt.

According to Arian Clements, the executive director of Sexual Assault Support Services of Midcoast Maine, only a small fraction of people who say they experience sexual violence ever report it to law enforcement because they worry that “they somehow will be put on trial for what happened instead of the perpetrator.”

But in a system where the objective for defense counsel is to discredit the prosecution’s case, which means discrediting their witnesses, it is the defense attorney’s job to undercut the credibility of the complainant. Any defender who fails to do so should be fired.

This is the main complaint we hear over and over about the way we prosecute sex assault cases in general: Survivors don’t come forward because they are afraid their case can’t be proven beyond a reasonable doubt, and because they are afraid they will be discredited at trial. But no amount of aggressive charging, as Irving is promising to do, will change this, as demonstrated by the fact that the judge recently threw out her case for lack of sufficient proof. The only way to change the outcomes of sex assault cases is to change our system.

We use proof beyond a reasonable doubt as a proxy for guilt. It is not a perfect system. There will always be cases where evidence points strongly to one person, who happens to be innocent, and other cases where scant evidence implicates the actual culprit. But generally, the system is accepted as the best one possible. It is, however, particularly ill-suited for sex assault cases.

Criminal sanctions are what law professor Adam Kolber calls “bumpy,” meaning that “a gradual change to the input sometimes dramatically affects the output and sometimes has no effect at all.” He writes in a 2014 article for the California Law Review, “A man who has sex with a woman negligently believing she consents may be convicted of rape and sentenced to several years in prison. Had he made the same mistake but been slightly more cautious, he might have had no criminal liability whatsoever.” If we wanted, he writes, we could “fine-tune damage awards and the severity of prison sentences anywhere along a spectrum.”

Another scholar goes further. In a 2017 article, professor Doron Teichman challenges the idea of our criminal system as purely dichotomous and posits “that this common assumption does not adequately depict the manner in which the criminal justice system operates.” Instead, Teichman argues for “a much more refined penal regime that is attuned to both questions of culpability and proof” and “presents an evidentiary theory of punishment according to which sanctions are calibrated to the degree of certainty that wrongdoing has occurred.”

Teichman’s idea may be chilling to some, who fear that people facing scant evidence against them would nonetheless be convicted, albeit of lesser crimes. But this is precisely the system we already have, at least when it comes to plea bargains. As a public defender, I would routinely encounter evidence favorable to my client, show it to the prosecutor, and hear the prosecutor say, “OK, I’ll drop the charge down to a misdemeanor.” It was rarely, if ever, “Oh, there’s a real possibility of innocence here. I guess I’ll dismiss the case entirely.”

The only way to get a consistently fairer outcome for both defendants and accusers, especially in cases where sexual assault is alleged, would be to change from an adversarial system to a restorative system. Such a move would allow both parties to be heard in a context free from harsh cross examination. It would shift the emphasis away from the singular drive to prove the case beyond a reasonable doubt, and, where appropriate, allow the survivor to set the terms of the resolution depending on his or her needs. It would also encourage the defendant, if guilty, to take responsibility in a more profound and immediate way than a term of imprisonment alone ever could. Instead, however, we keep doing things the same way and wondering why they don’t change.

Professors Propose A ‘Defender General’ To Level The Playing Field

Professors Propose A ‘Defender General’ To Level The Playing Field


State court is where everyday criminal justice gets meted out. Generally speaking, if you’re arrested for robbery, or assault, you’re getting arrested by local police and prosecuted in a state court, under state law. What does it matter what happens in fancy federal courts across the country? And what could be less relevant to the informal, chaotic mess that is state court than the pristine halls of the Supreme Court of the United States?

For better or for worse, it’s all relevant. The Supreme Court decides when police can question a person who doesn’t have a lawyer, how to determine if a police officer used an unreasonable amount of force, and what kinds of excuses are acceptable for a lawyer to strike a person from a jury pool. This is why we hear (hopefully apocryphal) stories of state court judges in states like Minnesota or Florida asking why defense counsel is citing Ohio law, when a defender raises Mapp v. Ohio, the seminal Supreme Court case establishing the exclusionary rule, that evidence obtained in violation of the Fourth Amendment can’t be used at trial.

“Through the process of constitutional adjudication, the Justices develop rules that govern criminal-justice actors at all stages of the criminal process, from police officers to prison guards and everyone in between,” write law professors Daniel Epps and William Ortman in a new article in the University of Pennsylvania Law Review. “Observers often defend the Court’s aggressive role in criminal justice as a corrective to a political process that badly discounts the interests of criminal suspects and defendants. Yet many fail to acknowledge that the Supreme Court is itself a forum in which defendants are at a significant structural disadvantage.”

Most reform-minded advocates focus on leveling the playing field in state court; few direct their attention toward the Supreme Court, a major determinant of how those state court cases play out. Epps and Ortman highlight the need for such a focus. They note that when criminal defendants challenge the government on criminal justice policy at the Court, the government has significant advantages. Prosecutors can advocate for the long-term objectives of the government, even when that means sacrificing a particular conviction. Criminal defense lawyers, on the other hand, must zealously defend the interests of their particular clients even when that means working against a larger goal.

They also note that the prosecution is usually represented by experienced lawyers working within formal structures designed to maximize Supreme Court expertise and influence, such as the solicitor general’s office. Studies have shown that lawyers who belong to the elite Supreme Court bar and appear frequently before the justices win their cases at a much higher rate than inexperienced lawyers do. The experienced Supreme Court lawyers have the advantage of expertise arguing before the Court but also credibility among the justices. But defendants are often represented by whoever their trial lawyer happened to be, which is usually a person with little or no Supreme Court experience. Justice Sonia Sotomayor has called it a kind of malpractice. And Justice Elena Kagan said at a Justice Department event in 2014: “Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants.” But, Adam Liptak of the New York Times writes, “persuading trial lawyers to cede a once-in-a-lifetime turn at the Supreme Court lectern to a fancy appellate lawyer is easier said than done.”

Epps and Ortman write: “The representational asymmetries likely distort the Court’s decisionmaking over time, at least at the margins, making criminal-justice policy friendlier to the government than it might otherwise be. As a result, the Supreme Court is a flawed regulator of criminal justice.” They propose a solution: an Office of the Defender General “that would be charged with advocating for the interests of criminal defendants as a whole before the Supreme Court.” In cases where “the interests of a particular defendant were aligned with the interests of defendants collectively,” the defender general could serve as defense counsel, or, if the defendant wants to keep his or her attorney, would work as advisers. But “where the interests diverged, the Defender General might decline to participate, argue that the Court should deny certiorari in a particular case, or even file a merits brief arguing against the positions taken by a particular defendant.”

It isn’t a crazy suggestion, nor is it entirely novel. In 2016, law professor Andrew Manuel Crespo suggested in an article in the Minnesota Law Review that the justices appoint expert lawyers to argue as amici alongside the defendants’ own lawyers. And Senator Cory Booker has proposed creating a Defender Office for Supreme Court Advocacy to represent criminal defendants and file supporting briefs.

There is another factor that might be biasing the Supreme Court against criminal defendants. As Liptak points out, “since the retirement of Justice Thurgood Marshall in 1991, the Supreme Court has not included any justices who have spent significant time working as criminal defense lawyers before ascending to the bench. By contrast, eight of the nine members of the current court have worked in prosecutors’ offices.”  The court could use some diversity in this area, Justice Sotomayor said in 2016 at Brooklyn Law School: “There is no criminal defense lawyer on the court.”

Washington Post columnist Radley Balko has called this disparity in experience a “massive blind spot” in the court’s decision-making. The lawyers who best understand the importance of basic protections for criminal defendants are public defenders, Kyle Barry, senior legal counsel for The Justice Collaborative, wrote in Slate last year. “This absence of experience extends beyond the Supreme Court to the entire federal judiciary,” he noted. “Former public defenders are woefully underrepresented on both the trial-level district courts and the circuit courts of appeal, while experience as a prosecutor remains a common and largely unquestioned career path to the federal bench.” All of which points to a broader cultural issue: Until Americans stop equating prosecution with justice and prestige, the playing field will never be truly level for defendants.

On Kobe Bryant, The Search For Nuance In An All-Or-Nothing System

On Kobe Bryant, The Search For Nuance In An All-Or-Nothing System


On Sunday, news that basketball legend Kobe Bryant had died in a helicopter crash along with his daughter and seven others overtook the impeachment trial as the top news story. “A generation lost a hero on Sunday, thousands of basketball players who grew up spinning along baselines and firing up picture-perfect midrange jump shots lost the legend that showed them how,” wrote Chris Mannix for Sports Illustrated. “There are no words for such an unspeakable tragedy.” Josh Levin, of Slate, noted that ESPN’s coverage stuck to Kobe’s professional achievements and ABC News’s special report was “extremely hagiographic.”

But another portrayal of Bryant soon emerged, one that was difficult for many to reconcile with the first: as a man credibly accused of a serious sexual assault. In 2003, Bryant was arrested and charged with felony sexual assault after a complaint by a 19-year-old hotel employee in Colorado. The charge was later dropped when it became clear that the accuser would no longer testify against him, and Bryant settled a civil suit with her out of court. She informed the court one week before opening statements were to be made that she would not testify after having been “dragged through the mud for months by the media and Bryant’s defense team,” as one news outlet described it.

In the hours after the news broke of Bryant’s death, amid the flood of public tributes, Washington Post reporter Felicia Sonmez posted, without comment, a link to a 2016 Daily Beast article that detailed the 2003 allegations against Bryant and the hurdles faced by his accuser. The New York Times reported that Sonmez’s tweet “stood out in the general outpouring of appreciation for Bryant” and “drew a swift backlash.” She commented on the backlash, writing on Twitter: “Well, THAT was eye-opening. To the 10,000 people (literally) who have commented and emailed me with abuse and death threats, please take a moment and read the story—which was written (more than three) years ago, and not by me.” Sonmez also posted what appeared to be a screenshot of an email she had received that used offensive language and called her a lewd name. The image displayed the sender’s full name. The Washington Post then suspended Sonmez, saying that her tweets “displayed poor judgment that undermined the work of her colleagues.”

The issue is charged, to put it mildly. There seem to be some, on both sides, who believe there is no room to acknowledge the other. But the possibility that two truths can coexist is exactly what Bryant alluded to in the written apology he issued as part of the settlement to his criminal case: “Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter.”

Some take this apology in good faith and see it as remarkable, especially coming so many years before the #MeToo movement. Others interpret it as a perfunctory, carefully worded non-apology, written to evade legal consequences. Regardless of one’s beliefs about his sincerity, it’s clear that “media and fans didn’t do a really good job reckoning with it when he was alive,” sports reporter Lindsay Gibbs said on Slate’s podcast “Hang Up and Listen.” Gibbs wrote critically of Byrant’s legacy when he retired in 2016. “It makes sense that it would be even more tough to discuss when he’s passed away, especially so tragically. I’m seeing two extremes. … And really, neither of those are sufficient.” Gibbs points out that the truth is muddled and Bryant “never really properly grappled with it.” Bryant’s “work in women’s basketball, and his relationship with his daughter,” she writes, “it all exists.”

“It’s been interesting seeing the primary identity by which people view Bryant. For some, he will always primarily (only?) be a person accused of sexual assault,” wrote Washington Post reporter Eugene Scott on Twitter. “It’s almost as if he has no identities other than that.” Boston Globe writer Jeneé Osterheldt replied, “The nuance is always missing in this era of extremes.”

None of us should be surprised at the lack of nuance in any of this, or the fact that Bryant was never encouraged to evolve. Our legal system isn’t set up for nuance or evolution. It’s an adversarial system that pits the accuser against the accused, forcing them to battle it out inside and outside the courtroom until one of them calls it quits, or a jury decides guilty or not guilty. This is why so many survivors of crime, especially sexual assault, decide that the all-or-nothing options before them are unsatisfactory, and opt out of the system altogether.

Recently, the New York Times podcast “The Daily” looked into why, among the over 80 women who came forward with similar and damning accusations against movie mogul Harvey Weinstein, only two are complainants in the current trial against him in Manhattan. One would-be complainant, Lucia Evans, described how various lawyers discouraged her from participating in the criminal case and instead focus on a civil suit.

“The narratives I heard the most often were, it’s going to be a long, drawn-out, painful process,” Evans said. “They’re going to tear apart your background, your life. They’re going to talk to everyone you’ve ever worked with, everyone you’ve ever been in a relationship with, find anything they can to discredit you. And it’s hard on you. It’s hard on your family. They’ll go through your trash and find every single thing you’ve ever done in the past, and blow it up out of proportion, and shame you, and just ruin your life, basically.” Her friends and family members told her the same thing. She stuck with it, but prosecutors dropped her charge when they became aware of contradictory statements a friend claimed she had made about the encounter with Weinstein, after which Weinstein’s legal team took the opportunity to portray her in the media as a liar and an opportunist.

Proponents of restorative justice see this as reason enough to reconsider the way we handle sexual assault allegations. “This is hard to say, but i am nervous that the idea that Kobe ‘was not held accountable for his sexual assault’ means, ‘Kobe did not go to prison,’” activist and human rights lawyer Derecka Purnell wrote on Twitter. “I don’t think that Kobe should have gone to prison. that does not mean that he was innocent. I believed that he harmed her. I just have no idea, along with everyone else besides Kobe and his rape survivor, whether he was ‘held accountable.’ And rather than assuming that he was not, I hope that we follow the work of radical people doing transformative justice work to understand ‘accountability.’”

Bryant was 24 at the time of the rape allegation and died at 41; he may very well have grown and accepted responsibility in that time, or after. He had, after all, shown a willingness to listen to others and change his mind on other hot-button issues, such as the media portrayal of Trayvon Martin after his shooting death. But the legal system, including the secretive terms of the settlement, precluded that kind of growth publicly, and did nothing to encourage it privately. And now he is gone, so we will never know what might have happened under a system that allowed for nuance and encouraged real accountability.

Georgia To Execute A Man For A Crime That No Longer Gets The Death Penalty

Georgia To Execute A Man For A Crime That No Longer Gets The Death Penalty


On Thursday, the state of Georgia is set to execute a 58-year-old man for a crime that would not receive the death penalty today. Jimmy Meders was convicted of murder and sentenced to die for the October 1987 killing of a convenience store clerk during a robbery. His lawyers want the state parole board to convert his sentence to life without the possibility of parole, arguing that’s what the jury would have chosen if given the chance, and what he would receive today.

Meders was sentenced in 1989, four years before life without parole became a sentencing option in capital cases. “An analysis by Meders’ attorneys of Georgia cases for which the death penalty was sought between 2008 and 2018 shows that in cases like his, with a single victim and few aggravating factors, juries don’t choose the death penalty today,” writes Kate Brumback for the Associated Press. Additionally, “prosecutors rarely seek the death penalty now in cases like his.”

The State Board of Pardons and Paroles, which is the only authority in Georgia that can commute a death sentence, plans to hold a closed-door clemency hearing tomorrow. David Bruck, who has defended capital cases and is now a professor at Washington and Lee University School of Law, believes that it defies logic and morality to carry out executions for crimes that no longer get the death penalty. “When people talk about the arbitrariness of the death penalty, this is what they mean,” Bruck told the Atlanta Journal-Constitution. “The actual behavior of prosecutors and juries over decades have shown that single-victim armed robbery murders are not enough to merit the death penalty.” In a case like this one, he said, “It’s like a person who’s the loser in a ghastly lottery.”

But longtime Gwinnett District Attorney Danny Porter is not convinced that these arguments are at all relevant. “I don’t think it makes sense logically to apply future events to the things that happened in the past,” said Porter, who was not involved with the case. “It doesn’t mean this case didn’t deserve it, for whatever particular circumstances that led the jury to give the death penalty.”

This statement might appear simply callous but it’s an articulation of a belief: Even when norms shift, culpability does not. A person who was, at one point, found deserving of a punishment still deserves that punishment even when society would no longer mete it out. By that logic, Robert-François Damiens, who was convicted of attempted regicide in mid-18th century France, would still deserve to be drawn and quartered if convicted today, and women long ago found to be unfaithful should still be stoned to death.

Can this possibly be right? If a person knows the potential punishment, however draconian, and violates a rule anyway, do they deserve the punishment? If part of reform is acknowledging that decision-makers made mistakes, and those punishments were arbitrary and unjust, it seems like a difficult case to make. An unjust punishment can never be deserved.

And what about those who abused with impunity in the past but are now, slowly, beginning to be held to account, such as contemporary pharmaceutical executives and people who led lynchings in the Jim Crow South? Did they deserve their impunity?

Drug offenses pose an even clearer example of how unfair it is to impose outdated punishments. The Project on Accountable Justice, a nonpartisan group housed at Florida State University, have recently analyzed an estimated 935 prisoners who are serving mandatory sentences of 15 and 25 years. The Florida Legislature has since eased the penalties for these crimes, so if these people were convicted of the same crimes today, many would receive a fraction of their current sentences.

In Florida, not only have the sentences changed, but voters specifically empowered the legislature to apply current sentencing laws to old cases, when they passed Amendment 11 by referendum in 2018. So far, lawmakers have taken no action to do so. For the 2020 session, which starts today, two bipartisan bills — one each in the House and Senate — have been filed that would allow judges to re-sentence those people.

State Senator Jason Pizzo, a Democrat from North Miami Beach and a former prosecutor, said he supports applying Amendment 11 to drug cases, because some old sentencing laws are “so far removed from what we would all legislate to be reasonable today.” But a leading House Republican recently said he opposes this move, even though voters asked for it specifically. “What the voters did, I’m thankful they gave us the opportunity to look at retroactivity but what they didn’t do is mandate it,” said State Representative Paul Renner, Republican of Palm Coast, the chair of the House’s Judiciary committee who’s also in line to be a future speaker of the House.

Other states, such as Illinois, have acknowledged the unfairness of their past sentencing by granting mass pardons. As Vaidya Gullapalli reported last week in The Daily Appeal, Governor J.B. Pritzker recently announced that he would issue 11,017 pardons to people with low-level marijuana convictions. The announcement came on the eve of the state’s marijuana legalization going into effect. As he announced the pardons at a church on Chicago’s South Side, Pritzker said, “the defining purpose of legalization is to maximize equity for generations to come.” The pardons, he promised, are only the first step in erasing the records of the hundreds of thousands of people across the state who have criminal records from low-level marijuana charges.

This is the logic behind sentence review units, groups within prosecutors’ offices that root out unfair sentences of the past and try to correct them. These would certainly be a step in the right direction, but if we acknowledge our values have changed, why should it depend on a person having the good fortune to have been incarcerated in a jurisdiction where a prosecutor is able and willing to do so? Why should it be, in the words of David Bruck, a “ghastly lottery?”

Pushback On New York’s Bail Reform Reflects Fear, Ignorance

Pushback On New York’s Bail Reform Reflects Fear, Ignorance


“New York Democrats have blood on their hands,” Nick Langworthy, the chairman of the state’s Republican Party, said in a news conference this week. “They rushed this dangerous, reckless law through, despite warnings from law enforcement.” Langworthy was referring to a recent attack on a rabbi’s house in Monsey, and his implication is that somehow bail reform allowed the attack to take place. It is utterly illogical to believe that the bail law had anything to do with the Monsey attack. Even under the new law, the suspect, who was charged with five counts of attempted murder and one count of first-degree burglary, could have been held in on bail. His bail in state court was set at $5 million, even before he was charged with federal hate crimes.

The new law requires defendants to be released without cash bail on most misdemeanors and many nonviolent felonies, including stalking, various drug offenses, and some kinds of arson, burglary, and robbery.

In the bail reform law’s very first week of existence, moderate and even self-proclaimed progressive Democrats have expressed a willingness to backtrack, after a spate of anti-Semitic incidents and other alleged incidents, purported to be crimes committed by those released. “Clearly there are urgent issues that need to be resolved quickly—and changes to the law should be at the top of the agenda as soon as we return to Albany,” said Senator Todd Kaminsky, a Democrat and a former federal prosecutor from Nassau County. “The public safety of our constituents should be our first priority.” This week, Democratic Governor Andrew Cuomo said the bill, which he signed in April, was a “work in progress,” adding that there were “consequences that we have to adjust for.” The state attorney general, Letitia James, also a Democrat, has suggested that the new laws be revisited but declined to say which changes she would make.

Critics point out that even though the Monsey suspect could have been detained under the new law, a Brooklyn woman who was accused of slapping three Orthodox Jewish women was automatically released. She was arrested and released under the new law, and a day later, she was rearrested after being accused of assaulting another woman.

There are many compelling counterarguments to this attack on the bail reform law. Most obviously, unless critics are suggesting that the Brooklyn woman be remanded with no possibility of bailing out, if she had access to money, she would have been able to walk just as freely under the old law as under the new one. Even accused rapist Harvey Weinstein was allowed to post bail in his case, and those critics seem untroubled by his freedom.

“Prosecutors understand the power and leverage that a broken pretrial system offers them, wielding that unfair advantage to coerce plea deals: 95% of all cases end in plea deals or dismissals, not trials,” wrote a group of public defense leaders in the Gotham Gazette. They add that “when prosecutors claim that these pretrial reforms will result in ‘criminals’ running free and skipping their court dates … it is important to remember that charitable bail funds already prove them wrong. For example, Bronx Freedom Fund found that 96% of the more than 2,500 people for whom they paid bail … attended all of their court dates; 55% of those cases were entirely dismissed.”

A coalition of 60 criminal justice reform groups sent an open letter to Cuomo and legislative leaders demanding that they not change the law. “Make no mistake,” the letter reads, “retreating from bail reform less than a week after it goes into effect because of predictable fearmongering will be a retreat from New York’s position as a leader in criminal justice reform and will embolden opponents who prefer the status quo.”

And three Jewish state lawmakers wrote an opinion piece yesterday urging leadership not to regress on criminal justice “in our name.” Even though they are “concerned about the rash of anti-Semitic attacks,” they write, “we also know that we combat anti-Semitism through education and community dialogue, not incarceration, which is why we are deeply concerned about recent attempts to use these attacks as a rationale for dismantling New York’s brand new bail reform law. While it’s important for us to untangle the truly heinous crimes from incidences of people with mental illnesses lashing out, it’s also important to ensure defendants in all of these cases are treated like human beings while they await prosecution. … None of this backsliding will address the underlying issue or make communities targeted by hate any safer. In cases where serious violence takes place, the new bail law already has been and can be applied to set bail on a suspect.” They conclude, “incarceration will not solve the problem of anti-Semitic violence.”

There are other reasons not to touch the law. “Advocates for closing Rikers and opening smaller borough-based jails are beginning to fret over the push to roll back some of the provisions of the bail law reforms that went into effect on Jan. 1, saying the contentious plan was carefully crafted using population estimates that included the impact of bail reform,” reports the Brooklyn Eagle. A source at the City Council speaker’s office said there would be no way to predict what might happen to the jail plan if bail reforms are scaled back.

“We are seeing elected officials turn back because of fearmongering,” Akeem Browder, the brother of Kalief Browder, told the New York Times. “That’s cowardice. It’s atrocious.”

Yes, a good portion of the pushback against the new law consists of cynical power grabs by law enforcement and politicians. But some of it might stem from a fundamental misunderstanding of what bail is and the purpose it is meant to serve. Perhaps because bail has a punitive effect, or perhaps because people want to trust an all-knowing system, many seem to believe that pretrial detention should be part of a punishment. Those who are not held pretrial are, to many, getting away with something. On an online community message board in this writer’s nominally progressive Brooklyn neighborhood, people expressed outrage over the new law, commenting that “crime just got legal,” and lamenting how a person can commit a crime and simply “walk away.” These beliefs are most likely the result of decades of political and cultural fearmongering, but also an ignorance about the role that bail and pretrial detention play in the overall system. Bail is simply intended to ensure a person’s return to court, not to penalize a person who has not yet been convicted of any crime.

Are Problem-Solving Courts Impeding Progress?

Are Problem-Solving Courts Impeding Progress?


“When New York State created a network of 12 Human Trafficking Intervention Courts, criminal justice professionals hailed it as an innovation,” writes Christina Goldbaum for the New York Times. “The courts send people into counseling sessions to help them leave the multibillion-dollar sex trade while dismissing their charges and sealing their records.” New York’s court isn’t alone. Courts like these, which address specific issues and try to offer a more understanding, less punitive experience than ordinary criminal court, have proliferated nationwide. But New York’s “have come under increasing criticism, six years into their operation, that they are not living up to their promise.”

“The creation of a specialized, ‘problem-solving’ court is a ubiquitous response to the issues that plague our criminal legal system,” writes law professor Erin Collins in the forthcoming academic article “The Problem of Problem-Solving Courts.” “The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money.”

The drug court, which Collins calls the “prototypical problem-solving court,” opened 30 years ago and since then, various courts have modeled themselves on it. “Treatment courts, such as mental health courts, drug courts, and homelessness courts, attempt to address an issue that is believed to be criminogenic. Accountability courts, such as domestic violence courts and community courts, stress the need to enhance accountability for certain kinds of offenses. And status courts, such as veterans courts and girls courts, aim to address the purportedly ‘unique needs’ of certain populations.” All of them claim to “solve a problem that would otherwise lead to repeated interaction with the criminal legal system.” Proponents say they do so effectively. “But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking.” Despite that, these courts continue to operate, and their numbers continue to increase.

“While much of the data about problem-solving court efficacy is ambiguous or inconsistent, one metric of success seems clear: judges like them,” Collins writes. She contends that problem-solving courts “do effectively address a problem—it is just not the one we think.” These courts “revive a sense of purpose and authority for judges in an era marked by diminishing judicial power.” Judges describe their experiences presiding over problem-solving courts as the most rewarding and satisfying of their careers. Indeed, the origin of many of these specialized courts is the same: “A pioneering judge notices a problem with the way the criminal justice system treats a certain kind of offense or offender and creates a specialized court to address that problem.”

This is indeed the origin story of the New York trafficking courts. In the early 2000s, Queens Criminal Court Judge Fernando M. Camacho began noticing that many of the people who came before him were trapped in a cycle: “Soliciting sex led to arrests that landed them in his courtroom, and then earned them criminal records that made it hard to find work outside the sex trade,” reports Goldbaum. “My gut told me they were not criminals,” Camacho said. “They were not doing this voluntarily.” He then began informally connecting people he believed to be sex-trafficking victims to volunteer service providers. His experiment became the Human Trafficking Intervention Courts in 2013. Next year, a 13th court will be added in Schenectady County.

This judge-centered dynamic isn’t inherently troubling, Collins writes, but it becomes so considering that problem-solving courts are largely unregulated. Collins demonstrates that judges themselves “often wield tremendous power over these courts, deciding whether they will open in the first place and how they will operate. Thus, those who find much satisfaction in this court process also play a central role in creating and sustaining these institutions. As a result, they have become self-reinforcing institutions that are protected from meaningful external scrutiny.”

One problem-solving court, in Austin, Texas, exemplifies the dangers of this lack of regulation. It is a court devoted to domestic violence charges. According to Krista Chacona, a criminal defense attorney who has practiced in that court part, the judge who presided over the courtroom for many years, and recently retired, was not impartial. He allowed victims advocate groups to assume a prominent support role in the court. The recently retired judge’s wife served on the board of a prominent domestic violence advocacy group while he was on the bench.

“The Constitution says we’re supposed to be protecting the rights of the accused,” Chacona told the Daily Appeal in a phone interview. But “there’s an advocacy group here that runs a shelter for domestic violence victims, and they have a [conspicuously branded] van parked right in front of the court entrance so all potential jurors have to walk past it.” The advocates “sit in jury box during protective order hearings and work closely with prosecutors. They were an integral part of the court and the culture. It doesn’t give you a sense that you’re going to get a fair shot when you walk in the door, as the defendant.” It all contributes to what Chacona describes as a “savior complex” on behalf of the complainants. Chacona said the judge also dragged cases out by granting continuances, which artificially bumped the caseload up in what she believed was an attempt to get an additional domestic violence courtroom.

In a letter to the incoming judge that Chacona wrote as presiding director of the Austin Criminal Defense Lawyers Association, she expressed concern about “the lack of even the appearance of impartiality by the court. … The previous judge had strong personal and professional ties to many of these [advocacy] groups and frequently referenced literature and studies advanced by these advocates, that was not admitted into evidence, when ruling on motions or making findings in hearings. There is deep concern that you will continue this practice, as you too are a long-time prosecutor of family violence cases with connections to the same groups, lecturing about intimate partner violence as recently as 2 weeks ago (after your appointment as judge).”

Does Chacona think we should give up on specialized courts, or at least this one? “There’s probably something of value, something to be said for the particularized experience” gained from handling the same kind of cases, she said. “But people get lost in the idea of ‘were saving victims,’ and they have to remember that this is still an adversarial system and you’re still not guilty just from an accusation.”

This comment resonates with this writer’s experience practicing in the human trafficking court in the Bronx. The judge seemed determined to take a kind, nonadversarial stance toward my clients, but throughout, they were acutely aware that there were criminal charges pending against them and that they were still within an adversarial system that could turn on them at any time. This was a power imbalance that my clients could not ignore, and it left them little room to contest their charges, as was their constitutional right. If they did, they were told they were in denial or penalized. The best option for them was to conform to the judge’s idea of what they were likely experiencing and take whatever program or plan they were offered. Many of them told me that it was not empowering. It was condescending.

Collins concludes her article by warning that the entrenchment of the problem-solving court model “creates resistance to alternatives that might truly reform the system.” Indeed, in New York, the human trafficking courts have become part of a larger debate over whether sex work should be considered a crime in the first place. “Some point to the courts’ flaws as proof that problems with exploitation in the sex trade cannot be solved by law enforcement,” writes Goldbaum. “Others say the courts have opened the minds of law enforcement officials to the idea of decriminalizing prostitution, while serving as an entry point for people who might otherwise get no services at all.” But if Judge Camacho is correct that sex workers are “not criminals” and should not be treated as such, why should they be in a criminal court, facing criminal charges, in the first place? It is possible that problem-solving courts do a decent job at identifying problems in the way we prosecute people, but provide a profoundly inappropriate solution.

More Hate Crime Laws Would Not Have Prevented The Monsey Hanukkah Attack

More Hate Crime Laws Would Not Have Prevented The Monsey Hanukkah Attack


“Tens of thousands of people, some covered in Israeli flags and others singing Hebrew songs, poured into Lower Manhattan on Sunday in a show of solidarity for New York’s Jewish community in the wake of a spate of anti-Semitic attacks in the region in the last month,” reports the New York Times. “The most recent attack occurred inside a Hasidic rabbi’s home in a New York City suburb, when a man wielding a machete stabbed at least five people who had gathered for Hanukkah celebrations.” According to an upcoming report from the Center for the Study of Hate and Extremism at California State University, San Bernardino, antisemitic hate crimes in New York, Los Angeles, and Chicago are poised to hit an 18-year peak.

The recent high-profile attack came as dozens celebrated the seventh night of Hanukkah in Monsey, New York. A man entered the house, his face covered with a scarf, and told those gathered, “No one is leaving.” Witnesses say he then unsheathed a machete and started slashing at random. He later headed toward the nearby synagogue, but congregants had already locked the doors. Prosecutors say the suspect’s notebooks and internet search history indicate an interest in antisemitic tropes.

In the aftermath, many have decided that the way to bring about the marchers’ chant of “no hate no fear” is to ramp up hate crime laws. Governor Andrew Cuomo characterized the episode as “an act of domestic terrorism.” In an interview on NPR, Cuomo said, “And we treat them as individual, episodic, random acts. They are not. There is a pattern. … It has to be called out, and it has to be stopped. And it has to be prosecuted. I want to pass a domestic terrorism law in New York state. It is terrorism.” State Senator Joe Griffo of Rome has proposed legal changes to that effect. “Even though there are pre-existing anti-discrimination laws that can apply,” Griffo said, “this bill would actually elevate this type of crime to a hate crime under the human rights law in the state of New York, which then gives the opportunity for law enforcement to charge and prosecutors to prosecute accordingly.”

To many, this all sounds reasonable. Why not punish hate crimes more harshly, given that hate crimes are bad? There are a few reasons not to, many of them laid out by law professor Janine Young Kim in a 2006 article in the Nebraska Law Review.

Nearly all states in the U.S., and the federal government, have hate crime statutes. The first thing to note is that these laws do not change what can and cannot be prosecuted. All of the conduct they include is already a crime and can already be prosecuted. These laws merely enhance penalties for certain crimes if they are found to be motivated by bias or hatred toward a particular group. Some have criticized them because of their effect on free expression. Professors James B. Jacobs and Kimberly Potter, have argued that the First Amendment “is implicated when extra punishment is meted out for bigoted beliefs and motives.” It should be noted, however, that in 1993, the Supreme Court upheld the constitutionality of Wisconsin’s hate crime law against a First Amendment challenge. But it may strike some as strange that the difference between a hate crime and a normal crime can sometimes be found in constitutionally protected speech.

In an article in the journal Law and Philosophy, scholar Heidi Hurd “takes issue with the claim that hate crime statutes are justified because hatred and bias constitute uniquely culpable mental states that merit increased punishment. … Because hatred and bias are uniquely dispositional, the enactment of hate crime statutes marks a shift from an act-centered theory of criminal punishment to a character-centered theory.” She urges, “we should be wary of using punishment to regulate not only what we do, but who we are.”

The most trenchant issue, however, might be the justified skepticism that hate crime laws actually help eradicate hate or hate crimes. An analyst at the Cato Institute has written that these laws are unnecessary and possibly counterproductive. “Making the ideology of the perpetrator a centerpiece of the trial doesn’t deter like-minded extremists; it encourages them.” As one professor argued in Law and Philosophy, enhancing penalties for hate crimes “may be shirking rather than taking responsibility for making the needed changes.” Indeed, increasing criminal penalties is how our politicians have tackled scores of social problems over the past few decades, a strategy that has inflicted great harm and produced little benefit. Funding studies of online radicalization and how to prevent it, and then implementing those prevention strategies would be a far better use of government resources than simply tacking on more years to prison terms that would be quite long anyway. But proactive efforts are harder, and they don’t scratch that vengeful itch that hate crimes laws do. Politicians, including Democrats, are basically saying that although mass incarceration has been a failure, perhaps a little more of it is what we need to combat our most intractable problems.

The Sylvia Rivera Law Project, a legal collective, says that it “opposes the use of hate crimes legislation as a way to protect queer and trans people, as well as people of color, people with disabilities, immigrants, and all marginalized people. We believe hate crimes legislation build up systems that cannot protect us and deflect resources from systems that sustain and support our communities, such as education and health care.”

The only legitimate justification for hate crime legislation is expressing societal values. The Daily Appeal delved into the expressive function of the law when discussing President Trump’s controversial decision to pardon Edward Gallagher, a Navy SEAL accused of serious war crimes. Some have argued that enhancing punishment for hate crimes is “necessary for the full expression of commitment to American values of equality of treatment and opportunity.” But in a 2001 article evaluating whether to make hate crimes federal, law professor Sara Sun Beale writes that although “emphasis on the expressive function of federal criminal law has the potential to alter public perceptions … it is not clear how that process will play out.” Beale explores the political science literature on symbolic politics and interest group theory, concluding that although hate crime laws provide “symbolic reassurance to key interest groups,” they “would have little impact on law enforcement.”

It is this function that prosecutors have seized on to justify the charges in the Monsey case. The Washington Post reports: “Federal prosecutors said the hate-crime charges should send a “crystal-clear” message, as the filing drew approval from groups that had called for concrete steps to address anti-Jewish attacks.”

But especially in a case like this one, where mental health issues seem to have played a significant role, it is difficult to believe that hate crime laws could possibly have played a preventive role. Indeed, the attorneys and the media have wrongly framed the question as one hinging on whether the suspect is either mentally ill or an antisemite. The Washington Post reported that the suspect’s attorney “rejected descriptions of his client as a ‘domestic terrorist’ who carried out a targeted attack. He said his review of papers from [Grafton] Thomas’s home revealed not anti-Semitism but the ‘ramblings of a disturbed individual.’” Why are those two things mutually exclusive?

Mental illness is often shaped by societal inputs. A 2013 article in the New Yorker focused on “Truman Show” delusion, defined as a form of psychosis in which “the patient believes that he is being filmed, and that the films are being broadcast for the entertainment of others.” “Truman Show” delusion is not the only example of a situation-specific disorder. “Between 1995 and 2004, the International Study on Psychotic Symptoms, a survey of eleven hundred patients from seven countries, found that the mind supplies the contours of delusions, and culture fills in the details. Grandiose schizophrenics from largely Christian countries often claim to be prophets or gods, but sufferers in Pakistan, a Muslim country, rarely do. In Shanghai, paranoid people report being pricked by poisoned needles; in Taipei, they are possessed by spirits. Shifts in technology have caused the content of delusions to change over the years: in the nineteen-forties, the Japanese controlled American minds with radio waves; in the fifties, the Soviets accomplished this with satellites; in the seventies, the C.I.A. implanted computer chips into people’s brains.”

There is no reason, then, to believe that the suspect in the Monsey case did not suffer from mental illness and was not therefore susceptible to one of the most readily accessible conspiracy theories on the internet: that the Jews are to blame. And if that is the case, there is very little hope that any hate crime law would have done anything to prevent it. It is hard to imagine a person with, as his family described it, “profound mental illness,” calculating the number of additional prison years he would have to serve if caught, and then deciding against committing an attack. Funding mental health research and treatment, and combating hate and radicalization, might actually have helped. But politicians are still hungry for those extra prison years. It’s easier.

Matt Bevin and the ‘godlike’ pardon power

Matt Bevin and the ‘godlike’ pardon power


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.

The new year means, for many, political transitions. In Kentucky, Matt Bevin, a Republican governor whose administration was fraught with conflict, lost re-election in November in a deep red state by more than 5,000 votes. Bevin, who left office last month, created even more controversy on his way out by issuing over 600 pardons and commutations. The New York Times called it an “extraordinary exercise of personal judgment that went well beyond typical governors’ pardons” in which Bevin released people, some of whom were serving time for “serious crimes,” based on “his own conclusion that they had been wrongfully convicted.” Prosecutors complained that neither they nor victims’ families had been consulted or notified, and the Courier Journal, based in Louisville, ran a front-page article quoting a relative of a slain victim with the headline: “Matt Bevin can rot in hell.” The FBI has, apparently, opened an investigation.

“Such a unilateral approach was not uncharacteristic for Mr. Bevin, a businessman who burst into Republican politics several years ago styling himself as a righteous outsider,” who became known for a “my-way-or-the-highway approach to governance,” reports the Times. Experts have noted that it is unusual for a governor to act as arbitrator on wrongful conviction claims, especially those still making their way through the appeals system. It may not have entirely been ego and whim: As governor, Bevin did make some efforts toward ameliorating the overreach of the criminal system in his state.

But, as Adam Johnson points out in The Appeal, to get incensed about releasing people from prisons in one of the most incarceratory states in the most incarceratory country is somewhat short-sighted, to say the least. “The idea that the great moral tragedy of our time is that not enough people are in Kentucky prisons runs counter to everything we know about incarceration,” he wrote. When newspapers run their “predictable torrent of salacious headlines and decontextualized moralizing,” they often omit that bigger picture, in addition to mitigating facts such as the person’s age at the time of the offense, mental health defenses, and trial errors.

Leland Hulbert, who prosecuted a person pardoned by Bevin, lamented that the pardon power is almost “godlike.” Although all efforts to release people from prisons and help people move on with a clean slate should be applauded, it isn’t true that all pardons are equal. It isn’t simply the case that pulling any person out of prison is equally good, or even desirable at all. In discussing President Trump’s decision to pardon Navy SEAL Edward Gallagher, whose platoon reported that he killed civilians for sport, this writer has noted that even abolitionists might root against Gallagher. In pardoning him, the president, as commander in chief, was signalling that lawlessness and brutality is okay, as long as it afflicts only foreigners.

And law professor Martha Minow writes in her book “When Should Law Forgive?” that “amnesties and pardons that shield the powerful from accountability, cover up wrongdoing, or reward gifts or support” are “troubling” because they risk “undermining respect for law and its commitment to equal and neutral treatment.” Minow notes that President Gerald Ford’s famous pardon of Richard Nixon after his resignation from office was condemned at the time, but later accepted by a majority of Americans as a way for society to move on from Watergate. Often pardons are intended to benefit society at large more than the individual pardoned.

But in some cases, like President Bill Clinton’s pardon of Marc Rich, a political donor, there are no apparent societal benefits. Rich had been charged with tax evasion and illegal commerce with Iran, while Iran held American citizens hostage. “Appearing to reward someone who had donated dollars for the president’s personal and political gain, the pardon of the unrepentant swindler Marc Rich insulted all those affected by Iran’s brutality toward the United States,” Minow writes. She is even more critical of Trump’s first pardon, that of the infamously abusive sheriff Joe Arpaio, who was a vocal and loyal supporter of the president from early on. The pardon drew legitimate outrage, Minow argues, because it could be taken as encouraging others to treat the vulnerable with cruelty. “The Arpaio pardon may in fact encourage others to flout official authority and disobey any law. That it does so specifically in the context of constitutional civil rights protections marks a disturbing rejection of crucial successes in the nation’s long journey toward civil rights enforcement” and “follows in a line of actions by President Trump that condone white supremacy.”

Pardoning a law enforcement officer who has abused his power also sends a direct message to others in his field that they may abuse with impunity, much like the pardon of Gallagher did. Bevin did not pardon any notorious sheriffs but at least one of his pardons did smack of self-dealing, the way the Arpaio and Rich pardons did. Bevin pardonend Patrick Brian Baker, a man who was convicted of homicide and other crimes, and whose family raised thousands of dollars for Bevin.

There is another reason to feel troubled by some of Bevin’s pardons: the racial disparities. Of the 336 prisoners serving time for drug possession who were granted early release, 95 percent were white. The Courier Journal analyzed Bevin’s conditional commutation order and found that 20 percent of people held solely for drug possession, or 976, were not white and could have been eligible for commutation. Out of those 976 people, only 16 had their sentences commuted. Eight percent of a potential pool of white people convicted of drug offenses received a commutation, but only 1.6 percent of people of color got that break.

Pardoning a group of overwhelmingly white people when Black people in Kentucky are incarcerated at a vastly disproportionate rate––3,545 Black people per 100,000 as opposed to 705 per 100,000 for whites––is, at best, “a bad look,” as the kids would say. It also reflects the stubborn belief that transgressions, as long as committed by white people, are mistakes, whereas wrongdoing on the part of non-white people is somehow indicative of an inherent and fatal character flaw. It isn’t that Bevin should have pardoned fewer people; he should have pardoned more, or at least different people.

The “godlike” pardon power is usually used to correct egregious wrongs done by the criminal legal system, but it can also be used for self-dealing, to allow government officers to abuse with impunity, and to exacerbate racial disparities in the criminal system. But the vast majority of the vitriol Bevin faces has not focused on those aspects of his pardons. Critics have mostly raged against the idea of too little vengeance, which seems to animate Americans far more than the reality of too much vengeance. On Twitter, law professor John Pfaff asked where the vitriol was on behalf of the people that the Pennsylvania Board of Pardons refused to release. Some of those denials were so cruel that wardens from the prisons were weeping.

“From what we know of former Governor Bevin’s extreme pardons and commutations, the Senate Republican majority condemns his actions as a travesty and perversion of justice,” said Robert Stivers, the Republican president of the Kentucky Senate. “Our citizens, and especially the crime victims and their families, deserve better.” Don’t the people of Kentucky also deserve better than to live in a state that locks more people up than any other? Or does that not count?

A conservative judge changes his mind

A conservative judge changes his mind


What you’ll read today

  • Spotlight: A conservative judge changes his mind

  • In one California city, police kill with near impunity

  • Chicago’s gang database can have ‘devastating’ consequences, but there’s no way to be removed from it

  • Political Report: New Jersey and Kentucky restore voting rights to more than 200,000

  • Oregon’s Supreme Court limits police questioning during traffic stops

  • Georgia legislature will not enfranchise anyone with any felony conviction on probation or parole

In the Spotlight

A conservative judge changes his mind

When John Roberts was nominated to the Supreme Court in 2005, he assured the nation that his decisions would be guided by something loftier than his own whims or predilections.  “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability,” he told the Senate. “And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” It all sounded very reasonable, and it’s a fiction deeply embedded in our judicial system. Most legal opinions are written as if the conclusion is so apparent, so free of personal bias, so certain, as to be almost inevitable. You don’t often see an opinion that begins, “This one was a really close call; it could have gone either way!” Instead they read as if no reasonable person could have concluded anything else.

All of which makes this week’s opinion from Fifth Circuit Judge Don R. Willett a refreshing surprise. Willett changed his mind. And he reversed himself on one of the more troubling decisions we’ve seen recently, which is saying quite a bit.

The case, which The Daily Appeal discussed last week, was based on a lawsuit that a federal judge said bordered on the delusional. “A Louisiana police officer injured in a protest tried to sue the hashtag #BlackLivesMatter, which amounted, wrote Judge Brian A. Jackson of the Federal District Court in Baton Rouge, to picking a fight with an idea,” wrote Adam Liptak for the New York Times. “The officer also sued Black Lives Matter, which the judge said was also a nonstarter … A third part of the lawsuit—seeking to hold a leader of the movement [DeRay Mckesson] liable for the officer’s injuries—reached the Supreme Court on Friday. Judge Jackson had dismissed that part of the case on First Amendment grounds, but an appeals court revived it, alarming civil rights lawyers and experts on free speech.”

“The principles outlined in this decision put civil disobedience at risk,” Alanah Odoms Hebert, the head of the ACLU of Louisiana, told The Atlantic. “If this doctrine had existed during the civil rights movement there would not have been a civil rights movement.” Others noted the irony that officers are allowed to commit acts of violence with near impunity because of qualified immunity, while protest organizers can be sued for the acts of others, if they injure police.

But Willett, a Trump appointee, changed his mind. “I have had a judicial change of heart,” Willett wrote in his new opinion. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

“In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson,” writes law professor Garrett Epps for The Atlantic. “Willett further wrote that, having insisted on reaching the free-speech issue, the panel botched that as well. Doe’s complaint alleged that Mckesson ‘incited’ the violence that led to Doe’s injuries. But Doe’s lawyer didn’t even bother to explain how.”

Epps writes that even though the original opinion still stands, Willett’s change of heart is “a sign of life for old First Amendment precedents.” But it is also a sign of life for judicial humility, and the idea that our legal system ought to be guided by accuracy and justice, not expediency. When, recently, the issue of convictions by nonunanimous juries came before the Supreme Court, those arguing to preserve this practice posited that any ruling to the contrary would be too great an administrative burden on state courts. The same arguments were made when it came to reviewing life without parole sentences for those convicted as children. The Antiterrorism and Effective Death Penalty Act of 1966 might be the starkest example of how our system favors administrative ease over fairness. It was designed to limit the avenues for people on death row to challenge their convictions, and a study showed that it reduced the success rate for federal habeas petitions to levels about a fifth of what they previously were, and at the time of the study’s publication, those numbers were continuing to decline.

One case in Missouri exemplifies the dominance of administrative ease over serious concerns about fairness and justice. Lamar Johnson was convicted of killing Marcus Boyd in 1995. He was sentenced to life. But years after the killing, the state’s only witness recanted his identification of Johnson as the shooter, and two other men have confessed to Boyd’s killing and said Johnson was not involved. And Johnson has gained the support of the prosecutor, Kim Gardner, whose office was responsible for his conviction nearly 25 years ago. After looking into his case with lawyers at the Midwest Innocence Project, Gardner asked for a new trial in July saying she believes her office engaged in “serious misconduct,” including secret payments to the witness, falsified police reports, and perjured testimony.

Gardner believes that she is duty bound to correct past wrongs, but in a case that one commentator said showed “just how much the criminal justice system favors form and finality over substance,” a judge disagreed. Judge Elizabeth B. Hogan based her decision on a statute that requires the relevant motion be made within 15 days of the conviction. She told prosecutors they were late by “approximately 24 years.” But in so doing, the judge seems to have ignored case law that allows the motion to be heard beyond the 15-day deadline in “extraordinary circumstances” and “in the interests of justice.” A 1984 Missouri appeals court ruled that a “perversion of justice” would occur if “we were to close our eyes to the existence of the newly discovered evidence” solely because of a missed deadline. In her decision, Hogan seems eager to find reasons to reject Gardner’s attempt to right a possible wrong.

Advocates for Johnson, including professors from law schools across the country, have appealed to Missouri Attorney General Eric Schmitt to drop his opposition to Gardner’s efforts. “The circuit attorney needs to have a means to correct that injustice,” Gardner’s attorney, Daniel Harawa, told the appeals court. But Schmitt has steadfastly opposed. His office’s reasoning is not exactly lofty. Assistant Attorney General Shaun Mackelprang said in court that the court’s jurisdiction over Johnson’s case expired when he was convicted and sentenced in 1995. Why turn a blind eye to a possible wrongful conviction? “Our laws have meaning and our rules have meaning, and for people to operate within those boundaries,” Mackelprang said.

Stories From The Appeal

Photo Illustration by Elizabeth Brown. Photo by Getty Images.

In One California City, Police Kill With Near Impunity. Since 2010, no Vallejo officer has been disciplined for using deadly force, despite multiple shootings of unarmed people—including a man holding a can of beer. And active police union leaders have been involved in the shooting investigations. [Darwin BondGraham]

Chicago’s Gang Database Can Have ‘Devastating’ Consequences, But There’s No Way to Be Removed From It. Social media posts, tattoos, or the unvetted word of an officer can lead to inclusion on the list, which is overwhelmingly composed of people of color. [Elizabeth Weill-Greenberg]

Political Report: One Week’s Work: New Jersey and Kentucky Restore Voting Rights to More than 200,000. Advocates in both states vow further action against felony disenfranchisement. [Daniel Nichanian]

Stories From Around the Country

Oregon’s Supreme Court limits police questioning during traffic stops: A recent decision by the Oregon Supreme Court threatens to upend the common police practice of using a traffic stop as a pretext to ask invasive questions that could lead to an arrest. Last month, “the court ruled it was unconstitutional for officers to ask drivers any investigatory questions unrelated to the purpose of a traffic stop,” reports the Portland Mercury. “In Portland, recent data shows this policing tool is disproportionately used against people of color, meaning this ruling may begin to rectify the overrepresentation of Black people in the criminal justice system.” The court ruled that because the state Constitution protects Oregonians from “unreasonable search and seizure,” it also precludes officers from asking drivers questions during a traffic stop that go beyond the violation they’ve been pulled over for. “Put simply, an ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds,” Justice Adrienne Nelson, the first Black woman on Oregon’s Supreme Court, wrote in the final ruling. These limitations ensure “that officers do not turn minor traffic violations into criminal investigations without a constitutional basis for doing so.” [Alex Zielinski / Portland Mercury]

Georgia legislature will not enfranchise anyone with any felony conviction on probation or parole: While New Jersey gave the vote to those on probation and parole this week, a Senate subcommittee in Georgia that defines which felonies might not result in disenfranchisement “just quietly moved to make no changes. everyone incarcerated or on probation/ parole for a felony remains shut out of democracy in GA,” Hannah Riley of the Southern Center for Human Rights wrote on Twitter. “In Georgia,” Riley explains, “neither the constitution nor the elections code defines what a felony with ‘moral turpitude’ is. So the practice has been to define every felony this way.” [Twitter]

A Conservative Judge Changes His Mind

A Conservative Judge Changes His Mind


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.

When John Roberts was nominated to the Supreme Court in 2005, he assured the nation that his decisions would be guided by something loftier than his own whims or predilections.  “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability,” he told the Senate. “And I will remember that it’s my job to call balls and strikes and not to pitch or bat.” It all sounded very reasonable, and it’s a fiction deeply embedded in our judicial system. Most legal opinions are written as if the conclusion is so apparent, so free of personal bias, so certain, as to be almost inevitable. You don’t often see an opinion that begins, “This one was a really close call; it could have gone either way!” Instead they read as if no reasonable person could have concluded anything else.

All of which makes this week’s opinion from Fifth Circuit Judge Don R. Willett a refreshing surprise. Willett changed his mind. And he reversed himself on one of the more troubling decisions we’ve seen recently, which is saying quite a bit.

The case, which The Daily Appeal discussed last week, was based on a lawsuit that a federal judge said bordered on the delusional. “A Louisiana police officer injured in a protest tried to sue the hashtag #BlackLivesMatter, which amounted, wrote Judge Brian A. Jackson of the Federal District Court in Baton Rouge, to picking a fight with an idea,” wrote Adam Liptak for the New York Times. “The officer also sued Black Lives Matter, which the judge said was also a nonstarter … A third part of the lawsuit—seeking to hold a leader of the movement [DeRay Mckesson] liable for the officer’s injuries—reached the Supreme Court on Friday. Judge Jackson had dismissed that part of the case on First Amendment grounds, but an appeals court revived it, alarming civil rights lawyers and experts on free speech.”

“The principles outlined in this decision put civil disobedience at risk,” Alanah Odoms Hebert, the head of the ACLU of Louisiana, told The Atlantic. “If this doctrine had existed during the civil rights movement there would not have been a civil rights movement.” Others noted the irony that officers are allowed to commit acts of violence with near impunity because of qualified immunity, while protest organizers can be sued for the acts of others, if they injure police.

But Willett, a Trump appointee, changed his mind. “I have had a judicial change of heart,” Willett wrote in his new opinion. “Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’”

“In this case, reexamination led Willett to see two gaping holes in the majority’s case. First, he pointed out, despite the panel’s earlier decision, it’s not clear that even Louisiana tort law would support a lawsuit against Mckesson,” writes law professor Garrett Epps for The Atlantic. “Willett further wrote that, having insisted on reaching the free-speech issue, the panel botched that as well. Doe’s complaint alleged that Mckesson ‘incited’ the violence that led to Doe’s injuries. But Doe’s lawyer didn’t even bother to explain how.”

Epps writes that even though the original opinion still stands, Willett’s change of heart is “a sign of life for old First Amendment precedents.” But it is also a sign of life for judicial humility, and the idea that our legal system ought to be guided by accuracy and justice, not expediency. When, recently, the issue of convictions by nonunanimous juries came before the Supreme Court, those arguing to preserve this practice posited that any ruling to the contrary would be too great an administrative burden on state courts. The same arguments were made when it came to reviewing life without parole sentences for those convicted as children. The Antiterrorism and Effective Death Penalty Act of 1966 might be the starkest example of how our system favors administrative ease over fairness. It was designed to limit the avenues for people on death row to challenge their convictions, and a study showed that it reduced the success rate for federal habeas petitions to levels about a fifth of what they previously were, and at the time of the study’s publication, those numbers were continuing to decline.

One case in Missouri exemplifies the dominance of administrative ease over serious concerns about fairness and justice. Lamar Johnson was convicted of killing Marcus Boyd in 1995. He was sentenced to life. But years after the killing, the state’s only witness recanted his identification of Johnson as the shooter, and two other men have confessed to Boyd’s killing and said Johnson was not involved. And Johnson has gained the support of the prosecutor, Kim Gardner, whose office was responsible for his conviction nearly 25 years ago. After looking into his case with lawyers at the Midwest Innocence Project, Gardner asked for a new trial in July saying she believes her office engaged in “serious misconduct,” including secret payments to the witness, falsified police reports, and perjured testimony.

Gardner believes that she is duty bound to correct past wrongs, but in a case that one commentator said showed “just how much the criminal justice system favors form and finality over substance,” a judge disagreed. Judge Elizabeth B. Hogan based her decision on a statute that requires the relevant motion be made within 15 days of the conviction. She told prosecutors they were late by “approximately 24 years.” But in so doing, the judge seems to have ignored case law that allows the motion to be heard beyond the 15-day deadline in “extraordinary circumstances” and “in the interests of justice.” A 1984 Missouri appeals court ruled that a “perversion of justice” would occur if “we were to close our eyes to the existence of the newly discovered evidence” solely because of a missed deadline. In her decision, Hogan seems eager to find reasons to reject Gardner’s attempt to right a possible wrong.

Advocates for Johnson, including professors from law schools across the country, have appealed to Missouri Attorney General Eric Schmitt to drop his opposition to Gardner’s efforts. “The circuit attorney needs to have a means to correct that injustice,” Gardner’s attorney, Daniel Harawa, told the appeals court. But Schmitt has steadfastly opposed. His office’s reasoning is not exactly lofty. Assistant Attorney General Shaun Mackelprang said in court that the court’s jurisdiction over Johnson’s case expired when he was convicted and sentenced in 1995. Why turn a blind eye to a possible wrongful conviction? “Our laws have meaning and our rules have meaning, and for people to operate within those boundaries,” Mackelprang said.

Contemporary Debtors Prisons

Contemporary Debtors Prisons


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.

“Ours is an unforgiving age.” This is the first sentence of law professor Martha Minow’s recent book, “When Should Law Forgive?” The U.S., she writes, “is particularly punitive in defining, prosecuting, and punishing crimes.” But the same country “has a generally forgiving policy toward debt, especially business debt, with bankruptcy procedures allowing companies a fresh start.”

Bankruptcy, unlike criminal law, anticipates and accepts failures as inevitable. The question is how best to handle defaults such that individuals are not unfairly penalized and society is not excessively burdened. It’s a policy question. Without carrying the same social stigma (though there is certainly stigma attached), bankruptcy “provides a socially structured way for a debtor to start over after failing to repay debts.” The system is rooted in pragmatism, not moral condemnation. Still, those who benefit most tend to be those whom the government chooses to protect, which generally includes large corporations and lenders, not individuals trying to pay off student loans, medical debt, or court fines. And when it comes to those least privileged on the totem pole of debt, the criminal system is increasingly stepping in to dismantle the boundary between the two systems. Using contempt orders and cash bail, it pulls vulnerable people in debt away from the pragmatism of bankruptcy and toward the punitiveness of jail.

On a Tuesday last July, “Tres Biggs stepped into the courthouse in Coffeyville, Kansas, for medical debt collection day, a monthly ritual in this quiet city of 9,000,” writes Lizzie Presser for ProPublica. “He was one of 90 people who had been summoned, sued by the local hospital, or doctors, or an ambulance service over unpaid bills. Some wore eye patches and bandages; others limped to their seats by the wood-paneled walls. Biggs, who is 41, had to take a day off from work to be there. He knew from experience that if he didn’t show up, he could be put in jail.”

Before the morning’s hearing, people who were summoned traded their stories. “One woman recalled how, at four months pregnant, she had reported a money order scam to her local sheriff’s office only to discover that she had a warrant; she was arrested on the spot. A radiologist had sued her over a $230 bill, and she had missed one hearing too many. Another woman said she watched, a decade ago, as a deputy came to the door for her diabetic aunt and took her to jail in her final years of life. Now here she was, dealing with her own debt, trying to head off the same fate.” Biggs’s court dates had begun after his son developed leukemia, and they multiplied when his wife started having seizures. He had been arrested because of medical debt more than once.

The courtroom’s judge, David Casement, wears a black robe over his cowboy boots and silversmithed belt buckle. A cattle rancher, he was appointed a magistrate judge without ever having taken a course in law. In Kansas, and many other states, judges don’t need a law degree to preside over cases like these. “The first collector of the day was also the most notorious: Michael Hassenplug, a private attorney representing doctors and ambulance services. Every three months, Hassenplug called the same nonpaying defendants to court to list what they earned and what they owned, called a ‘debtor’s exam,’” writes Presser. If a person misses an exam, the judge typically issues a contempt citation, a charge for disobeying a court order, and if the person misses the contempt hearing, Hassenplug asks the judge for a bench warrant. “As long as the defendant had been properly served,” the judge’s answer is always yes. “In practice, this system has made Hassenplug and other collectors the real arbiters of who gets arrested and who is shown mercy. If debtors can post bail, the judge almost always applies the money to the debt. Hassenplug, like any collector working on commission, gets a cut of the cash he brings in.”

Under early English rule, monarchs were considered vicars of God, and disobeying them was tantamount to sin. Contempt, once the realm of kings, spread to English courts, and then American courts, which now use it to force compliance. If an order isn’t followed, courts aren’t required to issue contempt orders, but judges in the U.S. can choose to.

Contempt is also being used in Utah to jail people who are unable to repay predatory loans. Another ProPublica investigation, published Dec. 3, revealed that people who borrowed money at high interest rates were being sued for owing sums that ranged from $800 to $3,600, and when they missed a court date, the company obtained a warrant for their arrest. Congress banned debtors prisons in 1833, but across the country, debtors are routinely threatened with arrest and sometimes jailed. In Utah, it’s particularly aggressive.

After the Supreme Court relaxed restrictions on interest rates in 1978, Utah got rid of its interest rate limits in the hopes of luring credit card and other finance companies. A favorable regulatory climate in Utah made lenders feel welcome. The first payday loan store opened in Salt Lake City two years later, and other companies soon flocked to the favorable regulatory climate. “Today, Utah is home to some of the most expensive payday loans in the country,” writes Anjali Tsui. “The average annual interest rate hovers at 652%, according to the Center for Responsible Lending, a nonprofit research and policy organization… Payday lenders charged annual percentage rates as high as 2,607% in 2019, according to the Utah Department of Financial Services. Utah is one of six states where there are no interest rate caps governing payday loans.”

When it comes time to pay, a few weeks after getting a loan, most borrowers cannot afford to do so, and 80 percent of those loans are rolled over or renewed. Many borrowers eventually owe more in fees than the amount initially borrowed, and get stuck in a cycle of debt. In Utah, payday lenders and similar companies that offer high-interest, small-dollar loans dominate small claims court. In those courts, there are rarely lawyers, judges are not always legally trained, and the rules of evidence do not apply.

If a borrower doesn’t show up, the lender wins by default, and once a judgment is entered, the lending companies can garnish borrowers’ paychecks and seize their property. If borrowers fail to attend a supplemental hearing to answer questions about their income and assets, companies can ask the court to issue a bench warrant for their arrest. “Technically, debtors are arrested for not responding to a court summons requested by the creditor,” writes Tsui. “But for many low-income people, who are not familiar with court proceedings, lack access to transportation, child care options or time off, or move frequently and thus may not receive notifications, it’s a distinction without a difference.”

Even the bail system favors payday lenders. In Utah, a 2014 law allows creditors to get access to bail money posted in civil cases, so if a person bails out after being jailed for unpaid debts, the payday loan companies can pocket that money. “The law has transformed the state’s power to incarcerate into a powerful tool to guarantee that loan companies get paid,” Tsui writes. Law professor Christopher Peterson, who has studied the issue, said, “They’re handcuffing and incarcerating people in order to get money out of them and apply it towards insanely high interest rate loans.”

Contemporary debtors prisons

Contemporary debtors prisons


What you’ll read today

  • Spotlight: Contemporary debtors prisons

  • Ohio jail faces $2.8 million lawsuit after claims of abuse are made by dozens of men

  • Curtis Flowers released on bail

  • Bill that would enfranchise those on parole and probation in New Jersey heads to governor’s desk

In the Spotlight

Contemporary debtors prisons

“Ours is an unforgiving age.” This is the first sentence of law professor Martha Minow’s recent book, “When Should Law Forgive?” The U.S., she writes, “is particularly punitive in defining, prosecuting, and punishing crimes.” But the same country “has a generally forgiving policy toward debt, especially business debt, with bankruptcy procedures allowing companies a fresh start.”

Bankruptcy, unlike criminal law, anticipates and accepts failures as inevitable. The question is how best to handle defaults such that individuals are not unfairly penalized and society is not excessively burdened. It’s a policy question. Without carrying the same social stigma (though there is certainly stigma attached), bankruptcy “provides a socially structured way for a debtor to start over after failing to repay debts.” The system is rooted in pragmatism, not moral condemnation. Still, those who benefit most tend to be those whom the government chooses to protect, which generally includes large corporations and lenders, not individuals trying to pay off student loans, medical debt, or court fines. And when it comes to those least privileged on the totem pole of debt, the criminal system is increasingly stepping in to dismantle the boundary between the two systems. Using contempt orders and cash bail, it pulls vulnerable people in debt away from the pragmatism of bankruptcy and toward the punitiveness of jail.

On a Tuesday last July, “Tres Biggs stepped into the courthouse in Coffeyville, Kansas, for medical debt collection day, a monthly ritual in this quiet city of 9,000,” writes Lizzie Presser for ProPublica. “He was one of 90 people who had been summoned, sued by the local hospital, or doctors, or an ambulance service over unpaid bills. Some wore eye patches and bandages; others limped to their seats by the wood-paneled walls. Biggs, who is 41, had to take a day off from work to be there. He knew from experience that if he didn’t show up, he could be put in jail.”

Before the morning’s hearing, people who were summoned traded their stories. “One woman recalled how, at four months pregnant, she had reported a money order scam to her local sheriff’s office only to discover that she had a warrant; she was arrested on the spot. A radiologist had sued her over a $230 bill, and she had missed one hearing too many. Another woman said she watched, a decade ago, as a deputy came to the door for her diabetic aunt and took her to jail in her final years of life. Now here she was, dealing with her own debt, trying to head off the same fate.” Biggs’s court dates had begun after his son developed leukemia, and they multiplied when his wife started having seizures. He had been arrested because of medical debt more than once.

The courtroom’s judge, David Casement, wears a black robe over his cowboy boots and silversmithed belt buckle. A cattle rancher, he was appointed a magistrate judge without ever having taken a course in law. In Kansas, and many other states, judges don’t need a law degree to preside over cases like these. “The first collector of the day was also the most notorious: Michael Hassenplug, a private attorney representing doctors and ambulance services. Every three months, Hassenplug called the same nonpaying defendants to court to list what they earned and what they owned, called a ‘debtor’s exam,’” writes Presser. If a person misses an exam, the judge typically issues a contempt citation, a charge for disobeying a court order, and if the person misses the contempt hearing, Hassenplug asks the judge for a bench warrant. “As long as the defendant had been properly served,” the judge’s answer is always yes. “In practice, this system has made Hassenplug and other collectors the real arbiters of who gets arrested and who is shown mercy. If debtors can post bail, the judge almost always applies the money to the debt. Hassenplug, like any collector working on commission, gets a cut of the cash he brings in.”

Under early English rule, monarchs were considered vicars of God, and disobeying them was tantamount to sin. Contempt, once the realm of kings, spread to English courts, and then American courts, which now use it to force compliance. If an order isn’t followed, courts aren’t required to issue contempt orders, but judges in the U.S. can choose to.

Contempt is also being used in Utah to jail people who are unable to repay predatory loans. Another ProPublica investigation, published Dec. 3, revealed that people who borrowed money at high interest rates were being sued for owing sums that ranged from $800 to $3,600, and when they missed a court date, the company obtained a warrant for their arrest. Congress banned debtors prisons in 1833, but across the country, debtors are routinely threatened with arrest and sometimes jailed. In Utah, it’s particularly aggressive.

After the Supreme Court relaxed restrictions on interest rates in 1978, Utah got rid of its interest rate limits in the hopes of luring credit card and other finance companies. A favorable regulatory climate in Utah made lenders feel welcome. The first payday loan store opened in Salt Lake City two years later, and other companies soon flocked to the favorable regulatory climate. “Today, Utah is home to some of the most expensive payday loans in the country,” writes Anjali Tsui. “The average annual interest rate hovers at 652%, according to the Center for Responsible Lending, a nonprofit research and policy organization… Payday lenders charged annual percentage rates as high as 2,607% in 2019, according to the Utah Department of Financial Services. Utah is one of six states where there are no interest rate caps governing payday loans.”

When it comes time to pay, a few weeks after getting a loan, most borrowers cannot afford to do so, and 80 percent of those loans are rolled over or renewed. Many borrowers eventually owe more in fees than the amount initially borrowed, and get stuck in a cycle of debt. In Utah, payday lenders and similar companies that offer high-interest, small-dollar loans dominate small claims court. In those courts, there are rarely lawyers, judges are not always legally trained, and the rules of evidence do not apply.

If a borrower doesn’t show up, the lender wins by default, and once a judgment is entered, the lending companies can garnish borrowers’ paychecks and seize their property. If borrowers fail to attend a supplemental hearing to answer questions about their income and assets, companies can ask the court to issue a bench warrant for their arrest. “Technically, debtors are arrested for not responding to a court summons requested by the creditor,” writes Tsui. “But for many low-income people, who are not familiar with court proceedings, lack access to transportation, child care options or time off, or move frequently and thus may not receive notifications, it’s a distinction without a difference.”

Even the bail system favors payday lenders. In Utah, a 2014 law allows creditors to get access to bail money posted in civil cases, so if a person bails out after being jailed for unpaid debts, the payday loan companies can pocket that money. “The law has transformed the state’s power to incarcerate into a powerful tool to guarantee that loan companies get paid,” Tsui writes. Law professor Christopher Peterson, who has studied the issue, said, “They’re handcuffing and incarcerating people in order to get money out of them and apply it towards insanely high interest rate loans.”

Stories From The Appeal

Ohio Jail Faces $2.8 Million Lawsuit After Claims of Abuse Are Made By Dozens of Men. The suit is the latest of at least three complaints filed against the Portage County Jail this year. [Dawn R. Wolfe]

Stories From Around the Country

Curtis Flowers released on bail: “There was no physical evidence—no gun, no fingerprints, no DNA—that suggested Curtis Flowers killed four people in a Mississippi furniture store in 1996. There was also no cohesive story that suggested he did,” writes David Leonhardt in a commentary for the New York Times. But Flowers spent the last 23 years behind bars anyway. Yesterday, he finally walked out, released on $250,000 bail, which was posted by an anonymous donor. “He still isn’t a free man, because the same prosecutor who put Flowers in jail could still choose to retry him.” But the Supreme Court vacated his conviction in June, citing the prosecutor’s blocking of Black jurors. It was the sixth conviction for the same offense; some trials ended in hung juries and others ended after appellate courts threw out the convictions citing misconduct on the part of the prosecutor, Doug Evans. The case, Leonhardt writes, is “an example of the power of great journalism; a team of American Public Media reporters, including Madeleine Baran and Samara Freemark, uncovered multiple holes in the case and laid them out in a fantastic podcast.” [David Leonhardt / New York Times]

Bill that would enfranchise those on parole and probation in New Jersey heads to governor’s desk: “The state Senate approved a bill Monday to allow people on parole or probation in New Jersey to vote, which could affect tens of thousands of residents,” reports NJ Advance Media. Governor Phil Murphy has not promised to sign it, but he has expressed support for the proposal in general. If it becomes law, the bill would affect about 80,000 people. “Proponents have cast the measure as part of the civil rights movement, saying that people who have been released from prison deserve a say in how their state is run. … People in prison would still be barred from voting, although some lawmakers hope to eventually join two other states that allow those behind bars to cast ballots.” A similar law took effect in Louisiana this year, but that state has not seen a significant increase in voter registration. [Blake Nelson / NJ.com]

 

When McKinsey aids ICE and Rikers, is it amoral or immoral?

When McKinsey aids ICE and Rikers, is it amoral or immoral?


What you’ll read today

  • Spotlight: When McKinsey aids ICE and Rikers, is it amoral or immoral?

  • Harris County DA candidate Audia Jones says she won’t prosecute sex work

  • New Orleans jail staff supplied fentanyl that killed incarcerated man, lawsuit says

  • Upstate New York county elects a reformist district attorney

  • Dallas has been sending social workers to respond to 911 calls; the results are promising

In the Spotlight

When McKinsey aids ICE and Rikers, is it amoral or immoral? 

McKinsey & Company is a prestigious management consulting firm known more for being excellent than for being good. Which is to say, only the most die-hard free market capitalist would take a job there expecting to make the world a better place. But many people who choose to work there––and it is a choice for these consultants, given the firm’s selectiveness––view the tasks as an amoral application of market wisdom, not an immoral consolidation of power and resources for the already empowered.

Certainly, this is what Democratic presidential hopeful Pete Buttigieg wants the public to believe about his time working there. “There’s nothing particularly sizzling about the list of clients that I served,” Buttigieg, mayor of South Bend, Indiana, told Rachel Maddow this week. And Vox seems to agree, at least in part: “It’s not like Buttigieg was McKinsey’s CEO; it was an early job after he graduated from school.”

“It’s a place that is as amoral as the American business community in general, or at least the corporate community, can be. And that’s one of the problems with it,” Buttigieg told The Atlantic. “I never worked or was asked to work on things that I had a problem with, but it’s a place that I think, like any other law firm or firms that deal with companies, just thinks about client work and doesn’t always think about the bigger implications.”

But when companies, and the people who work there, fail to consider the “bigger implications” of what they do, that does nothing to protect vulnerable people from suffering. It puts them at risk. And it doesn’t let the employees off the hook, ethically speaking. “I can think of at least four times in the decade since I left that I’ve opened the newspaper and been disgusted about something I saw,” Buttigieg told a group of New Hampshire voters last week. “And what you see is a company that I think basically reflects what’s wrong with corporate America. It’s all about shareholders and profit maximization, that’s what companies do—which is why companies need to be regulated … so they’re never going outside the boundaries of what is morally acceptable.”

Given the media attention to the prominent role McKinsey and other major corporations have played assisting prisons, police, and ICE in inflicting harm, it is increasingly difficult for people like Buttigieg to argue that his actions as a low-level employee were amoral: They were immoral.

Two days ago, ProPublica released a damning article that details the role McKinsey played in attempting to reduce violence at the Rikers Island jail complex. Having been retained by the city for three years, McKinsey sent a report in 2017 to the New York City corrections commissioner announcing that after three years, McKinsey’s anti-violence strategy in its “Restart” housing units at Rikers had led to a drop in violence of over 50 percent. “The number was bogus,” writes Ian MacDougall. “Jail officials and McKinsey consultants had jointly rigged the Restart program in its earliest phase to all but guarantee there would be few violent episodes, according to documents and interviews. They stacked the units with inmates they believed to be compliant and unlikely to get into fights or to attack staff.”

As they came up with their plan, the consultants did not solicit the views of prisoners, clinic staff, or others with direct insights into drivers of violence. The closest the consultants came to interacting with incarcerated people during that stage was to watch them through glass from inside guard booths. Just as troubling, “McKinsey began adopting the mindset of the correction officers, according to one of its consultants. The firm’s initiatives included facilitating the expanded use of Tasers, shotguns and K9 patrol dogs (‘aggressive dogs,’ in the words of one McKinsey presentation),” reports MacDougall. During one meeting, some McKinsey consultants said they wanted to beat prisoners to get an unruly situation under control, and a former employee said that a senior partner grew exasperated by the tough-guy posturing. “Guys, you’ve gone native,” the former consultant recalls him saying. “I think you’ve been spending too much time with the correctional officers.”

By the time McKinsey left, having been paid $27.5 million by the city, prisoners and jail staff at Rikers were at significantly greater risk than when McKinsey’s engagement began. In October of this year, the New York City Council voted to close Rikers. That same month, a federal monitor, “appointed by a court to oversee reform at Rikers, revealed that violence by jail guards there continues to worsen. Overall, using the metrics employed by McKinsey, jailhouse violence has risen nearly 50 percent since the firm began its assignment.”

The Rikers story is one of failure, but when McKinsey is successful, the results can be even more terrifying. Days after President Trump took office in 2017, he issued two executive orders ordering “all legally available resources” to be directed toward cracking down on immigration. ICE quickly redirected McKinsey, which had been retained by previous administrations, toward helping the agency figure out how to execute the orders. McKinsey did not terminate the contract in protest; it complied, and even surpassed the enthusiasm of those in government. “But the money-saving recommendations the consultants came up with made some career ICE workers uncomfortable,” reports MacDougall in a separate piece for ProPublica and the New York Times.

“They proposed cuts in spending on food for migrants, as well as on medical care and supervision of detainees,” MacDougall writes. “McKinsey’s team also looked for ways to accelerate the deportation process, provoking worries among some ICE staff members that the recommendations risked short-circuiting due-process protections for migrants fighting removal from the United States.”

It might be difficult to imagine that politically neutral consultants, whose primary commitments were to the client and the market, could display so much callousness toward human suffering that they made employees at the famously cruel ICE agency uncomfortable. But blind adherence to the bottom line and the free market, without ethical boundaries, can devastate the line between amorality and immorality. According to three people who worked on the project, MacDougall writes, the consultants “seemed focused solely on cutting costs and speeding up deportations—actions whose success could be measured in numbers—with little acknowledgment that these policies affected thousands of human beings. In meetings with McKinsey consultants, agency staff members questioned whether saving pennies on food and medical care for detainees justified the potential human cost.”

When ethical concerns were raised among McKinsey’s employees and former partners, the firm’s global managing partner, Kevin Sneader, assured them in a 2018 email that McKinsey “will not, under any circumstances, engage in work, anywhere in the world, that advances or assists policies that are at odds with our values.” Which might make one wonder what exactly those values are and if any boundaries exist at all. In response to MacDougall’s reporting, McKinsey released a statement that reiterated its mission: “At the heart of our public sector practice is a commitment to ensuring that the agencies of federal, state and local governments can operate efficiently and effectively.” Efficiency and effectiveness do not, however, protect against tragedy or cruelty.

This week, video was released showing a 16-year-old boy die alone on a floor in immigration custody. “His loved ones watched him die, months and months after they had already lost him, when the footage was finally made public,” writes Maximillian Alvarez for Current Affairs. “They watched, unable to hold him, unable to comfort him in his last confused and scared moments. They watched, knowing that merely yards away, just down the hall, a good number of healthy and able-bodied Americans sat, bored, whiling away the night. They sat, bored, breathing effortlessly, unthinkingly, while somebody’s baby kicked and coughed and clung desperately to being alive.” The Border Patrol’s “subject activity log” claims that an agent checked on the boy three times over the course of the night, from the time he collapsed to the time he was found dead in the same spot. But this will never be confirmed by the surveillance tape, which Customs and Border Protection tried to keep from the public, because it goes black for those four crucial hours.

Buttigieg is telling the truth when he says of McKinsey, “When you have an apparatus like that that is so woven into the American private sector, it’s going to be as moral or immoral or amoral as the American private sector itself.” His statement does not justify his actions as much as he seems to think it should. We know enough to know just how immoral the private sector can be.

Stories From The Appeal

Courtesy of Audia Jones

Harris County DA Candidate Audia Jones Says She Won’t Prosecute Sex Work. The incumbent in the race, Kim Ogg, will not support a blanket refusal to prosecute sex workers, her office says. [Kira Lerner]

New Orleans Jail Staff Supplied Fentanyl That Killed Incarcerated Man, Lawsuit Says. Staff at the troubled Orleans Justice Center are also accused of violating Edward Patterson’s constitutional rights by failing to treat his drug addiction. [Lauren Gill]

Stories From Around the Country

Upstate New York county elects a reformist district attorney: “For the first time in recent history, a Democrat will lead the Ulster County District Attorney’s Office,” reports the Daily Freeman. “David Clegg squeaked out an election victory over Republican Michael J. Kanavagh in the closely watched race after the last remaining absentee and affidavit ballots were counted Wednesday, a county elections official said. Clegg bested Kavanagh by 77 votes, 26,331-26,254, according to Republican Commissioner of Elections Thomas Turco.” Clegg is a civil rights lawyer from Woodstock and Kavanagh, of Saugerties, currently works as chief assistant district attorney. [Patricia R. Doxsey / Daily Freeman] Clegg ran on a reform platform that included the use of restorative justice and diversion programs as alternatives to incarceration for nonviolent offenses.

Dallas has been sending social workers to respond to 911 calls; the results are promising: “Last year, Dallas’ police and fire departments teamed up with Parkland Hospital to rethink how they responded to 911 calls involving mental health crises,” reports the Dallas Observer. “They placed a social worker inside the dispatch center to triage calls and sent out a special team staffed with a mental health professional whenever possible. They targeted South Central Dallas, the area with the highest concentration of mental health-related calls.” The aim was for social workers to handle these cases without turning to emergency rooms or jails. “The results have been promising.” In 2019, the number of psychiatric patients at Parkland’s ER rose 30 percent, but the number of psychiatric patients arriving from those areas covered by the program dropped by 20 percent. The city plans to expand the program citywide. “Two more first-response teams will be added by mid-2020, and additional training will be provided to police and firefighters.” [Lucas Manfield / Dallas Observer]

When McKinsey Aids ICE And Rikers, Is It Amoral Or Immoral?

When McKinsey Aids ICE And Rikers, Is It Amoral Or Immoral?


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.

McKinsey & Company is a prestigious management consulting firm known more for being excellent than for being good. Which is to say, only the most die-hard free market capitalist would take a job there expecting to make the world a better place. But many people who choose to work there––and it is a choice for these consultants, given the firm’s selectiveness––view the tasks as an amoral application of market wisdom, not an immoral consolidation of power and resources for the already empowered.

Certainly, this is what Democratic presidential hopeful Pete Buttigieg wants the public to believe about his time working there. “There’s nothing particularly sizzling about the list of clients that I served,” Buttigieg, mayor of South Bend, Indiana, told Rachel Maddow this week. And Vox seems to agree, at least in part: “It’s not like Buttigieg was McKinsey’s CEO; it was an early job after he graduated from school.”

“It’s a place that is as amoral as the American business community in general, or at least the corporate community, can be. And that’s one of the problems with it,” Buttigieg told The Atlantic. “I never worked or was asked to work on things that I had a problem with, but it’s a place that I think, like any other law firm or firms that deal with companies, just thinks about client work and doesn’t always think about the bigger implications.”

But when companies, and the people who work there, fail to consider the “bigger implications” of what they do, that does nothing to protect vulnerable people from suffering. It puts them at risk. And it doesn’t let the employees off the hook, ethically speaking. “I can think of at least four times in the decade since I left that I’ve opened the newspaper and been disgusted about something I saw,” Buttigieg told a group of New Hampshire voters last week. “And what you see is a company that I think basically reflects what’s wrong with corporate America. It’s all about shareholders and profit maximization, that’s what companies do—which is why companies need to be regulated … so they’re never going outside the boundaries of what is morally acceptable.”

Given the media attention to the prominent role McKinsey and other major corporations have played assisting prisons, police, and ICE in inflicting harm, it is increasingly difficult for people like Buttigieg to argue that his actions as a low-level employee were amoral: They were immoral.

Two days ago, ProPublica released a damning article that details the role McKinsey played in attempting to reduce violence at the Rikers Island jail complex. Having been retained by the city for three years, McKinsey sent a report in 2017 to the New York City corrections commissioner announcing that after three years, McKinsey’s anti-violence strategy in its “Restart” housing units at Rikers had led to a drop in violence of over 50 percent. “The number was bogus,” writes Ian MacDougall. “Jail officials and McKinsey consultants had jointly rigged the Restart program in its earliest phase to all but guarantee there would be few violent episodes, according to documents and interviews. They stacked the units with inmates they believed to be compliant and unlikely to get into fights or to attack staff.”

As they came up with their plan, the consultants did not solicit the views of prisoners, clinic staff, or others with direct insights into drivers of violence. The closest the consultants came to interacting with incarcerated people during that stage was to watch them through glass from inside guard booths. Just as troubling, “McKinsey began adopting the mindset of the correction officers, according to one of its consultants. The firm’s initiatives included facilitating the expanded use of Tasers, shotguns and K9 patrol dogs (‘aggressive dogs,’ in the words of one McKinsey presentation),” reports MacDougall. During one meeting, some McKinsey consultants said they wanted to beat prisoners to get an unruly situation under control, and a former employee said that a senior partner grew exasperated by the tough-guy posturing. “Guys, you’ve gone native,” the former consultant recalls him saying. “I think you’ve been spending too much time with the correctional officers.”

By the time McKinsey left, having been paid $27.5 million by the city, prisoners and jail staff at Rikers were at significantly greater risk than when McKinsey’s engagement began. In October of this year, the New York City Council voted to close Rikers. That same month, a federal monitor, “appointed by a court to oversee reform at Rikers, revealed that violence by jail guards there continues to worsen. Overall, using the metrics employed by McKinsey, jailhouse violence has risen nearly 50 percent since the firm began its assignment.”

The Rikers story is one of failure, but when McKinsey is successful, the results can be even more terrifying. Days after President Trump took office in 2017, he issued two executive orders ordering “all legally available resources” to be directed toward cracking down on immigration. ICE quickly redirected McKinsey, which had been retained by previous administrations, toward helping the agency figure out how to execute the orders. McKinsey did not terminate the contract in protest; it complied, and even surpassed the enthusiasm of those in government. “But the money-saving recommendations the consultants came up with made some career ICE workers uncomfortable,” reports MacDougall in a separate piece for ProPublica and the New York Times.

“They proposed cuts in spending on food for migrants, as well as on medical care and supervision of detainees,” MacDougall writes. “McKinsey’s team also looked for ways to accelerate the deportation process, provoking worries among some ICE staff members that the recommendations risked short-circuiting due-process protections for migrants fighting removal from the United States.”

It might be difficult to imagine that politically neutral consultants, whose primary commitments were to the client and the market, could display so much callousness toward human suffering that they made employees at the famously cruel ICE agency uncomfortable. But blind adherence to the bottom line and the free market, without ethical boundaries, can devastate the line between amorality and immorality. According to three people who worked on the project, MacDougall writes, the consultants “seemed focused solely on cutting costs and speeding up deportations—actions whose success could be measured in numbers—with little acknowledgment that these policies affected thousands of human beings. In meetings with McKinsey consultants, agency staff members questioned whether saving pennies on food and medical care for detainees justified the potential human cost.”

When ethical concerns were raised among McKinsey’s employees and former partners, the firm’s global managing partner, Kevin Sneader, assured them in a 2018 email that McKinsey “will not, under any circumstances, engage in work, anywhere in the world, that advances or assists policies that are at odds with our values.” Which might make one wonder what exactly those values are and if any boundaries exist at all. In response to MacDougall’s reporting, McKinsey released a statement that reiterated its mission: “At the heart of our public sector practice is a commitment to ensuring that the agencies of federal, state and local governments can operate efficiently and effectively.” Efficiency and effectiveness do not, however, protect against tragedy or cruelty.

This week, video was released showing a 16-year-old boy die alone on a floor in immigration custody. “His loved ones watched him die, months and months after they had already lost him, when the footage was finally made public,” writes Maximillian Alvarez for Current Affairs. “They watched, unable to hold him, unable to comfort him in his last confused and scared moments. They watched, knowing that merely yards away, just down the hall, a good number of healthy and able-bodied Americans sat, bored, whiling away the night. They sat, bored, breathing effortlessly, unthinkingly, while somebody’s baby kicked and coughed and clung desperately to being alive.” The Border Patrol’s “subject activity log” claims that an agent checked on the boy three times over the course of the night, from the time he collapsed to the time he was found dead in the same spot. But this will never be confirmed by the surveillance tape, which Customs and Border Protection tried to keep from the public, because it goes black for those four crucial hours.

Buttigieg is telling the truth when he says of McKinsey, “When you have an apparatus like that that is so woven into the American private sector, it’s going to be as moral or immoral or amoral as the American private sector itself.” His statement does not justify his actions as much as he seems to think it should. We know enough to know just how immoral the private sector can be.

What is the purpose of sex offense registries?

What is the purpose of sex offense registries?


Special Edition

What is the purpose of sex offender registries?

Two days ago, the Union-Recorder in Georgia published a bizarre editorial. The editorial board noted that the state’s sex offender registry system drives people into homelessness and deprived them of counseling and employment opportunities, but laments this fact only insofar as it allows registrants to “fly under the radar” and makes them “more difficult to track.” Georgia’s registry system, according to the authors, “places too much trust in the honor system” because requiring people to self-register “places too much confidence” in the registrant. They acknowledge that there are “strong penalties” for failing to register, including life in prison, but these apparently don’t go far enough, as some people with convictions could “choose to live on the fringes of the law.”

“As a society we have determined that in the case of convicted sexual offenders, the potential danger to the general public, and especially children, outweighs their rights to resume a normal life after the debt to society is paid,” the editorial board writes, but “despite all the concerns we have about civil liberties and individual rights of life, liberty and the pursuit of happiness, we simply have to know where these offenders are and what threat they pose to a community.” The authors propose no solutions. And, more to the point, they betray a fundamental ignorance of the fact that no empirical evidence shows that registries actually protect anyone. Some evidence indicates they make us less safe.

Sex offender registries weren’t designed to punish people, Dara Lind wrote for Vox in 2016. “The registry was designed for ‘sexual predators’ who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: ‘Sexual predators’ were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding ‘sexual predators’ needed to fall to parents.” But now, 20 years later, “the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished.” As a preventive tool, it hasn’t worked, Lind writes. “Instead, it’s caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live—then further constrained by harassment or shunning from neighbors and prejudice from employers.”

Despite ongoing stigma against those convicted of sex offenses, there has been some movement away from ever-restrictive sex registries and toward more productive solutions. The political pressure to oppose these efforts, however, is strong.

Recently, the governor of Wisconsin, Tony Evers, vetoed a bipartisan bill that would have lifted state restrictions on how close to schools people convicted of sex crimes can live. The bill, which passed the state Assembly and Senate unanimously, would have repealed a state law that bars certain people from living less than 1,500 feet from schools, public parks, places of worship, or youth centers. The bill would also have required people be placed in their home county after being released. In his veto message, Evers said the change would have compromised children’s safety. “In testimony before lawmakers earlier this year, the State Public Defender’s Office said out-of-county placements often happen because counties can’t find a place to house offenders that meet the 1,500-foot requirement,” reports Wisconsin Public Radio. Senator Dan Feyen, a Republican and one of the bill’s sponsors, said he agreed the distance is challenging for some and, in his opinion, arbitrary. “It’s just a number that’s made up.”

In Pennsylvania, the state Supreme Court will soon rule on the constitutionality of that state’s sex offender registry law. The latest iteration of the law, which took effect at the end of 2012, increased the “list of offenses subject to registration and notification—including a handful that are not sexual in nature—and imposing more stringent registration and notification rules,” reports the Philadelphia Inquirer. The registry more than doubled. One of the cases before the high court deals with requirements under the current law for people classified as “sexually-violent predators,” those who have committed the most serious offenses and who are considered to have a high likelihood to reoffend. The question is whether lifetime registration, as well as lifetime counseling and community notification, constitute unlawful punishment.

In another case at issue, lawyers for a biochemical engineer with no prior record who was convicted of aggravated indecent assault and subject to lifetime registration are arguing that the law violates a fundamental right to reputation under the state Constitution. They posit that the law presumes that people convicted of certain sexual offenses cannot change and therefore are prone to reoffending. The lawyers “cite experts and studies that show the public holds a false perception that people convicted of sexual offenses will go on to reoffend, and that their risk for doing so lasts for years,” according to the Inquirer. “They said only a small number of offenders fit that bill, while the rest get lumped into that group, suffering a lifetime of harm. Their arguments go to the heart of the criminal justice reform movement blossoming across the country that aims to reduce harsh penalties for smaller offenses, and reform policies for offenders who, after serving prison time, suffer myriad social and financial hardships.”

Given the growing understanding of just how problematic these registries are, it is perhaps most remarkable that Nigeria is adopting a U.S.-style sex offense registry. “Campaigners have hailed the launch of Nigeria’s first sex offender register as a vital step towards tackling reported cases of sexual abuse, which are rising across the country,” reports The Guardian, in an article that notably lacks comments from critics. “The publicly accessible online register of people prosecuted for sexual violence since 2015 will allow public bodies and police authorities to conduct background checks and identify repeat offenders.”

Sexual violence indeed seems to be a serious problem in Nigeria, which stigmatizes those who come forward to report abuse. Despite the dearth of statistics, Unicef estimates that 1 in 4 girls in the country have experienced sexual violence by the age of 18 and few receive support. In Lagos, the most frequently assaulted group are children, many of whom are abused by relatives or family friends. Those who do come forward can be treated badly by authorities, according to the Guardian article. “We have cases where victims are being questioned in front of the perpetrators or in open spaces and criticized by officers for not remembering details like the road where the rape occurred,” said Oluwaseun Osowobi, the director of a Nigerian non-government organization that supports survivors of sexual violence. “Cases of sexual abuse are not prosecuted for flimsy reasons,” Osowobi added. “How police collect data is unprofessional and archaic. Police regularly misplace case-files or evidence. Eventually victims become exhausted by the system and give up.”

There is no doubt that this is all problematic and merits urgent attention. But the question is why a system that has already failed in the U.S. should be expected to succeed in Nigeria. Since few people are reported and fewer are convicted, it seems unlikely that anyone will be deterred by the idea that they now “have nowhere to hide,” as Osowobi put it. Beatrice Jedy-Agba, the executive secretary of Nigeria’s Agency for the Prohibition of Trafficking in Persons, said: “It enables bodies such as schools [and] hospitals to conduct background checks and it will deter sex offenders because they will know their names will be published, affecting their employment and role in society.” Until the culture that tolerates sex abuse and stigmatizes victims is inverted, however, it is hard to imagine that anyone will be so deterred. Nigeria and the U.S. would do better to be guided by evidence.

What Is The Purpose of Sex Offense Registries?

What Is The Purpose of Sex Offense Registries?


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.

Two days ago, the Union-Recorder in Georgia published a bizarre editorial. The editorial board noted that the state’s sex offender registry system drives people into homelessness and deprived them of counseling and employment opportunities, but laments this fact only insofar as it allows registrants to “fly under the radar” and makes them “more difficult to track.” Georgia’s registry system, according to the authors, “places too much trust in the honor system” because requiring people to self-register “places too much confidence” in the registrant. They acknowledge that there are “strong penalties” for failing to register, including life in prison, but these apparently don’t go far enough, as some people with convictions could “choose to live on the fringes of the law.”

“As a society we have determined that in the case of convicted sexual offenders, the potential danger to the general public, and especially children, outweighs their rights to resume a normal life after the debt to society is paid,” the editorial board writes, but “despite all the concerns we have about civil liberties and individual rights of life, liberty and the pursuit of happiness, we simply have to know where these offenders are and what threat they pose to a community.” The authors propose no solutions. And, more to the point, they betray a fundamental ignorance of the fact that no empirical evidence shows that registries actually protect anyone. Some evidence indicates they make us less safe.

Sex offender registries weren’t designed to punish people, Dara Lind wrote for Vox in 2016. “The registry was designed for ‘sexual predators’ who repeatedly preyed on children (at least according to the fears of 1990s policymakers). The purpose was supposed to be not punishment but prevention. The theory: ‘Sexual predators’ were unable or unwilling to control their urges, and the government could not do enough to keep them away from children, so the job of avoiding ‘sexual predators’ needed to fall to parents.” But now, 20 years later, “the focus on sex crimes has shifted from sexual abuse of children to sexual assault and rape. The idea that criminals can’t control their behavior has been replaced by attention to the cultural and institutional failures that allow rapes to happen and go unpunished.” As a preventive tool, it hasn’t worked, Lind writes. “Instead, it’s caught up thousands of people in a tightly woven net of legal sanctions and social stigma. Registered sex offenders are constrained by where, with whom, and how they can live—then further constrained by harassment or shunning from neighbors and prejudice from employers.”

Despite ongoing stigma against those convicted of sex offenses, there has been some movement away from ever-restrictive sex registries and toward more productive solutions. The political pressure to oppose these efforts, however, is strong.

Recently, the governor of Wisconsin, Tony Evers, vetoed a bipartisan bill that would have lifted state restrictions on how close to schools people convicted of sex crimes can live. The bill, which passed the state Assembly and Senate unanimously, would have repealed a state law that bars certain people from living less than 1,500 feet from schools, public parks, places of worship, or youth centers. The bill would also have required people be placed in their home county after being released. In his veto message, Evers said the change would have compromised children’s safety. “In testimony before lawmakers earlier this year, the State Public Defender’s Office said out-of-county placements often happen because counties can’t find a place to house offenders that meet the 1,500-foot requirement,” reports Wisconsin Public Radio. Senator Dan Feyen, a Republican and one of the bill’s sponsors, said he agreed the distance is challenging for some and, in his opinion, arbitrary. “It’s just a number that’s made up.”

In Pennsylvania, the state Supreme Court will soon rule on the constitutionality of that state’s sex offender registry law. The latest iteration of the law, which took effect at the end of 2012, increased the “list of offenses subject to registration and notification—including a handful that are not sexual in nature—and imposing more stringent registration and notification rules,” reports the Philadelphia Inquirer. The registry more than doubled. One of the cases before the high court deals with requirements under the current law for people classified as “sexually-violent predators,” those who have committed the most serious offenses and who are considered to have a high likelihood to reoffend. The question is whether lifetime registration, as well as lifetime counseling and community notification, constitute unlawful punishment.

In another case at issue, lawyers for a biochemical engineer with no prior record who was convicted of aggravated indecent assault and subject to lifetime registration are arguing that the law violates a fundamental right to reputation under the state Constitution. They posit that the law presumes that people convicted of certain sexual offenses cannot change and therefore are prone to reoffending. The lawyers “cite experts and studies that show the public holds a false perception that people convicted of sexual offenses will go on to reoffend, and that their risk for doing so lasts for years,” according to the Inquirer. “They said only a small number of offenders fit that bill, while the rest get lumped into that group, suffering a lifetime of harm. Their arguments go to the heart of the criminal justice reform movement blossoming across the country that aims to reduce harsh penalties for smaller offenses, and reform policies for offenders who, after serving prison time, suffer myriad social and financial hardships.”

Given the growing understanding of just how problematic these registries are, it is perhaps most remarkable that Nigeria is adopting a U.S.-style sex offense registry. “Campaigners have hailed the launch of Nigeria’s first sex offender register as a vital step towards tackling reported cases of sexual abuse, which are rising across the country,” reports The Guardian, in an article that notably lacks comments from critics. “The publicly accessible online register of people prosecuted for sexual violence since 2015 will allow public bodies and police authorities to conduct background checks and identify repeat offenders.”

Sexual violence indeed seems to be a serious problem in Nigeria, which stigmatizes those who come forward to report abuse. Despite the dearth of statistics, Unicef estimates that 1 in 4 girls in the country have experienced sexual violence by the age of 18 and few receive support. In Lagos, the most frequently assaulted group are children, many of whom are abused by relatives or family friends. Those who do come forward can be treated badly by authorities, according to the Guardian article. “We have cases where victims are being questioned in front of the perpetrators or in open spaces and criticized by officers for not remembering details like the road where the rape occurred,” said Oluwaseun Osowobi, the director of a Nigerian non-government organization that supports survivors of sexual violence. “Cases of sexual abuse are not prosecuted for flimsy reasons,” Osowobi added. “How police collect data is unprofessional and archaic. Police regularly misplace case-files or evidence. Eventually victims become exhausted by the system and give up.”

There is no doubt that this is all problematic and merits urgent attention. But the question is why a system that has already failed in the U.S. should be expected to succeed in Nigeria. Since few people are reported and fewer are convicted, it seems unlikely that anyone will be deterred by the idea that they now “have nowhere to hide,” as Osowobi put it. Beatrice Jedy-Agba, the executive secretary of Nigeria’s Agency for the Prohibition of Trafficking in Persons, said: “It enables bodies such as schools [and] hospitals to conduct background checks and it will deter sex offenders because they will know their names will be published, affecting their employment and role in society.” Until the culture that tolerates sex abuse and stigmatizes victims is inverted, however, it is hard to imagine that anyone will be so deterred. Nigeria and the U.S. would do better to be guided by evidence.

Police play the victim when voters choose reform

Police play the victim when voters choose reform


What you’ll read today

  • Spotlight: Police play the victim when voters choose reform

  • Working Families Party endorses José Garza for Travis County DA

  • Chicago police torture: explained

  • Supreme Court denies DOJ attempt to bypass appellate court and execute prisoners

  • Selective enforcement of Bay Area public transit rules targets Black riders

In the Spotlight

Police play the victim when voters choose reform

Last month, longtime public defender Chesa Boudin was elected San Francisco’s next district attorney. His victory was not merely an upset over an interim incumbent with establishment support and an unlikely win for a public defender whose parents served time for felonies; it also came despite the fact that the San Francisco Police Officers’ Association, the city’s police union, outspent Boudin in an effort to defeat him. The union pulled in cash from police unions in Los Angeles, Portland, Seattle, and New York. The San Francisco Deputy Sheriffs’ Association aided the effort, too, sharing a John Birch Society video calling Boudin a “communist radical” and a son of “terrorists.”

In New York State, where landmark criminal justice reforms are set to go into effect on Jan. 1, “a familiar chorus of concern has piped up,” according to the New York Times editorial board. “Police Commissioner James O’Neill wrote in an op-ed in May that the law would have a ‘significant negative impact on public safety.’ His successor, incoming Police Commissioner Dermot Shea, expressed similar views” in November. Police unions and prosecutors across the state “have issued ominous warnings.” The Oneida City Police Benevolent Association wrote in a Facebook post, “Think this is wrong & insane? Then tell your politicians that this needs to be repealed ASAP!” Over the summer, the New York Prosecutors Training Institute released audio of a Nassau County assistant district attorney training prosecutors on various ways to work with the police to subvert the new law.

For decades, law enforcement could rely on fearmongering to swing elections, preventing progressives from becoming district attorneys, and keeping reform bills off the books. But now, across the country, “a movement away from incarceration has been a rare point of consensus among Americans who can agree on little else.”

These calls for criminal justice reform have led police to panic, making these sorts of campaigns against reforms more common. “Just as conservatives, going back to the Nixon era, have used debates over the lawfulness of abortion, homosexuality, and pornography to portray themselves as besieged by a liberal elite, police unions, too, now claim they are on the losing side in an ideological struggle,” writes Melissa Gira Grant for the New Republic. It represents a return to the culture war’s origins, she explains, which lie with policing. “Provoking anxiety over law and order helped usher Nixon into the White House in 1968. Where today police unions cast Black Lives Matter activists as their persecutors, conservatives under Nixon pointed to black power activists and the anti-war left.” James Davison Hunter’s 1991 book, “Culture Wars: The Struggle to Define America,” brought the term “culture war” into the broader lexicon. Hunter says he was inspired after reading a news story about the arrests of clergy at an abortion protest. He frames the struggle emerging from 1960s social change as a matter less of specific issues than of “progressivism” versus “orthodoxy” more broadly.

But “throughout the 1990s, many who were at odds with one another when it came to other issues, such as abortion or gay rights, were largely in agreement on defending the power of police—whether that meant uniting against Ice T’s ‘Cop Killer’ song… or more sweeping policy proposals,” writes Grant. But the Obama years saw the start of a profound shift. “In demanding accountability from police who kill, the Black Lives Matter movement highlighted the ways in which the system of policing makes such accountability nearly impossible.” Leaders of the movement argued that police unions shield police from discipline for brutality. And when the officers who killed Michael Brown and Eric Garner were not indicted, “activists pointed to the power held by district attorneys—who rely on police to help them win convictions—in convening and persuading grand juries.”

By the 2016 election, Democrats had backed off from the Clinton-era tough-on-crime consensus. “Contenders in 2016 made abolishing the death penalty part of their platforms,” Grant writes. “By then, it was more common to hear that criminal justice reform was a bipartisan issue—albeit in a limited sense, with centrist overlap on a few modest reforms like creating alternatives to pre-trial detention.” Many of the Democratic candidates of 2020 have pledged unprecedentedly progressive criminal justice plans. And stalwart defenders of harsh law enforcement tactics such as Michael Bloomberg have been forced to walk back those decisions in order to gain any traction with the Democratic base.

Some on the right seem dedicated to stoking the flames of the culture wars. U.S. Attorney General William Barr said last week that if some communities don’t begin showing more respect to law enforcement, they may lose police protection. While giving a speech at the Attorney General’s Award for Distinguished Service in Policing, Barr said, “I think today, American people have to focus on … the sacrifice and the service that is given by our law enforcement officers. And they have to start showing, more than they do, the respect and support that law enforcement deserves―and if communities don’t give that support and respect, they might find themselves without the police protection they need.”

But even some purported leftists have played into police unions’ victimhood narrative in similar ways. Last week, a thin blue line flag was spotted on NYPD property. “The flags, featuring a horizontal blue line surrounded by black, are closely linked to Blue Lives Matter, countermovement formed in response to Black Lives Matter,” writes Jake Offenhartz for Gothamist. “Police reform groups claim that the flag denotes racism and a culture of misconduct. In recent years, the flag has appeared frequently at neo-Nazi and white supremacist rallies, including the deadly Unite the Right rally in Charlottesville.” During a press conference, Mayor Bill de Blasio brushed off questions about whether it is appropriate for the NYPD to fly the thin blue line flag on government property. Later in the day, during the swearing in of new NYPD Commissioner Dermot Shea, de Blasio left little room for police criticism. “To the doubting Thomases, to the naysayers, if you doubt, then you don’t truly respect the NYPD.” Jeffrey Fagan, a law professor at Columbia University who specializes in police accountability and criminal law, said he was not surprised by de Blasio’s remarks. “The mayor is still the lapdog of the police unions,” Fagan said.

Stories From The Appeal

Courtesy of the José Garza campaign

Working Families Party Endorses José Garza for Travis County DA. The Austin-based labor and immigrant rights attorney, who has pledged to end money bail and nonviolent drug prosecutions, is looking to unseat incumbent District Attorney Margaret Moore. [Aaron Morrison]

Chicago Police Torture: Explained. In a city with a horrific history of police misconduct, survivors of torture under the supervision former commissioner Jon Burge have a distinct legacy. But their story is far from over. [Kelly Hayes]

Stories From Around the Country

Selective enforcement of Bay Area public transit rules targets Black riders: “Black BART riders received almost 60% of the citations issued by BART police officers for eating or drinking on trains or platforms in the last three years, agency documents show,” according to the Mercury News. The news outlet was prompted to request those records after one such incident was captured on video and spread widely. “Riders staged ‘eat-in’ demonstrations to protest the incident.” The man in the video is now suing the public transit agency, alleging racial profiling and selective law enforcement. “The claim alleges that officers do not typically enforce the ‘no eating’ rule at BART stations, and that the Pleasant Hill station lacks proper signage to tell riders that eating isn’t allowed.” African Americans make up 6.7 percent of the population in the Bay Area. [Angela Ruggiero / Mercury News]

Police Play The Victim When Voters Choose Reform

Police Play The Victim When Voters Choose Reform


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.

Last month, longtime public defender Chesa Boudin was elected San Francisco’s next district attorney. His victory was not merely an upset over an interim incumbent with establishment support and an unlikely win for a public defender whose parents served time for felonies; it also came despite the fact that the San Francisco Police Officers’ Association, the city’s police union, outspent Boudin in an effort to defeat him. The union pulled in cash from police unions in Los Angeles, Portland, Seattle, and New York. The San Francisco Deputy Sheriffs’ Association aided the effort, too, sharing a John Birch Society video calling Boudin a “communist radical” and a son of “terrorists.”

In New York State, where landmark criminal justice reforms are set to go into effect on Jan. 1, “a familiar chorus of concern has piped up,” according to the New York Times editorial board. “Police Commissioner James O’Neill wrote in an op-ed in May that the law would have a ‘significant negative impact on public safety.’ His successor, incoming Police Commissioner Dermot Shea, expressed similar views” in November. Police unions and prosecutors across the state “have issued ominous warnings.” The Oneida City Police Benevolent Association wrote in a Facebook post, “Think this is wrong & insane? Then tell your politicians that this needs to be repealed ASAP!” Over the summer, the New York Prosecutors Training Institute released audio of a Nassau County assistant district attorney training prosecutors on various ways to work with the police to subvert the new law.

For decades, law enforcement could rely on fearmongering to swing elections, preventing progressives from becoming district attorneys, and keeping reform bills off the books. But now, across the country, “a movement away from incarceration has been a rare point of consensus among Americans who can agree on little else.”

These calls for criminal justice reform have led police to panic, making these sorts of campaigns against reforms more common. “Just as conservatives, going back to the Nixon era, have used debates over the lawfulness of abortion, homosexuality, and pornography to portray themselves as besieged by a liberal elite, police unions, too, now claim they are on the losing side in an ideological struggle,” writes Melissa Gira Grant for the New Republic. It represents a return to the culture war’s origins, she explains, which lie with policing. “Provoking anxiety over law and order helped usher Nixon into the White House in 1968. Where today police unions cast Black Lives Matter activists as their persecutors, conservatives under Nixon pointed to black power activists and the anti-war left.” James Davison Hunter’s 1991 book, “Culture Wars: The Struggle to Define America,” brought the term “culture war” into the broader lexicon. Hunter says he was inspired after reading a news story about the arrests of clergy at an abortion protest. He frames the struggle emerging from 1960s social change as a matter less of specific issues than of “progressivism” versus “orthodoxy” more broadly.

But “throughout the 1990s, many who were at odds with one another when it came to other issues, such as abortion or gay rights, were largely in agreement on defending the power of police—whether that meant uniting against Ice T’s ‘Cop Killer’ song… or more sweeping policy proposals,” writes Grant. But the Obama years saw the start of a profound shift. “In demanding accountability from police who kill, the Black Lives Matter movement highlighted the ways in which the system of policing makes such accountability nearly impossible.” Leaders of the movement argued that police unions shield police from discipline for brutality. And when the officers who killed Michael Brown and Eric Garner were not indicted, “activists pointed to the power held by district attorneys—who rely on police to help them win convictions—in convening and persuading grand juries.”

By the 2016 election, Democrats had backed off from the Clinton-era tough-on-crime consensus. “Contenders in 2016 made abolishing the death penalty part of their platforms,” Grant writes. “By then, it was more common to hear that criminal justice reform was a bipartisan issue—albeit in a limited sense, with centrist overlap on a few modest reforms like creating alternatives to pre-trial detention.” Many of the Democratic candidates of 2020 have pledged unprecedentedly progressive criminal justice plans. And stalwart defenders of harsh law enforcement tactics such as Michael Bloomberg have been forced to walk back those decisions in order to gain any traction with the Democratic base.

Some on the right seem dedicated to stoking the flames of the culture wars. U.S. Attorney General William Barr said last week that if some communities don’t begin showing more respect to law enforcement, they may lose police protection. While giving a speech at the Attorney General’s Award for Distinguished Service in Policing, Barr said, “I think today, American people have to focus on … the sacrifice and the service that is given by our law enforcement officers. And they have to start showing, more than they do, the respect and support that law enforcement deserves―and if communities don’t give that support and respect, they might find themselves without the police protection they need.”

But even some purported leftists have played into police unions’ victimhood narrative in similar ways. Last week, a thin blue line flag was spotted on NYPD property. “The flags, featuring a horizontal blue line surrounded by black, are closely linked to Blue Lives Matter, countermovement formed in response to Black Lives Matter,” writes Jake Offenhartz for Gothamist. “Police reform groups claim that the flag denotes racism and a culture of misconduct. In recent years, the flag has appeared frequently at neo-Nazi and white supremacist rallies, including the deadly Unite the Right rally in Charlottesville.” During a press conference, Mayor Bill de Blasio brushed off questions about whether it is appropriate for the NYPD to fly the thin blue line flag on government property. Later in the day, during the swearing in of new NYPD Commissioner Dermot Shea, de Blasio left little room for police criticism. “To the doubting Thomases, to the naysayers, if you doubt, then you don’t truly respect the NYPD.” Jeffrey Fagan, a law professor at Columbia University who specializes in police accountability and criminal law, said he was not surprised by de Blasio’s remarks. “The mayor is still the lapdog of the police unions,” Fagan said.

It’s OK To Root Against Navy SEAL Edward Gallagher

It’s OK To Root Against Navy SEAL Edward Gallagher


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.

Chief Petty Officer Edward Gallagher, a 40-year-old Navy SEAL who has completed eight combat deployments, was known for seeking out the toughest assignments, where gunfire and gore were almost guaranteed, the New York Times reported. A few months before his 2017 deployment, he sent a text to the SEAL making assignments, saying he was “down to go” anywhere, no matter how brutal. “We just want to kill as many people as possible,” Gallagher told superiors. Before deployment, he asked a friend to make him a custom hunting knife and a hatchet, texting him, “I’ll try and dig that knife or hatchet on someone’s skull!”

According to members of his platoon, in the end, it wasn’t someone’s skull, but rather a teenager’s neck. The thin teenage boy was injured in an explosion and the Navy SEALs were giving him medical aid that day in Iraq in 2017. They sedated him and cut an airway in his throat to help him breathe. Then, all of a sudden, according to colleagues, Gallagher pulled out the hunting knife and stabbed the sedated captive in the neck. He died. Gallagher later posed for a photograph holding the dead captive up by the hair.

SEAL snipers also told investigators that one day, from his sniper nest, Gallagher shot a girl in a flower-print hijab who was walking with other girls on the riverbank. On a different day, two other snipers reported that Gallagher shot an unarmed man in a white robe with a wispy white beard. He would order his team to fire rockets at houses for no apparent reason. One SEAL said that he regularly parked an armored truck on a bridge and emptied the truck’s heavy machine gun into neighborhoods on the other side.

When Gallagher was brought up on serious charges, including first-degree murder, many took it as a signal that such abuses would not be tolerated. But he was convicted of only one charge: posing for photos with the captive’s dead body. And later, when the Navy sought to strip him of his trident, which would have ejected him from the SEALs, President Trump intervened to make sure that didn’t happen. He held Gallagher up as a warrior and a hero.

For many, including some prison abolitionists, the president’s decision felt disheartening. They would have wanted to see Gallagher stripped of his trident. Does that mean those abolitionists are actually retributive at heart? Not necessarily. There are several factors that distinguish Gallagher’s case from an ordinary criminal case, in which progressives would favor any efforts to lessen punishments. Unlike most criminal defendants, Gallagher is white, empowered, and accused of abusing his considerable authority. We don’t suffer from an overpolicing or mass incarceration crisis when it comes to the military. And the president’s intervention did not contribute to incarceration; it only prevented a symbolic gesture about Gallagher’s status in the military.

And there is another reason for progressives, even abolitionists, to decry Trump’s move. Legal decisions don’t merely affect the people directly involved, but they also send a message about society’s values. Public defenders regularly hear arguments from prosecutors on everyday cases that invoke this “expressive” function of law. Prosecutors refuse to make reasonable offers because, they say, it might “send a bad message” to the community that the behavior in question is somehow acceptable. The message sent to the community by those plea offers, in cases that receive no media attention, is negligible, if it exists at all. But it is hard to imagine a higher profile case than Gallagher’s, which has unfolded lately on Fox News and Twitter, and has been covered extensively in the press. So the expressive power of the Gallagher case is considerable.

The expressive function is “the function of law in ‘making statements’ as opposed to the function of law in directly controlling behavior,” according to legal scholar Cass Sunstein. It is “how legal ‘statements’ might be designed to change social norms.”

How do laws and decisions change social norms? It isn’t as if society began to frown on killing only after murder statutes went on the books. And it’s a two-way street: Social norms about same-sex marriage and marijuana use, for example, have prompted changes to laws, which have, with some exceptions, in turn engendered more social acceptance.

But in the context of the Gallagher case, the question is how the decision about whether to take away his trident could affect social norms—in other words, how the law in this case could work outside of direct coercion. Coercion is not a sufficient explanation for the way law shapes behavior. Empirical evidence indicates that criminal laws in the U.S. fail to reflect their communities’ sense of justice and also fail to deter. In the Gallagher case, it’s clear that military rules and international treaties have failed to prevent abuses. But there is also evidence that when people perceive systems and laws to be unfair or illegitimate, they are far more likely to disobey. One study found that people who read articles about unjust laws later showed a greater willingness to violate the law themselves in minor ways, compared to those who read about just laws. In another study, people who found the outcome of an abortion trial to be highly unjust were more likely later to steal a pen than those who did not.

In his book “The Expressive Powers of Law,” Professor Richard McAdams argues that another function has been overlooked: coordination. “When law highlights a behavioral choice in a coordination setting, it changes expectations about how others will behave,” Professor Janice Nadler writes of McAdams. “Thus, a law that announces ‘No Smoking’ empowers nonsmokers easily to coordinate to confront any smoker who flouts the legal announcement. Knowing this, smokers who think about lighting up might then demur.” In the Gallagher case, his platoon members struggled over whether to report his behavior and ultimately faced threats and intimidation for doing so. A symbolic legal expression, such as taking away Gallagher’s trident, might make such reporting easier in the future, and could deter potential abusers.

Elliot Ackerman, a Marine veteran and journalist, echoed this sentiment when speaking about Trump’s intervention. Gallagher’s “teammates were the ones who reported him,” he told the New York Times. “So the message it sends very clearly is, if you see war crimes and you’re going to report them, watch out.”

Nadler adds a layer to this analysis. “Law does not generally influence individual behavior in a vacuum, devoid of social context. Instead, the way in which people interact with law is usually mediated by group life.” In a 2017 paper, she argues that “group identity interacts with law to provide motivations to comply.” Law can “work expressively, not so much by shaping independent individual attitudes as by shaping group values and norms, which in turn influence individual attitudes.” The motivation to “belong and to identify with one’s group leads individual group members to make efforts to understand what others in the group would approve of, and to act accordingly.”

Individuals usually identify with specific groups, rather than society in general, and much of the time, people are more concerned with what members of their own group think than how society would judge them. It is hard to conceive of a more cohesive group than the SEALs, nor a group whose decision-making carries higher stakes. A symbolic decision, like stripping Gallagher of his trident, would not have contributed to a retributive or vengeful attitude toward justice, would not have added to mass incarceration (or any incarceration), but it might have expressed a value: that service members do not have carte blanche to abuse people they consider “other.” Instead, the president chose to express the opposite.

“All of us have served and have gone to great pains, risked our life, risked the lives of our comrades, in order to uphold the values of this country, which include the fact that we hold ourselves to a higher standard when it comes to war and the law of war,” Ackerman, the veteran, said. “And the idea that none of that matters at the end of the day is a slap in the face to all of us.”

Court Rules Police Can’t Lie About Lie Detectors

Court Rules Police Can’t Lie About Lie Detectors


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 1997, four Navy sailors in Norfolk, Virginia were arrested for the rape and murder of a young woman. The men were trained to endure stressful situations, but they could not withstand the long, relentless police interrogation that followed. All four were innocent, but all four confessed, and all four were convicted. One of the men became so convinced of his own guilt that he testified against the others and wrote letters of apology to the victim’s family.

DNA recovered from the victim did not match any of the sailors, but it did match another man who confessed to the crime and said he acted alone, and who was already in prison for sexual assault. Nonetheless, it took more than 20 years for the Norfolk Four, as they came to be known, to receive full pardons, and their case, the subject of a PBS Frontline documentary, drew national attention to the widespread problem of false confessions.

Why would anyone, let alone trained military personnel, confess to a crime they did not commit? Their interrogations were models of police coercion. Marathon questioning throughout the night. Threats of the death penalty if they did not admit guilt. And a deception designed to convince them not only of certain conviction, but also that, regardless of their memory, they were guilty. Police gave each man a polygraph exam and then lied about the results, telling them they failed when they had passed. It was only after this lie, told separately to all four, that each man confessed to a crime that none of them committed.

Twenty-two years later, one state Supreme Court has now recognized “how falsified polygraph results can coerce a suspect into making a confession,” and ruled that such deception violates the right against self incrimination. In an Oct. 29 ruling, the Hawaii Supreme Court said that fake lie detector results are necessarily coercive and that, if they are used in interrogations, any resulting statements must be excluded from trial.

The Hawaii case involved longtime wrestling coach Keith Matsumoto, who was accused of groping a 14-year-old girl at a tournament in 2012. Matsumoto denied the conduct and the results of a polygraph were inconclusive. But the detective who gave the exam told him he failed and continued the interrogation, “exuding confidence” that Matsumoto was guilty. Eventually, Matsumoto said that while he could not remember touching the girl he must have done so, perhaps as a “‘good job’ slap” on the butt in a moment of “weakness.” That admission was later used to obtain his conviction at trial.

The Hawaii Supreme Court tossed the confession and overturned the conviction. “Extensive scientific literature and numerous documented cases have demonstrated the coercive nature of falsified polygraph test results,” the court wrote. “They can change a suspect’s beliefs, pressure a suspect to confess, and even cause the suspect to believe they committed the crime when they did not.” That is, the court said, “false polygraph results may psychologically prime an innocent suspect to make a confession.”

The decision appears to be the first to fashion this bright-line rule, and one immediate question is whether other courts will follow suit. It’s not as though the fake polygraph ploy fell into disuse in the decades since the Norfolk Four went to prison. In 2009, police in Sacramento staged a fake lie detector test, complete with body patches connected to wires and fabricated written test results, to pry incriminating statements from a murder suspect. Noting that “cases from California and federal courts validating such tactics are legion,” a California appellate court approved the ruse and upheld the resulting conviction.

In 2013, a Chicago Tribune investigation found that the Chicago Police Department routinely used its polygraph unit to obtain false confessions, leading to wrongful convictions and lawsuits costing the city millions of dollars.

“What makes the polygraph particularly powerful is that it’s couched in science,” Saul Kassin, a psychology professor at John Jay College of Criminal Justice in New York, told the Tribune. “When they say you failed the polygraph, and you think it’s infallible, it has a very strong effect.” Lie detector tests may be inherently unreliable, but that doesn’t matter if people believe that they work.

And many of the concerns about the coercive power of fake test results apply with equal force to other forms of police deception—common tactics that courts have condoned while applying unrealistic standards for what constitutes a “voluntary” statement.

Three years after its decision in Miranda v. Arizona, the U.S. Supreme Court under Chief Justice Earl Warren again addressed police interrogation in the 1969 case Frazier v. Cupp. Martin Frazier was arrested on suspicion of murder. When Frazier denied wrongdoing, police deployed a common trick: they told him, falsely, that a person he had been with that night had already talked to the police and confessed to their involvement. With Frazier still reluctant to talk, one officer told him “you can’t be in any more trouble than you are in now,” and police ultimately obtained a full confession.

In a unanimous decision, the Supreme Court said the confession was voluntary. Police deception was relevant to the question of coercion, the Court said, but “these cases must be decided by viewing the ‘totality of the circumstances,’” of which any deceptive tactics are only a part. Since then, as a 2009 white paper on false confessions in the Journal of Law & Human Behavior observed, the Frazier decision’s “totality of the circumstances” test “has been interpreted by police and the courts as a green light to deception.”

But like fake test results, police lies about the existence of evidence against the accused, including lies that an innocent person would know are false—an eyewitness saw you, a video camera recorded the whole thing, drugs were found in your car—make people believe that conviction is inevitable, and that the last, best thing they can do is cooperate, tell authorities what they want to hear, and even falsely confess.

It’s impossible to know how many false confessions have been the product of perfectly legal police deception, but any known cases are only a tiny fraction. A Journal of Law & Human Behavior white paper finds “strong support for the proposition that outright lies can put innocents at risk to confess” in “one hundred-plus years of basic psychology research.” One recent article found that at least 23 percent of false confessions in exoneration cases were in part the product of police lies that did not rise to the level of misconduct under current case law.

That courts have overlooked this reality for so long betrays a disconnect not just between the law and social science, but between the law and the very nature of police interrogations. Allowing police to lie and deceive assumes that they are engaged in good-faith investigation and genuinely interested in pursuing the truth, the cost of which may be less-than-honorable tactics. But interrogations are not about fact finding. Rather, the “single-minded purpose of interrogation is to elicit incriminating statements, admissions, and perhaps a full confession in an effort to secure” convictions. Interrogations do not weed out the innocent; they often target them.

And so the more salient question goes beyond polygraph tests, and asks whether Hawaii’s Matsumoto decision will spark increased scrutiny of police deception in all forms, starting the path toward a jurisprudence that gives real meaning to the rule against coercive interrogations.